Petition — McPartlin v. United States

No.

In the i

Supreme Court of the United States

October TERM, 1978

VALENTINE JANICKi, EDWIN T. BULL,

and ROBERT F. McPARTLIN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITIONERS’ JOINT APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

HARVEY M. SILETS

SILETS AND MARTIN, LTD.

10 South LaSalle Street

Chicago, Illinois 60603

312/263-5800

Attorney for Petitioner,

VALENTINE JANICKI

WILLIAM J. HARTE

111 West Washington Street

Chicago, Illinois 9602

312/726-5015

Attorney for Petitioner,

Ropert F. McParruin

EDWARD J. CALIHAN, JR.

53 West Jackson Boulevard

Chicago, Llinois 60604

312/922-3113

Attorney for Petitioner,

Kpwin T. Buti

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINO'S 60618 (312) 525-6581

INDEX TO APPENDIX

Opinion of the Seventh Cireuit 220022... App. 1

Order Denying Petition for Rehearing —........000.00.. App. 78

In the

Supreme Court of the United States

Octosper Term, 1978

No.

VALENTINE JANICKI, EDWIN T. BULL,

and ROBERT F. McPARTLIN,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITIONERS’ JOINT APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT |

~@«

APPENDIX

is

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 77-2258, 77-2259, 77-2274, 77-2275 and 77-2280

Unirep States or AMERICA,

Plaintiff-Appeliee

Vv.

Roserrt McParriyr, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 76 CR 779—John F. Grady, Judge.

Argued September 29, 1978—Decided March 26, 1979

Before Pett, Sprecuer and Tone, Circuit Judges.

Tone, Circuit Judge.

The appellants were convicted, in a nine-week jury trial,

of conspiring to violate the wire and travel fraud statutes

and of substantive violations of those statutes.

The indictment charged that defendant Frederick B.

Ingram,' chairman of the board of the Louisiana-based

1 We use the spelling of Ingram’s first name that appears in the

indictment (Frederick) rather than the spelling that appears in his

brief (Frederic).

App. 2

Ingram Corporation, had paid defendant Robert F. Me-

Partlin, an Illinois legislator, defendant Valentine Janicki,

a trustee for the Metropolitan Sanitary District, and others

more than $900,000 to secure for the Ingram Corporation

a multi-million dollar sludge-hauling contract with the Dis-

trict. Defendants Franklin H. Weber, a businessman, and

Edwin T. Bull, president of a towing company, were al-

leged to be intermediaries through whom many of the pay-

ments were made. William J. Benton, vice president of

Ingram Corporation, was an unindicted co-conspirator who

played a major role in the conspiracy and testified as a

witness for the prosecution. The defendants were con-

victed of numerous violations of the Travel Act, 18 U.S.C.

§ 1952, and the Wire, Radio, Television Fraud Act, 18

U.S.C. § 1348, and of conspiring to violate those acts in

violation of 18 U.S.C. § 371. The jury acquitted three other

defendants, E. Bronson Ingram, brother of Frederick B.

Ingram and an officer of Ingram Corporation, Chester

Majewski, a Metropolitan Sanitary District trustee, and

Bart T. Lynam, General Supervisor of the Sanitary Dis-

trict.?

The defendants urge as grounds for reversal the district

courts’ denial of motions for severance, a ruling on the

alleged withholding by the prosecution of evidence favor-

able to the defendants until the beginning of the trial,

rulings admitting and excluding evidence, certain instruc-

tions to the jury, and other alleged trial errors. In this

portion of the opinion the facts are stated and the issues

arising from the denial of severance are decided. Judge

2 The indictment also charged appellants McPartlin, Weber, and

_Janicki with filing false income tax returns in violation of 26 U.S.C.

§ 7206(1). The tax counts against McPartlin and Weber were dis-

missed before trial. Janicki was convicted of tax violations, but

raises no issue on appeal with respect thereto.

App. 3

Pell and Judge Sprecher have written, and I concur in, the

portions of the opinion dealing with the other issues.

The Facts

The Sanitary District is a municipal corporation with

primary responsibility for disposing of sewage from Chi-

eago and surrounding areas. The District’s business is

governed by an elected Board of Trustees * and managed

by a professional staff, which from time to time makes

recommendations to the Board concerning major under-

takings of the District.

The Sanitary District operates a sewage treatment plant

in Stickney, Illinois. Until 1971 the sludge produced as a

by-product was disposed of by pumping it into nearby

lagoons. Early that year, because the lagoons were rapidly

being filled and efforts to clean them had failed, the Dis-

trict announced plans to have the sludge transported to

Fulton County, Illinois, about 160 miles southwest of

Stickney, and solicited bids on the project, which were due

on March 19, 1971.

Viewed in the light most favorable to the prosecution,

the evidence showed that Benton, acting with the knowl-

edge and complicity of Frederick Ingram and through

intermediaries Bull and Weber, bribed MePartlin and

Janicki to cause the sludge-hauling contract to be awarded

to Ingram Corporation and one of its subsidiaries, and

later bribed the same officials to secure favorable treatment

under the contract and modifications of the contract. The

details were as follows:

When the District solicited bids on the sludge-hauling

project, defendant Bull assisted Frank Oberle, an employee

3JIn 1975 the name was changed to “Board of Commissioners.”

App. 4

of Ingram Contractors, Ine., a wholly owned subsidiary of

Ingram Corporation, in investigating the new proposal.

During the week before the bids were to be submitted, Bull

visited Robert Howson, a vice president of Ingram Con-

tractors, Inc., in New Orleans, Louisiana, and told Howson

that if Ingram Corporation expected to secure the contract,

it would have to make a ‘‘political contribution.’’ Howson

responded that he was not in that sort of business, but

then took Bull to meet William J. Beuton, vice president

of Ingram Cornoration and president of Ingram Contrac-

tors, Ine.

Ingram Corporation, Burlington Northern, Inc., and the

Atchison, Topeka and Santa Fe Railway Company were

the leading contenders among those submitting bids on

March 19, 1971. To negotiate with these three bidders, the

Sanitary District established a committee, which met with

representatives of the bidders for the first time on March

23, 1971.

That evening Bull, Oberle, and Benton met in Benton’s

hotel room, where they were later joined by defendant

Weber. After Bull had introduced Weber to Benton, Bull

and Oberle left the room. Weber then told Benton that if

Ingram Corporation wanted the sludge-hauling contract,

it would have to make a $250,000 ‘‘political contribution. ’’

Benton replied that he would have to get approval from

his superiors. After agreeing to meet Benton the next day,

Weber left.

Benton then telephoned defendant Frederick Ingram to

inform him of Weber’s ‘‘political contribution’’ proposal.

Ingram agreed, provided that the contribution could be

added to the cost of the contract.

On March 24, 1971, Benton again met with Bull, who

expressed his belief that if the Ingram Corporation ac-

cepted Weber’s proposal, it would get the contract. Bull

App. 5

also told Benton that if the corporation did get the con-

tract, he wanted $100,000 in addition to anything it paid

Weber. At another meeting later in the day, Weber asked

Benton to open an account at a Chicago bank to demon-

strate Ingram Corporatien’s ‘‘good faith.’’ That same day

Benton opened an account at the First National Bank of

Chicago.

The following week, Weber called Benton and told him

that Burlington Northern, Ine. had offered to make a

$295,000 political contribution. According to Weber, it was

therefore necessary for Ingram Corporation to raise its

contribution to $450,000, including a $150,000 cash payment

before the contract was awarded. Again Benton consulted

Frederick Ingram, who again agreed on condition that the

contribution could be added to the contract price. Benton

communicated Ingram Corporation’s approval to Weber,

but said that the corporation could not raise $150,000 in

cash on such short notice. Weber replied that some of the

$150,000 had to be paid by April 3, 1971.

On April 3, 1971, Weber and MePartlin went to Ben-

ton’s Chicago hotel room, where Weber introduced Me-

Partlin to Benton as the man who handled all political

contributions for the Democratic Party in Illinois. Me-

Partlin assured Benton that Ingram Corporation would

receive at least $21,500,000 in total revenue from the sludge-

hauling contract. Benton gave MecPartlin $75,000 in cash,

including several one thousand dollar bills. On April 6,

1971, Weber deposited nine one thousand dollar bills in

the account of one of his defunct corporations, Illinois

Southern Materials.

On April 6, 1971, Weber telephoned Benton, asking

for $25,000 in cash immediately to secure the coopera-

tion of three Sanitary District staff members. When Ben-

ton protested that he could not deliver $25,000 cash on

App. 6

such short notice, Weber suggested that Ingram Cor-

poration issue a check in that amount to Bull Towing

Company, which Benton caused to be done the next day.

On April 8, 1971, Edwin Bull deposited the Ingram check

in the account of Bull Towing Company and, at the same

time, withdrew $25,000 in cash from the account.

The Sanitary District requested the three bidders on

the sludge-hauling contract to submit new bids by April

15, 1971. Santa Fe declined. Burlington Northern sub-

mitted a revised bid of $18,300,000. Oberle submitted In-

gram Corporation’s revised bid of $16,990,000, after which

he returned to his hotel room, where he received a tele-

phone call from either Benton or Weber.‘ The caller

instructed him to go to the bar at the Continental Plaza

Hotel to meet defendant Janicki, which Oberle did. At

the meeting in the bar Janicki teld Oberle to raise In-

gram’s revised bid to $17,990,000. Oberle then returned to

his hotel room and telephone Benton for advice. Benton

instructed Oberle to attend the Sanitary District negoti-

ating committee meeting scheduled for that afternoon.

While attending the meeting, Oberle received telephone

instructions from Benton to raise the Ingram bid by

$1,000,000 to $17,990,000. Oberle did so.

On April 22, 1971, the Sanitary District Board of Trus-

tees voted to award the contract to Ingram Corporation.

Between that date and May 12, 1971, a contract was drafted

by members of the Sanitary District staff and Ingram Cor-

poration representatives, including John Donnelly, presi-

dent of Ingram Barge Company, the Ingram Corporation

subsidiary that would transport the sludge under the

contract. The staff insisted on a liquidated damages

* Since Benton did not meet Janicki until a month later, the caller

was probably Weber.

App.7

clause authorizing the District to prescribe the amount

of sludge to be transported in any 24-hour period and pro-

viding that Ingram Corporation would be assessed a pen-

alty for each ton of sludge not transported, as prescribed,

in any 24-hour period. Donnelly, after initially refusing

to agree to the provision, discussed it with Benton, who

told him to agree to it. Only after talking with Frederick

Ingram, however, did Donnelly accede to inclusion of the

liquidated damages clause.

The contract provided that Ingram Corporation would

construct additions to the treatment facilities at Stick-

ney and an unloading dock and pump station in Fulton

County, for which work the Sanitary District was to pay

$733,000. Ingram Corporation was also to construct a

pipeline over property not owned by the District, for which

construction the District agreed to pay $68,000 per month

for 36 months, a total of $2,448,000. The contract also pro-

vided that Ingram Corporation would receive $1.802 per

ton of sludge hauled from Stickney to Fulton County. The

parties estimated that over the life of the contract 8,000,000

tons of sludg would be transported.

On May 19, 1971, Weber and Benton met in New

Orleans to discuss ways of increasing Ingram Corpora-

tion’s total revenue under the contract to the $21,500,000

that MePartlin had assured Benton would be fortheom-

ing. Weber told Benton that Janicki and he thought that

the corporation could receive an additional $2,100,000 by

billing the Sanitary District a second time for the construce-

tion of the pipeline and the construction in Fulton County.

On June 26, 1971, Weber told Benton that Janicki

needed $21,250 to pay off three District staff members.

Ingram issued a check for that amount to Southwest Ex-

pressway, another of Weber’s defunct corporations.

App. 8

On July 27, 1971, Weber issued a $20,000 check to Bull

Towing Company. Edwin Bull deposited the check and,

at the same time, withdrew $20,000. The next day, the

Illinois Commerce Commission granted Ingram Corpora-

tion’s request for a certificate of convenience and neces-

sity.

On August 14, 1971, Edwin Bull negotiated two con-

tracts with Ingram Corporation. In one of them Ingram

Corporation agreed to rent barges from Bull Towing

Company to transport sludge from the Lemont Bridge

over the Illinois River to Fulton County. Donnelly signed

this contract but refused to sign the other contract, un-

der which Ingram Corporation would agree to pay Bull

$.17 per ton for transporting sludge from Stickney to

the Lemont Bridge. Ten cents per ton were intended as

payment for actual towing services; the other seven cents

per ton were intended as payment for consulting services

and engineering and feasibility studies that Bull had al-

legedly performed for Ingram Corporation. The second

contract also provided for payment.to Bull of a $76,000

‘*finder’s fee.’** Donnelly objected to the ‘‘finder’s fee,’’

questioned whether any consulting service or studies that

Bull provided to Ingram Corporation were worth $560,000,

and questioned Bull’s competence as a barge operator.

Out of Bull’s presence, Benton told Donnelly that if Bull

did not participate in the sludge-hauling contract, there

would be no contract. Donnelly still refused to sign the

second Ingram-Bull contract, but permitted Benton to

sign it on behalf of Ingram Barge Corporation as well as

Ingram Corporation.

* Benton testified that Bull had informed him that he needed

money to pay income taxes on the money that he had laundered

through Bull Towing Company. Part of the $76,000 was for this

purpose, but the government concedes that part of the $76,000

finder’s fee was legitimate.

App. 9

On August 15, 1971, Benton, Weber, and MePartlin

met in Chicago to discuss further payments. Benton

agreed to provide $146,000 in two installments. On August

18, 1971, Osear Hardison, comptroller of Ingram Corpora-

tion, delivered $30,000 in cash to Weber « O’Hare Airport

in Chicago, On August 28, 1971, ano.ner Ingram execu-

tive, G. Glen Martin, gave Weber $116,000, which consisted

of $46,000 in cash and $70,000 in checks payable to Weber’s

defunct corporations.

Ingram Barge Corporation began transrorting sludge

six days later than the date it was requirea to do so un-

der the sludge-hauling contract; whereupon the Sanitary

District assessed liquidated damages of $30,000 under the

liquidated damages clause. In early October, 1971, Benton,

Weber, and Janicki held a meeting in Chicago to diseuss

this matter, following which the Sanitary District withdrew

the assessment. After the meeting, Weber told Benton

that Janicki wanted $100,000 by the end of 1971. When

informed by Benton of this request, however, Frederick

Ingram refused, saying that no more payments would be

made until the Sanitary District began making payments

on the pipeline, as Weber had promised it would.

On December 15, 1971, Weber telephoned Benton to tell

him that the Sanitary District would issue a check to

Ingram Corporation for $1,000,000, as partial payment on

the pipeline. When Benton arrived at Janicki’s office the

following day, however, Janicki disclaimed any knowledge

of the $1,000,000 check. Benton threatened to ‘‘jerk the

rug’’ from under everyone in Chicago.

Upon learning of Benton’s threat, Weber informed

Oberle of it and asked Oberle to do whatever he could

about Benton. Oberle telephoned defendant Frederick

Ingram to tell him of Benton’s threat. Ingram expressed

App. 10

no surprise, simply thanked Oberle for the information and

hung up, and later in the day met with Benton to discuss

the matter. At the meeting they agreed that Benton

would continue to represent Ingram’s interest in dealing

with the Chicago officials.

On December 21, 1971, Weber, Janicki, and Benton met

in Benton’s hotel room ihn Chicago. Benton apologized

for his threat. He then gave Weber two checks payable to

Weber’s defunct corporations in the amount of $50,070.

This payment brought Ingram’s total contribution to $317,-

320, leaving a balance of $132,680 on the $450,000 com-

mitment.

In February, 1972, Weber told Benton that because of

the difficulties in getting the Sanitary District to pay the

additional $2,100,000 for the pipeline, Ingram Corporation

would have to increase its contribution to $620,000. On

February 17, 1972, Weber asked Benton for $100,000 in

cash immediately. When Benton told defendant Ingram

of the request, Ingram responded that he would investi-

gate ways of raising the money. On February 28, 1972,

Benton delivered $100,000 to Mrs. Valentine Janicki.

At trial, defendant Frederick Ingram contended that he

did not learn until this February, 1972 meeting with Benton

that his company had secured a multi-million dollar con-

tract by paying more than $300,000 to Chicago officials.*

Ingram testified that he protested against paying the bribes,

but reluctantly agreed when Benton informed him that if

he refused to pay, the Sanitary District would not pay the

* Benton testified that he informed Frederick Ingram of Weber’s

first proposal that Ingram Corporation make a political contribution

immediately after Weber made it in March, 1971, and that Ingram

authorized the payments then.

App. 11

additional $2,100,000 for the pipeline and would use the

liquidated damages clause to penalize Ingram Corpora-

tion.

On March 10, 1972, Weber told Benton that if Ingram

Corporation could deliver $100,000 before the end of the

month, the Sanitary District Board of Trustees would

approve the purchase of the pipeline. One-fourth of this

amount was delivered, but the balance was not, and the

trustees failed to approve the purchase. At a July 6, 1972

meeting between Benton, Janicki, and Weber, however,

Janicki promised that the trustees would take some action

on the pipeline in the month of July. As promised, the

board of trustees authorized the staff to negotiate with In-

gram for the purchase of the pipeline on July 20, 1972.

On August 23, 1972, Benton gave McPartlin $80,000

in eash. MePartlin told Benton that the trustees would

approve the purchase of the pipeline in September, but

Ingram would have to pay the balance of its contribution,

about $95,000, in September also.

Between August and November, 1972, Ingram Corpora-

tion and the Chicago officials negotiated a new agreement.

Ingram would pay $750,000 over a three year period, and

the Sanitary District would purchase the pipeline, modify

the liquidated damages clause, and extend the sludge-haul-

ing contract for three years at a higher price per ton.

On December 28, 1972, representatives of the Ingram

companies and the District signed an agreement cover-

ing the pipeline purchase that was to be effective only if

the parties also signed two other agreements: a retroac-

tive modification of the liquidated damages clause and a

three year extension of the sludge-hauling contract. On

January 26, 1973, the additional agreements were signed.

After the signing, Benton returned to his hotel room

and telephoned Janicki to tell him that his money was

App. 12

ready. Janicki sent his secretary to pick up a package

containing $50,000 in cash. Benton then telephoned Weber

to tell him to come and pick up the balance of the money

due. When Weber arrived, Benton gave him $95,000 in

eash and nine letters of credit drawn on a Swiss bank in the

amount of $70,000 each.‘

One of the letters of credit matured in June, 1973, and

each of the others matured sequentially at six-month in-

tervals. Weber admitted negotiating the first four letters

at the Swiss bank in July, 1973, December, 1973, June,

1974, and December, 1974. On each occasion, he purchased

his plane ticket to Europe with cash, arranged for his trip

to Switzerland only after he arrived in Europe, and stopped

in Toronto, Canada, on the way back to the United States.

On his last two trips, Weber telephoned Janicki from

Europe.

Sometime before the fall of 1974 a federal grand jury

commenced an investigation of the events surrounding the

sludge-hauling contract. In May, 1975, the government

granted immunity to Benton.

In November, 1975, Weber sent his brother, Henry

Weber, to Europe to negotiate the fifth and sixth letters

of credit, which matured in June, 1975, and December,

1975.° Following his brother’s instructions, Henry Weber

did not proceed directly to the drawee Swiss bank but

‘It is not clear whether the $95,000 due in September on the

first agreement was ever paid. Nor is it clear why Benton paid

Janicki and Weber $775,000 on January 26, 1973, rather than the

$750,000 agreed to.

5It is not clear how Weber expected his brother to cash the sixth

letter of credit in November, 1975; it did not mature until Decem-

ber, 1975. Nevertheless, it is undisputed that Henry Weber did go

to Vaduz, Liechtenstein carrying the two letters of credit with the

intent to negotiate them.

App. 13

went to a bank in Vaduz, Liechtenstein, to have that bank

present the letters to the Swiss bank.

On November 26, 1975, two weeks after his return from

Liechtenstein, Henry Weber appeared before the grand

jury and testified that he had only visited Frankfurt and

Munich. On December 3, 1975, the government called

Henry Weber to appear a second time before the grand

jury, this time asking Weber to bring his travel records.

During his second appearance, Henry Weber testified that

he had been mistaken when he said that he had only visited

Frankfurt and Munich and that he had also visited Vaduz.

On December 9, 1975, Franklin Weber’s attorney tele-

phoned one of the government’s attorneys in this case

and informed him of what the government attorney al-

ready had reason to suspect, namely, that Franklin Weber

had possession of the remaining letters of credit.

Additional details and procedural matters necessary to

an understanding of the various issues to be decided will

be stated at appropriate places in the opinion.

1.

Severance

Before discussing the specifie attacks on the district

court’s denial of severance, some general principles should

be noted. The question of whether charges that have been

properly joined ought to be severed for trial is for the

discretion of the trial judge, whose decision will be reversed

only upon a showing of clear abuse. United States v.

Tanner, 471 F.2d 128, 137 (7th Cir.), cert. denied, 409 U.S.

949 (1972). The defendant has the burden of showing

prejudice, which is a difficult one. Jd. A denial of severance

will rarely be reversed on review, Tillman v. United States,

406 F.2d 930, 935 (Sth Cir.), cert. denied, 395 U.S. 830

(1969), and then only for the most ‘‘cogent reasons,’’

App. 14

United States v. Kahn, 381 F.2d 824, 838 (7th Cir.) cert.

denied, 389 U.S. 1015 (1967). There is, moreover, a strong

policy in favor of joint trial ‘‘where the charge against all

the defendants may be proved by the same evidence and

results from the same series of acts.*? United States v.

Cohen, 124 F.2d 164, 165 (2d Cir.), cert. denied sub nom.

Bernstein v. United States, 315 U.S. 811 (1942). See also

United States vy. Echeles, 352 F.2d 892, 896 (7th Cir. 1965)

recently quoted in United States vy. Harris, 542 F. 2d 1283,

1312 (7th Cir.), cert. denied, 430 U.S. 934 (1976).

In the case at bar all appellants assert error in the de-

nial of their motions for severance. Frederick Ingram

argues that the denial deprived him of evidence that would

otherwise have been available. The other appellants,

whom we shall call the Illinois defendants, argue that they

were prejudiced by the denial because Ingram and his

brother (whom the jury aequitted) defended on a ground

antagonistic to the defenses of their co-defendants and

because of curtailment of cross-examination and the spill-

over effect of evidence admitted only against Frederick In-

gram. We turn first to the argument of the Illinois defen-

dants.

A. The Illinois Defendants

1. Antagonistic Defenses

The Ingrams contended that the payments were made

only because the Sanitary District threatened to take ac-

tion that would have resulted in financial disaster to In-

gram Corporation, and therefore neither of them had

the ‘‘intent (to influence the performance of an official

act) required by the Illinois bribery statute.’’ United

States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert.

denied, 429 U.S. 818 (1976). It was not necessary to this

defense that the Illinois defendants were guilty of extor-

tion or received bribes, because it was possible that Ben-

ton, through whom the corporation’s communications with,

App. 15

and payments to, the Illinois defendants were carried out,

did not pass any of the money on but kept it all himself.®

Thus the Ingram defense was not necessarily antagonistic

to the defenses of others, although it was possible, on the

Ingrams’ theory, that they were innocent even if the others

were guilty.

Even if the defenses were to a degree antagonistic, how-

ever, it does not follow that there should have been two

or more trials. One has no right to any tactical advantage

that would result if evidence that is admissible against him

in either a joint or separate trial might be unavailable in

a separate trial. Cf. Brady v. Maryland, 373 U.S. 89, 90-91

(1963).'° It is therefore the settled rule that a defendant

® Benton admitted siphoning off for his own use some of the funds

that the Ingrams intended be paid to the Illinois defendants. See

Part IV, infra.

” In Brady, which is famous for a holding irrelevant here (viz.,

that the prosecution’s suppression of evidence requested by the de-

fense and material to punishment violated the due process clause of

the Fourteenth Amendment), the Court also held that no federal

right was violated by limiting a new trial to the issue of punishment

where the suppressed evidence was inadmissible as to guilt, even

though there might have been some spillover favorable to the defen-

dant on the issue of guilt. At the first trial, in which a jury had

convicted Brady of first degree murder and fixed penalty as death,

the prosecution had failed to disclose a confession in which petition-

er’s accomplice admitted having actually strangled the victim. Con-

cerning the petitioner’s right to a new trial on both guilt and punish-

ment, the Court said:

A sporting theory of justice might assume that it the suppressed

confession had heen used at the first trial, the judge’s ruling

that it was not admissible on the issue of innocence or guilt

might have been flouted by the jury. ... But we cannot raise

that trial strategy to the dignity of a constitutional right and

say that the deprival of this defendant of that sporting chance

through the use of bifurcated trial . . . denies him due process

or violates the Equal Protection Clause of the Fourteenth

Amendment.

373 U.S. at 90-91 (footnote omitted).

App. 16

is not entitled to a severance merely because it would give

him a better chance of acquittal. See United States v. Tan-

ner, supra, 471 F.2d at 187. ‘Thus antagonistic defenses

do not require the granting of severance, United States v.

Hutul, 416 F.2d 607, 620 (7th Cir.), cert. denied, 396 U.S.

1007 (1970), even when one defendant takes the stand and

blames his co-defendant for the crime, United States v.

Joyce, 499 F.2d 9, 21 (7th Cir.), cert. denied, 419 U.S. 1031

(1974). Even when the defendant who testified he was the

victim of extortion had dealt directly with the defendant al-

leged to have extorted the bribe, we sustained the denial

of severance. United States v. George, 477 F.2d 508 (7th

Cir.), cert. denied, 414 U.S. 827 (1973).

There may be cases, as we recognized in George, in

which the conflict among defendants is of such a nature that

the ‘jury will unjustifiably infer that this conflict alone

demonstrates that both are guilty.’’ 477 F.2d at 515. This

is not such a case. The joinder did not result in the ex-

clusion or admission of any evidence of consequence that

would not have been excludable or admissible in separate

trials. Nor was any argument made that could not prop-

erly have been made in such a separate trial. There was

no cognizable prejudice arising from antagonistic de-

fenses.”

™ Although the Commentary to § 2.3(b) of the ABA Minimum

Standards for Criminal Justice: Standards Relating to Joinder and

Severance (Approved Draft 1968), contains a sentence which, stand-

ing alone, indicates that “defenses . . . antagonistic to each other”

constitute a sufficient basis for granting a severance, the Commentary

elsewhere states that this is only one of several factors to be con-

sidered and make it clear that the appropriateness of severance

depends upon the degree and kind of antagonism. See also the

federal cases cited in the ALR Annotation referred to in the Com-

mentary, 70 A.L.R. at 1184-1185; and see Annot., 82 A.L.R.3d 245,

250-251, 257-259 (1978). As the cases cited in the text of this

opinion illustrate, the federal courts have held that an attempt by

one defendant to place the guilt upon another does not require

severance. See also 82 A.L.R.3d at 260-261.

App. 17

2. Curtailment of Cross-Examination

Janicki complains that cross-examination was curtailed

because of the joinder when, during cross-examination

of Benton, the trial judge delivered a general admonition

against repetitious cross-examination. Neither Janicki

nor the other Illinois defendants, who adopt by reference

his arguments on severance, show any prejudice resulting

from the admonition or point to any specifie ruling eur-

tailing their cross-examination. It was, moreover, entirely

proper for the judge to attempt to forestall repetition.

3. Spillover Effect of Evidence Offered Against

Frederick Ingram

Janicki also asserts that he was prejudiced by evidence

offered against Frederick Ingram showing that Ingram

Corporation had bribed a Brazilian corporate official be-

tween 1969 and 1971, because the conduct of the Brazilian

was similar to that with which Janicki was charged. The

trial court instructed the jury to consider the evidence of

the earlier bribe only as to Frederick Ingram’s state of

mind, but Janicki asserts that this instruction was ineffee-

tive. We see no substantial risk that the jury would be-

lieve that because a Brazilian corporate officer took a bribe

from Ingram Corporation, Janicki did also, and therefore

we conclude that Janicki was not prejudiced by the admis-

sion of this evidence. Its admissibility as to Frederick In-

gram and the effectiveness of the limiting instruction are

discussed below.

The Illinois defendants were not deprived of a fair trial

by the joinder.

B. Frederick Ingram

Frederick Ingram’s attack on the joinder is based on

the district court’s exelusion of three items of evidence

App. 18

offered to support his extortion defense, which Ingram

argues occurred because he was tried with the men he

allegedly bribed.

1. The McPartlin Statements and the Attorney-

Client Privilege Among Co-defendants and Their

Counsel

Throughout the period covered by the indictment, Ben-

ton kept diaries, or appointment calendars, in which he

made notes concerning meetings and telephone conversa-

tions, naming the persons involved and often recording

the substance of the conversations. The Benton diaries

figured prominently in the government’s case, for they

corroborated much of his testimony.

Destroying Benton’s eredibility was important to In-

gram, as it was to the other defendants, even though In-

gram’s defense was based, in part, on the argument that

he had made the payments in response to the threats Ben-

ton had reported to him, because Ingram’s account of

events in issue differed materially from Benton’s, and

because the government’s case hinged largely on Ben-

ton’s testimony. Since Benton’s diaries corroborated so

much of his testimony, it was imperative from the stand-

point of all defendants that an effort be made to discredit

them.

Such an effort was made, and Frederick Ingram and

MePartlin cooperated in that effort. In a brief support-

ing a pretrial ‘‘Motion for Additional Time to Conduct

Document Analysis,’’ Ingram’s counsel stated, with refer-

ence to contemplated tests on the Benton diaries,

[T]he defendant Frederic B. Ingram is not the only

defendant who may be affected by the results of these

tests. Besides the general effect of the doubts that

App. 19

may be raised as to Benton’s veracity and the credi-

bility of the diary entries, the case against at least

one other defendant—Robert F. McPartlin— may be

substantially affected by the results of the tests. From

the results of the tests conducted so far, it appears that

at least two of the suspicious diary entries relate to

alleged payments of money to Mr. MePartlin.

An investigator acting for Frederick Ingram’s counsel

twice interviewed MecPartlin with the consent of the lat-

ter’s counsel’ for the purpose of determining whether

there was a basis for challenging the truth of some of the

diary entries. In the second of these interviews MePartlin

made certain statements, which Ingram argues tend to

support his defense. At trial, when Ingram offered evi-

dence of these statements, MePartlin’s counsel objected

on the ground, inter alia, of the attorney-client privilege,

and the court, after an in camera hearing, sustained the ob-

jection on this and another ground.’*

The exclusion of the MePartlin statements would not

be reversible error even if he had not been entitled to

claim the privilege. We are satisfied from our examina-

tion of the transcript of the in camera hearing, which

was sealed and made a part of the record on appeal, that

the statements merely corroborated facts which were ad-

1 McPartlin’s attorney advised McPartlin to meet with the in-

vestigator because it was in the interest of all the defendants to

“poke holes’ in the Benton diaries.

3Tn the alternative, the court ruled that McPartlin’s statements

were inadmissible hearsay not within the exception provided by

Rule 804(b) (3), Fed. R. Evid. (declarations against penal interest).

Since we agree that McPartlin’s statements are protected by his

attorney-client privilege, and in any event their exclusion was not

prejudicial, we do not reach the alternative ground for exclusion.

App. 20

mitted in evidence and which the jury obviously found to be

true."* We do not disclose the contents of the statements

because they remain protected by the attorney-client privi-

lege, on which we alternatively base our ruling on this point.

McPartlin was entitled to the protection of the attorney-

client privilege, because his statements were made in con-

fidence to an attorney for a co-defendant for a common pur-

pose related to both defenses. They were made in con-

nection with the project of attempting to discredit Benton,

a project in which Ingram and McPartlin and their attor-

neys were jointly engaged for the benefit of both defen-

dants. Ingram acknowledges that communications by a

client to his own lawyer remain privileged when the lawyer

subsequently shares them with co-defendants for purposes

of a common defense, The common-defense rule, which

is not as narrow as Ingram contends, has been recognized

in cases spanning more than a century. Chahoon v. Com-

monwealth;-62 Va. (21 Gratt.) 822 (1871) ; Schmitt v. Emery,

211 Minn. 547, 2 N.W.2d 413 (1942); Continental Oil Co.

v. United States, 330 F.2d 347 (1964); Hunydee v. United

States, 355 F.2d 183 (9th Cir. 1965) ; Matter of Grand Jury

Subpoena, 406 F.Supp. 381, 387-389 (S.D.N.Y. 1975); see

State v. Emmanuel, 42 Wash.2d 799, 259 P.2d 845, 854-

855 (1953); Note, ‘‘Waiver of Attorney-Client Privilege on

Inter-Attorney Exchange of Information,’’ 63 Yale L.J.

1030 (1954) ; Note, ‘‘The Attorney-Client Privilege in Mul-

tiple Party Situations,’? 8 Colum. J.L. Soe. Prob. 179

(1972). Uninhibited communication among joint parties

and their counsel about matters of common concern is often

“The trial judge remarked at one point that the evidence

“would be of great assistance to Ingram” if admissible. With

respect, we see no basis for that conclusion and believe that, if the

judge had been given the opportunity we have had to lay the facts

proved in other ways beside the proffered evidence and carefully

compare the two, he would have reached the same conclusion we do.

App. 21

important to the protection of their interests. Note, supra,

8 Colum. J.L. Soc. Prob. 179-180. In criminal cases it can

be necessary to a fair opportunity to defend. Therefore,

waiver is not to be inferred from the disclosure in confi-

dence to a co-party’s attorney for a common purpose.

In the case at bar, the judge found, as a preliminary

question of fact, from the evidence adduced at the hear-

ing held pursuant to Rule 404(a), Fed. R. Evid., that Me-

Partlin had made the statement to the investigator in con-

fidence. That finding is not clearly erroneous.

Ingram argues that the co-defendants’ defenses must be

in all respects compatible if the joint-defense privilege is

to be applicable. The cases do not establish such a limita-

tion,’ and there is no reason to impose it. Rule 503(b) (3)

of the proposed Federal Rules of Evidence, as approved

by the Supreme Court, stated that the privilege applies to

communications by a client *‘to a lawyer representing an-

other in a matter of common interest.’’ See 2 J. Weinstein,

Evidence 503-52 (1977). The Advisory Committee’s Note

to proposed Rule 503(b) makes it clear that the joint-inter-

est privilege is not limited to situations in which the posi-

tions of the parties are compatible in all respects:

The third type of communication occurs in the

‘‘joint defense’’ or ‘‘pooled information’’ situation,

where different lawyers represent clients who have

In Hunydee v. United States, supra, the attorney for Hunydee'’s

co-defendant believed that the government would not prosecute the

co-defendant if Hunydee pleaded guilty, and therefore their interests

conflicted. Nevertheless, the Ninth Circuit held that statements

made by Hunydee during a joint conference held for the purpose of

discussing his willingness to plead guilty, a matter of common in-

terest, which affected both attorneys’ representation of their respec-

tive clients, were privileged. Similarly, in Schmitt, supra, the com-

mon interest of the co-defendants related to the exclusion of a specific

item of evidence. See, Note, supra, 63 Yale L. J. 1030, 1035-1036.

App. 22

some interests in common... . The rule does not ap-

ply to situations where there is no common interest

to be promoted by a joint consultation, and the par-

ties meet on a purely adversary basis.

Quoted in 2 J. Weinstein, supra, at 503-6 to 503-7. (Em-

phasis supplied and citation omitted.) Although the Con-

gress, in its revision of the Federal Rules of Evidence,

deleted the detailed privilege rules and left the subject

of privilege in federal question cases to ‘‘be governed by

the principles of common law as they may be interpreted

by the courts of the United States,’’ R. 501, Fed. R. Evid.,

the recommendations of the Advisory Committee, approved

by the Supreme Court, are a useful guide to the federal

courts in their development of a common law of evidence.

2 J. Weinstein, supra, 501-20.4 to 501-20.5. In this instance

we follow the recommendation. The privilege protects

pooling of information for any defense purpose common

to the participating defendants. Cooperation between de-

fendants in such circumstances is often not only in their

own best interests but serves to expedite the trial or, as

in the case at bar, the trial preparation."

Ingram also seems to argue that the communication was

not privileged because it was made to an investigator

rather than an attorney. The investigator was an agent

for Ingram’s attorney, however, so it is as if communica-

tion was to the attorney himself. ‘‘It has never been ques-

tioned that the privilege protects communizations to the

attorney’s ... agents ... for rendering his services.’’ 8

Wigmore, Evidence § 2301 at 583 (McNaughton rev. 1961) ;

16 Smale v. United States, 3 F.2d 101, 102 (7th Cir. 1924), relied

on by Ingram, in which one defendant volunteered statements to

another defendant and the latter's attorney and the requisite joint

interest and confidentiality were both lacking, does not establish the

compatible defense requirement for which Ingram argues.

App. 23

cf. United States v. Kovel, 296 F.2d 918, 921-922 (2d Cir.

1961) (client’s communications to an accountant employed

by his attorney).

Nor was it, as Ingram contends, fatal to the privilege

that McPartlin made the statement, in effect, to Ingram’s

attorney rather than his own. When the Ingram and

MePartlin camps decided to join in an attempt to discredit

Benton, the attorney for each represented both for pur-

poses of that joint effort. The relationship was no differ-

ent than it would have been if during the trial the Ingram

and MePartlin attorneys had decided that Ingram’s attor-

ney would cross-examine Benton on behalf of both, and

during cross-cexamination MecPartlin passed Ingram’s at-

torney a note containing information for use in the eross-

examination. The attorney who thus undertakes to serve

his client’s co-defendant for a limited purpose becomes

the co-defendant’s attorney for that purpose. <A claim of

privilege was upheld in cireumstances such as these where

communications were made directly to the attorney for

another party in Jn the Matter of Grand Jury Subpoena

Duces Tecum, supra, 406 F.Supp. at 391. United States v.

Friedman, 445 F.2d 1076, 1085 n.4 (9th Cir.), cert. denied,

404 U.S. 958 (1971), relied on by Ingram, is not to the con-

trary. In Friedman the court held its decision in Hunydee

v. United States, supra, inapplicable, because no joint de-

fense or common interest was alleged. The court went on

to state, in the footnote relied upon, that even if Hunydee

was applicable, there was no privilege since ‘‘the facts of

the conversation negate confidentiality.’’ 445 F.2d at 1085

n.4,

Inasmuch as McPartlin was entitled to assert the privi-

lege whether Ingram was tried jointly or separately, no

prejudice would have resulted from the joint trial by rea-

son of the exclusion of the McPartlin statements even if

those statements had not been merely cumulative.

App. 24

.

2. Relevance of Threats Against Benton

Frederick Ingram aiso argues that joinder caused

specific prejudice through the trial court’s exclusion, as

prejudicial to other defendants, of evidence of threats of

physical harm directed against Benton. The short

answer is that prejudice to viher defendants was not the

only ground for the exclusion. ‘the excluded evidence

consisted of testimony by Ingram that in the fall of 1972

Benton expressed fear for his own physical well-being if

Ingram refused to make the promised payments to the

Chicago officials, and testimony by two other witnesses

that Benton told them in October 1974 that someone had

threatened him with physical harm. ‘lo begin with, both

statements by Benton were said to have been made long

after February 1972, when Ingram, by his own admis-

sion, authorized Benton to make payments to secure the

contract. ‘here is no indication in the record that the see-

ond, made long after all payments were made, was ever

communicated to Ingram. The alleged threats were

directed at Benton, not Frederick Ingram, who had no

dealings in the matter with anyone outside Ingram Cor-

poration. Finally, Ingram’s theory throughout the trial

was economic, not physical, coercion.'’ The evidence was

In United States v. McClure, 546 F.2d 670 (5th Cir. 1977),

relied upon by Ingram, the court held it to have been reversible error

to exclude as irrelevant “evidence of a systematic campaign of threats

and intimidation” by an informer against persons other than the de-

fendant, offered to corroborate the defendant's testimony that he had

been threatened and coerced by the informer to commit the crime

charged. The case is not authority for the proposition that evidence

of threats of physical violence, made by some unnamed person, di-

rected at a person other than the defendant, is relevant in a case in

which the defendant does not contend that his criminal activity was

motivated by threats of physical violence or that he even had knowl-

edge of such threats at the time of his criminal activity.

App. 25

properly excluded as irrelevant, and it would have been

equally irrelevant if Ingram had been tried separately.

3. Relevance of an Unrelated Payment by a Third-

Party

Frederick Ingram also contends that the joinder

caused the exclusion of evidence that an attorney who

represented Ingram Corporation before the Illinois Com-

merce Commission made a $5,000 contribution to Me-

Partlin’s reelection campaign fund, and that the pay-

ment was motivated in part by MePartlin’s having

recommended the attorney’s firm to Ingram Corpora-

tion. There was no showing that the attorney was co-

erced. This evidence, offered first by the prosecution and

then by the Ingrams, was rightly excluded on both oc-

easions as irrelevant. In rejecting the Ingram offer the

court said that it ‘‘could be prejudicial to MePartlin

without being probative of any issue as far as the In-

grams are concerned.’* Prejudice to MePartlin aside, the

trial court was correct as to the probative value of the

evidence.

We therefore concluae that the denial of the motions

for severance was not error.

Sprecuer, Circuit Judaqe:

I coneur in the portions of this opinion prepared by

Judges Pell and Tone.

I.

Extortion Defense Instruction

As noted earlier, defendant Ingram never denied mak-

ing certain of the illicit personal payments to officials of

the Sanitary District. Instead Ingram premised his

defense to the counts relating to these payments on the

theory that these payments were not intended as bribes

App. 26

but were extorted from him by threats that, unless these

payments were made, the Sanitary District would, con-

trary to an alleged understanding, refuse to purchase

the pipeline which Ingram had already constructed and

would invoke the liquidated damages clause to further

penalize Ingram Corporation.’* In relation to these

arguments, the trial court gave the jury the following

instructions on the defense of extortion:

Now, | have just told you that willful conduct, which

is required in each of the crimes charged in this in-

dictment, must be voluntary.

One of the defenses raised by the Defendants

Frederic B. Ingram and Kk. Bronson Ingram is that

they authorized certain payments to be made only

because they were told unless the payments were

made, the pipeline would not be paid for and the liq-

uidated damage provision would be used against

Ingram Barge Company in an unreasonable and

punitive manner. ‘These defendants claim, therefore,

that they did not commit bribery or conspire tp commit

bribery and lacked the intent to bribe.

In analyzing this defense, there are several things

for you to consider. First, you should determine

whether a defendant did in fact authorize payments

because of a fear of economic loss. If you find that a

18 Tt is to be noted that this defense is inapplicable to the counts

under which Ingram was found guilty of participation in payments

made prior to February, 1972. (Counts 3, 4, and 6.) As to these

counts Ingram contended he did not know of the payments. The

conspiracy count (Count 1) involved payments made before and

after that date, but the verdicts on the three substantive counts tell

us that the jury disbelieved Ingram’s denial of knowledge of the

earlier payments, so the extortion defense would not suffice under

the conspiracy count.

App. 27

defendant did authorize any of the payments in

question, but that he did so solely to procure an

economic advantage rather than out of fear of an

economic loss, then this defense that the aet was in-

voluntary must fail.

Ou the other hand, if you do find that a defendant

authorized payments because of his fear of economic

loss, then you should proceed to a consideration of

whether that fear of economic loss was such as to

render his action involuntary within the meaning of

the law.

There are several things to consider in this

connection. First, did the defendant fear loss as a

result of a withholding of something to which he

believed Ingram Barge Company was already legally

entitled? Specifically, did the defendant believe that

the Metropolitan Sanitary District was already under

a legal obligation to pay Ingram Barge for the pipe-

line? Did he believe that the threatened assessment

of liquidated damages was legally unjustified?

The answers to these questions are important

because there is a difference between paying a public

official for something one is entitled to receive and

paying a public official for something one is not en-

titled to receive.

If one does not believe he is legally entitled to re-

ceive the thing in question, then, no matter how much

he needs it and no matter how great the economic loss

one might suffer by not receiving it, there can be no

legal justification for paying a public official to get it.

Such a payment is bribery, pure and simple.

However, if one is legally entitled to the thing in

question or in good faith believes he is legally entitled

to it, then the fear of economic harm from not re-

App. 28

ceiving it may be sufficient to render the act of pay-

ment involuntary, depending upon three additional

considerations: "he seriousness of the economic harm

perceived by the defendant, the effect that perception

had on his ability to exercise free choice, and the

defendant’s awareness of reasonable alternatives to

the making of the demanded payments.

If a defendant did not in facet fear serious economic

harm or if his fear did not substantially impair his

ability to exercise free choice or if he was aware of

actions he might take to forestall the harm without

making the payments and chose not to take those

actions, then his conduct in authorizing the payment

cannot be considered involuntary within the meaning

of the law.

In order to prove, therefore, that a defendant

acted willfully as opposed to involuntarily in

authorizing a payment, the government must prove

one of the following things: (a) that the defendant

was not motivated by a fear of economic harm in

authorizing the particular payment, or (b) the thing

which the defendant sought to obtain by making the

payment was not something he believed Ingram

Barge Company was legally entitled to have

without making the payment, or (c) the defendant

did not perceive the threatened economic harm to be

of serious magnitude, or (d) the defendant’s fear

was not such as to substantially impair his ability to

exercise free choice, or (e) and finally, the defen-

dant was aware of reasonable alternatives to making

the payments and chose not to pursue those alterna-

tives.

Defendant Ingram urges that this instruction was preju-

dicial error in three respects. In considering these con-

App. 29

tentions we shall assume without deciding that as the

instruction states, under Illinois law, if one who pays a

bribe is or believes himself to be ‘‘legally entitled’’ to

have the official take the action induced by the bribe,

‘‘then the fear of economic harm from not receiving it

may be sufficient to render the act of payment

involuntary.’* This court’s decision in United States v.

Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. dented, 429

U.S. 818 (1976), in the following words, left open the

question whether this is so but did establish the rule

applicable in the case of a discretionary official decision:

| A |t least in a case where a discretionary or legisla-

tive decision ... has been requested, the withholding

of such action until a money demand is met could not

negate the intent (to influence the performance of an

official act) required by the Illinois bribery statute.

Id. at 84.

First, Ingram argues that the distinction between

economic loss and gain was erroneous. ‘The prejudice

from this distinction allegedly arose from the fact that

the jury was likely to define economic loss as the pay-

ment of money and economic gain as the receipt of

money and therefore might have rejected the extortion

defense out of hand on the ground that the admitted ob-

ject of the payment was to complete the sludge-hauling

project and thereby gain a profit. In response we note

initially that Ingram here has too narrowly character-

ized his own defense. Ingram asserted throughout the

trial and continues to assert before us that the payments

were at least in part motivated by a desire to avoid

assessment of liquidated damages. Even under the

simplistic construction of the loss-gain distinction which

Ingram alleges was most likely, this would constitute an

economie ‘‘loss’’ thereby preventing the jury from reject-

App. 30

ing the defense on the basis of the loss-gain distine-

tion.” Moreover it is not clear that Ingram preserved

this objection for appeal: the written objection to the in-

struction tendered at trial makes no mention of any

error in this distinction.“” I‘inally, we are not convinced

that the jury would put such a simplistie construction on

the loss-gain distinction. Certainly it requires no extra-

ordinary economic acumen to realize that the receipt of

money may not represent an economic gain if the amount

received is less than an amount to which one was previ-

ously entitled. Conversely, an ordinary juror would cer-

tainly realize that a real economic gain accrues only when

a person becomes entitled to something to which he had

no prior entitlement, that is, when a discretionary official

' Indeed Ingram seems to have admitted as much. In his brief

defendant Ingram states: “Alternatively, the jury might confusingly

[sic] have reasoned that threatened liability under the liquidated

damages clause was an ‘economic loss’... . Brief for Defendant In-

gram at 37.

*° Ingram made the following written objection to the instruction:

Court’s Instruction No. 2: The Ingram defendants have

tendered several alternative charges dealing with the s* biect

matter as Court's Instruction No. 2, each of which we submit

correctly states the law with respect to the effect of economic

coercion on the defendant’s alleged intent to bribe. In support

of the tendered charges, we referred to our memorandum on the

“extortion defense” submitted to the Court in July 1977, which

we incorporate by reference here. The instruction given by the

Court treats the issue not as one of economic coercion bearing

on intent, but as one of duress, contrary to the analysis in

United States v. Barash, 365 F.2d 395 (2d Cir. 1966), and

contrary to the pattern instruction in Devitt & Blackmar § 34.10.

Accordingly, we object to the Court's charge in this respect and

we object to the omission of any of the proposed instructions

on this issue tendered by the Ingram defendants, or some modi-

fied version of those proposed instructions.

App. 31

act is performed for his benefit. The district court fol-

lowed this gain-loss instruction with a discussion of the

concept of entitlement, explicitly denoting a ‘‘loss’’ as a

failure to receive a benefit to which one was entitled, there-

by further clarifying the interdependent relation between

these two concepts.”

Ingram advances a second attack on this instruction.

He argues that the district court erred in instructing the

jury that the extortion defense is unavailable if the de-

fendant did not believe that he had a legal entitlement

to the official action. Once again we must note that this

objection appears not to have been properly preserved

for appeal, since Ingram’s objection to the trial court did

not eriticize the entitlement aspects of the instruction.”*

Even if this objection were properly preserved, it lacks

merit. The district court’s instruction is consistent with

Peskin.*

21 Ingram attempts to bolster this argument by urging that deci-

sions under the Hobbs Act have rejected any distinction between

threats of economic loss and gain in extortion prosecutions. See, e.g.,

United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied,

429 U.S. 819 (1976). We do not see the relevance of such authority,

however, since there is no reason that conduct giving rise to criminal

liability for extortion should necessarily provide a criminal defense

for the reciprocal party. Indeed it does not seem illogical to suggest

that it may be reasonable to prosecute both the official who condi-

tions discretionary benefits on bribes and the person who seeks to

obtain such benefits. See United States v. Hall, 536 F.2d 313, 321

(10th Cir. 1976), cert. denied, 429 U.S. 984 (1977) (“bribery and

extortion are not to be considered mutually exclusive nor does the

fact that the alleged victims of the extortion were also bribers nuwlify

anything.” ) ; United States v. Gill, 490 F.2d 233 (7th Cir. 1973),

cert. denied, 417 U.S. 968 (1974).

“2 Sce note 20 supra.

23 United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975),

cert. denied, 429 U.S. 818 (1976). See p. 25 supra.

App. 32

Ingram’s final objection to the trial court instruction

is that the instruction, by its emphasis on the voluntari-

ness of the payments, implicitly disallowed the extortion

defense and permitted only the narrower defense of duress.

Assuming that the distinction drawn in United States v.

Barash, 365 F.2d 395 (2d Cir. 1966), between the defenses

of duress and extortion is correct,’ the instruetion could

not have prejudiced Ingram since Ingram, before this court

and the trial court, characterized his own conduet in such

a way as to absolutely preclude the availability of the ex-

tortion defense, even assuming that the voluntariness of

his conduct alone would not negate the extortion defense.

Ingram, during the course of the trial, admitted that he

had no legal entitlement to the benefits which his pay-

ments were designed to obtain.*”? Accordingly he is ab-

solutely precluded from prevailing on an extortion defense

24As the court in Barash noted:

Although the instruction that only a threat of death or serious

bodily injury would make out the defense of duress appears

correct enough .. . that was only part of the story since Barash

had also requested instructions as to the bearing of threats of

economic harm on the intent required for conviction... .. We

think that if a government officer threatens serious economic

loss unless paid for giving a citizen his due, the latter is en-

titled to have the jury consider this, not as a complete defense

like duress but as bearing on the specific intent required for

the commission of bribery.

365 F.2d at 401-02.

°° The defendant clearly makes these admissions in his brief when

he argues that the entitlement distinction was erroneous:

This second element [of the instructions, that the extortion

defense was not available if the defendant was seeking a benefit

to which he was not entitled,| was tantamount to a judicial

instruction to reject the extortion defense in light of the record

that had already been made. Bronson Ingram had testified (as

(footnote continued )

App. 33

under Peskin, which makes that defense unavailable where

the defendant is seeking to obtain a benefit not owed and

thus the emphasis of the instructions on involuniariness

could not have harmed the defendant.*®

(footnote continued )

quoted at pp. 16-17. supra) that on February 21, 1972, during

the meeting between the Ingram brothers and Benton, Benton

had said, “|WJe don’t really have a legal position to get the

rest of our money” (Tr. 4075). Indeed, it was precisely be-

cause there was no legal recourse that, according to both In-

grams, they saw no option other than to capitulate to the de-

mands.

On any fair reading of the record, Mr. Ingram was in the

position of ordinary applicants for soning variances or for dis-

cretionary governmental action. He honestly—and with sub-

stantial basis—-belicved that it was right and proper for the

MSD to exercise its discretion to purchase the pipeline and to

refrain from punitive use of the liquidated damages clause.

Whether he also believed that Ingram Corporation had a legal

right under the existing contracts to obtain this result was

completely relevant to the question of his intent to commit

bribery.

Brief for Defendant Ingram at 39-41 (emphasis supplied). In-

gram’s admission that he was in the same position as “ordinary ap-

plicants for zoning variances” is particularly damaging in that it was

in precisely that context in Peskin that we explicitly held the ex-

tortion defense to be unavailable as a matter of law. 527 F.2d at

84. See also the cited quotation on p. 25 supra.

°6 Ingram also objects to the trial court’s refusal to give a “theory

of defense” instruction describing Ingram’s view of the extortion.

This is a somewhat surprising argument since the trial court’s in-

struction gave more factual information as to the defendant’s theory,

albeit more concisely, than the defendant’s proposed instructions.

Ingram’s factual theory of his defense is detailed in the following

excerpts from the defendant’s proposed instructions :

If, on the other hand, the Ingram defendants had formed

(footnote continued )

App. 34

III.

Evidence of Ingraiu’s Bribes of Foreign Officials

At trial the government, seeking to rebut Ingram’s

testimony that he made the payments only as a victim of

extortion, sought to demonstrate that in other instances

Ingram had been willing to make such payments

without the alleged incentive of extortion. The trial

court carefully screened this proffer with an ex parte

(footnote continued )

no purpose of offering any money or thing of value to any

personnel of the Metropolitan Sanitary District, and acted only

because of demands or threats communicated by Benton, and

believed that the Metropolitan Sanitary District intended to

carry out the threats not to pay for the pipeline and destroy the

company on the barging operations unless their demands were

satisfied, or if you have a reasonable doubt on this issue, then

the essential element of intent is not present and you will find

the defendants Frederic B. Ingram and E. Bronson Ingram

not guilty of all charges.

It is the position of the defendants Frederic B. Ingram and

E. Bronson Ingram that they had no purpose of improperly

offering or promising any money or thing of value to any

official of the Metropolitan Sanitary District in connection with

the sludge contract, and that they did not devise or intend to

devise a scheme or artifice to defraud either the Metropolitan

Sanitary District, its citizens, its officers and employees, or the

Burlington Northern Railroad and other competitors. Indeed,

it is the position of the defendants Frederic B. Ingram and E.

Bronson Ingram that they acted only because of demands or

threats communicated to them by William J. Benton and because

they believed that those threats would be carried out unless the

demands were satisfied.

If you find that the defendant Frederic B. Ingram and E.

Bronson Ingram did not act vountarily, or had formed no pur-

(footnote continued )

App. 35

review of the evidence, an in camera meeting with all

counsel, and a voir dire of the government witnesses.

After this careful consideration, the court, although re-

jecting a substantial portion of the government’s offer of

proof,” permitted the government to introduce testimony

that Ingram had made surreptitious payments to an em-

(footnote continued )

pose of offering any money or thing of value to the employees

or officers of the Metropolitan Sanitary District, and acted

only because of demands or threats communicated by William

J. Benton, and that they believed that those threats would be

carried out unless the demands for payment were satisfied,

then the essential element of intent is not present and you must

find the defendants Frederic B. Ingram and E. Bronson Ingram

not guilty of the charges against them.

In contrast to these generalized and repetitive instructions, the trial

court instructions, set out on pages 23-25 supra, concisely explained

the defendant's theory that the alleged extortion scheme revolved

around threats not to purchase the pipeline, as well as setting out

defendant's additional factual theory that the scheme involved threats

to assess liquidated damages in an unreasonable manner. Thus, the

defendant Ingram’s claim that the trial court erred in rejecting a

“theory of defense” instruction is without merit.

“7 The government offered to prove that Ingram had _ personal

control of a cash box containing unreported funds from scrap sales

which were distributed to Louisiana politicians. Additionally the

government offered to prove that a joint-venture in which Ingram

Corp. was a participant had paid a real-estate commission to a

Louisiana state representative who gave part of that payment to

another state representative and kicked back another part of it to

Frederic Ingram personally. The government also offered to prove

that Ingram Corp. made kickback payments to an Amoco employee

who was potentially able to provide inside information and influence

the level of payments by Amoco to Ingram. Finally, the govern-

ment said it could prove that Ingram Corp. had made an interest-

free, uncollateralized loan to an Indonesian military officer who was

able to influence contracts for Ingram in Indonesia.

App. 36

ployee of a semi-official Brazilian corporation in order to

receive preferential treatment.

The government introduced at trial the testimony of

Chris Daley, an official of the Ingram Corporation, to es-

tablish the government's account of Ingram’s alleged prior

bribe. Daley testified that in 1967 the Ingram Corpora-

tion became interested in cngaging in an off-shore drill-

ing project conducted by Petrobas, a Brazilian oil com-

pany owned jointly by the Brazilian government and

private investors. Daley and Benton then met with Levindo

Caniero, the Petrobas official with responsibility for pro-

curing the contractor for the off-shore drilling. As a

result of this meeting, Caniecro agreed to provide inside

information to Ingram Corporation to assure that it was

low-bidder in exchange for a ‘‘payolf or commission.’’

Benton, Daley and Caniero agreed that these payments

should be made into a Swiss bank account. The contract

was then awarded to Ingram Corporation through a letter

of intent. However, Caniero threatened to withdraw the

letter of intent because of a delay in Ingram Corpora-

tion’s establishment of a Swiss account for him. At this

point Daley informed Ingram thai the letter of intent was

about to be lost because of the delay in making the pay-

offs. Ingram then put Daley in touch with an international

banker at Lehmann Brothers to expedite the establishment

of the account. Subsequently, between 1969 and 1973,

$172,000 was paid into the account.

We hold that this evidence was properly admissible

against Ingram in that it tended to refute Ingram’s defense

that he lacked the intent to bribe the Chicago defendants

and made the payments only to satisfy extortionate de-

mands. Rule 404(b) of the Federal Rules of Evidence

permits proof of prior crimes or acts where it is used for

such purposes ‘‘as proof of motive, opportunity, intent,

App. 37

preparation, plan, knowledge, identity, or absence of mis-

take or accident.’? This provision has been interpreted

as permitting admission of evidence of prior acts as long

as it has a substantial relevance to an issue other than

showing that the defendant has a criminal character and

therefore possesses a propensity to commit criminal aets.

See, e.g., United States v. Sigal, 572 F.2d 1320, 1323 (9th

Cir. 1978). Or, as this court has held, such evidence is

admissible ‘‘if, entirely apart from the matter of ‘propensi-

ty,’ it has a tendency to make the existence of an element

of the crime charged more probable than it would be with-

out such evidence.’’ United States v. Fairchild, 526 F.2d

185, 189 (7th Cir. 1975), cert. denied, 425 U.S. 942 (1976)

(emphasis added).

Ingram forwards three attacks on the admission of

this evidence. First, he claims, the prior payments to

(aniero were not sufficiently similar to the payments for

which he was indicted to establish their relevance to his

intent. Before examining the particular dissimilarities

urged, we note that there is no requirement that the prior

acts be virtually identical to the charged acts and that

it is sufficient that the acts be similar enough and close

enough in time to be relevant. The major thrust of In-

gram’s argument is that there is no showing that the

Brazilian payments were either illegal or immoral since

such payments are simply a way of doing business in Brazil.

Initially we must note that we would be loathe to assume

that surrepetitious payments to governmental or private

officials is a common and accepted practice in Brazil ab-

sent proof to that effect. Ingram admits that neither he nor

the government offered proof on that matter, and thus this

argument rests solely on Ingram’s facile and unsupported

characterizations of Brazilian practice. However, even

were we to accept that such payments are a legal and ac-

App. 38

cepted practice in Brazil,** we do not find that fact sufficient

to difterentiate the two transactions. In United States v.

Baggett, 481 F.2d 114 (4th Cir.), cert. denied, 414 US.

1116 (1973), the government was permitted to introduce in

a Travel Act bribery prosecution against a zoning official

evidence showing a series of transactions wherein gifts

were made to the official and favorable actions by him on

behalf of the donor followed shortly thereafter. The de-

fendant urged that since no showing of a quid pro quo had

been made by the government there was nothing to estab-

lish anything improper in these transactions. The court,

however, admitted the evidence holding that regardless of

the propriety of the individual’s acts, the evidence demon-

strated a course of conduct which indicated the defendant’s

‘‘preference for favors and gifts over his public duty.”’ Jd.

at 115. Likewise here, whatever the moral and legal

status of the Brazilian payoffs, they indicate that the de-

fendant had knowingly circumvented ordinary business

channels with ‘‘facilitating payments.’’ Admittedly the

illegality of such payments to government officials in the

United States would make such payments less likely than

those not involving illegality; that, however, does not deny

that one making such payments, legal or not, is more likely

to have the intent to influence official action by similar

*8Ingram’s assertion that such a practice is “moral” in Brazil

tempts us to examine the philosophical underpinnings of an ethical

system that varies with geographical or cultural boundaries. Even

if morality varies with one’s own culture, can it be said that an

individual from a cultural and moral tradition that condemns a

practice can morally engage in that practice once he simply steps

“across the river” into a culture with different norms? See B.

Pascal, Pensées 151 (Editions Garnier Freres 1964) (“Plaisante

qu’une riviere borne! Verite au deca des Pyrenees; erreur au dela’ —

“Curious justice that a river bounds! Truth on one side of the

Pyrenees; error on the other.’’)

App. 39

payments in other instances than one who has never made

such payments.”” The other differences urged by Ingram

are even less substantial. The fact that the Brazilian

official was an employee of a semi-publie entity and that the

indictment alleged payments to employees of a wholly pub-

lic governmental entity is a completely negligible difference,

unless of course one makes the irrational assumption that

one who would knowingly cheat both the public and private

investors would not knowingly cheat the public alone. Nor

is it relevant that the Brazilian payoff was rot initiated by

Ingram: we can see no difference in active-participation in

making payments suggested by another and initiation of

the suggestion itself, since one who is willing to perform

the essential act of bribery—that is, to dispense the bribe

‘moneys themselves—must be presumed to have also been

willing to suggest the bribe. Finally, we reject Ingram’s

characterization of the Brazilian transaction as involving

less harm than the Sanitary District bribes since the latter

added the amount of the bribes onto the contract price.

Nothing in this record suggests that the amounts charged

to Brazil would not have decreased once the cost of the

project was reduced by the amount of the bribes. Further,

it is axiomatie that for a competitively-bid project, where

no inside information was available, Ingram would have

bid less and therefore charged less than where the project

is guaranteed by virtue of a bribe and Ingram could set

its own price. It is therefore completely disingenuous to

suggest that the level of harm differed.

Ingram’s second objection is that there was no clear and

convincing proof that Ingram knew the purpose of the

29 See also United States v. Peskin, 527 F.2d 71, 84 (7th Cir.

1975), cert. denied, 429 U.S. 818 (1978) (upholding admission of

evidence of subsequent bribes to public officials).

App. 40

payments made to Caniero. We have iield that there must

be clear and convincing evidence of the prior act to justify

its admissibility,’ and we find that there is evidence in the

record to meet that standard. Daley testified in camera as

to Ingram’s reaction when he learned of the payments and

that Benton’s delay in setting up the account might lead

to a revocation of the letter of intent. Daley stated:

Benton was to open it, which we wouldn’t do. So

that’s when I called Fritz, and Fritz says, ‘‘Jesus

Christ. How did you get into that,’’ or whatever.

And he says, ‘‘Okay, okay. We will go ahead and

call him back and see what we can put together.’’

(Tr. 5638). At trial, Daley testified as to Ingram’s re-

sponse to knowledge of the payments in the following

terms: ‘‘Mr. Ingram, in disgust, says ‘Well, okay. I will

see what I can do about it... .’’’ (Tr. 5674). It is dif-

ficult to understand why Ingram would have responded

‘fin disgust’? or with queries as to how Daley became in-

volved ‘‘in that’? unless he knew that the payments were

illicit payments made to procure unauthorized benefits

or at least were improper in some respect. Furthermore,

the government introduced a memorandum sent out by

Daley to Ingram in which Daley stated that he knew after

speaking with Petrobas personnel that Ingram would be

the low bidder and that Caniero had insured Daley that

‘‘we could count on him for any assistance we need.’’ Con-

sidering all the evidence, particularly Ingram’s reaction to

Daley’s statement and his knowledge that Ingram was

* United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir.),

cert. denicd, 429 U.S. 929 (1976). Compare the majority opinion

in United States v. Beechum, 582 F.2d 898, 910, 912-913 (5th Cir.

1978) (en banc) with the dissent in that case, id. 918, 922-923

(Goldberg, Godbold, Simpson, Morgan, and Roney, JJ., dissenting).

App. 41

assured to be the low bidder, there is a convincing por-

trait of Ingram’s knowledge of the purpose of the Caniero

payments,

Finally, Ingram urges, relying on Rule 403 of the Fed-

eral Rules of Evidence, that the prejudicial impact of the

evidence outweighed its relevance and therefore should

have been excluded. Ingram must sustain a heavy burden

to sueceed on this argument since the careful balancing of

the probative value of prior acts versus their possible un-

duly prejudicial effect is uniquely appropriate to the in-

formed discretion of the trial judge. See United States v.

Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S.

818 (1976); United States v. Sigal, 572 F.2d 1320, 1323

(9th Cir. 1978). More precisely, this balancing entails con-

sidering whether the probative value this evidence had in

indicating that Ingram’s intent was to bribe, not to satisfy

extortionate demands, outweighs its possible prejudicial

effect, that is, the possibility that the jury will take the evi-

dence to be indicative of a criminal disposition,

The highly judgmental character of this test mandates

that we not restrike the balance ourselves but instead ex-

amine only the manner in which the district court exercised

its discretion. The record here shows that the trial court

was meticulous and deliberate in its decision to admit the

evidence, The trial court heard in camera evidence of a

number of prior acts which the government had sought to

introduce.*' After extensive discussion the court permitted

proof only of the Petrobas transaction. Further, the court

required the government to present its witness to the Petro-

bas transaction in camera to confirm the substance of the

testimony. Finally, to minimize any prejudice the court

preceded the presentation of this witness’s testimony be-

31 See note 27 supra.

?

App. 42

fore the jury with an extensive limiting instruction em-

phasizing that Ingram was not ‘‘on trial’’ for this previous

transaction, that the evidence was to be considered only as

it concerned Ingram’s intent in the Sanitary District trans-

action and that the court passed no judgment on the value

of this evidence. Courts have often looked to these factors

indicating due consideration to uphold the trial ecourt’s

judgment. See, e.g., United States vy. Carleo, No, 77-1103

(10th Cir. May 12, 1978). In particular, the use of limit-

ing instructions has been accorded great significance. See

United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978).

We therefore decline to hold that the trial court abused

its discretion,

IV.

Grovernment’s Compliance with Brady vy. Maryland

During his opening statement, counsel for the govern-

ment revealed that the principal government witness, Ben-

ton, had embezzled and applied to his own benefit $375,000

of the money he obtained from Ingram in order to pay off

the Chicago defendants. Although the government had

turned over to the defendants both Benton’s and Ingram

Corporation’s financial records, from which the gevernment

asserts the defaleations could have been discerned by the

defendants, the government did not turn over to the de-

fendants Benton’s grand jury testimony in which he re-

ferred to the $375,000 as ‘‘the amount of money I am re-

sponsible for keeping,’’ nor did the government disclose

that Benton had expressly admitted the embezzlements in

interviews with government counsel. Defendants McPart-

lin and Janicki, relying on Brady v. Maryland, 373 U.S. 83

(1963), urge that this failure to disclose this information

earlier violated their Due Process rights and mandates

reversal of the convictions.

App. 43

We note initially that Brady and its successor, United

States v. Agurs, 427 U.S. 97 (1976), address a thoroughly

different problem than the one before us. The concern

of Agurs and Brady is whether the suppression of excul-

patory material until after trial requires that a new trial

be given so that this evidence may be considered. The

Court in -lgurs characterized the situations to which the

Brady principles apply as those involving ‘‘the discovery,

after trial, of information which had been known to the

prosecution but unknown to the defense.’’ 427 U.S. at 103

(emphasis supplied). Indeed the standard developed in

-lgurs can only sensibly be applied to the suppression of

evidence throughout the trial: ‘“‘if the omitted evidence

creates a reasonable doubt that did not otherwise exist,

constitutional error has been committed. Jd. at 112 (em-

phasis supplied),

The defendants here, however, do not complain of a

total suppression of favorable evidence but merely attack

the timing of the disclosure of such evidence. Here the

prosecutor did not conceal or withhold evidence of Ben-

ton’s defalcations but waited until early in the trial to

reveal them.” There is nothing in Brady or Agurs to

require that such disclosures be made before trial, and we

have explicitly held this in the past. United States v. Stone,

*° Defendant Janicki also apparently claims that the government

did not ultimately turn over all exculpatory material relating to

specific instances of embezzlement: “the Government may have

secured information about particular instances of embezzlement

about which the defendant was unaware... .” Brief of Defendant

Janicki at 32. However, a denial of Due Process cannot be premised

on the defendant’s mere conjecture that there might have been

favorable evidence which was undisclosed. ‘Vhe existence of the

evidence must be established, and here the defendants offered noth-

ing to rebut the government’s assertion that it had turned over to

the defendants all its information on the embezzlement.

App. 44

471 F.2d 170, 173-74 (7th Cir. 1972), cert. denied, 411 US.

931 (1973). See also United States vy. Lomprez, 472 F.2d

860 (7th Cir. 1972), cert. denied, 411 U.S. 965 (1973).

Thus, even though evidence might be material or might

create a reasonable doubt as to guilt, Due Process, albeit

requiring eventual disclosure, does not require that in

all instances this disclosure must occur before trial.

The appropriate standard to be applied in a case such

as this is whether the disclosure came so late as to prevent

the defendant from receiving a fair trial. See United

States v. Stone, 471 F.2d at 174. After considering the

record and the claims of prejudice forwarded by the defen-

dants, we cannot say that this disclosure came so late as to

violate Due Process.

The defendants, apparently relying on their misinter-

pretation of Brady as a constitutional mandate for pretrial

discovery, concentrated on the exculpatory nature of the

evidence and barely developed before this court any spe-

cific ways in which they were prejudiced by this delay.**

McPartlin merely argues that, had the Benton embezzle-

ments been revealed before trial, ‘‘specific requests could

have been directed toward more detailed information con-

cerning these [embezzled| funds. ... A thorough investi-

gation into the disposition of those funds which he ad-

mittedly retained might have revealed that additional funds

were similarly expended, deposited or hidden.”’ Brief for

Defendant MePartlin at 34-36. It is difficult for us to dis-

cern any undue prejudice on this basis. To begin with,

there was nothing to preclude the defendants from having

8 At trial the defendants made only generalized claims of preju-

dice without advancing any specific theories upon which a finding

of prejudice might be based. Tr. at 230-31 (Janicki), 249-50 (Mc-

Partlin). Such specific theories were advanced for the fist time in

the briefs submitted to this court.

App. 45

made additional investigations between the time of the

disclosure and the close of the evidence almost two months

later, and yet nothing in the reeord reveals that defendants

directed any further inquiries to Benton. This omission

is even more important given the statement of the trial

court that it would reconsider the defendant’s motion for a

recess if it later became apparent that ‘‘anyone has in fact

been prejudiced by a late disclosure.’? Tr. at 250. Nor

did the defendants subsequently renew their request for

a continuanee. Thus, given the failure of the defendants to

pursue adequately any subsequent investigation and their

subsequent failure to request additional time for any inves-

tigation thoroughly discredits their assertion that they were

prejudiced by the timing of the disclosure.

V.

Admission of Benton’s Desk Calendars

At trial the govérnment introduced as exhibits over

the objections of the defendant, the desk calendar-appoint-

ment diaries of William J. Benton described above, Part

I, B. 1. These diaries documented in some detail the deal-

ings of Benton with the Chicago defendants. As a foun-

dation for admission of the diaries, Benton testified that

he had kept such business diaries since 1952 or 1953

and that he maintained these diaries during the period of

his dealings with Metropolitan Sanitary District officials.

Benton further testified that he kept these diaries and

made entries in them as a regular part of his business

activity as a vice-president of Ingram Corp., noting in

them anticipated meetings, telephone calls, personnel mat-

ters and bids. These entries were characterized by Ben-

ton as ‘‘things which I would need to look back on,’’ to

recall a bid or to prepare letters and memoranda, for ex-

ample.

App. 46

In admitting the diaries the trial court made the follow-

ing findings:

It was the regular course of business for Mr. Ben-

ton to make entries in diaries about the things he did

during the course of a business day, where he went,

what people said to him, what commitments he made

and what commitments were made to him in con-

nection with that business. The entries that are con-

tained in the diary, in the series of diaries, do per-

tain to Ingram’s business.

The contents of the diaries further indicated their relia-

bility to the district court:

I find no indication of a motive to falsify. At the

time these entries were made back in 1971 and 1972,

there is not the slightest bit of evidence to suggest

that Mr. Benton thought this scheme was going to be

disclosed; that he thought that he would be caught.

There is nothing self-serving about these entries. They

implicate Mr. Benton in serious criminal misconduct.

Indeed, if he were unavailable, I think these diaries

might well be admissible as statements against penal

interest, so incriminatory are they of Mr. Benton.

So I think they have the earmarks of reliability in

that sense.

We agree with the district court that these diaries were

admissible. These diaries clearly fulfilled all the require-

ments which justify the admission of business records un-

der Federal Rule of Evidence 803(6). These records were

kept as part of a business activity and the entries were

made with regularity at or near the time of the described

event. Most importantly these diaries satisfied the central

rationale of the-business records exception: since Benton

App. 47

had to rely on the entries made, there would be little reason

for him to distort or falsify the entries.

The application of the business record exception to docu-

ments differing greatly from the classie ‘‘shopbook’’ or

business ledger is well established. See, e.g., United States

_v. Reese, 568 F.2d 1246 (6th Cir. 1977) (serapbook of press

clippings compiled by public relations department) ; United

States v. Yates, 553 F.2d 518 (6th Cir. 1977) (letter from

bank to employees describing recent robbery); Magnus

Petroleum Co, v. Skelly Ou Co., 446 F.Supp. 874 (B.D.

Wis. 1978) (corporate officer’s personal notes of business

negotiations) ; Alwminum Co. v. Sperry Products, Inc., 285

F.2d 911, 916 (6th Cir. 1960), cert. denied, 368 U.S. 890

(1961) (inventor’s diary of progress on invention). More-

over, the business record exception has been applied to

admit documents indistinguishable in kind from Benton’s

desk calendars. In United States vy. Evans, 572 F.2d 455

(5th Cir. 1978), the court permitted the introduction of

‘‘nocket-size appointment calendars known as ‘day-

timers.’ ’? Jd. at 487. The court noted in support of its

holding that these calendars were business records that

‘*the entries purport on their face to list ... business enter-

tainment expenses... [and] such documents were used as

a matter of company policy.’’ 7d. at 488. Likewise, the

calendars here on their face describe business matters

and, even if not mandated by Ingram policy, were kept in

accord with the widespread practice of business executives

to maintain such records,

Defendants MecPartlin and Weber have argued that sev-

eral facis differentiate the records here from admissible

business records. First, the defendants stress that some

of the entries in the calendars were made out of sequence.

The defendants’ document expert testified that fifteen en-

App. 48

tries out of all those made over a two-year period were

made out of sequence. We do not however agree with the

defendants that nonsequential entries preclude admissibili-

ty as business records. Although there is no dispute that

Benton’s entries in a few cases did not proceed page by

page in the book, the defendants’ document examiner could

not disprove Benton’s statements that entries were made at

or about the time of the described event. Indeed, it seems

to us that insisting that entries proceed methodically from

the first to last page is as pointless as insisting that ledger

and account entries proceed in alphabetical order or from

top to bottom. As long as the entries satisfy the contem-

poraneity and regularity requirements, their sequence is

irrelevant. This at was made clear by the Tenth Cir-

euit in United Si.» | vy. Carranco, 551 F.2d 1197 (10th Cir.

1977). There “efendants attempted to block the admis-

sion of freight b.. on the ground that some of the nota-

tions on the bills occurred after the document had been

completed by the freight originator. The court rejected

this argument noting:

The notations on the freight bill were explained by

the witnesses, and this is probably more than is re-

quired by the business records exception to the hear-

say rule. As pointed out by the appellee, a freight

bill is not meant to be a static document nor is it used

as such. As testified to by those familiar with the ship-

34 The defendants have also attacked the contemporaneity of the

entries, arguing that the records were inadmissible because entries

were made relating to appointments before the appointment took

place. This is an overly narrow construction of “at or near the

time.” Even though such entries were not made “at or near the

time” of the meeting they were “at or near the time” the appoint-

ment was made. This seems to be sufficient contemporaneity to

constitute a business record documenting the making of appointments.

App. 49

ping business, a freight bill is used by many different

people and it is their job to make notations on the

freight bill so it will continue to be an accurate descrip-

tion of the shipment. It was adopted by ICX as its

record, in the regular course of its business, when the

ICX driver signed it as he picked up the interline ship-

ment. He used it as an ICX record, verified the ship-

ment, and made the notations on it. The notations as

testified to by the witnesses were thus also made in

the regular course of business of ICX. One of the

freight bill copies went into the ICX terminal records,

and one or more copies continued with the shipment.

The requirements of Rule 803(6) of the Federal Rules

of Evidence were met.

Id, at 1200. Similarly here there is no reason to require

that an appointment calendar remain a ‘‘statie document”’;

indeed as appointments and other matters change the eal-

endar to be useful must be nonsequentially revised. The

only requirement is that these revisions be contempora-

neous and regular, and the defendant’s proof of simple

nonsequentiality does not rebut Benton’s testimony that

the entries were made regularly and contemporaneously.

However, even if several of the entries were made non-

contemporaneously, it remains within the district court’s

discretion to determine whether the few non-contempora-

neous entries so undermine the reliability of the record as

to preclude admissibility. Given that there were only

fifteen non-sequential entries over a two year period, even

if many of these were shown to be non-contemporaneous,

we could not say that this discretion was abused.

The defendants also urge that these diaries could not

be business records because they were relied on by no

one other than Benton and in any event contained many

App. 50

entries of a purely private nature, viz., the alleged extor-

tion scheme engaged in by Benton which supposedly was

not related to Ingram Corporation’s official business. How-

ever, nothing in the text or comments to the Rule provides

any indication that a necessary prerequisite to the reliabil-

ity of a business record is verification by persons other

than the one making the entry. Indeed, the Advisory Com-

mittee Notes appear to suggest otherwise:

The element of unusual reliability of business records

is said variously to be supplied by systematic check-

ing, by regularity and continuity which produce habits

of precision, by actual experience of business in rely-

ing upon them, or by a duty to make an accurate

record as part of a continuing job or occupation.

Certainly the second and fourth, and possibly the first,

indicia of reliability contemplate only the accuracy im-

posed by the record keeper on himself. Accordingly, ad-

missibility has been upheld even in instances in which

the records were made only for the benefit of the record

keeper himself and not for ihe benefit of the entire busi-

ness entity. See United States v. Prevatt, 526 F.2d 400,

403 (5th Cir. 1976); Aluminum Co. of America v. Sperry

Products, Inc., 285 F.2d 911, 916 (6th Cir. 1960), cert.

denied, 368 U.S. 890 (1961).

Nor do we consider it significant that the illegality of

Benton’s activities may have removed these actions in

some technical sense from a narrow construction of his

duties at Ingram. This argument proceeds on the false

premise that because Benton’s activities were not a part

of Ingram Corporation’s business, they could not be a

business at all. United States v. Re, 336 F.2d 306 (2d Cir.),

cert, denied, 379 U.S. 904 (1964), addressed, and rejected,

such a contention. There the defendant after having gained

App. 51

control of a company, engaged in a fraudulent scheme for

the distribution of that company’s securities for his own

personal benefit. The court was unpersuaded that records

relating to that scheme, since they were not part of the

company’s business, could not constitute business records.

The court pointed out that the defendant, ‘‘ while distribut-

ing a huge blo¢k of control stock to the investing public

through a complex system of brokerage accounts and over-

the-counter sales, was engaged in a ‘business,’ ’’ albeit a

business of his own and not the company’s. Jd. at 313. The

court further rejected the notion that business records

would lose admissibility as such because of the illegality

of the underlying business. We think that the same ra-

tionale applies here. Benton was engaged in systematically

negotiating under-the-counter payments either for himself

or the Chicago defendants in order to facilitate the award

of business contracts. Although this is not a business of

‘‘the usual orthodox nature’’ (id.), there is no question

that this bribery scheme was as much a business as a

fraudulent securities-marketing scheme.

However, even if there were to be some question as to

whether Benton’s activities constituted an independent

business, we believe that his activities can also be charac-

terized as part of Ingram’s business. As long as the

recorded activities had become, properly or not, an integral

part of Benton’s business activities for Ingram, the records

are not too personal to preclude admissibility under this

exception. In this matter we are persuaded by United

States v. Schiller, 187 F.2d 572 (2d Cir. 1951). There the

defendant, a government employee in the Rent Control

Program, maintained a diary which evidenced a_ bribe

paid to him. The court, in refusing to consider a Fourth

Amendment challenge to the admission of the diary prem-

ised on the personal, non-official nature of the papers.

noted:

App. 52

We think ... there was a sufficient showing that the

entries introduced in evidence dealt with official duties.

Such matters as rent adjustments and recommenda-

tions regarding the same were within his general duties,

whether he performed them rightly or wrongly, at—

lunch or elsewhere... .

187 F.2d at 575 (emphasis supplied). Certainly if such

papers have sufficient business character to remove them

from the personal paper protections of the Fourth Amend-

ment, they have sufficient reliability to permit admissibility.

Defendants finally rely heavily on Buckley v. Altheimer,

152 F.2d 502 (7th Cir. 1945) in support of their position.

In Buckley, this cireuit declined to permit, under the busi-

ness record exception, the admission of a diary which con-

tained entries documenting the amount of indebtedness

between two parties, Frost and Altheimer. The court, in

denying admission, noted that ‘‘{t|he book did not contain

any regular set of entries, relating to any accounts between

Frost and Altheimer.’’ Jd. at 507. It was argued that,

although no claim was made that the entries in the diary

occurred in the regular course of business and was ‘‘in-

formally kept,’’ the diary should have been admitted be-

cause the entries were made ‘‘precisely and meticulously.”’

Id. The court rejected this argument, stating that ‘‘pri-

vate diaries as distinguished from account books or in-

dividual memoranda of particular transactions’’ are in-

admissible. Jd. at 508. It is this latter statement upon

which the defendants rely.

We believe however that the defendants’ emphasis on

the court’s language concerning ‘‘private diaries”? is mis-

placed. We do not believe that the court there intended

to make any per se rule precluding the admissibility of

private diaries; instead it is clear that the decisive factor

in that case was that no regular entries had been made

documenting the relationship. The desk calendar before

App. 53

us is clearly a record of a different order: regular and

frequent entries documenting the relation between Benton

and Sanitary District officials were made systematically

for the purpose of allowing Benton to rely on its accounts

of the status of the relationship.

We note as a final matter that even if any of the defen-

dant’s arguments were sufficient grounds to prevent ad-

mission of these diaries under the business record excep-

tion, they would be admissible under two other exceptions.

First, they would be admissible under the ‘‘residual’’ ex-

ception, Federal Rule of Evidence 803(24).*%° A number

of factors combine to demonstrate the reliability of the

entries: the highly self-incriminatory nature of the entries

themselves, the regularity with which they were made,

Benton’s need to rely on the entries. Where evidence com-

plies with the spirit, if not the letter, of several exceptions,

admissibility is appropriate under the residual exception.

See generally, United States v. Inaconetti, 406 F. Supp. 554

(E.D.N.Y.), aff'd, 540 F.2d 574 (2d Cir. 1976), cert. denied,

429 U.S. 1041 (1977) (especially Judge Weinstein’s opinion

for the district court). Furthermore the degree of reliabil-

ity necessary for admission is greatly reduced where, as

here, the declarant is testifying and is available for cross-

examination, thereby satisfying the central concern of the

hearsay rule. Second, these calendars would also be ad-

35 Rule 803(24) provides:

(24) Other exceptions. A statement not specifically covered

by any of the foregoing exceptions but having equivalent cir-

cumstantial guarantees of trustworthiness, if the court deter-

mines that (A) the statement is offered as evidence of a material

fact; (B) the statement is more probative on the point for

which it is offered than any other evidence which the proponent

can procure through reasonable efforts; and (C) the general

purpose of these rules and the interests of justice will best be

served by admission of the statement into evidence.

App. 54

,

missible under Rule 801(d) (2) (I) as statements ‘‘by a co-

conspirator of a party during the course and in further-

ance of the conspiracy.’’ Since these entries were made

so that Benton could rely on them in earrying out his

scheme, they aided and were ‘‘in furtherance of’? the con-

spiracy. See United States vy. Levens, 572 F.2d 455 (5th

Cir. 1978).

VI.

Weber’s Prior Consistent Statements

The government’s evidence revealed that the first install-

ment of the bribe money consisted of $75,000 given to Me-

Partlin in Weber’s presence. Some part of that amount

consisted of thousand-dollar bills. The government further

presented evidence to establish that three days after this

cash payment, Weber deposited nine thousand-dollar bills

in the bank account of one of the companies controlled by

Weber. Weber, in an attempt to rebut the damaging in-

ferences that could properly to be drawn from such a cash

deposit, testified that he obtained this money from a safe-

deposit box maintained by himself and his mother. His

mother testified that they indeed had such a joint safe-

deposit box and that it did contain several thousand-dollar

bills. As further corroboration, Weber sought to introduce

the testimony of his accountant, as well as the accountant’s

copy of the bank statement recording the deposit. In an

offer of proof Weber indicated that the accountant would

testify that in 19738, two years after the deposit, Weber

told him, in connection with his preparation of an IRS

audit, that the funds. were obtained from Weber’s mother.

The proffered bank statement contained the accountant’s

notation next to the sum: ‘Overdraft covered and paid in

eash from Mother (per FNW).’’ The trial court refused

the admission of the accountant’s testimony and his copy

App. 55

of the bank statement. Defendants MePartlin®* and Weber

urge that this was error.

Two theories of admissibility are advanced. First, it is

argued that the evidence was admissible under Federal

Rule of Evidence 801(d)(1)(B) as a prior consistent state-

ment.** We do not believe, however, that these statements

were admissible under this theory. Evidence offered un-

der this theory must have some probative value in rebut-

ting the implied charge of recent fabrication or improper

motive. However, where a motive to falsify also existed

at the time of the earlier statement, it possesses no such

probative value. As Judge Weinstein correctly pointed

out in his treatise on the Federal Rules:

Substantive use under Rule 801(d)(1)(B) is limited

to situations where high probative value is most likely.

Evidence which merely shows that the witness

said the same thing on other occasions when his mo-

36 McPartlin argues that evidenge denying Weber’s participation

in the first bribe installment would have inured to his benefit since

the original installment was alleged to have been. delivered to Mc-

Partlin in Weber’s presence. Thus, presumably, any cash deposited

by Weber, if not from innocuous sources, would have been obtained

from McPartlin. We do not think, however, that any benefit from

such evidence would have been sufficient to have made its exclusion

a denial of a fair trial to McPartlin. The fact that Weber may not

have received a cash rake-off from this first installment in no

way detracts from the credibility of testimony that McPartlin re-

ceived the money; at most such evidence would have only contributed

to a demonstration of McPartlin’s penuriousness.

37 Rule 801(d)(1)(B) provides that

(d) A statement is not hearsay if... (B) consistent with

his testimony and is offered to rebut an express or implied

charge against him of recent fabrication or improper influence

or motive. ...

App. 56

tive was the same does not have much probative force

‘*for the simple reason that mere repetition does not

imply veracity.’’

4 J. Wernstern & M. Bercer, Mvivence §801(d)(1)(B){01)}

at 801-100 (1977). Obviously Weber would have had no

more reason to tell the IRS that the proceeds were illegal

bribes than he has a motive now to tell that to a jury in

a criminal prosecution. Indeed, Weber would have even

had a further reason not to tell the IRS that the $9,000

was part of a kickback: a bribe would be ineludable in

Weber’s gross income whereas an appropriation of jointly-

held funds might not have been. Thus, we do not feel that

these prior statements were admissible under 801(d)(1)(B).

As a second ground of admissibility, Weber and Me-

Partlin urge that the bank statement was admissible as

a business record under Federal Rule of Evidence 803(6).

This argument creates a paradoxical tension with their

arguments that Benton’s desk calendars were not business

records. The defendants assailed the diaries on the grounds

that the entries were not made at or near the time of the

event related (but recorded in advance as reminders of

appointments) and that many of the entries were derived

from ‘‘second or third-hand information.’’ Brief for De-

fendant Weber at 7. Yet the defendants urge that a single

notation of a cash transaction made more than two years

after the transaction and based solely on information sup-

plied by someone other than the person making the entry

constitutes a business record. We do not rely on these two

grounds, however, to uphold the exclusion of the notation

on the bank statement. Instead we find a more funda-

mental flaw in this evidence: this notation, unlike those in

Benton’s diaries, was not made for future reference and

reliance but was made in anticipation of IRS litigation.

The defendants appear to admit this fact, and the trial

App. 57

judge was informed of this. (Tr. 1363-69). As such pre-

litigation records, we hold that they lacked sufficient trust-

worthiness to permit admissibility. Indeed, this case is

not significantly distinguishable from Hartzog v. United

States, 217 F.2d 706 (4th Cir. 1954), which was cited by

the Advisory Committee Notes to Rule 803(6) as an ex-

ample of insufficient trustworthiness. In /Hartzog the court

held it was error to admit the worksheets of an IRS agent,

deceased at the time of trial, that had been prepared from

his examination of the defendant’s records in preparation

for a tax-evasion prosecution. The court explained the

reasons for finding insufficient trustworthiness as follows:

These worksheets were made in preparation for this

prosecution; they were Baynard’s [the agent’s] per-

sonal working papers, were the product of his judg-

ment and discretion and not a product of any efficient

clerical system. There was no opportunity for any-

one... to tell when an error or misstatement had been

made. These worksheets were not more than Bay-

nard’s unsworn, unchecked version of what he thought

[the defendant] Hartzog’s records contained.

Id. at 710. The records made by Weber’s accountant are

no more trustworthy than those prepared by the agent in

Hartzog: they were prepared as a matter of his judg-

ment and discretion; they were not produced as part of

any regular system; there was no reliance on these nota-

tions by the accountant or others to guard against error or

misstatement. If anything, the records in this case are

less trustworthy since, unlike [/arizog where the agent

examined records that the defendant had prepared for his

own use, these notations were the product of Weber’s own

representations for the purposes of the audit, thereby fur-

thering the possibility of misstatement. Accordingly, we

App. 58

hold that the trial court properly exercised its discretion

to exclude these records.**

Pei, Circuit Judge:

I concur in the portions of this opinion prepared by

Judges Tone and Sprecher.

Vu.

Weber’s Political Acquaintances

Henry Weber, brother of Franklin Weber, called as a

Government witness, was permitted to testify on direct

examination without objection that his brother Franklin

was an acquaintance of Clyde Choate. He was then ask-

ed whether his brother was an acquaintance of Paul Powell

to which he also responded in the affirmative. An objec-

tion was made, without any specificity, following the an-

swer as to Powell. There was no motion to strike the an-

swer and the ‘‘objection’’ as such was overruled. No

effort was made at the time to demonstrate to the trial

judge any particular basis for the objection.

Subsequently during redirect examination Weber

moved for a mistrial on the basis of the Powell matter

because ‘‘|i]t was highly prejudicial and has no relation

38 Further support can also be found in this circuit’s decision in

United States v. Ware, 247 F.2d 698 (7th Cir. 1957), also cited

by the Advisory Committee as a proper application of the untrust-

worthiness principle. In Ware this circuit held that records of drug

purchases made by a drug agent were inadmissible in subsequent

prosecutions, noting that “such utility as... [these records] possess

relates primarily to prosecution of suspected law breakers and only

incidentally to systematic conduct of the police business.” Jd. at 700

(emphasis supplied). Likewise, the notations here must be seen as

relating primarily to the avoidance of additional tax liability or prose-

cution as a result of an audit and only incidentally to the conduct of

Weber’s business.

App. 59

whatsoever to this case.’? The court in denying the mo-

tion, properly from our examination of the record, ob-

served that:

the reason I let that in is that you cross examined

several witnesses about whether or not there was any

reason to believe Mr. Weber had any political connec-

tions, whether it was credible to believe that he knew

anybody, and there again, that is something you

opened up.

Without specific reference to Powell, Weber again

moved for a mistrial following final argument. He now

says that which he didn’t say to the court specifically

that on the basis of Fed. R. Evid. 404(b) the testimony as

to Powell was improper and prejudicial in the light of

widely-circulated publicity of wrongdoing on the part of

Powell when he was Secretary of State of Illinois. Cer-

tainly in any trial and particularly in a complex trial in-

volving numerous defendants such as the present case, a

lawyer should make clear to the trial judge the exact

nature of the claimed prejudice, which was not done

here. Even, however, if we assume what probably was a

fact that the notoriety given to the Powell case some

seven years earlier was such as to make it clear why

Weber’s attorney did not want his client linked with

Powell, we agree here with the district court that the

door had been opened. Weber, not the Government, por-

trayed political associations, which he sufficiently in-

dicated he did not have, as a unique requirement for ac-

complishing that with which Weber is charged.

For the court to admit relevant evidence in rebuttal

on the subject was well within its discretion. See United

States v. Eliano, 522 F.2d 201 (2d Cir. 1975) ; United States

v. Jones, 438 F.2d 461 (7th Cir. 1971). C. Wright and

K. Graham, Federal Practice & Procedure § 5241. The

App. 60

purpose of Rule 404(b) is to prevent ‘‘the use of aieged

particular acts ranging over the entire period of the defea-

dant’s life [making] it impossible for him to be prepared

to refute the charges, any or all of which may be mere

fabrications.’’ 2 J. Weinstein, Evidence {405 [04], at 405-

39, quoting Wigmore, Evidence § 194. The defendant

focused the proof on this issue and cannot complain of

surprise if evidence of his political associations was in-

troduced.

VIil.

Henry Weber’s Grand Jury Testimony

Franklin Weber also objects to the admission of his

brother Henry’s grand jury testimony at trial. Henry

Weber testified on direct examination that he went to

Vaduz, Liechtenstein, to negotiate two letters of credit

given to him by the defendant. During the course of the

direct examination, the Government attempted to introduce

Henry Weber’s inconsistent grand jury testimony that he

had never gone to Liechtenstein, testimony given two weeks

after his return from that country at the first of his two

appearances ‘before the grand jury. The court would not

admit the testimony on direct examination, however, on the

basis that the trial jury might unfairly infer that the de-

fendant had somehow been responsible for his brother’s

falsehoods. When cross-examined by the defendant, Henry

explained that because he was by coincidence going to

Europe, he negotiated the letters of credit as a favor to his

brother. Henry also testified that the defendant had told

him the letters ‘‘covered sale commissions for oil or

Arabian interest or something.’’ The trial court then per-

mitted the Government to introduce the grand jury testi-

mony on redirect examination, and the defendant argues

that the evidence still created the prejudicial impression

that Franklin Weber forced his brother to testify falsely.

App. 61

Weber’s argument that the admission of this evidence

was a prejudicial linking of the brothers Weber, however,

shifts the focus from the basis on which the evidence was

properly admitted. As the district court pointed out there

need be no connection between Franklin Weber and the

giving of the false testimony to the grand jury for that

testimony to be admissible.

The trial court properly admitted the statement as non-

hearsay, Fed. R. Evid. 801(¢); see Anderson vy. United

States, 417 U.S. 211, 219-21 (1974), to rebut the theory of

the defense raised by the defendant during cross-

examination. During cross-examination, the defendant

did not attempt to rebut the Government’s showing on

direct examination that Henry Weber negotiated the letters

of credit. The defendant instead attempted to impose upon

the transactions the appearance of innocence. Once the de-

fendant, again opening a door, attempted to create this

impression, the testimony became significant as rebuttal

merely because it was given, and not for its truth.” The

grand jury testimony, viewed with other admissible evi-

dence showing that it was false, tended to establish that

Henry Weber was aware that he was involved in improper

transactions. See id. at 220.

In his reply brief, Weber argues that the Government

has resorted to mere rules of impeachment to justify the

introduction of the grand jury testimony. It is-true that

as a secondary justification the Government, citing Fed.

39 The Government's theory of the case was that Henry Weber

did go to Liechtenstein to negotiate the letters of credit. Henry's

negotiation of the letters of credit in Liechtenstein formed the basis

of Count 32 of the indictment. Because the Government was not

trying to prove the truth of the out-of-court statement, the defendant

was not prejudiced by lack of cross-examination at the time of the

grand jury testimony. Anderson v. United States, 417 U.S. at 220-21.

App. 62

R. Evid. 607, argues that it could properly impeach its

own witness, although Weber does not argue otherwise.”

Although the impeachment aspect is one which enters the

present picture, this aspect appears neither to be the prime

thrust of the Government’s position nor the basis on which

the trial court admitted the evidence. As the trial judge

pointed out when the impeaching testimony was being dis-

cussed, the cross-examination by Franklin Weber was de-

signed expressly to bring out that this was a routine trans-

action that the witness was conducting for his brother,

nothing was wrong with it and there was no reason to

suspect it. The judge then pointed out:

You didn’t have to do that. I had earlier ruled that

this [impeaching testimony] would not be admissible.

Having opened it up, I think the Government is now

entitled to show that two weeks after he returned from

Liechtenstein—and I hadn’t realized that it was that

soon that he appeared before the Grand Jury—this

witness said he had never been to Liechtenstein.

We agree with the district judge that the evidence was

properly admissible through the open door,

IX.

Denial of Effective Assistance of Counsel

A second aspect of the Swiss letters and Henry Weber’s

various connections therewith is the basis for a claim that

Franklin Weber was denied effective assistance of counsel.

* The Government also points out that pursuant to Rule 613(b),

the witness was permitted on recross-examination to explain the im-

peaching grand jury testimony by stating that he had been unfamiliar

with the geography of Liechtenstein and because of that he had not

understood the question at the time of his first grand jury ap-

pearance.

App. 638

The gist of the claim is that evidence pertaining to the

Swiss letters in addition to that discussed in Part VIII

of this opinion not only further linked Franklin Weber

with his brother’s first grand jury testimony but also con-

stituted such a challenge to the integrity of Franklin

Weber’s trial lawyer as to deny the defendant effective as-

sistance of counsel.

Specifically, the proof to which the objection is directed

is the testimony, presented during the Government’s re-

buttal, of Assistant United States Attorney Michael

O’Brien, who had conducted the preliminary grand jury

investigation. The testimony described the following se-

quence of events: About a week after Henry Weber testi-

fied truthfully before the grand jury on December 3, 1975,

his second appearance, that he carried the letters of credit

to Liechtenstein, Franklin Weber’s attorney had called

Government counsel to report his client’s possession of

other letters of credit. During closing argument, the pros-

ecutor suggested, ‘‘Isn’t it interesting that after Henry

Weber has all this recollection, then everybody is calling

up and telling the Government about it, after the cat is

out of the bag.’’ The defendant argues that this statement

implied that defense counsel engaged in wrongdoing and

therefore denied the defendant assistance of counsel. This

argument is completely without merit. The cases cited hy

the defendant, United States v. Candelaria-Gonzalez, 547

F.2d 291 (5th Cir. 1977), and Zebouni v. United States,

996 F.2d 826 (Sth Cir. 1955), concerned continuous derision

of the defense attorney by the trial judge and are not in

point. Furthermore, we have difficulty seeing how this

testimony and final argument disparaged defense counsel.

The Government’s questioning and argument were obvi-

ously for the purpose of rebutting the defendant’s excul-

patory evidence that Franklin Weber had not learned of

the grand jury investigation until ‘‘very recently,’’ and

App. 64

that he had been suspicious of the purpose behind the

letters of credit, and that he therefore directed his at-

torney to notify the United States Attorney that he pos-

sessed more letters of credit.

We find no error in the admission of the rebuttal evi-

dence. It was for the jury to draw such inferences as the

evidence properly supported on the issues to be deter-

mined by the jury. The admission of this evidence prop-

erly bearing on what amounted to an assertion of a de-

fense does not by any stretch of the imagination so im-

pugn the defendant’s attorney as to make his assistance

ineffective to the prejudice of his client. We find no sug-

gestion in the record that the attorney had the information

with respect to the letters any sooner than he provided the

information to the Government.

Xs

Judge’s Comment during Weber’s Testimony

Franklin Weber finally argues that a comment by the

trial judge during his testimony constitutes reversible

error. The defendant testified, ‘‘I can swear that I did

not see Mr. Benton give him anything... .’’ The trial

judge then said in the presence of the jury, ‘‘that is what

you are doing in everything you say. You understand

that.’’ Thereafter the matter was brought to the atten-

tion of the judge by way of a motion for a mistrial in

which it was claimed that Weber’s credibility was seri-

ously depreciated in the eyes of the jury. The court im-

mediately stated that the remark was not intended in any

such way and offered to make that clear to the jury.

The judge did fully explain to the jury that in reflecting

upon the matter he thought he should not have made the

statement and that he in no way intended to reflect or

comment on Weber’s testimony or indicate any attitude

App. 65

whatsoever about ‘he testimony. The judge also in final

instructions made it clear that any comment by the court

was not intended to invade the jury’s province to decide

the facts.

Weber, while not challenging the completeness of the

court’s curative instruction; argues that it did nothing to

heal an incurable situation, stating that ‘‘A placebo can-

not cure a terminal condition.’’ In candor, we regard this

hyperbolic characterization as a desperate bit of straw

grabbing. In the first place we would have had difficulty

even absent the curative instruction in reading this remark

as any indication that the judge was expressing disbelief

in the defendant’s testimony. The judge, however, made

it abundantly clear, if there had been any doubt, by his

curative instruction that there was no reflection on the

witness’s credibility. In any event, this was an isolated

incident in a long and complex trial. Weber testified for

two full days during which the jury had ample opportunity

to formulate its opinion of his credibility without regard to

what was at most an oblique passing remark by the judge.

Courts generally, and properly, decline to reverse in com-

parable situations. See, e.g., United States v. Cardall, 550

F.2d 604, 606 (10th Cir. 1976), cert. denied, 434 U.S. 841

(1978) ; Gordon v. Uniled States, 488 F.2d 858, 862-63 (Sth

Cir.), cert. denied, 404 U.S. 828 (1971); United States v.

Allen, 431 F.2d 712, 712-13 (9th Cir. 1970); United States

v. Wilkins, 422 F. Supp. 1371 (E.D. Pa. 1976), aff’d sub

nom. Appeal of Smith, 547 F.2d 1164 (3d Cir. 1976), 547

F.2d 1166 (3d Cir. 1976), 559 F.2d 1210 (3d Cir. 1977).

As the Supreme Court stated in United States v. Glasser,

315 U.S. 60, 83 (1942):

{An] examination of the record as a whole leads to

the conclusion that the substantial rights of the peti-

tioners were not affected. The trial was long and the

incidents relied on by petitioners few. We must guard

against the magnification on appeal of instances which

were of little importance in their setting.

App. 66

XI.

Sufficiency of Evidence as to Edwin Bull

The defendant Edwin Bull argues that the evidence

against him was insufficient to sustain a conviction for

conspiracy because of an absence of evidence showing that

he had knowledge of the illegal purposes of the conspiracy.

He argues that the statements of co-conspirators connect-

ing him to the conspiracy were improperly admitted against

him, and that if these inadmissible statements had heen ex-

cluded, his conviction could not stand.

Bull’s theory of defense was that he was merely a

‘‘friendly and accommodating’’ businessman who earned

a finder’s fee and a subcontract by introducing the In-

grams to the contract opportunities available at the

Sanitary District. Especially damaging to this defense,

however, was testimony admitted at trial of conver-

sations between Bull’s alleged co-conspirators concern-

ing Bull’s role in the conspiracy. Benton testified, for

example, that prior to receiving the contract, Ingram

was having trouble generating sufficient cash to meet the

demands of Sanitary District officials. When Weber

learned of this problem, he instructed Benton to write a

check for $25,000 (the amount then demanded) payable

to ‘‘Mr. Bull’s company, Bull Towing Company, and that

Mr. Bull would handle this check and convert it into

cash and take care of the staff of the Sanitary District.’’

Bull argues that without this statement the evidence mere-

ly shows that he deposited a check from Ingram for

$25,000 in the No. 3 Bull Towing account and drew a

countercheck for the same amount and received cash.

Bull also declared this sum on his corporate and per-

sonal income tax returns and paid the necessary taxes.

According to Bull’s brief, ‘‘[t|here is not a seintilla of

evidence that any of these monies reached anyone else.’’

App. 67

We hold that the co-conspirators’ statements connecting

Bull to the conspiracy were admissible under Fed. R.

Evid. 801(d)(2)(E) and that the evidence against Bull was

adequate to sustain the conviction.

Rule 801(d)(2)(E) provides that statements of a co-

conspirator made during the course of aud in fur-

therance of a conspiracy are not hearsay. In United

States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), we

held that the trial court alone should decide, as a ques-

tion of competence under Rule 104(a), the preliminary

question of whether the prop» nent has submitted sufficient

proof that there was a conspiracy before admitting a co-

conspirator’s statement under Rule 801(d)(2)(E). For

the statement to be admissible, we held that this pre-

liminary showing must satisfy the preponderance of the

evidence standard, and that the trial court’s determination

of admissibility is final as to admissibility.

The proceedings below, however, took place prior to our

decision in Sanitago, at a time when there were am-

biguities in the law about who was to decide co-

conspirator preliminary questions and by what stan-

dards. See generally, 1 J. Weinstein, Evidence §104[05].

In Santiago we noted that in this circuit the former

standard for determining the admissibility of co-conspira-

tors’ statements committed the question to both judge and

jury. The trial court would admit the statement if the

proponent made a prima facie showing, on the basis of

evidence other than the statement, that there had been a

conspiracy. The jury, however, was instructed not to con-

sider the statement against another defendant unless they

found, beyond a reasonable doubt, that the evidence other

than the statement showed that a conspiracy existed and

that the other defendant was a member of the con-

spiracy. See also United States v. Rizzo, 418 F.2d 71 (7th

Cir. 1969), cert. denied, 397 U.S. 967 (1970) ; United States

App. 68

v. Santos, 385 F.2d 48 (7th Cir. 1967), cert. denied, 390

U.S. 954 (1968).

The trial court in this case proceeded substantially ae-

cording to the prior standard, described in Santiago."

Bull, however, relying on Santiago language, which, of

course, was not available to the trial judge here, seizes

upon a part of the court’s instructions given during the

course of the trial in connection with the admission of

testimony of statements of alleged co-conspirators. It is

true that the judge did say that the jury could consider

such statements on the question of whether a conspiracy

existed. Bull cites us to criticism in Santiago of ‘the

view that the existence of a conspiracy could be proved

by the very statement for which admission is sought.’’

582 F.2d at 1133 n.11. That was done here, he argues,

and constituted ‘‘bootstrapping’’ proof which had been

condemned by earlier cases

This argument however, taking language of the in-

structions out of context, ignores the clear and explicit

admonitions of the court during the course of the trial

that as to any particular charged co-conspirator it was

essential that he be proved a participant in the conspiracy

by independent evidence before statements of others could

be considered on the question of his liability.

Thus, on the first occasion during the trial that the

subject was addressed, which was early in the trial, the

judge instructed as follows:

There are two fundamental questions that you have

to decide in regard to the conspiracy count of the

41 Although the record is not clear, we assume arguendo that the

trial court, in letting in the statements, applied the lesser prima facie

standard then used for determining the existence of a conspiracy

for purposes of admission, rather than the stricter preponderance

test prescribed in Santiago.

App. 69

indictment. The first of those questions is what is

the conspiracy that is alleged by the indictment to

have existed? Was there such a conspiracy? On

that question you consider all of the evidence that [

allow in and you make up your minds at the conelu-

sion of the case as to whether a conspiracy, as alleged

in the indictment, has been shown to exist as between

somebody.

The second question is—and it is eight separate

questions here—was this particular defendant shown

to have been a member of that conspiracy. On that

second question which you must answer in regard to

each defendant, only those acts of that particular de-

fendant should be considered to answer that question.

You can’t decide that Defendant B was a member of

the conspiracy, if you find there has been a conspiracy,

on the basis of something Defendant A said. It has

to be on the basis of what you find Defendant B said

and did.

Those are the two questions, and let’s just assume,

generally speaking, that a jury in a hypothetical case

finds Defendant B to have been a member of the con-

spiracy. All right, then and only then are the state-

ments and actions of his alleged co-conspirators ad-

missible against him, provided they are acts and state-

ments which the jury finds were committed in further-

ance of the objectives of the conspiracy.

So, to recapitulate, question one, was there a con-

spiracy? Question two, was Defendant B a member

of that conspiracy? Question three, as to any acts or

statements of an alleged co-conspirator in considering

whether you are going to consider that against Defen-

dant B, was that act or statement committed in fur-

therance of the common conspiracy?

App. 70

Only if you answer all three of those questions in

the affirmative can you consider this act or state-

ment of, say, Defendant A against Defendant B.

On analysis, all that the district court was really say-

ing as to the establishment of a conspiracy was as fol-

lows: If there was testimony as to a conversation he-

tween B and C which reflected an agreement to violate

the law, this testimony would be admissible as to B and

C and would, if believed by the jury, tend to es*ablish

a conspiracy as to B or C. If during the course of the

conversation either B or C had spoken of A’s participa-

tion this would not have been proof of A’s participation

unless and until it had already been established by inde-

pendent evidence, other than the statements of ec-conspira-

tors, that A was a participant.

While the quoted portion of the instructions above was

perhaps repetitive, and we note its substance as to the

necessity for independent evidence as to any particular

defendant becoming a conspiracy member was repeated

thereafter, it is evident that the trial judge was attempt-

ing to make absolutely clear to the jury by repetitive

emphasis that the statements of others could not be con-

sidered against a defendant for finding him to be a par-

ticipant in a conspiracy unless his membership had been

otherwise independently established. From the record

we regard this attempt by the judge to have been success-

ful.

In sum, we fail to see any prejudice to Buil. The in-

structions on conspiracy as in the case of all instructions

must be considered in the whole complex vf instructions,

and it was made perfectly clear to the jury by those in-

structions that even though a conspiracy had been es-

tablished by all of the evidence which the court had ad-

App. 71

mitted, the jury could not find Bull guilty as a conspira-

tor unless his membership in the conspiracy had been es-

tablished by independent evidence other than the state-

ments of co-conspirators.

Further, and in any event on the record in this case,

we are firmly convinced that apart from any statements

there was overwhelming independent evidence sufficient

to show the existence of a conspiracy. If there had been

any error in the instruction it would have been harmless.

Fed. R. Evid. 103(a); Williams v. United States, 338 F.2d

530 (D.C. Cir. 1964).

Bull disagrees that there was independent evidence link-

ing him to the conspiracy and asserts that the co-conspira-

tors’ statements were therefore not admissible against

him. As we have said the trial court instructed the jury

that it must find beyond a reaso ible doubt and on the

basis of independent evidence that Bull was a member of

the conspiracy before it could consider co-conspirator

statements against Bull.

In reviewing the jury’s determination of the sufficien-

cy of the independent evidence linking Bull to the eon-

spiracy, we do not weigh the evidence or determine the

credibility of witnesses. We will affirm the jury’s find-

ing if there is substantial evidence, viewed in the light

most favorable to the government, to support it, Glasser

v. United States, 315 U.S. 60, 80 (1942); United States v.

Buschman, 527 F.2d 1082, 1085 (7th Cir. 1976), and we

therefore turn to an examination of that evidence.

Robert Howson, an Ingram Contractors, Ine., Vice Presi-

dent, testified that Bull came to New Orleans in March

1971 and told him that for a southern contractor like

Ingram to get the Sanitary District contract, a political

contribution would be necessary. Benton testified that

App. 72

Bull brought Benton and Weber together for a meeting

later that month, and that the day after this meeting, Bull

told Benton that ‘‘if [Benton] agreed with the discussion

with Mr. Weber, he felt Ingram would get this contract,

there would be no problem, and that he expected to re-

ceive $100,000 and Mr. Weber’s group $200,000.’’ There

was evidence that Bull deposited a $25,000 check from

Ingram, and withdraw the same amount in eash. Although

Bull declared the amount on his taxes, there was also

testimony that Bull insisted to Benton that his finder’s fee

from Ingram include reimbursement for the taxes he paid

on the check drawn to his company. From this testimony,

the jury certainly could infer that Bull did not keep the

$25,000, and from Bull’s insistence that Ingram be responsi-

ble for the taxes, the jury could infer that Bull’s launder-

ing of the check was a favor for Ingram, to whom Bull had

earlier suggested the need for political contributions in ex-

change for a contract. The testimony also showed that

Bull’s involvement in the bribery scheme continued. When

insisting on an increase in his subcontract rates, Bull was

reminded by Benton in January 1975 ‘‘that this con-

tract extension was a similar situation with the original

contract and that Ingram did not retain all of the in-

crease that would be reflected between the various unit

prices in the two agreements.’’

We have already found that the evidence that a con-

spiracy existed was overwhelming. In United States v.

Robinson, 470 F.2d 121 (7th Cir. 1972), we noted that once

the existence of a common scheme is established, very

little may be required to show beyond a reasonable doubt

that a particular defendant became a party. See also United

States v. Harris, 542 F.2d 1283 (7th Cir. 1976), cert. denied,

430 U.S. 934 (1977). From the evidence of Bull’s inde-

pendent acts and statements, the jury was entitled to find

App. 73

beyond a reasonable doubt that Bull was a member of

this conspiracy, and the jury therefore was entitled to use

the statements of other conspirators against him.‘* The

discriminating conclusions of guilt and innocence returned

by the jury in this complex case demonstrate that the jury

studied the evidence with great care. See United States v.

Kaufman, 429 F.2d 240, 244 (2d Cir.), cert. denied, 400

U.S. 925 (1970). We decline to disturb their verdict, hold-

ing that the independent evidence of Bull’s knowing partici-

pation in the conspiracy was sufficient to support the jury’s

use of the co-conspirators’ statements against him, and

that with such evidence there is no merit in his claim of in-

sufficiency

v°

XII.

Bull’s Claim of Prosecutorial Misconduct

Kdwin bull also argues that during its closing argu-

ment, the Government raised for the first time an un-

founded inference that he bribed someone in the Illinois

Commerce Commission to procure a Certificate of Public

* Although our decision in Savtiago commits this admissibility

question to the court in the future, we nevertheless apply the then

current standards to evaluate the procedures at trial. The defendant

has not challenged the submission of the admissibility issue to the

jury. Furthermore, we fail to see how this “added layer of fact-

finding,” although unnecessary, could prejudice the defendant. United

States v. Santiago, 582 F.2d 1128, 1136 (7th Cir. 1978) ; United

States v. Petrosziello, 548 F.2d 20, 23 (1st Cir. 1977).

As we observed in Santiago, there is some danger of confusing

the jury with the instruction because the judge essentially is telling

the jury not to consider the evidence unless it has already found the

defendant guilty. See Carbo v. United States, 314 F.2d 718, 736

(9th Cir. 1963), cert. denied, 377 U.S. 953 (1964). We do not

regard the instruction as prejudicial, however, because it at least

cautioned the jury against the dangers of using this evidence for

improper purposes. 1 J. Weinstein, Evidence § 104[05], at 104-45.

App. 74

Necessity and Convenience for Ingram, Specifically, dur-

ing closing arguments, the Government attorney made

the following statement:

On July 27, 1971, Frank Weber and Ed Bull went

through another series of transactions to generate

cash very similar to what they did in April, to gener-

ate the $25,000. This time the amount involved was

$20,000.

Frank Weber made out a Southwest Expressways’

check for $20,000, payable to Bull Towing. Bull took

took it to the Bank, deposited it into the Bull Towing

Company account, and wrote a check on that amount

made payable to himself and received $20,000 in cash.

This occurred on July 27, ladies and gentlemen,

the day before Ingram received his Commerce Com-

mission Certificate of Registration.

During rebuttal argument, the Government added:

Would you put up Government Exhibit 1-12(A).

That is a check from Southwest Expressways to

No. 3 Bull Towing dated July 27, 1971, the same day

as Government Exhibit 1-12(D) was issued. It is

again a check to Ed Bull, and as the evidence indicates,

Mr. Bull left the bank with $20,000. Benton had

nothing to do with this transaction, but as you have

seen from the notes that Mr. Weber wrote, there was

apparently some sort of problem at the ICC, Illi-

nois Commerce Commission.

It just so happens that the following day, Ingram

is grarted their Certificate of Convenience and Neces-

sity by the Illinois Commerce Commission. Well, the

bankers and those documents are not ghosts, and they

begin to add up.

App. 75

Bull argues that this suggestion constituted an unconsti-

tutional amendment of the indictment and that it preju-

diced unfairly the preparation of his defense. The de-

fendant concedes that the evidence shows he converted a

$20,000 check from Franklin Weber to cash on July 27,

1971, but argues that absolutely’no evidence supports the

implication in the Government argument that he bribed

the Commerce Commission.

Although the prosecution, of course, must never refer

to matters with no basis in the evidence, United States v.

Morris, 568 F.2d 396 (5th Cir. 1978); United States v.

Meeker, 558 F.2d 387 (7th Cir. 1977), the prosecutor may

in argument suggest reasonable inferences from the evi-

dence already admitted. United States v. Jones, 482 F.2d

747 (D.C. Cir. 1975). Because of the secret nature of the

crime, conspiracy is especially subject to proof by cireum-

stantial evidence. We decline to require the prosecutor to

suggest to the jury only conclusions supported by direct

evidence.

During the trial there was evidence that the Certificate

of Public Necessity and Convenience was granted to In-

gram the day after Bull converted the check to cash. Gov-

ernment Exhibit 11-1, a memo made by Weber (also ad-

mitted in evidence), indicated that Weber had made

payments to the Commerce Commission on behalf of In-

gram. On direct examination, Weber testified that he gave

Bull the $20,000 check as a payment for a dredge, and dur-

ing cross-examination the Government confronted Weber

with the connection between the memo, the laundered check,

and the issuance of the Certificate. Bull did not object to

this line of questioning.

These matters admitted in evidence were available to

Bull in time to prepare his rebuttal. The conversion of

the $20,000 check to cash was one of the overt acts charged

App. 76

in the conspiracy indictment. The documents connected

with this line of proof were turned over to Bull’s at-

torney ten months prior to the trial. Bull’s argument

that this closing statement unfairly prejudiced his defense

must therefore fail.

Our examination of the Government’s argument and

the evidence supporting it also leads us to conclude that

the inference created was that Weber, not Bull, bribed

the Commerce Commission. The Government therefore

did not stray beyond the confines of the scheme alleged in

the indictment, which describes Bull in paragraphs 21

and 27 as having been a knowing conduit for the bribery

funds. Furthermore, paragraphs 21 and 27 of the indict-

ment describe in broad language the objects of the bribery

scheme as ‘‘ public officers and employees,’’ so that proof of

bribes to Illinois Commerce Commission officials was en-

tirely within the scope of the scheme alleged. Bull’s argu-

ment that any proof involving officials from agencies other

than the Sanitary District amended the indictment is

therefore without merit. See Stirone v. United States, 361

U.S. 212, 218-19 (1960).

XIII.

Claimed Error of Instructions on Travel Act

The defendant Frederick Ingram challenges the portion

of the court’s instructions pertaining to the counts charg-

ing violations of 18 U.S.C. § 1952 (the ‘Travel Act’’) inso-

far as the jury was told that under the Travel Act a de-

fendant need not know or reasonably foresee that the fa-

cilities of interstate commerce will be used or that someone

will travel in interstate commerce in order to be guilty

under the Travel Act. The authority in this circuit is

that neither the language nor*the purpose of the Travel

Act compels this showing of knowledge on the part of each

App. 77

co-conspirator. United States v. Peskin, 527 F.2d 71 (7th

Cir. 1975), cert. denied, 429 U.S. 818 (1976). See United

States v. Feola, 420 U.S. 671 (1975). The defendant has

offered no persuasive reason for a different rule. ‘The use

of interstate facilities merely provides the basis for federal

jurisdiction. United States vy. Peskin, 527 F.2d at 78; Umted

States v. Bursten, 560 F.2d 779, 783-84 (7th Cir. 1977).

What we have said here in no way indicates that there

is not a necessity for interstate travel or the use of an in-

terstate facility. The court did properly instruct the

jury that the Government had to prove:

(1) that someone traveled in interstate commerce,

or used an interstate facility in furtherance of the

bribery scheme; (2) that a person who caused the

travel or use did so with intent to facilitate the bribery

scheme; (3) that a member of the scheme thereafter

performed or caused to be performed acts to pro-

mote the carrying on of the bribery scheme; and (4)

that the particular defendant under consideration ‘‘was

a knowing and willful participant in the bribery

scheme at the time of the interstate travel or use of the

interstate facility and at the time the subsequent act

or acts took place.’’

The fact that Frederick Ingram did not travel interstate

or use interstate facilities or that he may not have known

that others in the bribery scheme would do so is imma-

terial.

The judgments accordingly are affirmed.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circut

App. 78

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 23, 1979.

Before

Hon. Wiisur F. Pe.u, Jr., Circuit Judge

Hon. Rospert A. Sprecuer, Circuit Judge

Hon. Pump W. Tone, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 77-2258, 77-2259, 77-2274, 77-2275 and 77-2280

ROBERT McPARTLIN, et al.,

Defendant-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 76 CR 779—John F. Grady, Judge

This matter is before the court on the petitions for re-

hearing filed by the appellants, McPartlin, Janicki, Ingram,

and Bull. The petitions of Ingram and McPartiin sug-

gested an en banc rehearing. The appellant Weber did

not file a petition for rehearing.

The court’s attention has been directed during the course

of considering the petition of appellant Bull to an inadver-

tent typographical omission in the sentence beginning on

line 5 of page 58 of the slip opinion of this court. Accord-

App. 79

ingly the opinion is amended with respect to said sentence

so as to read as follows:

When Weber learned of this problem, he instructed

Benton to write a check for $25,000 (the amount then

demanded) payable to ‘‘Mr. Bull’s company, Bull

Towing Company, and that he and Mr. Bull would

handle this check and convert it into cash and take care

of the staff of the Sanitary District.’’

On consideration of the petitions for rehearing and sug-

gestions for rehearing en banc filed in the above-entitled

cause as noted above, no judge in active service has re-

quested a vote on the en banc suggestion and all of the

judges on the original panel have voted to deny rehearing.

Accordingly,

IT IS ORDERED that the aforesaid petitions for re-

hearing be, and the same are hereby, DENIED.

é