Appendix — North v. United States

© fw Pe ty

15 0 (0) No. > Supreme Court, U.S.

eee . " a APR 20 1978

MICHAEL RODAK, JR..,

ILED

ait

A ed) Gout of the United States

Ocroser Term, 1977

LOUIS A. MARKERT and ROBERT CRAIG,

Petitioners,

vB.

UNITED STATES OF AMERICA,

Respondent.

ROBERT CRAIG, FRANK P. NORTH, JB.,

PETER V. PAPPAS, and JACK E. WALKER,

Petitione: s,

vs.

UNITED STATES OF AMERICA,

Respondent.

JOINT APPENDIX

WILLIAM A. BARNETT ANNA R. LAVIN

CHARLES R. PURCELL EDWARD J. CALIHAN, JR.

135 South LaSalle Street 53 West Jackson Boulevard

Chicago, Llinois 60603 Chicago, Illinois 60604

Attorneys for Petitioner Attorneys for Petitioners

Jack E. WALKER Rosert Craic and

Lovis A. MARKERT

PETER V. PAPPAS

33 North LaSalle Street WILLIAM J. NELLIS

Chicago, Illinois 60602 One North LaSalle Street

Attorney Pro Se Chicago, Illinois 60602

Attorney for Petitioner

Franx P. Norta, Jr.

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX TO APPENDIX

PAGE

Appendix A—

Memorandum Opinion and Order of United

States District Court for Northern District of

Illinois, Eastern Division denving Motion to

Dismiss (Mar. 13, 1975) 0.0... ieeseiiietiieiabians App. 1

Order of United States District Court on Mo-

tion to Suppress (Mar. 17, 1975) ..................... App. 10

Memorandum and Order of United States Dis-

trict Court on Motion to Suppress (May 23,

ELL App. 11

Appendix B—

Decision of United States Court of Appeals,

reversing order of suppression, decided Janu-

ary 5, 1976 ............ etal diiaiaaihdaesinincseampeeenammnees saiatet App. 21

Opinion of United States Court of Appeals,

a

Appendix C—

Opinion of United States Court of Appeals

afirming defendants’ convictions, decided

SG im &

Appendix D—

Decision of United States Court of Appeals,

decided December 12, 1977 ...00.-....00.............. App. 59

Appendix E—

Order entered March 21, 1978 denying Petition

for Rehearing ...... hE App. 152

Appendix F—

Order entered March 22, 1978 affirming convic-

tions of the United States District Court .......App. 153

In the

Supreme Court of the United States

Octroser Term, 1977

No.

LOUIS A. MARKERT and ROBERT CRAIG,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

ROBERT CRAIG, FRANK P. NORTH, JR.,

PETER V. PAPPAS, and JACK E. WALKER,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

JOINT APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

UNITED STATES OF AMERICA,

Plaintiff,

v.

ROBERT CRAIG, et al.,

Defendants.

No. 74 CR 877

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on defendants Craig

and Markert’s Motion to Dismiss. In support of their mo-

tion they assert their right to claim the privilege of Speech

or Debate enunciated in Article I, Section 6 of the United

States Constitution and argue that this privilege bars their

prosecution under the present indictment.

Article I, Section 6 provides in pertinent part that:

‘*. .. for any Speech or Debate in either House, (The

Senators and Representatives) shall not be questioned

in any other Place.’’

The immunities of the Speech or Debate Clause were

not written into the Constitution simply for the personal

benefit of legislators, but to protect the integrity of the

legislative process by insuring the independence of indi-

vidual legislators. United States v. Brewster, 408 U.S. 501,

507 (1971).

App. 2

The Clause should be read broadly to include anything

generally done in a session of Congress by one of its mem-

elon relation to the business before it. Kilbourn v.

ompson, 103 U.S. 168 (1880). It was further held in

United States v. Johnson, 383 U.S. 169 (1966) that th

privilege protects Members of Congress from inquiry ;

legislative acts or the motivation for actual te

of legislative acts. Defendants assert that under these

holdings they are immune from prosecution, since the Gov.

ernment is precluded from inquiring j a

process. q g into the legislative

Defendants urge that the Speech or Debate Clause f

the United States Constitution has been extended to th

states, and that as state legislators they are entitled to its

protections. Defendants place initial reliance on K wbour ‘

supra. In that case defendants were members of the Ho “

of Representatives who had conducted a hearing in which

plaintiff was adjudged guilty of contempt of Congress

Plaintiff was imprisoned briefly, after which he brou ht

suit against those Congressmen involved. The Su ma

Court held that the Congressmen’s conduct was sa

by the Speech or Debate Clause of the United States Con-

stitution. In the course of its le ini

ngthy opin

made the following statement: ainliasieiaeaies

“Mr. Justice Story, Section 866 i

Story, of his C i

on the Constitution, says: ‘The next Pass goo pore

sey is the freedom of speech and debate, witho t

a ~ bays — would be comparatively no

i tant or ineffectual. This privilege als )

om ray hy i the practice of the British Pariiona

ull exercise in our colonial legislati |

now belongs to the legislation of pony rg ‘ao

Union as are

at 204) a matter of constitutional right.’ ”’ (103 U.S.

App. 3

Defendants interpret this statement as a clear showing

that the federal Speech or Debate Clause had been extend-

ed to state legislators. The Government disagrees, simply

labelling it as broad dicta.

After seventy years of silence on the subject, the Su-

preme Court again had an opportunity to address itself

to this issue in Tenney v. Brandhove, 341 U.S. 367 (1951).

Defendant Tenney, a California state legislator, was sued

under the Civil Rights Act of 1871. Plaintiff alleged that

defendant had misused his legislative authority for the

improper purpose of depriving him of his constitutional

rights in contravention of 8 U.S.C. §§ 43 and 47(3).

After extensive discussion of the historical development

of the legislative Speech or Debate privilege, the Court

held that the District Court had properly dismissed the

complaint, stating:

‘“We conelude only that here the individual defen-

dants and legislative committee were acting in a field

where legislators traditionally have power to act, and

that the statute of 1871 does not create civil liability

for such conduct.’’ (341 U.S. at 379)

Like the defendants here, some federal courts have under-

stood the holding in J'enney to mean that the federal

Speech or Debate privilege had been extended to state

legislators, at least in the context of a civil suit. See Eslin-

ger v. Thomas, 476 F.2d 225 (4th Cir. 1973); Gambocz v.

Subcommittee on Claims, 423 F.2d 674 (3rd Cir. 1970).

In 1971 the issue was clouded by the Supreme Court’s

ruling in United States v. Brewster, supra. In a cryptic

footnote, the Court said of Tenney, ** (Harassment of wit-

ness by state legislator during a legislative hearing; not a

Speech or Debate Clause case.)’’

App. 4

The Court has examined the relevant cases and con-

cludes that defendants incorrectly interpret the few au-

thorities on the subject. A close examination of the Ten-

ney opinion reveals that the Supreme Court never reached

The bull: of the opinion traces the historical develo

ment of legislative privilege. Reasons for existence of the

privilege were examined, as were various legislative codi-

fications of the privilege from the English Bill of Rights

in 1689 through the constitutions of the United States and

various states. The Court concluded that in view of the

importance attached to legislative privilege through the

centuries, Congress could not have intended to strip any

#1 *

It was in this context that th

, e Court made the

relied on by defendants: statement

‘*Did Congress by the

. ss by general language of its 1

a mean to overturn the tradition of hatiiotios

: o om achieved in England by Civil War and eare-

vem “ee r. et formation of State and Na

vernmenpts here? Did it mean t is-

lators to civil liability f an io

to ci buity for acts done within th

= —— Let us assume, ioe oe ie

noment, ongress has constitutional

— the freedom of State legislators aclue within

heir traditional sphere. That would be a big assum :

tion. But we would have to make an even rasher >

sumption to find that Con

cised the power.’’ (341 US ot 16). sia

In the opinion of this Court the decision in J’enney did not

ms on any extension of the federal Speech or Debate

; ause. Instead, the Supreme Court merely concluded that

ongress had not intended the Civil Rights Act to limit

App. 5

any Speech or Debate privilege to which a state legislator

might be entitled by virtue of his state constitution. Thus,

under this Court’s reading of Tenney, that case did not

extend federal Speech or Debate protection to state legis-

lators under any circumstances.

This interpretation is reinforced by the footnote found

in Brewster, supra, in which Tenney was said not to be a

Speech or Debate Clause case. See also United States v.

Johnson, supra. There the Court said of the Tenney opin-

ion, ‘‘it viewed the state legislative privilege as being on

a parity with the similar federal privilege.’’ (383 U.S. at

180).

Having distinguished Tenney, the Court finds that Kuil-

bourn v. Thompson, supra, is the only case in which the

Supreme Court appears to have expressed an opinion on

this issue. It was in the context of the Court’s lengthy

examination of the scope of legislative privilege that refer-

ence was made to Mr. Justice Story’s Commentaries. It

is this Court’s opinion that this lone statement was gratui-

tously included in a very general discussion of the subject

of speech or debate, and that as such it is pure dicta. This

conclusion is reinforced by the fact that Article I of the

United States Constitution deals exclusively with powers

of Congress and that Section 6 clearly refers only to Sena-

tors and Representatives of the United States Congress.

This Court holds that the Speech or Debate Clause of

the United States Constitution has never been nor should

it now be extended to the states.

This, however, is not dispositive of defendants’ motion.

As members of the Illinois Legislature, they are protected

by a comparable Speech or Debate privilege found in Ar-

ticle 4, Section 12 of the Illinois Constitution of 1970. That

Clause provides that:

App. 6

‘*...A member (of the General Assembly) shall

t

be held to answer before any other triecal for -_

speech or debate, written or oral, in either house. . .”’

This Court cannot accept the Government’s contention

that defendants may not avail themselves of this state

constitutional privilege in a federal criminal prosecution

The Government relies on Rule 26 of the Federal Rules of

Criminal Procedure, which provides in pertinent part:

‘‘The admissibility of evidence

and privileges of te shall mylene gem

when an act of Congress or these rules otherwise a

vide, by the principles of the common law as they ine

be interpreted by the courts of the United States 4

the light of reason and experience.”’ ¥

The cases cited by the Government all relate to instances

where state rules pertaining to evidence and competency

of witnesses gave way to the federal rules. The Court re-

jects the Government’s contention that when a defendant

enters a federal courtroom, he is stripped of all state

endowed constitutional privileges. As was pointed out in

Tenney, assuming that Congress has the power to deprive

state legislators of a privilege otherwise available to them

this Court will not ascribe to Congress an intent to do s

in the absence of a clear showing to that effect. ,

Having decided that defendants may avail themselves

of the Illinois constitutional Speech or Debate aetvila e

it must be determined whether that privilege operates (“

bar inquiry into the present charges. This Court will look

to the decisions which have defined the scope of the federal

Speech or Debate Clause, since the federal and state privi

leges have the same historical purpose. ~

Defendants rely on United State

ants s v. Johnson, supra. In

that case it was held that defendant Congressman, er

with conspiring to defraud the United States by conspiring

App. 7

to make a speech for compensation, was protected from

prosecution by the Speech or Debate Clause. Mr. Justice

Harlan, speaking for the Court, stated:

‘‘ However reprehensible such conduct may be, we be-

lieve the Speech or Debate Clause extends at least so

far as to prevent it from being made the basis of a

criminal charge against a Member of Congress of con-

spiracy to defraud the United States by impeding the

due discharge of government functions. The essence

of such a charge in this context is that the Congress-

man’s conduct was improperly motivated, and as will

appear that is precisely what the Speech or Debate

Clause generally forecloses from executive or judicial

inquiry.’’ (383 U.S. at 180)

The Court concluded that prosecution under a general

criminal statute dependent on such inquiries necessarily

contravenes the Speech or Debate Clause. However, the

Court went on to say:

‘‘Qur decision does not touch a prosecution which,

though as here founded on a criminal statute of gen-

eral application, does not draw in question the legis-

lative acts of the defendant member of Congress or

his motives for performing them.’’ (383 U.S. at 185)

The Court further held that it was not necessary to dis-

miss the conspiracy count in its entirety. Instead, it was

held that with all references to that aspect of the conspir-

acy eliminated, the Government should not be precluded

from a new trial on that count, thus wholly purged of ele-

ments offensive to the Speech or Debate Clause.

In United States v. Brewster, the defendant was a for-

mer United States Senator charged with accepting a bribe

in exchange for a promise relating to an official act. The

Court held that the Speech or Debate Clause did not bar

prosecution. Mr. Chief Justice Burger, speaking for the

Court, observed:

App. 8

‘*Taking a bribe is, obviously, no part of the legisla-

tive process or function; it is not a legislative act. It

is not, by any conceivable interpretation, an act per-

formed as a part of or even incidental to the role of

a legislator. It is not an ‘act resulting from the na-

ture, and in the execution, of the office.’ Nor is it a

‘thing said or done by him, as a representative, in the

exercise of the functions of that office,’ 4 Mass., at 27.

Nor is inquiry into a legislative act or the motivation

for a legislative act necessary to a prosecution under

this statute or this indictment. When a bribe is taken,

it does not matter whether the promise for which the

bribe was given was for the performance of a legis-

lative act as here, or as in Johnson, for use of a Con-

gressman’s influence with the Executive Branch. And

an inquiry into the purpose of a bribe ‘does not draw

in question the legislative acts of the defendant mem-

ber of Congress or his motives for performing them.’

383 U.S., at 185.’’ (408 U.S. at 526)

Defendants here are charged with interference with com-

meree by threats or violence (extortion) and mail fraud.

Following the reasoning in United States v. Brewster,

supra, this Court holds that prosecution is not barred by

the Illinois Speech or Debate privilege in this case. Ex-

tortion and mail fraud are in no conceivable way part of

the legislative process. Nor is it necessary to inquire into

the legislative process in the course of prosecution.

Paragraphs 1 through 5 and paragraphs 14 and 15 of

defendants’ motion allege in essence that the indictment

is uncertain, that it fails to sufficiently aver a crime, and

that it fails to set forth the essential facts constituting the

offenses charged. The Court finds that the indictment sets

forth the elements of the offenses with sufficient particu-

larity, that it apprises defendants of the charges against

them, and that they will be able to plead a judgment on it

as a bar to further prosecution for the same offenses.

ttle cei aaa

App. 9

remaining arguments appear to challenge

inois statutes in the indictment.

does not affect the sufficiency of

Defendants’

the inclusion of certain tl

The Court holds that this

the indictment.

Defendants’ Motion to Dismiss is denied.

ter: /s/ Alfred Y. Kirkland

_— Alfred Y. Kirkland, Judge

Dated: Mar 13 1975

App. 10

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

UNITED STATES OF AMERICA, —

s Plaintiff,

ROBERT CRAIG, et al.,

Defendants

No. 74 CR 877

ORDER

This matter comes before the Court on defendant Mark

quiring into legislative act

8 or defendant’ i

formance of legislative acts. ——

concise written stateme

s nt of what evide i

. . * =

taken from him in violation of his consti . - a

Enter: /8/ Alfred ¥. Kirkland

Alfred Y, Kirkland, J udge

Dated: March 17, 1975

UNITED STATES OF AMERICA,

ROBERT CRAIG, et al.,

App. 11

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

Plaintiff,

v.

Defendants.

No. 74 CR 877

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on motion by defen-

dant Markert to suppress evidence. Defendant, a former

member of the Illinois General Assembly, argues that cer-

tain evidence, including grand jury testimony, was taken

from him in violation of the Illinois Speech or Debate

Clause. This evidence was submitted to the Court for im

camera inspection.

Defendant agreed to several interviews and testified be-

fore a federal grand jury. At all relevant times defendant

was represented by counsel and was given a standard warn-

ing concerning his constitutional rights. The government

asserts that the Speech or Debate privilege is personal in

nature and that defendant waived this privilege when he

agreed to give testimony after having been advised of his

rights. Defendant argues that the privilege is a complete

bar to inquiry which may not be waived by an ).dividual.

The threshold issue is whether the Illinois Speech or

Debate Clause accords a personal privilege which may

App. 12

effectively be waived by an individual legislator. This

Court is of the opinion that it may not be so waived.

Article 4, Section 12 of the Illinois Constitution of 1970

provides in pertinent part that:

... A member [of the G

be held to answer before ao alae ae on

speech or debate, written or oral, in either house. . . r

There is little available case authority pertaining to the

Illinois Speech or Debate Clause. Accordingly, since the

state and federal privilege have a common historial origin

and purpose, the Court will look to those decisions which

bear on the federal privilege. The comparable federal

privilege is found in Article I, Section 6 ;

’ of the U

States Constitution: e United

. .. for any Speech or Debate in ei

. ther House, [th

Senators and Representativ ¥ % » =

in any other Place. ives} shall not be questioned

. Although the scope of the federal Speech or Debate

Clause has been examined at length by the Supreme Court

there has never been a definiti i

nitive ruling on the i

before this Court. : a oe

, In United States v. Johnson, 383 U.S. 169 (1966), the

es Court was faced with a constitutional challenge

- the indictment of a United States Congressman who

nas ser had — his position by conspiring to give a

cular speech in return fo i

ae r payment from private

Mr. Justice Harlan noted th

at: ‘*. . . the language of

the Speech or Debate Clause clearly proscribes at ‘hess

some of the evidence taken during trial’, (383 U.S. at 173)

The Court quoted with a ?

A pproval from Tenney v. B :

hove, 341 U.S. 367, 377 (1951), stating: ——

«“« ee

App. 13

___ that it was not consonant with our scheme of gov-

ernment for a court to inquire into the motives of

legislators, has remained unquestioned. (383 U.S. at

180).

The Court reasoned that despite the reprehensible na-

ture of the charged conduct, the Speech or Debate Clause

operated to prevent it from being made the basis of a

charge relating to legislative acts. The Court observed:

The essence of such a charge is that the Congress-

man’s conduct was improperly motivated, and as will

appear that is precisely what the Speech or Debate

Clause generally forecloses from executive and judi-

cial inquiry. (383 U.S. at 180)

Because the Court found that the government’s case

could be made without reference to legislative acts, the

indictment itself withstood attack. However, the Court

took care to point out that any prosecution dependent on

inquiry into legislative activity necessarily contravened the

Speech or Debate Clause, and the Court directed the gov-

ernment to prosecute its ease without reference to such

forbidden area of inquiry.

It is significant that nowhere in Johnson did the Court

suggest that the Speech or Debate privilege was available

at the option of a legislator. The opinion reflects the ap-

parent conclusion that the Clause operates to foreclose

judicial inquiry into legislative activity.

In United States v. Brewster, 408 U.S. 501 (1972), the

issue before the Court was whether the defendant Senator

could be prosecuted on the charge that he had accepted a

bribe in exchange for a promise relating to an official act.

The Court held that the Speech or Debate Clause operated

to bar inquiry into legislative acts, and since such a prose-

eution was not necessarily dependent on such inquiry, pros-

ecution was barred.

App. 14

The Court in both Johnson and Brewster quoted with

approval from Ex Parte Wason, L.R. 4 Q.B. 573 (1869) :

I am clearly of opinion that we ou i

7 be doubted for a moment that ge fly hg

lions of members of either House cannot be inquired

ato by criminal proceedings with respect to anythin

they may do or say in the House. (emphasis added)

(383 U.S. at 183, 408 U.S. at 509). '

The language of the Supreme Court opinions and of the

constitutional provisions themselves is plain. The privi

lege is invariably described in the opinions in terms of .

prohibition against judicial or executive inquiry. Like

wise, the directive in each of the two relevant sonstitition.

al provisions is not to the legislator, that he may avail

himself of a privilege attendant upon elective office, but

rather to those who would question him. It is said that th

legislator ‘‘shall not be questioned in any other Place’’ a

that he ‘‘shall not be held to answer before any other tri

bunal.’’ The plain import of that language is not that the

pe ~ claim a privilege, but that the executive and

icial branches are ibi inquiring ji i

ee ttgndeenr-a prohibited from inquiring into legis-

Such literal interpretation of constitutional lan a

and that of the opinions is entirely consistent oh Go

stated purpose of the Speech or Debate privilege See

Kilbourn v. Thompson, 103 U.S. 168 (1880) ; United st t

v. Johnson, supra; United States v. Brewster, supra ~“-

In Tenney v. Brandhove, supra, the Court devoted a co

siderable portion of its opinion to a discussion of th, é

origins and purpose of the privilege. Mr. Justice F k.

furter adopted the statement of James Wilson, a caaes

of the Committee which was responsible for th fede i

Speech or Debate Clause: : 7

App. 15

In order to enable and encourage a representative of

the public to discharge his public trust with firmness

and success, it is indispensably necessary, that he

should enjoy the fullest liberty of speech, and that he

should be protected from the resentment of everyone,

however powerful, to whom the exercise of that liberty

may occasion offense. (341 U.S. at 373)

The Court observed that it was necessary to insure that

representatives be able to execute the functions of their

- office without fear of prosecutions. (341 U.S. at 373, 2.4)

The Court concluded that:

Legislators are immune from deterrents to the unin-

hibited discharge of their legislative duty, not for their

private indulgence, but for the public good. (emphasis

added) (341 U.S. at 377)

This principle was affirmed in U nited States v. Johnson,

supra, where the Court stated that the purpose of the priv-

ilege was to ‘‘prevent intimidation by the executive and

accountability before a possibly hostile judiciary.’’ (383

U.S. at 181), and again in Brewster:

The immunities of the Speech or Debate Clause were

not written into the Constitution simply for the per-

sonal or private benefit of Members of Congress, but

to protect the integrity of the legislative process by

insuring the independence of individual legislators.

(408 U.S. at 507)

The Court concludes, upon consideration of the relevant

authorities, that it would defeat the purpose of the Illinois

Speech or Debate Clause if an individual legislator could

waive a protection which was personal to him. It is clear,

in the opinion of this Court, based on the plain wording of

the Illinois Speech or Debate Clause and on the language

of Supreme Court opinions, that the privilege operates as

a complete bar to inquiry into legislative activities. The

Court holds that the privilege is not personal to a legislator

ee or ee FS

App. 16

and may not be waived. The Speech or Debate Clause was

designed to protect the legislative process and render it

immune from intimidation. The fact that a legislator bene-

fits from its protection does not alter the nature of the

privilege.

The judicial or executive branches of government may

not avoid this constitutional prohibition by the fortuitous

expedient of obtaining the willing cooperation of a legisla-

tor, who chooses to volunteer information, thereby creating

an inhibiting effect on the legislative activities of other

members of the legislature. While there is nothing, as a

practical matter, which can prevent a legislator from volun-

teering information on protected activities, the Speech or

Debate Clause prohibits this Court from listening.

The Court having held that the Speech or Debate privi-

lege may not be waived, the next issue for determination

is which evidence, if any, was taken from defendant in vio-

lation of this privilege.

Looking to those Supreme Court cases which deal with

the federal Speech or Debate Clause, certain guidelines

have emerged.

In Kilbourn, supra, it was held that the privilege should

be read broadly, to include not only words spoken in de-

bate, but anything generally done in a session of the House

by one of its members in relation to the business before it.

(103 U.S. at 204) It was further stated in Brewster, supra,

that the Speech or Debate Clause prohibits inquiry only

into those things generally said or done in the House or

the Senate in the performance of official duties and into

the motivation for those acts. (408 U.S. at 512) The Court

there quoted with approval from Coffin v. Coffin, supra at

27:

App. 17

... and I would define the article as securing to every

member exemption from prosecution, for everything

said or done by him, as a representative, in the exer-

cise of the functions of that office; without inquiring

whether the exercise was regular according to the

rules of the house, or irregular and against their rules.

(408 U.S. at 514)

In Gravel v. United States, 408 U.S. 606 (1972) the Court

clarified the scope of the privilege, by stating that commit-

tee reports, resolutions, and the act of voting are equally

covered.

As was made clear in Brewster, however, not all things

‘related to the due functioning of the legislative process’’

are shielded by the Clause. (408 U.S. at 513, 515). Thus,

political activities must be dis*‘nguished from legislative

activities.

To the extent that criminal activity is not part of the

legislative process, it is not protected. This was the holding

of the Supreme Court in Johnson, supra. The Court there

stated:

No argument is made, nor do we think that it could be

successfully contended, that the Speech or Debate

Clause reaches conduct, such as was involved in the

attempt to influence the Department of Justice, that

is in no way related to the due functioning of the legis-

lative process. (383 U.S. at 172)

This proposition was affirmed in Brewster, supra, where

Mr. Chief Justice Burger, speaking for the Court, ob-

served:

Taking a bribe is, obviously, no part of the legislative

process or function; it is not a legislative act. It is

not, by any conceivable interpretation, an act per-

formed as a part of or even incidental to the role of

a legislator. It is not an ‘act resulting from the nature,

App. 18

and in the execution, of the office.’ Nor is it a ‘thing

said or done by him, as a representative, in the exer-

cise of the functions of that office,’ 4 Mass., at 27. Nor

is inquiry into a legislative act or the motivation for

a legislative act necessary to a prosecution under this

statute or this indictment. When a bribe is taken, it

does not matter whether the promise for which the

bribe was given was for the performance of a legisla-

tive act as here, or as in Johnson, for use of a Con-

gressiian’s influence with the Executive Branch. And

an inquiry into the purpose of a bribe ‘does not draw

in question the legislative acts of the defendant mem-

ber of Congress or his motives for performing them.’

383 U.S., at 185. (408 U.S. at 526)

The Court has carefully examined the transcript of de-

fendant’s grand jury testimony, as well as memoranda of

three interviews conducted by postal inspectors and the

United States Attorney’s office.

Exhibit One is identified as a transcript of defendant’s

grand jury testimony. The Court is of the opinion that

the following language is barred by the Speech or Debate

Clause:

On page 108, beginning with the question, ‘‘Are you

familiar with .. .’’ through and including, on page

109, the answer, ‘‘To my recollection, no.’’

Beginning on page 110, with the question, ‘‘ Now you

were a sponsor .. .’’, through and including, on page

113, the answer, ‘‘It was sometime .. . the introduc-

tion.’’

Beginning on page 113, with the question, ‘‘And

prior to that time .. .’’, through and including, on

page 114, the answer, ‘‘.. . no, I have no recollection.”’

Beginning on page 115, with the question, ‘‘ And you

are aware, are you not.. .’’, through and including,

on page 116, the answer, ‘‘I am, yes.’’

App. 19

On page 122, beginning with the question, ‘‘Did you

ever discuss . . .’’, through and including the answer,

‘‘T would assume . . . I would assume I did.’’

Beginning on page 128, with the question, ‘‘Did you

talk .. .’’, through and including, on page 129, the

answer, ‘‘No; | was... service to the GA.’’

On page 133, from the question, ‘‘Did you discuss

...’’ through and including the answer, ‘‘I’m certain

.. can’t say.’’

Exhibit Two is identified as a memorandum of an inter-

view of defendant which was conducted on September 2,

1973 in rural Mt. Sterling, Illinois by two postal inspectors.

The Court is of the opinion that the following language is

barred by the Speech or Debate Clause:

Beginning in paragraph 2 of page 2, ‘‘Mr. Markert

was then asked who was .. .’’ through and including,

in paragraph 1 of page 3, ‘‘. . . sponsored that particu-

lar bill.’’

On page 3, ‘‘ Markert stated that Pappas would...

Department of Highways, ete.’

On page 4, ‘‘ Mr. Markert then recalled . . . guaran-

tee the outcome of this legislation.’’

On page 4, ‘‘Markert was asked if... and other

legislative business.”’

On page 5, ‘‘He stated that the majority . . . legis-

lation on individual bills.’’

On page 5, ‘‘Markert related that . . . information

on original bills.’’

On page 5, ‘‘When asked if this type... was not

commonplace either.’’

On page 5, ‘‘Pappas stated that . . . relating to this

bill.’’

App. 20

On page 6, ‘‘Markert said at no time . . . any of the

principles involved.’’

Exhibit Three is identified as a memorandum of a con-

versation which occurred on September 20, 1973 in Spring-

field, Illinois, between defendant and a member of the

United States Attorney’s office. The Court finds nothing

within this memorandum which is privileged under the

Speech or Debate Clause.

Exhibit Four is identified as a memorandum of an in-

terview of defendant which was conducted on November

19, 1974 in Chicago, Illisvis by a postal inspector and a

member of the United Statcs Attorneys’ office. The Court

is of the opinion that the following language is barred by

the Speech or Debate Clause:

All of paragraph 3 of page 2,‘‘Mr. Holderman

asked . . . Doris Steinberg about the bill.’’

In paragraph 4 of page 3, ‘‘He stated that he...

would be assigned to him.’’

In paragraph 4 of page 4, ‘‘He said that he prob-

ably . . . interested in this bill.’’

In paragraph 4 of page 5, ‘‘ Again, he stated that

... or even kill it.’’

Order to be entered in accordance with this opinion.

Enter: /s/ Alfred Y. Kirkland

Alfred Y. Kirkland, Judge

Dated: May 23, 1975

du the

United States Court of Appeals

For the Seventh Cirrutt

No. 75-1592

Unirep States or AMERICA,

Plaintiff-Appellant,

v.

Rosert Craic, THomas J. Hanawan and

Louis A. MaRKERT,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 74 CR 877

Aurrep Y. Kirkianp, Judge

Argued September 26, 1975 — Decided January 5, 1976

Before Cummrines and Tone, Circuit Judges, and Kun-

zic, Judge.*

Cummines, Circuit Judge. In December 1974, appel-

lee Louis A. Markert, and co-defendants Robert Craig

and Thomas J. Hanahan were indicted on two charges of

* Judge Robert L. Kunzig of the United States Court of Claims

is sitting by designation.

App. 22

political corruption. Count One alleged that while mem-

bers of the Illinois House of Representatives they and

their unindicted co-conspirator Pete Pappas allegedly ex-

torted $1500 from members of the Illinois Car and Truck

Renting and Leasing Association, inducing the payments

‘tunder color of official right’’ in violation of the Hobbs

Act (18 U.S.C. § 1951). Count Two charged that the same

individuals engaged in a scheme to defraud the citizens

of Illinois of their ‘‘loyal, faithful and honest services in

their official positions’’ and ‘‘of their right to have the

legislative business of the State of Illinois conducted

honestly’? by accepting $1500 to block passage of a cer-

tain bill. The scheme was said to violate the Mail Fraud

Statute (18 U.S.C. § 1341).

During the grand jury’s investigation of alleged corrup-

tion in the Illinois General Assembly, the appellee con-

sented to interviews with postal inspectors in September

1973 and to an interview with postal inspectors and an

Assistant United States Attorney in November 1974. In

addition, he testified under subpoena before the grand jury

on September 13, 1973. At all times, appellee was repre-

sented by counsel and informed of his right to refuse to

answer questions by asserting his Fifth Amendment privi-

lege against self-incrimination. He declined, however, to

invoke this privilege and answered all questions put to him

by the postal inspectors, Assistant United States Attorney

and before the grand jury.

In February 1975, Markert moved to suppress his grand

jury testimony and the other statements he gave to gov-

ernment agents on the ground that they were obtained

from him in violation of the federal and state Speech or

Debate Clauses. A few weeks later, the district judge ruled

that Markert was entitled to the protection of the privi-

lege accorded by the Speech or Debate Clause of the IIli-

App. 23

nois Constitution.’ Consequently, the district court ordered

Markert to provide ‘‘a concise written statement of what

evidence, if any, was taken from him in violation of his

[Illinois] constitutional privilege.’’

Subsequently, the district court handed down an unre-

ported memorandum opinion and order granting Markert’s

motion to suppress certain portions of his grand jury tes-

timony and parts of the interviews he gave to postal in-

spectors and the Assistant United States Attorney. The

court decided that a legislator could not waive the privi-

lege accorded by the Speech and Debate Clause of the

State Constitution and ‘‘that the executive and judicial

branches are prohibited from inquiring into legislative ac-

tivities.’’ The Government has appealed pursuant to 18

U.S.C. § 3731.

The primary question is whether state legislators have

a Speech or Debate privilege, conferred either by the Illi-

nois Constitution or as a matter of federal common law,

which bars the admission of certain evidence against state

legislators in a federal criminal prosecution. If so, we

must then decide whether Markert waived that privilege.

I

The Federal Rules of Evidence became effective July 1,

1975.? Rule 501 is the pertinent rule and provides as fol-

lows:

1In pertinent part, Article 4, Section 12, of the Illinois Constitu-

tion of 1970 provides:

“* * * A member of the [General Assembly] shal! not be held

to answer before any other tribunal for any speech or debate,

written or oral, in either house. * * *”

* Under United States v. McCarthy, 445 F.2d 587, 590-591 (7th

Cir. 1971), this Court has applied these rules even before their ef-

fective date.

App. 24

‘‘Except as otherwise required by the Constitution

of the United States or provided by Act of Congress

or in rules prescribed by the Supreme Court pursu-

ant to statutory authority, the privilege of a witness,

person, government, State, or political subdivision

thereof shall be governed by the principles of the

common law as they may be interpreted by the courts

of the United States in the light of reason and experi-

ence. However, in civil actions and proceedings, with

respect to an element of a claim or defense as to

which State law supplies the rule of decision, the

privilege of a witness, person, government, State, or

political subdivision thereof shall be determined in

accordance with State law.’’

This version of Rule 501 does not alter the pre-existing

criminal law in the federal courts. The standard embodied

in the first sentence of Rule 501 was derived from Rule 26

of the Federal Rules of Criminal Procedure. See Senate

Report No. 93-1277, 93rd Cong., 2d Sess., 4 U.S. Code,

Cong. & Admin. News 7051, 7058 (1974); House Report

No. 93-650, 93rd Cong., 2d Sess., 4 U.S. Code, Cong. &

Admin. News, 7075, 7082 (1974). Rule 26 provided:

‘‘The admissibility of evidence and the competency

ard privileges of witnesses shall be governed, except

when an act of Congress or these rules otherwise pro-

vide, by the principles of the common law as they may

be interpreted by the courts of the United States in

the light of reason and experience.’’ *

This rule was promulgated in 1944 (effective in 1945)

as part of the Federal Rules of Criminal Procedure. Prior

8 After the Federal Rules of Evidence were adopted in 1975, Rule

26 was amended to provide as follows:

“In all trials the testimony of witnesses shall be taken orally

in open court, unless otherwise provided by an Act of Congress

or by these rules, the Federal Rules of Evidence, or other rules

adopted by the Supreme Court.”

App. 25

to those rules, the law of evidence to be applied in federal

criminal cases was uncertain. See Howard, Evidence in

Federal Criminal Trials, 51 Yale L. J. 763 (1942). Neither

state law nor federal law clearly applied. The governing

statute, the Rules of Decision Act, provided that ‘‘the

laws of the several states, except where the Constitution,

treaties, or statutes of the United States otherwise require

or provide, shall be regarded as rules of decision in trials

at common law, in Courts of the United States, in cases

where they apply’’ (1 Stat. 92, now 28 U.S.C. § 1652). As

interpreted by the Supreme Court, the statute required

the federal courts in a criminal case to apply the law of

the state in which the trial was held as it existed in 1789.

United States v. Reid, 53 U.S. 361, 363. If the state was

admitted to the Union after 1789, the common law as of

the date of admission controlled. Logan v. United States,

144 U.S. 263, 303. These principles, however, were not

strictly followed. At times, the Supreme Court examined

state laws of evidence in the light of ‘‘general authority

and sound reason,’’ rejecting them where they were anti-

quated or inappropriate. Benson vy. United States, 146

U.S. 325, 335; see Rosen v. United States, 245 U.S. 467.

Finally in Funk v. United States, 290 U.S. 371, and Wolfle

v. United States, 291 U.S. 7, the Court abandoned any

strict adherence to state rules of evidence in criminal

eases, adopting instead a flexible standard which would

allow the federal courts to modify or disregard local laws

of privilege ‘‘in the light of reason and experience.’’ 291

U.S. at 12. These two cases were the basis for Rule 26.

See Advisory Committee Notes to Rule 26; Vanderbilt,

New Rules of Criminal Procedure, 29 A.B.A.J. 376, 377.

Under Rule 26 the federal courts were free to fashion a

federal law of evidence consistent with the Federal Rules

of Criminal Procedure and Congressional statutes. See

Elkins v. United States, 364 U.S. 206, 216: Cummings,

App. 26

The Third Adventure, 29 A.B.A.J. 654, 655. As the 1940

Criminal Rules Enabling Act (18 U.S.c. § 3771) provided

in pertinent part:

‘* All laws in conflict with such rules [of criminal pro-

cedure} shall be of no further force and effect after

such rules have taken effect.’’

The House Committee Report on Section 3771 showed

that its purpose was to render it unnecessary to ‘‘search

the common law, statutes, and constitutional provisions

of the States * * *’’ (H. Rep. No. 2492, 76th Cong., 3d

Sess., 2 (1940)), in determining the admissibility of evi-

dence in criminal cases. Thus Rule 26 envisioned that

the admissibility of evidence in criminal cases in federal

courts would be governed by federal law and would not be

dependent upon diverse state laws, including state consti-

tutional provisions. Elkins v. United States, supra, 364

U.S. at 216; Heathman vy. United States District Court,

503 F.2d 1032, 1034 (10th Cir. 1974).

Similarly, Rule 501 contemplates that ‘‘federal privilege

law applies in criminal cases.’’ Conference Report No.

93-1597, 93rd Cong., 2d Sess., 4 U.S. Code, Cong. & Admin.

News 7098, 7100 (1974). However, nothing in the language

of the rule or its legislative history indicates that courts

are prohibited from recognizing as a matter of federal

common law a speech or debate privilege for state legis-

lators. The legislative history of Rule 501 was indeed

stormy. The Supreme Court Advisory Committee’s draft

contained nine non-constitutional privileges (56 F.R.D.

234-256), and its proposed Rule 501 provided that only

the enumerated privileges and those required by the fed-

eral Constitution or Act of Congress need be recognized

by the federal courts (56 F.R.D. 230). This draft of Ar-

ticle V on Privileges aroused such furor when the Su-

preme Court submitted it to Congress that the House

App. 27

Committee on the Judiciary eliminated the nine privileges

in favor of the present Rule 501. This was done because

the rules as submitted to Congress ‘‘contained controver-

sial modifications or restrictions upon common law privi-

leges.’’ Senate Rep. No. 93-1277, supra, 4 U.S. Cong. &

Admin. News 7058 (1974). With this background, surely

there would have been a hint in the history of revised Rule

501 if Congress had intended to override the common law

privilege inherent in the Speech or Debate Clause of the

federal and state constitutions.

These rules mandate that we neither categorically reject

nor accept the defendant’s claim of a speech or debate

privilege. Rather, we are instructed to determine whether

‘*the principles of the common law * * * in the light of

reason and experience’’ dictate the recognition of a fed-

eral common law speech or deoate privilege to be applied

in federal criminal prosecutions of state legislators. We

hold that Markert has such a privilege.

A product of the 17th century struggle for parliamen-

tary supremacy, legislative freedom of speech and debate

‘‘was taken as a matter of course by those who severed the

Colonies from the Crown and founded our Nation.’’ Ten-

ney v. Brandhove, 341 U.S. 361, 372. The Speech or Debate

Clause of the federal Constitution was adopted at the con-

stitutional convention without discussion or dissent. See

V Elliot’s Debates 406 (1836 ed.) ; II Records of the Fed-

eral Convention 246 (Farrand ed. 1911). Most states have

incorporated similar provisions in their constitutions. See

Tenney v. Brandhove, supra, 341 US. at 3/3-375. And in

its most recent cases, the Supreme Court has reaffirmed

that the Speech or Debate clause is an essential tenet of

the American political system. See Eastland v. United

States Servicemen’s Fund, 421 U.S. 491; Doe v. McMillan,

App. 28

412 U.S. 306; Gravel v. United States, 408 US. 606; United

States v. Brewster, 408 U.S. 501.

The clause originated, and its purpose remains, ‘‘to pre-

serve the principle that the legislature must be free to

s ak and act without fear of criminal and civil liability.’’

Tr».:°u vy. Brandhove, supra, 341 U.S. at 375. It is imma-

ter'al th. t the legislator may have had an unworthy mo-

te As wustice Frankfurter in Tenney (at 377):

‘‘Legislators are immune from deterrents to the un-

inhibited discharge of their legislative duty, not for

their private indulgence but for the public good.’’

This protection of the legislature’s independence ap-

plies whether the judicial proceeding is civil or criminal.

The privilege developed in England in response to the

King’s seditious libel prosecutions of dissident members

of Parliament. See United States v. Johnson, supra, 383

U.S. at 181-183. Similarly, the Supreme Court has held

that the clause applies to criminal prosecutions of mem-

bers of Congress. United States v. Brewster, supra;

United States v. Johnson, supra. The express purpose of

the clause is to protect legislators ‘‘against possible pros-

ecution by an unfriendly executive and conviction by a hos-

tile judiciary’’ for their acts as legislators. United States v.

Johnson, supra, 383 U.S. at 179. The clause therefore con-

tains substantive and evidentiary elements. The content

of a legislator’s speech on the floor of the chamber or

comment in Committee room cannot be made the basis of

either civil (Doe v. McMillan, supra, 412 U.S. at 312;

Powell v. McCormack, 395 U.S. 486, 502-503; Dombrowski

v. Eastland, 387 U.S. 82, 85; Tenney v. Brandhove, supra,

367 U.S. at 377; Kilbourn v. Thompson, 103 U.S. 168, 203)

or criminal liability. Gravel v. United States, supra, 408

App. 29

U.S. at 624; United States v. Brewster, supra, 408 US. at

514; United States v. Johnson, supra, 383 U.S. at 180. Nor

may legislators be required to answer questions about

their legislative activities. United States v. Brewster,

supra, 408 U.S. at 525; United States v. Johnson, supra,

383 U.S. at 183. In Johnson, the Court approved the

English rule that ‘‘the motives or intentions of members

of either House [of Parliament] cannot be inquired into

by criminal proceedings with respect to anything they

may do or say in the House.’’ 383 U.S. at 183, quoting

Ex parte Wason, L.R. 4 Q.B. 573, 577 (1869). Although

construed broadly to protect any activity ‘‘generally done

in a session of the House by one of its members in rela-

tion to the business before it’’ (United States v. Johnson,

supra, 383 U.S. at 179; Kilbourn v. Thompson, supra, 103

U.S. at 204), the privilege does not apply to a criminal

proceeding which ‘‘does not draw in question the legisla-

tive acts of the defendant member of Congress or his

motives for performing them.’’ United States v. Brewster,

supra, 408 U.S. at 510; United States v. Johnson, supra,

383 U.S. at 185.

Only the evidentiary aspect of the speech or debate

privilege is involved in this appeal. Markert contends

simply that he cannot be required to answer questions put

to him by the grand jury and government officials if the

inquiry delves into his conduct as a legislator on matters

before the Illinois General Assembly. This evidentiary

privilege is a necessary prophylactic. United States v.

Johnson, supra, 383 U.S. at 182. Its purpose is the same

as that of the substantive aspect of the Speech or Debate

Clause: preservation of the independence of the legisla-

ture. Id.

App. 30

The Government does not challenge this construction of

the speech or debate privilege. It concedes that were it

attempting to prosecute a member of Congress, he would

enjoy the privilege Markert asserts in this case. The

Government contends however that the privilege should

apply only to questioning of legislators by co-equal branches

of government. The policy served by the privilege, the

Government argues, is separation of powers; because the

national government is supreme, the privilege is inap-

plicable in this case.

This argument ignores the federal nature of the Ameri-

ican system of government. The Constitution confers upon

the national government only limited powers. Those pow-

ers not granted remain within the domain of the separate

states. The reservation of power for the states is not

only the import of the Tenth Amendment but also a basic

understanding of the draftsmen of the Constitution. ‘‘The

proposed Constitution, so far from implying an abolition

of the State governments * * * leaves in their possession

certain exclusive and very important portions of sovereign

power. This fully corresponds, in every rational import

of the terms, with the idea of a federal government.’’

The Federalist, No. 9 at 76 (New American Library Ed.

1961).

The role of the states under the new federal constitu-

tion was also a central issue in the ratification debates.

Opponents claimed that the new national government

would soon engulf the states, eliminating all of their power

and control over local affairs. See II Elliot’s Debates,

supra at 308 (New York), at 469 (Pennsylvania); III

Elliot’s Debates, supra at 171 (Virginia). Yet in state

App. 31

after state speakers arose to assure their fellow delegates

that the Constitution would work no such change; the

states would remain an important unit of the government.

See II Elliot’s Debates, supra at 168 (Massachusetts), at

199 (Connecticut); IV Elliot’s Debates, supra at 316

(South Carolina). The Constitution creates a federal sys-

tem of government; people are subject to two sets of laws,

those of the national government and those of the states.

The essence of this federal structure is that on matters of

national importance, the Congress shall legislate; on mat-

ters of local concern, the state legislatures shall enact the

laws. See The Federalist No. 38, supra; Grant, The Nature

and Scope of Concurrent Power, 34 Columbia L. Rev. 995

(1934). Therefore, state legislatures acting within the

scope of their powers perform a function as vital to the

governance of the state as the role Congress fulfills with

regard to the nation as a whole.

Although the speech or debate privilege embraces no-

tions of the separation of powers among co-equal branches

of government, its primary message is that legislatures

must be able to discharge their lawful responsibility in an

atmosphere free from the threat of interference by other

governmental units. A legislator in considering whether

to support or oppose a proposed law must be free to re-

flect on the merits; he must not be deterred from advocat-

ing a position by the threat of prosecution by a hostile ex-

ecutive. The evil is the fact of deterrence; whether the

threat emanates from the local or national executive makes

no difference.

In the present case, the United States Attorney com-

mendably conceded at the oral argument that a refusal to

recognize a speech or debate privilege for state legislators

App. 32

would have an inhibiting effect on the conduct of members

of the Illinois General Assembly. This threat to the legis-

lature’s independence is fundamentally inconsistent with

the idea of legislative action reflected in the policy, pur-

pose and history of the privilege and inherent in the words:

‘‘for any Speech or Dvbate in either House, they shall

not be questioned in any other Place.’’ U.S. Const. Art. 1

§ 6. Deterring a legislator from advancing a point of view,

or influencing how he votes by requiring him to explain

his motives before a grand jury is precisely the evil the

speech or debate privilege intends to prevent. The protec-

tion of the First Amendment does not aneliorate this

threat to legislative independence. The protection of free-

dom of speech does not provide a privilege against giving

evidence. Branzburg v. Hayes, 408 U.S. 665. It does not

prohibit a jury from questioning the motives of the speaker.

See New York Times Co. v. Sullivan, 376 U.S. 254.

Therefore, it would not be an adequate substitute for the

speech or debate privilege. Thus, in view of the purposes

of the speech or debate privilege, its common law history,

and the important role of the states in governing the coun-

try, we hold that state legislators are entitled to a federal

common law speech or debate privilege applicable in fed-

eral criminal prosecutions. The privilege is simply too

important to our conception of government to be abolished

by judicial fiat in a federal criminal prosecution under a

statute of general applicability. The concurring opinion

*The Hobbs Act (18 U.S.C. § 1951) and the Mail Fraud Statute

(18 U.S.C. § 1341) are not narrowly drawn attempts by Congress

to regulate the conduct of state legislators. These statutes therefore

provide no compelling federal interest which requires us to consider

whether the privilege may be abrogated by Congress.

App. 33

herein incorrectly, we believe, assumes that the existence

of this privilege is dependent on any underlying immunity.°

Principles of federal-state comity—‘‘a proper respect

for state functions’? (Younger v. Harris, 401 U.S. 37, 44)

—reinforce our conclusion that this particular privilege

was not rescinded by the Federal Rules of Evidence. Per-

haps somewhat idealistically, the Court in Tenney v.

Brandhove, supra, 341 U.S. at 378, stated that legislative

abuses were to be corrected by self-discipline and the

electorate. Subsequently, in United States v. Brewster,

* The concurring opinion argues that because state legislators have

no official immunity from federal criminal prosecutions, they should

likewise have no privilege. But the evidentiary privilege conferred

on members of Congress follows not from any substantive immunity

but from the Speech or Debate Clause itself. A member of Congress

is not immune from prosecution on charges of bribery or conflict of

interest. United States v. Brewster, supra; United States v. John-

son, supra. Yet the prosecutor is prohibited from attempting to

prove those offenses by questioning the congressman about the mo-

tives for his legislative acts. /bid. The privilege rests on the con-

stitutional judgment that the courts are not deemed the proper place

to hold legislators accountable for their acts as elected representa-

tives. Tenney v. Brandhove, supra, 341 U.S. at 378.

Implicitly, the concurring opinion argues that this principle of

government is not applicable here because state legislators have no

reason to expect interference in their affairs by a United States At-

torney. This argument not only ignores the reality of the case, evi-

denced by the concession of the United States Attorney at oral

argument that Illinois legislators would be inhibited in their official

conduct were no privilege recognized; it also disregards the wisdom

of the founding fathers, who feared that the federal government

would impermissibly intrude upon the power of the states to govern

their own affairs. See Federalist Nos. 23, 29, supra.

App. 34

supra, 408 U.S. at 520, the Court more prudently noted

that not only the ‘‘jurisdiction of Congress to punish its

Members is not all-embracing,’’ but also that the power

of self-discipline has inherent limits. Here, however, the

State of Illinois is under no such disabilities. While it is

within the province of the United States Attorney to

prosecute local officials who violate federal law, the pri-

mary responsibility for ferreting out their political cor-

ruption must rest, until Congress directs otherwise, with

the State, the political unit most directly involved. Fed-

eralist No. 17, supra at 120. Admittedly, legislators may

abuse their freedom of debate and discussion. But the

common law history of the privilege in England and the

United States teaches emphatically that it is better to tol-

erate the potential abuses than to risk the harm to our

system of government that would result from inhibiting a

legislator’s discharge of the responsibility conferred upon

him by the electorate. Our decision today does nothing

more than recognize that important judgment.

II

Having determined that Markert enjoys a common law

speech or debate privilege, we must now determine whether

he waived its protection. The Speech or Debate clause is

intended to provide a personal safeguard for the indi-

vidual legislator and an institutional immunity for the

legislature itself. United States v. Brewster, supra, 408

U.S. at 507; United States v. Johnson, supra, 383 U.S. at

179. This dual protection follows from the belief that the

legislature’s independence is predicated upon the inde-

pendence of its members. Tenney v. Brandhove, supra,

341 U.S. at 377. As long as the individual legislator can

App. 35

perform his function free from the threat of judicial and

executive interference, the policy of the privilege is not

offended. It therefore follows that to the extent the inquiry

impugns only the personal independence of the legislator

and does not call into question the independence of other

members of the body, the protection of the speech or de-

bate privilege can be waived.

In a criminal p osccution, a state legis!ator has a right

under the due process clause to put into issue his own

conduct as a representative if relevant. See United States

v. Nixon, 418 U.S. 683, 711; Washington v. Texas, 388

U.S. 14, 19. Once introduced, the prosecution must be

permitted to respond. Recognition of a privilege means

that some relevant evidence will not be before the trier

of fact. Because of the policies supporting the privilege,

the court are willing to tolerate this ‘‘derogation of the

search for truth.’’ United States v. Nixon, supra, 418 U.S.

at 709. However, it is a far more severe, and we believe

impermissible, distortion of the process to admit evidence

without aifording the other party a chance to respond, or

to hear testimony without permitting the opposition to

cross-examine. This is fundamentally inconsistent with

the view that ‘‘the two-fold aim [of criminal justice] is

that guilt shall not escape or innocence suffer.’’ Berger v.

United States, 295 U.S. 78, 88. Once the legislator has

chosen to make his conduct an issue, the court’s interest

that its processes not be subverted outweighs the claim

of privilege. See Branzburg v. Hayes, supra.

This aualysis is consistent with the Supreme Court’s

note in Gravel v. United States, supra, 408 U.S. at 622

n. 13, that a Senator can waive his aide’s claim of privi-

App. 36

lege.® If so, the Senator, and Markert in this case, should

similarly be able to waive his own privilege. The courts

have often held that evidentiary privileges may be waived

by the involved individual. E.g., United States v. Paul-

dino, 487 F.2d 127 (10th Cir. 1973), certiorari, denied,

415 U.S. 981; United States v. Moorman, 358 F.2d 31 (7th

Cir. 1966), certiorari denied, 385 U.S. 866; Johnson v.

United States, 270 F.2d 488 (9th Cir. 1959), certiorari

denied, 362 U.S. 924. The essence of a waiver is volun-

tary conduct. A decision to forego the protection of a

privilege, to be valid, must be a free choice, and hence

presents no challenge to the independence of the legisla-

tor.? Markert has not shown why his privilege should not

® The defendant contends that this footnote means that the Senator

could simply acknowledge to the court that the aide was not acting

as his agent. If so, the footnote is extraneous because the privilege

would not apply. Therefore, it seems likely that the Court meant a

Senator could require his aide to testify about actions which, if done

by the Senator, would be within the scope of the privilege. Since

the aide and the Senator are considered one for the purposes of the

privilege (Gravel v. United States, supra, 408 U.S. at 616), the

Senator must be able to waive the protection of the clause for him-

self as well as his aide.

7 Because the Speech or Debate clause embodies institutional as

well as personal protection, the scope of the waiver must be care-

fully limited. The difficulty is that the individual legislator’s testi-

mony and other evidence may involve not only his conduct but also

that of the body as a whole. At that point the law is clear that “the

Speech or Debate Clause clearly proscribes at least scme of the evi-

dence.” United States v. Johnson, supra, 383 U.S. at 173. A clear

threat to the institution’s ability to function would be presented if

members knew that one of their colleagues, by waiving his privilege,

could raise doubts in the minds of grand jurors about the propriety

of their conduct. Thus any waiver must be strictly limited to the

conduct of the invididual representative.

App. 37

be waivable as long as the waiver is limited to his own

conduct.

In deciding whether Markert waived his privilege in

this case, we need not find a knowing and intelligent for-

feiture of the right. See Johnson v. Zerbst, 304 U.S. 458,

464; United States vy. Escander, 465 F.2d 4388, 441 (5th

Cir. 1972); United States v. Michael, 426 F.2d 1067, 1069

(7th Cir. 1970). The lesser standard of voluntariness

applies because the policy served by the privilege is not

related to the fairness of the trial. Schnekloth v. Busta-

monte, 412 U.S. 218, 242. Under the test of voluntariness,

it need be shown only that the testimony is the ‘‘ product

of an essentially free and unconstrained choice by its

maker.’’ Schnekloth v. Bustamonte, supra, 412 U.S. at 225;

Columbe v. Connecticut, 367 U.S. 568, 602. The question

is the defendant’s subjective state of mind, to be deter-

mined after an examination of all the facts and circum-

stances. Schnekloth v. Bustamonte, supra, 412 U.S. at 249;

Kelly v. Peyton, 420 F.2d 912, 914 (4th Cir. 1970).

Markert contends that the facts of this case indicate

that the decision to testify was not freely made. The heart

of his argument is that he was not informed of his right

to claim a speech or debate testimonial privilege either

by the Government or by his own counsel. However, the

Supreme Court has never held that the failure to inform

the defendant of a privilege unrelated to trial fairness

mandates a finding that the decision was not voluntary.

Schnekloth v. Bustamonte, supra, 412 U.S. at 227; accord,

Byrd v. Lane, 398 F.2d 750, 755 (7th Cir. 1968), certiorari

denied, 398 U.S. 1020. When he appeared before the grand

jury, he gave potentially damaging testimony rather than

relying on his privilege against self-incrimination, of which

he had been informed. Because he made a conscious choice

App. 38

to testify, he waived the instant privilege. Although sub-

poenaed before the grand jury, Markert was not compelled

to testify in violation of any of his rights. See United

States v. Calandra, 414 U.S. 338, 346; Kastigar v. United

States, 406 U.S. 441, 448. Because he was a state legis-

lator, knowledgeable in the workings of the Government

and represented by competent counsel, his election to tes-

tify waived his Speech or Debate clause privilege.

The order of suppression is reversed and the cause is

remanded for further proceedings consistent herewith.

Tong, Circuit Judge, concurring. | concur in the re-

sult. I agree with the court that the speech or debate

clause of the Illinois Constitution is inapplicable in this

federal criminal proceeding, and that the question to be

decided is whether the federal common law of evidence

includes the privilege asserted. I disagree, however, with

the court’s view that, absent waiver, the defendant could

claim a speech or debate privilege under the federal com-

mon law of evidence.

Several recent opinions of the Supreme Court have

made it clear that the protection afforded state legislators

from liability under federal law for acts done in their

legislative roles, see J'enney v. Brandhove, 341 U.S. 367

(1951), is not based upon the speech or debate clause of

the Federal Constitution, see United States v. Brewster,

408 U.S. 501, 516 n. 10 (1972), a clause that applies only

to Congress, but rather upon the common-law doctrine of

official immunity. See Wood v. Strickland, 420 U.S. 308,

316-318 (1975); Scheuer v. Rhodes, 416 U.S. 232, 243-244

(1974); Doe v. McMillan, 412 U.S. 306, 318-320 (1973).

This is the same doctrine that was applied in Pierson v.

eee ee ee

App. 39

Ray, 386 U.S. 547, 554-555 (1967), to provide immunity to

a judge for acts done in the course of his judicial duties.’

The speech or debate clause of the Federal Constitution

protects members of Congress from being ‘‘questioned in

any other Place’’ concerning the Supreme Court was held,

‘legislative acts or the motivation for actual performanc@

of legislative acts.’’ See United States v. Brewster, supra,

408 U.S. at 509. The clause provides both immunity from

liability and a commensurate privilege against disclosure.

Gravel v. United States, 408 U.S. 606, 616 (1972). The priv-

ilege against disclosure and the immunity from liability

should also be commensurate when the basis for protection

is common-law official immunity. Where there is no im-

munity, it would be incongruous, if not useless, to recog-

nize an evidentiary privilege. Accordingly, I think that

whether the claimed privilege should be recognized as a

development in the federal common law of evidence de-

pends on whether there is an underlying immunity.

The common-law immunity of state legislators has not

been held to be coextensive with that which members of

Congress enjoy under the federal speech or debate clause.

Even with respect to civil liability, speech-or-debate im-

munity is broader than official immunity. The former bars

injunction actions directed at legislative activities of Con-

gress. E.g., Eastland v. United States Servicemen’s Fund,

421 U.S. 491 (1975); Powell v. McCormick, 395 U.S. 486

(1969). The doctrine of official immunity, on the other

hand, has been held by one court not to bar injunctive re-

lief against state legislative activities which offend federal

law, Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963), and

* Tenney v. Brandhove and Pierson v. Ray held that Congress had

not intended by adopting the Civil Rights Acts to abrogate the offi-

cial immunity of legislators and judges, supported as it was by strong

tradition and sound reasons.

App. 40

in other cases federal injunctions against state legislative

action have been sustained without discussion of the ques-

tion of immunity. E.g., Bond v. Floyd, 385 U.S. 116 (1966) ;

Bush v. Orleans Parish School Board, 191 F.Supp. 871

(E.D. La.), aff’d sub nom. Denny v. Bush, 367 U.S. 908

(1961).

Unlike federal speech or debate immunity, see United

States vy. Johnson, 383 U.S. 169 (1966), common-law official

immunity has not been extended to criminal liability. In

O’Shea v. Littleton, 414 U.S. 488, 503 (1974), the Court

said:

‘*?Wje have never held that the performance of the

duties of judicial, legislative, or executive officers, re-

quires or contemplates the immunization of otherwise

criminal deprivations of constitutional rights... . On

the contrary, the judicially fashioned doctrine of offi-

cial immunity does not reach ‘so far as to immunize

criminal conduct as proscribed by an Act of Congress.

...’ [Citing Gravel v. United States, supra, 408 U.S.

at 627.]’’

Thus judicial officers are not immune from criminal liabili-

ty for conduct within the scope of their judicial duties.

Braatelien v. United States, 147 F.2d 888, 895 (8th Cir.

1945); see also United States v. Manton, 107 F.2d 834 (2d

Cir. 1939). State legislators are similarly subject to fed-

eral criminal liability for analogous conduct which falls

within the prohibition of a federal criminal statute, as the

Court stated in O’Shea.

Immunity from civil but not criminal liability has been

regarded as sufficient to achieve the purpose of the doc-

trine of official immunity, which is to promote independence

and fearless discharge of duty on the part of the protected

officials. While the federal speech or debate clause serves

the same purpose, it has an additional, more fundamental

purpose grounded in the separation of powers in the fed-

App. 41

eral government. As the Court said in Gravel v. United

States, supra, 408 U.S. at 616, 617:

‘*The Speech or Debate Clause was designed to insure

a co-equal branch of the government wide freedom of

speech, debate, and deliberation without intimidation

or threats from the Executive Branch.

‘*(T jhe central role of the Speech or Debate Clause

lis} to prevent intimidation of legislators by the Ex-

ecutive and accountability before a possibl- hostile

judiciary, United States v. Johnson, 383 U.S. 169, 181

(1966). ...""

There being no problem of separation of powers between

the federal executive (represented in this case by the

United States Attorney) and a state legislature, the Con-

stitution itself does not create an immunity for state legis-

lators as it does for members of Congress. I see no need

for the courts to do so either. Nothing in our history or

in the authorities relied upon by the court in this case sug-

gests that there is a threat of federal executive interfer-

ence with the independence of state legislatures that would

warrant extending the judicially developed doctrine of offi-

cial immunity beyond its traditional boundaries. Accord-

ingly, I would hold that the state legislator’s official m-

munity does not extend to liability under federal criminal

statutes, and that he therefore has no commensurate offi-

cial’ privilege against disclosure.

In questioning the view that the existence of the privi-

lege should depend upon whether there is a corresponding

immunity, the majority states in footnote 5 that ‘‘[a|

member of Congress is not immune from prosecution on

?He has of course the same privilege against self-incrimination

that any other citizen has. He has not chosen to assert that privilege

in this case.

App. 42

charges of bribery or conflict of interest,’’ and ‘‘[yet] the

prosecutor is prohibited from attempting to prove those

offenses by questioning the congressman about the motives

for his legislative acts,’’ citing Brewster and Johnson.

This overlooks, I believe, an important distinction made

in Brewster. As I understand that case, it did not hold

that conduct which is not protected by an immunity from

liability may nevertheless be privileged from inquiry.

Brewster was charged with taking bribes in return for

being influenced in respect of his official acts and with

taking a bribe for an official act already performed by him.

The Court held that the speech or debate clause permitted

the government to prosecute those charges, because it

could be done without inquiring into ‘‘the legislative acts

of the defendant member of Congress or his motives for

performing them.’’ 408 U.S. at 526, quoting from Johnson,

supra, 383 U.S. at 185. See also 408 U.S. at 527. The Court

said:

‘*There is no need for the Government to show that

appellee fulfilled the alleged illegal bargain; accep-

tance of the bribe is the violation of the statute, not

performance of the illegal promise.

‘*Taking a bribe is, obviously, no part of the legis-

lative process or function; it is not a legisiative act.’’

Id. at 526.

On the other hand, prosecution for legislative acts and

inquiry into those acts or their motives, would have been

prohibited by the speech or debate clause. Since bribe

taking, however, was not protected by the speech or de-

bate clause, the Court held that ‘‘inquiry into [such] ac-

tivities’’ was not prohibited by the speech or debate clause.

408 U.S. at 528. In other words, for those acts for which

there was no immunity, there was likewise no testimonial

privilege. Thus Brewster shows that the immunity and the

privilege are correlated.

App. 43

The majority further states in the same footnote that

the testimonial privilege for state legislators ‘‘rests on

the constitutional judgment that the courts are not deemed

the proper place to hold legislators accountable for their

acts as elected representatives,’’ citing Tenney v. Brand-

hove. I do not believe Tenxey supports the view that state

legislators have a speech or debate immunity derived from

the Federal Constitution. See p. 14 above. If they do not,

and if I am correct that the doctrine of official immunity

leaves state legislators criminally liable under federal law

for even their legislative acts, I cannot believe they are

privileged (unless they choose to avail themselves of their

fifth amendment right) to withhold testimony concerning

acts for which they may be prosecuted.

In reaching the conclusion expressed in this concurring

opinion, I have assumed that the Mail Fraud Act (18

U.S.C. § 1341) and the Hobbs Act (18 U.S.C. § 1951) ex-

tend to conduct of a state legislator in the performance

of his official duties. It would be inappropriate, if not

beyond our jurivdiction, to pass on the sufficiency of the

indictment in this interlocutory appeal of an order sup-

pressing evidence. Cf. United States v. Merrits, ........ F.2d

ERS , No. 75-1198, Slip Op. p. 4 (7th Cir. 1975). Moreover,

it is unnecessary to consider the scope of those statutes

in order to decide this appeal: applying the approach of

Tenney and Pierson, determining whether the doctrine of

official immunity shields given legislative conduct is only

a preliminary step in resolving the ultimate question of

whether Congress intended a statute to apply to that con-

duct. It is accordingly unnecessary to reach that question

in order to decide this case.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 44

IN THE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 75-1592

Unirep States Or AMERICA,

Plaintiff-Appellant.

v.

Rosert Craic, THomas J. Hanawan and Lovts A. Mankert,

Defendants-Appelilees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74 CR 877

Aurrep Y. Krrkuanp, Judge.

Argued In Bane June 7, 1976—Decided July 9, 1976

Before Farrcuitp, Chief Judge, Swyarrt, Cum™tnes,

Pet, Sprecuer, Tone, Baver and Woop, Circuit Judges.

Per Curiam. This interlocutory appeal by the govern-

ment from an order granting defendant Markert’s motion

to suppress was originally heard by a panel comprised

of Judges Cummings and Tone and Judge Robert L.

Kunzig of the United States Court of Claims, sitting by

designation. United States v. Craig, 528 F.2d 773 (7th Cir.

1976). The facts are set forth in the opinion of the panel

majority.

App. 45

The panel reversed the District Court’s order but dif-

fered as to the grounds for reversal. All agreed that the

existence of a privilege in this federal criminal proceeding

was to be determined, not by the Illinois Constitution’s

Speech or Debate Clause, but by the federal law of evi-

dence. The point of disagreement was whether the federal

law of evidence included such a privilege. The majority,

in an opinion by Judge Cummings, held that as a matter

of federai common law, made applicable by Rule 501 of

the Federal Rules of Evidence, Markert, a state legisla-

tor, enjoyed a common law speech or debate privilege

which shielded him from inquiry into his acts as a legis-

lator or the motives for those acts. The majority held that

the suppression order should nevertheless be reversed be-

cause Markert, in testifying before the grand jury, had

waived his privilege by answering questions concerning

privileged matters rather than relying on his privilege.

A concurring opinion by Judge Tone agreed with the re-

sult on the ground that there was no speech or debate

privilege under the federal common law of evidence and

did not reach the waiver issue. In summary, the con-

curring position was that the protection afforded state

legislative roles is based on the common law doctrine of

official immunity, the privilege is commensurate with the

immunity, and since the immunity does not extend to crim-

inal liability neither should the privilege.

After rehearing the case in bane, a majority o: the court,

Judges Pell, Sprecher, Tone, Bauer, and Wood, are per-

suaded that the views set forth in the panel concurring

opinion are correct, and they vote to reverse on that

ground. Judge Cummings adheres to the views set forth

in the panel majority opinion, and concurs for the reasons

there stated.

App. 46

Since the reasons supporting the differing views of the

in bane majority and concurring judge are fully set forth

in the panel opinions, restating those reasons here would

serve no purpose. The majority wishes to note, however,

that the absence of a privilege has no relationship to the

proof necessary to establish a crime involving official cor-

ruption; and that although a legislator’s voting record and

other legislative conduct is not privileged from inquiry it

would not, standing alone, support an inference of wrong-

doing or improper motive. Proof aliunde will be required.

Chief Judge Fairchild is of the view that the constitu-

tional relationship between the states and the United States

requires federal courts to recognize and honor the Speech

or Debate Clause of the Illinois Constitution, but would

hold that the privilege was waived for the reasons stated

by the panel majority. Judge Swygert agrees with the

panel majority as to the existence of the privilege and

the reasons therefor but would affirm because he believes

the privilege was not waived.

The order appeaied from is reversed, and the case is

remanded with directions to overrule the motion to sup-

press.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 47

APPENDIX C

3n the

Gnited States Court of Appeals

For the Seventh Circuit

No. 77-1364

Unrrep States Or America,

Plaintiff-Appellee,

v.

Roserr Craig and Lovis A. MarKert,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74 CR 877—-Alfred Y. Kirkland, Judge.

Argued November 4, 1977—Decided March 22, 1978

Before Cum™Mincs and Pei, Circuit Judges, and

CamMpBELL, Senior District Judge.*

CaMPBELL, Senior District Judge. Among the members

of the House of Representatives of the Seventy-seventh

Illinois General Assembly were the defendants-appellants

herein, Robert Craig and Louis A. Markert, both of whom

were found guilty by a jury of conspiring to commit extor-

tion under color of official right in violation of the Hobbs

Act, 18 U.S.C. § 1951, and of mail fraud in violation of 18

U.S.C. § 1341. The events giving rise to the prosecution

* Senior United States District Judge William J. Campbell of the

Northern District of Illinois is sitting by designation.

App. 48

of these charges occurred during the Spring and Fall 1971

Session of the Illinois General Assembly, and concern the

defendants’ exacting $1,500 from a rental vehicle trade

association known as the Illinois Car and Truck Renting

and Leasing Association (CATRALA) by means of a

‘*fetcher’’ bill.! We affirm.

The evidence showed that defendant Thomas J. Hana-

han * introduced a bill entitled House Bill 2025 which was

designed to amend the Illinois Vehicle Code. The amend-

ment would require that the title certificate of a rental

car carry an indication that the vehicle had been a rental

vehicle. A title certificate so identified would result in re-

ducing the resale price of a rental vehicle by five or six

hundred dollars.

Shortly after iitroducing House Bill 2025, Hanahan and

Craig met with Pete Pappas, an unindicted co-conspirator/

co-schemer, who was chairman of the Motor Vehicle Com-

mittee of the House of Representatives. House Bill 2025

was to be assigned to Pappas’ committee. It was agreed

that the money generated by House Bill 2025 would be

evenly divided, and that Pappas would not hold any com-

mittee hearings on the bill until Hanahan had time to nego-

tiate with the CATRALA people.

On the last day of the Spring 1971 Session Doris Steig-

berg, the executive secretary and registered lobbyist of

CATRALA, asked Craig about the status of House Bill

2025. Craig responded that he thought the bill could be

stopped for $5,000. After Steigberg indicated that her

people were having a difficult enough time paying her

1 The record reflects that a “fetcher bill” is a bill introduced by

legislators for purposes of exacting money from an industry.

* Hanahan was also named a defendant in the indictment. He

was found not guilty on both counts.

App. 49

salary, and that she didn’t know how she could raise that

amount of money, Craig instructed her to ‘‘take it back

to [her] people and see what they can do.’’ Steigberg im-

mediately telephoned Frank LoNano, the President of

CATRALA, at his Schiiler Park, Illinois, office, and told

him that she had been approached for money on House

Bill 2025. A short time later S‘eigberg explained to a

CATRALA board meeting the potential damage to the

rental car industry posed by House Bill 2025, and further

stated that she had been approached by a person in Spring-

field for money.

House Bill 2025 was scheduled for a committee hearing

on October 22, 1971. A few days prior thereto Steigberg

told Craig that her people indicated that the $5,000 figure

was absolutely too much. In response to Steigberg’s in-

quiry as to the least amount that would be acceptable,

Craig urged her to ‘‘try for $2,000.’’ Steigberg then spoke

with LoNano. On the day of the hearing Markert asked

Steigberg if she had heard anything. Steigberg told

Markert that $2,000 was too much money, and asked if

he could ‘‘try for fifteen hundred.’’ Shortly thereafter

Markert told Steigberg that although they were unhappy

about it, $1,500 would be acceptable.’ Steigberg informed

LoNano of the agreed amount. The hearing on House Bill

2025 was postponed.

On November 12, 1971, Steigberg telephoned Lee Work-

man, the Assistant Vice President, Chicago Zone Manager

for Hertz Corporation (Hertz), whose office was located

in Des Plaines, Illinois. Hertz was a member of CATRALA,

and Workman was a member of the CATRALA Board of

Directors. Steigberg told Workman that time was running

3 About two weeks later Markert made further inquiry about the

money. Steigberg stated that $1,500 had been agreed upon and

would be paid.

App. 50

out regarding House Bill 2025, that the financial burden

of $5,000 would fall on the four largest rental car opera-

tors, and that Hertz’s share was $1,500.

Workman prepared a check drawn on Hertz’s petty

cash account at a Chicago bank. The check for $1,500 was

made payable to Steigberg, and its stub carried the nota-

tion that it was drawn for a CATRALA assessment re-

garding Illinois title law. The check was sent by special

delivery mail from the Hertz office in Des Plaines to

Steigberg in Springfield.

Steigberg received the check on November 14, 1971. A

cover letter from Workman accompanied the check. Steig-

berg destroyed the cover letter, and telephoned Workman

insisting that he also destroy his copy of the letter.‘ After

cashing the check at a hotel in Springfield, Steigberg

placed the money in an envelope. On the outside of the

envelope she wrote ‘‘Robert Craig, personal.’’

Steigberg took the envelope to Craig’s office in the State

Capitol, but found that Craig had departed for home.

Craig’s secretary, Sherron Ackley, indicated that she

would be flying to Craig’s home with some other materials

and would take the envelope for Craig with her. Steigberg

left the envelope with Ackley.

Some time later Pappas telephoned Craig and asked if

they had received the money from the rental car bill. Craig

answered affirmatively, and said he’d mail Pappas his

share. Two or three days later, Pappas received $600 in

cash in the mail.

House Bill 2025 was tabled during the following Spring

Session of the General Assembly.

* Workman had his copy of the cover letter destroyed. To the best

of his recollection the letter stated that a check for $1,500 was en-

closed for purposes of blocking the Illinois title law.

App. 51

This prosecution has resulted in two previous decisions

by this court. United States v. Craig, 528 F.2d 773 (1976)

(Craig 1), and the en banc decision on rehearing reported

at 537 F.2d 957 (1976), cert. denied sub nom. Markert v.

United States, 425 U.S. 973 (1976) (Craig IJ), dealt with

an asserted testimonial privilege of a state legislator in

the context of a federal criminal prosecution. In this ap-

peal defendants contend that Craig II should be re-

examined, and that the district court’s refusal to dismiss

the indictment on the ground that Congress did not intend

the federal criminal statutes involved in this case to be

applicable to state legislators should be reversed.

We recently rejected an identical contention in United

States v. Craig, ...... F.2d ...... (7th Cir. 1977) (Slip opinion,

No. 76-2089, December 12, 1977, pp. 54-56), a case involv-

ing the same appellant Craig as this case, but based on a

different prosecution. We also reject the contention here.

See also: Jn Re Grand Jury Proceedings, 563 F.2d 577,

582 (3rd Cir. 1977).

With respect to both counts of the indictment, defen-

dants contend that there is insufficient proof. As to Count

One, charging a violation of the Hobbs Act, (18 U.S.C.

§ 1951),° defendants’ attack is three-pronged. First, noting

5 In relevant part, 18 U.S.C. § 1951 provides:

“(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity

in commerce, by robbery or extortion or attempts or conspires

so to do, or commits or threatens physical violence to any per-

son or property in furtherance of a plan or purpose to do any-

thing in violation of this section shall be fined not more than

$10,000 or imprisoned not more than twenty years, or both.

“(b) As used in this section—

(2) The term ‘extortion’ means the obtaining of prop-

erty from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right.’

App. 52

that they were charged with conspiracy to obtain money

unlawfully from companies belonging to CATRALA, de-

fendants argue that under general conspiracy principles

there was no evidence upon which to rest jurisdiction to

conduct a trial on the charges in the Northern District of

Illinois.

Conspiracy is a substantive federal criminal offense. 18

U.S.C. § 371. Generally, proper venue for a prosecution

of the substaritive crime of conspiracy lies in the district

where the agreement was entered into, Hyde v. Shine, 199

U.S. 62 (1905), or at the place where an overt act to effect

the object of one of the conspirators was performed. Hyde

v. United States, 225 U.S. 347 (1912). Pointing out that the

evidence in this case showed neither an agreement among

the defendants in the Northern District of Illinois, nor an

overt act in furtherance of the conspiracy in that district,

defendants argue that prosecution of a Hobbs Act conspir-

acy offense in the Northern District of Illinois was based

on improper venue. We do not agree.

Federal district courts have exclusive jurisdiction of all

offenses against the United States. 18 U.S.C. § 3231. Venue

for the prosecution of federal offenses is established by

Rule 18, F.R.Crim.P. in the district in which such offense

is committed. Rule 18 thus reflects Article III, Section 2,

Paragraph 3, of the Constitution, which mandates that

criminal trials be ‘‘held in the State where the said crimes

shall have been committed.’’ The Sixth Amendment simi-

larly guarantees a criminal defendant ‘‘the right to a

speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed.’’

Venue for a Hobbs Act prosecution properly lies in any

district where commerce is affected. United States v. Floyd,

App. 53

228 F.2d 913, 918 (7th Cir.), cert. denied, 351 U.S. 938

(1956). See also: 18 U.S.C. § 3237. In this case the evi-

dence showed that the federal offense of extortion oc-

curred in the Northern District of Illinois because defen-

dants’ misdeeds affected commerce ® in that district. The

extorted money was shown to have come from the Hertz

Corporation’s petty cash fund in Chicago, in the Northern

District of Illinois. Hertz Corporation was shown to be a

company engaged in interstate commerce within the mean-

ing of 18 U.S.C. § 1951(b)(3). Because the extortion af-

fected commerce in Chicago, the District Court for the

Northern District of Illinois was empowered to entertain

that charge, regardless of the fact that defendants may

have been prosecuted in another district under venue prin-

ciples pertaining to conspiracy.

Defendants secondly argue that there was a failure of

proof in that Hertz Corporation was shown to be the vic-

tim of the extortion, but that Hertz was not named as a

victim in the indictment. We understand this contention

to mean that there was a fatal variance between the Hobbs

Act charge of the indictment and the proof of that charge

adduced at trial. We find no such fatal variance.

The indict..ent charged the defendants with extorting

$1,500 from ‘‘the registered lobbyist, officers, members of

and companies belonging to the Illinois Car and Truck

Renting and Leasing Association.’’ The evidence adduced

at trial demonstrated precisely what was charged: that

®* Extortion becomes a federal offense in violation of the Hobbs

Act where it interferes with interstate commerce “in any way or

degree.” 18 U.S.C. § 1951(a). Stirone v. United States, 361 U.S.

212, 215 (1960).

App. 54

defendants extorted $1,500 from the Hertz Corporation,

which was shown to be a member of CATRALA. No claim

is made that the proof took the defendants by surprise,

or that the proof was so variant with the charge that de-

fendants could not adequately prepare a defense or assert

a finding on the charges as a bar to a subsequent prosecu-

tion. See United States v. Warden, 545 F.2d 32, 35 (7th

Cir. 1976); United States v. Cassell, 452 F.2d 533, 536 (7th

Cir. 1971).

As the third prong of their attack, defendants argue

that the evidence failed to demonstrate that their extor-

tionate conduct had an effect on interstate commerce, which

is an essential element of a Hobbs Act prosecution. Stirone

v. United States, 361 U.S. 212 (1960). There must be a

nexus between the extortionate conduct and interstate com-

merce in order to establish federal jurisdiction. United

States v. Elders, ...... i a (7th Cir.). (Slip opinion,

No. 77-1181, February 1, 1978, p. 5). The nexus may be a

de minimus depletion of financial resources of a company

engaged in interstate commerce. United States v. DeMet,

486 F.2d 816, 822 (7th Cir. 1973), cert. denied, 416 U.S.

969 (1974).

It was stipulated at trial that the Hertz Corporation

was engaged in commerce as defined in the Hobbs Act.

The evidence showed that the company’s assets were de-

pleted, albeit in a de minimis fashion, by the defendants’

extortionate demands. We find sufficient evidence demon-

strating an affect on interstate commerce which can be

characterized as at least ‘‘arguably de minimis.’’ United

States v. Crowley, 504 F.2d 992, 997 (7th Cir. 1974).

App. 55

Count Two of the indictment charged the defendants

with a violation of the mail fraud statute, 18 U.S.C. § 1341."

Defendants urge that their convictions on Count Two must

be reversed because they did not cause the use of the

mails, and there was no evidence adduced at trial to indi-

cate that the use of the mails was foreseeable. Defendants

point out that they were told that the extorted money

would come from Steigberg’s salary, and that there was

no basis for foreseeing that Steigberg would deal in a

fraudulent manner with Hertz in order to procure the

$1,500.

The mail fraud statute forbids the use of or causing the

use of the mails in connection with the execution of a

scheme to defraud. The Supreme Court dealt with the

question of causing the use of the mails in the following

way:

‘‘Where one does an act with knowledge that the

use of the mails will follow in the ordinary course of

business, or where such use can reasonably be fore-

718 U.S.C. § 1341 provides:

“Whoever, having devised or intending to devise any scheme

or artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises, or to sell, dispose of, loan, exchange, alter, give away,

distribute, supply, or furnish or procure for unlawful use any

counterfeit or spurious coin, obligation, security, or other article,

or anything represented to be or intimated or held out to be such

counterfeit or spurious article, for the purpose of executing

such scheme or artifice or attempting so to do, places in any post

office or authorized depository for mail matter, any matter or

thing whatever to be sent or delivered by the Postal Service,

or takes or receives therefrom any such matter or thing, or

knowingly causes to be delivered by mail according to the direc-

tion thereon, or at the place at which it is directed to be de-

livered by the person to whom it is addressed, any such matter

or thing, shall be fined not more than $1,000 or imprisoned not

more than five years, or both.”

App. 56 --—

seen, even though not actually intended, then he

‘causes’ the mails to be used. United States v. Kenofs-

key, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836.’’

Pereira v. United States, 347 U.S. 1, 8-9 (1954). See also:

United States v. Craig, supra, (Slip op. 12/12/77 pp. 38-

45). The evidence in this case shows that defendants

caused a reasonably foreseeable use of the mails.

The record shows that both Craig and Markert had con-

versations with Steigberg in which they refer to the

CATRALA companies and personnel as ‘‘her [Steig-

berg’s] people,’’ thus reflecting defendants’ understand-

ing of Steigberg’s role as an intermediary between defen-

dants and CATRALA. During negotiations concerning the

amount of extortion money, Craig instructed Steigberg to

communicate the extortion demand to her people to ‘‘see

what they can do.’’ After the $1,500 figure was agreed

upon, Markert inquired of Steigberg if ‘‘[s|he had heard

and if the money was there.’’

In our view the record demonstrates that defendants

were aware that the source of the extorted money was

someone other than Steigberg. As such, it was certainly

foreseeable that the money would have to be delivered by

some means, and, further, it was foreseeable that the mails

would be used to effectuate the delivery. Procuring the

money from CATRALA was an essential part of the

fraudulent scheme, and because the use of the mails for

purposes of delivering the demanded money was reason-

ably foreseeable, defendants are accountable for that use

of the mails under the mail fraud statute even though they

did not personally use or intend to use the mail to further

the scheme. Pereira v. United States, supra, United States

v. Craig, supra, (Slip op. 12/12/77).

Doris Steigberg testified at trial under a grant of im-

munity. On direct examination the prosecutor inquired of

her understanding of the terms of the arrangement:

App. 57

‘*Q. What is your understanding of the terms of

that immunity?

‘‘A. That my testimony or evidence that I give

will not be held against me as long as I tell the truth.’’

Defendants assert that it is common practice for a pros-

ecutor to have an immunized witness emphasize that his

testimony is being used so long as the witness convinces

the prosecutor that he is truthful. Defendants further

argue that questions and answers concerning the immu-

nized witness’ understanding of the terms of immunization

convey to the jury the impression that the prosecutor is

in a position to personally know whether or not a witness

is truthful, and that consequently the jury is given the

appearance of a witness whose veracity is vouched for by

the government.

We find nothing improper about the question of the wit-

ness’ understanding of the terms of the immunity order in

this case. There was no insinuation by the prosecutor, di-

rect or otherwise, that the government possessed knowledge

to the eaclusion of the jury on the issue of the immunized

witness’ veracity. Cf. United States v. Creamer, 555 F.2d

612 (7th Cir. 1977). Further, we believe that the jury’s

function of assessing credibility and weighing testimony is

aided by evidence of an immunized witness’ understanding

of the terms under which he or she is testifying. Indeed,

such questions by the prosecution frequently provide a

convenient opening for more exploration of a fertile area

on cross examination.

As part of its case, the government called defendant

Craig’s secretary, Sherron Ackley, as a witness. Defen-

dants contend that the government called Ackley for the

sole purpose of discrediting her before the defendants had

an opportunity to call her as their witness. We find no

merit to this contention.

Ackley corroborated Steigberg’s testimony that she was

Craig’s secretary in November 1971 and that she did fly

to Craig’s home to deliver some materials. Ackley also

App. 58

testified that she delivered to Craig the envelope that she

had received from Steigberg.

However, contrary to Steigberg’s testimony, Ackley tes-

tified that the envelope which she received from Steigberg

was received in March, 1972. Ackley denied that she was

ever uncertain as to when the receipt of the envelope took

place. The government impeached Ackley’s testimony with

respect to her certainty as to March 1972 receipt of the

letter by eliciting admissions from Ackley that she may

have told a government agent that she was not certain

when she received the envelope from Steigberg.

Although Ackley’s testimony appeared to be of minor

value to the government’s case, it was nevertheless im-

portant because her testimony provided direct evidence

that Craig had received the Steigberg envelope containing

the extortion money. Under the circumstances of this case,

Ackley’s testimony as to her certainty of the date of the

receipt of the envelope from Steigberg rendered Ackley

properly impeachable under Rule 607 F.R.Evid.

Defendants finally contend that since there is no re-

quirement in a ‘‘color of official right’? Hobbs Act case to

prove coercion,” testimony by the victims as to their state

of mind at the relevant time should not have been allowed.

We believe that the state of mind testimony of the victims

was admissible to show that the victims’ consent was in-

duced by defendant’s office.

For the foregoing reasons, the defendants’ convictions

are affirmed.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

8 E.g., United States v. Staszcuk, 502 F.2d 875, 882-3 (7th Cir.),

cert. denied, 423 U.S. 837 (1975).

App. 59

APPENDIX D

3n the

Gnited States Court of Appeals

F or the Seventh Circuit

Nos. 76-2089, 76-2090, 76-2092 and 76-2093 Consolidated

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vy

ROBERT CRAIG, FRANK P. NORTH, JR., PETER V. PAPPAS

and JACK E. WALKER,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74-CR-879—George N_ Leighton, J dye.

ARGUED JUNE 16, 1977—DECIDED DECEMBER 12, 1977

Before SWYGERT, CUMMINGS, Circuit Judges, and

CAMPBELL, Senior District Judge.*

CAMPBELL, Senior District Judge. In December, 1974,

fifteen persons were charged in various counts of a

fourteen count indictment. Count One charged the

defendants with conspiracy to commit mail fraud in

violation of 18 U.S.C. § 371. Counts Two through Twelve

charged the substantive crime of mail fraud in violation

of 18 U.S.C. § 1341, alleging that the defendants and

unindicted co-conspirators devised a scheme and artifice

to “defraud the citizens of the State of Illinois of their

right to the loyal, faithful, and honest services of those

defendants and co-conspirators ... who were public

* Senior District Judge William J. Campbell of the United

States District Court for the Northern District of Illinois is

sitting by designation.

App. 60

officers and members of the Illinois Genera! Assembly

... in the performance of acts related to their official

duties and functions.” Counts Two through Twelve also

— that the defendants devised a scheme to

“defraud the State of Illinois, its citizens, its public

officers, its public employees and the loyal, faithful and

honest members of the Illinois General Assembly of

their right to have the State’s legislative business

conducted honestly and impartially, and in accordance

with the laws of Illinois, free from deceit, corruption,

misconduct, conflict of interest, bribery and fraud, and

willful concealment thereof.” Each of Counts Two

through Twelve alleged that the various defendants and

co-schemers-eaused a specific mailing to be made for the

purposes of executing the scheme. Each of Counts Two

through Twelve are also alleged to be overt acts of the

conspiracy charged in Count One. Counts Thirteen and

Fourteen charged a violation of 18 U.S.C. § 1951,

alleging that the various defendants caused an individ-

ual to travel in interstate commerce with intent to

promote an unlawful activity, namely bribery in viola-

tion of Jllinois Revised Statutes, Chapter 38, § 33-1.

Prior to trial seven defendants entered pleas of guilty

to Count One, and the other charges against them were

dismissed. Eight defendants stood trial. Following a

jury trial that lasted over two months, six defendants

were found guilty, and two were acquitted. The

roceedings and disposition as to each defendant are set

orth in the margin.!

| DEFENDANTS PROCEEDING VERDICT SENTENCE

A. Elected Officials

Crai Trial Guilty. 3 years.

Frank P. North =—‘Trrial Guilty, Ct 1. 1012 3 years, $5000.

Donald D. Carpentier Plea 3 years,

Kenneth Course Nam Guity. as charged 4 years. Ree trie)

ria , harged ul ri

Jonn Wah Trial Not Guilty: ms

Jack Walker Trial Guilty, as charged 3 years, $5000.

B. Employee/Ili. Secy of State.

Peter V. Pappas Trial Guilty, as charged ‘55 years, $10,000.

C. Ready-Miz Industry Representatives

Bernard Arquilla Plea 2 year Probation, fine

Jack Chaiden 2 year Probation, fine

Herbert Craig 2 year Probation, fine

Arnold Moeller Plea Deceased

Merlin Wille Plea 1 year Probation

John Edmier Plea 1 year Probation

Francis Sheahan Trial Not Guilty

= aa

App. 61

I. Facts?

In the six county metropolitan Chicago area, a trade

association known as the Northern Illinois Ready-Mix

and Materials Association (NIRMMA) represented the

interest of the ready-mix cement industry. For many

years prior to the events which formed the basis of this

prosecution, NIRMMA, through its Transportation

Committee, was desirous of increasing by one cubic

yard’ per truck the amount of ready-mix cement which

—— trucks could legitimately haul on Illinois

roads.

The Board of Directors of NIRMMA held a meeting in

Chicago on October 20, 1971. At this meeting, James

McBride,‘ an employee of Material Service Corporation

and an_ unindicted co-conspirator, informed the

NIRMMA Board that the Illinois garbage hauling

industry had just obtained weight relief for garbage

trucks through the passage of legislation in the Illinois

General Assembly, and that the time was right for the

ready-mix cement industry to do likewise. McBride

indicated that he knew an attorney, defendant Peter V.

Pappas, who could assist the ready-mix industry in

drafting their legislation for a $5,000.00 fee. McBride

also stated at the meeting that Peter V. Pappas was

very close to the Illinois Motor Vehicle Laws Commis-

sion—an important Commission in obtaining the passage

of weight relief legislation—and that any such legisla-

tion would cost a considerable amount of money. Two

v4

* Based on our reading of the voluminous transcript of

roceedings below, we find the government's statement of

acts to be fair and accurate. Hence, our discussion of the

facts is based primarily on the statement contained in the

vernment’s brief. In those instances in which the defendants

ave claimed that the government’s statement of facts is at

variance with the evidence adduced at trial, we have

formulated our own statement where necessary.

* The record indicates that one cubic yard of ready-mix

material weighs about 4,000 Ibs.

* McBride was deceased at the time of trial.

App. 62

NIRMMA Board members, Arnold Moeller of Meyer

Material Company and Bernard Arquilla of Accurate

Ready-Mix, estimated that the weight relief legislation

could run as high as $100,000.00.

About one week after this meeting, McBride met with

members of NIRMMA’s Transportation Committee at

the NIRMMA offices in Chicago. McBride informed the

members that the assistance of Peter V. Pappas was

necessary in procuring the desired weight relief legisla-

tion, and that an undisclosed amount of money would be

required. Morris A. Lauwereins, an unindicted co-

conspirator and co-chairman of the NIRMMA Trans-

portation Committee, participated with other committee

members in drawing up an agenda specifying what

relief the industry desired, and instructed McBride to

meet with Peter V. Pappas. In order to assure a state-

wide effort for ready-mix truck weight relief,

Lauwereins told other committee members to contact

the downstate ready-mix association, known as the

Illinois Division—Midwest Ready-Mix Concrete Asso-

ciation.

McBride, Merlin Wille, Lauwereins, and Tom Con-

nolly, the Executive Secretary of NIRMMA—all of

whom were associated with the ready-mix industry—

met with Peter V. Pappas several ~~ later in a private

room at a Chicago hotel. Peter V. Pappas outlined the

rocedures to be followed in seeking weight relief

egislation. After Lauwereins gave him the agenda

specifying the relief sought by the industry, Peter V.

Pappas stated that an unspecified amount of money

would be required at a later time, and that his fee for

drafting the proposed bill was $5,000.00.

The record demonstrates that sometime during the

riod from mid-October, 1971, to the early part of

ovember, 1971, Peter V. Pappas spoke with Repre-

sentative Pete Pappas,’ a Republican member of the

Illinois House of Representatives and a member of the

I!linois Motor Vehicle Laws Commission. Peter V.

5 Pete Pappas and Peter V. Pappas are not related. They

will be referred to by these names throughout this opinion.

App. 63

Pappas informed Pete Pappas of his meeting with the

ready-mix industry people and stated “he thought he

could get us some money for the Lpaseees of weight relief

legislation.” In answer to Peter V. Pappas’ question as to

how much it would take, Pete Pappas answered that he

- not know, but would check and get back to Peter V.

appas.

Pete Ag testified that he then spoke with

defendant Donald Carpentier, a Republican member of

the Illinois Senate, and also a member of the Motor

Vehicle Laws Commission. Pete Pappas testified that he

told Carpentier that Peter V. Pappas had said “that

there was a chance that we could get some money on

weight relief from the ready-mix people,” and had

inquired of him as to how much it would take.

Pete Pappas further testified that later that same day

he talked with defendant Robert Craig, a Democratic

member of the Illinois House of Representatives. Pete

Pappas told Craig that Peter V. Pappas had said “that

there was a chance that we could get some money on the

weight relief for the ready-mix industry.” After reiterat-

ing w Craig that Peter V. Pappas had asked him how

much it would take and that he answered him that he

did not know, and that he had asked the same question

of Carpentier and had received the same answer, Pete

Pappas testified that he asked Craig: “Bob, if you have

any idea as to how much money it would take to get it

through?” Craig answered that he wasn’t sure but would

get back to him.

Pete Pappas further testified that Craig contacted him

within a few days. A conversation ensued among Craig,

Pete Pappas and Carpentier. Pete Pappas asked Craig if

he had any figures or any idea how much it would take.

Craig responded that he thought he could get it through

for “ten”. Following Craig’s lead, Pete Pappas and

Carpentier each indicated that it would take “ten” to get

the legislation through his side.6 During this conversa-

6 The ne © Representative Pete Pappas reflects that

the House chamber and the Senate chamber are each divided

by aisles which run through the center of each respective

chamber. The aisles divided each chamber into sides which

were occupied along party lines. Thus, the Democratic side of

the House, Republican side of the Senate, etc.

App. 64

tion, Craig indicated that the money would have to be

id as the bill each House. Carpentier was to

owe the Republican side of the Senate; Craig, the

Democratic side of the House; and Pete Pappas, the

Republican side of the House. The three then discussed

the need for a Democratic Senator to handle the bill on

that side, and Pete Pap indicated that he would talk

with Senator Kenneth Course.

A few hours later, Pete Pappas spoke with Senator

Course at Course’s desk on the floor of the Illinois

Senate. Pappas said, “Kenny, there is going to be some

money on the cement bill and I just finished talking

with Bob [Craig] and Don ped nye and we are going

to try and get ten for each side to get the bill through

and | want to know if you would be willing to handle the

Democratic side of the Senate.” Course responded: “It

is whatever you guys decide is fine with me.” Pete

Pappas advised Course that the money would be paid as

the bill passed each House.

While these events took place in Springfield, Wille

and Lauwereins met with representatives of the down-

state ready-mix trade association, the Illinois Division—

Midwest Ready-Mix Concrete Association (ID-MRCA),

on October 30, 1971, at a restaurant in Bloomington,

Illinois. Defendants Jack Chalden and Herbert Craig,’

both associated with ID-MRCA, and Lou Marcy and Ed

Sembel of other downstate concerns were told by

Lauwereins that the time was right for ready-mix truck

weight relief and that ID-MRCA and NIRMMA should

join together in the effort because it would be expensive.

Lauwereins also told the group that it would be wise for

a downstate spokesman to promote and carry through

the bill. He indicated to the downstaters that there

would be a $5,000.00 fee for drafting the bill, as well as

other unidentified expenses.

On November 5, 1971, a luncheon meeting was held at

a Chicago hotel. Present at this meeting were down-

staters Chalden and Sembel and NIR A members

7 Defendant Herbert Craig is not related to defendant

Robert Craig.

App. 65

Wille, Lauwereins, McBride, Connolly, one Wes Wig-

gington and one Bill Hendrickson. Lauwereins chaired

the meeting, and introduced Peter V. Pappas to those

present as the gentleman who could assist them in

securing the legislation. Peter V. Pappas then informed

the yon f pty yy _ aang be sought for ready-

mix trucks only.’ Peter V. Pappas also presented Tom

Connolly of NIRMMA with two $2500:00 se for his

drafting fee, and indicated that an undisclosed amount

of money would be required at a later date, and that

they “should be ey to participate with campaign

contributions and other legislative support.” Some dis-

cussion ensued as to who would function as a conduit for

the funds, but nothing was decided. According to

Wille’s testimony, Peter V. Pappas explained at the

meeting that the bill he would draft “would appear to be

very much a watered down bill” on the first and second

readings, and on the third reading, amendments would

be introduced “that would really introduce the gist of

what we wanted.” Peter V. Pappas further explained,

according to Wille, that the undisclosed amount of

money would be required only if the bill passed both

Houses, was signed by the Governor, and was indexed.°

Chalden’s testimony as to the November 5, 1971

luncheon meeting revealed that Peter V. Pappas sug-

gested to those present that an effective way of

introducing the bill was through the Illinois Motor

Vehicle Laws Commission (MVLC or Commission). He

further stated that it would be ible, if the bill were

properly presented, to have the bill come out as a

Commission sponsored bill. Since a Commission meeting

was close at hand, Peter V. Pappas advised those

present that they would have to develop something

quickly and that he would help them develop testimony.

* Initially, the industry sought weight relief legislation

no: gga to dump trucks as well as ready-mix cement

rucks.

* Indexing, in this context, means the assignment of a law to

a specific area of reference in a scheme of statutory

compilation. For a bill to become law, indexing is not a

necessary requirement. See: Ill. Const. Art. IV, §§ 8 and 9.

App. 66

Peter V. Pa reiterated the sentiments Lauwereins

cnenanend oa ier in Bloomington that it would be best

to have a downstate spokesman introduce the bill in the

Commission.

Meanwhile, back in Springfield, a few days after Pete

Pappas, Craig and Cureasiee discussed the amount of

money required to get the bill sie i Pappas

spoke with Peter V. Pappas in the Capitol Building.

Pete Pappas informed Peter V. Pappas that he had

talked with Craig, Carpentier and Course and that “they

would need $20,000.00 for the House and $20,000.00 for

the Senate” and that Peter V. Pappas was to put

“whatever he needed for himself on top of that and that

the monev would have to be paid as the legislation

each House.” Peter V. Pappas then said, “O.K., I

will get back to you.”

The Commission held a meeting at a hotel in

Springfield on the evening of November 8, 1971.

erbert Craig of the downstate industry association (ID-

MRCA) was to make a presentation of the industry’s

proposal on ready-mix weight relief. On the afternoon

receding the meeting, Peter V. Pappas met with Wille,

uwereins, Chalden, McBride, Marcy and Herbert

Craig to prepare and rehearse Herbert “~ * presenta-

tion. Fellowinn Herbert’s presentation to the Commis-

sion, the Commission directed Herbert to return to the

Commission’s December meeting with a drafted bill or

drafted presentation.'°

About ten days after the MVLC meeting, the record-

ing suse of MVLC, Mary Ellen Kingery, mailed

i” At this point, the government's statement of facts contains

a paragraph, substantially reiterating the testimony of Pete

Pappas. In effect Pete Pappas testified that just prior to the

November 8, 1971 MVLC meeting, he had a conversation with

defendant North rerang to the availability of money on

weight relief legislation for the ready-mix industry. At that

conversation, Pete Pappas told North, “I had something going

on the cement bill and it was going to be in the Commission

meeting.” North responded, “Fine.” Although of no relevance

to the events immediately preceding and following in the

statement of facts, this evidence of North’s initial exposure to

the scheme is treated infra.

Pew

App. 67

copies of a notice of the date, time, and place of the

December, 1971, meeting to persons on a mailing list

she maintained. Tom Connolly, the executive secretary

of NIRMMA, who had earlier uested that NIRMMA

be placed on the MVLC mailing list, received a copy of

Ce ates of the December, 1971 MVLC meeting in the

mail.

On December 8, 1971, Peter V. Pappas presented a

request to the Legislative Reference Bureau, a bill

wr pny Foren for Illinois government, for the drafting

i

of the bill that ultimately became House Bill 4176. the

“cement bill.”

At the December MVLC meeting, a subcommittee was

created to consider the ready-mix legislation. Course,

Carpentier, and Pete Pappas were included as members

of the subcommittee. Following this meeting, Miss

Kingery mailed out notices to those on the mailing list

informing them of the date, time, and place of the

January 1972 MVLC meeting. The rotice also an-

nounced that the subcommittee would report on the

ready-mix matter.

The MVLC meeting took place on January 10, 1972, in

Springfield. On the afternoon of that day, Peter V.

Pappas presented to dn executive session of the MVLC

the proposals of the ready-mix industry, among which

was the proposal that ultimately became House Bill

4176. On that same day, Wille met McBride in a bar at

a Springfield hotel. After exchanging pleasantries,

McBride told Wille “Well, Mert, I have gotten the word.

I know what they want now, fifty big ones.” McBride

informed Wille that Peter V. Pappas had given him this

figure earlier, that the money would have to be in cash.

and that if the bill did not become law, no money would

be required. McBride and Wille then went to

Lauwereins’ room in the same hotel and informed him of

the $50,000.00 figure.

Later in the evening of the same day, Wille, McBride,

Lauwereins, and Peter V. hag met in the same bar

in the Springfield hotel. Peter V. Pappas stated that he

thought that the garbage legislation had cost as much as

the ready-mix legislation, and that they should consider

App. 68

a conduit for the funds. No decision was reached,

however, as to who would act as the conduit.

During the period of February 13 to 17, 1972,

NIRMMA held its annual convention in Miami Beach,

Florida. At this convention a group of several NIRMMA

members!' engaged in a — conversation as to the

ready-mix bill. After Wille and Connolly informed the

group that $50,000.00 in cash was required to secure the

bill’s ge, a discussion ensued as to how the money

could be raised. Several suggestions were made, but the

record does not show that any decision on this issue

resulted from the discussion.

A couple of weeks after the NIRMMA convention,

McBride had a telephone conversation with Tom Con-

nolly. McBride told Connolly that the $50,000.00 fund

would have to be available by April 1, “as the people

wanted to know that the money was available as the

legislation was going through.” McBride said that the

cash would be pl in a safe deposit box. Signators on

the box were to be Connolly and another IRMMA

member, Peter V. Pappas and his wife.

In mid-February, 1972, after the Florida convention,

the NIRMMA Transportation Committee held a meet-

ing. Lauwereins, who chaired the meeting, explained the

cement bill and its benefits to the ready-mix industry.

Lauwereins stated that the bill would cost $50,000.00 in

cash, and that it had been decided that the sum would

be raised by assessing NIRMMA members $40.00 for

each ready-mix truck they owned. NIRMMA Transpor-

tation Committee members were then assigned specific

collection duties.

About this time, on February 29, 1972, Lauwereins

travelled from Chicago to Indianapolis, Indiana and

addressed a group of downstate Illinois ready-mix

executives including Chalden and Herbert Craig. This

address took place in a hotel room in Indianapolis. The

downstate ready-mix industry association (ID-MRCA)

was holding its annual convention in Indianapolis.

'! Merlin Wille, Tom Connolly, Bernard Arquilla, Rich

Wille, Jerry Nagel, and Lou Lincoln.

App. 69

Lauwereins told the group that the favorable ready-mix

bill would cost $50,000.00 in cash, which had to be

collected quickly and placed in a safe deposit box. After

indicating to the group that the money would not be

paid out unless the bill became law, Lauwereins

encoura ID-MRCA to support the effort by collecting

half of the $50,000.00 amount. Lauwereins then returned

to Chicago. In spite of Lauwereins encouragement and

request for support, ID-MRCA refused to participate in

the cash collection effort.

During the month of March, 1972, NIRMMA trans-

portation committee members pursued the collection

duties ate a assigned by Lauwereins.'? By the end

of the month, Connolly told Wille to meet him at the

NIRMMA office with the collected cash. Wille told

Connolly that the fund was $3160.00 short because some

companies had refused to contribute. Wille agreed to

make up the $3160.00 shortage in the form of an

advance from Moeller through Meyer Material.

On the morning of March 30, 1972, Wille, Lauwereins,

McBride and Connolly met at the NIRMMA office. A

total of $50,000.00 in cash was counted by Connolly and

meen in an envelope. Wille informed Connolly that

oelier of Meyer Material had contributed the $3160.00

to make up for the shortage and suggested that false

expense vouchers should be prepared and presented to

Connolly to reimburse Meyer Material for the extra

money. Connolly agreed, and false vouchers were

prepared and submitted to NIRMMA by Wille, Moeller,

The record reflects the following collections: Arquilla

collected funds from Accurate —- ix, Brandt Ready-Mix,

Oremous Company, and Valenti Ready-Mix, and gave the

collected funds to Connolly; Edmier collected cash from

Edmier, Inc., Jousma Ready-Mix, Davidson Ready-Mix, and

Van's Fuel and Material, and gave the cash to Wille;

Wigginton collected from Evanston Fuel and Material,

Dealer’s Ready-Mix, Edison Fuel and Material, and Thelen

Ready-Mix and had the cash delivered to Wille; Lauwereins

collected cash from Lester Crown of Material Service

Corporation; Wille collected cash from Meyer Material,

Cowhey Company, Kuhn Ready-Mix, and also received cash

from Moeller which was collected from several other ready-

mix companies.

App. 70

Lauwereins, and Arquilla. Lauwereins and Ardquilla

mailed their expense vouchers to the NIRMMA office.

Connolly then prepared NIRMMA checks which, when

cashed. were used to reimburse Meyer Material for its

$3160.00 advance.

Having assembled the fund, Connolly and McBride

left the NIRMMA offices and drove to the First

National Bank of Lake Bluff where they met Peter V.

Pappas in the parking lot. Peter V. Pappas asked

Connolly if he had the money, to which Connolly

answered affirmatively. Thereupon, Connolly, with the

money in his hand, and Peter V. Pappas entered the

bank. McBride remained in the car. After entering the

bank, Peter V. Pappas mentioned to Connolly that he

had arranged for a safe deposit box. Connolly signed a

signature card, and tovk a second signature card for

Arquilla’s signature. Connolly received a key to the safe

deposit box, and then he and Peter V. Pappas took the

box which the clerk had handed to them into a small

room where both counted the ae and placed it in the

box. They returned the box to the clerk, who placed it in

the vault. Both departed from the bank.

House Bill 4176, the “Cement Bill,” was introduced in

the Illinois House of Representatives on April 11, 1972.

Two or three days prior to that date, Peter V. Pappas

told Pete Pappas in the rotunda area of the Capitol

Building that the cash had been collected and was in a

safe deposit box in the Chicago area. Peter V. Pappas

assured Pete Pappas that, although the money was

located in Chicago, there would be no problem in

delivering the money. Peter V. Pappas also told

Carpentier that the money had been put in a safe

deposit box.

House Bill 4176 was assigned to the House Motor

Vehicle Committee. A notice was posted on April 20,

1972 for hearings by that committee. Prior to the

posting, Peter V. Pappas told Pete Pappas that the cash

was in a safe deposit box and everything was set to go.

Peter V. Pappas also said that the industry would pay

the money as soon as the Governor signed the bill. Pete

Pappas then stated, “Wait a minute, Pete. That wasn’t

te

App. 71

our deal. Our deal was that the money was to be paid as

it passed each House.” Peter V. Pappas replied, “Well,

this is what the industry wants.” Pete Pappas then

eoupgpeen, “Well, I’m going to have to talk to Bob on

at.

Immediately thereafter Pete Pappas spoke with

Robert Craig and told Craig that Peter V. Pappas had

said that the industry was not going to pay any money

until the bill had been signed by the Governor. Craig

responded “That wasn’t our deal. Our deal was it was

supposed to be paid as it passed each House.” Pete

Pappas replied, “Well, then we better go over and talk

to Pete [Peter V. Pappas], about it.”

Within a few minutes, Craig and Pete Pappas spoke

with Peter V. Pappas. Craig said “Peter, our andl Gen

that we were to get paid when the bill passed each

House.” Peter V. Pappas replied, “The industry is not

going to pay until this bill is signed by the Governor.”

After further discussion, Robert Craig asked Pete

Pa pas if it were all right if they compromised and said,

e would let it go until it passed both Houses and then

get the money.” Craig then told Peter V. Pa that,

We would compromise and the industry would have to

pay us the money after it passed both the House and the

nate but it had nothing to do with the Governor's

signature.” Peter V. Pappas responded, “Okay, I will talk

to them.” A few days later, Peter V. Pappas informed

Pete phe ays that “the industry would pay, would go

ahead with our agreement and pay when the bill passed

both houses of the General Assembly.”

House Bill 4176 was passed by the Illinois House of

Representatives on May 12, 1972. The bill was intro-

duced in the Illinois Senate on May 15, 1972.

About a week or two weeks before House Bill 4176

was introduced in the Illinois Senate, Carpentier spoke

with ten Republican senators, among whom was Jack E.

Walker, a Republican member of the Illinois Senate

from Lansing, Illinois. In the conversation with Walker,

Carpentier asked Walker to support the cement bill and

Walker said he would. Carpentier also told Walker “that

there would be help in his district.”

App. 72

After speaking with Walker and the nine other

Republican senators, Carpentier told Peter V. Pappas

that Carpentier “could muster 11 votes on the Repub-

lican side.” Peter V. Pappas replied that he would see

what he could do on the other side of the aisle. One or

two days after that, Carpentier told Course that

Carpentier had 11 votes and that Course “would have to

muster up the rest.”

While House Bill 4176 was pending in the Senate

committee (around June i, 1972), Herbert Craig re-

ceived a phone call from Lauwereins who told Herbert

Craig that the bill was in jeopardy and that Peter V.

Pappas needed $500 in cash. Lauwereins told Herbert

Craig to draw the $500 from his out-of-pocket expenses

and Lauwereins would render a statement from

NIRMMA covering the $500. Lauwereins told Herbert

Craig to take the $500 to the third floor of the Capitol

Building where Peter V. Pappas would meet him.

Herbert Craig related Lauwereins’ request to Chalden.

The next day, June 2, 1972, Herbert Craig and

Chalden prepared a $500 check and cashed it. Herbert

Craig took the cash to the third floor of the rotunda area

and was met by Peter V. Pappas. Peter V. Pappas asked

Herbert Craig if he had the envelope with the money

and when Herbert Craig replied, “Yes,” Peter V. Pappas

said “Follow me.” They went into an office and Peter V.

Pappas opened a magazine, laid it on a desk and told

ine stl raig to put the envelope with the money inside

the magazine. Craig did as instructed and Peter V.

Pappas said “That’s all. You may be excused.” Herbert

Craig then left and related the incident to Chalden.

The Senate sponsor of House Bill 4176 was originally

Senator Harris. About mid-June 1972, while House Bill

4176 was pending in the Senate, Carpentier told Walker

that Senator Harris could no longer sponsor the bill

because Harris was sick. Carpentier told Walker that if

Walker would handle the bill, “that an additional $500

would be given him.” Walker agreed to handle the bill.

Thirty senators voted in favor of House Bill 4176 in

the Illinois Senate, which was the exact number of votes

required for passage. House Bill 4176 was passed by the

Illinois Senate on June 21, 1972.

ii ws

App. 73

_Chalden, the executive secretary of the ID-MRCA was

sitting in the Senate gallery when House Bill 4176

re the Senate. The following day, June 22, 1972,

halden prepares a bulletin announcing the fact that

House Bill 4176 had passed the Senate and was heading

to the governor. Chalden mailed a copy of that bulletin

to every member of the ID-MRCA, including Material

Service Corporation, to inform them of the bill’s passage

and to urge them to contact the governor and urge the

governor to sign the bill into law.

Connolly mailed a similar bulletin to every regular

member of NIRMMA on June 23, 1972 to urge the

members of NIRMMA to write, wire or call the

governor and ask the governor for favorable approval of

the bill. Wille, upon receipt of a copy of the bulletin,

sent a telegram to the governor, and received a response

from the governor’s office. Carpentier also urged the

governor to sign the bill.

The spring session of the Illinois General Assembly

ended on July 1, 1972. After the end of the legislative

session, Pete Pappas telephoned Peter V. Pappas in

early July 1972 and said, “Peter, this is Pete. I am just

calling to see when we are going to get our money.”

Peter V. Pappas replied that he was trying to get it

together and they were a little slow, but he would see

what he could do.” Peter V. Pappas recommended that

Pete Pappas call McBride and gave McBride’s phone

number to Pete Pappas.

In the early to middle part of July 1972, Pete Pappas

telephoned McBride and told McBride, “Jim, this is

Representative Pete Pappas and I am calling about the

money.” McBride said, “Well, they are working on it.”

Pete Pappas replied “Well, we have some commitments

to meet.” McBride responsed, “Well, let me check into it

and I will get back to you.”

In ag August 1972, Peter V. Pappas informed Pete

Pappas that the industry was not going to pay because

there was a rumor that the governor was going to veto

the bill. Pete Pappas responsed, “I don’t care about that,

we have commitments to meet and we at least want to

pay our commitments.” Peter V. Pappas replied “Well,

App. 74

why don’t you call Morry Lauwereins and talk to him

one it,” and gave Pete Pappas Lauwereins’ phone

number.

That same day or the next day, Pete Pap

telephoned Lauwereins and said, “Mr. Lauwereins, this

is Representative Pete Pappas and I am — about

the money.” Lauwereins said “I understand that the

Governor is goi to veto the bill.” Pete Pappas

responded, “Well. I don't care what the Governor does

because that wasn't part of our arrangement. Our

arrangement was to get it through both Houses and you

to . Now we have commitments to meet and

we would like to have the money.” Lauwereins said he

would check into it and let Pete Pappas know.

On August 8, 1972, House Bill 4176, the cement bill,

was vetoed by Governor Ogilvie. On that day the $50,000

was still in the safe deposit Dox.

On August 14, 1972, during a tugboat ride in

conjunction with an MVLC meeting, Course told Car-

pentier that some of Course’s fellows were “getting

restless,” and Carpentier replied, “I will talk it over

with Representative Pappas, ause he is handling it.”

Also, in August 1972 after the veto, McBride told

Wille that Senator Course had called McBride and had

asked McBride for his campaign contribution. McBride

told Wille that McBride had told Course that McBride

did not know anything about it. Lauwereins also called

Wille about the same time. Lauwereins said that he had

received some information that “some of the legislators

felt they had done their job and that even though the bill

had been vetoed and it had not become law, that they

should be entitled to some money.” Wille asked

Lauwereins, “What about our earlier ‘no bill, no pay’

provision?” Lauwereins replied that that was the earlier

agreement.

At a luncheon meeting among Wille, McBride, and

Lauwereins at a restaurant in Hillside, Illinois, in the

latter part of August 1972, McBride told Lauwereins of

the phone conversation McBride had had with Course.

McBride went on to say that he had had a recent

conversation with Peter V. Pappas and that the

App. 75

legislators felt that they had done their job and although

the earlier agreement was $50,000 they were willing to

settle for $30,000. McBride stated that before it was

decided not to pay anything the industry should consider

the consequences of a veto override or an additional

seasonal or permit bill. McBride also said that Peter V.

Pappas had said he could draw up an additional bill, a

seasonal or permit bill, for an additional fee of $5,000.

Wille stated that they could not spend any of the money

that had been collected because of their representations

to the other ready-mix dealers that it was “no bill, no

pay.” Lauwereins concurred.

Wille, the following morning, informed Moeller of

McBride’s comments. Moeller agreed that the $30,000

should not be taken from the $50,000 fund, but that the

$30,000 should come from the two companies that had

the most trucks in the industry, Meyer Material

Company and Materia! Service Corporation.

At a motel in Des Plaines, Illinois, McBride,

Lauwereins, Moeller, Wille and Gerald Nagel of Materi-

al Service yok 9 noe met in early September 1972.

Lauwereins told Nagle and Moeller that the legislators

felt they were entitled to $30,000 instead of the original

$50,000 and that Peter V. Pap could draw up a

seasonal or permit bill for an itional $5,000. Nagel!

and Moeller both asked what happened to the original

no bill, no-pay agreement. McBride could not answer

that question, but said that Nagel and Moeller should

consider what the consequences might be if they chose

not to do anything. McBride also said that it was

a that there could be a veto override and that

Moeller and Nagel should consider what should be done.

Lauwereins and Wille said that they, themselves, could

not make the decision. Moeller said “the $30,000 should

be put up and it should be contributed by Meyer

Material and Material Service Corporation.” Nagel

concurred.

On the evening of September 11, 1972, following the

MVLC meeting Peter V. Pappas told Craig, Carpentier

and Pete Pappas that the industry was not going to pay

anything for the » of the bill use the

Governor had ve it. Pete Pappas then said, “That

App. 76

was not our deal. We had a commitment; _ By

going to pay us if it both Houses. We no

control over what the Governor did.” Pete Pappas went

on to say, “We have commitments that we have to meet;

they should at least pay us enough so we could meet our

commitments.” There was a general discussion about the

amount of money necessary to fulfill commitments.

Craig said that he thought that he could take care of his

commitments for “five.” Pete Pappas and Carpentier

agreed that if Craig could take care of his commitments

for $5,000, they could take care of their commitments

for the same amount. Peter V. Pappas said that he

would talk to the industry and get back to them.

In September 1972, Lauwereins telephoned Wille and

asked Wille to take Meyer Material Company's half of

the $30,000 to McBride's house in Westchester. Wille

told Moeller about Lauwereins’ call requesting

Wille to take the money to McBride’s house, and asked

Moeller to have the money ready when Wille needed it.

Moeller said he would.

Around the end of September, Wille received $15,000

in $100 bill denominations in an envelope from Moeller.

That same day Wille went to McBride's house in

Westchester. Lauwereins and Wille arrived at McBride’s

house at about the same time. They proceeded to the

basement of the house where they met McBride and

Peter V. Pappas. Wille and Lauwereins both placed

envelopes containing cash on a table. Peter V. Pappas

removed the contents of both envelopes and counted the

money. The envelope Wille had brought contained $15,-

000. The envel Lauwereins had placed on the table

contained $14,100, $900 short of the $15,000 amount.

McBride told Peter V. Pappas that McBride would get

the missing $900 to Peter V. Pappas at a later date.

Peter V. Pappas then put the money back in_the

envelopes and put the envelopes in his brief case. Peter

V. Pappas said that he had to make a stop on the way

down to Springfield. Peter V. Pappas also stated, “Five

years ago when a man told you you had his vote, you

could count on it; | have to wait to see if he

punches the button and light lights up to know for

sure.”

CDM AM AA Ue teat ame

App. 77

Peter V. Pappas in September 1972, delivered $5,000

in cash in an envelope to Course which Course then

delivered to various Democratic state senators.

On September 25, 1972, Peter V. hy met Pete

Pappas, Carpentier and North at the Coffeehouse on

Interstate 80 near Marseilles, Illinois and delivered

$10,000 in cash in an envelope to Pete Pappas.

About a week before that meeting, Peter V. Pappas

told Pete Pappas by phone that he (Peter V. Pappas)

had the money and wanted to set up a meeting with

Pete Pappas to deliver it. Peter V. Pappas mentioned a

date that he was going to Springfield. Pete pas

replied “Well, that date is all right with me. Why don’t

we meet at the Coffeehouse, which is on Interstate 80

and it would be on your left side as you are driving

down Interstate 80.” The meeting was set for 10:00

o'clock in the morning.

Immediately after the phone conversation with Peter

V. Pappas, Pete Pappas telephoned Carpentier and said,

“Donnie, I just had a call from Peter V. and he has the

money and he wants to meet us at the Coffeehouse on

Interstate 80 at 10:00 o’clock in the morning” on the date

agreed a. Pete Pappas asked Carpentier if Carpen-

tier could make it. Carpentier said he could, and would

ride up with Pete Pappas.

Pete Pappas told North by phone of the phone call

from Peter V. Pappas. Pete Pappas told North that if

North could make the meeting at the Coffeehouse, Pete

Pappas would have something for him. North said that

he thought he could. Pete Pappas said “Okay, fine.”

Pete Pappas met Carpentier the morning of Septem-

ber 25, 1972 at the Moline Airport and drove to the

Coffeehouse on Interstate 80 near Marseilles, Illinois.

When Pete Pappas and Carpentier arrived at the

Coffeehouse that morning North was already ibere.

North, Carpentier and Pete Pappas had a cup of coffee

while they were waiting for Peter V. Pappas to arrive.

After waiting approximately twenty-five minutes, Car-

ntier placed a phone call to Peter V. Pappas’ home in

e Bluff and was told that Peter V. Pappas had left

for Springfield. Another twenty minutes passed before

Peter V. Pappas arrived and entered the Coffeehouse.

App. 78

When Peter V. Pappas arrived at the Coffeehouse, he

had a cup of coffee asked Carpentier to call Peter V.

Pappas’ office in Springfield. Carpentier obliged. While

Carpentier was on the phone North, Pete Pappas and

Peter V. Pappas left the Coffeehouse.

Pete Pappas and Peter V. Pappas, upon leaving the

restaurant, got into Peter V. Pappas’ car. Peter V.

Pappas sat behind the wheel and Pete Pappas sat on the

passenger side. North walked out into parking lot

away from the car. In the car, Peter V. Pappas placed

an envelope on the front seat of the car and said “Now,

if anybody asked you if I gave you any money you say I

didn't.” Pete Pappas picked up the envelope containing

the money from the seat and rut it in his coat pocket.

Peter V. Pappas said that he had already given Course

his “five” and that he was going to see Craig later in

Springfield.

Pete Pappas got out of Peter V. Pappas’ car with the

envelope, went over to his own car and got in. Pete

Pappas then opened the envelope and counted out ten

$100 bills. Pete Pappas got out of his car, walked over to

North and gave North the ten $100 bills. North and Pete

Pappas discussed having lunch at the LaSalle Holiday

Inn and North got in his car and left.

When Carpentier joined Pete Pappas, Pete Pappas

requested Carpentier to drive the car, which C ntier

did. During the ride from the Coffeehouse to the le

Holiday Inn on Interstate 80, Pete Pappas counted out

$5,000 in $100 bills and handed it to Carpentier.

Carpentier put the money into his inside coat pocket.

North, Carpentier and Pete Pappas had lunch together

at the LaSalle Holiday Inn.

Carpentier and Pete Pappas arrived back in Rock

Island about 3:30 p.m. that day. Carpentier then went to

his insurance office in Moline and put the $5,000 he had

received from Pete Pappas in a file box which he then

put in a file drawer in the office.

A few days later, Carpentier had his wife type nine

envelopes addressed to nine Republican senators, includ-

ing an envelope addressed to Walker. The addresses

were obtained from the legislative handbook. In the

App. 79

envelope addressed to Walker, Carpentier put five $100

bills wrapped in a piece of paper. Carpentier placed a

$100 bill in each of other eight envelopes. Carpentier

then took the nine envelopes which had proper

and deposited them in the mai! box by the side of

front door of his office.

On the morning of November 4, 1972, Pete Pappas,

Course and Peter V. ey met with ready-mix

industry members Wille, McBride, Lauwereins, and

Herbert Craig for breakfast at a restaurant in Spring-

field. At that meeting there was a discussion whether a

veto override of House Bill 4176 should be attempted.

Course stated near the end of the meeting that an

override was im ible since there were not e

votes, and Pete Pappas stated that he felt it would

better if an override of the Governor's veto was not

attempted, but that a new bill could be pursued in the

next session.

In the latter part of December 1972, Connolly and

Peter V. Pappas returned to the bank in Lake Bluff and

retrieved the $50,000 from the safe deposit box. Connolly

took the money and returned portions of it to Wille,

Lauwereins and Arquilla. Connolly kept the $3,160

which Meyer Material advanced to the $50,000 fund.

Connolly placed that cash in the NIRMMA office safe,

where it remained until trial.

After the commencement of the grand jury investiga-

tion which led to the indictment in this case, Carpentier

was served with a subpoena to appear before the grand

jury on May 30, 1973. On May 29, 1973, Carpentier

informed Peter V. Pappas and Course of the receipt of

the subpoena and was told by Peter V. Pappas, “Deny

everything and if we all stick together, they won't have

any case and when you get finished, call me in my office

in Springfield.” Carpentier appeared before the grand

jury on May 30, 1973, and after his grand jury

appearance called Peter V. Pappas. Carpentier told

Peter V. Pappas that he (Carpentier) denied

everything before the grand jury and Peter V. Pappas

said, “Great, if we all stick together like that, we will

have no problem.”

ra

*

:

App. 80

In A of 1973, Craig telephoned Pete P and

a meeting with Pete Pappas at the Streid’s

Restaurant in Bloomington, Illinois. In attendance at the

pets were Craig, Peter V. Pappas, Pete Pappas and

Lou Markert, a former legislator. Markert left the

meeting at Peter V. {4 uest. After Markert left,

Peter V. Pappas told Craig se Pete Pappas that Peter

V. Pappas had been visited at his home in Lake Bluff by

Assistant U.S. Attorneys Skinner and Stone, who had

discussed the cement bill legislation. Peter V. Pappas

told Craig and Pete Pappas that he, Peter V. Pappas,

could do one of three things in to the investiga-

tion. Peter V. Pappas said that he could that he “rat-

holed” all the money, in other words, that he had got the

money but kept it and did not pass any of it on. Peter V.

Pappas said that another thing he could do was to tell

the government everything he knew about it, and the

other thing was not admit anything. Peter V. Pappas

said that because he was being called to the grand jury,

he would probably need to hire an attorney. He asked

Craig and Pete Pappas if they would give him $5,000

apiece to help him pay his legal expenses. Peter V.

Pappas also asked Craig and Pete Pappas to contact the

other two participants and see if money could be

obtained from them also. Peter V. Pa said that he

had been talking to Material Service Corporation but

they had dropped him and were not going to help him in

any way. Peter V. said that he heard that some

of the executives of Material Service Corporation had

received immunity on the case.

Also in the fall of 1973, Peter V. Pappas telephoned

Carpentier and said, “that if the fellows would come up

with $5,000 apiece, he would amend his tax return

showing that he took $20,000 and we would all be off the

hook.” Neither Pete Pappas nor tier ever gave

T° Pappas the $5,000 that Peter V. Pappas had t -

quested.

II. ISSUES AS TO RECORDED CONVERSATIONS

All four appellants raised issues with respect to the

conversations recorded by Carpentier and Pete Pappas.

Prior to trial, defendants Craig, Walker, and Peter V.

Oe Pe TT RIS OMe tS ee > Ree eed 6 es

y eed ame

RS < Tila EE Nae ee

App. 81

Pappas moved the district court to suppress those ta

recorded conversations. Following a hearing, the district

court denied their motion.

It appears from the record that defendant Carpentier

had n called to testify before the grand jury

investigating this case on two occasions, once in May

and once in June (or July), 1973. In December of 1973

Carpentier engaged an attorney who conducted negotia-

tions with the prosecution. By a letter agreement dated

March 5, 1974, Carpentier agreed to plead guilty to one

felony count of the impending indictment and to

cooperate fully in the investigation in this case. The

government, in return, agreed to dismiss other counts

pertaining to Carpentier and to bring to the sentencing

judge’s attention Carpentier’s cooperation with the

government.

Thereafter, around the first of June, 1974, Carpentier

permitted postal inspectors to attach a tape recording

device to his office telephone. On June 10, defendant

Walker telephoned Carpentier at his office. The conver-

sation was recorded. Carpentier then immediately called

Assistant United States Atterney Skinner to inform him

of the call. Skinner told Carpentier to place a call to

Walker, admonishing Carpentier not to disclose the fact

that he was a government informant and to try to talk

about money he had given Walker and to let Walker

talk. Carpentier complied, and a second conversation

between Carpentier and Walker was recorded. A third

conversation was recorded on July 11, 1974. The record

reveals that prior to any recordings, the government

was aware that Walker had retained counsel.

Walker contends that the ta of conversations

recorded by Carpentier between himself and Carpentier

should have been suppressed, and that the admission of

the ta into evidence at trial constituted error. In this

regard, Walker argues that the government activity

which resulted in the recording of his telephone

conversations constituted an unreasonable search and

seizure under the Fourth Amendment, a denial of due

process under the Fifth Amendment, a denial of the

right to counsel under the Sixth Amendment, and a

violation of 18 U.S.C. § 2511.

We note at the outset the well-settled principle that

there is no interest protectible by the Fourth Amend-

App. 82

ment in those situations in which one party to a

conversation reposes a trust or confidence in the other

party who is actually an undisclosed government agent

or informant. E.g., Hoffa v. United States, 385 U.S. 293

(1966). Simply put, no legitimate Fourth Amendment

interest is involved in such situations, for that Amend-

ment affords no protection to “a wrongdoer’s misplaced

belief that a person to whom he voluntarily confides his

wrongdoing will not reveal it.” Jd. at 302. Nor is the

Fourth Amendment violated because the undisclosed

nt simultaneously records the conversation with an

electronic recording device on his person, Lopez v.

United States, 373 U.S. 427 — or because the

conversation is electronically transmitted by the undis-

closed agent to a remote place where it is overheard by

other nts and/or recorded. United States v. White,

401 U.S. 745 (1971); On Lee v. United States, 343 U.S.

747 (1952). Evidence in the form of tape recordings of

such conversations are generally admissible where one

party to the conversation consents to the electronic

recording. Rathbun v. United States, 355 U.S. 107 (1957);

United States v. Bastone, 526 F.2d 971 (7th Cir. 1975),

cert. denied, 425 U.S. 973 (1976); United States v.

Martin, 372 F.2d 63 (7th Cir. 1967); cert. denied; 387

U.S. 919 (1967). There is no doubt from the record that

Carpentier voluntarily consented to the recording of his

conversations with Walker."

‘8 Conceding that the record fully supports the district

court's finding that Carpentier had given prior consent to the

recordings, Walker nevertheless contends that the consent of

Carpentier was under the peculiar circumstances of this case

the consent of the government itself, and, hence, without legal

effect. Arguing that there were no exigent circumstances to

justify the government's failure to obtain a court order for the

interception of the communications pursuant to 18 U.S.C.

§ 2518, Walker asserts that Carpentier’s consent without

judicial aqgeere: should be held for naught. We do not agree.

Congress has seen fit to condone the interception of communi-

cations where the person intercepting is acting under color of

law Ty? has given his prior consent thereto. 18 U.S.C.

§ 2511(2Xc). We find, and Walker concedes, that the record

amply supports the district court’s determination that the

conversations and the circumstances under which those

conversations were recorded fall within 18 U.S.C. § 2511(2Xc).

Even if a finding of valid consent could be held for naught in

view of the peculiar circumstances of a given case, we find no

such peculiar circumstances in the record before us.

os ———-

App. 83

Further, Walker’s contention that his Fifth Amend-

ment rights were violated since he should have been

made aware of his rights prior to making any statement

is of no avail. Advice of rights is required in custodial

situations where the inherent pressures to speak in the

face of governmental authority are present. Beckwith v.

United , 425 U.S. 341; United States v. Gardner,

516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861

(1975). As Judge Bauer stated in United States v.

Bastone, supra, 526 F.2d at 977:

“A person is not entitled to warnings simply because

an investigation has been focused upon him. The test

is not focus alone, but rather focus plus custodial

interrogation. Escobedo v. Illinois, 378 U.S. 478, 84

S.Ct. 1758, 12 L.Ed. 2d 977 (1964); Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d

694 (1966).”

While it is clear the investigation had focused upon

defendant Walker, his recorded conversations with

Carpentier involved no confrontation with governmental

authority in the context of a custodial interrogation

calling for Miranda warnings. Consequently, we must

reject Walker’s contention that the recordings violated

his Fifth Amendment rights.

Nor did the recordings violate Walker’s Sixth

Amendment right to counsel. By its own terms, the

Sixth Amendment affords the right of counsel “{iJn all

criminal prosecutions.” For purely Sixth Amendment

purposes, a defendant’s right to counsel attaches only at

or after the time the adversary judicial proceeding has

been initiated against him. Kirby v. Illinois, 406 U.S.

682, 688 (1971) (plurality opinion of Stewart, J.);

Massiah v. United States, 37% U.S. 201 (1964). See

also: Brewer v. Williams, ..... S. ...., 97 S.Ct. 1232

(1977). One accused of a crim is said to be entitled to

counsel at any “critical” s f the prosecution. United

States v. Wade, 388 U.S. 218, 236 (1967); Gilbert v.

California, 388 U.S. 263, 267 (1967); Simmons v. United

States, 390 U.S. 377, 383 (1968). Walker’s right to

counsel argument must fail for the simple reason that

App. 84

there had not yet been a “criminal prosecution” when his

conversations with Carpentier were recorded."

Nevertheless, Walker argues that at the time of the

recorded conversations the Fo eaiagpomee was no longer

simply investigating him. Walker asserts that because

Carpentier would testify that he had bribed Walker and

because other witnesses would provide evidence needed

to establish other elements of the scheme, his indictment

“was then as certain as the sun setting in the West and

that it was — deferred merely to permit the

government to beef up its case with admissions to be

obtained by stealth and trickery.” Walker concludes by

stating that “the indictment was being withheld, per-

haps with the conscious purpose of avoiding any right to

counsel problems.”

The record does not support Walker’s contentions.

Nothing therein indicates that the government withheld

the indictment for any purpose whatsoever. Further-

more, in an investigation into a complex scheme

involving as many persons, occurring in as many places,

and carried on as long as the scheme established by the

government in this case, we are compelled to reject

Walker’s unadorned contention that his formal charge

was withheld for the purposes asserted here. In any

event, the government is certainly not required to cease

an on-going investigation into a far-reaching scheme

such as this when it appears to have probable cause to

seek an indictment as to one individual. Cf. Hoffa v.

United States, supra; United States v. Gardner, supra;

United States v. Skelley, 501 F.2d 447 (7th Cir. 1974),

cert. denied, 419 U.S. 1051 (1974).

izing that his individual claimed violations of

Fourth, Fifth and Sixth Amendment rights alone are

‘¢ Nor does it make a difference that the government knew

prior to the recordings that Walker was represented by

counsel. The violation of the Sixth Amendment right to

counsel as claimed here is to be viewed in the context of

whetner the claimed violation occurred in a critical stage ofa

prosecution, and not in the context of whether defendant had

retained counsel in face of a government investigation.

Compare United States v. Lemonakis, 485 F.2d 941, 954 (D.C.

Cir. 1973), cert. denied, 415 U.S. 989 (1973).

App. 85

insufficient to warrant reversal, Walker submits that

the totality of the circumstances in this case requires us

to hold that the government activity exceeded permis-

sible bounds. We reject Walker’s totality of the circum-

stances argument because, for the reasons stated with

respect to the individual claimed violation of rights, we

find no support in the record for the assertion that the

activity of the government exceeded permissible bounds.

However damning the effect of the tape recordings upon

Walker's case, we find nothing in the record to indicate

that his rights were violated by the recordings of

conversations with Carpentier, or the admission into

evidence of those recordings.

Defendant Peter V. Pappas also contends that tapes of

conversations between himself and Pete Pap on

September 27, 1973 and October 15, 1973 dheuld bane

been suppressed. The tape recordings of those conversa-

tions were inadmissible, Peter v Pappas argues,

because Pete Pappas was neither acting under color of

ol nor had — ce to the interception of

r conversations within the meani

alee ng of 18 U.S.C.

The record shows that on October 17, 1973, Pete

Pappas and the government entered into a letter

apeemant by which Pete ae agreed to enter a plea

of guilty to a violation of 26 U.S.C. § 7206(1) [making a

false statement in an income tax return], to cooperate

fully with the government in its investigation, to not run

for re-election as a State Representative, and to resi

from office prior to testifying at trial. In return, the

government agreed not to prosecute Pete Pappas any

further, not to use any information he supplied against

'° 18 U.S.C. § 2511(2Xc) provides as follows:

“It shall not be unlawful under this Chapter for a

person acting under color of law to intercept a wire or

oral communication, where such a person is a party to the

communication or one of the parties of the communi-

cation has given prior consent to such interception.”

App. 86

him in any way, and to recommend probation at the

time of sentencing.'®

Peter V. Pappas argues that Pete Pappas’ recordings

of two conversations prior to entering into the plea

agreement were accomplished for purely selfish pur-

poses designed to increase his (Pete Pappas’) value to the

vernment as a witness. In support of this argument,

eter V. Pappas points out that Pete Pappas, through

his attorney, offered to tape the conversations, and that

the government could not use the tapes unless and until

it had reached an agreement with Pete Pappas. As such,

Peter V. Pappas concludes, Pete Pappas was not acting

“under color of law.” We do not agree. Our review of the

record indicates that Pete Pappas ag to cooperate

with the government prior to recording any conversa-

tions with Peter V. Pappas. Pete Pappas’ attorney

sug: ested the recordings during the course of plea

negutiations because Peter V. Pappas had been demand-

ing money from Pete Pappas for use as attorney’s fees,

and the attorney was concerned that by giving Peter V.

Pappas money, Pete Pappas might become involved in

“an obstruction of justice situation” if it later turned out

that the money was not for attorney’s fees but rather for

use aS an encouragement not to testify. The prosecutor,

then Assistant United States Attorney Skinner, agreed

that if plea negotiations with Pete Pappas fell through,

there would be no use o

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