Petition — Rabbitt v. United States
Supreme Court brief1979
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Supreme Court, U. & --
FILED
DEC 1 1978 |
MICHAEL R@DAK, JR., CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
RICHARD J. RABBITT,
Petitioner,
Vv
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Eighth Circuit
MORTIMER A. ROSECAN
ALAN G. KIMBRELL
1015 Locust Street
St. Louis, Missouri 63101
Attorney for Petitioner
NRE IE ON A ET TROT RR. SPN NR
St. Louis Law Printing Co.. Inc., 812 Olive Street 63101 314-231-4477
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TABLE OF CONTENTS
Page
IE ED GSES ong ie wsin we PANO pam ewkes aes 1
CE GA a en kdwa wicca s chon ea weeteewilaews 2
Se ee eee eee 2
II CSG cs. 0 Sx Sap k os Stk adwied hos 3
United States Constitution, Statutes and Rules Involved 3
Se tN te ose rewelw ees 4
Reasons Why the Writ Should Be Granted ............ 9
I. When a Court of Appeals holds that a motion
for judgment of acquittal should have been sustained as
to all counts involving one subject matter, is that court
required by Section 2106 of Title 18 and due process
either to order a new trial on the remaining counts or
to direct the trial court to entertain a motion for such
I i See bili kg wit 0% ene Oates ob Vee eee 9
A. The jury has been misguided and misdi-
ge SL RAGE CRE OREES Sago ee ee 9
B. The evidence is prejudicial ............ 10
C. The accused is entitled to the benefit of the
trial court’s exercise of discretion ............ 13
II. Does the indiscriminate introduction of local
constitutional provisions, statutes, ordinances, discipli-
nary rules, and codes of conduct into federal mail
fraud prosecutions violate due process when the mat-
ter introduced is general in tenor and the relevance
PL LC ake apes «4 4s hy Ss FS 14
PT DS SE ERPS eg at a Ce 24
Appendix A: Opinion of the Eighth Circuit Court of Ap-
ds a diain gh an ke .> BRD Used Beod Ee A-1
Appendix B: Order Denying Petitions for Rehearing ... . A-28
Appendix C: Order Denying Motion to Amend Mandate .A-29
Table of Authorities
Cases Cited:
Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 694 (1954) 22
Campbell v. United States, 167 F.2d 451, 453 (Sth Cir.
Ce EV baa wees web iea'tlehwecsc seen c es 19
Coates v. Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d
214, 217 (1971)
Commonwealth of Virgin Islands v. Carmona, 422 F.2d
SS MI hoes v's nine} 60% Cece ne ner 19
Jackson v. United States, 348 F.2d 772, 773-74 (D.C. Cir.
ees his dod os bNa oa bn Ab 0 heehee Wee 19
Labor’s Educational & Political Club—Independent v.
Danforth, 561 S.W.2d 339, 350 (Mo. 1977) ........ 20
Manning v. Rose, 507 F.2d 889, 894 (6th Cir. 1974) .... 12
Michelson v. United States, 335 U.S. 469 (1948) ........ 10
Papachristou v. City of Jacksonville, 405 U.S. 156, 162,
Do» | ra 21
Re a by c's wb 4.0 ao os 19
Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031,
1038 (1945)
Skinner v. Oklahoma, 316 U.S. 535, 541-42, 62 S. Ct.
SER BERS TIED o.r5.0 feat Nbovesvacessepensh ny 22
United States ex rel. Springle v. Follette, 435 F.2d 1380,
1382 (2d Cir. 1970) 0.0... cecccveccsccecvccecs 12
United States v. Achtenberg, 459 F.2d 91, 97 (8th Cir.
«NESE SEES are, Seen err aed et ee 19
United States v. Brown, 505 F.2d 261 (4th Cir. 1974) .... 21
United States v. Brown, 540 F.2d 364, 381 (8th Cir. 1976) 23
United States v. Bush, 522 F.2d 641 (7th Cir. 1975),
cert. den., 424 U.S. 977 (1976) ......-- cece eeeeee 22
United States v. Bryant, 461 F.2d 912, 920 (6th Cir. 1972) 19
United States v. Keane, 522 F.2d 534, 553-57 (7th Cir.
SE hiccis c's ao pad Cue kasbrna' Ws Cee Saw ee RNS bas 23
United States v. Mandel, 415 F. Supp. 997, 1009 (D.
RE) A ere ee See ee 17, 18
United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975) .... 18
United States v. Williams, 463 F.2d 958, 962 (D.C. Cir.
oe SE en a Serr geo r sfx ee 19
United States v. Wolfson, 322 F. Supp. 798, 828-30 (D.
Del. 1971), aff'd, 454 F.2d 60 (3d Cir. 1972) ........ 18
Williamson v. United States, 332 F.2d 123, 133-34 (Sth
Cee FEE oo ik cla ie eet nv ee bie be hee bas CHK. 19
Statutes and Rules Cited:
- yt say Fe rrr eww LL ae 2
Section 2106 of Title 16, UG. 2... ccccccccccccnse 3,13
Section 1341 of Title 18 U.S.C. ... cece ccvcwcvcccees 4
Gection 1951 of Title 18 U.S.C. .. 0. ccccccccccvven’s 4
iv
Se UU OS NUE oo ek oct boc d cies MOSS ook 4,12
en I OS ee tie Oe ee 9
SE MI echo, ik oe te een 11
_ Miscellaneous Cited:
United States Constitution, Amendment Five .......... 3
2 DEVITT & BLACKMAR, FEDERAL JURY PRAC-
TICE & INSTRUCTIONS § 56.16 ................ 19
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
nT aR ge
RICHARD J. RABBITT,
Petitioner,
Vv
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Eighth Circuit
Petitioner, Richard Rabbitt, respectfully prays that a writ of
certiorari be issued to review the judgment and opinion of the
United States Court of Appeals for the Eighth Circuit, No.
77-1677.
OPINION BELOW
The opinion of the Court of Appeals is not yet reported and
is reprinted as Appendix A.
JURISDICTION
The judgment of the Court of Appeals was entered on Sep-
tember 5, 1978. A timely petition for rehearing or transfer
en banc was denied on October 27, 1978. Petitioner’s motion
to amend the mandate was denied on November 14, 1978.
This petition for certiorari was filed within thirty days of Oc-
tober 27, 1978. This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
PRELIMINARY STATEMENT
Petitioner, a forme: Speaker of the Missouri House of Repre-
sentatives, was indicted and convicted on all of fifteen counts
involving three separate subject matters. Counts I-XI related
to his dealings with an architectural firm and its procurement
of state contracts from 1967 through 1976. Counts XII-XIV
involved an auto-dealer tax bill pending on the legislature in
1973. Count XV charged attempted extortion in 197. in con-
nection with a bill regulating the size of trucks.
The Court of Appeals held that Petitioner’s in trial motions
for judgment of acquiital on Counts I-XI should have been
sustained because the Government’s evidence failed to prove
any federal crime, reversed the convictions on those counts,
and remanded the case for re-sentencing on Counts XII-XV.
Petitioner sought a rehearing or transfer en banc on the ques:
tion whether the case should be remanded for a new trial on
the four affirmed counts. When that was denied, Petitioner
unsuccessfully moved to amend the mandate so as to permit
the trial court to entertain his motion for new trial on those
counts.
QUESTIONS PRESENTED
1. When a Court of Appeals holds that a motion for judg-
ment of acquittal should have been sustained as to
all counts involving one subject matter, is that court
required by Section 2106 of Title 18 and due process
either to order a new trial on the remaining counts
or to direct the trial court to entertain a motion for
such new trial?
2. Does the indiscriminate introduction of local constitu-
tional provisions, statutes, ordinances, disciplinary
rules, and codes of conduct into federal mail fraud
prosecutions violate due process when the matter in-
troduced is general in tenor and the relevance is
slight?
UNITED STATES CONSTITUTION,
STATUTES AND RULES INVOLVED
United States Constitution, Amendment Five
No person shall . . . be deprived of life. liberty, or property,
without due process of law; .. ..
Section 2106 of Title 18, U.S.C.
The Supreme Court or any other court of appellate jurisdiction
may affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for re-
view, and may remand the cause and direct the entry of such
appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.
aay te
Section 1341 of Title 18 U.S.C,
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 prom-
ises, * * * for the purpose of executing such scheme or artifice
or attempting to do so, places in any post office or authorized
depository for mail matter, any matter or thing whatever * * *
or takes or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail * * * any such mat-
ter or thing, shall be fined * * * or imprisoned * * *.
Section 1951 of Title 18 U.S.C,
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by * * * extortion or attempts or conspires to do so
* * * shall be fined * * * or imprisoned * * *.
Rule 403 Fed. R. Evid.
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or needless presenta-
tion of cumulative evidence.
STATEMENT OF THE CASE
The Factual Background
This case involves Petitioner’s conduct as a Missouri State
legislator. He was first elected to the House of Representatives
in 1960 and served as majority floor leader from 1967 through
- ee oT
a, po
1972, when he became Speaker of the House. He remained
Speaker until 1976, when he ran for Lieutenant Governor.
Concededly, both as majority floor leader, and even more so as
speaker, he had the power to influence legislative pending in
the House.
In the first ten counts of the indictment, the Government
charged that, “[f]rom about the beginning of 1967, to on or
about December 31, 1976,” the defendant “devised . . . a scheme
and artifice to defraud:
“(a) The State of Missouri, its citizens, and members of
the Missouri House of Representatives of their right to the
conscientious, loyal, faithful, disinterested, and unbiased
services, and actions in the performance of official duties
... and to do so free from corruption, extortion, partiality,
willful omission, dishonesty, official misconduct, conflict of
interest and fraud;”
“(b) The State of Missouri, its citizens, and members
of the Missouri House of Representatives of their right to
have the State’s business and its affairs conducted honestly,
free from deceit, craft, trickery, extortion, corruption, fraud,
dishonesty and conflict of interest, and in accordance with
the laws of the State of Missouri;”
“(c) The State of Missouri, its officials, and employees,
of their right to be aware of all pertinent and relevant
facts when analyzing and entering into contracts with per-
sons and businesses doing business and seeking to do busi-
ness with the State of Missouri, and of their right to be
aware of all pertinent and relevant facts when determining
whether and what amounts of money should be paid to per-
sons and businesses doing business and seeking to do busi-
ness with the State of Missouri.”
The substance of the scheme alleged was that defendant
would assist an architectural firm to obtain architectural service
gn eek
contracts from the State of Missouri in return for 10% of the
fees which the firm received from the state. These contracts were
awarded by the Division of Design and Construction, a part
of the executive branch (T. 352-53).
Count XI charged extortion under the Hobbs Act on the
basis of the same conduct.
In Count XIV, the government alleged that, “[f}rom on or
about April, 1973, to on or about July, 1973,” the defendant
“devised” a scheme and artifice to “defraud” the same “victims”
out of the same “rights” by soliciting money from an auto deal-
ers’ association “to ensure passage” of a certain piece of legis-
lation.
Counts XII and XIII alleged that defendant “extorted” this
money from the auto dealers. ;
Count XV was a claim of attempted extortion as to a bill de-
sired by the trucking industry.
With regard to the extortion and mail fraud charged in the
first eleven counts, the partners in the architectural firm of
Berger-Field testified that beginning in 1967, Rabbitt demanded
10% of their fee in return for introducing them to the Chief of
the Division of Design and Construction, who awarded archi-
tectural service contracts (T. 153-56). The fee for state work
was a flat 6% of the construction cost, with no competitive bid-
ding (T. 353-54). Berger-Field got two jobs in 1967 (T. 211-13).
A sheet of paper introduced by the government purportedly
showed “cash payments” to Rabbitt of $10,500 from 1967-73
(Govt. Exh. 3; T. 107). Defendant testified that he received
campaign contributions totalling about $2400 from the archi-
tects during this period, but denied that he had made any de-
mands in connection with introducing the architects to the Chief
of Design or Construction or that there was any agreement that
he was to receive any part of Berger-Field’s fees, or that the
pee ae
$2400 was pursuant to any “10% arrangement” (T. 970, 992-
93). In 1973, Berger-Field received another job (T. 282). The
architects testified that, in that year, defendant told them to
disguise the payments as monthly retainer fees of $500 made out
to Joseph Dickerson, one of Defendant’s law partners (T.
T. 112-13, 205, 331). These payments were made for two years
(Govt. Exh. 3). Dickerson, testifying for the government, did
do some legal work for the architects, and was prepared to do
whatever work they had (T. 402-407). The architects admitted
that Berger-Field could get state contracts without defendant
and that they did not pay Rabbitt out of “fear of economic harm”
(T. 136-37, 216-18, 300-302).
Counts XII-XIV charged extortion and mail fraud with re-
gard to a bill involving an ad valorem tax on auto dealers. A
representative of the St. Louis Auto Dealers Association asked
Rabbitt “what we could do to expedite the bill and he recom-
mended employing John Connaghan” (T. 465). Connaghan
demanded a “fee” of $20,000, which was paid (T. 442, 470,
498). He did no work for this fee (T. 519). He claimed that he
gave Rabbitt $5000 in cash, at Rabbitt’s offices in St. Louis, on
a day when it was admitted that Rabbitt was presiding over the
state legislature over 100 miles away (T. 527-28, 731, 1000-
1001). Connaghan did give defendant a check for $2000, which
defendant testified was a legitimate referral fee, and also gave
defendant’s brother a check for $6800, which defendant's brother
testified was also represented as referral fees (T. 522, 812, 818-
19, 1004-1005). Both the government’s evidence and the defend-
ant’s showed that, at the time Connoghan demanded and re-
ceived $20,000, the bill was in fact proceeding expeditiously
(T. 74, 720-21, 857, 874-83).
With regard to the attempted extortion charged in Count XV,
a lobbyist testified that, in December 1973, he went to see
Rabbitt about a bill permitting larger trucks on the highways:
“(We visited awhile, and at some point Mr. Rabbitt indicated
sities
that he had added some persons to the law firm and needed some
more law business from maybe the truckers or trucking industry”
(T. 598). He further claimed that in “mid January of 1974”
he went up to Rabbitt in the hallway of the capitol and asked
him why the bill had not been referred to committee. “He said,
‘Because I haven't gotten any law business’ ” (T. 599-600). De-
fendant vehemently denied these conversations (T. 1010, 1015).
The bill in fact was timely assigned to committee (T. 610-12).
The Procedural Background
Defendant timely filed a Motion to Dismiss and a Motion to
Strike Surplusage, both of which were overruled. He also filed
a Motion to Sever the Berger-Field counts (I-XI), the auto dealer
counts (XI-XIV), and the big truck count (XV). This was denied.
At the close of the government's case, and again at the close of
all of the evidence, defendant, filed Motions for Judgment of
Acquittal for failure to make a submissible case. These were
denied. As to Counts I-XI, these motions were based on the
identical grounds on which the Court of Appeals later reversed.
Defendant was found guilty on all 15 counts. He was sen-
tenced to three years on the Berger-Field counts, a consecutive
three years on the auto dealer counts, and a consecutive year
on the big truck count. The Court of Appeals held that the evi-
dence on the Berger-Field counts did not prove mail fraud or
extortion, and reversed on those counts. It remanded the other
counts for resentencing. A timely Petition for Rehearing or, in
the Alternative, Transfer to the Court En Banc was “denied” on
October 27, 1978. Thereafter, Petitioner filed a Motion to
Amend the Mandate to direct the trial court to permit the filing
of a Motion for New Trial on the remaining counts. This, too,
was “denied”.
REASONS WHY THE WRIT SHOULD BE GRANTED
When a Court of Appeals holds that a motion for judgment
of acquittal should have been sustained as to all counts involv-
ing one subject matter, is that court required by Section 2106
of Title 18 and due process either to order a new trial on the
remaining counts or to direct the trial court to entertain a
motion for such new trial?
In a multi-count criminal case, when the trial court, con-
trary to Rule 29(a) F.R.CR.P., fails to order a judgment of
acquittal on some of the charges, and permits the jury to find
the defendant guilty of the crimes alleged in those charges,
the fairness of the trial on the remaining counts becomes highly
suspect. This is true for a variety of reasons:
A. The jury has been misguided and misdirected.
The trial court’s misapprehension of law results in the sub-
mission of the invalid charges to the jury for its deliberation;
and to the extent that the jury deliberates upon them, its
attention is diverted from consideration of the other counts.
Much more serious, the court’s instructions are necessarily
guilty of misdirection in that they authorize and permit the
jury to find that the defendant's conduct, under the invalid
charges, constitute criminal behavior when that is false. In
the case sub-judice, the jury found petitioner guilty of eleven
non-extant federal crimes (Counts I-XI).'
1 The gravity of these charges in the eyes of the jury cannot be
overestimated. They cover ten pages of the indictment which was
given to the jury to aid it in its deliberations. The Government’s case
in-chief on these counts covers nearly 400 pages of the transcript and
includes 53 exhibits. The prosecution also introduced rebuttal testi-
mony related only to these charges.
win Nl inn
When a jury labors under the false belief that the defendant's
conduct was criminal, as charged in the invalid counts, it is
the same as otherwise making him out as a man possessed of
criminal propensity; and it is impossible to measure the preju-
dice that infects the jury’s evaluation of the defendant's guilt
or intwcence under the remaining counts, Cf. Michelson v.
United States, 335 U.S. 469 (1948). Lawyers know instinc-
tively that an accused has not received a fair trial when he
has been indicted, tried, and convicted on all fifteen counts,
eleven of which were invalid.
Mere reversal of the invalid convictions cannot remove the
prejudice which more than likely infected the jury’s consid-
eration of the other counts. Nor does such reversal restore to
a defendant the rights he was denied at the close of the Gov-
ernment’s case when his motion for judgment of acquittal was
improperly overruled.
Under a proper ruling, a defendant may move for a mis-
trial. If granted, he would be retried on the remaining counts
only. If denied, he may move to strike the evidence admitted
under the invalid counts. In each instance, the grant or de-
nial of the relief sought is vested in the discretion of the trial
judge and will be overturned only upon a clear showing of
abuse. If both motions are denied, the accused is rightly en-
titled to proper limiting instructions. No one can say whether
the end result of the case would ha. been different or the
same if one or another of these correciive remedies had been
granted.
B. The evidence is prejudicial.
When an appellate tribunal reverses some, but not all con-
victions, the judicial inquiry researches the record to determine
_ whether the evidence and instructions relating to the reversed
convictions deprived the accused of a fair trial on the affirmed
a
counts. Since the appellant could not foresee which, if any,
of his convictions would be reversed, his first opportunity to
be heard with respect to his entitlement to a new trial comes
in his petition for rehearing or transfer en banc.* In this, he
is limited to fifteen pages and is denied oral argument.
In the case sub judice, the prejudicial effect of the evidence
admitted under the invalid counts can be described in the
words of Eighth Circuit Court of Appeals:
“The evidence clearly shows that Rabbitt acted unethi-
cally and violated his canons as a lawyer, a candidate
disclosure statute requiring disclosure of fees received
during the preceding twelve months, and possibly a Mis-
souri law rendering ‘partiality’ or abuse in public office
unlawful.”
Yet that tribunal found that this evidence, repeatedly drummed
into the jury and spread over the indictment, did not prejudice
the trial on the remaining counts. This is to say nothing about
the other evidence which painted defendant as a greedy, money-
grabbing public official.
The opinion of the appellate court is rather opaque concern-
ing the basis upon which it has seemingly ruled that the ques-
tioned evidence either was relevant to the counts it affirmed, or
that the trial court would, or should, admit it in a retrial of those
counts. (Later, we will demonstrate that this evidence is ir-
relevant to the other counts.)
Moreover, the appellate tribunal is grievously mistaken in
ruling that the candidate disclosure statute was admissible with
2 Under Rule 33 F.R.CR.P. petitioner could have moved for a
new trial within 7 days after verdict. The filing of such a motion
would have been utterly futile and unrealistic. Neither the petitioner
nor the trial judge could anticipate how the court of appeals would
rule; and it would have been completely unavailing and a waste of
the court’s time to move for a new trial on grounds repeatedly over-
ruled—i.e., that the first eleven counts were both invalid and preju-
dicial when the court believed them to be valid.
es
respect to the valid counts. This Act made it a misdemeanor
for a candidate to fail to report over $500 “paid on behalf of
or for services rendered by the candidate to any . . . partner-
ship . . . in which the candidate . . . holds an interest of ten
percent.” It did not become effective until 1975. As candidate
for Lieutenant-Governor in 1976, Rabbitt was required to dis-
close fees received during the preceding year. The money which
Rabbitt allegedly received from the auto dealers was paid in
1973. Thus, the Campaign Disclosure Act was totally irrelevant
io the last four counts.
The Government introduced five of Rabbitt’s Disclosure re-
ports, cross-examined him extensively about them, and con-
tended that he had violated the disclosure statute (T. 426-27,
1050-52). Each report was sworn to by Rabbitt. The sting of
this evidence was that defendant had committed five crimes
of false swearing, and was certainly not a man to be believed.
Yet, without the invalid counts, this evidence was both irrele-
vant and prejudicial. “[I]f evidence is admitted which is of
little probative value but which is highly prejudicial to a de-
fendant, there is a denial of due process of law, and he is entitled
to a new trial.” United States ex rel. Springle v. Follette, 435
F.2d 1380, 1382 (2d Cir. 1970); accord, Manning v. Rose,
507 F.2d 889, 894 (6th Cir. 1974).
It should not be overlooked that when the trial judge let
this evidence in, he believed it to be directly relevant to the in-
valid counts. That should not be taken to mean that the trial
judge would admit it on a retrial of the remaining counts.
Under Rule 403 of the Federal Rules of Evidence, the trial
court may exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, con-
fusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumu-
lative evidence.”
aw 13
C. The accused is entitled to the benefit of the trial court’s
exercise of discretion.
Needless to say, the trial judge occupies the best position to
determine whether justice requires the grant of a new trial.
“A trial judge who has heard the evidence in the original
case has a vast store of information and knowledge about
it that the appellate court cannot get from a cold, printed
record. Thus, as we said in Cone, the trial judge can base
the broad discretion granted him in determining factual
issues of a new trial on his own knowledge of the evidence
and issues ‘in a perspective peculiarly available to him
alone.’ 300 US, at 216, 91 L ed at 852. The special suit-
ability of having a trial judge decide the issue of a new
trial in cases like this is emphasized by a long and un-
broken line of decisions of this Court holding that the [sic]
the exercise of discretion by trial judges in granting or re-
fusing new trials on factual grounds is practically unreview-
able by appellate courts.” Neely v. Eby Construction Co.,
Inc., 386 US 317, 18 L ed 2d 75, 87 S Ct 1072 (1967),
dissent of Justice Black, 386 US at 337-8.
It is most incongruous that now, after the district court had
been given appellate guidance on the law of the case, it has
been foreclosed from giving the case further consideration, ex-
cept on resentencing.
This means that, based solely upon a printed record, the
appellate tribunal has usurped the discretion best exercised
by the trial judge who witnessed the proceedings and saw their
impact upon the jury.
It is respectfully suggested that in all cases wherein an appel-
late court reverses convictions on some counts, and fails to order
a new trial on the other counts, the spirit and intent of Section
2106 of Title 18 requires that the matter be remanded to the
— oN
trial court for its determinatiun whether justice demands the
grant of a new trial.
The fact that an accused might appeal from the district
court’s denial of a new trial should be no obstacle. No more
needs to be done to position the matter for ruling; and it could
be dealt with summarily—perhaps within no more than a month.
Such delay is insignificant when it is weighed against requiring
“such further proceedings to be had as may be just under the
circumstances.”
II
Does the indiscriminate introduction of local constitutional
provisions, statutes, ordinances, disciplinary rules, and codes
of conduct into federal mail fraud prosecutions violate due
process when the matter introduced is general in tenor and the
relevance is slight.
The indictment alleged that:
“From January 1, 1975, until the date of this indictment,
§ 130.035, Missouri Revised Statutes, provided in pertinent
part:
“Every candidate shall file reports in writing [with the
Missouri Secretary of state] . . . Each report shall set forth:
(5) A specific listing of the source, by name and
address, of any gifts or income in excess of one
hundred dollars received by the candidate or the
candidate’s spouse or minor children during the pre-
ceding twelve months or the time of the last report,
whichever is later; . . .
(6) A specific listing of the source, by name and
address, of any gifts, salaries, fees, or other income
‘ee WO chs
which for the twelve-month period preceding the fil-
ing date individually or in the aggregate exceeds five
hundred dollars which has been paid on behalf of
or for services rendered by the candidate to any sole
proprietorship, partnership or corporation in which
the candidate or the candidate’s spouse holds an in-
terest of ten percent or more.
“At all times material herein, § 558.110, Missouri Re-
vised Statutes, provided:
Every person exercising or holding any office of public
trust who shall be guilty of willful and malicious op-
pression, partiality, misconduct or abuse of authority
in his official capacity or under color of his office,
shall, on conviction, be deemed guilty of a mis-
demeanor.
“From January 1, 1971, to the date of this indictment,
Rule Four, DR8-101, Code of Professional Responsibility,
Missouri Supreme Court Rules, states as follows:
‘Action as a Public Official
‘(A) A lawyer who holds public office shall not:
(1) Use his public position to obtain, or attempt
to obtain, a special advantage in legislative matters
for himself or for a client under circumstances where
he knows or it is obvious that such action is not in
the public interest.
(2) Use his public position to influence, or attempt
to influence, a tribunal to act in favor of himself or
of a client.
(3) Accept anything of value from any person when
the lawyer knows or it is obvious that the offer is for the
purpose of influencing his action as a public official.
Py Yee
Defendant’s timely Motion to Strike these statutes and this
disciplinary rule was overruled. Over objection, the Government
introduced the statutes and rule as evidence (Gov't Exhs. 75-77;
T. 622-28).
These statutes, and this rule, added nothing to the jury’s
understanding of the cqncept of fraud. Their introduction was
confusing to the jury and prejudicial to the defendant. The
problems which they created in this case are endemic to the prac-
tice of permitting the introduction of such local provisions, and
demonstrate that use of a local regulation should be permitted
only when it is specifically related to the case, and its relevance
is great.
It was the Government’s position in this case that certain
legal fees paid by the architects to defendant's law partner,
Joseph Dickerson, as legal fees were in fact disguised payments
for assistance in obtaining state work.* Defendant introduced
Dickerson to the architects, and suggested to him that he bill
them on his own stationary, and deposit the fees in his own ac-
count, and write checks to the law firm in the same amounts.‘
Defendant testified that he listed Dickerson, and not the
architects, as the source of these fees because Dickerson per-
formed the services and, in defendant’s opinion as a lawyer, he
was only required to report those fees generated by his own
services (T. 1050-1051). The United States Attorney, by his
questions and comments, let the jury know that, as a lawyer,
this was not Ais opinion, and that, in his opinion, all fees to the
firm had to be disclosed (T. 1051-1053).
8 This “position” was hotly disputed by defendant with evidence
that Dickerson performed substantial legal services for the four archi-
tects (T. 1150-53).
_* Defendant testified that the reason for this arrangement was “I
didn’t want my name to be on a check that they could take that check
to Jefferson City and wave it around and say, ‘Look who our lawyer
is. You better give us some business’ (T. 989-90).
oe
Over objection, the Court instructed the jury:
“In relation to Counts I through X, and Count XIV, of
the indictment, Missouri State Statutes, an Ethical Rule of
the Supreme Court, and the oath of office of the defendant
have been introduced into evidence.”
“This rule, these laws, and the oath of office of the de-
fendant may be considered by you to determine the stand-
ard of conduct expected of the defendant by the citizens
of the State of Missouri. They may also be considered by
you as relevant to the defendant's intent to defraud, if any
such intent existed. These are the only reasons that you
may consider this rule, these laws, and this oath.” (T. Vol.
VII at 105-106).
If defendant did not violate the Campaign Disclosure Act,
then that Act was not “relevant to the defendant’s intent to de-
fraud.” If he was not guilty of transgressing this state mis-
demeanor statute, then it was immaterial whether it was part of
“the standard of conduct expected of the defendant by the citi-
zens of the State of Missouri.” The treshold question which the
jury had to determine, before “considering” the Campaign Dis-
closure Act, was whether defendant had violated that act. The
trial court in United States v. Mandel, 415 F. Supp. 997, 1009
(D. Md. 1976) (Emphasis added), discussing a similar allega-
tion of the Maryland Code of Ethics, recognized that the Code
was “admissible as evidence of the defendant's dishonest or fraud-
ulent intent” only if the government could prove “an intentional
violation” thereof.
The decision as to whether the defendant violated the state
disclosure law depended on resolution of the legal question of
whether that law required a lawyer-candidate to report fees paid
to a firm in which he is a partner, by a client which he was re-
sponsible for bringing to the firm, but for whom he did no work.
If the jury was to be permitted to “consider” this act, the Court
= on
should have resolved this legal question, and instructed the
jury as to the result. By submitting this issue to the jury without
guidance, the Court invited the jury to decide whether defend-
ant’s interpretation of the law was correct, or whether the
United States Attorney's legal opinion should prevail.
The same problem exists with regard to the open-ended sub-
mission of the disciplinary rule. Defendant, a member of the
legislature, was charged with accepting money in return for using
his “influence” with the head of division of the executive branch.
Did this constitute “action as a public official”? This is a com-
plex legal question. In this very case, the appellate tribunal held
that, for purposes of the Hobbs Acct, it is not (App. 23-25). But
see United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975).
Whether the Missouri Supreme Court would interpret its own
disciplinary rule in the same way is quite uncertain. Yet, the
Court, by submitting this Rule to the jury without any guidance
as to its interpretation, allowed the jury to speculate as to the
proper resolution of a fine point of law.
What are the elements which a jury must find in order to con-
vict an office holder of “willful and malicious oppression, par-
tiality, misconduct or abuse of authority in his official capacity or
under color of his office’? The drafting of proper instructions
under that misbegotten statute would tax the wisdom of a
Solomon. With regard to this statute, too, the trial court per-
mitted the jury to become the “judges of the law as well as the
facts.”
Permitting the government to charge such statutes and rules
in the indictment, and to introduce evidence of them in the
trial, served no useful purpose in the first place. See United
States v. Mandel, supra at 1009; United States v. Wolfson, 322
F, Supp. 798, 828-30 (D. Del. 1971), aff'd, 454 F.2d 60 (3d
Cir. 1972). Inclusion of such matters in the indictment rendered
it prolix and tedious. Introduction of the statutes and rules
a= 19 —
themselves, and arguments between witnesses and counsel as to
their interpretation, was most confusing, and tended to divert
the jury from the true issues in the case.
With regard to instructions, the choices were to leave the
jury to guess and speculate as to the meanings of the various
state laws and rules (as was dope here) or to complicate the
jury’s job enormously by requiring them to find various elements
of state offenses as a preliminary to finding the elements of the
federal offenses. It is, of course, “plain error” to fail to in-
struct a jury as to all the elements of an offense with which he is
charged, e.g., Screws v. United States, 325 U.S. 91, 107, 65
S. Ct. 1031, 1038 (1945). And, it is not sufficient merely to
state the elements; the court must also “adequately explain”
them. United States v. Achtenberg, 459 F.2d 91, 97 (8th Cir.
1972). It has been held on numerous occasions that the mere
reading of a statute does not constitute adequate instruction as
to the elements of the crime created thereby, e.g., United States
v. Bryant, 461 F.2d 912, 920 (6th Cir. 1972); Jackson v.
United States, 348 F.2d 772, 773-74 (D.C. Cir. 1965); Wil-
liamson v. United States, 332 F.2d 123, 133-34 (Sth Cir. 1964);
Campbell v. United States, 167 F.2d 451, 453 (Sth Cir. 1948).
There are numerous situations where the elements of a crime
must be defined though that crime itself is not the offense
charged. For example, in felony-murder cases, the jury must
be instructed on the elements of the underlying felony. United
States v. Williams, 463 F.2d 958, 962 (D.C. Cir. 1972); Com-
monwealth of Virgin Islands v. Carmona, 422 F.2d 95, 99 (3d
Cir. 1970). Where a conspiracy to violate a specific statute is
charged, the elements of that offense must be explained to the
jury, e.g., Sandroff v. United States, 158 F.2d 623, 630 (6th
Cir. 1946). It would appear that the same holds true for vio-
lations of the Travel Act. See 2 DEVITT & BLACKMAR,
FEDERAL JURY PRACTICE & INSTRUCTIONS § 56.16
| an
and Notes thereto. Although it is true that in the felony-murder
situation the underlying felony is really itself an element of the
offense, and the same might be argued as to the other examples,
this is a distinction without a difference because the real ques-
tion is the jury’s understanding of the law involved.
But the alternative of setting out the elements of the state
statutes, rules, etc., is equally unappealing. While the introduc-
tion of the statutes and rules themselves creates the possibility
that the jury may convict a defendant simply because they be-
lieve he has committed one of the state offenses, highlighting
those offenses by delineating thin elements would raise that possi-
bility to a strong likelihood.
Another reason for refusing to permit the government to use
a multiplicity of state statutes and rules against the defendant
is that the defendant’s burden is multiplied. In addition to de-
fending himself against accusations of various violations of fed-
eral law, he must prepare and present defenses to charges of
violations of various state statutes, rules, etc.
The problems presented by allowing the government to use
state legislation to prove “fraud” are amply demonstrated in
the instant case. At the time of trial, the¥Missouri Campaign
Disclosure Act had been declared unconstitutional by a a
trial judge, and defendant so informed the Court and prosecut
(Letter Memo. dated July 11, 1977). The government chose
a course of action which, at the time, appeared to be a gamble
that this decision would not stand up on appeal, and the trial
court permitted the “gamble.” As defendant predicted, the Mis-
souri Supreme Court agreed with the trial court that the law’s
reporting provisions (the very provisions which the government
claimed were transgressed by defendant) violated the right to
privacy, and was therefore unconstitutional. Labor's Educa-
tional & Political Club—tindependent v. Danforth, 561 S.W.2d
339, 350 (Mo. 1977). However, the government's “gamble”
Sie MA abe
turned out to be no gamble at all, for the appellate court simply
ignored this issue.® The end result is that a federal jury was
permitted to convict defendant of federal crimes for purported
disobedience to an unconstitutional state law.
Morevover, the combination of the introduction of this statute
and the instruction thereon constituted a “fatal variance” in that
it permitted the jury to find a “scheme and artifice to defraud”
based solely upon defendant's failure to list the fee without re-
gard to the question of whether the payments to Dickerson were
“kickbacks” or legitimate retainer fees. Even if the jury did
not believe that there was any “10% arrangement,” they could
still have found defendant guilty because he violated this law.
This was not the “scheme and artifice to defraud” charged in
the indictment.
The “oppression in office” statute also created special prob-
lems.® This statute is so vague as to violate due process. It
“fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute,” and it
“encourages arbitrary and erratic arrests and convictions.”
Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31
L. Ed. 2d 110, 115 (1972). “Living under a rule of law en-
tails various suppositions, one of which is that ‘[all persons]
are entitled to be informed as to what the State command or
forbids’.” /bid. The statute is so vague that “‘~en of ordi-
nary intelligence must necessarily guess at its meaning’.” Coates
5 Had the Court of Appeals not ignored the issue, it would have
been forced to accept the state court’s decision that the statute was
unconstitutional. United States v. Brown, 505 F.2d 261 (4th Cir.
1974).
6 Inclusion of this statute in the indictment and the evidence was
prejudicial for the additional reason that it describes the forbidden
conduct as a “misdemeanor.” Since neither the indictment nor the
Court’s charge informed the jury that defendant was charged with
15 felonies, the P pi may have mistakenly believed they were only
convicting him of misdemeanors.
ee
v. Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 217
(1971).
Again the jury was authorized to find that defendant owed
the citizens of Missouri a duty to obey this statute, that he did
not do so, and that that this constituted a “scheme and artifice
to defraud.” If the jury found that defendant was guilty of
either “oppression,” “partiality,” “misconduct,” or “abuse of
authority,” and that a mailing occurred in conjunction there-
with, they were empowered to convict him without more.
Nor does the introduction of the state disciplinary rule escape
without causing a special problem. There is no state statute
making it a crime for a public official to engage in the conduct
proscribed by this canon. By instructing the jury that they
might consider violation of this canon as constituting a “scheme
or artifice to defraud,” the Court permitted them to find him
guilty of a crime which a non-lawyer could not have been
convicted of. The constitutional infirmity of such judicial legis-
lation is easily seen when it is considered how a specific. statute
to this effect would fare. Would a statute which says that “any
public official, who is also a lawyer, who accepts money in
return for official action is guilty of a crime” pass muster?
Obviously not. Adding the requirements of a mailing does not
change the issue. Yet, the jury was allowed to convict the
defendant just as if there were such a statute. This violated
defendant’s right to equal protection and, therefore, his right
to due process. See generally Bolling v. Sharpe, 347 U.S. 497,
74 S. Ct. 693, 694 (1954); Skinner v. Oklahoma, 316 U.S.
535, 541-42, 62 S. Ct. 1110, 1113 (1942).
It is not Petitioner’s contention that the government should
never be permitted to introduce a state statute or rule in order
to show a specific duty which a defendant has violated. For ex-
ample, in United States v. Bush, 522 F.2d 641 (7th Cir. 1975),
cert. den., 424 U.S. 977 (1976), the defendant was the press
secretary and director of public relations for Mayor Daley.
Daley established a standard of conduct “that every department
a, . om
head and staff member was prohibited from using his position
as an employee of the City of Chicago to benefit personally.”
522 F.2d at 645. There was also a state statute which required
defendant to file “statements of economic interests.” In the in-
stant case, in dismissing mail fraud counts I-X, the Eighth Cir-
cuit distinguished the Bush case because of the existence of that
statute and standard of conduct (App. A-17-A-18).
But, where, as here, the “duties” imposed are general in their
tenor, and add absolutely nothing to the general concept of
“fraud,”? whatever slight relevancy the government might claim
is far outweighed by the prejudice and confusion caused by
their injection into the case. In fact, even the appellate tri-
bunal which heard this case were prejudiced thereby: “The evi-
dence clearly shows that Rabbitt acted unethically and violated
his canons as a lawyer, a candidate disclosure statute requiring
disclosure of fees received during the preceding twelve months,®
and possibly a Missouri law rendering ‘partiality’ or abuse in
public office unlawful” (App. A-16-A-17).
This is far from an isolated problem. In United States v.
Brown, 540 F.2d 364, 381 (8th Cir. 1976), the government
used two misdemeanor statutes, a city ordinance, and an oath
of office. The government introduced four state statutes and a
city counsel rule in United States v. Keane, 522 F.2d 534, 553-
57 (7th Cir. 1975). As seen previously, the government in-
cluded part of the Maryland Code of Ethics in its indictment
in United States v. Mandel. It is safe to assume that, unless and
until the courts restrict the practice, United States Attorneys
will inject state laws into every mail fraud case they try against
local officials. 3
7 It is of course, not necessary to show that a defendant has vio-
lated a specific statute or rule in order to prove a “scheme” and arti-
fice to defraud.”
8 The Court of Appeals made this finding in spite of the fact that
the Missouri Supreme Court held that this provision to be uncon-
stitutional.
_
To the best of Petitioner’s knowledge, this is the first time that
this Court has been asked to rule on this practice.® Petitioner
earnestly urges to this Court that the use being made of local
laws in highly publicized prosecutions of local officials is almost
always highly prejudicial, has very little legitimate value, and
is contrary to all previous standards of trying defendants only
on the laws under which they are indicted. The theories by
which the Department of Justice has been permitted to make
federal cases out of corruption at the local level are tenuous at
best. The indiscriminate injection of local laws into the trial
of these cases cries out for the restraining hand of the Court.
CONCLUSION
This Court’s guidance is needed to clarify whether Section
2106 of Title 18 permits an accused to be denied access to the
forum best qualified to determine whether he has received a
fair trial and, if so, under what circumstances; and the inter-
vention of this Court is needed to curb the growing practice of
indiscriminately injecting local statutes and rules into federal
criminal trials when it causes the issues to be confused, the pro-
ceedings to be prolonged, and the federal courts to indirectly
become a forum for trial of local crimes.
Respectfully submitted,
MORTIMER A. ROSECAN
ALAN G. KIMBRELL
1015 Locust Street
St. Louis, Missouri 63101
Attorneys for Petitioner
November 27, 1978
® The defendant in United States v. Brown, supra, did not seek
certiorari. In the Keane case, one of the “questions presented” in the
defendant’s position referred to the issue in a vague way, but the
point was not carried forward in the body of the petition.
ies A
Certificate of Service
I hereby certify that on this 27th day of November, 1978,
three copies of the Petition for Writ of Certiorari were mailed
to the Honorable Wade H. McCree, Solicitor General, c/o The
United States Department of Justice, Washington, D.C., and a
copy was mailed to the United States Attorney for the Eastern
District of Missouri, U.S. Court & Customhouse, 1114 Market
Street, St. Louis, Missouri.
MORTIMER A. ROSECAN
1015 Locust Street
St. Louis, Missouri 63101
A PPENNX
ao, Yew
APPENDIX A
United States Court of Appeals
for the Eighth Circuit
No. 77-1677
United States of America, oe : Appeal From the
ppemee, | United States Dis-
bs trict Court for the
Richard J, Rabbitt, a
Missouri.
Appellant.
Submitted: January 13, 1978
Filed: September 5, 1978
Before BRIGHT and HENLEY, Circuit Judges; and TALBOT
SMITH, Senior District Judge. *
BRIGHT, Circuit Judge.
Richard Rabbitt appeals from a jury conviction on eleven
counts of mail fraud in violation of 18 U.S.C. § 1341 (1976),
and three counts of extortion and one count of attempted ex-
tortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1976).
The district court sentenced Rabbitt to serve seven years’ im-
prisonment and five years’ probation and to pay $18,000 in
fines. Rabbitt asserts several claims of reversible error re-
volving around two themes: (1) that adverse rulings of the trial
judge concerning joinder and the admissibility of evidence
rendered the trial unfair, and (2) that the prosecution failed to
* TALBOT SMITH, United States Senior District Judge, Eastern
District of Michigan, sitting by designation.
—y ot pee
meet its burden of proof on certain essential elements of the
case.
This prosecution calls into question Rabbit's allegedly cor-
rupt conduct as a Missouri state legislator. This appeal compels
us to consider again’ the extent to which the federal mail fraud
statute, 18 U.S.C. § 1341 (1976), and the Hobbs Act, 18
U.S.C. § 1951 (1976), may be employed by federal prosecutors
as one means of bringing allegedly corrupt nonfederal office-
holders to trial in the federal courts on criminal charges.
In this case we set aside convictions on ten mail fraud counts
and one Hobbs Act extortion count and sustain convictions on
one mail fraud count and three Hobbs Act counts.?
I. Background.
Richard Rabbitt was elected to the Missouri House of Repre-
sentatives in 1960 and remained a member of the House until
1976. He served as majority floor leader from 1967 through
1972, when he became Speaker of the House. He remained
1 See United States v. Brown, 540 F.2d 364 (8th Cir. 1976);
United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976); United
States v. States, 488 F.2d 761 (8th Cir. 1973), cert. denied, 417 U.S.
909 (1974).
2 The 15 counts in the indictment may be summarized as follows:
counts I-X, Berger-Field architects mail fraud counts generated by law
firm statements and checks mailed to or by Berger-Field; count XI,
Berger-Field-Hobbs Act count generated by Rabbitt’s allegedly ex-
tortionate demand for ten percent of the fee on state contracts secured
through his influence; count XII, $.B. 110-Hobbs Act count generated
by the initial $5,000 payment on the $20,000 allegedly extortionate
demand from Missouri automobile dealers for legislative assistance;
count XIII, $.B. 110-Hobbs Act count generated by the subsequent
$15,000 payment of the balance of the $20,000; count XIV, S.B.
110-mail fraud count generated by the mailing of a $5,000 check as
a contribution toward the $20,000; and count XV, H.B. 1336-Hobbs
Act count generated by Rabbitt’s attempted extortion of law business
from the trucking industry.
ay a
Speaker until he resigned in 1976 to campaign as a candidate
for Lieutenant Governor of the state.
Rabbitt’s responsibilities as majority floor leader included
establishing the time of meeting and order of business of the
House of Representatives. As leader, Rabbitt selected the
calendar each day and generally assisted the Speaker. As
Speaker, Rabbitt presided over the house-assembly, appointed
all the members of all committees, including the chairmen of
the committees, assigned all bills to committees, and performed
other miscellaneous duties.
The criminal charges brought against Rabbitt relate to
three occurrences during his public life: (1) his acceptance of
an indirect payoff to assist Missouri automobile dealers in ob-
taining relief from an onerous inventory tax through passage
of a measure called Senate Bill 110; (2) his unsuccessful demand
for a payoff in the form of law business for assisting Missouri
truckers to obtain a bill authorizing operation of heavier trucks;
and (3) his agreement to assist the firm of Berger-Field-Torno-
Hurley, Architects and Planners, Inc., to obtain State of Mis-
souri architectural contracts.
A. Senate Bill 110—Auto Dealers.
Substitute Senate Bill 110 (S.B. 110), introduced in 1973,
proposed a change in the ad valorem method of taxation of car
dealers’ inventories. According to the ad valorem system, car
dealers were taxed a percentage of the value of the highest in-
ventory during a regular four-month period each year. Legis-
lation to change the tax to a standard amount on each new car
sold had been introduced in previous sessions of the legislature
but to no avail. Because the automotive industry believed the
tax system proposed by S.B. 110 would be more equitable, the
Missouri State Automobile Dealers Association decided in 1973
to make a concerted effort to have the bill heard, considered,
cous il ies
and passed in that year. The Association assigned Gene Worn,
legislative liaison for the Greater St. Louis Automobile Dealers
Association, to assist in lobbying to obtain House approval of
S.B. 110. :
After the Senate passed the bill with no particular difficulty,
Rabbitt, in his capacity as Speaker, assigned the bill to the
Local Government-Related Matters Committee, a committee
generally favorable to the bill and chaired by a personal friend
of Rabbitt. Worn spoke with the committee chairman who said
the bill would have an early hearing. Worn then asked Rabbitt
what, if anything, could be done to expedite the bill’s passage.
Rabbitt suggested that Worn retain additional legal counsel,
recommending his close friend, John Connahan, an attorney and
lobbyist.
Worn conferred with leaders in the Missouri State Automobile
Dealers Association and the group decided to follow Speaker
Rabbitt’s advice. As the legislative session was nearing its
close, the automobile dealers were concerned that their efforts
to obtain this industry bill might not bring success in the House
without full legislative cooperation. Worn contacted Conaghan,
who agreed to speak with Rabbitt about the bill for a non-
negotiable fee of $20,000. Worn hired Connaghan. Based on
his experience in the legislature, Worn believed it was wise to
follow a House Speaker’s recommendation on legislation.
As a down payment, Ben Lindenbusch, a St. Louis automobile
dealer, advanced $5,000 in the form of a personal check
toward Connaghan’s fee. Later the Motor Car Dealers As-
sociation of Greater Kansas City mailed a $5,000 contribution
in the form of a check for Connaghan to Lindenbusch. Two
other $5,000 checks were obtained. Worn delivered the addi-
tional $15,000 to Connaghan.
Connaghan performed no lobbying work. He gave this fee to
Rabbitt, some directly and the remainder indirectly by check to
ay St Be
Rabbitt’s law partner-brother, Peter Rabbitt. These funds
were deposited in a special account available for withdrawal by
Richard Rabbitt. The Rabbitts admitted receiving funds from
Connaghan but claimed the money represented referral fees for
law business previously assigned to Connaghan.
The record discloses that following the $5,000 down pay-
ment, S.B. 110 survived a committee hearing and passed the
House. The Governor subsequently voided the legislation as
unconstitutional.
As we have previously noted,* the incidents relating to S.B.
110 resulted in one count of mail fraud under the mail fraud
statute, count XIV, and two counts of extortion under the Hobbs
Act, counts XII and XIII.
B. House Bill 1336—Overweight Trucks.
On December 7, 1973, prior to the 1974 Missouri legis-
lative session, George Burruss, a lobbyist for the Missouri Bus
and Truck Association, visited-defendant Rabbitt at the latter's
law office. They discussed House Bill 1336 (H.B. 1336), a
bill increasing the permissible weight of trucks on Missouri
highways. Rabbitt was noncommittal about whether he would
support H.B. 1336. Describing the meeting, Burruss testified:
[W]e visited awhile, and at some point Mr. Rabbitt in-
dicated that he had added some persons to the law firm
and needed some more law business from maybe the
truckers or trucking industry, words to that effect.
At the time Burruss did not accord any particular significance
to the conversation.
* See note 2 supra.
ai
In mid-January 1974, during the legislative session, Burruss
approached Rabbitt outside his office in the Capitol Building
and asked why H.B. 1336 had not been assigned to a commit-
tee. Burrus testified that Rabbitt responded: “Because I haven’t
gotten any law business yet.” Rabbitt ultimately assigned this
bill to an unfriendly committee in which the proposed legisla-
tion was buried.
Based on this series of events, Rabbitt was charged with at-
tempted extortion under the Hobbs Act, count XV.
C. Berger-Field Architects.
In 1965, Paul Hurley, a partner in the St. Louis-based archi-
tectural firm of Berger-Field-Torno-Hurley, Architects and
Planners, Inc. (Berger-Field), and a long-standing personal friend
of Rabbitt, approached Rabbitt on behalf of the firm and sought
his help in securing architectural contracts for state construction
work. Rabbitt offered, for a fee of ten percent from any re-
sulting work, to introduce the firm to people who might be
able to secure architectural contracts for it.‘
* Persons charged with the duty of selecting architects for Missouri
State jobs testified that selection rested on merit and past performance,
not on the basis of competitive bid. The state usually paid a standard
six percent fee based on total cost. The method of selecting a firm
depended on the size of the project. If a firm had done satisfactory
work on a project previously, it would be rehired. The state director
of planning and construction assigned small projects. He would solicit
a proposal from one architect and, if it proved acceptable, that archi-
tect would be given the contract. Projects involving more than five
hundred thousand dollars were assigned by a committee. The com-
mittee would select a firm after interviewing and evaluating architects
chosen from a list of between 30 and 50 firms. For work at a state
university, the Board of Curators would select a firm after hearing
half-hour presentations by each of a number of firms.
ania ee
The evidence indicates that Rabbitt recommended the Berger-
Field firm as competent architects to persons® authorized to
employ architects for state projects.®
During the course of the agreement, the firm credited Rabbitt
for some state work it secured. Berger-Field specificallfy attrib-
uted two state projects and one large project from the University
of Missouri it received to Rabbitt’s influence. Rabbitt also
instructed the firm on the procedure to obtain an additional
appropriation needed to cover one of its state projects.’ The
firm paid Rabbitt’s ten percent fee in cash* and later in the form
of a $500 monthly retainer to Rabbitt’s law partner, Joseph
Dickerson, who would mail a monthly statement to the architects
on either personal or firm stationery. When payment arrived,
Dickerson would deposit the retainer in his personal account and
write a check for a like amount to the law firm of Rabbitt, Rab-
bitt, and Dickerson. Dickerson did little work for the retainer.
The evidence revealed that the architects paid Rabbitt ten per-
* The persons were Mr. Paulus, Chief of Design and Construction
for the State of Missouri; Mr. Wilkerson, Director of Prisons; Mr.
Cooper, Director of Planning and Construction; and Mr. Roddy,
alderman for the 17th ward in St. Louis. Some evidence in the record
seems to indicate that Berger-Field also paid Roddy or Rabbitt 10
percent of the St. Louis city architectural contracts.
8 The firm employed three techniques to notify Rabbitt of projects
in which it was interested. Initially, the firm forwarded a list to Rab-
bitt. Otherwise it might send newspaper clippings of state projects to
Rabbitt and city projects to Roddy. Finally, a member of the firm
would review a copy of the capital appropriations bill listing capital
improvement projects with Rabbitt and underline those contracts the
firm would like to secure.
7 The evidence indicated the necessary supplemental bill was proc-
essed in the routine manner for acquiring extra payments. However,
Berger-Field received no funds from this supplemental appropriation.
* The firm instituted a scheme to generate the necessary capital by
declaring bonuses and writing checks to that effect to the partners.
The partners each cashed the checks and returned the money to the
firm. An associate gave it to Rabbitt.
a Se
cent ($22,538) of the gross fees from both city and state
contracts attributable to his influence. This money was paid
either directly to Rabbitt or to Dickerson for the benefit of
Rabbitt’s law firm. In his defense, Rabbitt denied any payoff
agreement and attempted to account for payments to the law
firm as legitimate collections for law work done without formal
billing in earlier years and as proper retainer fees.
The mailings of law firm retainer bills and checks in payment
generated the ten mail fraud charges contained in counts I to X.
The demand for the ten percent kickback generated an extortion
count under the Hobbs Act, count XI.
¥
II. Motion to Sever.
Rabbitt challenges his conviction on two theories of mis-
joinder. First, he contends that joinder of extortion counts in
one situation with mail fraud counts in another constituted
misjoinder. Second, he contends that joinder of counts relat-
ing to three different situations—S.B. 110, H.B. 1336, and
Berger-Field—constituted prejudicial joinder. We do not agree.
A. Misjoinder.
Rule 8(a) of the Federal Rules of Criminal Procedure® es-
tablishes the standard for joinder of offenses. If the various
counts refer to similar types of offenses or are based on the
Same transaction or on several transactions connected by a
common scheme or plan, joinder is proper. 8 Moore’s Federal
® Rule 8(a), Federal Rules of Criminal Procedure reads:
Two or more offenses may be charged in the same indictment
or information in a separate count for each offense if the offenses
charged, whether felonies or misdemeanors or both, are of the
same or similar character or are based on the same act or trans-
action or on two or more acts or transactions connected together
or constituting parts of a common scheme or plan.
a a
Practice 4 8.05[{2]. Joinder of offenses under the federal rules
is permissive. /d. at 4.8.05[1]. Misjoinder raises an issue of
law. Id. at 4 14.02{1].
The facts of this case fit within Rule 8. All the offenses
charged stem from misconduct while Rabbitt was a public of-
ficial. The circumstances surrounding S.B. 110 and H.B. 1336
may appear unrelated to those surrounding Berger-Field. How-
ever, all three can be characterized as connected by a common
plan. The charges all originate from Rabbitt’s scheme to obtain
money because of his power, authority, and influence as a
legislator. The principals of the Berger-Field firm testified they
sought Rabbitt’s political influence as a legislator. The S.B.
110 and H.B. 1336 counts deal with Rabbitt’s use of his posi-
tion as a legislator. Rabbitt laundered his payoffs as legitimate
legal fees. The offenses, although distinct, possess sufficient
similarity to render joinder appropriate under Rule 8. See
United States v. Adams, 434 F.2d 756, 759 (2d Cir. 1970);
Finnegan v. United States, 204 F.2d 105, 109 (8th Cir.), cert.
denied, 346 U.S. 821 (1953). Cf. Schaffer v. United States,
362 U.S. 511 (1960).
Under the circumstances, the district court did not err in
refusing severance.
B. Prejudicial Joinder.
Rule 14 of the Federal Rules of Criminal Procedure’® pro-
vides for relief from joinder which, while appropriate under Rule
8(a), results in undue prejudice to the defendant. The deter-
10 The relevant provisions of Rule 14, Federal Rules of Criminal
Procedure, read:
If it appears that a defendant * * * is prejudiced by a joinder
of offenses * * * in an indictment * * *, the court may order an
election or separate trials of counts, grant a severance of defend-
ants or provide whatever other relief justice requires.
— A-10 —
mination of prejudice rests within the discretion of the trial
court. 8 Moore's Federal Practice 4 14.02[1]. Denial of sever-
ance is not grounds for reversal unless prejudice and abuse of
discretion are shown. See Johnson v. United States, 356 F.2d
680, 682 (8th Cir.), cert. denied, 385 U.S. 857 (1966).
Rabbitt urges that the Government’s actual motivation in
jointing counts on three separate transactions was to cumulate
the evidence. To support this allegation, Rabbitt quotes from
the Government’s closing argument in which the prosecutor
stated:
[Y]ou are entitled to consider all the evidence that’s been
introduced in this case. You don’t have to just single out
that one particular matter [H.B. 1336 transaction]. You
can consider it all.
We must reject Rabbitt’s argument. Had the counts not been
joined, the evidence demonstrating Rabbitt’s corrupt conduct
as a legislator would have been admissible as evidence of simi-
lar behavior in each of the separate trials. Thus the court’s
refusal to sever was not prejudicial and cannot be characterized
as an abuse of discretion. See United States v. Hastings, No.
78-1116 (8th Cir. May 25, 1978); United States v. Clayton,
450 F.2d 16 (ist Cir. 1971), cert. denied, 405 U.S. 975
(1972).
III. Senate Bill 110.
The jury convicted Rabbitt on three counts in relation to
S.B. 110. One was a violation of the mail fraud’! statute and
11 Relevant provisions of the mail fraud statute, 18 U.S.C. § 1341
(1976), read:
Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property by
— A-11l —
two were Hobbs Aci violations.'* Rabbitt makes the following
challenges to these convictions: (1) that the Government's evi-
dence was insufficient to establish mail fraud because the use
of mails was not reasonably foreseeable; (2) that the district
court erred in overruling his motion for judgment of acquittal on
one Hobbs Act count as there was no evidence to establish an
effect on interstate commerce; and (3) that the court erred in
refusing to give any instruction on this theory of defense. We
separately consider these claims.
A. Mail Fraud—Use of Mails.
To establish a violation of the mail fraud statute, 18 U.S.C.
§ 1341, the Government must prove “(1) a scheme to defraud,
and (2) [a] mailing * * * for the purpose of executing the
scheme.” Pereira v. United States, 347 US. 1, 8 (1954);
United States v. Brown, 540 F.2d 364 (8th Cir. 1976). In
United States v. Brown, supra, 540 F.2d at 375-76, the court
noted “the mailing element of the crime * * * consists of two
requirements: (1) that the defendant caused the use of the
mails and (2) that this use was ‘for the purpose of executing’
the deceptive scheme.” The defendant need not specifically in-
tend the use of the mails if such use was a reasonably foreseeable
possibility in furthering the transaction. Pereira v. United States,
means of false or fraudulent pretenses, representations, or
promises, * * * for the purpose of executing such scheme or
artifice or attempting to do so, places in any post office or au-
thorized depository for mail matter, any matter or thing whatever
* * * or takes or receives therefrom, any such matter or thing,
or knowingly causes to be delivered by mail * * * any such mat-
ter or thing, shall be fined * * * or imprisoned * * *.
12 Relevant provisions of the Hobbs Act, 18 U.S.C. § 1951
(1976), read:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in com-
merce, by * * * extortion or attempts or conspires to do so * * *
shall be fined * * * or imprisoned * * *.
— A-12 —
supra, 347 U.S. at 8-9. See also United States v. Maze, 414 US.
395, 399 (1973).
Rabbitt contends the use of the mails in connection with
S.B. 110 was not reasonably foreseeable and consequently he
should have been acquitted of the mail fraud charge relating to
S.B. 110.'* We disagree.
The Government established that the Motor Car Dealers
Association of Greater Kansas City mailed a letter containing
a $5,000 check to Lindenbusch. The check, which Worn deliv-
ered to Connaghan, was a contribution toward Connaghan’s
$20,000 fee. Worn served as a liaison for a statewide organi-
zation. He hired Connaghan on behalf of the entire group. A
request for a $20,000 fee from an organization made up of
members residing in different areas of the state would likely
produce mailing of checks to make up the fee fund.
We think the evidence was sufficient to establish the mailing
charged in the indictment as reasonably foreseeable, and we
reject Rabbitt’s claim to an acquittal on count XIV.
B. Hobbs Act—Effect on Commerce.
In United States v. Brown, supra, 540 F.2d at 371 (1976),
we asserted that the three essential elements of an offense under
18 U.S.C. § 1951 were: “(1) that the defendant induced his
victims to part with property; (2) that he did so by extortion-
ate means; and (3) that interstate commerce was thereby af-
fected.”
Rabbitt contends that because Lindenbusch’s $5,000 pay-
ment was in the form of a personal check drawn on his private
13 Rabbitt does not attack the sufficiency of the evidence of a
fraudulent scheme.
a < \ po
account, interstate commerce was not affected.'* Additionally,
any commerce connection was too remote to bring Rabbitt’s
conduct within the Hobbs Act. We reject this attack.
The plain language of the Hobbs Act proscribes extortion
which “in any way or degree obstructs, delays, or affects com-
merce.” See note 12 supra. The Supreme Court has stated
that the Hobbs Act “speaks in broad language.” Stirone v.
United States, 361 U.S. 212, 215 (1960). The connection with
interstate commerce need only be slight. See United States v.
Culbert, 98 S.Ct. 1112 (1978). A threatened effect on inter-
state commerce is sufficient to bring the statute into play.
United States v. Staszcuk, 517 F.2d 53, 59 (7th Cir.), cert.
denied, 423 U.S. 837 (1975). If the resources of a business
which affects interstate commerce are depleted and diminished
as a result of extortion, then interstate commerce is affected.
United States v. Biondo, 483 F.2d 635, 640 (8th Cir. 1973),
cert. denied, 415 U.S. 947 (1974).
There can be no doubt that the Missouri State Automobile
Dealers Association was involved in interstate commerce. The
subject matter of S.B. 110 was the method of taxation of
dealers’ inventories of new cars which presumably had come
through interstate distribution channels. Ben Lindenbusch,
president of the association, testified he had participated in
the decision to hire Connaghan and it became his duty to raise
Connaghan’s fee. In advancing the $5,000 payment, Linden-
busch was acting on behalf of the auto dealers association. Sub-
sequently, the member automobile dealers reimbursed Linden-
busch. The association members were engaged in interstate
commerce and their contributions were related to their business
of selling automobiles. Lindenbusch’s transaction as an agent
for this organization establishes sufficient nexus with inter-
state commerce to bring the extortionate practice within the
14 Rabbitt makes no attack on the adequacy of the Government's
proof on the first two elements.
on han
Hobbs Act. See United States v. Brown, 540 F.2d 364 (8th
Cir. 1976); United States v. Mazzei, 521 F.2d 639 (3d Cir.),
cert. denied, 423 U.S. 1014 (1975); United States v. Staszcuk,
517 F.2d 53 (7th Cir. 1974), cert. denied, 423 U.S. 837
(1975); United States v. Biondo, 483 F.2d 635 (8th Cir.
1973), Cert. denied, 415 U.S. 947 (1974).
C. Jury Instructions—Theory of Defense.
“A defendant is entitled to an instruction on his theory of the
case if there is evidence to support it and a proper request is
entered.” United States v. Brown, 540 F.2d 364, 380 (8th
Cir. 1976). However, the court is entitled “to use its own
language in framing instructions.” United States v. Nance, 502
F.2d 615, 619-20 (8th Cir. 1974), cert. denied, 420 U.S. 926
(1975). Consequently, it is sufficient if the charge to the jury
adequately and correctly covers the substance of the requested
instruction. See United States v. Brown, supra; United Staes v.
Nance, supra.
Rabbitt contends that the district court erred in refusing to
give any instruction on his theory of defense as to the counts
dealing with S.B. 110. In refusing to give Rabbitt’s proffered
instruction,'® the court stated, “I don’t believe it is necessary to
give it. I think it is covered by the instructions presently to be
given by the court.”
The instructions to the jury, taken as a whole, adequately
advised that to convict on the S.B. 110 transaction the jury
needed to find beyond a reasonable doubt that Rabbitt ex-
torted money through Worn with the aid of John Connaghan.
15 Rabbitt offered the following instruction:
Unless you are convinced beyond a reasonable doubt that the
defendant directed Gene Worn to John Connaghan so that Con-
naghan could extort money from the automobile dealers, you
— find the defendant not guilty as to Counts XII, XIII and
~~
We find no error in these instructions nor in the court's
failure to adopt the tendered instruction of Rabbitt on this
issue. See United States v. Brown, supra, 540 F.2d at 380-81,
United States v. Barrett, 505 F.2d 1091, 1107 (7th Cir. 1974),
cert. denied, 421 U.S. 964 (1975); United States v. Nance,
supra, 502 F.2d at 619.
IV. Berger-Field.
Rabbitt’s conviction on eleven counts relating to his associa-
tion with Berger-Field included ten counts under the mail
fraud statute and one under the Hobbs Act. Rabbitt contends
that the district court erred in overruling his motion for judg-
ment of acquittal on these counts because the Government’s
evidence failed to prove either mail fraud or extortion under the
Hobbs Act. We agree and set aside these convictions.
A. Mail Fraud—Sufficiency of the Evidence.
According to this court in United States v. Brown, 540 F.2d
364, 374 (8th Cir. 1976), the mail fraud statute can be uti-
lized to prosecute a public official “if he devises a scheme
whereby bribes or kickbacks are accepted in the course of con-
duct of his office, since such conduct operates to defraud the
citizens of his government of their right to his honest and
faithful service.”
This concept offers a broad interpretation of the mail fraud
statute applicable in situations in which the official commits
fraud in connection with an affirmative duty of his office. The
concept of fraud upon the public may clearly fall within the
anibit of the mail fraud statute where dishonest conduct by a
public official directly implicates the functions and duties of
that official’s public office. Whether a showing of dishonesty on
the part of a state official, outside his official duties, with no
financial loss to the state constitutes a fraud upon the public
— A-16 —
and thereby statutory mail fraud is, in our judgment, highly
questionable. Every case of breach of public trust and mis-
feasance in office in connection with which some mailing has oc-
curred does not and cannot fall within the confines of the mail
fraud statute. In the instant case, we hold the evidence does
not establish mail fraud within the federal statute.
The indictment charges, in essence, that Rabbitt defrauded
the citizens of Missouri by accepting a ten percent commission
on architectural contracts awarded to the Berger-Field firm
and concealing or failing to disclose his interest in those con-
tracts. The evidence clearly shows that Rabbitt acted uneth-
ically and violated his canons as a lawyer,’® a candidate dis-
closure statute requiring disclosure of fees received during the
preceding twelve months,’ and possibly a Missouri law render-
16 Rule Four, DR8-101, Code of Professional Responsibility, Mis-
souri Supreme Court Rules, states:
Action as a Public Official
(A) A lawyer who holds public office shall not:
(1) Use his public position to obtain or attempt to ob-
tain, a special advantage in legislative matters for him-
self or for a client under circumstances where he
knows or it is obvious that such action is not in the
public interest.
(2) Use his public position to influence or attempt to
ee a tribunal to act in favor of himself or of a
client.
(3) Accept any thing of value from any person when
the lawyer knows or it is obvious that the offer is for
2. aaa of influencing his action as a public
re) ’
17 Mo. Ann. Stat. § 130.035 (Supp. 1978) which became ef-
fective January 1, 1975, provides:
1. Every candidate shall file reports in writing [with the Mis-
souri Secretary of State] * * *. Each report shall set forth:
o * -
(5) A specific listing of the source, by name and address, of
any gifts or income in excess of one hundred dollars received by
the candidate or the candidate’s spouse or minor children during
ano TT
ing “partiality” or abuse in public office unlawful.'* But such
violations, although bearing on intent to defraud, do not in and
of themselves establish the substantive crime of mail fraud un-
der 18 U.S.C. § 1341.
In support of its argument that Rabbitt’s conduct consti-
tuted mail fraud, the Government relies on several cases in
which the courts employed various combinations of factors to
establish a scheme to defraud cognizable under the mail fraud
statute. In each of these cases, the conduct deemed fraudulent
deprived the public either of some potential tangible gain such
as favorable contracts,'® or of its right to honest and fair
the preceding twelve months or the time of the last report, which-
ever is later, and
(6) A specific listing of the source, by name and address, of
any gifts, salaries, fees, or other income which for the twelve-
month period preceding the filing date individually or in the
a exceeds five hundred dollars which has been paid on
behalf of or for services rendered by the candidate to any sole
proprietorship, partnership or corporation in which the candidate
or the candidate’s spouse holds an interest of ten percent or
more.
1% Mo. Ann. Stat. § 558.110 (1953) (repealed 1977, effective
1979) provides:
Every person exercising or holding any office of public trust
who shall be guilty of willful and malicious oppresion, partiality,
misconduct or abuse of authority in his official capacity or under
color of his office, shall, on conviction, be deemed gvilty of a
misdemeanor.
1° In United States v. Barrett, 505 F.2d 1091 (7th Cir.), cert.
denied, 421 U.S. 964 (1974), a county clerk in Chicago, who was
responsible for obtaining voting machines and the insurance on them,
received commissions on the insurance policies purchased by the
county at his discretion. The only companies allowed in the pool to
compete for contracts were those willing to supply kickbacks. The
court speculated the city might have gotten lower rates equal to the
amount of the kickback.
— A-18 —
dealing in the conduct of the office in question,?° or of its right
to disclosure of the officer’s interest in the transaction at issue.”
We find none of these factors present in this case. The state
officials who awarded architectural contracts did so on merit.”
There is no evidence that Rabbitt’s use of his friendship, posi-
tion, and influence to aid Berger-Field in obtaining contracts
resulted in inferior work, greater expense, or any other tangible
loss to the citizens or state.
We also find no evidence that Rabbitt’s conduct deprived
the citizens of their right to honesty and fairness in the conduct
of his official duties. Rabbitt did not, in his official capacity,
control the awarding of state contracts to architects. There is no
evidence that Rabbitt failed to carry out the duties and responsi-
bilities of his legislative office or leadership positions for the
20 In United States v. Brown, 540 F.2d 364 (8th Cir. 1976), city
building commissioner Brown's office regulated the awarding of con-
tracts. Brown controlled the granting or denying of building permits
and safety inspections to the people making payoffs.
In United States v. Keane, 522 F.2d 534 (7th Cir. 1975), cert.
denied, 424 U.S. 976 (1976), an alderman in the City of Chicago,
unbeknown to his constituents, used inside information to purchase
property and subsequently voted favorably on action for improvement
or sale of properties owned by him.
21 In United States v. Bush, 522 F.2d 641 (7th Cir. 1975), cert.
denied, 424 U.S. 977 (1976), the press secretary and director of
public relations in the office of the mayor of the City of Chicago
owned part interest in the company which he recommended and
which ultimately received several city ing contracts. Bush
was under a duty imposed by Illinois state law to disclose his interest
in any city contract. Additionally, a standard of conduct barred city
officials from personally benefiting from city business. Bush con-
cealed his interest in the advertising contracts made within the City
of Chicago.
In United States v. Brown, supra note 20, Brown was under a duty
imposed by state statute to disclose his interest in city contracts or
work performed by the city.
22 See note 4 supra.
— A-19 —
sake of Berger-Field. In this respect, the case resembles
United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976), in
which the chief plumbing inspector for the City of St. Louis
accepted unsolicited gratuities from plumbing contractors. While
McNeive benefited from his office in a reprehensible way, his
conduct neither injured the Government nor affected the per-
formance of his duties and therefore did not violate federal law.
We held that McNeive did not commit fraud by defrauding
citizens of a right to “honest and faithful service.”**
Finally, Rabbitt was under no affirmative duty to disclose
his interest. The Government refers to no standard of conduct
applicable to legislators which clearly required disclosure of
Rabbitt’s interest in the Berger-Field contracts.24 The candidate
disclosure act applied to Rabbitt as a candidate for Lieutenant
Governor, not to his services as a legislator. Thus, he did not
deprive the citizens of any right to disclosure.
To affirm the convictions on the Berger-Field mail fraud
counts would mean expansion of the statute beyond its applica-
tion in prior political corruption cases. This we refuse to do.
2% In rejecting the Government's contention (which relied on sev-
eral cases cited by the Government on this appeal), Chief Judge
Gibson, writing for the panel, said:
McNeive’s acceptance of these tips could hardly be char-
acterized as a scheme or artifice. * * * The record reflects that
the City of St. Louis did not suffer any tangible or pecuniary
injury from McNeive’s practice since it received all the money
to which it was entitled. There is no evidence that McNeive
deviated from the plumbing code in any respect; on the contrary,
many of the Government’s witnesses described McNeive as a
strict enforcer of the code. [536 F.2d at 1251-52.]
24 We recognize that United States v. Brown, supra note 20, con-
tains language suggesting that public officials in Missouri have an ob-
ligation to disclose any interest in contracts. The court in Brown
relied, however, on a statute requiring disclosure by city officials.
That statute is not applicable to the present case.
— A-20 —
We hold that Rabbitt’s motion for judgment of acquittal on
mail fraud counts I through X should have been granted. Ac-
cordingly, we reverse his convictions on those counts.
B. Hobbs Act—Sufficiency of the Evidence.
The statutory definition of extortion is “the obtaining of prop-
erty from another, with his consent, induced by wrongful use of
* * * fear, or under color of official right.” 18 U.S.C. § 1951.
The evidence must establish the payment was made under some
form of compulsion. See United States v. Adcock, 558 F.2d
397, 403 (1977). However, bribery and extortion need not
be mutually exclusive. See United States v. Hathaway, 534 F.2d
386, 393 (1st Cir.), cert. denied, 429 U.S. 819 (1976). The
existence of compulsion is determined by the mental state of
the extorted party. United States v. Adcock, supra, 558 F.2d
at 403. Rabbitt argues the Government failed to prove he
compelled the victims to part with money either out of fear or
“under color of official right.”
1. Fear.
The Government alleges extortion by fear of economic injury.
Fear of economic loss is sufficient to constitute extortion,
see Callahan v. United States, 223 F.2d 171, 175-76 (8th Cir.),
cert. denied, 350 U.S. 862 (1955); Bianchi v. United States,
219 F.2d 182 (8th Cir.), cert. denied, 349 U.S. 915 (1955),
even if the interest threatened is only an anticipated one. See
United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert.
denied, 405 U.S. 936 (1972).
The record lacks any substantial evidence of “fear” as a basis
for the Berger-Field payments to Rabbitt.2° Neither did the
25 At trial, each of the Berger-Field officials was asked why the
firm made the 10 percent payments. Hurley stated the firm members
— A-21 —
firm believe that state contracts could not be acquired without
Rabbitt’s introduction. Indeed, evidence indicated Berger-Field
had secured state contracts prior to its agreement with Rabbitt
and acquired other state contracts during the years here in ques-
tion without Rabbitt’s assistance. The evidence further indicates
Berger-Field was a willing collaborator who sought and paid for
Rabbitt’s good words to influential people, thus giving Berger-
Field access on a friendly basis to state officials who awarded
architectural contracts on merit. The principals of Berger-Field
all expressed anger, not fear, at hearing of Rabbitt’s ten percent
demand. One associate described the demand as “poor thanks”
after their consistent political contributions and support. Never-
theless, they decided to pay.
2. Under Color of Official Right.
Extortion “under color of official right” incorporates common
law extortion, the taking of money by a public official not due
him or his office for the performance or nonperformance of an
official function. The term includes the misuse of one’s office
to induce payments not due the person or his office. United
States v. Hathaway, supra, 534 F.2d at 394. The official need
not control the function in question if the extorted party pos-
sesses a reasonable belief in the official's powers. See United
States v. Hathaway, supra, 534 F.2d 386; United States v.
Mazzei, supra, 521 F.2d 639; United States v. Braasch, 505
F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975).7®
believed if they did not pay Rabbitt, he would not introduce them,
and they would have to find someone else. Field stated payments
were made to a politician in exchange for his help. Torno stated
that he thought failure to pay Rabbitt “was the same as failure to
obtain any work from the state government * * * at least through
that source.” Berger stated Rabbitt had said he would help the firm
and “do what he could to get the firm state work and charge a ten
percent fee.” Berger stated he thought if the firm did not pay it
would not get Rabbitt’s assistance “helping * * * get state work.”
26 Hathaway involved a no-bid personal service contract over
which the defendant had little, if any, control. However, the evidence
— A-22 —
In the present case, the Government does not contend that
Rabbitt possessed actual power to award contracts for archi-
tectural sgrvices within his legislative powers or that Rabbitt
so intimated. The Government argues that Rabbitt possessed
the apparent power to award contracts and that Berger-Field be-
lieved in Rabbitt’s power to secure contracts for the firm. The
evidence, however, does not support that argument. All the prin-
cipals of Berger-Field knew Rabbitt did not award contracts in
his official capacity. Each architect knew the most Rabbitt
could do was recommend them to state contractors as qualified
architects and thereby gain them a friendly ear. Moreover, while
Rabbitt’s influence obviously helped these architects obtain state
jobs, no testimony established that any state contracting officer
awarded any contract to Berger-Field because of Rabbitt’s in-
fluence or that Berger-Field believed Rabbitt’s introduction was
enough to secure the work. The Government failed to prove
clearly indicated the extorted party had a reasonable belief he had to
pay the extorted amount in order to secure any contract. The defend-
ant represented he was able to control the contracting involved.
The facts in Mazzei indicate defendant displayed an intimate knowl-
edge of the state leasing procedure. At an initial mee! g between
defendant and Kelly, a person seeking to lease space ' ‘he Bureau
of State Lotteries, defendant stated: “[I]t was the practice on all
state leases that a ten percent of the gross amount of the rentals would
be paid to a senate finance re-election committee.” 521 F.2d at 641.
During the course of a second meeting, on Kelly’s premises, a repre-
sentative of the Department of Property and Supplies appeared to
inspect the premises. Defendant took an active part in the leasing
process. He suggested the rental rate to be included in Kelly’s pro-
posal. When the proposal came in with a lower rate, defendant called
Kelly and told him to include janitorial services and to charge the
suggested rate. Without ever having submitted a higher proposal,
Kelly was awarded the lease at the higher rate and requiring janitorial
services. Ample evidence exists to support the conclusion that Kelly
pros i a reasonable belief defendant controlled the awarding of
state leases.
In Braasch, a police commander extorted protection money from
liquor establishments. He controlled vice raids. His power to request
protection money to place a tavern on a list of those guaranteed not
to be harassed clearly arose from his official duties.
— A-23 —
Berger-Field entertained a reasonable belief Rabbitt possessed
effective control over the award of architectural contracts neces-
sary to establish extortion “under color of official right” in vio-
lation of the Hobbs Act.?*
The evidence received on this count is distinguishable from
that on the S.B. 110-Hobbs Act counts. Control over legisla-
tion such as S.B. 110 was at the heart of Rabbitt’s responsibility
in his position as a legislator and House Speaker. We hold
Rabbitt’s motion for judgment of acquittal on Hobbs Act count
XI should have been granted. Accordingly, we reverse his con-
viction on this count.
V. Fair Trial.
A. Evidence of Similar Acts.
The Government questioned Rabbitt and two other witnesses
about money paid to Rabbitt’s law firm to gain his support of —
other legislation. Some of these payments were disguised as
retainers, with no law work performed—similar to the Berger-
Field “legal retainers.” Rabbitt contends the admission of this
testimony into evidence denied him a fair trial. We do not
agree.
Federal Rule of Evidence 404(b) permits evidence of other
acts, similar to the conduct charged in the indictment, to prove
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.2* See 10 Moore’s
Federal Practice 4 404.21[2].
27 In view of our holding it is unnecessary to reach Rabbitt’s con-
tention that interstate commerce was not affected.
28 Rule 404(b) reads:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
_— <<"
The evidence in question bore on issues relating to Rabbitt’s
method of obtaining money from parties interested in legisla-
tion and his scheme of laundering the funds as retainers. See
United States v. Adcock, supra, 558 F.2d 397. The admission
of such evidence rests within the discretion of the trial judge.
10 Moore's Federal Practice 4 404.21[2]. We have reviewed
the record and find no error in admitting this questioned tes-
timeny. The district -ourt refused admission of testimony of
similar import regarding other incidents and, in our judgment,
exercised extreme fairness to Rabbitt in ruling upon evidence
of the kind here ir question.
B. Standards of Conduct.
Rabbitt contends the admission of two state statutes and
a section of the Attorney’s Code of Professional Responsibility*®
into evidence denied him a fair trial.*°
According to this court in United States v. Brown, supra,
540 F.2d 381, state statutes, ordinances, and codes establish-
ing a standard of conduct are admissible evidence in a prosecu-
tion of a public official for mail fraud. An official’s course
of conduct in the face of such statutes is relevant to the issue
of whether that official possessed the requisite intent to de-
fraud the citizens of the state. See also United States v. Keane,
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or acci-
dent.
29 See notes 16, 17, 18 supra.
30 Rabbitt’s argument concentrates on the Berger-Field mail fraud
counts which, in view of our ruling, need not be discussed. However,
as we affirm the S.B. 110 mail fraud count, some comment is war-
ranted.
Fan A el do aa a Re
— A-25 —
supra, 522 F.2d at 553-57. The introduction of the statutes
was relevant evidence on the S.B. 110 mail fraud count. We
see no reason to deviate from the Brown standard in this case.
C. Rabbitt’s Correcting of Testimony.
Rabbitt contends the court erred in not permitting him to
correct an error in his testimony regarding the source of some
money deposited in his checking account. We find no merit
in Rabbitt’s argument.
Rabbitt indicated the source of the deposited money was
a bond he had cashed. Evidence indicated proceeds from the
bond, in the form of an endorsed check, were used to purchase
a coin collection and not deposited in his special account as
Rabbitt had claimed. The court permitted Rabbitt to explain
that he had inadvertently spoken falsely. Rabbitt apologized
to the Government, the jury, and the court. Rabbitt was al-
lowed to make his point; he was not permitted to continue
going over it. Within the context of the entire trial, we cannot
say the court’s ruling constituted prejudicial error.
D. Hearsay Evidence.
In his direct testimony, Rabbitt asserted that part of the
monies paid him by Connaghan represented a fee for services ren-
dered in connection with Connaghan’s representation of one
Wayne England, who had sustained bodily injuries in an auto-
mobile accident. Connaghan served as England’s attorney of
record and settled the case for more than $20,000. In disput-
ing the Government’s evidence that a check for $2,000 repre-
sented the automobile dealers’ payoff on S.B. 110, Rabbitt tes-
tified that he gave advice and counsel to England and that
Connaghan paid him the $2,000 as his share of the fee earned
on settlement. England died prior to this trial.
— A-26 —
Wayne England’s son, Charles, on rebuttal for the prosecu-
tion, testified that he had spoken to his father hundreds of times
about the injury case and that he had never heard his father
mention Rabbitt as his attorney. This testimony was admitted
over Rabbitt’s objection as hearsay. Mrs. Wayne England testi-
fied and supported the Government’s position that Rabbitt had
never represented her or her husband in the accident suit. Her
testimony was received without objection.
Assuming without deciding that Charles England’s testimony
constituted inadmissible hearsay, in light of Mrs. England’s tes-
timony that Rabbitt never represented the England family on
legal matters, especially not on her personal claim and her
husband’s as a result of the automobile accident, we must deem
the error, if any, harmless. See United States v. Wells, 525
F.2d 974, 976 (Sth Cir. 1976).
We have carefully considered all other challenges made by
Rabbitt to the fairness of the trial and find them to be without
substantial merit.* The record reflects that an able, conscien-
tious judge fairly and calmly presided over this lengthy, hotly
contested case, ably tried by counsel for the prosecution and
the defense.
We also note that except for challenges to the fairness of
the trial and rulings denying severance of counts, Rabbitt does
not otherwise challenge the conviction on count XV generated
by the events surrounding the overweight truck bill, H.B. 1336.
31 Both the record and the brief are unclear as to whether the issue
challenging the jury instruction in the disjunctive on extortion under
the Hobbs Act is confined to count XI involving Berger-Field or in-
cludes counts XII and XIII involving $.B. 110. Nevertheless, the
indictment alleged and some evidence supported extortion by either
fear or under color of official right in counts XII and XIII. Conse-
quently, the trial court did not err in giving this instruction.
_—
VI. Summary.
We affirm the convictions for mail fraud and extortion un-
der the Hobbs Act generated by the S.B. 110 situation, counts
XII, XIII, and XIV. We affirm the conviction for attempted
extortion under the Hobbs Act generated by the H.B. 1336 situ-
ation, count XV. We reserve the convictions for mail fraud
and extortion under the Hobbs Act, generated by the Berger-
Field situation, counts I and XI inclusive. ;
We remand to the district court for entry of modified judg-
ments. We deem it appropriate to vacate all sentences to en-
able the district court to resentence Rabbitt on the convictions
which we have affirmed.
Affirmed in part, reversed in part, and remanded for further
proceedings.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
o Dw
APPENDIX B
United States Court of Appeals
For the Eighth Circuit
No. 77-1677 SO ee Term, 1978
United States of America, Appeal from the
Appellee, United States Dis-
a . trict Court for the
; , Eastern District of
Richard J. Rabbitt, Missouri
Appellant. |
The Court having considered petitions for rehearing en banc
filed by counsel for appellant and counsel for appellee and, be-
ing fully advised in the premises, it is ordered that the petitions
for rehearing en banc be, and they are hereby, denied.
Considering the petitions for rehearing en banc as petitions
for rehearing, it is ordered that the petitions for rehearing also
be, and they are hereby, denied.
October 27, 1978
— A-29 —
APPENDIX C
United States Court of Appeals
For the Eighth Circuit
No. 77-1677 September Term, 1978
United States of America,
Appeal from the
Sunt United States Dis-
ves . trict Court for the
Eastern District of
Richard J. Rabbitt, a ——
issouri,
Appellant. |
On consideration of motion of appellee for stay of issuance
of mandate and motion of appellant for stay of issuance of man-
date in this cause, it is now here ordered that the issuance of
the mandate herein be, and the same is hereby, stayed for a
period of thirty days from this date. If within that time there
is filed with the Clerk of this Court a certificate of the Clerk
of the Supreme Court of the United States that a petition for
writ of certiorari has been filed, the stay hereby granted shail
continue until the final disposition of the case by the Supreme
Court.
And it is further ordered by this Court that appellant's mo-
tion to amend mandate in this cause be and the same is hereby
denied.
November 14, 1978
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.