Petition — Price v. United States

-

8

: Upreme Conc

F vireme Court, U. & >

if FILED

JAN 4 1999

| CHAEL p41).

In Tue Bis ane JR., CLERK

Supreme Court of the United States

Ocroser Term, 1979

No. 79-1059

FLOYD PRICE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PATRICK A TUITE

NAN R. NOLAN

105 West Madison Street

Suite 900

Chicago, Illinois 60602

(312) 641-1022

Attorneys for Petitioner

Midwest Law Printing Co., Chicago 60601, FInancial 6-3988

TABLE OF CONTENTS

PAGE

OPINION BELOW 1

JURISDICTION ......... Salsitpealalaldchahdebiaipretichiiosinnonnipslicas 2

QUESTIONS PRESENTED ounce coco cc cccccccecececeeeeeee 2

CONSTITUTIONAL PROVISION INVOLVED .......... 2

STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 3

Proceedings Below 3

Statement of Facts 3

REASONS FOR GRANTING THE WRIT:

I.

The Denial Of The Right Of Cross-Examination

Of A Main Government Witness Which Would

Have Shown Bias Cannot Be Deemed Harmless

Error

II.

The Seventh Circuit’s Expansion Of The Hobbs

Act (Title 18 U.S.C. Section 1951) Has Impermis-

sibly Gone Beyond The Intent Of Congress In

Enacting The Statute

A. A Conviction Under The Hobbs Act Cannot

Stand When There Is Merely Evidence Of A

Gratuity Paid To A Public Employee With-

out Some Evidence Of Compulsion, Induce-

ment, Or Coercion By The Public Employee ..

B. The Hobbs Act Was Not Intended To Reach

Payments To A Public Employee By A Per-

son Engaged In A Wholly Illegal Enterprise ..

CONCLUSION

12

19

19

SX

APPENDICES:

A—Opinion and Judgment of the United States

Court of Appeals for the Seventh Circuit ............ la

B—Order Denying Petition for Rehearing En Banc .. lla

‘—Constitutional and Statutory Provisions .............. 12a

CITATIONS

Cases

Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75

Si MNINIY GUUS WRITE D ssinsssninlsntescinsnscenpciianasanons 12, 13, 14, 16, 17

Bodine v. United States, 368 F.2d 417 (5th Cir. 1966) .. 14

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

8 RI en eee 14

Davis v. Alaska, 415 U.S. 348, 94 S.Ct. 1105, 39 L.Ed.

UE HD wins cscnciinssctciigemnstcipblaatrtse apeh Ss O Sata 12, 14

People v. Jordan, 15 Ill. App. 3d 672, 304 N.E.2d 713

CRE I I Saeco eee lie 23

Smith v. Illinois, 390 U.S. 129, 19 L.Ed.2d 956, 88 S.

Ct. 748 (1968) ......... Sdolpicbidtoiaelalises abeaiiccobaiieinastesinin 14

Snyder v. Coiner, 510 F.2d 224 (4th Cir. - 1975) POA oe 14

United States v. Adcock, 558 F.2d 397 (8th Cir. 1977) .. 21

United States v. Addonizio, 451 F.2d 49 (3rd Cir. 1974) 26

United States v. Bohle, 445 F.2d 54 (7th Cir. 1971) ........ 16

United States v. Braasch, 505 F.2d 139 (7th Cir. 1974) ..

22, 26

United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979) ..... 19

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

21, 22, 26

iii

United States v. Gill, 490 F.2d 233 (7th Cir. 1973) ........ 22

United States v. Greenberg, 423 F.2d 1106 (5th Cir.

BE: sisitiinannnicetiectnntn 14

United States v. Harding, 563 F.2d 299 9 ( 6th Cir. 1977) .. 22

United States v. Hathaway, 534 F.2d 386 (1st Cir. 1975) 21

United States v. Irali, 503 F.2d 1295 (7th Cir. 1974) .. 21, 26

United States v. Kartman, 417 F.2d 883 (9th Cir. 1969) 15

United States v. Kuta, 518 F.2d 947 (7th Cir. 1975) , 22, 26

United States v. Lawinski, 195 F.2d 1 (7th Cir. 1952) .. 15

United States v. Mayer, 556 F.2d 245 (5th Cir. 1977) .. 15

United States v. Onori, 535 F.2d 938 (5th Cir. 1976) .... 15

United States v. Ott, 489 F.2d 872 (7th Cir. 1973) .......... 17

United States v. Pranno, 385 F.2d 387 (7th Cir. 1967) .. 25

United States v. Price, 507 F.2d 1349 (4th Cir. 1974) .... 22

United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978) .. 23

United States v. Standard Oil, 316 F.2d 884 (7th Cir.

} |, RAR RES eto onl 14

United States v. Staszeuk, 502 F.2d 875 (7th Cir. 1974)

PTR GAS ea er eee ae 25, 26

United States v. Sutton, 160 F.2d 754 (7th Cir. 1947) .. 21

Other Authorities

Amendment VI of the United States Constitution .......... 12a

Chicago Municipal Code, Chapter 86, Section 86-16 .... 24

— 38, Section 33-1 (d), Illinois Revised Statutes ..

ie 2, 13a

18 U.S.C. Section 1951 .. 2, 19, 12a

26 U.S.C. Section 7201 ........... 16

In THE

Supreme Court of the United States

Ocroser Trrm, 1979

No.

FLOYD PRICE,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit in this proceeding.

OPINION BELOW

The judgment and opinion of the United States Court

of Appeals for the Seventh Circuit entered on October

22, 1979 is an unpublished order and is attached hereto

as Appendix A. The order of the United States Court of

Appeals for the Seventh Circuit entered on December 5,

1979 denying the petition for rehearing en banc is

attached hereto as Appendix B.

a ee

JURISDICTION

The judgment of the court of appeals on which this

Petition is based was entered on October 22, 1979. The

order oi the Court of Appeals denying the petition for

rehearing en banc was entered on December 5, 1979.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1).

QUESTIONS PRESENTED

1. Whether the denial of the right of cross-examina-

tion of a main government witness which would have

showed bias can be deemed harmless error.

2. Whether the United States Court of Appeals for

the Seventh Circuit’s expansion of the Hobbs Act has

impermissibly gone beyond the intent of Congress in

enacting the statute.

CONSTITUTIONAL PROVISIONS INVOLVED

The text of Amendment VI of the United States

Constitution is set out at Appendix C, page 12a.

STATUTORY PROVISIONS INVOLVED

The text of 18 U.S.C. Section 1951 is set out at

Appendix C, page 12a. The test of Chapter 38, Section

33-1(d), Illinois Revised Statutes, is set out at Appendix

C, page 13a.

a

STATEMENT OF THE CASE

Proceedings Below

Petitioner was charged in an eleven-count indictment

with violations of extortion under color of official right

in violation of 18 U.S.C. Section 1951. In the course of a

trial by jury, the Court dismissed Count nine and the

jury found the defendant guilty of the other ten counts.

Notice of appeal was timely filed, and the United States

Court of Appeals for the Seventh Circuit affirmed

defendant’s conviction on October 22, 1979. Petitioner’s

motion to request a rehearing en banc was denied on

December 5, 1979.

Statement of Facts

The case revolved around five contractors or electrical

workers who testified that on various dates in the years

1974 through 1978 they gave money to Floyd Price, who

was employed as an Electrical Inspector for the City of

Chicago Bureau of Electrical Inspection. A breakdown

of the counts as to contractors may assist this Court in

evaluating the case.

Service Electric (Counts 1 and 4)

Count Date Amount Paid

1 9/4/74 $500

4 1/16/76 $150

Frank Neylon, the president of Service Electric,

testified that Service Electric is involved in the elec-

trical contracting business, that they bought their elec-

trical supplies, particularly their copper, primarily from

Englewood Electric Supply in the City of Chicago. He

sical

testified that to the best of his knowledge copper is not

mined in the State of Illinois. He also testified that one

of his supervisors was Matt Ott, who had come to him on

some occasions for money for Floyd Price, the electrical

inspector. In 1974 there was a job at 1710 North Kostner

in Chicago, a food store, at which time Matt Ott had

come to him and told him that he needed money for

Price and that unless a $500 payment was made there

would be a “nitpicking” inspection of the job. He put

$500 in an envelope and gave it to Ott. He also entered

into a book which he kept that the money was paid to

Ott on behalf of Nolan and Price, City Inspectors,

regarding 1710 North Kostner, $500, and the date of

9/10/74.

He testified that in 1976 Service Electric did a job at

the Lowell School on West Evergreen in Chicago and

that Ott came to him in January of 1976 and told him

that there was a problem with a ceiling heater that did

not have an Underwriters Laboratory (UL) label and that

Price wanted $150 to overlook the missing label. (Tr.

712.) Neylon took the $150 out of the petty cash fund,

put it in an unmarked envelope, and left it with Ott. He

also entered into his book the notation of $150 given to

Ott regarding Lowell, January 16, 1976.

Neylon testified under a grant of immunity. (Tr. 715.)

Ott then testified for the government that he was a

supervisor for Service and that in 1972 he was working

on the Ryerson School job. Over objection of the defen-

dant, but pursuant to Rule 4@4(b), the court allow-

ed him to testify that in 1972 he paid $150 to Price

because certain units at the Ryerson School did not have

the UL approval. He further testified about delivery to

Price of the envelopes that he received from Mr. Neylon

concerning the jobs that Neylon had testified about

earlier.

=

Lee Roy Harper

(Counts 6, 7, 8, 9 and 10)

Count Date Amount Paid

6 6/76 $125

7 7/76 $125

& 9/12/76 $275

) 9/21/76 $250

10 10/26/77 $375

Lee Roy Harper was a person who practiced electrical

contracting illegally within the City of Chicago. Lee Roy

Harper had taken the examination to be a licensed con-

tractor in the City on two occasions, but flunked the test.

(Tr. 44.) Notwithstanding that, he continued to work in

the City in violation of Chicago Municipal Code, Chapter

86, Section 86-16. The defendant submits that Harper’s

testimony is so jumbled and disjointed it is impossible to

recreate with any degree of clarity in this brief, but an

attempt will be made:

Harper testified that in October, 1975 he was working

as an electrical contractor on Hubbard Street and re-

ceived a violation ticket from Mr. Price. In June of 1976

Price told him it would cost him $125 for a permit on that

job. (Tr. 72.) Harper then testified that the conversation

took place in October or September of 1977. (Tr. 73.)

Harper then looked at a report, refreshed his recollection,

and changed his testimony that the conversation was in

June of 1976. (Tr. 77.) At this point no further testimony

was given about this job. He was then questioned about

addresses on North Monticello, South Winchester and

West Iowa. He testified that he purchased copper and

wire for the job on Monticello from Southeast Electrical

Supply. He received notice from the City on the

Winchester address in early July, and he was granted

time to get a permit. At the Iowa Street and Monticello

~t~

Street addresses he went to see Price to get some help in

getting a permit. He was told that the job was in court

and that he could be fined $200 a day. This was in Oc-

tober of 1977.

At this point in this jumble of testimony by Harper,

the Court asked if the government had any other

witnesses but Harper to support these counts. When the

government said they had not, the Court said frankly

that he could not see how any finder of fact, whether it

be a judge or a jury, could find anybody guilty beyond a

reasonable doubt on Counts 6, 7, 8, 9 or 10 on the basis

of what they had heard from the witness. The trial judge

further said that if he were sitting on a reviewing court,

the government would have to be awfully persuasive to

convince him there was a question for the jury on those

counts with the standard of proof beyond a reasonable

doubt. The district court judge said that it appeared to

him that the man was not certain enough about

anything to meet the standard. The government can-

didly admitted at that point that they had pretried the

witness about five different times and he told them five

different stories. (R. 96.)

Harper also testified about two jobs at 9926 and 9930

South Throop Street, and that each job had cost $125 for

two permits. That testimony was stricken, however, by

this Court. (Tr. 178.) Harper then testified about Oc-

tober 26, 1977 (Count 10), and the Court admitted, over

objection of the defense, the tape recording and the

transcript of that tape (Govt. Exhibits 5I and 5J). Count

9 of the indictment charged an offense on or about

September 21, 1976, and the government moved to

amend it to read September 21, 1977. The Court denied

the motion and dismissed the count on the grounds of

fatal variance. (Tr. 439.)

=

Harper testified that he had $375 with him in October

of 1977 and the money was to get permits for North

Monticello, West Erie, and 846 Winchester. He paid the

money because he wanted to obtain the permits for each

job. (R. 272.) He said that he had paid the money in

order to keep from going to court or face a penalty of

jail or a fine. (Tr. 273.) In June of 1976, he paid $125 to

Price regarding Hubbard Street properties. (Tr. 275.) In

June or July of 1976 he paid $125 for a permit at 633

North Sawyer. (Tr. 276.) On August 5, 1976 Harper was

told it would cost him $150 for a permit on the Quincy

Street job. Two days later Harper gave Price that

money in a car at about 7:00 in the morning. (Tr. 290.)

Harper testified that the money came from company

funds and he bought electrical equipment from

Southeast, Southtown, Englewood and Harlow Electric.

On cross-examination, Harper admitted that he did

not file an income tax return for 1977; he was not sure if

he filed in 1976 and he did not file a state income tax

return in 1977. On cross-examination the attorney for

the defendant asked the simple, non-leading, non-

suggestive question:

“Did you ever have occasion to discuss with any

agent of the government, the United States govern-

ment, the fact that you have not filed income tax

returns for the year 1977 and maybe not for the

year 1976?”

The Court would not allow the question to be asked un-

less, if the witness said “No”, the defense was able to

show that there was such a conversation. The Court

ordered any reference to that question stricken and the

jury to disregard it. (R. 374.) Later, in closing argument,

when the defense argued that Harper had a motive to

testify falsely because he had income tax problems, the

Court struck reference to that as well. (Transcript,

February 26, 1979, page 40, supplemental record.)

—~§—

On cross-examination the witness admitted that he

may have told the FBI that he paid Price $150 for the

Quincy Street job and $125 for the Hubbard Street

building on September 12. (Tr. 409.) The defense

brought out from the witness that he had told FBI agent

Bell in July of 1978 that in June or July of 1976 he paid

$125 for Hubbard Street and that in October 1978 he

told him he paid $125 for the same job in September of

1976. (Tr. 414.) When again the defense tried to show

that the witness had income tax problems (his wilful

failure to file an income tax return is a criminal offense

punishable with up to one year in jail, 26 U.S.C. Sec.

7201), the Court, without objection from the government,

interjected and stated that the reference to income tax

would be stricken and the jury was instructed to dis-

regard it. (Tr. 451.) The Court told the jury the reason

was that “you cannot throw out a suggestion in the

question and then have it denied and leave the thoughts

in the minds of the jury if you are not going to follow it

up with proof.” (Tr. 451.) This was said notwithstanding

the fact that counsel for the defendant pointed out that

Harper already testified he did not file any income tax

returns for one year and may not have filed for another

year. The Court then cut off the cross-examination

totally by telling counsel that he had five more minutes

of cross-examination. (Tr. 452.)

~

Lovehen Electric

(Counts 2, 3 and 5)

Count Date Amount Paid

2 5/10/75 $100

3 6/12/75 $ 30

5 5/13/76 $100

Raymond Lumovic said that he operated Lovchen

Electric, which is licensed to do work outside of the City

of Chicago but not within the City of Chicago. He was

doing a job in mid-1975 on North Sacramento in Chicago.

The owner of the building had received a notice from

the electrical department of certain violations of the

electrical code. After completing the job, Lumovic called

the office of the electrical department for an inspection

and Price came out to the job. Price inspected the job,

confirmed it was okay, and assured the owner, who was

also present, that everything was okay. Without request

and without conversation, Lumovic gave Price $100. (Tr.

467-468.)

On one particular day in May of 1975 Lumovic called

Price to inspect a job at 3745 West Hirsch. Price came

by to inspect the job, said everything was fine, and then

Lumovic, with no inducement or request by Price, gave

Price $30. (Tr. 471.) In October of 1976, Price inspected

a job at 1537-43 East 63rd and told Lumovic the job was

all right, after which Lumovic gave him $100. (Tr. 469.)

When asked on direct examination by the prosecution

why he made the payments, Mr. Lumovic said he learn-

ed in the past “you cannot be in business for some of the

jobs if you don’t pay.” (Tr. 474.) He felt that if he did not

pay this time, he would automatically get called back

later and have to pay twice for something on the same

job. Objections to that line of questioning were overruled.

(Tr. 474.)

wiliios

On cross-examination he admitted that Price never

demanded any money, that he, Lumovic, just gave him

the money voluntarily. Price never told him that he had

to give him the money or what was going to be done

with the money. (Tr. 494.)

Lovchen purchased electrical equipment from

Southtown and Southeast Electrical Supply.

Hargrett Electric (Count 11)

Count Date Amount Paid

11 4/78 $300

James Hargrett, who is self-employed with Hargrett

Electric, testified concerning a payment in 1978 on a job

at 800-812 South Pulaski after receiving a violation

notice from Price. After a diseussion Price told him that

three people had to be taken care of: himself, Hunter

and Howard, (other inspectors), and he had to give them

each $200. He went out in the hall and gave Price $300,

and later he gave Price some more money. He said he

paid the money to Price because he felt the job would

not have been approved if he hadn’t paid. Over objection

of the defendant, Hargrett was also allowed to testify

that in November of 1968, ten years before the return of

the indictment, pursuant to request by Inspector Nolan,

he paid $400 through Price at the Electrical Inspection

Bureau to approve a job. (Tr. 572, et seq.) The govern-

ment submitted this testimony of an event that took

place ten years before the return of the indictment un-

der the auspices of Rule 404(b) of the Federal Rules of

Evidence and for the state of mind of the witness. Again

during the cross-examination of the witness, the Court

told defense counsel that he had twenty minutes to go in

his cross-examination after a very short period of cross-

examination. During the defense, the government freely

stipulated that Floyd Price did not begin his employ-

=|

ment with the Bureau of Electrical Inspection until Oc-

tober 6, 1969, almost a year after the events which Mr.

Hargrett testified took place in November of 1968. (Tr.

823-828.)

Interstate Commerce Witnesses

Clancy Weiss of Englewood Electrical Supply testified

that he is Vice-President of Operations of Englewood

Electrical Supply. They supply materials to Service

Electric selling conduit and wire, and they receive their

conduit and wire from out of state. (Tr. 189-200.)

Harvey Rice, president of Harlow Electrical Supply,

testified that he distributes electrical products in the

construction field in Chicago. Hargrett Electric is one of

its customers. (Tr. 212.)

James Marra testified he was the owner of Southtown

Electrical Supply and Southeast Electrical Supply and

that they receive wire from Massachusetts, Georgia and

Virginia. Their exhibits show purchases from out of

state and that Lovchen Electric and Ray Lumovic are

customers of theirs. Mr. Marra testified that Lee Roy

Harper was a customer and he has supplied him with

wire, conduit, fitting boxes and things of that nature but

that Harper was an infrequent customer. (Tr. 227.)

Peter Kocoras of Great West Electrical Supply, which

buys its wire from New York and Georgia, testified that

Lovchen Electric was a regular account for about 8 to

10 years and that they received wire from an agent in

Elk Grove Village, Illinois and conduit from Ohio. (R.

232-237.)

Defense

The defense consisted of character witnesses, a witness

to impeach government witness Hargrett and a stipula-

tion that Price did not begin his employment with the

City of Chicago until October 6, 1969. (Tr. 823-828.)

=

REASONS FOR GRANTING THE WRIT

i.

THE DENIAL OF RIGHT OF CROSS-EXAMINATION

OF A MAIN GOVERNMENT WITNESS WHICH

SHOWED HIS BIAS CANNOT BE DEEMED HARM-

LESS ERROR.

The Seventh Circuit, while accepting petitioner’s

contention that the trial court did improperly curtail

cross-examination of a main government witness which

tended to show his bias, nonetheless held that the error

was harmless (Opinion at 5). Petitioner respectfully

maintains that the Seventh Circuit’s decision is incorrect

in light of this Court’s rulings in Davis v. Alaska, 415

U.S. 348, 94 S.Ct. 1105 (1974) and Alford v. United

States, 282 U.S. 687, 51 S.Ct. 218 (1931).

During cross-examination of Lee Roy Harper, a main

government witness testifying about five of the eleven

counts, counsel for the defendant was able to establish

that Harper had not filed an income tax return for 1977

and was not sure whether he had filed one in 1976.

(R. 372-373.) This admission came at the beginning of

the cross-examination of Harper, at which time counsel

for the defendant then asked a non-leading, non-

suggestive question:

“Did you ever have an occasion to discuss with any

agent of the government, the United States

government, the fact that you have not filed income

tax returns for the year 1977 and maybe not for the

year 1976?”

Without objection from the government, the Court

then interjected and snapped at the defendant’s

counsel:

_—

The Court: “If the answer is no are you going to

prove otherwise?”

Mr. Hartigan: “I am not if the answer is no.”

The Court: “You cannot ask a question which

suggests something and get a no answer and just

leave it drop. If the answer is no are you going to

prove to the contrary?”

Mr. Hartigan: “No, Your Honor.”

The Court: “The question is stricken and the

jury instructed to disregard it. It makes improper

suggestion to the jury that it is not going to be

followed up by proof from what I understand from

counsel.” (Tr. 374.)

Later, the Court for the same reason would not allow

counsel to ask Harper if Price told him that most of the

violations of the City Code were unenforceable. (Tr. 382.)

Later, when defense counsel asked Harper if he had

income tax problems, the Court again asked him if he

was able to prove it if the witness denied it. When

counsel pointed out that Harper had already testified

that he had not filed for a particular year and may not

have filed for another year, the Court again jumped in

without objection from the government and instructed

the jury to disregard it, and gave them a lecture on

what the Court felt was the unethical behavior of

defense counsel in asking a question which he could not

follow up if the witness gave a negative answer.

By the actions of the Court in this and other matters

which will be pointed out later, the defendant was

denied his right of cross-examination guaranteed by the

Sixth Amendment to the United States Constitution. In

Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75

L.Ed. 624 (1931), the witness was asked what would seem

to be an innocuous question as to his address and the

objection to that question was sustained. The United

States Supreme Court, in reversing the conviction on the

ontiinen

ground that the defendant’s right to cross-examination

had been unconstitutionally curtailed, held that counsel

for the most part explores in the dark, and that it is the

essence of a fair trial that reasonable latitude be given

the cross-examiner even though “he is unable to state to

the court what facts the reasonable cross-examination

will develop.” The Court said that prejudice ensued from

the denial of the opportunity to cross-examine and that

the cross-examiner need not show where cross-

examination would lead. Alford was reaffirmed in Smith

v. Illinois, 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748

(1968).

The right to cross-examination is included in the Sixth

Amendment to the Constitution with the accused’s right

to confront witnesses against him. Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The defendant has a right to cross-examine key prosecu-

tion witnesses to show any bias the witness may have had

because of a vulnerable status. Davis v. Alaska, 415 U.S.

348, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). And while it is

recognized that the limitations of cross-examination are

within the sound discretion of the court, that discretion

must be exercised with due regard for the defendant’s

constitutional rights and after there has been sufficient

opportunity to cross-examine. United States v. Greenberg,

423 F.2d 1106 (5th Cir. 1970); Snyder v. Coiner, 510

F.2d 224 (4th Cir. 1975).

It has been held to be error to refuse to permit the

defendant to cross-examine the prosecution witness

vigorously about a conviction in a prior case to show

that the witness was testifying because of an expectation

of leniency. Bodine v. United States, 368 F.2d 417 (5th

Cir. 1966); United States v. Standard Oil, 316 F.2d 884

(7th Cir. 1963). Inquiries directed to the witness’

interests, motives, prejudices or hostilities, or any

a

pertinent circumstances affecting the credibility of the

witness, must be allowed to insure the defendant’s right

to confrontation of witnesses. United States v. Lawinski,

195 F.2d 1 (7th Cir. 1952). Further, complete foreclosure

of cross-examination on a subject matter relevant to the

witness’ credibility, which may have deprived the jury

of access to information bearing on the trustworthiness

of crucial testimony, cannot be treated either as falling

within the court’s discretion or as harmless error.

United States v. Kartman, 417 F.2d 883 (9th Cir. 1969).

Probably the case closest to the fact situation in the

instant case is that of United States v. Mayer, 556 F.2d

245 (5th Cir. 1977). There the trial court would not allow

the defense to go into the fact that the government

dropped other charges against the defendant after she

pled guilty to one charge. In reversing the conviction,

the court, after setting forth the principles of law which

we have set forth above, held that the right to cross-

examination is especially important with respect to

accomplices or other witnesses who may have substantial

reason to cooperate with the government, and it is

important that the defendant be allowed to search for a

deal between the government and the witness even

though no hard evidence of such deal exists. The court

pointed out that it is not the actual existence of a deal

that is important, but the witness’ belief or disbelief that

the deal exists. Citing United States v. Onori, 535 F.2d

938 (5th Cir. 1976). The Court again held that it avails

the government little to say that the trial judge enjoyed

discretion in determining the bounds of cross-

examination. That discretion again does not come

into play until there has been permitted as a matter of

right sufficient cross-examination to satisfy the Sixth

Amendment. Because the district court cut off cross-

examination of a chief witness in trying to establish bias

or motive to testify falsely, the conviction was reversed.

—18—

In the instant case, the witness Harper testified that

he had not filed income tax returns for one year and

may not have filed a return for another year. The wilful

failure to file an income tax return is a federal offense

punishable by imprisonment up to one year and by a

fine. Title 26 U.S.C. Sec. 7201. Counsel was entitled to

know whether or not Harper ever discussed that matter

with the government, and if so, what that discussion con-

sisted of. Counsel was probing in the dark, as the Supreme

Court of the United States recognized most cross-

examiners do. Alford v. United States, supra. There was

no intimation in the question by counsel that there

was such a conversation or that certain things were said

during a conversation. The question was fair, and the

question was proper. The court obviously confused its

ruling with the rule of law which states that when an

attorney lays a foundation for confronting a witness with

an alleged prior statement which is inconsistent with the

testimony of the witness and the witness denies making

the statement, it is reversible error to fail to produce the

person to whom the statement was purportedly made in

order to contradict the witness. United States v. Bohle,

445 F.2d 54 (7th Cir. 1971).

There was nothing in the question asked by counsel

which suggested to the jury an improper allegation

or insinuation. Nothing he said could have led the jury

to believe that there was a deal made by the govern-

ment with Harper if Harper denied such a deal was

made. In fact, a negative answer by Harper to the ques-

tion would have strengthened Harper’s testimony in

that he would have been testifying without contradiction

that there was no deal concerning his failure to file

income tax returns. It would not be unfair, however, for

defense counsel to delve into Harper’s motive for

cooperating with the government and having a tape

_ =

recorder placed on his body on two occasions and trying

to transfer monies furnished to him by the FBI to Floyd

Price. Could it not be that Harper was fearful that the

agency of the federal government could see that he was

prosecuted for failure to file his income tax returns, and

that his cooperation would help him in that regard? Any

cross-examination in this area would have been proper,

but the court shut it off before it even began, again

without objection from the government. We believe that

the government was wise enough to believe that such

inquiry was proper and that the question as put was

proper.

The Seventh Circuit in United States v. Ott, 489 F.2d

872 (7th Cir. 1973), in an opinion written by Justice

Stevens, held that in limiting the cross-examination of a

witness as to whether or not he was an informer for the

government violated constitutional right to cross-

examination.

In Alford and Ott, supra, the questions concerned the

witnesses’ addresses and occupations, or whether the

witness was a government informant. The court there

held that cutting off of cross-examination on those

questions was reversible error. In this case we have an

even more important area, 2.e., whether the witness is

seeking leniency or even immunity from prosecution in

return for his favorable testimony for the government.

There is no question based on the authorities cited above

that defendant was denied very essential rights of cross-

examination in this area. The error committed by the

Court in limiting this cross-examination pervaded the

whole trial, as counsel, from the outset of the cross-

examination of the very first witness, was told that he

could not ask any questions of a witness unless he was

able to prove the falsity of a negative answer. It can be

seen in reading the record in this case how counsel was

="

hampered in his cross-examination. The Court became

very short with counsel for the defendant, and on

occasions dealing with different witnesses set time limits

at which point the Court stated cross-examination would

be cut off. For witness Harper, the Court stated “You

have another five minutes with this witness.” (Tr. 452.)

With the witness Hargrett, he was told he had 20 .

minutes left in his cross-examination, which had not

been very lengthy up to that point. (Tr. 645-646.) In the

cross-examination of Matthew Ott, the Court interjected

questions to proper cross-examination and stated “I just

want to shorten the time.” (Tr. 756.)

The conduct of the court throughout the trial reflected

that the speed of the trial is more important than the

defendant’s right to cross-examination. In addition to the

chilling effect on cross-examination by involving an

impossible and unconstitutional rule that counsel must

be able to rebut a negative answer before he asks the

question, the court put unreasonable time limits upon

cross-examination. Cross-examination cannot be done by

the clock, and sometimes it takes great prodding and

persistent questioning to get an answer which would be

favorable to the defendant and expose the witness’

motives for testifying falsely or obtaining answers which

would adversely affect the credibility of the witness. The

defendant’s right to cross-examine was _ totally

emasculated by the court, which not only affected his

cross-examination of Lee Roy Harper, but affected his

cross-examination of ali witnesses for fear of running

afoul of the new rule of law promulgated by Judge

Kirkland that one must not only be articulate but

omniscient when asking questions of a government

witness in a criminal case.

vests

Il.

THE SEVENTH CIRCUIT’S EXPANSION OF THE

HOBBS ACT (TITLE 18 U.S.C. 1951) HAS IMPER-

MISSIBLY GONE BEYOND THE INTENT OF CON-

GRESS IN ENACTING THE STATUTE.

As this Court is aware, Hobbs Act jurisdiction has

been invoked as the vehicle for a growing number of

prosecutions of “public officials.” This trend has been

deemed by one jurist as “the Hobbs Act run rampant.”

United States v. Cerilli, 603 F.2d 415, 487 (Judge

Aldisert’s dissent) (8d Cir. 1979).!

Here, the “public official” is a City of Chicago

electrical inspector. Petitioner does not dispute that he is

a public employee whose acts are, under the proper

circumstances, acts under color of official right as

defined in 18 U.S.C. 1951(b) (2). However, in this case

the Seventh Circuit Court of Appeals, in affirming the

petitioner’s conviction, has expanded the Hobbs Act to

stand for the following propositions:

1. No inducement, coercion, or threat by a

public official is required for conviction, and

2. Receipt of payments by a public employee

from a person engaged in a wholly illegal business

is proscribed by the Hobbs Act.

A.

A Conviction Under The Hobbs Act Cannot Stand When

There Is Merely Evidence Of A Gratuity Paid To A

Public Employee Without Some Evidence Of Compulsion,

Inducement, Or Coercion By The Public Employee.

Raymond Lumovic of Lovchen Electric testified con-

cerning Counts 2, 3 and 5. In mid-1975 he was doing

a job at 929-935 North Sacramento in Chicago, a

| Any attempt to summarize the dissent in Cerilli would be

inadequate; it is exhaustive, articulate and scholarly.

- =

building whose owner had received a letter from the

Chicago Building Department indicating violations of

the Electrical Code. (Tr. 461.) Lumovie was hired to do

the electrical work, and he obtained a permit for the job.

When the job was completed he called for an electrical

inspector to come out to inspect the job. Mr. Price came

to the job,? confirmed that there were no problems with

the job, and assured the owner that everything was all

right. (Tr. 467-68.) He further testified that without

request and without conversation Lumovic gave Price

$100. Price took the money. (Tr. 470.) About a month

later, there was an electrical job at 3745 West Hirsch

in Chicago. When the job was finished, sometime in

June of 1975, Price was called by Lumovic to visit the

job for inspection purposes. Price went inside, inspected

the job, said everything was fine, and again without

conversation or request, Lumovic gave Price $30. (Tr.

471.) Sometime later, Lumovic was doing electrical

work at 1537-43 East 63rd Street in Chicago, and again

Price, who had been the inspector in that area at that

time, was called to inspect the job to see that it was

completed properly. He checked the job, and again

without conversation and without request Lumovic gave

Price $100. (Tr. 473.) When asked on direct examination

why he gave the money to Price, Lumovic testified “I

learned from the past that you cannot be in business for

some of the jobs if you don’t pay on the job or later for

particular jobs.” This testimony was received over the

objection of the defendant, and a motion to strike the

testimony was denied. (Tr. 474.) The witness further

testified that if he did not pay this time, he would get a

call back later and have to “pay twice something for the

2 He originally called a Mr. Lowry, another inspector, but he

was on vacation and Price came out instead. (Tr. 463.)

‘

—-— =

same job. (Sic.)” (Tr. 475. Again, a motion to strike the

testimony was denied and objection to the testimony was

overruled.

On cross-examination Lumovic admitted that Price

never demanded any money from him and that he gave

the money to him voluntarily. (Tr. 494.)

Based on the testimony of Lumovic, there is simply no

evidence of extortion under color of official right. “Color

of official right” has been defined as the coercive use of

one’s office to induce payments which would not

otherwise be due to the public official in order that he

do some public act which he is required to do or refrain

from doing some public act which would bring economic

loss to the victim. Unless the payments are made under

some form of compulsion, however, there is no extortion.

United States v. Adcock, 558 F.2d 397 (8th Cir. 1977);

United States v. Irali, 503 F.2d 1295 (7th Cir. 1974);

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

The courts, moreover, have found that a mere passive

receipt of money does not establish extortion. In fact, the

court in United States v. Hathaway, 534 F.2d 386 (lst

Cir. 1975), held that an instruction by the trial court

which told the jury that voluntary payment on the part

of the so-called victim does not constitute extortion was

a proper charge. In every case upon which there has

been a conviction under this section of the Hobbs Act,

there was at least some act on the part of the public

official which induced the payment, and the mere

receipt of money has never been enough to convict a

public official of extortion.‘

3 It is unclear how if one had not paid in the first piace he

would have to pay “twice something for the same job.

4 Mere receipt of money by a federal official has been held

not to constitute extortion under color of official right under a

comparable statute concerning federal officers. United States

v. Sutton, 160 F.2d 754 (7th Cir. 1947).

~~

In United States v. Braasch, 505 F.2d 139 (7th Cir.

1974), payments were made to keep police officers from

harassing tavern owners; in United States v. Crowley,

504 F.2d 992 (7th Cir. 1974), payments were made for

police protection; in United States v. Kuta, 518 F.2d 947

(7th Cir. 1975), payment was made after the defendant,

an alderman of the City of Chicago, called the victim

down to his office and then stated a figure of $1,500

when the victim asked how much was owed for the

zoning change which had previously been put through

by the alderman; in United States v. Gill, 490 F.2d 233

(7th Cir. 1973), the police officer, while not inducing the

payment, increased the amount offered by the victim

and then did not go through with an original plan to

arrest the tavern owner for allegedly selling liquor to a

minor. Extortion was also found where, in order to

obtain contracts which had been denied, payment was

taken and then the contracts were granted after the money

was paid. United States v. Price, (no relation), 507 F.2d 1349

(4th Cir. 1974); United States v. Harding, 563 F.2d 299 (6th

Cir. 1977).

In the instant case, Floyd Price did not withhold

approval of the completed work awaiting payment, nor

did he request payment, nor did he demand payment,

nor did he set any figure that Mr. Lumovic would have

to pay in order to keep peace with Floyd Price.

Lumovic, based upon some notion placed in his head

that he had to do this, gave Price the money, and while

a public official should, under ideal circumstances,

refuse the money, there are very few individuals in our

society who will turn down money when it is handed to

them. This is particularly so when the money is not

handed to them to influence the performance of a duty

which has already been performed. Such conduct would

not even constitute bribery under the laws of the State

= =

of Illinois. Cf. People v. Jordan, 15 Ill. App. 3d 672, 304

N.E.2d 713 (ist Dist. 1973); Chapter 38, Section 33-1(d),

Illinois Revised Statutes. In United States v. Rabbitt, 583

F.2d 1014 (8th Cir. 1978), the Court reversed a Hobbs

Act conviction where the money was paid to a public

official who had no authority to do that which the payor

requested. The Court did not hold that the mere receipt

of money by a public official was ipso facto extortion

under the Hobbs Act. The Court held that there must be

some quid pro quo for the payment. There was none

there and none in the instant case.

Lumovic handed Price monies without conversation

and without request after Price -had approved the work

on the job. This Court would be stretching the Hobbs

Act beyond any limit if these convictions were affirmed.

This Court would then redefine the word “extortion” to

include tips and Christmas presents, or even campaign

contributions, which were given to public officials

without request or demand after the matter under

consideration had already been decided.

Three out of every four years is an election year in

Chicago. During even-numbered years there are

presidential and/or Congressional and State elections,

while during one odd year there are mayoral and alder-

manic elections. There is a constant flood of requests for

campaign contributions for incumbents and_ those

seeking public office. One would have to be very naive to

believe that some campaign contributions are not made

because of fear that were they not made some adverse con-

sequence will befall the non-giver. Under the government’s

theory in this case, all campaign contributions given by

an individual to a person who holds- power over that

individual’s business would be extortion under the

Hobbs Act if that business were engaged in interstate

commerce.

ee

The voluntary payment of monies to public officials

who have already exercised their authority in favor of

the taxpayer cannot be considered extortion without

making all gifts or contributions to those public officials

extortion as well. Congress obviously had no such intent,

for each Congressman could be considered an

extortionist under color of official right whenever he

takes a campaign contribution from a person who later

testifies that he gave the contribution for fear that if he

did not something evil would befall him, or because “he

was told that’s how you do business in the city.” The

defendant’s conduct regarding Lumovic can in no way

be considered extortion.

B.

The Hobbs Act Was Not Intended To Reach Payments

To A Publie Employee By A Person Engaged In A

Wholly Illegal Enterprise.

The allegations in the indictment concerning Counts 6,

7, 8 and 10 revolved around Lee Roy Harper, who said

that on five occasions he paid money to Floyd Price.

Harper was an unlicensed contractor who flunked the

examination to become a licensed contractor on more

than one occasion and who was operating in violation of

the City of Chicago law. Chicago Municipal Code,

Chapter 86, Section 86-16 states:

“It shall be unlawful for any person to engage in

the business of electrical contractor ... without

being registered as an electrical contractor in the

manner hereinafter set forth... .” Chicago

Municipal Code, Chapter 86, Section 86-16.

Harper testified that he paid Price on the occasions

referred to in his testimony in order to get permits and

* The fifth occasion gave rise to Count 9, which was dis-

missed by the trial judge. (Tr. 439.)

1G

so that he would not be arrested or fined and to stay out

of court. (Tr. 292.) The simple fact of the matter is that

Harper was not legally engaged in commerce and

should not have been engaged in commerce without

complying with the law (there is serious question as to

whether Harper was engaged in commerce; see

argument below). His payments to Price were not as a

result of the coercive use of Price’s office which required

monies to do that which he was entitled to do, but in-

stead he paid monies to do that which he was not entitled

to do. The Seventh Circuit has reco znized that distinction

on two separate occasions. In United States v. Staszcuk,

502 F.2d 875 (7th Cir. 1974), the Court unanimously held

that where a public official has been paid a sum of money

to induce him to use his position and influence to obtain a

building permit on behalf of a person who is clearly not

entitled under the law to such a permit, there is no extor-

tion under color of official right, but merely bribery.

That language comes from the concurring opinion of

Judge Campbell, to which the other justices on the Court,

Justice Sprecher and Justice Pell, stated “we wish to

note our concurrence in Judge Campbell’s concurring

opinion,” 502 F.2d at 882. That holding by Judge

Campbell, concurred in by the other two justices, is a re-

affirmance of United States v. Pranno, 385 F.2d 387 (7th

Cir. 1967), wherein it was said that it might be solely a bribe

and not extortion if the record showed the issuance of the

permit was illegal. 385 F.2d at 390.

It was clear that the law of the Seventh Circuit (prior

to this decision) was that when someone who is illegally en-

gaged in the business and pays a public official for the

right to continue to engage in that business illegally,

there is no coercive use of the public official’s office, and

that the monies paid were not as a result of “extortion”

as defined by the Hobbs Act. While under certain

ee

circumstances we recognize that the distinction between

bribery and extortion is immaterial, such as the

situation in United States v. Braasch, 505 F.2d 139 (7th

Cir. 1974), where the victim is legally engaged in the

business but pays to stop the coercive use of the public

official’s office, the distinction has not been totally

obliterated. In United States v. Addonizio, 451 F.2d 49

(3rd Cir. 1974), the Court also recognized again the

distinction between bribery and extortion concerning

the legality or illegality of the payor’s business.

If this Court were to hold otherwise, it could mean

that payoffs by burglars who purchased their burglar

tools from out of state or armed robbers who purchased

their guns from out of state could constitute extortion

under the color of official right when those payments

were made to police officers to look the other way while

they went about their illicit trades. Congress never

intended that result, and no case law dictates that

result. Cases in which this Circuit has upheld Hobbs Act

convictions involved persons, legally engaged in

business, who pay to stop police harassment, United

States v. Braasch, supra; (payment to obtain a license to

engage in a legitimate business), United States v. Irali,

503 F.2d 1295 (7th Cir. 1974); (payment for police

protection to which they were already entitled), United

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

for zoning changes for their legitimate businesses),

United States v. Kuta, 518 F.2d 947 (7th Cir. 1975);

United States v. Staszcuk, 502 F.2d 875 (7th Cir.

1974).

This appeal is not taken in defense of the conduct of

Floyd Price. This appeal is not taken to condone alleged

corruption by state or city officials. This appeal is taken

because of the unwarranted invasion of the federal and

state relationship by allowing federal convictions to

=

stand under the guise of violations of the Hobbs Act

when Congress never intended the Act to apply to those

situations. Congress never intended the illegal entre-

preneur to be protected by the Hobbs Act, nor did it

intend to treat as criminal extortion the mere giving of

gratuities to public officials, even to keep them in their

good graces, when such monies were never extorted or

demanded from the citizens.

The rules governing cross-examination in this case

were an atrocity, and this is compounded by the Seventh

Circuit Court of Appeals’ decision affirming the conduct

of the trial court.

CONCLUSION

For the above reasons, petitioner respectfully requests

this Court issue a writ of certiorari to review the judg-

ment and opinion of the Seventh Circuit.

Respectfully submitted,

PATRICK A. TUITE

NAN R. NOLAN

105 West Madison Street

Suite 900

Chicago, Illinois 60602

(312) 641-1022

Attorneys for Petitioner

—jila—

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued September 28, 1979)

October 22, 1979.

Before

Hon. Water J. Cummines, Circuit Judge

Hon. Pamir W. Tons, Circuit Judge

Hon. Rosert A. Grant, Senior District Judge*

Unrtep States Or America,

Plaintiff-Appellee,

No. 79-1480 Vs.

FLoyp Price,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-CR-781—A.Frep W. KirK.anp, Judge.

ORDER

(Unpublished Order Not To Be Cited

Per Circuit Rule 35)

wefendant Floyd Price, formerly an inspector for the

Chicago Bureau of Electrical Inspection, was convicted

by a jury on ten counts of extortion under color of

official right in violation of the Hobbs Act, 18 U.S.C.

* The Honorable Robert A. Grant, Senior District Judge of

the United States District Court for the Northern District of

Indiana, is sitting by designation.

—IJa—

§ 1951 (a).! Price’s conviction arose out of a series of

transactions in which he accepted illegal payments from

electrical contractors while acting as an inspector. Price

was sentenced to 18 months imprisonment on each

count, the sentences to run concurrently.

On appeal, Price argues that his conviction should be

reversed due to an insufficiency of evidence on seven

counts, a violation of his Sixth Amendment right to

cross-examine witnesses, the wrongful admission into

evidence of similar past acts on his part, and the failure

of the trial court to conduct a voir dire of the jury to

determine whether they had been improperly influenced

by viewing the transcript of a tape not admitted into

evidence. We affirm the judgment of conviction on all

counts.

A. Insufficiency of the Evidence on

Counts Six, Seven, Eight, and Ten

Price first contends that the testimony of Lee Roy

Harper, the Government’s principal witness on the

above four counts of the indictment,? was insufficient as

a matter of law to justify his conviction on these counts.

Price’s argument is in two parts. First, he contends that

Harper was not legally entitled to the electrical permits

that Price obtained for him, and that this fact removes

Price’s actions from the realm of “extortion” as pro-

! 18 U.S.C. § 1951(a) provides, in pertinent part,

Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of | article or ryerege | in

commerce, by extortion .. . shall be fined not more than

— or imprisoned not more than twenty years, or

th.

18 U.S.C. § 1951 (b) (2) defines “extortion” as “the obtaining of

property from another, with his consent, induced by wrongful

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

color of official right.” The present case involves only the

“under color of official right” component of extortion under

the Hobbs Act.

* Harper was also the chief witness on Count Nine of the

indictment, but this count was dismissed during trial because

it was fatally at variance with the prosecution’s evidence.

—3sa—

hibited by the Hobbs Act.3 Second, Price argues that

there was insufficient evidence to support a finding of

an effect on interstate commerce, as is required by the

Hobbs Act. Neither claim has merit.

In United States v. Braasch, 505 F.2d 189 (7th Cir.

1974), cert. denied, 421 U.S. 910 (1975), we rejected the

notion that, under the Hobbs Act, it matters “whether

the public official induces payments ‘to perform his

duties or not to perform his duties, or even, as here, to

perform or not to perform acts unrelated to his duties

which can only be undertaken because of his official

position.” 505 F.2d at 151. The fact that Price provided

permits to Harper in violation of the law will, thus, avail

him nothing. He was able to provide the permits due to

his official position. The “motivation for the payment

focus[ed] on the recipients’s office.” Jd. As we noted in

Braasch, “(t]hat such conduct may also constitute ‘classic

bribery’ is not a relevant consideration.” Jd. Any

statements in United States v. Staszcuk, 502 F.2d 875,

882-83 (7th Cir. 1974) (Campbell, J., concurring), aff'd in

part and rev'd in part on other grounds, 517 F.2d 53 (7th

Cir.) (en banc), cert. denied, 423 U.S. 837 (1975), and

United States v. Pranno, 385 F.2d 387, 390 (7th Cir.

1967), cert. denied, 390 U.S. 944 & 972 (1968), that are

arguably contrary to our holding in Braasch are dicta

and not controlling.

Price’s argument concerning the jurisdictional nexus

with interstate commerce is similarly flawed. In United

States v. Braasch, 505 F.2d at 147 (quoting United States

v. DeMet, 486 F.2d 816, 822 (7th Cir. 1973), cert. denied,

416 U.S. 969 (1974) ), we said: “Because Congress has

seen fit to exercise its full power under the commerce

clause, extortionate conduct having an arguably de

minimis effect on commerce may nevertheless be

punished.” The record indicates that Harper bought

copper wire and conduit for his business, including the

8 ed was not entitled to the permits because he was not

licensed to do electrical work in Chicago. The permits

obtained for him by Price evidently were issued in the name

of an electrical contractor that was so licensed.

—4da—

jobs to which the offenses charged in the indictment

related, and that such materials usually or always came

into Illinois through interstate commerce. This was

sufficient even though Harper’s purchases may have

been “infrequent.” Nor does the record indicate a reason

to suspect that an effect on interstate commerce was not

“at least a ‘realistic probability’ at the time of the

extortionate act.” United States v. Elders, 569 F.2d 1020,

1024 (7th Cir. 1978) (quoting United States v. Staszcuk,

517 F.2d 53, 60 (7th Cir.) (en banc), cert. denied, 423 U.S.

837 (1975) ). The jurisdictional requirement of an effect

on interstate commerce therefore was satisfied.

B. Insufficiency of the Evidence on

Counts Two, Three, and Five

The Government’s principal witness on these counts

was Raymond Lumovic, an electrical contractor who

testified that he paid Price money on three occasions.

On the first of these occasions, Lumovic said he told

Price that the money was not to induce him to overlook

electrical code violations, but was rather “for the

principle that in Chicago that I got to do it and that’s

all.” Price contends that this testimony did not demon-

strate that he coerced or induced the payments, and that

his conduct in accepting them is therefore not violative

of the Hobbs Act. We reject this contention for two

reasons.

First, the jury could reasonably have concluded that

Price did in fact induce Lumovic’s payments. Lumovic

testified that he informed Price of the purpose of the

payments, and further testified that he had learned that

if he did not pay off the electrical inspectors at once he

would later have to pay “twice something for the same

job.” Price could have refused the money. He could have

informed Lumovic that he had nothing to fear from

electrical inspectors. Instead, he accepted the money,

and the jury was entitled to conclude that this action

was simply the manifestation of an unspoken threat.

—5a—

Although the foregoing is sufficient to dispose of this

issue, we note that the cases cited by Price do not

compel the conclusion that inducement or coercion is

necessary to support a conviction for extortion under

color of official right. In United States v. Crowley, 504

F.2d 992 (7th Cir. 1974), we found that,

Extortion under color of official right . . . need not

involve force or threat. If a victim reasonably feels

compelled to pay money to... [an official] because

of that . . . [official’s] wrongful use of his official

position for the purpose of obtaining money, the

requirements of the crime of extortion under color

of official right are satisfied.

Id. at 995 n.5. Similarly, in United States v. Braasch,

supra, 505 F.2d at 151, Mr. Justice Clark wrote for this

court: “So long as the motivation for the payment

focuses on the recipient’s office, the conduct falls within

the ambit of 18 U.S.C. § 1951. That such conduct may

also constitute ‘classic briber» is not a relevant con-

sideration.” Though some cases contain language ar-

guably contrary to this position, eg., United States v.

Adcock, 558 F.2d 397, 403-04 (8th Cir.), cert. denied, 434

U.S. 921 (1977), we adhere to the view expressed in

Braasch. Price accepted money wrongfully and with the

knowledge that it was paid to induce him to perform or

to fail to perform official functions. This was enough to

constitute extortion under the Hobbs Act.

C. The Right to Cross-Examine Witnesses

Defendant next argues that the trial judge improperly

restricted his cross-examination of the witness Harper

by refusing to permit a question asking the witness

whether he and federal officials had discussed his

failure to file income tax returns. The ultimate goal of

this line of inquiry, we are told, was to determine

whether the witness had been influenced by an expecta-

tion or hope of leniency concerning his tax reporting

omissions. The ruling was not reversible error. In

United States v. Amabile, 395 F.2d 47, 50-52 (7th Cir.

1968), vacated and remanded on other grounds sub nom.,

—6a—

Giordano v. United States, 394 U.S. 310 (1969), we held

that it was not error to refuse to permit a defendant to

impeach a Government witness with evidence that, inter

alia, the witness was being investigated by federal tax

authorities. The court there concluded that the attempt

to inquire into tax matters was of “slight bearing on the

bias and credibility” of the witness, 395 F.2d at 52 n.4

(quoting District of Columbia v. Clawans, 300 U.S. 617,

632 (1937) ), because the United States Attorney does

not control Internal Revenue Service investigations and

because such investigations “are common and usually

Involve no threat of an indictment.” 395 F.2d at 51. We

believe Amabile controls the instant case. Price’s counsel

sought to impeach Harper with material even less

indicative of bias than that present in Amabile. Harper

was, apparently, not even the subject of an IRS

investigation.

Also, in the case at bar the particular question asked

was merely preliminary to the ultimate question of

whether Harper had been influenced by an expectation

or hope of leniency. The trial judge recognized the

legitimacy of the ultimate inquiry into bias, as is

demonstrated by the cross-examination of the witness

Lumovic, and presumably would have permitted such an

inquiry of Harper if it had been attempted. Thus,

although we cannot concur in the trial judge’s view that

defense counsel’s preliminary question concerning a

meeting with government officials was improperly

Suggestive, the record as a whole does not support the

claim of error.

Finally, we note that defense counsel was able to

bring out the fact that Harper failed to file income tax

returns in 1977 and perhaps in 1976. The jury was thus

likely to infer that Harper’s vulnerability to prosecution

would tend to have a chastening effect on his testimony.

We doubt that anything Harper might have said would

have added much. In view of all this, we cannot say that

Harper’s Sixth Amendment rights were violated.

. ee

—Ja—

D. Evidence of Prior Similar Acts

Price next contends that the trial court twice erred in

admitting evidence of Price’s past acts of receiving

money under color of office. The first of these alleged

errors occurred when James Hargrett, an electrical

contractor who testified with respect to Count Eleven,

was permitted to testify that he had paid Price $400 in

November of 1968 to secure approval of electrical work.

This payment was not one of those charged in the

indictment. The second alleged error occurred when

Matthias Ott, an electrical contractor who testified

concerning Counts One and Four, was allowed to testify

that he paid Price money in 1972 to obtain approval for

electrical work. This transaction also was not charged in

the indictment. Price contends on appeal that testimony

as to these two transactions was improperly received

under Federal Rule of Evidence 404(b) because it was

not relevant to any material issue in the case, because its

probative value was outweighed by its prejudicial effect,

and because the trial court did not sufficiently balance

probative value against prejudicial effect and did not,

sua sponte, instruct the jury on the limited purpose for

which the testimony was admitted. We see no merit in

these contentions.

First, the evidence of prior similar acts was relevant

to two material issues in the case. In a Hobbs Act

prosecution for extortion under color of official right,

the Government must prove that the victim paid money

to the defendant because of the defendant’s official

position. Evidence of the victim’s state of mind is thus

an essential element of the Government’s case. See

United States v. Braasch, 505 F.2d 139, 151 (7th Cir.

1974), cert. denied, 421 U.S. 910 (1975). In addition, the

Government must prove criminal intent on the part of

the accused. See United States v. Adcock, 558 F.2d 397,

402 (8th Cir.), cert. denied, 434 U.S. 921 (1977). The

prior acts tended to prove that the victims in question

knew Price would accept money to perform official

functions, and therefore that they made the payments

charged in the indictment to influence Price’s official

—Sa—

actions. The prior acts also tended to prove that Price

accepted the payments knowing their purpose, and thus

possessed the requisite criminal intent.

Price contends, however, that his intent was not a real

issue because his defense as to these counts was that he

did not take the money, and not that he took it without

the requisite intent. Price’s counsel did suggest to the

jury that intent was an issue, however. In his opening

statement, defense counsel referred to the possibility

that the jury might find payments in the case to have

been “gifts” or “contributions.” In cross-examining the

witness Lumovic, counsel asked whether Lumovic knew

if Price “was going to keep that money, give it to charity

or whatever.” Counsel also called two character wit-

nesses for the defense and elicited from both the fact

that Price was engaged in “fund raising” for social

organizations. Even if the defense had not treated intent

as a real issue, our decision in United States v.

Weidman, 572 F.2d 1199, 1201-02 (7th Cir.), cert. denied,

439 U.S. 821 (1978), would allow the Government to

come forward with evidence concerning intent. In a

Hobbs Act prosecution, no less than in a federal mail

fraud prosecution, the Government is required to prove

criminal intent on the part of the accused.

In light of its probative value, we cannot say that the

evidence of similar past acts was substantially out-

weighed by the danger of unfair prejudice. It is true

that the trial judge did not expressly state his reasons in

the balancing of probative value and unfair prejudice

under Rule 403, Fed. R. Evid., which he should have

done, see United States v. Dolliole, 597 F.2d 102 (7th Cir.

1979). We will not, however, presume the wrong reasons,

when the correct ones are apparent.

Neither was the trial court required sua sponte to give

a limiting instruction as to the use of the testimony.

Defense counsel never requested such an instruction, but

rather chose to stand or fall on the issue of admissibility;

indeed, this stand was taken after the Government had

conceded the propriety of a limiting instruction. Though

a limiting instruction would have been highly desirable,

—9IJa—

see United States v. Braasch, supra, 505 F.2d at 149,

under such circumstances the trial court was not

required to override the wishes of defense counsel. We

find no error sufficient to warrant reversal in the

admission of the prior acts.

E. Failure to Voir Dire the Jury

Price’s last allegation of error involves the following

sequence of events: The trial judge admitted into

evidence a tape recording of a conversation between

Price and Harper. Copies of a transcript of the taped

conversation were distributed to the jury. Upon playing

the tape in open court, however, the judge ruled that the

recording was incomprehensible and could not go into

evidence. The tape was stopped and the transcripts were

collected from the jury. While the jury had the

transcript, however, they had an opportunity to read it

or at least part of it. Defense counsel’s request for a voir

dire of the jury to determine whether they had been

prejudiced by the contents of the transcript was denied

by the judge.

In support of the proposition that the denial of the voir

dire is reversible error, Price cites cases that involve

documents not in evidence that were allowed to go to the

jury room during deliberations. Here the tape and the

transcript were withdrawn from the jury’s consideration

and the jury was instructed to disregard them. The

transcript is like any item of evidence that is stricken

with an instruction to disregard. The court is not

required to interrogate jurors whenever evidence is

stricken. The transcript did not, of course, go to the jury

room. Moreover, defendant has pointed to nothing in the

transcript that would have unfairly prejudiced him if

the jury had disobeyed the court’s instructions.

For all of the foregoing reasons, the judgment of the

trial court is affirmed.

AFFIRMED.

—10a—

Unpublished Per Curiam Order

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 22, 1979.

Before

Hon. Watrer J. Cummines, Circuit Judge

Hon. Pamir W. Tons, Circuit Judge

Hon. Rosert A. Grant, Senior District Judge*

Unirep States Or America,

Plaintiff-A ppellee,

No. 79-1480 , vs.

Fioyp Price,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-CR-781—A.rrep W. KirKLanp, Judge.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Illinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the judgment of the said District

Court in this cause appealed from be, and the same is

hereby, AFFIRMED, in accordance with the order of this

court entered this date.

~ . Honorable Robert A. Grant, Senior Judge, United States

District Court for the Northern District of Indiana, sitting by

designation.

—lla—

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 5, 1979.

Before

Hon. Water J. Cum nes, Circuit Judge

Hon. Pani W. Tons, Circuit Judge

Hon. Rospert A. Grant, Senior District Judge*

Unrrep States Or America,

Plaintiff-Appellee,

No. 79-1480 Vs.

Fioyp Price,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-CR-781—A.tFrrep W. Kirkuanp, Judge.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above en-

titled cause by defendant-appellant, no judge in active

service has requested a vote thereon, and all of the

judges on the original panel have voted to deny a rehear-

ing. Accordingly,

IT Is ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

* The Honorable Robert A. Grant, Senior District Judge of

the United States District Court for the Northern District of

Indiana, is sitting by designation.

—12a—

APPENDIX C

CONSTITUTIONAL PROVISION

Amendment VI [1791]

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the Witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

STATUTORY PROVISIONS

18 U.S.C. Section 1951

§ 1951. Interference With Commerce By Threats Or

Violence

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

or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or

attempts or conspires so to do, or commits or threatens

physical violence to any person or property in

furtherance of a plan or purpose to do anything in viola-

tion of this section shall be fined not more than $10,000

or imprisoned not more than twenty years, or both.

(b) As used in this section—

_ (1) The term “robbery” means the unlawful tak-

ing or obtaining of personal property from the per-

—13a—

son or in the presence of another, against his will,

by means of actual or threatened force, or violence,

or fear of injury, immediate or future, to his person

or property, or property in his custody or posses-

sion, or the person or property of a relative or

member of his family or of anyone in his company

at the time of the taking or obtaining.

(2) The term “extortion” means the obtaining of

property from another, with his consent, induced by

wrongful use of actual or threatened force, violence,

or fear, or under color of official right.

(3) The term “commerce” means commerce

within the District of Columbia, or any Territory or

Possession of the United States; all commerce

between any point in a State, Territory, Possession,

or the District of Columbia and any point outside

thereof; all commerce between points within the

same State through any place outside such State;

and all other commerce over which the United

States has jurisdiction.

(c) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections 52, 101-

115, 151-166 of Title 29 or sections 151-188 of Title 45.

Chapter 38, Section 33-1

Illinois Revised Statutes

33-1. § 33-1. Bribery. A person commits bribery

when:

(a) With intent to influence the performance of any

act related to the employment or function of any public

officer, public employee, juror or witness, he promises or

tenders to that person any property or personal advan-

tage which he is not authorized by law to accept; or

(b) With intent to influence the performance of any

act related to the employment or function of any public

officer, public employee, juror or witness, he promises or

—l4a—

tenders to one whom he believes to be a public officer,

public employee, juror or witness, any property or per-

sonal advantage which a public officer, public employee,

juror or witness would not be authorized by law to

accept; or

(c) With intent to cause any person to influence the

performance of any act related to the employment or

function of any public officer, public employee, juror or

witness, he promises or tenders to that person any

property or personal advantage which he is not authoriz-

ed by law to accept; or

(d) He receives, retains or agrees to accept any

property or personal advantage which he is not authoriz-

ed by law to accept knowing that such property or per-

sonal advantage was promised or tendered with intent to

cause him to influence the performance of any act

related to the employment or function of any public of-

ficer, public employee, juror or witness; or

(e) He solicits any property or personal advantage

which he is not authorized by law to accept pursuant to

an understanding that he shall influence the perfor-

mance of any act related to the employment or function

of any public officer, public employee, juror or witness.

(f) Sentence.

Bribery is a Class 2 felony.

Amended by P.A. 80-1099, § 1, eff. Feb. 1, 1978.

P.A. 80-1099, § 1, eff. Feb. 1, 1978.

P.A. 80-1099, § 1, incorporated the amendment made by

P.A. 80-922, § 1.