Petition — INGRAM v. UNITED STATES (No. 78-1903)
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IN THE MICHAEL
Supreme Court of the United States
October Term, 1978
“ #8-1908
FREDERIC B, INGRAM,
Petitioner,
V,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
HERBERT J. MILLER, JR,
Of Counsel: NATHAN LEWIN
JUSTIN A, STANLEY SETH P, WAXMAN
DOUGLAS POE MILLER, CASSIDY, LARROCA & LEWIN
MAYER, BROWN & PLATT 2655 M Street, N.W., Suite 500
231 South La Salle Street Washington, D.C, 20037
Chicago, Illinois 60604 (202) 293-6400
(312) 782-0600 Attorneys for Petitioner
Press or BYWON 8S, ADAMS, INC, WasninauTton, D.C,
an
TABLE OF CONTENTS
Page
OS a ce l
ES soe ob 66506 9000 eee 8 l
STATUTES AND RULES INVOLVED............ 2
QUESTIONS PRESENTED .......cccccccccvves 3
EE Ne ee 4
1. The Evidence Against Petitioner....... 6
2. The Denial of Separate Trials.......... 8
3. The Introduction Against Petitioner of
Prejudicial Evidence of ‘‘Other Crimes,
rs fs ss die bedeeds 64-06 )
4. The‘'Travel Act” Instruction.......... 10
5. The Jury Instructions on the Elements of
the Extortion Defense ............... 10
6. The Court of Appeals’ Opinion......... 11
REASONS FOR GRANTING THE WRIT ......... 13
1. Confusion and Conflict over the Applica-
tion of Rules 404(b) and 403 of the
Federal Rules of Evidence............ 14
a 15
(b) The standard for appellate review ... 19
2. Uncertainty as to Pretrial Severance of
Co-defendants with Antagonistic and
Irreconcilable Defenses .............. 20
3. Conflict over Jury Instructions Regard-
ing Intent Needed to Violate the ‘‘Travel
eee Ch wig peace eca oes 0000s 23
4. Conflict Regarding the Elements of the
we rere 23
eo Vcc de eh vos b 27
re re ead ee be kee la
ii
AUTHORITIES CITED
CASES Page
Brady v. Maryland, 373 U.S. 83 (1963) ......... 4
DeVore v. United States, 368 F.2d 396 (9th Cir.
MEAG Nae WE Gs WOE As Old Ce wi ack 19
Michelson v. United States, 335 U.S. 469
Cog 3 Fp WN ee or cntes vk Geckos: 19
People v. Braune, 368 Ill. 551, 2 N.E.2d 839
RR Rata AE LT OES )
United States v. Addonizio, 451 F.2d 49 (3d Cir.
1971), cert. denied, 405 U.S. 936 (1972) ..... 5
United States v. Bacn, 588 F.2d 1283 (9th Cir.
ctv ee RE ETE OTe Pe EP 19, 20
United States v. Baggett, 481 F.2d 114 (4th Cir.),
cert. denied, 414 U.S. 1116(1973)....... 16, 21
United States v. Barash, 412 F.2d 26 (2d Cir.),
cert. denied, 396 U.S. 832 (1969)........... 24
United States v. Barash, 365 F.2d 395 (2d Cir.
Css du ek ae SAG 4 eA 24, 25, 26
United States v. Barnes, 383 F.2d 287 (1967), cert.
denied, 389 U.S. 1040(1968).............. 23
Peer ny 0os05 nde dived isle beiwadh 0% 5 5
_, CER RI e Pre Cane ne RRR aS foe 17
PES Fih6 004 cae) <0 dead es aes 17
United States v. Cook, 538 F.2d 1000 (3d Cir
Peeks Sis cas Whehe ius bork : 17
a ~ v. Crawford, 581 F.2d 489 (5th Cir.
a A a lt tc
ili
Page
United States v. DeMet, 486 F.2d 816 (7th Cir.
ea Mr ay a A SRS ai od Se 5, 25
United States v. Feola, 420 U.S. 671 (1975)...... 23
United States v. George, 477 F.2d 508 (7th Cir.),
cert. denied, 414 U.S. 827 (1973)........... )
United States v. Hall, 536 F.2d 313 (10th Cir.),
cert. denied, 429 U.S. 919 (1976)........... 5
United States v. Halper, 590 F.2d 422 (2d Cir.
Se a eee see ee ee 19, 20
United States v. Hathaway, 534 F.2d 386 (1st Cir.
er Se eee Sere ee ee ee 24
United States v. Herman, 589 F.2d 1191 (3d Cir
ool lh es Aaae che antes s askew sees 19
United States v. Hyde, 448 F.2d 815 (5th Cir.
1971), cert. denied, 404 U.S. 1058 (1972) .... 5
United States v. Ingram, No. 76 Cr. 779 (N.D. Til.
EN ee we Eee Lee te er 6
United States v. James, 555 F.2d 992 (D.C. Cir
Se erie errr ern ee rr re ee eee 16
United States v. Johnson, 478 F.2d 1129 (5th Cir
a er eee eee rer ere ee eee te 21
United States v. Jones, 570 F.2d 765 (8th Cir.
iS eee all Pieper am See Oy ONES ear a 17
United States v. Kahn, 472 F.2d 272 (2d Cir.),
cert. denied, 411 U.S. 982 (1973)........ 24, 25
United States v. Kuta, 518 F.2d 947 (7th Cir.
ein ieee kee hak ha Ma 6, 606-5 4 42 ¢ 5
United States v. Mann, 590 F.2d 361 (1st Cir.
SERRE ee err Pe eee eee 19
United States v. O'Connor, 580 F.2d 38 (2d Cir.
ESE Re rere Cree eT ee ee ee eo 17
iv
Page
United States v. Prince, 529 F.2d 1108 (6th Cir.),
cert. denied on other issues sub nom. Pandelli
v. United States, 429 U.S. 838
CReecé octets ebeaeenael tien 23
United States v. Rocks, 481 F.2d 112 (4th Cir.),
cert. denied, 414 U.S. 1044 (1973).......... 21
United States v. Staszcuk, 502 F.2d 875 (7th Cir.
1974), withdrawn in part on other grounds,
617 F.2d 53 (7th Cir. 1975)... 0... cee eee 5
United States v. United States Gypsum Co., 438
es GONE 0.0 6 00d suunabeeekes fetue 26
STATUTES AND RULES
fe at | re re re ree 6
RTs ne ain boc acktibna wakes reese tae 6, 10
SO EEE We ne dea nce kindiiedesxscss 2,4, 6, 10
pik Soe | eS rer ene 2
Federal Rule of Evidence 403.......... 2, 3, 19, 20
Federal Rule of Evidence 404(a)............... 15
Federal Rule of Evidence
GUS + ba ven eeeaeeu 2, 3, 14, 15, 16, 18, 19
MISCELLANEOUS
ABA Minimum Standards for Criminal Justice
Standards Relating toJoinder and Severance
(Approved Draft 1968).............. 11-12, 21
‘Antagonistic Defenses as a Ground for Separate
Trials of Co-defendants in Criminal Case,’’ 82
A.L.R.3d 245-343 (1978)... 0... ccc eee 22
2 E. Devitt and C. Blackmar, Federal Jury Prac-
tice and Instructions § 34.10(1977)..... 11, 24
IN THE
Supreme Court of the United States
October Term, 1978
No.
FREDERIC B. INGRAM,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
OPINIONS BELOW
The opinion of the United States Court of Appeal.
for the Seventh Circuit (Pet. App. A, pp. la - 74::,
infra) has not yet been reported. The district court
wrote no opinion.
JURISDICTION
The opinion and judgment of the court of appeals
was filed on March 16, 1979. A timely petition for
rehearing and suggestion for rehearing en banc was
denied on April 23, 1979 (Pet. App. B, pp. 75a-76a,
infra). On May 15, 1979, Mr. Justice Stevens extended
2
the time for filing a petition for a writ of certiorari to
and including June 22, 1979 (Pet. App. C, p. 77a,
infra). The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
STATUTES AND RULES INVOLVED
18 U.S.C. § 1952 provides, in pertinent part:
(a) Whoever travels in interstate or foreign com-
merce or uses any facility in interstate or foreign
commerce, including the mail, with intent to -
(1) distribute the proceeds of any unlawful ac-
tivity; or
(2) commit any crime of violence to further any
unlawful activity; or
(3) otherwise promote, manage, establish, car-
ry on, or facilitate the promotion, management,
establishment, or carrying on, of any unlawful
activity,
and thereafter performs or attempts to perform
any of the acts specified in er (1), (2),
and (3), shall be fined not more than $10,000 or
imprisoned for not more than five years, or both.
Rule 403 of the Federal Rules of Evidence provides:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by consid-
erations of undue delay, waste of time, or need-
less presentation of cumulative evidence.
Rule 404(b) of the Federal Rules of Evidence pro-
vides:
Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not admissible to
3
prove the character of a person in order to show
that he acted in conformity therewith. It may,
however, be admissible for other purposes, such
as proof of motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mis-
take or accident.
QUESTIONS PRESENTED
1. Whether evidence that the chairman of a multi-
national corporation authorized a payment to a cor-
porate official in a foreign country is admissible under
Rule 404(b) of the Federal Rules of Evidence to estab-
lish criminal intent in a prosecution for authorizing
the payment of bribes in the United States, without
any evidence that the payment was unlawful or uneth-
ical in the foreign country.
2. Whether the court below correctly held that evi-
dence of other crimes or wrongful acts is admissible
to show criminal intent without a showing—required
in the Fifth Circuit—that the charged offense and the
prior offense require the same intent.
3. Whether a court of appeals may sustain a trial
court’s determination under Rule 403 of the Federal
Rules of Evidence that the probative value of prof-
fered evidence is not outweighed by the danger of
unfair prejudice, by evaluating only the deliberate-
ness with which the trial court approached the ques-
tion and making no judgment whatever as to the rel-
evance and prejudice of the particular evidence.
4. Whether a pretrial severance should be granted
when it is clear, promptly upon indictment, that co-
defendants will be presenting ‘‘completely antago-
nistic’’ and ‘“‘mutually exclusive’’ defenses.
4
5. Whether knowledge or reasonable foreseeability
of the use of facilities of interstate commerce is an
essential element of a violation of 18 U.S.C. § 1952.
6. Whether the trial court’s novel jury instruction
on the extortion defense, directing the jury to reject
the defense if any one of five propositions were estab-
lished by the prosecution, improperly departed from
the standard instruction on the extortion defense ap-
proved in the Second Circuit and unlawfully withdrew
the issue of intent from the jury.
7. Whether the rule of Brady v. Maryland, 373 U.S.
83 (1963), was violated by the prosecution’s con-
cealment, untii its opening statement at trial, of the
fact that its principal witness had personally embez-
zled $375,000 of the money allegedly paid by him as
a bribe.'
STATEMENT
Petitioner is Chairman of the Board of the Ingram
Corporation, a company headquartered in New Or-
leans, Louisiana, and engaged in energy-related ac-
tivities in various parts of the world. Petitioner and
his brother, who was then President of the Corpora-
tion, were charged, together with six residents of
Chicago, Illinois, whom they did not know, in a 39-
count indictment alleging that bribes had been given
on behalf of the Ingram Corporation to trustees and
employees of Chicago’s Metropolitan Sanitary
'The reasons for granting a writ of certiorari to review this
question are fully stated in the pending petitions in McPartlin v.
United States, No. 78-1751, Bull v. United States, No. 78-1754,
and Janicki v. United States, No. 78-1755, all filed on May 23,
1979, in this Court. Petitioner adopts the reasons stated in those
petitions.
5
District in connection with the Sanitary District's
award and administration in 1971 and 1972 of a con-
tract to transport sewage (‘‘sludge’’) from Chicago’s
waste treatment plants to a landfill in downstate II-
linois. The prosecution’s proof established that
payments had been made by William J. Benton, an In-
gram Corporation vice-president who was granted im-
munity from prosecution, to the Chicago officials.
From the inception of these proceedings, however,
petitioner maintained that while he acceded to the
continuation of these payments upon learning that
they were being made, he did so only because he had
been told by Benton that the Chicago officials were
threatening, if “political contributions’ were not
made, to assess crippling penalties against Ingram
Corporation for unforeseen delays in performance.’
These extortionate threats, if implemented, would
have bankrupted the Corporation.
*This case is extraordinary because in most circumstances of
this kind, where a request for a bribe initiates with a corrupt
public official, the party who succumbs to the demand has been
treated as a victim rather than as a perpetrator of crime. See,
e.g., United States v. Kuta, 518 F.2d 947 (7th Cir. 1975); United
States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974), withdrawn in
part on other grounds, 517 F.2d 53 (7th Cir. 1975); United States
v. Braasch, 505 F.2d 139 (7th Cir. 1974); United States v. DeMet,
486 F.2d 816 (7th Cir. 1973); United States v. Hyde, 448 F.2d
815 (5th Cir. 1971), cert. denied, 404 U.S. 1058 (1972); United
States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405
U.S. 936 (1972); United States v. Hall, 536 F.2d 313 (10th Cir.),
cert. denied, 429 U.S. 919 (1976).
Indeed, in an interview that appears in the record, the United
States Attorney for the Northern District of Illinois who prose-
cuted this case told a reporter the following:
... if we have to choose between the businessman who finds
that the only way to do business in Chicago is the way it's
been done for 50 years—paying public officials—and the
officials who may have been collecting payments for 40 or
50 years, we feel it is better to prosecute the official and get
6
The trial judge denied pretrial motions by the In-
grams requesting that petitioner and his brother be
tried separately from the six Chicago defendants who
had extorted the payments from the Corporation and
whose potential defenses were squarely antagonistic
to the Ingrams. After a joint jury trial of all eight
defendants, in which petitioner was denied several
opportunities to prove that the Chicago officials had
planned an extortionate scheme (see pp. 17a-24a,
infra), petitioner was convicted on 29 counts charging
violations of 18 U.S.C. §§ 371 (conspiracy), 1343 (wire
fraud), and 1952 (interstate travel in aid of unlawful
activities).* He was sentenced to serve a prison term
of four years.
(1) The Evidence Against Petitioner—There was no
suggestion whatever in any of the proof that the In-
gram Corporation, or any of its officers or employees,
initiated any bribe offer or illegal proposal in connec-
tion with its bid for the contract to haul Chicago’s
sludge. Benton, who was the government’s chief wit-
ness and who had been the main participant repre-
senting the Corporation in the negotiation and imple-
mentation of the sludge-hauling contract, testified
him out of office even if you have to give immunity to the
businessman.
Supplemental Memorandum in Support of Defendants’ Motion
for a Severance at pp. 3-4, No. 76 Cr. 779 (N.D. Ill. 1977)
(emphasis added).
* Petitioner's brother was acquitted by the jury which, according
to newspaper reports, initially voted 8-to-4 to acquit petitioner.
See Appendix A to Petitioner’s Motion for a New Trial. The jury
deliberated for three days before returning a verdict. The decid-
ing factor against petitioner, according to news stories, was the
evidence of his approval of payments, on a totally unrelated
matter, to a consultant in Brazil. This is discussed at pp. 9-10,
15-19, infra.
7
that he and other Ingram Corporation employees
worked together in March 1971 to submit legitimate
written bids on the contract to the Chicago officials
(Tr. 706-707).* Benton thereafter met in Chicago with
Franklin H. Weber, an influential Illinois business-
man. Weber told Benton ‘“‘that in order for a contrac-
tor to work in this area, it was necessary that political
contributions be agreed to’’ (Tr. 718). Weber said that
the “political contributions” would have to be ‘‘about
a quarter of a million dollars’’ (Tr. 718) and that the
money was to go to ‘Mayor Daley’s organization”
(Tr. 1456; see Tr. 1539). Benton testified unequivocal-
ly that during the entire period of time that payments
were being made to the Chicago officials, the money
was always ‘“‘demanded”’ by them (Tr. 1455):
Q. You never suggested it first, did you?
A. No, sir.
A total of $320,000 was allegedly paid by Benton
in 1971. All these funds were generated within the
Ingram Corporation by Benton, who personally trans-
mitted the money to various of the Chicago defend-
ants. According to Benton, he advised petitioner in
1971 that ‘‘the contribution to the Democratic Party
in the State of Illinois’’ would have to be made as a
condition for securing the contract (Tr. 718-719).
The Chicago officials demanded additional pay-
ments in late 1971 and early 1972. They threatened
at that time to assess an enormous liquidated-dam-
ages penalty against the Corporation and to withhold
the purchase of a pipeline already constructed by the
Corporation, which the trustees had assured Benton
‘Tr.’ refers to the transcript of the trial in the district court.
8
they would purchase (Tr. 978-982, 3894-3896).
The Corporation was then on the brink of bank-
ruptcy, and the Sanitary District’s refusal to purchase
the pipeline and its assessment of liquidated damages
would have deprived the Corporation of funds that
were essential to its survival (Tr. 991-995, 1469). In
these circumstances, recognizing explicitly that they
were the victims of “‘extortion”’ (Tr. 4074-4075), the
Ingram brothers assisted Benton in 1972 in generat-
ing $100,000 in cash which was paid to the Chicago
officials (Tr. 1046-1052, 4074-4081). Although the Chi-
cago officials did not then invoke the liquidated dam-
ages clause, they continued to withhold the purchase
price of the pipeline until a final arrangement was
made by Benton, with petitioner’s knowledge, for ad-
ditional payments (Tr. 1254-1259, 3933-3938).
(2) The Denial of Separate Trials—On August 9,
1976, little more than a month after the indictment
was returned, petitioner and his brother moved for a
severance of the charges against them from those
against the Chicago defendants. They noted in their
supporting Memorandum of Law that their projected
defense of extortion created ‘‘a ‘head-on’ conflict be-
tween the Ingrams and the other defendants’’ and
cited appellate decisions which had held that a sev-
erance should be granted whenever defenses are mu-
tually antagonistic. A subsequent legal memorandum
filed by the Ingrams spelled out in greater detail the
inherent conflict between the Ingrams’ defense that
the payments were extorted and the Chicago defend-
ants’ claim that no request for bribes was made and
no bribes were paid. The trial judge denied the mo-
tions to sever and proceeded with a joint trial—the
9
first, to our knowledge, in which a government em-
ployee who is an alleged recipient of a bribe has been
tried jointly with a co-defendant who contends that
the “bribe’’ was extorted from him.’ Apart from the
Ingrams’ inability, on account of the joint trial, to
probe and prove the general propensity of the Chicago
officials to demand payments from others who had
dealt with the Sanitary District, the joint trial result-
ed in the exclusion of several specific lines of excul-
patory proof offered by petitioner, which are dis-
cussed in the opinion at pp. 17a-24a, infra.
(3) The Introduction Against Petitioner of Preju-
dicial Evidence of ‘‘Other Crimes, Wrongs, or Acts’’—
After petitioner testified in his own defense that he
approved the payments to the Chicago officials only
as a result of extortion, the prosecution was permit-
ted, over petitioner’s repeated objections, to cross-
examine and to introduce extensive evidence relating
to petitioner’s knowledge and approval of payments
made by the Ingram Corporation between 1969 and
1973 to a Brazilian petroleum engineer named Le-
vindo Caniero (Tr. 3990-3994, 5673-5683). Caniero was
a private citizen whose employer, Petrobas, was a
Brazilian oil company owned jointly by private par-
ties in Brazil and by the Brazilian government. The
evidence showed that Caniero gave the Ingram Cor-
poration advice and information on bidding for a Pe-
* The court of appeals implied that United States v. George, 477
F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827 (1973), was such a
case (p. 15a, infra). But George—which was not a bribery case—
did not concern a co-defendant’s claim of extortion, and the court
of appeals held in that case that the defenses were not, in fact,
antagonistic at all because both defendants agreed that the ille-
gal proposal—that ‘‘kickbacks’’ be paid—was initiated by one of
them. 477 F.2d at 515.
10
trobas contract in Brazil, and he was paid with funds
deposited in a Swiss bank account maintained on his
behalf. There was not a scintilla of evidence that the
payments to Caniero were illegal or otherwise imper-
missible under the law of Brazil. Nonetheless, in his
summation the prosecutor declared that petitioner
‘had set up a Swiss bank account so that bribes could
be paid to Levindo Caniero’”’ (Tr. 6141; emphasis
added). And the jury apparently gave dispositive
weight to this highly prejudicial, but substantially
irrelevant, testimony. See note 3, supra.
(4) The ‘Travel Act’’ Instruction—Overruling pe-
titioner’s objection, the trial judge instructed the
jury, with reference to the counts charging violations
of the “Travel Act,” 18 U.S.C. § 1952, that the pros-
ecution (Tr. 6665)
need not prove the defendant either knew or
could foresee that interstate travel would occur
or that an interstate facility would be used.
The judge reaffirmed this instruction in distinguish-
ing the ‘Travel Act” counts from the counts charging
wire fraud (18 U.S.C. § 1343) and noted again that for
purposes of 18 U.S.C. § 1952 ‘“‘a defendant need not
know or reasonably foresee that the facilities of inter-
state commerce will be used or someone will travel in
interstate commerce” (Tr. 6670). The jury found peti-
tioner guilty on 15 counts alleging violations of the
“Travel Act.”’
(5) The Jury Instructions on the Elements of the
Extortion Defense—Rather than giving the jury the
instruction regarding the Ingrams’ extortion defense
which had been approved in federal appellate rulings
11
and in the leading treatise on jury instructions,® the
trial judge devised a complex, ten-paragraph instruc-
tion of his own (reproduced in the opinion below at
pp. 25a-27a, infra) which directed the jury to reject
the defense if it found the government to have estab-
lished any one of five different propositions formulat-
ed and discussed in the instruction.
Petitioner objected to this instruction in writing
and orally on various grounds (including those speci-
fied on appeal) and proposed three different sets of
instructions which closely followed those which had
been judicially and authoritatively approved. The
judge’s instruction effectively withdrew from the jury
the element of intent and virtually assured the jury’s
rejection of the extortion defense. The trial judge re-
jected all the offered instructions and refused to alter
his own.
(6) The Court of Appeals’ Opinion—In affirming
petitioner’s conviction, the three judges of the court
of appeals issued an unusual consolidated, but sepa-
rately authored, opinion which appears at every op-
portunity to trivialize the substantial criminal-justice
issues presented by petitioner’s appeal. One circuit
judge, who dealt with the issues of severance, declared
that the defenses of the Ingrams and the Chicago
residents were only antagonistic ‘‘to a degree’’ be-
cause “‘it was possible’”’ that Benton, the Ingram Cor-
poration representative on the scene, had never made
any payments at all to the Chicago defendants but
had kept all of the $527,000 himself (p. 14a, infra). He
therefore relegated to a footnote the long-standing
prophylactic rule regarding severance described in the
ABA Minimum Standards for Criminal Justice: Stan-
dards Relating to Joinder and Severance (Approved
®°2 E. Devitt & C. Blackmar, Federal Jury Practice and Instruc-
tions § 34.10 (1977).
12
Draft 1968), and he cited authorities which did not
deal with the situation in which the defenses
presented are unalterably and squarely antagonistic
(p. 16a, n. 11, infra).
Another judge discussed the admissibility of the
‘prior crimes or acts” evidence relating to the Brazil-
ian consultant. He ignored the unfairness of having
the outcome of criminal charges in the United States
turn on the superimposition of American moral stand-
ards upon conduct which may be entirely lawful in a
foreign country. He declared the court ‘‘loath to
assume’’ that ‘surreptitious payments’”’ were ‘‘a com-
mon and accepted practice in Brazil,’ condemned peti-
tioner’s “facile and unsupported characterizations of
Brazilian practice,’ and—inverting the established
burden of proof in criminal cases—said that petitioner
‘‘admits’’ that he (as well as the prosecution) had of-
fered no proof on Brazilian standards. On the startling
premise that an individual who authorized lawful
payments in a foreign country ‘‘is more likely’ to
authorize bribes in the United States, the circuit
judge concluded that petitioner’s dealings with Cani-
ero were relevant to the charges in the indictment.
The court of appeals recognized the great prej-
udicial impact of the proof, but nevertheless held that
it had no duty to weigh the prejudice of the evidence
against its relevancy. The circuit judge said that since
this decision was ‘‘highly judgmental,”’ the appellate
court would not ‘‘restrike the balance ourselves but
instead would examine only the manner in which the
district court exercised its discretion”’ (pp. 39a-40a,
infra; emphasis added). Concluding that the trial
judge was “meticulous and deliberate,’’ the court
affirmed the admissibility of this proof.
13
The court below similarly minimized petitioner’s
challenge to the trial judge’s unprecedented ‘‘extor-
tion defense”’ instruction. Petitioner had argued below
that by erecting the five sequential hurdles included
in this jury instruction—at least three of which were
misleading and patently erroneous—the trial judge
had deprived petitioner of his entire defense. Rather
than comparing the instruction with those which were
submitted by petitioner and with instructions which
had been judicially approved and which fairly stated
the defense, the circuit judge hypothesized possibili-
ties under which the jury might conceivably have
overcome the confusing elements of the instruction.
The opinion did not provide any legal or policy justi-
fication for the “‘loss-gain distinction” in the instruc-
tion or for the requirement that petitioner establish
that he honestly believed he had “‘legal entitlement”’
to the benefits which the Chicago officials were pro-
viding. The court’s affirmance was then buttressed
by erroneous assertions that petitioner’s objections
had not been properly preserved.’
REASONS FOR GRANTING THE WRIT
This case raises several important recurring ques-
tions relating to the fair administration of criminal
justice in the federal courts. These issues have divided
trial and appellate courts in the very recent past, and
’ The opinion of the court below refers only to petitioner’s written
objections to the judge’s instruction and overlooks the oral ob-
jections made by petitioner’s counsel. Petitioner’s counsel ob-
jected orally, for example, to the ‘‘legal entitlement’’ element of
the instruction at Tr. 6009-6010. Indeed, the prosecution did not
claim in the court of appeals that the objections had not been
preserved. This assertion came from the court of appeals sua
sponte.
14
they continue to affect the day-to-day decisions of
prosecutors and federal judges. The court of appeals’
resolution of various of these issues conflicts with
rulings of other federal courts faced with similar cir-
cumstances. The action recently taken by at least one
circuit in considering one of these trial issues en banc
manifests the uncertainty which has afflicted lower
courts. Since the Seventh Circuit’s ruling in this case
conflicts with the principle announced en banc by the
Fifth Circuit, inconsistency among the circuits in sim-
ilar trial situations is likely to result if the lower court
decision is permitted to stand.
Moreover, the decision below perpetrates an injus-
tice upon a highly respected Louisiana businessman
who faces a four-year prison term for having yielded
to unlawful extortionate demands made to an officer
of his corporation. The corporation was seeking to do
business with a city with whose practices and tradi-
tions it was totally unfamiliar, but whose reputation
made the extortionate threats and demands entirely
credible.
1. Confusion and Conflict over the Applica-
tion of Rules 404(b) and 403 of the Federal
Rules of Evidence
By approving the prosecution’s use against peti-
tioner of evidence that he had authorized unrelated
‘surreptitious’ payments to be made abroad to a Bra-
zilian national, the court of appeals has carried the
limited exception provided in Rule 404(b) far beyond
the intent of its draftsmen and beyond the cases in-
terpreting that Rule. The court has thereby opened
the door for inferences of criminal intent and culpa-
bility to be drawn against responsible officers asso-
15
ciated with leading multinational corporations on the
basis of acts that, at least until recently, have been
regarded as a necessary and acceptable way of doing
business abroad. And by abdicating totally its own
duty to weigh the prejudice caused by the admission
of such evidence against its probative value, the court
below has struck a new standard for appellate review
of these evidentiary rulings which conflicts with the
standard of review applied in virtually every other
circuit.
(a) The merits.—Rule 404(a) of the Federal Rules of
Evidence forbids the prosecution in a criminal case
from introducing evidence of an accused’s bad char-
acter. Subsection (b) of the Rule carves out a limited
exception for proof of ‘‘other crimes, wrongs, or acts”’
which bear upon states of mind such as ‘‘motive, op-
portunity and intent.’’ The court below erroneously
concluded that petitioner’s authorization of payments
to a well-situated Brazilian national in connection
with a foreign contract could be admitted under sub-
section (b) to prove a criminal intent to bribe in the
United States. In doing so, the court applied a test
that has been rejected by other courts of appeals and
that eviscerates the Rule.
The court below interpreted Rule 404(b) to permit
the introduction of evidence relating to any prior
crime or wrongful act whenever it can be said that
such evidence makes the intent to commit the charged
offense ‘‘more likely’’ than if no such prior act had
been committed. It expressly dispensed with any re-
quirement that the prosecution demonstrate that the
foreign payment was either illegal or violative of Bra-
zilian business standards. Reasoning that a person
who has made “facilitating payments,”’ whether legal
16
or illegal, to a foreign businessman is “more likely”
to have the intent to give a bribe than someone who
has not made such payments, the court of appeals
ruled that petitioner’s authorization of the Brazilian
payment satisfied Rule 404(b) (p. 37a, infra).
No decision cited by the prosecution or by the court
below supports this proposition, and many decisions
refute it. The ‘‘more likely’ standard has been re-
jected by many courts of appeals in reversing a trial
court’s admission of evidence far more probative of
guilty intent than the foreign payment in this case.
For example, in United States v. James, 555 F.2d 992
(D.C. Cir. 1977), the accused’s presence at a narcotics
transaction and his arrest in an apartment containing
substantial quantities of heroin was logically relevant
to whether he was a distributor of narcotics on an
earlier occasion. Nonetheless, the court of appeals re-
versed a conviction in which this evidence had been
introduced with an explicit rejection of the ‘‘more
likely” standard applied by the court below (555 F.2d
at 1000; emphasis added; footnote omitted):
The issue thus resolves itself into whether
James’ presence in an apartment in which were
found substantial quantities of heroin is roba-
tive of an intent to distribute other heroin sixteen
days earlier. Granting that a person found in that
* Contrary to the belief of the court below, the decision of the
Fourth Circuit in United States v. Baggett, 481 F.2d 114 (4th
Cir.), cert. denied, 414 U.S. 1116 (1973), does not stand for this
rule. The evidence in that case related to a course of conduct of
favors and gifts flowing from [the alleged briber] to Baggett
and “receipt by Baggett of favors from others who had received
favorable zoning rulings.’’ In other words, the evidence estab-
lished the close relationship between the parties to the bribe and
proved a number of other unlawful receipts of gratuities in ex-
change for zoning favors.
17
situation might be more likely so to contemplate,
such an inference is so weak as to bring into
serious question whether its contribution to the
accuracy of the trial process outweighed the like-
lihood that its dramatic flavor would derange it.
Other federal courts of appeals have followed the
same course and reversed convictions where the ex-
trinsic evidence relating to intent admitted under
Rule 404(b) was of only minimal probative value even
though it made criminal intent “more likely’ than if
no such evidence existed. See United States v. Jones,
570 F.2d 765 (8th Cir. 1978); United States v. Cook,
557 F.2d 1149 (5th Cir. 1971); United States v. Cook,
538 F.2d 1000 (3d Cir. 1976); cf. United States v.
O’Connor, 580 F.2d 38 (2d Cir. 1978).
The Seventh Circuit’s ruling in this case conflicts
most clearly with the Fifth Circuit’s recent en banc
decision in United States v. Beechum, 582 F.2d 898
(5th Cir. 1978). Beechum involved a prosecution for
mail theft in which the government sought to negate,
by introducing evidence of an extrinsic offense, the
defendant’s claim that he lacked the intent required
for the offense. The trial court admitted the evidence
and the defendant was convicted. On appeal the Fifth
Circuit en banc engaged in a painstaking review of
the law both before and after the adoption of Rule
404(b). Based on this review it held that proof of the
accused's participation in other crimes may be offered
to establish criminal intent only if “the extrinsic of-
fense requires the same intent as the charged offense
... (582 F.2d at 913; emphasis added). On the facts,
the Fifth Circuit affirmed the trial court because the
extrinsic offense proved was identical to that with
18
which the defendant was charged—i.e., mail theft. On
the facts of this case, the Fifth Circuit plainly would
have reversed. There is nothing in the record to sug-
gest that petitioner’s authorization of a payment to
a Brazilian national was an offense requiring “the
same intent’”’ as bribery of a public official in the
United States. In fact, the transfer of these funds was
no more relevant to petitioner’s criminal intent than
any lawful transfer made in or outside the United
States.
The reasoning of the court below not only conflicts
with established law in other circuits, but it plainly
eviscerates Rule 404(b). The first sentence of that
Rule flatly prohibits admission of evidence of ‘other
crimes, wrongs, or acts . . . to prove the character of a
person in order to show that he acted in conformity
therewith.’ The rationale of the court of appeals for
admission of the evidence in this case (p. 37a, infra;
emphasis added) was that
one making such [foreign] payments, legal or not,
is more likely to have the intent to influence of-
ficial action by similar payments in other in-
stances than one who has never made such pay-
ments.
If that is a correct statement of Rule 404(b)’s excep-
tion for ‘“‘other crimes’’ evidence bearing on intent,
then the prohibition against admission of such evi-
dence to show character is mere exhortation.
So long as the decision below stands, an issue that
now arises in many federal criminal prosecutions—
particularly in cases involving ‘‘white collar crime”
where intent is usually a contested fact—will not be
resolved uniformly and fairly throughout the circuits.
19
This Court has given no guidance on the subject of
the admissibility of other acts committed by an ac-
cused which may bear on his state of mind since the
1948 decision in Michelson v. United States, 335 U.S.
469, 475-76 (1948). As a result, identical evidence may
be admissible in a criminal trial in federal court in
one area of the country and excluded in another. Had
Mr. Ingram been prosecuted in the Fifth rather than
the Seventh Circuit, he might well be a free man to-
day.
(b) The standard for appellate review—The court
below also took a narrow and erroneous view of its
duty of review on appeal. The Advisory Committee’s
Note on Rule 404(b) states that evidence which might
otherwise be admitted under Rule 404 to prove motive
or intent should be excluded if ‘“‘the danger of undue
prejudice outweighs the probative value of the evi-
dence, in view of the availability of other means of
proof and other factors appropriate for making deci-
sions of this kind under Rule 403.’’ The legal judg-
ment involved in this balancing must be made by the
trial court initially, but its validity must be deter-
mined by the court which reviews the final judgment.
Numerous cases demonstrate that federal courts of
appeal must make an independent appraisal of these
factors, even while granting substantial latitude to
the discretion of the trial judge, and must reverse
convictions where the balance has not been appropri-
ately struck. See, e.g., United States v. Back, 588 F.2d
1283 (9th Cir. 1979); United States v. Herman, 589
F.2d 1191 (3d Cir. 1978); United States v. Mann, 590
F.2d 361 (1st Cir. 1978); DeVore v. United States, 368
F.2d 396 (9th Cir. 1966); cf. United States v. Halper,
590 F.2d 422, 431 (2d Cir. 1978).
20
In this case, the court below refused to weigh the
prejudice of the proof relating to the payment to Can-
iero against its legitimate usefulness in the case. In-
stead, it said that it would ‘‘examine only the manner
in which the district court exercised its discretion
(pp. 39a-40a, infra). The court of appeals offered no
authority for the proposition that its function in re-
viewing determinations under Rule 403 is to ascertain
that the district court was ‘‘meticulous and deliber-
ate” in its consideration of the issue (p. 40a infra),
rather than to examine the merits of the determina-
tion. Had the court of appeals properly considered the
issue, it could not have responsibly reached any con-
clusion other than reversal of petitioner’s conviction.
The Second Circuit has accurately noted the increas-
ing use of ‘‘other crimes’ evidence in federal criminal
trials and the need for courts of appeals ‘‘if not to
‘stem the tide’ at least to define its limits.” United
States v. Halper, 590 F.2d at 432. The decision of the
‘court of appeals in this case has precisely the contrary
effect, and review by this Court is essential to restore
the proper function of appellate courts in this area.
2. Uncertainty as to Pretrial Severance of
Co-defendants with Antagonistic and Ir-
reconcilable Defenses.
The decision of the court below appears to be the
first reported case in which alleged recipients of bribes
who deny having taken any payments have been tried
together with those who claim that the bribe-takers
extorted money from them.®° Plainly, these two defen-
i i ed, those
° Indeed, in most cases, as we have previously noted,
from whom a bribe is demanded are not charged at all. See note
2, supra. Where the association between briber and bribee is a
21
ses are ‘‘completely antagonistic’’ within the meaning
of United States v. Johnson, 478 F.2d 1129, 1131 (5th
Cir. 1973), in which the court held that a pretrial
motion on grounds of antagonistic defenses should
have been granted. On the evidence introduced at trial
no jury could possibly have credited the only version
of the facts the court below was able to devise to
render the defenses ‘‘not necessarily antagonistic’ —
i.e, that Benton had falsely been reporting to the
Ingrams that he was being extorted by the Chicago
defendants, while actually keeping all the funds him-
self (p. 14a, infra). It was important to petitioner’s
defense to show that both he and Benton believed
Ingram Corporation was being extorted by the Chi-
cago defendants, while it was essential for the Chicago
defendants to show that Ingram Corporation not only
was not being extorted, but in fact was not making
any payments. This trial was, therefore, much like the
one described in People v. Braune, 368 Ill. 551, 557,
2 N.E.2d 839, 842 (1936), in that it was “in many
respects more of a contest between the defendants
than between the people and the defendants.”
The American Bar Association’s Minimum Stan-
dards for Criminal Justice: Standards Relating to
Joinder and Severance 41 (Approved Draft 1968),
declared unequivocally that
it has long been the view that defendants joined
for trial should be granted a severance whenever
their defenses are antagonistic to each other.
longstanding one, so that the giver and taker appear to have
developed an illicit relationship, both have been charged. But
even in such situations, severances have been granted on even
the slightest showing of antagonism in the defenses. See, e.g.,
United States v. Rocks, 481 F.2d 112 (4th Cir.), cert. denied, 414
U.S. 1044 (1973); United States v. Baggett, 481 F.2d 114 (4th
Cir.), cert. denied, 414 U.S. 1116 (1973).
22
This long-standing rule has been applied in dozens
of jurisdictions, as is evidenced by the list of cases
discussed and cited in the almost 100-page Annota-
tion, “‘Antagonistic Defenses as Ground for Separate
Trials of Co-defendants in Criminal Case,’’ 82 A.L.R.
3d 245-343 (1978). Particularly when, as was true here,
the defenses ‘‘were irreconcilable as well as mutually
exclusive,”’ the consistent federal rule should be that
a pretrial severance must be granted. United States v.
Crawford, 581 F.2d 489, 491-492 (5th Cir. 1978). The
ruling of the court below on this question conflicts,
therefore, with the Fifth Circuit’s decisions in both
Johnson and Crawford.
Nor is it a sufficient response simply to rely on the
broad discretion given to the trial judge over matters
such as severance. That discretion might be applicable
if the issue were whether an unanticipated incident
during trial required a severance of defendants. But
the question presented here relates more to the pre-
trial stages, when a trial judge is in no better position
than an appellate court to weigh the competing inter-
ests. It is appropriate that this Court issue a rule
under its supervisory jurisdiction for the federal ju-
diciary that when defendants demonstrate before trial
that their defenses will be “completely antagonistic,”
“‘irreconcilable,’’ and “‘mutually exclusive’’—such as
when one of the defendants contends that the other
extorted an impermissible payment from him—the
principle approved by the American Bar Association
should govern, and a severance should be granted.
23
3. Conflict over Jury Instructions Regard-
ing Intent Needed to Violate the ‘“‘Travel
. Act”
The trial judge’s jury instruction that petitioner
could be convicted under 18 U.S.C. § 1952 without
knowing or reasonably foreseeing that the facilities of
interstate commerce were to be used in executing the
unlawful scheme conflicts squarely with the decision
of the Court of Appeals for the Sixth Circuit in United
States v. Prince, 529 F.2d 1108 (6th Cir.), cert. denied
on other issues sub nom. Pandelli v. United States,
429 U.S. 838 (1976). In the Prince case, the Sixth
Circuit considered the effect of this Court’s decision
in United States v. Feola, 420 U.S. 671 (1975)—on
which the court below relied—and it concluded that
Feola did not require the Sixth Circuit to overrule its
own 1967 decision in United States v. Barnes, 383
F.2d 287 (6th Cir. 1967), cert. denied, 389 U.S. 1040
(1968), which had held that knowledge of interstate
travel was an essential element of the offense defined
by the ‘“‘Travel Act.’’ Thus it is clear that if this case
had been tried in the federal court in Ohio or Kentuc-
ky, rather than in Illinois, petitioner’s convictions un-
der the Travel Act and the conspiracy statute would
have been reversed. This Court should resolve that
conflict.
’ 4, Conflict Regarding the Elements of the
“Extortion Defense”
The courts have recognized that a defendant
charged with bribery may defend on the ground that
he was coerced into paying the bribe, since evidence
of extortion negates the intent necessary to constitute
the crime of bribery. The established extortion-as-a-
24
defense instruction, set out in 2 E. Devitt & C. Black-
mar, Federal Jury Practice and Instructions §$ 34.10
(1977), is based on the Second Circuit opinions in
United States v. Barash, 412 F.2d 26 (2d Cir.), cert.
denied, 396 U.S. 832 (1969), and United States v.
Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S.
982 (1973). Although the court below paid lip-service
to an earlier Barash decision, United States v. Barash,
365 F.2d 395 (2d Cir. 1966), it ignored the established
precedents. The convoluted jury instructions it ap-
proved and delivered effectively withdrew the issue of
intent from the jury’s consideration.
Three aspects of the instruction were particularly
devastating to petitioner’s defense and were incon-
sistent with reason and precedent. First was the dis-
tinction drawn by the trial judge between fear of an
‘economic loss”’ (which, he said, could be grounds for
a defense) and anticipation of an ‘‘economic advan-
tage”’ (which could not be the basis for a defense). In
an analogous case, the Court of Appeals for the First
Circuit said that ‘‘inquiry into the kind of economic
interest at stake is of little significance,’’ and that the
‘‘proper focus’’ should be on whether a victim's inter-
est ‘‘was sufficient to give rise to fear.’’ United States
v. Hathaway, 534 F.2d 386, 395 n.6 (1st Cir. 1976). If
petitioner was motivated by fear of economic loss, it
should make no difference whether the harm was de-
nial of an anticipated profit on which the Corpora-
tion’s future depended (an ‘‘economic advantage’’) or
the assessment of liquidated damages (an “‘economic
loss’) which would cripple its ability to continue in
business.
The second wholly unjustified aspect of the instruc-
tion was its distinction between a benefit to which the
25
Corporation was “‘legally entitled’’ and one to which
it had no “‘legal entitlement.’’ According to the trial
judge, the extortion defense could only be based on
the former. This principle of ‘‘legal entitlement’’ does
away with the extortion defense in any situation in
which a government official threatens to deprive a
private citizen of a discretionary benefit unless he is
paid a bribe. It plainly conflicts with the decision of
the Second Circuit in United States v. Kahn, 472 F.2d
272 (2d Cir.), cert. denied, 411 U.S. 982 (1973). The
defendant in Kahn was seeking a cable television fran-
chise—plainly a benefit which was entirely discretion-
ary and to which he was not “‘legally entitled.’’ Yet
the extortion defense was submitted to the jury and
approved by the Second Circuit.'° Moreover, the ‘‘le-
gal entitlement’’ element was particularly prejudicial
in this case because petitioner had admitted during
trial ‘‘that he had no legal entitlement to the benefits
which his payments were designed to obtain.’ Hence,
according to the court below, he was “‘absolutely pre-
cluded from prevailing on an extortion defense’’ (pp.
31la-32a, infra).
The same preclusion resulted from the third erro-
neous element injected into the extortion defense by
the trial court—the definition of extortion which
equated it, for all practical purposes, with duress by
permitting acquittal only if petitioner was deprived
of ‘‘free choice.” The Second Circuit in Barash clearly
distinguished between the defense of duress or invo-
luntariness, which is available for a great variety of
‘© Compare also United States v. DeMet, 486 F.2d 816 (7th Cir.
1973), in which an extorting public official demanded a payment
for privileges to which the victim ‘“‘was not lawfully entitled.”
486 F.2d at 819. Nonetheless, a Hobbs Act conviction was af-
firmed.
26
criminal charges, and the extortion defense, which
applies only to crimes such as bribery that require
proof of specific intent. See 365 F.2d at 401-402. The
instruction in this case drew no such distinction, and
it thereby conflicted with the Second Circuit's view of
the nature of this defense.
Overall, the instructions denied petitioner a fair
opportunity to have the jury evaluate the intent with
which he acted. Only last Term, in reaffirming the
cardinal tenet that ‘intent generally remains an in-
disputable element of a criminal offense,’’ this Court
cautioned that ‘‘the decision on the issue of intent
must be left to the trier of fact alone.’’ United States
v. United States Gypsum Co., 438 U.S. 422, 437, 446
(1978). This rule surely applies if an accused’s exclu-
sive defense is that he lacked the intent to commit
the offense because he was subjected to criminal
threats to perform the unlawful act. Yet in this case,
the issue of intent was effectively withdrawn from the
jury’s consideration by the improper instruction.
This Court’s very recent ruling in Sandstrom v.
Montana, No. 78-5384 (decided June 18, 1979), reaf-
firmed the importance of a jury’s independent deter-
mination of an accused’s state of mind. The intricate
jury instruction given by the trial judge in this case
had the same effect as the instruction struck down in
Sandstrom—‘‘the burden was shifted to the defendant
to prove that he lacked the requisite mental state.”
This was plainly impermissible.
27
CONCLUSION
This case presents several pressing issues relating
to the administration of criminal justice in the federal
courts. By granting this petition for a writ of cer-
tiorari, this Court will have the opportunity to clarify
many matters of trial procedure which are now confus-
ing and splitting the lower courts. The petition for a
writ of certiorari should, accordingly, be granted.
Respectfully submitted,
HERBERT J. MILLER, JR.
NATHAN LEWIN
SETH P. WAXMAN
MILLER, CASSIDY, LARROCA & LEWIN
2555 M Street, N.W., Suite 500
Washington, D.C. 20037
(202) 293-6400
Attorneys for Petitioner
Of Counsel:
JUSTIN A. STANLEY
DOUGLAS POE
MAYER, BROWN & PLATT
231 South La Salle Street
Chicago, Illinois 60604
(312) 782-0600
APPENDIX
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 77-2258, 77-2259, 77-2274, 77-2275 and 77-2280
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
ROBERT MCPARTLIN, 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 PELL, SPRECHER 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. In-
gram,' chairman of the board of the Louisiana-based In-
gram Corporation, had paid defendant Robert F. Mc-
Partlin, an Illinois legislator, defendant Valentine Janicki,
' 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).
2a
a trustee for the Metropolitan Sanitary District, and
others more than $900,000 to secure for the Ingram Cor-
poration a multi-million dollar sludge-hauling contract
with the District. Defendants Franklin H. Weber, a busi-
nessman, and Edwin T. Bull, president of a towing com-
pany, were alleged to be intermediaries through whom
many of the payments 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 convicted of numerous violations of the Travel Act,
18 U.S.C. § 1952, and the Wire, Radio, Television Fraud
Act, 18 U.S.C. § 1343, 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 trust-
ee, and Bart T. Lynam, General Supervisor of the Sanitary
District.’ |
The defendants urge as grounds for reversal the district
court’s 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
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
* The indictment also charged appellants McPartlin, Weber, and
Janicki with filing false income tax teturns in violation of 26
U.S.C. § 7206(1). The tax counts against McPartlin and Weber
were dismissed before trial. Janicki was convicted of tax viola-
tions, but raises no issue on appeal with respect thereto.
3a
primary responsibility for disposing of sewage from Chi-
cago 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 in-
termediaries Bull and Weber, bribed McPartlin and Janicki
to cause the sludge-hauling contract to be awarded to In-
gram 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 employ-
ee of Ingram Contractors, Inc., 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
Contractors, 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.”’
* In 1975 the name was changed to ‘‘Board of Commissioners.”’
4a
Howson responded that he was not in that sort of business,
but then took Bull to meet William J. Benton, vice presi-
dent of Ingram Corporation and president of Ingram Con-
tractors, Inc.
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 $200,000 “‘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 accept-
ed Weber’s proposal, it would get the contract. Bull also
told Benton that if the corporation did get the contract,
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 demonstrate
Ingram Corporation’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, Inc. had offered to make a
5a
$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 pay-
ment before the contract was awarded. Again Benton con-
sulted 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 McPartlin went to Benton’s
Chicago hotel room, where Weber introduced McPartlin to
Benton as the man who handled all political contributions
for the Democratic Party in Illinois. McPartlin assured
Benton that Ingram Corporation would receive at least
$21,500,000 in total revenue from the sludge-hauling con-
tract. Benton gave McPartlin $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 Mater-
ials.
On April 6, 1971, Weber telephoned Benton, asking for
$25,000 in cash immediately to secure the cooperation of
three Sanitary District staff members. When Benton pro-
tested that he could not deliver $25,000 cash on such short
notice, Weber suggested that Ingram Corporation 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 submitted
a revised bid of $18,300,000. Oberle submitted Ingram
Corporation’s revised bid of $16,990,000 after which he
6a
returned to his hotel room, where he received a telephone
call from either Benton or Weber.‘ The called 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 told Oberle to raise Ingram’s revised bid to
$17,990,000. Oberle then returned to his hotel room and
telephoned Benton for advice. Benton instructed Oberle to
attend the Sanitary District negotiating committee meet-
ing scheduled for that afternoon. While attending the
meeting, Oberle received telephone instructions from Ben-
ton 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 Trust-
ees voted to award the contract to Ingram Corporation.
Between that date and May 12, 1971, a contract was draft-
ed by members of the Sanitary District staff and Ingram
Corporation representatives, including John Donnelly,
president of Ingram Barge Company, the Ingram Corpo-
ration subsidiary that would transport the sludge under
the contract. The staff insisted on a liquidated damages
clause authorizing the District to prescribe the amount of
sludge to be transported in any 24-hour period and provid-
ing that Ingram Corporation would be assessed a penalty
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 In-
gram, 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 Stickney
and an unloading dock and pump station in Fulton County
for which work the Sanitary District was to pay $733,000.
* Since Benton did not meet Janicki until a month later, the caller
was probably Weber...
7a
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 provided
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 sludge would be transported.
On May 19, 1971, Weber and Benton met in New Orle-
ans to discuss ways of increasing Ingram Corporation’s
total revenue under the contract to the $21,500,000 that
McPartlin had assured Benton would be forthcoming. We-
ber told Benton that Janicki and he thought that the cor-
poration could receive an additional $2,100,000 by billing
the Sanitary District a second time for the construction of
the pipeline and the construction in Fulton County.
On June 26, 1971, Weber told Benton that Janicki need-
ed $21,290 to pay off three District staff members. Ingram
issued a check for that amount to Southwest Expressway,
another of Weber’s defunct corporations.
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 Corporation’s re-
quest for a certificate of convenience and necessity.
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 Com-
pany to transport sludge from the Lemont Bridge over the
lllinois River to Fulton County. Donnelly signed this con-
tract but refused to sign the other contract, under 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
8a
intended as payment for consulting services and engineer-
ing and feasibility studies that Bull had allegedly per-
formed 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 wheth-
er any consulting services 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 pres-
ence, 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 con-
tract, but permitted Benton to sign it on behalf of Ingram
Barge Corporation as well as Ingram Corporation.
On August 15, 1971, Benton, Weber and McPartlin met
in Chicago to discuss further payments. Benton agreed to
provide $146,000 in two installments. On August 18, 1971,
Oscar Hardison, comptroller of Ingram Corporation, deliv-
ered $30,000 in cash to Weber at O’Hare Airport in Chi-
cago. On August 28, 1971, another Ingram executive, 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 transporting sludge
six days later than the date it was required to do so under
the sludge-hauling contract; whereupon the Sanitary Dis-
trict 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 discuss
this matter, following which the Sanitary District with-
drew the assessment. After the meeting, Weber told Ben-
* 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.
9a
ton that Janicki wanted $100,000 by the end of 1971.
When informed by Benton of this request, however, Fred-
erick Ingram refused, saying that no more payments would
be made until the Sanitary District began making pay-
ments 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 In-
gram Corporation for $1,000,000, as partial payment on
the pipeline. When Benton arrived at Janicki’s office the
following day, however, Janiciki 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 Ob-
erle 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 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 in 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, levaing a balance of $132,680 on the $450,000
commitment.
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 investigate
10a
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 Ben-
ton that his company had secured a multi-million dollar
contract by paying more than $300,000 to Chicago offi-
cials.* 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 additional $2,100,000 for the pipeline and
would use the liquidated damages clause to penalize In-
gram Corporation.
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 ap-
prove 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
Ingram for the purchase of the pipeline on July 20, 1972.
On August 23, 1972, Benton gave McPartlin $80,000 in
cash. McPartlin told Benton that the trustees would ap-
prove the purchase of the pipeline in September, but In-
gram would have to pay the balance of its contribution,
about $95,000, in September also.
Between August and November, 1972, Ingram Corpo-
ration and the Chicago officials negotiated a new agree-
* Benton testified that he informed Frederick Ingram of Weber's
first proposal that Ingram Corporation make a political contri-
bution immediately after Weber made it in March, 1971, and
that Ingram authorized the payments then.
lla
ment. 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-hauling 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 covering
the pipeline purchase that was to be effective only if the
parties also signed two other agreements: a retroactive
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
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
cash 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 Eu-
rope.
"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.
12a
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 We-
ber, to Europe te negotiate the fifth and sixth letters -
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 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 Hen-
ry 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 Frank-
furt 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 already
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.
* It is not clear how Weber expected his brother to cash the sixth
letter of credit in November, 1975; it did not mature until De
cember, 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.
13a
Be
Severance
Before discussing the specific 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 re-
versed 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 (5th Cir.), cert. denied, 395 U.S. 830
(1969), and then only for the most “cogent reasons,”
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, 352 F.2d 892, 896 (7th Cir.
1965) recently quoted in United States v. 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 denial
of their motions for severance. Frederick Ingram argues
that the denial deprived him of evidence that would other-
wise 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 acquitted) defended on a ground antago-
nistic to the defenses of their co-defendants and because
of curtailment of cross-examination and the spillover effect
of evidence admitted only against Frederick Ingram. We
turn first to the argument of the Illinois defendants.
l4a
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 extortion or received
bribes, because it was possible that Benton, through whom
the corporation’s communications with, 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 defend-
ants. 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
defense 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
15a
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 137. 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
alleged to have extorted the bribe, we sustained the denial
of severance. United States v. George, 477 F.2d 507 (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.” 977 F.2d at 515.
This is not such a case. The joinder did not result in the
exclusion 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 properly
favorable to the defendant 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 petitioner’s accomplice admitted having ac-
tually strangled the victim. Concerning the petitioner's right to
a new trial on both guilt and punishment, the Court said:
A sporting theory of justice might assume that if the sup-
pressed confession had been 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 de
fendant of that sporting chance through the use of a bifur-
cated trial . . . denies him due process or violates the Equal
Protection Clause of the Fourteenth Amendment.
373 U.S. at 90-91 (footnote omitted).
16a
have been made in such a separate trial. There was no
cognizable prejudice arising from antagonistic defenses."
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 prej udice resulting
from the admonition or point to any specific ruling cur-
tailing their cross-examination. It was, moreover, entirely
proper for the judge to attempt to forestall repetition.
3. Spillover Effect of Evidence Offered Against Fred-
erick 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
" 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,
standing 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 considered and makes it clear that the appropriate
ness of severance depends upon the degree and kind of antago-
nism. See also the federal cases cited in the ALR Annotation
referred to in the Commentary, 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.
17a
mind, but Janicki asserts that this instruction was inef-
fective. We see no substantial risk that the jury would
believe that because a Brazilian corporate officer took a
bribe from Ingram Corporation, Janicki did also, and there-
fore we conclude that Janicki was not prejudiced by the
admission of this evidence. Its admissibility as to Freder-
ick Ingram 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 exclusion of three items of evidence offered
to support his extortion defense, which Ingram argues
occurred because he was tried with the h
sir men he allegedly
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 governments’s case, for they corrobo-
rated much of his testimony.
Destroying Benton’s credibility 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 be-
cause the government’s case hinged largely on Benton’s
testimony. Since Benton’s diaries corroborated so much of
by
18a
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
McPartlin cooperated in that effort. In a brief supporting
a pretrial “Motion for Additional Time to Conduct Docu-
ment Analysis,” Ingram’s counsel stated, with reference
to contemplated tests on the Benton diaries,
he defendant Frederic B. Ingram is not the only
Oo ll on who may be affected by the results of these
tests. Besides the general effect of the doubts that
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 en-
tries relate to alleged payments of money to Mr.
McPartlin.
An investigator acting for Frederick Ingram’s counsel
twice interviewed McPartlin 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 interviewes McPartlin
made certain statements, which Ingram argues tend to
support his defense. At trial when Ingram offered evidence
of these statements, McPartlin’s counsel objected on the
ground, inter alia, of the attorney-client privilege, and the
court, after an in camera hearing, sustained the objection
on this and another ground."*
'? 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.
'3 In 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
ant, 3 “a
19a
The exclusion of the McPartlin statements would not be
reversible error even if he had not been entitled to claim
the privilege. We are satisfied from our examination 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 admitted in evidence
and which the jury obviously found to be true.'* We do not
disclose the contents of the statements because they re-
main protected by the attorney-client privilege, 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
purpose 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 defend-
ants. 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. Common-
wealth, 62 Va. (21 Gratt.) 822 (1971); Schmitt v. Emery,
211 Minn. 547, 2 N.W.2d 413 (1942); Continental Oil Co.
uv. 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
not prejudicial, we do not reach the alternative ground for exclu-
sion.
'* 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 com-
pare the two, he would have reached the same conclusion we do.
20a
tate v. Emmanuel, 42 Wash.2d 799, 259 P.2d 845, 854-
rors (1973); Note, ‘Waiver of Attorney-Client Privilege on
\nter-Attorney Exchange of Information,” 63 Yale L.J.
10380 (1954); Note, “The Attorney-Client Privilege in Mul-
tiple Party Situations,” 8 Colum. J.L. Soc. Prob. 179
(1972). Uninhibited communication among joint parties
and their counsel about matters of common concern is
often 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. There-
fore, waiver is not to be inferred from the disclosure in
confidence to a coparty’s attorney for a common purpose.
he case at bar, the judge found, as a preliminary
deca of fact, from the evidence adduced at the hearing
held pursuant to Rule 404(a), Fed. R. Evid., that MePartlin
had made the statements to the investigator in confidence.
That finding is not clearly erroneous.
Ingram argues that the co-defendants’ defenses must be
in m4 aiaieke Gangattid 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
ue Hunydee v. United States, supra, the attorney for
embdec'ees-daladons believed that the government would not
rosecute the co-defendant if Hunydee pleaded guilty, and there
lens 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 interest, which affected both attorneys
subsequent representation of their respective clients, were priv-
ileged. Similarly, in Schmitt, supra, the common interest of the
co-defendants related to the exclusion of a specific item of evi-
dence. See, Note, supra, 63 Yale L. J. 1030, 1035-1036.
2la
to proposed Rule 503(b) makes it clear that the joint-inter-
est privilege is not limited to situations in which the po-
sitions of the parties are compatible in all respects:
The third t pe of communication occurs in the
“joint defense” or “pooled information” situation,
where different lawyers represent clients who have
some interests in common. .. . The rule does not apply
to situations where there is no common interest to be
promoted by a joint consultation, and the parties meet
on a purely adversary basis.
Quoted in 2 J. Weinstein, supra, at 503-6 to 503-7, (Em-
phasis supplied and citations 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, ap-
proved by the Supreme Court, are a useful guide to the
federal courts in their development of a common law of
evidence. 2J. 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 be-
tween defendants 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 rath-
er than an attorney. The investigator was an agent for
'* 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.
22a
Ingram’s attorney, however, so it is as if communication
was to the attorney himself. “It has never been questioned
that the privilege protects communications to the attor-
ney’s. . agents. . .for rendering his services.’’ 8 Wigmore,
Evidence § 2301 at 583 (McNaughton rev. 1961); 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
McPartlin 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 different
than it would have been if during the trial the Ingram and
McPartlin attorneys had decided that Ingram’s attorney
would cross-examine Benton on behalf of both, and during
cross-examination McPartlin passed Ingram’s attorney a
note containing information for use in the cross-examina-
tion. 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 circumstances such as these where com-
munications were made directly to the attorney for another
party in In the Matter of Grand Jury Subpoena Duces
Tecum, supra, 406 F.Supp. at 391. United States v. Fried-
man, 445 F.2d 1076, 1085 n.4 (9th Cir.), cert. denied, 404
U.S. 958 (1971), relied on by Ingram, is not to the contrary.
In Friedman the court held its decision in Hunydee v.
United States, supra, inapplicable, because no joint
defence or common interest was alleged. The court went
on to state, in the footnote relied upon, that even if Hun-
ydee 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 priv-
23a
ilege whether Ingram was tried joi
jointly or separately,
prejudice would have resulted from the joint trial - to
son of the exclusion of the McPartlin statements even if
those statements had not been merely cumulative.
2. Relevance of Threats Against Benton
Frederick Ingram also argues that joinder cau
cific prej udice through the trial Post a a a a
judicial to other defendants, of evidence of threats of phys-
ical harm directed against Benton. The short answer is
that prej udice to other defendants was not the only ground
for the exclusion. The excluded evidence consisted of tes-
timony by Ingram that in the fall of 1972 Benton ex-
— fear for his own physical well-being if Ingram re-
- wed to make the promised payments to the Chicago of-
, and testimony by two other witnesses that Benton
told them in October 1974 that someone had threatened
him with physical harm. To begin with both statements
by Benton were said to have been made long after Febru-
ary 1972, when Ingram, by his own admission, authorized
Benton to make payments to secure the contract. There is
no indication in the record that the second, made long after
all payments were made, was ever communicated to In-
gram. The alleged threats were directed at Benton, not
Frederick Ingram, who had no dealings in the matter with
anyone outside Ingram Corporation. Finally, Ingram’s the-
ory throughout the trial was economic, not physical, coer-
cion."’ The evidence was properly excluded as irrelevant,
and it would have been equally irrel i
Seabee aman. equally irrelevant if Ingram had
'' In United States v. McClure, 546 F.2d 670 (5th Cir. 1 i
upon by Ingram, the court held it to have been aad an
to exclude as irrelevant “evidence of a systematic campaign of
aay and intimidation” by an informer against persons other
han the defendant, offered to corroborate the defendant's tes-
pong ts that he had been threatened and coerced by the informer
commit the crime charged. The case is not authority for the
24a
3. Relevance of an Unrelated Payment by a Third-
Party a
erick Ingram also contends that the joinder cau
Pi aor eo Fiskiones that an attorney who on
Ingram Corporation before the Illinois Commerce 96d
mission made a $5,000 contribution to McPartlin’s ree 0
tion campaign fund, and that the payment was motivat '
in part by McPartlin’s having recommended the a ‘
firm to Ingram Corporation. There was no showing t ‘
the attorney was coerced. This evidence, offered a y
the prosecution and then by the Ingrams, was right y =
cluded on both occasions as irrelevant. In reso B wt
Ingram offer the court said that it “could be prejudici
i i i far as
McPartlin without being probative of an issue as far
the Ingrams are concerned.” Prejudice to McPartlin aside,
the trial court was correct as to the probative value of the
evidence.
We therefore conclude that the denial of the motions for
severance was not error.
SPRECHER, Circuit Judge:
I concur in the portions of this opinion prepared by
Judges Pell and Tone.
Il.
Extortion Defense Instruction
As noted earlier, defendant Ingram never denied eae
certain of the illicit personal payments to officials of the
iti i eats of physical violence, made
eer quan. dnoael at hs poles other than mee
defendant, is relevant in a case in which the defendant nace er
contend that his criminal activity was motivated by . wo a
physical violence or that he even had knowledge of suc
at the time of his criminal activity.
25a
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 but were ex-
torted from him by threats that, unless these payments
were made, the Sanitary District would, contrary 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 de-
fense of extortion:
Now, I have just told you that willful conduct,
which is required in each of the crimes charged in this
indictment, must be voluntary.
One of the defenses raised by the Defendants Fred-
eric B. Ingram and E. Bronson Ingram is that they
authorized certain poomennts to be made only because
they were told unless the ——— were made, the
pipeline would not be paid for and the liquidated dam-
age provision would used against Ingram Barge
Company in an unreasonable and punitive manner.
These defendants claim, therefore, that they did not
commit bribery or conspire to 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
defendant did authorize any of the payments in ques-
'* It is to be noted that this defense is inapplicable to the counts
under which Ingram was found guilty of participation in pay-
ments made prior to February, 1972. (Counts 3, 4, and 5.) 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 know]-
edge of the earlier payments, so the extortion defense would not
suffice under the conspiracy count.
| 26a
. but that he did so solely to procure an economic
co rather than out of fear of an economic loss,
then this defense that the act was involuntary must
fail.
ther hand, if you do find that a defendant
naan | payments he use 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.
are several things to consider in this connec-
tion First did the defendant fear loss as a result of
a withh of something to which he believed In-
seem fet was already legally entitled?
Specif , did efendant believe that the Met-
ropolitan ——, ae was yaad rime ay .
on to ngram Barge for the p pelin
be i e that the heentened assessment of liqui-
dated damages was legally unjustified?
The answers to these questions are important be-
cause there is a difference between paying a public
official for a is entitled to receive and
a public official for something one is not en-
Pitled to receive.
If one does not believe he is legally entitled to re-
ceive the in question, then, no matter how much
he needs it and no matter how t the economic loss
one might suffer by not recei it, there can be no
legal justification for paying a public official to get it.
Such a payment is b , pure and simple.
However, if one is le entitled to the thing in
question or in faith believes he is legally enti
to it, then the of economic harm from not receiv-
ing it may be sufficient to render the act be bene
involuntary, depending upon three additional consid-
erations: The seriousness of the economic harm ol
ceived by the defendant, the effect that perception
had on his ability to exercise free choice, and the
27a
defendant's awareness of reasonable alternatives to
the making of the demanded payments.
If a defendant did not in fact 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 peymants and chose not to take those
actions, then his conduct in ae 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 conic a
a the government must prove one of the fol-
owing py (a) that the defendant was not moti-
vated by a fear of economic harm in authorizing the
particular payment, or (b) the thing which the defend-
ant sought to obtain by making the payment was not
somet = believed Ingram Barge Company was
legally entitled to have without mak 8 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 substant y im-
air his ability to exercise free choice, or (e) and final-
y, the defendant was aware of reasonable alternatives
to making the payments and chose not to pursue
those alternatives.
Defendant Ingram urges that this instruction was preju-
dicial error in three respects. In considering these conten-
tions we shall assume without deciding, that as the instruc-
tion 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 de-
cision in United States v. Peskin, 527 F.2d 71, 84 (7th Cir.
1975), cert. denied, 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
28a
official decision:
[A]t least in a case where a discretionary or legislative
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 eco-
nomic 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 payment 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 object 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 characterized his own defense. Ingram as-
serted 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 distinc-
tion which Ingram alleges was most likely, this would
constitute an economic “‘loss”’ thereby preventing the jury
from rejecting the defense on the basis of the loss-gain
distinction.'’* Moreover it is not clear that Ingram pre-
served this objection for appeal: the written objection to
the instruction teridered at trial makes no mention of any
' Indeed Ingram seems to have admitted as much. In his brief
defendant Ingram states: ‘‘Alternatively, the jury might confus-
ingly [sic] have reasoned that threatened liability under the liq-
uidated damages clause was an ‘economic loss’... .’’ Brief for
Defendant Ingram at 37.
29a
error in this distinction.” Finally, we are not convinced
that the jury would put such a simplistic construction on
the loss-gain distinction. Certainly it requires no extraor-
dinary economic acumen to realize that the receipt of mon-
ey may not represent an economic gain if the amount re-
ceived is less than an amount to which one was previously
entitled. Conversely, an ordinary juror would certainly re-
alize 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 act is
performed for his benefit. The district court followed 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, thereby further
clarifying the interdependent relation between these two
concepts.”
*° 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 sub-
ject 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 mem-
orandum 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 modified version of those
proposed instructions.
*! Ingram attempts to bolster this argument by urging that de-
cisions under the Hobbs Act have rejected any distinction be-
30a
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 ob-
jection appears not to have been properly preserved for
appeal, since Ingram’s objection to the trial court did not
criticize 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.”
Ingram’s final objection to the trial court instruction is
that the instruction, by its emphasis on the voluntariness
of the payments, implicitly disallowed the extortion de-
fense and permitted only the narrower defense of duress.
Assuming that the distinction drawn in United States uv.
Barash, 365 F.2d 395 (2d Cir. 1966), between the defenses
tween threats of economic loss and gain in extortion prosecu-
tions. 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 rele-
vance of such authority, however, since there is no reason that
conduct giving rise to criminal liability for extortion should nec-
essarily provide a criminal defense for the reciprocal party. In-
deed it does not seem illogical to suggest that it may be reason-
able to prosecute both the official who conditions discretionary
benefits on bribes and the person who seeks to obtain such ben-
efits. 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 nullify
anything.’’); United States v. Gill, 490 F.2d 233 (7th Cir. 1973),
cert. denied, 417 U.S. 968 (1974).
2 See note 20 supra.
23 United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert.
denied, 429 U.S. 918 (1976). See p. 25 supra.
3la
of duress and extortion is correct, the instruction could
not have prejudiced Ingram since Ingram, before this
court and the trial court, characterized his own conduct in
such a way as to absolutely preclude the availability of the
extortion defense, even assuming that the voluntariness
of his conduct alone would not negate the extortion de-
fense. 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 abso-
lutely precluded from prevailing on an extortion defense
*4 As 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 bear-
ing of threats of economic harm on the intent required for
conviction. ... We think that if a government officer threat-
ens serious economic loss unless paid for giving a citizen his
due, the latter is entitled 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 availabble 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 quoted at pp. 16-17, supra) that on February
21, 1972, during the meeting between the Ingram brothers
and Benton, Benton had said, ‘‘[W]e don’t really have a legal
position to get the rest of our money”’ (Tr. 4075). Indeed, it
32a
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 involuntariness
could not have harmed the defendant.”
was precisely because there was no legal recourse that, ac-
cording to both Ingrams, they saw no option other than to
capitulate to the demands.
On any fair reading of the record, Mr. Ingram was in the
position of ordinary applicants for zoning variances or for
discretionary governmental action. He honestly—and with
substantial basis—believed 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 irrelevant 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
applicants for zoning variances” is particularly damaging in that
it was in precisely that context in Peskin that we explicitly held
the extortion defense to be unavailable as a matter of law. 527
F.2d at 84. See also the cited quotation on p. 25 supra.
* Ingram also objects to the trial court's refusal to give a ‘‘theory
of defense” instruction describing Ingram's view of the extor-
tion. This is a somewhat surprising argument since the trial
court's instruction gave more factual information as to the de-
fendant'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 wp Reon the Ingram on me a
no purpose 0 any money or thing of value to any
; of the Metropolitan Sanitary District, and acted
only because of demands or threats communicated by Ben-
ton, and believed that the Metropolitan Sanitary District
33a
Ne rere et we eee ewes 8
we
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 im-
pene offering or promising any money or thing of value
o any Official of the Metropolitan Sanitary District in con-
nection 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 ee es or the Burlington Northern Railroad
and other competitors. Indeed, it is the position of the de-
fendants Frederic B. Ingram and E. Bronson Ingram that
they acted only because of demands or threats communi-
cated to them by William J. Benton and because they be-
lieved that those threats would be carried out unless the
demands were satisfied.
If you find that the defendants Frederic B. Ingram and
E. Bronson Ingram did not act voluntarily, or had formed
no purpose of offering any money or thing of value to the
—- 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 pay-
ment 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, con-
cisely 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 un-
reasonable manner. Thus, the defendant Ingram’s claim that the
trial court erred in rejecting a ‘‘theory of defense”’ instruction is
without merit.
34a
Ill.
Evidence of Ingram's Bribes of Foreign Officials
At trial the government, seeking to rebut Ingram’s tes-
timony 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 review of the evi-
dence, an in camera meeting with all counsel, and a voir
dire of the government witnesses. After this careful con-
sideration, the court, although rejecting a substantial por-
tion of the government's offer of proof,”” permitted the
government to introduce testimony that Ingram had made
surreptitious payments to an employee of a semi-official
Brazilian corporation in order to receive preferential treat-
ment.
The government introduced at trial the testimony of
Chris Daley, an official of the Ingram Corporaton, to es-
tablish the government's account of Ingram’s alleged prior
bribe. Daley testified that in 1967 the Ingram Corporation
became interested in engaging in an off-shore drilling proj-
ect conducted by Petrobas, a Brazilian oil company owned
" 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. Addition-
ally 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 we gone who was potentially able to provide inside
information influence the level of payments by Amoco to
Ingram. Finally, the government said it could prove that Ingram
Corp. had made an interest-free, uncollateralized loan to an In-
donesian military officer who was able to influence contracts for
Ingram in Indonesia.
35a
jointly by the Brazilian government and private investors.
Daley and Benton then met with Levindo Caniero, the
Petrobas official with responsibility for procuring the con-
tractor for the off-shore drilling. As a result of this meet-
ing, Caniero agreed to provide inside information to In-
gram Corporation to assure that it was low-bidder in ex-
change for a “payoff or commission."’ Benton, Oaley 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 Corporation’s establishment of a
Swiss account for him. At this point Daley informed In-
gram that the letter of intent was about to be lost because
of the delay in making the payoffs. Ingram then put Daley
in touch with an international banker at Lehmann Broth-
ers to expedite the establishment of the account. Subse-
quently, 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 de-
fense that he lacked the intent to bribe the Chicago de-
fendants and made the payments only to satisfy extor-
tionate demands. Rule 404(b) of the Federal Rules of Evi-
dence permits proof of prior crimes or acts where it is used
for such purposes ‘‘as proof of motive, opportunity, intent,
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 show-
ing that the defendant has a criminal character and there-
fore possesses a propensity to commit criminal acts. See,
e.g., United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir.
1978). Or, as this court has held, such evidence is admis-
sible “if, entirely apart from the matter of ‘propensity,’ it
has a tendency to make the existence of an element of the
36a
crime charged more probable than it would be without
such evidence.”” United States v. Fairchild, 526 F.2d 185,
189 (7th Cir. 1975), cert. denied, 425 U.S. 942 (1976) (em-
phasis added).
Ingram forwards three attacks on the admission of this
evidence. First, he claims, the prior payments to Caniero
were not sufficiently similar to the payments for which he
was indicted to establish their relevance to his intent. Be-
fore 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 Ingram’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 surreptitious pay-
ments to government or private officials is a common and
accepted practice in Brazil absent 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 accepted practice in Brazil,”
we do not find that fact sufficient to differentiate the two
transactions. In United States v. Baggett, 481 F.2d 114
* Ingram’s assertion that such a practice is ‘‘moral”’ in Brazil
tempts us to examine the philosophical underpinnings of an eth-
ical 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 con-
demns a practice can morally engage in that practice once he
simply steps ‘‘across the river’ into a culture with different
norms? See B. Pascal, Pensees 151 (Editions Garnier Freres
1964) (‘‘Plaisante justice 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.’’)
37a
(4th Cir.), cert. denied, 414 U.S. 1116 (1973), the govern-
ment 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 offi-
cial and favorable actions by him on behalf of the donor
followed shortly thereafter. The defendant urged that since
no showing of a quid pro quo had been made by the gov-
ernment there was nothing to establish anything improper
in these transactions. The court, however, admitted the
evidence holding that regardless of the propriety of the
individual's acts, the evidence demonstrated 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 defendant had knowingly
circumvented ordinary business channels with ‘‘facilitat-
ing payments.”’ Admittedly the illegality of such payments
to government officials in the United States would make
such payments less likely than those not involving illegal-
ity; 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 payments in other in-
stances than one who has never made such payments.”
The other differences urged by Ingram are even less sub-
stantial. The fact that the Brazilian official was an em-
ployee of a semi-public entity and that the indictment
alleged payments to employees of a wholly public govern-
mental 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 not initiated by
Ingram: we can see no difference in active participation in
® See also United States v. Peskin, 525 F.2d 71, 84 (7th Cir.
1975), cert. denied, 429 U.S. 818 (1978) (upholding admission of
evidence of subsequent bribes to public officials).
38a
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 axiomatic 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
payments made to Caniero. We have held 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.”
*” United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir.), cert.
denied, 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., dissent-
ing).
bVua
(Tr. 5638). At trial, Daley testified as to Ingram's response
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 difficult to understand
why Ingram would have responded “in disgust’ or with
queries as to how Daley became involved “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 person-
nel that Ingram would be the low bidder and that Caniero
had insured Daley that ‘‘we could count on him for any
assistance we need.’ Considering all the evidence, partic-
ularly Ingram’'s reaction to Daley's statement and his
knowledge that Ingram was assured to be the low bidder,
there is a convincing portrait of Ingram’s knowledge of
the purpose of the Caniero payments.
Finally, Ingram urges, relying on Rule 403 of the Federal
Rules of Evidence, that the prejudicial impact of the evi-
dence outweighed its relevance and therefore should have
been excluded. Ingram must sustain a heavy burden to
succeed on this argument since the careful balancing of
the probative value of prior acts versus their possible un-
duly prejudical 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
evidence to be indicative of a criminal disposition.
The highly judgmental character of this test mandates
that we not restrike the balance ourselves but instead
40a
examine only the manner in which the district court exer-
cised 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 th government had sought
to introduce."' After extensive discussion the court per-
mitted proof only of the Petrobas transaction. Further, the
court required the government to present its witness to
the Petrobas transaction in camera to confirm the sub-
stance of the testimony. Finally, to minimize any prejudice
the court preceded the presentation of this witness's tes-
timony before the jury with an extensive limiting instruc-
tion emphasizing that Ingram was not ‘“‘on trial” for
this previous transaction, that the evidence was to be con-
sidered only as it concerned Ingram’s intent in the Sani-
tary District transaction and that the court passed no
judgment on the value of this evidence. Courts have often
looked to these factors indicating due consideration to up-
hold the trial court’s judgment. See, e.g., United States v.
Carleo, No. 77-1103 (10th Cir. May 12, 1978). In particular,
the use of limiting 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. :
Government's Compliance with Brady v. 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 govern-
*! See note 27 supra.
4la
ment asserts the defalcations could have been discerned
by the defendants, the government did not turn over to
the defendants Benton's grand jury testimony in which he
referred to the $375,000 as ‘‘the amount of money I am
responsible for keeping,” nor did the government disclose
that Benton had expressly admitted the embezzlements in
interviews with government counsel. Defendants Mc-
Partlin and Janicki, relying on Brady v. Maryland, 373
U.S. 83 (1963), urge that this failure to disclose this infor-
mation earlier violated their Due Process rights and man-
dates reversal of the convictions.
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 exculpa-
tory material until after trial requires that a new trial be
given so that this evidence may be considered. The Court
in Agurs characterized the situations to which the Brady
principles apply as those involving ‘‘the discovery, after
trial, of information which had been known to the prose-
cution but unknown to the defense.’’ 427 U.S. at 103 (em-
phasis supplied). Indeed the standard developed in Agurs
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, constitu-
tional error has been committed. Jd. at 112 (emphasis sup-
plied).
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 prose-
cutor did not conceal or withhold evidence of Benton's
defalcations but waited until early in the trial to reveal
them.” There is nothing in Brady or Agurs to require that
—_——-
* Defendant Janicki also apparently claims that the government
did not ultimately turn over all exculpatory material relating to
42a
such disclosures be made before trial, and we have explic-
itly held this in the past. United States v. Stone, 471 F.2d
170, 173-74 (7th Cir. 1972), cert. denied, 411 U.S. 931
(1973). See also United States v. 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 defendants, we
cannot say that this disclosure came so late as to violate
Due Process.
The defendants, apparently relying on their misinterpre-
tation 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
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 prem-
ised on the defendant’s mere conjecture that there might have
been favorable evidence which was undisclosed. The existence of
the evidence must be established, and here the defendants offered
nothing to rebut the government's assertion that it had turned
over to the defendants all its information on the embezzlement.
* At trial the defendants made only generalized claims of prej-
udice without advancing any specific theories upon which a find-
ing of prejudice might be based. Tr. at 230-31 (Janicki), 249-50
(McPartlin). Such specific theories were advanced for the first
time in the briefs submitted to this court.
43a
have been directed toward more detailed information con-
cerning these -embezzled] funds. . . . A thorough investi-
gation into the disposition of those funds which he admit-
tedly retained might have revealed that additional funds
were similarly expended, deposited or hidden.’’ Brief for
Defendant McPartlin 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
made additional investigations between the time of the
disclosure and the close of the evidence almost two months
later, and yet nothing in the record 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 late disclosure.” Tr. at 250. Nor did the
defendants subsequently renew their request for a contin-
uance. Thus, given the failure of the defendants to pursue
adequately any subsequent investigation and their subse-
quent failure to request additional time for any investiga-
tion thoroughly discredits their assertion that they were
prejudiced by the timing of the disclosure.
V.
Admission of Benton’s Desk Calendars
At trial the government 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 dealings
of Benton with the Chicago defendants. As a foundation
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 fur-
ther testified that he kept these diaries and made entries
in them as a regular part of his business activity as a vice-
44a
president of Ingram Corp., noting in them anticipated
meetings, telephone calls, personnel matters and bids.
These entries were characterized by Benton as “things
which I would need to look back on,’’ to recall a bid or to
prepare letters and memoranda, for example.
In admitting the diaries the trial court made the follow-
ing findings:
It was the regular course of business for Mr. Benton
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 connec-
tion with that business. The entries that are contained
in the diary, in the series of diaries, do pertain to
Ingram’s business.
The contents of the diaries further indicated their reliabil-
ity 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 mis-
conduct. Indeed, if he were unavailable, I think these
diaries might well be admissible as statements
— penal interest, so incriminatory are they of
r. 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
45a
event. Most importantly these diaries satisfied the central
rationale of the business records exception: since Benton
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 doc-
uments differing greatly from the classic ‘‘shopbook”’ or
business ledger is well established. See, e.g., United States
vu. Reese, 568 F.2d 1246 (6th Cir. 1977) (scrapbook 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 Pe-
troleum Co. v. Skelly Oil Co., 446 F. Supp. 874 (E.D. Wis.
1978) (corporate officer's personal notes of business nego-
tiations); Aluminum 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). Moreover, the
business record exception has been applied to admit doc-
uments indistinguishable in kind from Benton's desk cal-
endars. In United States v. Evans, 572 F.2d 455 (5th Cir.
1978), the court permitted the introduction of ‘‘pocket-size
appointment calendars known as ‘daytimers.’ "’ Jd. at 487.
The court noted in support of its holding that these cal-
endars were business records that “the entries purport on
their face to list ... business entertainment expenses...
[and] such documents were used as a matter of company
policy.’’ Jd. 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 McPartlin and Weber have argued that sev-
eral facts 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-
tries out of all those made over a two-year period were
made out of sequence. We do not however agree with the
46a
defendants that nonsequential entries preclude admissibil-
ity 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 method-
ically 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 contemporaneity and regularity requirements, their se-
quence is irrelevant. This point was made clear by the
Tenth Circuit in United States v. Carranco, 551 F.2d 1197
(10th Cir. 1977). There the defendants attempted to block
the admission of freight bills on the ground that some of
the notations on the bills occurred after the document had
been completed by the freight originator. The court reject-
ed 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-
ping business, a freight bill is used by many different
peor and it is their job to make notations on the
reight bill so it will continue to be an accurate de-
scription of the shipment. It was adopted by ICX as
its record, in the regular course of its business, when
* The defendants have also attacked the contemporaneity of the
entries, arguing that the records were inadmissible because en-
tries 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
appointment was made. This seems to be sufficient contempor-
aneity to constitute a business record documenting the making
of appointments.
47a
the ICX driver signed it as he picked up the interline
shipment. He used it as an ICX record, verified the
shipment, 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 ‘static document”;
indeed as appointments and other matters change the cal-
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 entires 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 fif-
teen non-sequentia! entries over a two year period, even if
many of these were shown to be noncontemporaneous, 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 en-
tries of a purely private nature, viz., The alleged extortion
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 relia-
bility of a business record is verification by persons other
than the one making the entry. Indeed, the Advisory Com-
48a
mittee Notes appear to suggest otherwise:
The element of unusual reliability of business rec-
ords is said variously to be supplied by systematic
checking, by regularity and continuity which produce
habits of precision, by actual experience of business
in relying upon them, or by a duty to make an accu-
rate 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 the benefit of the entire business 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. 1970), 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
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 distrib-
uting a huge block 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
49a
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 ration-
ale 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 queston as to
whether Benton’s activities constituted an independent
business, we believe that his activities can also be char-
acterized 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 Amend-
ment challenge to the admission of the diary premised on
the personal, non-official nature of the papers, noted:
We think .. . there was a sufficient showing that the
entries introduced in evidence dealt with official du-
ties. Such matters as rent adjustments and recom-
mendations re ing the same were within his gen-
eral duties, whether he performed them rightly or
wrongly, as lunch or elsewhere. . . .
187 F.2d at 575 (emphasis supplied). Certainly if such pa-
pers have sufficient business character to remove them
from the personal paper protections of the Fourth Amend-
ment, they have sufficient reliability to permit admissibil-
ity.
50a
Defendants finally rely heavily on Buckley v. Altheimer,
152 F.2d 502 (7th Cir. 1945) in support of their position.
In Buckley, this circuit 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 “‘infor-
mally kept,’’ the diary should have been admitted because
the entries were made “precisely and meticulously.” Jd.
The court rejected this argument, stating that “private
diaries as distinguished from account books or individual
memoranda of particular transactions’’ are inadmissible.
Id. at 508. It is this latter statement upon which the de-
fendants 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 pri-
vate diaries; instead it is clear that the decisive factor in
that case was that no regular entries had been made doc-
umenting the relationship. The desk calendar before us is
clearly a record of a different order: regular and frequent
entries documenting the relation between Benton and San-
itary 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 de
fendant’s arguments were sufficient grounds to prevent
admission of these diaries under the business record ex-
ception, they would be admissible under two other excep-
tions. First, they would be admissible under the “‘residual’”’
5la
exception, 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. Ianconetti, 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
reliability necessary for admission is greatly reduced
where, as here, the declarant is testifying and is available
for cross-examination, thereby satisfying the central con-
cern of the hearsay rule. Second, these calendars would
als6 be admissible under Rule 801(d)(2)(E) as statements
“by a co-conspirator of a party during the course and in
furtherance of the conspiracy.”’ Since these entries were
made so that Benton could rely on them in carrying out
his scheme, they aided and were ‘‘in furtherance of’’ the
conspiracy. See United States v. Evans, 572 F.2d 455 (5th
Cir. 1978).
* Rule 803(24) provides:
(24) Other exceptions. A statement not specifically cov-
ered by any of the foregoing exceptions but having equiva-
lent circumstantial guarantees of trustworthiness, if the
court determines that (A) the statement is offered as evi-
dence 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.
52a
VI.
Weber’s Prior Consistent Statements
The government’s evidence revealed that the first in-
stallment of the bribe money consisted of $75,000 given to
McPartlin 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 infer-
ences 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 accoun-
tant’s copy of the bank statement recording the deposit.
In an offer of proof Weber indicated that the accountant
would testify that in 1973, 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 ac-
countant’s notation next to the sum: “Overdraft covered
and paid in cash from Mother (per FNW).” The trial court
refused the admission of the accountant’s testimony and
his copy of the bank statement. Defendants McPartlin®
and Weber urge that this was error.
* McPartlin argues that evidence denying Weber’s participation
in the first bribe installment would have inured to his benefit
since the original installament was alleged to have been delivered
to McPartlin 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
53a
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 under
this theory must have some probative value in rebutting
the implied charge of recent fabrication or improper mo-
tive. However, where a motive to falsify also existed at the
time of the earlier statement, it possesses no such proba-
tive 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 like-
ly. .. . Evidence which merely shows that the witness
said the same thing on other occasions when his mo-
tive was the same does not have much probative force
“for the simple reason that mere repetition does not
imply veracity.”
4 J. WEINSTEIN & M. BERGER, EVIDENCE 4801(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 includable
in Weber’s gross income whereas an appropriation of joint-
ly-held funds might not have been. Thus, we do not feel
fact Weber may not have received a cash rake-off from this first
installment in no way detracts from the credibility of testimony
that McPartlin received the money; at most such evidence would
have only contributed to a demonstration of McPartlin’s penu-
riousness.
7 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 influ-
ence or motive. ...
54a
that these prior statements were admissible under
801(d)(1)(B).
As a second ground of admissibility, Weber and Mc-
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 fundamen-
tal 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
judge was informed of this. (Tr. 1363-69). As such preliti-
gation 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 example
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 rea-
55a
sons 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 Re goo There was no opportunity for —
— 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 judgment
and discretion; they were not produced as part of any
regular system; there was no reliance on these notations
by the accountant or others to guard against error or mis-
statement. If anything, the records in this case are less
trustworthy since, unlike Hartzog where the agent exam-
ined records that the defendant had prepared for his own
use, these notations were the product of Weber’s own rep-
resentations for the purposes of the audit, thereby fur-
thering the possibility of misstatement. Accordingly, we
hold that the trial court properly exercised its discretion
to exclude these records.*
** Further support can also be found in this circuit’s decision in
United States v. Ware, 247 F.2d 688 (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 where inadmissible in
subsequent prosecutions, noting that ‘‘such utility as .. . [these
records] possess relates primarily to prosecution of suspected
law breakers and only incidentally to the 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 prosecution as a result of
an audit and only incidentally to the conduct of Weber's busi-
ness.
56a
PELL, Circuit Judge:
I concur in the portions of this opinion prepared by
Judges Tone and Sprecher.
Vil.
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 asked
whether his brother was an acquaintance of Paul Powell
to which he also responded in the affirmative. An objection
was made, without any specificity, following t
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