Petition — Grzywacz v. United States
Supreme Court brief1980
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IN THE
seme Court of the United States
‘TERM 1980
No. %9=122]
RONALD GRZYWACZ, RICHARD KRIESHOK AND EDWARD GOCLAN,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Seventh Circuit
NorMAN S. LONDON
Attorney for Petitioner Grzywacz
LAWRENCE J. FLEMING
Attorney for Petitioner Krieshok
1600 Boatman’s Tower
100 North Broadway
St. Louis, Missouri 63102
(314) 231-8700
CARMEN S. Durso
Attorney for Petitioner Goclan
110 East Lincoln Street
Belleville, Illinois 62221
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
TABLE OF CONTENTS
Fe rae? aR sams oe Page
Opinion Below ........ cece eee cece e cece eeeees |
cg bbb aber tvcweeces se = l
Questions Presented ..........0 eee eee eee eee eeees 2
SSI SEEN OO OP Eee ER EEE 2
Reasons for Granting the Writ ....... 6.6.0.0 eee seers 6
I. Further direction is needed to resolve a conflict
among the United States Courts of Appeals
regarding the scope and meaning of “‘enter-
prise’? as the term is used in 18 U.S.C. §§
1962(c) and 1961(4) (1976). .........-- eee 6
Il. Further direction is needed to resolve a decisive
split among the United States Courts of Ap-
peals regarding the criteria for admissibility of
‘‘other crime evidence’’ pursuant to
PE IS Gives cc vcwscscceces 13
ca Gisdee wear sence soncs 21
Appendix A ........cccccccceee rec ccceccccccsenns A-1
Appendix B....... 2. e cece cece cece eect e eee eeccees A-23
ps en mrs ee A-24
Table of Cases
Rewis v. United States, 401 U.S. 808 (1971) ........... 10
United States v. Back, 588 F.2d 1283 (9th Cir. 1979).... 15,16
United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965) .... 20
ii
United States v. Dennis, 458 F.Supp. 197 (E.D. Mo.
MP ENUM ev eume eee ou” 12
United States v. Frumento, 405 F.Supp. 23 (E.D. Pa.
1975) aff'd 563 F.2d 1083 (3d Cir. 1977) cert.
denied sub nom Millhouse v. United States, 434
i RET en ene ea 7,11
United States v. Grzywacz, 603 F.2d 682 (7th Cir. 1979) 1,10,11
United States v. Herman, 589 F.2d 119} (3rd_ Cir.
cig, Ee PLE UG GT Pics Sena aL 14,16,17,19
United States v. Manafzadeh, 592 F.2d 81 (2nd Cir.
esa eae ee gy pes ss Et, 14,16
United States v. Mandel, 415 F .Supp. 997 (D.Md. 1976) 7,10
United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979) . 7,12
United States v. Moeller, 402 F.Supp. 49 (D.Conn.
6 iad EE ES re re 8
United States v. Nerone, 563 F.2d 836 (7th Cir. 1977)
cert. denied 435 U.S. 951 GPE Sica eek 12
United States v. O’Connor, 580 F.2d 38 (Sth Cir.
ME oda e eee a ee secenes 14,15,17,19
United States v. Ostrowskv’, 501 F.2d 318 (7th Cir. 1974) 15
United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) .. 14,15,16
United States v. Rubin, 559 F.2d 975 (Sth Cir. 1977)
vacated 58 L.Ed.2d 192, aff'd in part reversed in
oot i |, 12
United States v. Seymour, et al, No. 75-27 MAC (M.D.
Ga. 1975) aff’d sub nom United States v. Brown,
555 F.2d 407 (Sth Cir. 1977), cert. denied, 435 U.S.
sie yids TTT Pe ee ei 7
iii
United States v. Sutton, 605 F.2d 260 (6th Cir.
OPENS eia's 3b oan laces laoreet es 7,8,9,10,12
United States v. Weidman, 572 F.2d 1199 (7th Cir. 1978) 16
United States v. Weir, 575 F.2d 668 (8th Cir. 1978)..... 16
Constitution and Statutes Cited
PA er EE hors 65s oa 0 boo ean ba bee ee aka ree 2
FO NE Pe a's « eS SleN Toe hure ene ere aks 11
STi: UE iS s Rane sh eek ee kane eee an 2,11
arses NE oka 2 4 en 5b's Pekar kS ca nee eee 2,6,7,10
Se ES Ac ck wena sSatedanetd i per@eneen 6
ie EE 9195: 8 Avs cade esa hevesewereer eee 7
Pa in SE 5 2 G's pce eeca ee Visa snes 2,6,7,8,12
IE ia s'eX atid owe dedewee bese banseey 2
ee Rk eee rere rye errr Terre 11
28 as SE <b as ko cren ce aan t cide rok cwnewes 2
Miscellaneous
Federal Rules of Evidence 403 .........cccssccecaess 18
Federal Rules of Evidence 404(b) ............ 2,5,13,14,17,20
IN THE
Supreme Court of the United States
TERM 1980
No.
RONALD GRZYWACZ, RICHARD KRIESHOK AND EDWARD GOCLAN,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Seventh Circuit
Petitioner prays that a Writ of Certiorari be issued to review
the judgment of the United States Court of Appeals for the
Seventh Circuit entered in this cause on August 22, 1979.
OPINION BELOW
The opinion of the Court of Appeals is published as United
States vs. Grzywacz, 603 F.2d 682 (7th Cir. 1979). The slip opin-
ion is appended hereto as Appendix A.
JURISDICTION
The judgment of the Court of Appeals was filed on August
22, 1979, affirming and upholding the convictions of the peti-
tioners (Judge Swygert dissenting). On December 10, 1979, the
a
amy =
Court of Appeals for the Seventh Circuit denied Appellants’
Petition for Rehearing (Judge Swygert again dissenting) (App.
B). On December 26, 1979 this Court entered an order extend-
ing the time to file a Petition for a Writ of Certiorari to and in-
cluding February 8, 1980 (App. C). Jurisdiction of this Court is
invoked under 28 U.S.C. §1254(1). :
QUESTIONS PRESENTED
1. Is a city police department an ‘enterprise’ within the
meaning of the Racketeer Influenced and Corrupt Organiza-
tions Statute (RICO) 18 U.S.C. §§1961-68 (1976), and more
particularly as defined in 18 U.S.C. §§1962(c) and 1961(4)
(1976)?
2. What is the extent to which Fed.R.Evid. 404(b) can be ap-
plied to permit the introduction of “other crimes evidence’’
when said evidence relates to only one of three co-defendants on
trial for conspiracy; when said evidence is admittedly never con-
nected to the conspiracy charged; when said evidence is in-
troduced without a contemporaneous limiting instruction by the
Court; and when the introduction of said ‘‘other crime
evidence”’ constitutes over one-half of the evidence presented in
a complex and lengthy trial?
STATEMENT
A. Indictment
Petitioners, all former police officers of the City of Madison,
Illinois, were charged in a lengthy indictment with one count of
conspiring to violate §1962(c) of the Racketeer Influenced and
Corrupt Organizations Statute (hereinafter referred to as RICO)
in violation of 18 U.S.C. §1962(d) and one count of making
false declarations to a federal grand jury in violation of 18
U.S.C. §1623.
=
The ‘‘enterprise’’ within which illegal affairs were allegedly
conducted was specifically identified in the indictment as the
Police Department of the City of Madison, Illinois. The indict-
ment originally charged that as part of the conspiracy, Peti-
tioners solicited bribes from establishments located not only in
the City of Madison but also in Madison County over which the
City Police Department had no jurisdictfn. Further, the indict-
ment charged that as part of the conspiracy, petitioner Ronald
Grzywacz utilized his relationship with the office of the Sheriff
of Madison County, Illinois to solicit bribes from businesses
within the jurisdiction of the Madison County Sheriff’s office.
The Madison County Sheriff’s Office has jurisdiction over un-
incorporated areas of Madison County, and has no connection
with the City of Madison Police Department. Of the eight overt
acts originally charged, three were directed to activities occurr-
ing in Madison County as opposed to the City of Madison.
B. Pre-Trial Motions
Petitioners moved, inter alia, to dismiss the indictment upon
the grounds that a municipal police department is not an
“‘enterprise’’ within the meaning of the ‘‘RICO’’ Statute and to
strike certain portions of the indictment relating to activities
Outside the jurisdiction of the City of Madison Police Depart-
ment. Petitioners argued that such activities could not possibly
constitute the “‘conducting of affairs’’ of the municipal depart-
ment as alleged in the indictment. They noted that the City of
Madison Police Department did not operate in the unincor-
porated areas of the County, had no jurisdiction over businesses
located therein, and that any activities conducted through the
Sheriff’s Office could have no connection with ‘‘conducting the
affairs of the Madison City Police Department.’’ Petitioners
contended that these portions of the indictment would result in
a greal deal of irrelevant and highly prejudicial evidence being
introduced at trial. Petitioners also moved for severance on the
ground that any such evidence would pertain to only one of the
three co-defendants and would be irrelevant and prejudicial to
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em ESSE ETT AOS OREO A CT NE
a en
the others. The Government’s position prior to Trial was that
these (Madison County) activities were part of the conspiracy
charged and would be connected to the City of Madison con-
spiracy by the evidence. The Court overruled Petitioners’ mo-
tion to dismiss as well as their motion to strike portions of the
indictment.
Petitioners also moved, in limine, to exclude from evidence
any testimony relating to alleged bribe solicitation outside of the
City of Madison. They asserted the same argument as in their
motion to strike portions of the indictment. The Court over-
ruled said motion, but permitted the objection to be continuing
throughout the trial.
C. Trial Evidence
The trial lasted approximately five and one-half days. Of this
time, the Government spent virtually all of the first three days
of the trial introducing ‘‘Madison County”’ evidence pertaining
only to Petitioner Grzywacz, without any limiting instructions
by the Court. The evidence was presented in the Government’s
case in chief on the theory that these activities were part of the
overall conspiracy. However, the ‘‘Madison County’’ evidence
implicated only one of the three co-defendants and indicated
alleged bribe-taking some two years prior to the activities occur-
ing in the City of Madison. Throughout the trial, Petitioners
renewed their pre-trial motions and finally moved for a mistrial
when it became obvious that the ‘“‘Madison County’’ evidence
was not related, and could not be connected, to the overall con-
spiracy charged, nor could it be connected to any manner to two
of the three co-defendants.
D. Post-Evidence Developments
At the conclusion of the trial, the Government changed its
position relative to the ‘‘Madison County’’ evidence and
tendered an instruction which read as follows:
so
“There is no evidence introduced in this case to connect
defendants Edward Goclan and Richard Krieshok with the
alleged activities of defendant Ronald Grzywacz with
respect to the Sheriff’s Office and the taverns and towing
companies located outside the City of Madison, Illinois,
that is, in Madison County. Therefore, those activities may
not be considered in any way as evidence against defen-
dants Goclan and Krieshok. Rather it was introduced
against defendant Grzywacz only to show motive, oppor-
tunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.’’
Petitioners renewed their pre-trial motions and additionally
moved for a mistrial based upon the improper admission of the
Madison County evidence. The Government argued, however,
that even though the Madison County evidence had not been
connected to the alleged RICO conspiracy, it was nevertheless
admissible under Rule 404(b) as ‘‘other crimes’’ evidence per-
taining to Petitioner Grzywacz. The Court struck portions of
the indictment relating to Madison County activities, but re-
jected the arguments that the County evidence was inadmissible
and denied the motions for a mistrial. The Court submitted the
“‘amended indictment’’ to the jury and gave the “‘limiting’’ in-
struction tendered by the Government.
Thereafter, the jury returned a verdict against each of the
defendants on all counts charged in the indictment.
E. Appellate Court Decision
The judgment in this case was affirmed as a result of a split
decision of a panel of the United States Court of Appeals, for
the Seventh Circuit. The Honorable Luther Swygert issued a
lengthy dissenting opinion indicating that he would reverse the
district court on each of two of the points raised in this petition.
on ink
REASONS FOR GRANTING THE WRIT
I
Further Direction Is Needed to Resolve a Conflict Among the
United States Courts of Appeals Regarding the Scope and
Meaning of ‘‘Enterprise’”’ As the Term Is Used In 18 U.S.C. §§
1962(c) and 1961(4) (1976).
Petitioners were charged by indictment with violating the
RICO statute, 18 U.S.C. §1961 et seq., which provides in perti-
nent part:
“It shall be illegal for any person employed by or
associated with any enterprise engaged in, or the activities
of which affect interstate or foreign commerce to conduct
Or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering ac-
tivity or collection of unlawful debt.’’
The term ‘‘enterprise’’, for purposes of this Section, is de-
fined by §1961(4) as follows:
“* ‘Enterprise’ includes any individual, Partnership, cor-
poration, association, or other legal entity, and any union
or group of individuals associated in fact although not a
legal entity.”’
The trial court rejected Petitioners’ arguments that a municipal
police department is not an “‘enterprise’’ within the meaning of
RICO. On appeal, its decision was affirmed by the Seventh
Circuit in a split decision.
To date, no less than six federal courts, have discussed the
scope of the term “‘enterprise”’ as it is used within the RICO
Statute, with varying, and often conflicting, results. Petitioners
therefore seek a Writ of Certiorari from this Court in order that
this Court may finally resolve the questions regarding the scope
of the term ‘‘enterprise’’ as used within the RICO statute.
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In United States v. Mandel, 415 F.Supp. 997 (D. Md. 1976),
the governor of Maryland and others were indicted on a variety
of charges involving political corruption.
One count charged the Governor alone with having violated
Section 1962(b) which makes it illegal for a person to conduct
the affairs of an ‘‘enterprise’’ affecting interstate commerce
through a pattern of racketeering activity. The indictment iden-
tified the State of Maryland as the relevant ‘‘enterprise.”’
After a lucid and thorough analysis of the relevant legislative
history, the Court held that a public entity, such as a state
government, is not an ‘‘enterprise’’ within the meaning of Sec-
tion 1961(4). Therefore, Mandel’s dealings with, or control of
the state government, could not support a Section 1962(c)
charge. The Court dismissed the count, and in a subsequent
prosecution the Government changed the charge to name ‘‘The
Security Investment Company”’ as the ‘‘RICO Enterprise’. See
United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979), aff’d en
banc, 602 F.2d 653 (1979).
The Mandel Court noted that a contrary result was reached in
United States v. Frumento, 405 F.Supp. 23 (E.D. Pa. 1975)
which held that the Bureau of Cigarette and Beverage Taxes of
the Pennsylvania Department of Revenue was an enterprise for
purposes of the Act and specifically declined to follow that case.
(Frumento was affirmed on appeal; 563 F.2d 1083 (3d Cir.
1977), cert. denied sub nom. Millhouse v. United States, 434
U.S. 1072, (1978) ).
The Mandel Court also noted that a police department was
held to be an enterprise in United States v. Seymour, et al, No.
75-27 MAC (M.D. Ga. 1975). Seymour was subsequently af-
firmed on appeal as United States v. Brown, 555 F.2d 407 (Sth
Cir. 1977), cert. denied, 435 U.S. 904 (1978).
In a more recent case, United States v. Sutton, 605 F.2d 260
(6th Cir. 1979), the United States Court of Appeals for the Sixth
—_
Circuit held, inter alia, under §1962(c), the term “‘enterprise’’
should be narrowly construed to include only ‘‘legitimate’’
enterprises. Since appellants in Sutton were shown only to have
engaged in acts of racketeering not related to a *‘legitimate’’
enterprise, their convictions were reversed.
Because prosecutions under the ‘“‘“RICO”’ Statute have recent-
ly increased in number and scope, several federal courts have
considered the meaning of the term “enterprise’’ as the term is
used therein and have been decidedly split in their respective
conclusions. Most courts have found it necessary to review the
legislative history of the statute.
In United States v. Sutton, Supra, at 268, the Court con-
cluded:
“The legislative history conclusively demonstrates that
RICO was enacted in response to the growing subversion
of our society’s legitimate institutions of business and
labor by organized crime...” (Emphasis added)
See also United States v. Moeller, 402 F. Supp. 49, 56-60 (D.
Conn. 1975).
Among the points of legislative history reviewed in Sutton
were the following:
“‘RICO in its present form is the product of two bills in-
troduced separately in the Senate in 1959. The first,
S.1623, the ‘Criminal Activities Profits Act’, was spon-
sored by Senator Hruska and prohibited the investment of
income derived from criminal activities into any legitimate
business enterprise affecting interstate or foreign com-
merce. Senator McClellan succinctly explained the purpose
of the measures as follows: ‘.. . What we are trying to
do... [is] to keep them [racketeers] from using that
(racketeering and income derived therefrom] to infiltrate
—
legitimate businesses and pollute the stream of
commerce’ .’’ (Citation omitted) (Emphasis added)
ses &* &
‘*Delivering the Department’s [Department of Justice] en-
dorsement, Assistant Attorney General Wilson described
the McClennan bill as one ‘to prohibit the infiltration or
management of legitimate organizations by racketeering
activity or the proceeds thereof’, which, ‘[lJike [the
Hruska bill], is designed to attack the infiltration of
legitimate business by organized crime.’ [Citation omitted]
Wilson went on to praise Senator McClellan for drafting
an ‘innovative approach to the problem of racketeering in-
filtration of legitimate business.’ ’’ [Citation omitted]
ese & * &
“*The House report on the measure is to like effect.’’ [Cita-
tion omitted] ‘‘Before the House Judiciary Committee, the
Department of Justice described the measure it was en-
dorsing in the following terms:
Title IX is designed to inhibit the infiltration of
legitimate business by organized crime, and, .. . to
reach the criminal syndicates’ major source of
revenue.
se *&£ * &
The statute would also proscribe the acquisition,
maintenance, or control of any interest in business
enterprise through a pattern of racketeering activity
or the collection of unlawful debts. Here the emphasis
is against illegally acquired ownership or control of
businesses by members and associates of the
Mafia... . ”’ (Citation omitted) (Emphasis added)
United States v. Sutton, supra at 267-268.
—
The conclusion in Sutton and in Judge Swygert’s dissent in
the instant case, that the statute was meant to prevent the
seizure of private business enterprises by racketeering activity, is
further supported by the inclusion of the civil remedies provided
by Sections 1964 to 1968. Seciion 1964 provides that the United
States Attorney General may institute a civil action to prevent
Section 1962 violations by, inter alia, securing orders from a
District Court requiring divestitute, restrictions on activities or
investments of persons or ordering dissolution or reorganization
of an affected enterprise.
It would be ludicrous to imagine a Federal Court ordering the
dissolution of a state or local government or of a subdivision
thereof, such as the instant police department. United States v.
Mandel, supra, 415 F.Supp. at p. 1021.
Further, as the Mandel court noted, not a single mention of
Congressional intent to extend the scope of the Act to govern-
mental entities is found in the legislative history of the Act. 415
F.Supp. at p. 1020. Certainly, when a criminal statute is am-
biguous as to the scope of its coverage, the ambiguity ‘‘should
be resolved in favor of lenity’’, Rewis v. United States, 401 U.S.
808, 812 (1971).
As Judge Swygert noted in his dissenting opinion:
“*. . . [I]t seems odd that out of 2097 pages of hearings,
two congressional reports, and Title IX itself, there are no
explicit references to governmental units as ‘enterprises’
within Title IX. The more reasonable interpretation is that
Congress did not intend the term ‘enterprise’ to encompass
government organizations.’’ United States v. Grzywacz,
supra, 603 F.2d at p. 690.
Additionally, as the Mandel Court and the dissent in the in-
stant case point out, the conclusion that a governmental enti-
ty is not an enterprise for Section 1961(4) purposes is dictated by
the statutory construction doctrine of ejusdem generis. 415
F.Supp. at p. 1021. All of the specific entities listed in the
definition are the common legal forms of businesses and labor
unions. “Not one suggests a governmental entity.
The weakness inherent in the contrary holdings of United
States v. Brown, supra, United States v. Frumento, supra, and
the majority holding in the instant case stems from their reliance
upon the language of Section 947 of the Organized Crime Con-
trol Act which declared that the Act, of which Sections 1961 to
1968 comprise Title IX, ‘‘be liberally construed to effectuate the
remedial purposes’’ 84 State. 947. See, United States v.
Frumento, supra, 563 F.2d at p. 1091; United States v. Brown,
supra, 555 F.2d at +. 416; United States v. Grzywacz, supra, 603
F.2d at p. 686.
Although Congress may have declared that the Act was to be
liberally construed, reading the Act as a whole, and regarding
each section as being in pari materia, it seems abundantly clear
that governmental, public entities were simply not intended by
Congress to be included in the coverage of the Act.
Had Congress intended that governmental entities were to be
covered by the Act, it would have been simple enough to make
that intention clear.
Further, it appears as though the alleged activities of Peti-
tioners arguably fall within the provisions of the Hobbs Act, 18
U.S.C. §1951, pertaining to extortion under color of ‘‘official
right.’’ (See specifically 18 U.S.C. §1961(b) (2) )
Had the RICO statute been intended by its language to in-
clude public entities such as city police departments within the
scope of the term ‘‘enterprise’’, the Hobbs Act would have been
impliedly superceeded by the passage of the RICO statute. Peti-
tioners submit that such was not the Congressional intent in
adopting the RICO statute. ‘‘Hobbs’’ was created to punish
persons for extortion or bribery under color of official right
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(such as police officers) whereas RICO was adopted solely to
control racketeering influences in private business.
Finally, one of the elements of a violation of 18 U.S.C.
§1962(c) is that the defendant(s) must conduct ‘“‘such
enterprise’s affairs through a pattern of racketeering
activity ...”’. In United States v. Nerone, 563 F.2d 836 (7th
Cir. 1977), cert. denied, 435 U.S. 951 (1978), the Seventh Cir-
cuit construed “‘through”’ to mean that the pattern of racketeer-
ing activity must advance the affairs of the RICO enterprise in
order for a RICO violation to exist. The Fourth Circuit reached
a similar conclusion in United States v. Mandel, 591 F.2d 1347,
1375-76 (4th Cir. 1979), as did the Sixth Circuit in United States
v. Sutton, supra, at p. 270:
“‘The prosecuting team apparently assumed, but did not
prove, that the affairs of the corporate enterprise were ad-
vanced through racketeering. We, therefore, reverse the
convictions under Count 6’’. United States v. Nerone,
supra, 563 F.2d at 852.
A similar construction of the word “‘through”’ is implicit in
the holdings of the Court of Appeals for the Fifth and Ninth
Circuits:
‘The Ninth Circuit has emphasized the importance to a
§1962(c) prosecution of establishing a substantial nexus
between the prohibited activity and the conduct of the
enterprise’s affairs in United States v. Campanaie, 518
F.2d 352 (9th Cir. 1975).’’ United States v. Rubin, 559
F.2d 975, 990 (Sth Cir. 1977), vacated 58 L.Ed. 2d 192,
aff'd in part reversed in part, 591 F.2d 278 (1979).
See also, United States v. Dennis, 458 F.Supp. 197 (E.D. Mo.
1978)
Obviously, the interest of a police department cannot be ad-
vanced by the solicitation of bribes as was alleged in the instant
case.
oe
Therefore, in view of the serious conflict of decisions among
the United States Courts of Appeals and among the federal
District Courts on this issue, and the increasing use of the RICO
statute as a vehicle of prosecution, Petitioners submit that this
Court should determine the intended scope of the term ‘‘enter-
prise’ as the term is used within the RICO statute.
Further Direction Is Needed To Resolve A Decisive Split
Among the United States Courts Of Appeals Regarding the
Criteria For the Admissibility Of ‘‘Other Crime Evidence’’ Pur-
suant To Fed. R. Evid. 404(b).
Based on the initial theory that evidence of the alleged illegal
activity of one Petitioner, Ronald Grzywacz, in Madison Coun-
ty, Illinois would be proven to be part of the overall conspiracy
charged against all three of the City of Madison police officers,
the Court allowed the Government to thrust its overall con-
spiracy theory into the minds of the jurors and spend virtually
all of the first three days of a five and one-half day trial in-
troducing the ‘‘County’’ evidence over the continuing objec-
tions of Petitioners.
At the conclusion of the trial, the Government finally
acknowledged that it could not connect the ‘‘County’’ evidence
to the overall conspiracy, nor could the Government show that
the ‘‘County’’ evidence was in any way related to Goclan or
Krieshok. Faced with motions for a mistrial, the Government
after the conclusion of its case advanced the theory that the
*‘County’”’ evidence was nonetheless, admissible pursuant to
Fed.R.Evid. 404 (b) because it showed the modus operandi of
petitioner Grzywacz. Based on this argument, the trial court
retroactively sanctioned the admission of the ‘‘County’’
evidence and overruled Petitioners’ motions for a mistrial.
Petitioners submit that the sanctioning of this procedure by
the appellate court expands the scope of Fed.R.Evid. 404 (b) in
om ae
the seventh circuit, thereby creating a severe and apparently ir-
reconcilable conflict with regard to the proper criteria for the
admissibility of ‘‘other crime evidence’’ among the United
States appellate courts.
Federal Rule of Evidence, 404 (b) (hereinafter referred to as
**404 (b)’’ states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
~ acted in conformity therewith. It may, however, be ad-
missible for other purposes, such as proof of motive, op-
portunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
The rule has been judicially interpreted numerous times since its
enactment and the following general rules have emerged from
several of the circuit courts of appeals, but were not followed in
the instant case:
1. In order to admit other crime evidence, the evidence must
be relevant. The courts will not presume relevance. United
States v. Manafzadeh, 592 F.2d 81, 86 (2nd Cir. 1979); United
States v. O’Connor, 580 F.2d 38, 40 (Sth Cir. 1978).
In the instant case, the Government acknowledged that the
other crime evidence was relevant, at best, to only one of the
three petitioners.
2. Other crime evidence will not be allowed unless it tends to
prove a matter “‘in issue’. United States v. Manafzadeh, supra,
592 F.2d at 87; United States v. Herman, 589 F.2d 1191, 1198
(3rd Cir. 1978); United States v. O’Connor, supra, 580 F.2d at
43; United States v. Silva, 580 F.2d 144, 148 (Sth Cir. 1978);
United States v. Ring, 513 F.2d 1001, 1003 (6th Cir. 1975).
At trial, Grzywacz did not put on any defense, and his modus
operandi never became a contested issue. The method by which
the petitioners allegedly received the “*kickbacks’”’ for which
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they were eventually convicted was quite simple. The Govern-
ment made no showing that the method of operation used by
Grzywacz in the ‘‘County’’ was in any way unique.
3. The quantity of other crime evidence should be limited to
that necessary to the purpose for which it is admitted. United
States v. Ostrowsky, 501 F.2d 318, 328 (7th Cir. 1974).
The Government examined fifteen witnesses and consumed
more than half of the total trial ostensibly to prove the modus
operandi of one of the three Petitioners.
4. The other crime evidence should not relate to an act too
far remote in time from the substantive crime charged. United
States v. Silva, supra, 580 F.2d at 148.
In the instant case, the alleged acts constituting the ‘‘County”’
evidence took place in 1970 and 1971. The alleged ‘‘City”’ in-
cidents occurred primarily in 1973 and 1974. At best, the closest
temporal connection between the ‘‘crime’’ and the ‘‘other
crime’’ evidence would be over one year.
5. There must be a substantial probative need for the other
crime evidence. United States v. Silva, supra, 580 F.2d at 148.
The other crime evidence was, at best, only cumulative as to
Grzywacz and certainly not of great probative need to the
Government.
6. When introducing other crime evidence, adequate
limiting instructions should be given. United States v. Back, 588
F.2d 1283, 1287 (9th Cir. 1979); United States v. O’Connor,
supra, 580 F.2d at 42; United States v. Ring, supra, 513 F.2d at
1004.
In the instant case, limiting instructions were not given contem-
poraneously with the introduction of the other crime evidence.
Certainly, the Court cannot be totally faulted for this initial
failure because it was somewhat ‘‘sandbagged’’ by the Govern-
ment’s initial theory supporting the introduction of the
en
evidence.' The Court should have not, however, have allowed
the Government to change its theory of admissibility after the
damage, caused by the absence of limiting instructions, had
been done. In this light, a final ‘‘curative’’ instruction to the
jury can only be considered ‘‘too little, too late’’.
7. The probative value of the other crime evidence must not
be substantially outweighed by its prejudicial effect. United
States v. Manafzadeh, supra, 592 F.2d at 86; United States v.
Herman, supra, 589 F.2d at 1199-1198; United States v. Back,
supra, 588 F.2d at 1285; United States v. Weir, 575 F.2d 668,
670 (8th Cir. 1978); United States v. Weidman, 572 F.2d 1199,
1202-1203 (7th Cir. 1978); United States v. Ring, supra, 513
F.2d at 1004.
Since the ‘‘other crime’’ evidence had no probative value as
to two of the Petitioners, there can be no question that peti-
tioners Goclan and Krieshok were unduly prejudiced by the ad-
mission of the ‘‘County’’ evidence. Petitioners further submit
that the dissenting opinion is correct in concluding that the pre-
judicial effect of said evidence far outweighed the questionable
probative value the evidence had in proving Grzywacz’s modus
operandi.
In view of these guidelines and the departure from them in the
instant case, Petitioners submit that the majority opinion herein
‘As Judge Swygert noted in his dissenting Opinion:
It appears as if the procedure employed by the Government
was a pretext designed to gain the admission of the County
evidence; the prosecution must have known there was insuffi-
cient evidence to connect the County evidence to the City con-
spiracy. In conference the Government stated that ‘‘there was at
least an inference that could be drawn that [the County
evidence] was part of the conspiracy.’’ (Tr. p. 890.) Without any
fact tying the County evidence to the conspiracy this inference is
not permissible. Unfortunately, it is not unlikely that this in-
ference took shape behind the closed doors of the jury room.
— =
represents the most radical expansion, to date, of Rule 404 (b)
as it pertains to other crimes evidence and an expansion which is
in direct conflict with other appellate decisions. Specifically,
Petitioneis invite the Court’s attention to the cases of United
States v. Herman, supra, decided by the Third Circuit, and
United States vy. O’Connor, supra, decided by the Second Cir-
cuit in order to exemplify the true depth of this conflict.
United States v. Herman, supra, was a RICO prosecution, in-
volving circumstances extraordinarily similar to those in the
instant case. Appellant McMann, a state court magistrate, and
others were charged with conspiring to accept bribes offered by
a bail bonding firm in connection with fixing bail in criminal
cases. In the second count, McMann was charged with the
substantive offense of associating with the bonding company,
an enterprise in commerce, and conducting its affairs through a
pattern of racketeering. United States v. Herman, supra, 589
F.2d at 1194.
During its case in chief, the Government sought to introduce
testimony of a bondsman, who operated another bonding com-
pany (not stated in the indictment), to the effect that he paid
McMann 50% of his premiums on all bonds which he posted in
cases where McMann fixed bail. The trial court, which had
disallowed the evidence in the Government’s case in chief, ruled
that the Government could introduce this evidence in rebuttal
solely as character evidence against McMann. In its charge to
the jury, the trial court restated the limited purpose for which
the bondsman’s had been introduced and admonished the jury
that the evidence could not be considered for any purpose ex-
cept to rebut the character evidence offered by McMann. /d. at
1195-1196.
On appeal, the Government contended, inter alia, that the
Winner testimony was also admissible pursuant to 404 (b) as
probative of McMann’s participation in a common scheme or
plan, and the modus operandi of that plan. The Court of Ap-
a yan
peals for the Third Circuit applied rule 403 reasoned that the
probative value of the evidence was outweighed by its pre-
judicial effect.
‘“*While in most instances we would defer to the district
judge’s sound discretion concerning a rule 403 issue. . .
where, as here, the evidence was admitted under a different
theory from that urged on appeal, and defense counsel
strongly objects to its prejudicial effect, a more searching
inquiry is required.
“In determining the probative value of evidence under rule
403, we must consider not only the extent to which it has
been admitted to prove . . . but also the extent to which
that proposition was directly at issue in the case... . In this
case, the fact that the means used to commit the charged
and uncharged crimes were somewhat similar had little
probative weight, particularly since the jury had already
been informed by Levitt that the 50% payment scheme, far
from being unique, had been used with many other
magistrates in Allegheny County. In view of that
testimony, it cannot seriously be argued that the modus
operandi described in Winner’s testimon 'y was SO unusual
and distinctive that its similarity to the modus operandi
described by Levitt by itself justified an inference that
McMann had participated in both transactions. Moreover,
modus operandi was at best a collateral issue in the case.
** *
“Since the probative value of the evidence as modus
operandi was clearly outweighed by its prejudicial effect
- we hold that it was proper to exclude the evidence
when it was offered in the government’s direct case, and
that its admission on an impermissible theory in rebuttal
was not harmless error.’’ Jd. at 1198. (Emphasis Supplied)
—_— wo
The similarities between Herman and the instant case are in-
deed extraordinary. However the quatum of other crimes
evidence in Herman was not nearly so much as that in the
instant case and the evidence was not presented in the govern-
ments case in chief.
In United States vy. O’Connor, supra, another very similar
case, appellant was charged with two counts of taking money
from meat packing companies in connection with his official
duties as a government inspector. During its case in chief, the
Government apparently consumed more than half of its time in-
troducing evidence to the effect that appellant took money from
meat packing companies other than those included in the indict-
ment, as a means to prove appellant’s intent, knowledge, lack
of mistake, and common design or plan. On appeal, the Second
Circuit found that the ‘‘other crime’’ evidence was perhaps pro-
bative of appellant’s habit or character, but not of the existence
of a specific plan of which the charged.acts were just a part.
When the Government then attempted, on appeal, to have the
Court retroactively justify the admission of the evidence as be-
ing relevant to show a unique pattern or plan, the Second Cir-
cuit demurred.
““We therefore hold that the other crimes testimony should
have been excluded. It was not relevant to a significant
issue that was truly in dispute and was therefore inadmissi-
ble under Rule 404 (b). Not only was the evidence irrele-
vant, it was prejudicial because it might lead a jury to con-
vict because it thought the defendant’s character was such
that he frequently committed crimes. Moreover, the
evidence distorted the emphasis at trial away from the
crimes covered by the indictment to those not so charged.
On these facts, the evidence should have been excluded. ’”’
Id. at 43.
In the instant case, the Government first told the jury that the
“‘County’’ evidence was to be used against all of the petitioners
— eo
and then consumed more than half of the trial introducing the
“other crime’’ evidence. It was not until the judge’s charge that
the jury was informed of the revised purpose and limited scope
of the ‘‘County”’ evidence. But, as noted in United States v.
Byrd, 352 F.2d 570, 574 (2nd Cir. 1965):
“It is generally recognized that there can be no complete
assurance that the jury, even under the best of instructions,
will strictly confine the use of this kind of evidence to the
issue of knowledge and intent and wholly put out of their
minds the implication that the accused, having committed
the prior similar criminal act, probably committed the one
with which he is actually charged.”
Petitioners submit, in summary, that the majority opinion in
the instant case represents a departure from the criteria applied
in other circuits and a significant expansion of the level at which
other crime evidence may be introduced at trial pursuant to 404
(b). The Seventh Circuit’s holding directly conflicts with ap-
pellate decisions of the Second and Third Circuits. Petitioners,
therefore, urge this Court to grant its Writ of Certiorari to
resolve this conflict and give further guidance to the application
of Rule 404 (b).
= 2] —
CONCLUSION
For the foregoing reasons a Writ of Certiorari should issue to
review the judgment and Opinion of the Court of Appeals.
Respectfully submitted,
NORMAN S. LONDON
Attorney for Petitioner Grzywacz
LAWRENCE J. FLEMING
Attorney for Petitioner Krieshok
1600 Boatmen’s Tower
100 North Broadway
St. Louis, Missouri 63102
(314) 231-8700
CARMEN S. DURSO
Attorney for Petitioner Goclan
110 East Lincoln Street
Belleville, Illinois 62221
APPENDIX
OO _ ____ VY
ak DIS aes
in the
United States Court of Appeals
For the Seventh Circuit
Nos. 78-2301, 78-2302, 78-2303
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
v.
RONALD GRZYWACZ, EDWARD GOCLAN and RICHARD
KRIESHOK,
Defendants-A ppellants.
Appeal! from the United States District Court for the
Southern District of Illinois, Alton Division.
No. 78 Cr 50003—J. Waldo Ackerman, Judye.
ARGUED May 31, 1979—DeEcIDED AUGUST 22, 1979
Before SWYGERT, GEWIN* and SPRECHER, Circuit
Judges.
GEWIN, Circuit Judge. On March 31, 1978 appellants
Grzywacz, Krieshok and Goclan, former police officers
of Madison, Illinois, were each indicted on one count of
conspiring to violate § 1962(c) of the Racketeer In-
fluenced and Corrupt Organizations statute (RICO) in
violation of 18 U.S.C. § 1962(d) and one count of making
false declarations to a federal grand jury in violation of
18 U.S.C. § 1623. They were tried by a jury and found
* The Honorable Walter P. Gewin, Senior Circuit Judge of
the United States Court of Appeals for the Fifth Circuit, is
sitting by designation.
ae
ilty on all counts. The district court sentenced
Soanwann to 12 years imprisonment on the conspiracy
count and 5 years on the perjury charge, the sentences
to be served concurrently. Goclan and Krieshok each
received 7 year sentences on the conspiracy counts and 5
years imprisonment for perjury, to be served con-
currently.
In these consolidated appeals the three appellants
assert various alleged errors which they claim warrant
a new trial. Finding the contentions to be without merit,
we affirm the convictions.
Appellants were alleged to have conspired to violate
the RICO statute by conducting and partici ating in the
conduct of an enterprise, the Madison, Illinois Police
Department, through a pattern of racketeering activity.
The indictment ander which they were charged alleged
as the essence of the conspiracy that the officers used
their official positions as members of the police depart-
ment to solicit and accept bribes and sexual favors from
business establishments in the city of Madison and
Madison County in exchange for acquiescence in and
protection of certain illegal activities by the establish-
ments, including prostitution, and operating after clos-
ing hours.? The indictment also charged that appellant
1 j nts against appellants char that. they
AP agg a arene jury that they vo gelinc o no
bribes from businesses.
2 The indictment stated in pertinent part:
5. It was a part of the conspiracy that the defendants
would utilize their official positions as members of the
City of Madison Police Department to ask, seek, solicit
mat accept payments from Teetnees establishments while
intending to be influenced in the performance of acts
related to their employment and functions as public
officers.
6. It was a further part of the poneptraey that the
defendant, RONALD GRZYWACZ, would utilize his relation-
ship with the office of the Sheriff of Madison County,
Illinois, to ask, seek, solicit and accept payments from
business establishments within the jurisdiction of the
adison County Sheriff's office.
(Footnote continued on following page)
ye yom
Ronald Grzywacz used his relationship with the Madison
County sheriff's office to solicit and accept bribes from
similar businesses in Madison County.
Prior to trial appellants moved to strike the portions
of the indictment referring to those acts occurring
outside the city limits of adison, beyond which the
municipal police department had no jurisdiction. They
argued that the “Madison County” evidence was irrele-
vant, prejudicial and without relationship to the conduct
of the affairs of the police department alleged in the
indictment. The government responded that these activi-
ties were part of the overall conspiracy and the court
accordingly overruled appellants’ motion.
At trial the government adduced substantial evidence
relating exclusively to certain acts committed jointly
2 continued
7. It was a further part of the conspiracy that the
defendants, as law enforcement officers, would be paid by
individuals seeking to operate their business establish-
ments in violation of the laws of Illinois, the City of
Madison, and Madison County.
8. It was a further part of the conspiracy that certain
business establishments in the City of Madison and in
Madison County would be forced to pay money to the
defendants and to provide sexual favors for “protection”
and to avoid harassment by the defendants.
9. It was a further part of the conspiracy that certain
business establishments in oe of Madison and in
adison County would be permit to house prostitution
Operations in violation of the laws of the State of
Illinois.
10. It was a further part of the conspiracy that certain
taverns in the City of Madison and in Madison County
would be permitted to operate after legal closing hours.
1l. It was a further part of the conspiracy that the
defendants, as law enforcement officers, would agree and
City of Madison and in Madison County.
12. It was a further part of the conspiracy that the
defendants would attempt to recruit other law enforce-
ment officers to participate in the criminal objectives of
the enterprise.
— = yam
and separately by all three appellants in the city of
Madison. This proof, consisting of statements by the
appellants and testimony by police officers, —— of
business establishments and the Mayor o Madison,
indicated that the three officers, with the assistance of
tavern owner Jenny Huey,’ engaged in a pattern of
securing monetary payments and sexual favors from
city tavern and tow company operators and employees in
return for “protection” of certain illegal activities by the
businesses. In addition a significant amount of evidence
relating to appellant Grzywacz’s activities in Madison
County was offered and admitted. The evidence tended
to show that at the time the three officers were
collecting bribes in the city of Madison, Grzywacz in
coordination with members of the Madison County
sheriff's office was engaged in similar “shakedowns” of
tavern operators in the county, outside the Madison
lice department’s jurisdiction. The proof implicated
rzywacz only; none of it showed involvement by Goclan
and Krieshok in the solicitation and acceptance of bribes
in the county.
At the conclusion of the trial,* the government
tendered an instruction stating that the Madison County
evidence could not be considered against Goclan and
Krieshok but was admissible as evidence of prior
misconduct against Grzywacz to show motive, op-
portunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident. Contending that the
government no longer considered the Madison County
activities to be part of the conspiracy, appellants moved
to strike all references in the indictment to Madison
County and to strike all evidence relating to those
* Huey was called to testify by the government but refused
asserting her privilege against self-incrimination. pam being
— immunity, she still refused to take the stand and was
ound in contempt of court.
‘ When the government completed the presentation of its
case, each appellant asserted his Fifth Amendment right and
refused to testify for his co-defendants. The defense then
OS OB no direct evidence and rested its case. (Vol. VI, p.
a
activities. They further moved for a mistrial on grounds
that the trial court erroneously admitted the evidence.
The court struck portions of the indictment relatin to
the county but denied the motion for mistrial, finding
the evidence admissible for the purposes advanced by
the government. In his final instructions the trial judge
warned the jury that the evidence was to be considered
only as to Grzywacz to show motive, intent, plan,
opportunity, etc.
As their initial contention on this appeal appellants
maintain that they could not be charged with conspiracy
under 18 U.S.C. § 1962(d), the RICO statute, because the
Madison, Illinois police department is not an “enter-
prise” within the meaning of 18 U.S.C. § 1961(4).
Appellants presented this ground in a pretrial motion to
dismiss the conspiracy count but the trial court rejected
it.
Section 1962(c) provides that:
It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the
activities of which affect interstate or foreign com-
merce to conduct or participate, directly or in-
directly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collec-
tion of unlawful debt.
“Enterprise” as used in § 1962(2) is defined in 1961(4) to
include:
any individual, partnership, corporation association
or other legal entit , and any union or group of in-
dividuals associated in fact although not a legal en-
tity;
According to appellants, a public entity such as a
municipal police department can not constitute an
“enterprise engaged in... interstate or foreign com-
merce. . . .” They submit that Congress in enacting the
Racketeer Influenced and Corrupt Grmanicatione statute
(18 U.S.C. §§ 1961-1968) intended primarily to combat
the infusion of organized racketeering into the activities
of legitimate private businesses. In contrast there was no
a
legislative intent to apply the Statute to acts of corrup-
tion by public employees or officials. In support of this
view, appellants advert to the civil remedies provided by
section 1963 of the statute. These include a private ac-
tion for treble damages and actions by the United States
Attorney General for divestiture, dissolution or
reorganization of the enterprise, and restrictions on in-
vestments by persons therein. Appellants contend these
Statutory remedies are peculiar to violations by private
organizations and therefore public entities were meant
to be excluded from the statute’s range of coverage.
Consideration of past precedent, legislative history,
and the plain words of the statute convince us that the
RICO statute admits of a broader, less constricted inter-
pretation. We believe that public entities and individuals
may constitute § 1964(1) enterprises through which
racketeering is conducted. Both the Third and Fifth Cir-
cuits have so held. In United States v. Frumento, 563
F.2d 1083 (3d Cir. 1977), cert. denied sub nom. Millhouse
v. United States, 434 U.S. 1072 (1978), the Court of
Appeals for the Third Circuit determined that the act
was designed to prevent organized crime from in-
filtrating public and private entities which have some
relationship with the economy. 563 F.2d at 1090. To this
end Congress authored flexible legislation offering the
various civil remedies cited above as well as criminal
penalties’ to protect from racketeering individuals and
organizations in different and diverse areas of American
life. Jd. at 1090-91.
In a case highly similar to the cause before us, the
Fifth Circuit in United States v. Brown, 555 F.2d 407
(Sth Cir. 1977), cert. denied, 435 U.S. 904 (1978), held
that the Macon, Georgia municipal police department
constituted an enterprise within the meaning of the
Statute. The Brown court rejected the appellants’ conten-
tions that the statute encompassed only private cor-
porations and labor organizations as overly narrow and
5 18 U.S.C. § 1963.
we ©. pon
associated in fact although not a legal entity.” Jd. From
this broad language it concluded that a police depart-
ment may be, at the least, a group of individuals
associated in fact, if not a “legal entity.” Jd.
Scrutinizing the pertinent legislative history, the court
recognized that Congress enacted the Organized Crime
Control Act of 1970, of which the RICO statute was a
portion, to reduce the flow of illegal activities into
organizations which corrupt “democratic processes and
“threaten domestic security.” /d. Finally t e court relied
on the explicit language that the provisions of the
Organized Crime Act of 1970 were to be “liberally con-
strued” to achieve “their remedial purpose.” Jd. at 416.
Our view is in accord with that of the Third and Fifth
Circuits. As the Fifth Circuit noted in Brown, Congress
articulated that the statute is to be liberally construed to
effectuate its remedial purposes. Organized Crime Con-
trol Act, Pub. L. No. 91-452 § 904, 84 Stat. 922. Yet,
even a restricted reading of the expansive definition of
“enterprise” permits the application of § 1962(d) to
public entities such as police departments. Section
1961(4) draws no distinctions between the public and
private sector. Rather it includes as legal entities “in-
dividuals, partnerships, and associations. We are con-
vinced that within this broad language, a police depart-
ment and individual police officers are legal entities and
thus qualify as enterprises.®
6 Recognizing that Congress “intended to prohibit | any
pattern of Parkateetive activity in or affecting commerce” and
that it intended the term “enterprise” to have “a very broad
meaning”, this circuit in United States v. Cappetto, 502 F.2d
1351, 1358 (7th Cir. 1974), cert. denied, 419 U.S. 1105 (1975),
held that an illegal activity such as a gambling operation may
be a § 1962(c) enterprise through which racketeering is
conducted. The court ar id not address the —
bility of the statute to public entities. But the liberal
construction given the definition of bey! 4 by it runs
counter to appellants’ argument that the RICO statute was
intended to govern the activities onl of legitimate private
businesses. Our interpretation that public entities are within
the scope of the statute follows the approach employed in
Cappetto. To accept appellants’ claim that a narrow construc-
(Footnote continued on following page)
a
in Mil ee
Moreover, the legislative history manifests a serious
concern by Congress not merely with a profusion of
racketeering activities within private businesses and
labor organizations, as appellants suggest, but with the
potentially devastating effects of organized crime on the
nation’s political and economic system as a whole. This
alarm was expressed in the Statement of Findings and
Purpose of the Organized Crime Control Act of 1970.
The Congress finds that (1) organized crime in the
United States is a highly sophisticated, diversified,
and widespread activity that annually drains
billions of dollars from America’s economy by un-
lawful conduct and the illegal use of force, fraud
and corruption;
(3) this money and power are increasingly used to
infiltrate and corrupt legitimate business and labor
unions and to subvert and corrupt our democratic
processes;
(4) organized crime activities in United States...
threaten the domestic security, and undermine the
general welfare of the Nation and its citizens;....
Pub. L. No. 91-452, § 1, 84 Stat. 922 (emphasis added).
The logical inference from these pronouncements is that
Congress intended to frame a widely encompassing
enactment to protect both the public and private sectors
from the pervasive influences of racketeering. We
decline to adopt the myopic vision of Congressional
objectives of the enactment. United States v. Altese, 452 F.2d
104 (2d Cir. 1976); United States v. Hawes, 529 F.2d 472 (5th
Cir. 1976); United States v. Campunale, 518 F.2d 352 (9th Cir.
1975), cert. denied, 423 U.S. 105 (1976). But see United States
v. Mandel, 415 F. Supp. 997 (D. Md. 1976); United States v.
Moeller, 402 F. Supp. 49 (D. Conn. 1975).
en
policy advanced by appellants and instead elect to give
the statute the construction ap 0k of us by explicit
mandate. The Madison police-department is an enter-
prise within the meaning of section 1961(4).
The second alleged error which this court must con-
sider is the trial court’s admission into evidence of the
“Madison County” evidence. It is appellants’ contention
that this proof was inadmissible even for the limited
purposes requested by the government because it was
overly prejudicial to codefendants Goclan and Krieshok
and the trial court failed to give limiting instructions at
the time the evidence was introduced. Appellants
further argue that the court should have excluded the
evidence because Grzywacz had not placed his specific
intent im issue.
Whether Grzywacz disputed the element of specific in-
tent at trial is irrelevant since the court properly ad-
mitted the evidence to also show preparation and plan or
design, and a mode of operation. Fed. Rules of Evidence
404(b) expressly sanctions the use of similar acts of prior
misconduct for these objectives. The Madison County
evidence was highly probative of such matters. It show-
ed that at approximately the same time the three of-
ficers were using their official positions to collect
payoffs from taverns and tow companies within the city
of Madison, Grzywacz was utilizing his status and
authority as a law enforcement officer to — with
members of the sheriff's office in a pattern of co lecting
bribes from businesses in the county. There was no
remoteness in time between the activities. Moreover, the
evidence of a grid conduct in the ct | showed
Grzywacz to an active participant and possible
ringleader of the alleged conspiracy.
Because the county activities had a significant “con-
currence of common features” with the racketeering
conducted by ny epen in the city, the “Madison Coun-
.@ evidence, with its corroborative character, tended to
show a preexisting plan and modus operandi followed by
— A-10 —
Grzywacz.’ It was therefore highly relevant to the basic
question of whether he committed the alleged offense.
This court has approved the admission of evidence of
similar acts for these purposes when the trial judge
determines its probative value outweighs its prejudicial
impact. United States v. Weidman, 572 F.2d 1199, 1202-
03 (7th Cir. 1978); United States v. Grabiec, 563 F.2d
313, 318 (7th Cir. 1977); United States v. Krohn, 560
F.2d 293, 296-97 (7th Cir. 1977); United States v. Tacullo,
226 F.2d 788, 793 (7th Cir. 1955).8 Broad discretion is
’ Professor Wigmore succinctly explained the use of similar
acts to prove design or pre-existing plan.
Design or Plan .°. ., is not part of the issue, an element of
the criminal fact charged, but is the preceding mutual
condition which evidentially points forward to the doing of
the act designed or planned (citations omitted). Thus the
peculiarity of Design is that the act is not assumed to be
proved, and the design is evidentially to show its probable
commission.
2 Wigmore on Evidence, § 1300 at 193 (3d ed. 1940). He then
distinguished design from evidence used to show intent.
In the former case (of Intent) the attempt is merely to
negate the innocent state of mind at the time of the act
charged, in the present case [of design] the effort is to
establish a definite prior design or system which included
. the doing of the act charged as a part of its consummation.
. . The added element [in showing design} then, must be,
not merely a similarity in the results, but such a concurrence
of common features that the various acts are naturally to be
explained as caused by a general plan of wh ich they are the
individual manifestations. (emphasis in original).
Id. § 304 at 202.
® Of significant resemblance to the instant case is United
States v. Grabiec, supra, where co-defendants were charged
with conspiracy to extort money under color of official right,
in violation of 18 U.S.C. § 1951. At trial the court permitted
the government to adduce evidence that one defendant had
accepted similar eee pavers on four ap tga occasions. On
apes: this court held the acts admissible “to show a pattern
of conduct corroborating a similar pattern carried out during
Wee conspiracy and a method of operation.” Jd. at 318, citing
United States v. Iacullo, supra. The court reasoned that the
challenged transactions “illuminated the character of the
rt and the extent of the involvement of the partici-
pants.” Jd.
— A-ll —
accorded a trial judge in this determination, United
States v. Serlin, 538 F.2d 737, 747 (7th Cir. 1976). The
district court in the instant case decided at the conclu-
sion of the trial that the possible spillover effect on
lan and Krieshok was overborne by the crucial im.
portance of shedding light on the racketeering scheme
by showing a similar plan carried out in the county by
Grzywacz and members of the sheriff's office.
We believe this determination was proper, given the
careful limiting instructions read to the jury by the
There has been no evidence introduced in this case
to connect defendants Edward Goclan and Richard
Krieshok with the alleged activities of defendant
Ronald Grzywacz with respect to the Sheriff's office
and the taverns and towing companies located out-
side the City of Madison, Illinois, that is, in Madison
County. Therefore, those activities may not be con-
sidered in any way as evidence against defendants
Goclan and Krieshok. Rather it was introduced
against defendant Grzywacz only to show motive,
Spportunity, intent, preparation, plan, knowled e,
identity, or absence of mistake or accident. (Vol.
VII, p. 1024-1025).
The instruction adequately restricted the jury’s attention
to Grzywacz. Appellants’ argument that a contem-
poraneous limiting instruction was required is meritless
since the record reveals that at no time did the defense
request such an instruction of the court.
In sum the trial judge properly admitted the evidence
of similar acts as going to the planned design and modus
operandi of appellant Grzywacz. The procedures
employed by the court were sufficient to prevent undue
prejudice to Goclan and Krieshok.
°° In addition, the trial judge carefully instructed the jury on
the relevance of similar acts. Vol. VII. pp. 1030-31. The
instructions were thorough and appellants do not challenge
their sufficiency on this appeal.
—A-12—
A final major contention is that the trial court erred
in permitting the government to place in evidence cer-
tain out-of-court statements made by appellants and
their ars co-conspirator Jenny Huey. Among the
challen statements were a recorded conversation
of Grzywacz wherein he admitted collecting bribes,
Grzywacz’s grand jury testimony in which he admitted
obtaining bribes and stated that he saw Goclan receive
money from Jenny Huey. Also admitted into evidence
was grand jury testimony by Goclan and Krieshok in
which they related the events tr iim 3 a raid on Jen-
ny Huey’s tavern, alleged statements by Goclan and
rieshok to various persons soliciting bribes, and alleg-
ed remarks by Jenny Huey to certain witnesses that
payoffs were being made to appellants in exchange for
protection.
Appellants claim that under the recent decision of
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978),
the trial judge, prior to admitting the staternents, was
required to determine out of the jury’s presence whether
the statements were made in furtherance of a conspiracy
of which each defendant was a member.” As a corollary
to this argument, they assert that admission of the
statements by the appellants necessitated a severance of
their trials under United States v. Bruton, 391 U.S. 123
(1968), since each appellant had no opportunity to cross-
examine his codefendants on the statements. During the
trial each appellant asserted his Fifth Amendment right
‘0 A number of statements made by Grzywacz, Krieshok and
Goclan were offered and admitted Fagor to Fed. Rules of
Evidence 801(d\2) as admissions of a party-opponent. Appel-
lants have chosen to categorize these as co-conspirator
Statements and attack them on the basis of Santiago. Their
admissibility under Rule 801(d2) is not challenged. We note
that with one exception the statements were admitted at trial
without a contemporaneous instruction that they were only to
be considered against the declarant. But at no time during the
course of the trial did appellants request a limiting instruc-
tion. Given this and the fact that the trial judge gave a specific
and scrupulous limiting admonition in his final instructions.
no prejudicial error was committed. See United States v.
Esquer, 459 F.2d 431, 435 (7th Cir. 1972).
ao Red —
and refused to take the stand. The appellants did offer
to testify if separate trials were granted. The cour,
however, refused to grant a severance.
The decision in Santiago was issued after the comple-
tion of the trial below. At trial during the testimony of
the government’s first witness, Robin Young, the trial
judge admonished the jury that whenever it appeared
yond a reasonable doubt that a conspiracy existed and
a defendant was a member, statements knowingly made
and acts committed by any person likewise found to be a
co-conspirator could be considered against the defen-
dant, but only if the statements were made in
furtherance of the conspiracy and during its con-
tinuance. If not, the acts and statements could be con-
sidered only as evidence against the person making
them. (Vol. 1, p. 26). The trial judge repeated these in-
‘structions to the jury at the close of trial.
The court’s articulation of the rule on co-conspirator
statements adhered to the law then in effect in this cir-
cuit. United States v. Santiago, 582 F.2d 1128, 1131-32
(7th Cir. 1978); see United States v. Santos, 385 F.2d 43
(7th Cir. 1967). Furthermore appellants did not object to
the instructions nor did they request other limiting in-
structions at any time during the course of trial. Thus
they have no cause to challenge those instructions on
appeal. See Santiago, supra at 1136. This is true par-
ticularly in light of the fact that evidence adduced in-
dependently of the statements clearly established an ac-
Hy conspiracy among the three appellants and Jenny
uey.
As to the Bruton issue, we do not believe that con-
stitutional error was committed by the trial court's
refusal to grant a severance. Though damaging to
appellants, the statements, when considered within the
context of the other evidence, were not of a
“devastating”, “crucial” or “powerfully incriminating”
nature, to which Bruton largely has been limited. See
Dutton v. Evans, 400 U.S. 74, 87 (1970). Neither were
they inherently unreliable statements as those of a coerc-
ed confession, see Bruton, supra; Brookhart v. Janis, 384
— =" on
U.S. 1 (1966), or those produced by prosecutorial or
judicial poate i United States v. Cogwell, 486 F.2d
823, 834 (7th Cir. 1973).
The decision to grant a severance lies within the sound
discretion of the trial court, reversible only for an abuse
of discretion. United States v. All State Mortgage Corp.,
507 F.2d 492, 495 (7th Cir. 1974). In order to secure a
severance the moving party must establish that she or
he will be unable to obtain a fair trial. United States v.
Crooch, 528 F.2d 625, 631 (7th Cir. 1976). Appellants
have not made this showing with respect to the extra-
judicial statements. The trial judge properly exercised
his discretion.
We have scrutinized the other contentions advanced
by appellants and find them devoid of merit.
It is appropriate to note that in its ultimate
significance this case is immensely tragic not only
because it involves the corruption of human beings but
because the offenses found by the jury reflect a callous
disregard by public servants of their moral and legal
responsibilities and a sordid abuse of their public trust.
Such misconduct by law enforcement officials -under-
mines respect for the legal principles upon which the
survival and growth of a free society depend. Grzywacz,
Goclan and Krieshok have received a fair trial, the judg-
ment is AFFIRMED.
— A-IS —
SWYGERT, Circuit Judge, dissenting. Because I believe
that the Madison City Police Department is not an
“enterprise” within the meaning of Title IX of the
Organized Crime Control Act of 1970 (“Act”), I must
dissent. Even if this were not the case, I also believe that
the wholesale introduction of the Madison County
bg so prejudicial as to require reversal and a
new trial.
I
In determining that a police department is an
enterprise, my Brothers place great reliance on broad
language extracted from Title Fx and its statement of
findings and purposes, while ignoring narrower lan-
guage found in the legislative history and in the statute
itself. From such expansive phrases as “subvert and
corrupt our democratic processes” and “general welfare
of the nation” the majority concludes that “Congress
intended to frame a widely encompassing enactment
.. Which includes governmental entities in the
definition of “enterprise.”' In view of the majority’s
interpretation it seems odd that out of 2097 ages of
hearings, two congressional reports, and Title fx itself,
there are no explicit references to governmental units as
“enterprises” within Title IX. The more reasonable
interpretation is that Congress did not intend the term
“enterprise” to encompass government organizations.
Careful reading of the legislative history leads to no
other conclusion. It is replete with references to the
paramount purpose of Title IX: purging racketeering
influences from the commercial life of the Nation.? In the
' Several of the broad phrases which the majority opinion
depends on are taken from the Statement of indings and
Purposes, Pub. L. 91-452, § 1, 84 Stat. 922. and are in
reference to all eleven titles of the Organized Crime Control
Act. Such a broad introductory statement should not be used
as authority for interpreting one specific definition within one
of the eleven titles when much more relevant legislative
history is available.
? Measures Relating to Organized Crime: comping on S.30, et
al. Before the Subcommittee on Criminal Laws and Procedures,
(Footnote continued on following page)
— A-16 —
introduction to the Senate hearings on the Act, Senator
John McClellan, the bill’s principal sponsor, stated that
“(O}rganized crime’s most recent venture is the infiltra-
tion of legitimate business and unions.” Senate Hearings:
Organized Crime, supra, at p. 2 (emphasis added).
Further on, then Assistant Attorney General Will R.
Wilson made it clear that Title IX was “.. . designed to
attack the infiltration of legitimate business by organized
crime.” Jd. at 387 (emphasis added). The Hearings of the
House of Representatives are filled with similar com-
ments. Senator McClellan again testified that Title IX
“. .. Is designed to prevent organized criminals from
infiltrating legitimate commercial organizations.”3 House
Hearings: Organized Crime, supra, at p. 106 (emphasis
added). These numerous references to business organiza-
tions and unions demonstrate that Congress was con-
cerned with organized crime’s infiltration of commercial
entities, not of governmental agencies.
The legislative history also makes it clear that the
single most important reason for the enactment of Title
IX was the remedies it embodied. In the Senate
ee Assistant Attorney General Wilson stated
that:
While many violations of subsections (b) and (c) of
section 1962 may also constitute by their very
nature violations of the Hobbs Act, 18 U.S.C.
§ 1951, . . . the great advantage of these provisions
is that proof of criminal violation inflicts a heavy
penalty of financial loss by means of the forfeiture
provisions of section 1963.
Senate Hearings: Organized Crime, supra, at p. 388.
Indeed, the statement of findings and purpose of the Act
2 continued
8ist Cong., Ist Sess. (1969): Organized Crime Control:
Hearings on S.30 Before the Subcommittee No. 5 of the
Committee on the Judiciary, House of Representatives, 91st
rs 2d Sess. (1970); S. Rep. No. 91-617, 91st Cong., Ist Sess.
(1969); H.R. Rep. No. 91-1459, 91st Cong., 2d Sess. (1970).
* This same assertion also can be found on pages 170, 327
384, 433, 499. 579, and 687 of the Senate Hearings: Urcanized
Crime, supra.
ti
om Ani? =
indicated that “. . . the purpose of this act [is to] seek the
eradication of organized crime... by providing en-
hanced sanctions and new remedies ... .” Pub. L, No.
91-452, § 1, 84 Stat. 922. The Senate Report discussed
these remedies at greater length. It disclosed the
inadequacy of the present sanctions and the need for
new remedies which would divest organized criminals of
illegal or illegally obtained commercial interests. The
report concluded:
Title IX represents the committee’s careful efforts
to fashion new remedies to deal with the infiltration
of organized crime into legitimate organizations
operating in interstate commerce.
Senate Report: Organized Crime Control Act. supra, at
p. 83. The remedies provided by Title IX include the
criminal sanction of forfeiture of any interest in the
“enterprise” (section 1963) and the civil sanctions of
divestiture, restriction of activities, and dissolution or
reorganization of the “enterprise” (section 1964). These
remedies cannot be 5 omy to a public entity such as a
police department. Police officers have no oe ated
interest in a police department which can be forfeited
and, of course, a police department cannot be “dis-
solved.” The primacy of the remedial provisions of Title
IX and the total inapplicability of the provisions to govern-
mental entities corroborate what the legislative istory
demonstrates: Congress had no intention of including
governmental units within the ambit of the “enterprise”
provisions of Title IX.
Additionally, the majority ignores two canons of
Statutory interpretation in reaching its conclusion that a
_— department can be an enterprise under Title IX.
he first of these is the doctrine of ejusdem generis
which “... warns against expansively interpreting
broad language which immediately follows narrow and
specific terms.” United States v. Insco, 496 F.2d 204, 206
(Sth Cir. 1976); United States v. Altese, 542 F.2d 104, 107
(2d Cir. 1976) (Van Graafeiland, J., dissenting). “(This
maxim counsels courts to construe the broad in light of
the narrow.” United States v. Baranski, 484 F.2d 556.
566 (7th Cir. 1973). In this case the broad phrases used
— A-18 —
by the majority, eg., “any legal entity” and “any group
of individuals associated in fact although not a legal
entity,” are preceded by narrower terms such as
“legitimate business,” “labor unions,” “partnership,” and
“corporation.” See statement of findings and purpose (3),
supra, and 18 U.S.C. § 1641(4). These specific, narrow
terms used in Title IX are a “listing of the common legal
forms in which business entities and labor groups
fashion themselves to carry out their private function.”
United States v. Mandel, 415 F. Supp. 997, 1021 (D.C.
Md. 1976). The broad phrases used by the majority to
define “enterprise” must be construed to be limited to
the same type and class of entities described by the
narrower terms. A poe department would not fall
within the confines of this properly construed definition
of enterprise.
The majority’s second error of statutory interpretation
is basing its holding regarding a provision which
establishes criminal liability on Congress’ instruction
that the provisions of the Act be “liberally construed” to
achieve “their remedial purpose.” Supra, at p. 6. It is
unclear whether Congress intended its directive to apply
to those sections which establish criminal liability or
merely to the “remedial” provisions of Title IX. By
appiying this directive to the criminal liability pro-
visions, the majority has violated the due process
principle that “statutes creating crimes are to be strictly
construed ... .” United States v. Resnick, 299 U.S. 207,
209 (1936). See also Morissette vr. United States, 342 U.S.
246, 263 (1952); Smith v. United States, 360 U.S. 1,9
(1959). See generally Papachristou v. City of Jacksonville,
405 U.S. 156, 162 (1971); Grayned v. City of Rockford,
408 US. 104, 108 n. 3 (1972); Tribe, American
Constitutional Law, 718-19 (1978).
In sum, nothing in the legislative history indicates
that Congress intended governmental units to be in-
cluded in Title IX. This conclusion is supported by the
doctrine of ejusdem generis, the clear mandate of the
Supreme Court to narrowly interpret criminal statutes
¥y —A-19 —
and the fact that Title IX’s remedies are peculiar to
commercial entitites.‘
II
I also disagree with the majority’s conclusion that the
Madison County (“County”) evidence was properly ad-
mitted pursuant to Fed.R.Evid. 404(b).5 The quantum
of the evidence and the fact that two defendants had no
involvement with it render it so prejudicial as to
outweigh any probative value it might have had.
Further, when this evidence was admitted, it was
improperly introduced.
The majority chooses to characterize the volume of
this evidence as a “significant amount”: in fact, it is an
overwhelming amount. The County evidence consumed
virtually all of the first three days of the trial.6 The
Government's direct and redirect presentation of the
County evidence consumed 223 pages and involved
fifteen witnesses. The direct and redirect presentation of
the City evidence consumed only 151 transcript pages.
Further all or part of Government Exhibits 1, 1A, 1B, 3.
4, 5, 34, 36, and 38 could be classified as County
* The majority relies on United States v. Brown, 555 F.2d
407 (Sth Cir. 1977): and United States v. Frumenie. 563 F.2d
1083 (3d Cir. 1977), cert. denied sub nom. Millhouse v. United
States, 434 U.S. 1072 (1978). With all due respect to the Third
and Fifth Circuits, I believe these opinions are incorrect for
the reasons outlined above.
> Fed.R.Evid. 404(b), states:
Evidence of other crimes, wrongs, or acts is not admissi-
ble to 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, preparation, plan, knowledge, identity,
or absence of mistake or accident.
This evidence is not admissible unless its probative value
outweighs its prejudicial effect. United States v. Weidman.
572 F.2d 1199 (7th Cir. 1978).
° The total length of the trial transcript is 1040 pages. At the
end of the third day the transcript ran to 505 pages. All but
35 pages of the evidence presented by the Government during
the first three days was County evidence.
— A-20 —
evidence. More than half of the evidence .presented by
the Government was County evidence; yet, according to
the majority, all of this was necessary to show “the
planned design and modus operandi of appellant Grzy-
wacz.” Supra, at p. 10.
I do not dispute that evidence of similar acts of prior
misconduct may be used to show opportunity, prepara-
tion, plan, etc. Fed.R.Evid. 404(b). But evidence of this
sort is not admissible unless its probative value outweighs
its prejudicial effect. Weidman, supra, 572 F.2d at 1202-
03. Weighing the probative value of the evidence against
its prejudicial effect leads me to the conclusion that the
County evidence should not have been admitted.
Arguably its probative value is, as the majority stated,
its utility in showing design and mode of operation of
one of the three defendants.’ But there can be little
doubt about the potential prejudicial impact of the
evidence. Little demonstration is needed to conclude that
three days of County evidence would distract the jury’s
attention from the real issues in this case. Presented at
the very beginning of the trial, the County evidence
could serve only to create an aura of guilt against all
three defendants before the jury had heard any evidence
on the crime for which they actually were indicted.
This distracting evidence was prejudicial in its volume
alone. The trial court should have “limit[ed] the evidence
7 The elements of a conspiracy offense are: (1) an agreement
by two or more persons to combine efforts for an illegal
urpose and (2) an overt act in furtherance of the agreement.
elson v. United States, 415 F.2d 483 (5th Cir. 1969), cert.
denied, 396 U.S. 1060 (1970). The Government concedes that
the County evidence is not related to the conspiracy and was
in no way connected to two of the three defendants; it is not
evidence of an agreement nor does it constitute an overt act in
furtherance of the conspiracy. It is evidence of actions by one
of the defendants which is only indirectly relevant in proving
the overt act. Thus its probative value is minimal and when
probative value is weighed agninst prejudicial effect as
required by Weidman, supra, 572 F.2d at 1202-03: the limited
relevancy of the County evidence could hardly tip the scales in
favor of admitting the evidence.
eee
— A-21 —
to the quantity that [was] necessary to the purpose for
which it [was] admitted.” United States v. Ostrowsky,
501 F.2d 318, 373 (7th Cir. 1974). Three days of evidence
were not necessary to demonstrate Grzywacz’ mode of
operation and plan, especially where the evidence was
unrelated to the indictment and was likely to create a
bias against the defendants in the minds of the jurors.
Further “{iJt is generally recognized that there can be
no complete assurance that the jury ever under the best
of instructions will strictly confine the use of this kind of
evidence to the issue of [planned design and modus
operandi] and wholly put out of their minds the implica-
tion that the accused, having committed the prior
similar criminal act, probably committed the one with
which. he is actually charged.” United States v. Byrd,
352 F.2d 570, 574 (2d Cir. 1965).
The strongest reason for excluding the evidence,
however, was its potential prejudicial effect on Goclan
and Krieshok. Although the jury was admonished not to
consider the evidence against them, it is unlikely that
this instruction was effective in removing the prejudice
since the City of Madison evidence, in conjunction with
the joint trial of all three defendants, tended to establish
a link between Grzywacz and Goclan and Krieshok. The
power of guilt by association is not easy to dispel: the
jury may well have credited Goclan and Krieshok with
the acts of Grzywacz. I fail to see how this dangerous
risk is outweighed by the need for showing one defen-
dant’s modus operandi.
The County evidence also was introduced improperly;
no contemporaneous limiting instructions were given by
the court. See generally Lutwak v. United States, 344
U.S. 604 (1953). The majority determined that this argu-
ment was meritless because the appellants did not re-
quest such an instruction. This brief dismissal of
appellants’ contention hardly seems fair given that the
Government introduced the County evidence under a
rationale entirely distinct from the theory upon which
its admissibility finally was weighed. When the County
evidence initially was presented, the Government in-
sisted that it pertained to an overall substantive con-
— A-22 —
spiracy. Only after all the evidence had been presented
did the Government confess that the County evidence
was not related to the conspiracy. Faced with a motion
for mistrial, the Government tendered for the first time
its theory that the evidence was admissible to show plan,
design, etc.
It appears as if the procedure employed by the Govern-
ment was a pretext designed to gain the admission of
the County evidence; the prosecution must have known
there was insufficient evidence to connect the County
evidence to the City conspiracy. In conference the
Government stated that “there was at least an inference
that could be drawn that (the County evidence] was part
of the conspiracy.” (Tr. p. 890.) Without any fact tying
the County evidence to the conspiracy this inference is
not permissible. Unfortunately, it is not unlikely that
this inference took shape behind the closed doors of the
jury room.
Because of the manner in which the County evidence
was introduced, the volume in which it was received and
the fact that it was hardly probative and highly prej-
udicial, I believe that the admission of the evidence was
erroneous, and separately warrants reversal.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
— A-23 —
APPENDIX B
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
December 10, 1979
Before
Hon. Luther M. Swygert, Circuit Judge
Hon. Walter P. Gewin, Senior Circuit Judge *
Hon. Robert A. Sprecher, Circuit Judge
~
ae
United States of America,
Plaintiff-Appellee, Appeal from the United
Nos. 78-2301, 78-2302, ve. States District Court for
78-2303 the Southern District of
- Illinois, Alton Division
Ronald Grzywacz, Edward
Goclan, and Richard No. 78-Cr-50003
Krieshok, Judge J. Waldo Ackerman
Defendants-Appellees. |
On consideration of the petition for rehearing and suggestion
for rehearing in banc filed in the above-entitled cause by counsel
for the defendants-appellants, no judge in active service has re-
quested a vote thereon, and a majority of the judges on the
original panel** has voted to deny a rehearing. Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing be,
and the same is hereby, DENIED.
* Honorable Walter P. Gewin, Senior Circuit Judge for the Fifth
Circuit United States Court of Appeals is sitting by designation.
** Judge Swygert voted to grant the petition.
— = oe
APPENDIX C
SUPREME COURT OF THE UNITED STATES
No. A-544
Ronald Grzywacz,
Et Al.,
Petitioners,
Vv.
United States
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the application of counsel for
petitioner(s).
IT IS ORDERED that the time for filing a petition for writ of
certiorari in the above-entitled cause be, and the same is hereby,
extended to and including February 8, i980.
/s/ John Paul Stevens
Associate Justice of the Supreme
Court of the United States
Dated this 26th
day of December, 1979
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.