Petition for Writ of Certiorari — Blackwood v. United States

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IN THE SEP 6 1985

Supreme Court of the United States.”

FALL TERM 1985

IRA BLACK WOOD

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WARREN LUPEL

LUPEL AND AMARI

Two North La Salle Street

Chicago, Illinois 60602

(312) 346-8550

Attorney for Petitioner

Of Counsel:

WARREN LUPEL

JAMES A. MurpuHy (Senior Law Student)

Pandick Midwest, Inc., Chicago © (312) 733-6000 Xd

i

QUESTIONS PRESENTED FOR REVIEW

I. Is a conviction pursuant to the Hobbs Act appropriate

wherein the evidence reveals that the victim relied on the

defendant’s personal ability, rather than on the official power of

the office held by the defendant?

II. Do the Federal Rules of Evidence allow hearsay

evidence to be admitted when its purpose is to show a third

party’s state of mind?

PARTIES TO THE PROCEEDING

Petitioner: Ira Blackwood

Respondent: United States of America

iil

TABLE OF CONTENTS

PAGE

Questions Presented for REViOW .......ccccessecsecsecsessessesecseeees 1

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I. The Opinion of the Court of Appeals for the

Seventh Circuit as to What Constitutes “Under

Color of Authority” Within the Hobbs Act Is in

Conflict With Opinions in the Second, Third and

NEE IES Teo ae Fe TE RTS 5

II. In Affirming the Ruling of the Lower Court

Which Admitted Evidence of Prior Bad Acts, the

Seventh Circuit so Far Departed from the Statu-

tory Rules of Evidence and Cases Which Have

Interpreted Those Rules as to Invoke the Super-

WRROTY POWTER OF IS COUT on. ose... .scscccccsescosecseseess 10

iV

TABLE OF AUTHORITIES

PAGE

Michaelson v. United States, 335 U.S. 469, 475,

A a ci cicspnccdenadiiccdaciihstadantiatiaeilesah abit tlie teikon 10

United States v. Beechum, 582 F.2d 898 (Sth Cir.

1978), cert. denied, 440 U.S. 920 (1979) 0... 11

United States v. Brown, 540 F.2d 364 (8th Cir.

PE Risch coctnc cic cecresckaeteuaneadahdndigsshiohe-sccaihastimildintetiees 7,8

United States v. Dixon, 596 F.2d i78 (7th Cir.

52a Wcnilatinciukcshcinrcatahiepticrecibitehaiipicnbinbescecalidibiieanilephaiaiinisioa 12

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

1979), cert. denied, 442 U.S. 946 (1979)... 1]

United States v. Drury, 582 F.2d 1181 (8th Cir.

DFE Pai bitindctinciceibiahctinnield dacahgeh hdnsciubennchiapalttaadadinad 12

United States v. Fosher, 568 F.2d 207 (ist Cir.

RT Pasidncitahiciatnnsdibiihcdcasestlbindabniiakibt beads 11

United States v. Grabiec, 563 F.2d 313 (7th Cir.

OTT Vidic ineskiittichinetbchcacthaantlhciniasbhlemib tata 10

United States v. Herrell, 588 F.2d 711 (9th Cir.

1978), cert. denied, 440 U.S. 964 (1979) 0... 12

United States v. Jackson, 588 F.2d 1046 (5th Cir.

1979), cert. denied, 442 U.S. 941 (1979) ............. 10

United States v. Mazzei, 521 F.2d 639 (3rd Cir.

1975), cert. denied, 423 U.S. 1014 (1975)........... 5,8

United States v. O’Malley, 707 F2d 1240 (11th

Ca SD ceca etored al encased cas eahiccnabacasaseunconnns 10

United States v. Rabbit, 583 F.2d 1014 (8th Cir.

1978), cert. denied, 439 U.S. 1049 ( 1978)........... 8

United States v. Scacchetti, 668 F.2d 643 (2d Cir.

1982), cert. denied, 457 U.S. 1132 (1982)........... 9

United States v. Westbo, 576 F.2d 285 (10th Cir.

DFE Micienciciiiaisniscccsesacicavacedlsigastiaracabebuatmdeensatnaigsaniie’ 10

Raa a i eS aig? a Slt REA IA RS

Vv

PAGE

STATUTES

FRR He Oe BOSC Yin ccicdviicicksicscsscsdssiaccecs :

Federal Rule of Evidence 403 ...........................0.0000- 3, 10

Federal Rule of Evidence 404( b) oo... eee oe

Federal Rule of Evidence 802 .......................ccccccceees 3, 10

IN THE

Supreme Court of the United States

FALL TERM 1985

IRA BLACK WOOD

v.

UNITED STATES OF AMERICA

On WaRiT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The petitioner, IRA BLACKWOOD, prays that a writ of

certiorari issue to review judgment and opinion of the United

States Court of Appeals for the Seventh Circuit in United States

of America v. Ira Blackwood, No. 84-2852 decided on July 11,

1985.

2

OPINIONS OF LOWER COURT

The opinion of the Court of Appeals, net yet reported,

appears in Appendix A, attached hereto.

JURISDICTION

The Court of Appeals for the Seventh Circuit accepted

jurisdiction pursuant to 28 U.S.C. § 1291.

The judgment of the Court of Appeals for the Seventh

Circuit was entered on July 11, 1985. This petition for certiorari

was filed within sixty (60) days of that date. The Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

3

STATUTES INVOLVED

HOBBS ACT 18 U.S.C. 1951

(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 violation 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

(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.

FEDERAL RULE OF EVIDENCE 403

Although relevant, evidence may be excluded if its proba-

tive value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

FEDERAL RULE OF EVIDENCE 404(b)

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 admissible for

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

preparation, plan, knowledge, identity, or absence of mistake or

accident.

FEDERAL RULE OF EVIDENCE 802

Hearsay is not admissible except as provided by these rules

or by other rules prescribed by the Supreme Court pursuant to

statutory authority or Act of Congress.

4

STATEMENT OF FACTS

Petitioner, IRA BLACK WOOD, a Chicago police officer

since 1957, became Secretary of the Traffic Court Unit of the

Chicago Police Department in 1974. His duties as Secretary

related to the police officers assigned to Traffic Court, such as

bookkeeping, medical and attendance records, overtime pay,

etc.

Some time thereafter and probably on or about September

4, 1981 (Record at 4), he became a target in a Federal

Government probe which came to be known as Operation

Greylord. This investigation ultimately led to the naming of

IRA BLACKWOOD in an eleven count indictment in Decem-

ber, 1983. He is alleged to have solicited and received various

bribes to affect the disposition of cases which occurred in

various courtrooms and in various locales throughout the Cook

County Criminal Justice System.

Each of the bribes alleged were payments from David

Victor Ries, an FBI agent who had assumed the role of a

private defense attorney (Record at 8) to the defendant, IRA

BLACK WOOD, for the purpose of affecting the disposition of

eleven specific cases, as charged in the indictment.

IRA BLACKWOOD was convicted on all counts and an

appeal was made to the United States Court of Appeals,

Seventh Circuit. The Court of Appeals affirmed the conviction.

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ARGUMENT

I. The Opinion of the Court of Appeals for the Seventh

Circuit as to What Constitutes “Under Color of

Authority” Within the Hobbs Act Is in Conflict With

Opinions in the Second, Third and Eighth Circuits.

The Hobbs Act criminalizes the use of “extortion” which

impedes commerce and defines “extortion” as “the obtaining of

property from another, with his consent induced by the wrong-

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

color of official nght.” 18 U.S.C. $1951. It is petitioner’s

contention that the charges against him must fail as a matter of

law because the prosecution failed to prove that the petitioner

was acting under “color of official right.”

It is well recognized that an individual need not have

actual authority to deliver his promise so long as the victim of

the extortion believed that the defendant had the official

authority to deliver on his promise. United States v. Mazzei,

521 F.2d 639, 643 (3rd Cir. 1975), cert. denied, 423 U.S. 1014

(1975). In the case at Bar, it is clear that the petitioner did not

have actual authority to affect the outcome of cases in the traffic

courts, U.S. v. Blackwood (Slip Op. p4a). Thus, what the

prosecution set out to do was to prove that agent Ries reason-

ably believed that petitioner had the official authority to affect

the outcome of cases in the Cook County Court system.

Though petitioner was convicted on all seven counts under

the Hobbs Act, it would have been as a matter of law,

unreasonable for any person in Ries’ position to believe that the

petitioner had the official power to affect the outcome of any

case within the court system.

First, the only evidence produced at trial went to show that

the petitioner had established contacts with Judges who had

worked in the same building as did petitioner, and that it was

because of these contacts that he had influence over the

outcome of criminal cases throughout the criminal courts.

6

There was no evidence introduced to support a conclusion that

Ries could have believed that petitioner had the official power

to affect the disposition of any criminal case. Second, given

Ries’ position as an FBI agent, it is inconceivable that Ries

could have believed that petitioner had the official power to

affect the disposition of cases. And, even assuming that Ries’

special knowledge as an FBI agent should not be looked at, it

must be conceded that the reasonableness of the victim’s belief

should then be based upon the role which Ries was assu-

ming—a lawyer. And, given the special knowledge of a lawyer,

it is again inconceivable that Ries, in the role of a lawyer, could

have believed that petitioner had the official power to affect the

disposition of any case. Finally, it was unreasonable to find

that Ries could have believed that petitioner had the official

power to affect criminal cases because there was evidence

entered that showed that Ries knew that petitioner’s influence

did not extend to all Judges. (Record at 161-162). Thus, Ries

was On notice that petitioner’s ability to influence cases did not

derive from his official power, for if it had, it would not have

mattered before which Judge a case came up. Thus, as a matter

of law, it was unreasonable to find that Ries could have

believed that petitioner had the official power to affect the

disposition of any cases within the traffic court.

Yet despite the fact that it was inconceivable that Ries

could have believed that the petitioner had the power to affect

the disposition of cases, the petitioner was convicted on all

seven counts which charged him with violating the Hobbs Act.

In affirming the holding of the District Court, the Seventh

Circuit did not hold that the evidence produced was sufficient to

uphold a finding that Reis believed that the petitioner had the

official power to deliver that which petitioner had promised.

Rather, the Seventh Circuit held that there had been sufficient

evidence to support a conclusion that Ries reasonably believed

that the petitioner’s “power to affect judicial determinations

was due—at least in part—to his official position as a patrolman

n phanet

7

assigned to the Traffic Court Unit who worked as a liaison

between the court and the police department.”” (emphasis

added) (Slip op. at 5). Moreover, it is evident from the

Seventh Circuit’s opinion that what the Seventh Circuit found

to be sufficient was a belief by Ries that petitioner had the

power to affect decisions within the entire criminal court of

Cook County because of contacts the petitioner had made while

working in the traffic court. After reviewing a portion of Ries’

testimony which went to show that the petitioner had made

contacts with Judges while working in the traffic court and that

by way of these contacts petitioner could influence the outcome

of cases, the Seventh Circuit stated that:

“[b]jased on the above evidence, a jury could have found

that Agent Ries reasonably believed that appellant had the

power, through his official position and the connections

and contacts it gave him to the personnel, workings, and

records of the Circuit Court to influence the judicial

decisions in the cases for which appellant received bribes.”

Thus, the Seventh Circuit concluded that it is sufficient that

the perceived power of the defendant need only be in some way

connected with his official position. (Slip op. at 7). However,

such a holding is in conflict with decisions in the Second, Third

and Eighth Circuits.

It is evident from opinions in those circuits that they

require a showing that the victim believed that the defendant

had official power to deliver that which he had promised. In

sharp contrast, the Seventh Circuit has found it sufficient that

the victim believed that the defendant had power “due to” his

Official position.

On two occasions the Eighth Circuit has made it evident

that it is a victim’s perception of the defendant’s official power

that should be focused on. In United States v. Brown, 540 F.2d

364 (8th Cir. 1976), the Eighth Circuit held that proof of.

extortion “under color of official right”’ required that the victim

had a “reasonable belief that the defendant had official power

in the capacity through which the extortion was performed.”

(emphasis added) /d. at 372. And again, in United States v.

Rabbit, 583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 US.

1049 (1978), the Eighth Circuit made it evident that in order

for an individual to be convicted under the Hobbs Act, the

victim had to believe that it was within the defendant’s official

power to deliver that which the defendant had promised. In

Rabbit the Court found that where the victim knew that the

defendant did not have the power to award contracts in his

“official capacity” (emphasis added), the Government failed to

prove that the victim entertained a reasonable belief that the

defendant controlled the awarding of contracts. Jd. at 1028.*

It is evident from Rabbit that even though it was believed

that the defendant might have.had influence over the awarding

of contracts, that belief, that a defendant had influence, was not

sufficient. Rather, what was required was the belief that it was

within the defendant’s official authority tc affect the disposition

of that which had been promised.

Thus, the Eighth Circuit in both Brown and Rabbit has

made it evident that it requires a showing that the victim

believed that the defendant had the official power to deliver on

that which the defendant had promised and not merely any

power to deliver on that which he had promised.

Similarly the Third Circuit, in United States v. Mazzei,

supra, made it clear that it is the perception of official power

which is crucial to a conviction under the Hobbs Act. In

Mazzei, the Third Circuit stated that it was sufficient for the

Hobbs Act that the victim had a reasonable belief that “‘the

State system so operated that the power in fact of defendant’s

office included the effective authority” to deliver that which the

defendant had promised. (emphasis added) 521 F.2d at 643.

* Similarly if Ries had knowledge either as an FBI agent or as a

lawyer that petitioner did not have the official power to affect the

disposition of cases in the traffic court, the defendant could not possess

apparent power.

Finally, the Second Circuit has held that the essential

element of the Hobbs Act was “the use of the office through

acts unrelated to the duties of the public official but which could

only be undertaken because of his official position.” United

States v. Scacchetti, 668 F.2d 643 (2nd Cir. 1982), cert. denied,

457 U.S. 1132 (1982). While this phrasing differs from Brown,

Rabbit and Mazzei, it is evident that it conflicts with the result

in the present case, and that given the facts in the present case,

petitioner could not have been convicted of violating the Hobbs

Act. In the present case, any individual that worked in the

traffic court (e.g. janitors, court reporters and lawyers) could

have made the same contacts that petitioner had made and thus

had the same power. Thus, under Scacchetti, the petitioner

would not have been convicted because the acts which BLACK-

WOOD performed were not acts which he could perform

because of his official position, but rather because of his

employment in a Government building.

In summation, it is clear the decision of the Seventh Circuit

is in sharp contrast with decisions in the Second, Third and

Eighth Circuits. While those Circuits require a showing that the

victim believed that the defendant had official power to deliver

that which he had promised, the Seventh Circuit has greatly

reduced the requirement for conviction under the Hobbs Act.

Under the Seventh Circuit’s holding the prosecution only needs

to show that the victim believed that the defendant had power

to deliver on his promise and that that power was related to the

defendant’s official position no matter how distant that relation.

In addition to the need for a clear resolution between the

conflicting interpretation of the Hobbs Act, this case is impor-

tant because the holding of the Seventh Circuit vastly increases

the scope of the Hobbs Act. Hence, the impact of the Seventh

Circuit’s opinion has the potential for vastly increasing the

breadth of Federal jurisdiction in cases involving “official”

corruption.

10

Il. In Affirming the Ruling of the Lower Court Which

Admitted Evidence of Prior Bad Acts, the Seventh

Circuit so Far Departed From the Statutory Rules of

Evidence and Cases Which have Interpreted Those

Rules as to Invoke the Supervisory Powers of This

Court.

It is well established that as a general rule, evidence of

prior illegal activities or wrongdoing is inadmissible. Eg.

United States v. Jackson, 588 F.2d 1046 (Sth Cir. 1979), cert.

denied, 442 U.S. 941 (1979); United States v. Westbo, 576 F.2d

285 (10th Cir. 1978): United States v. O’Malley, 707 F.2d 1240

(11th Cir. 1983); United States v. Grabiec, 563 F.2d 313 (7th

Cir. 1977); see also 28 U.S.C. Rule 403 and 28 U.S.C. Rule

403(b). The reason for this general rule is that evidence of

prior illegal activities or wrongdoings is highly prejudicial. See

Michaelson v. United States, 335 U.S. 469, 475, 476 (1948).

Therefore, evidence of prior bad acts can only be admitted

where the probative value of such evidence substantially out-

weighs its prejudice to the defendant. 28 U.S.C. Rule 403.

In the present case, both the trial court and the Court of

Appeals (Seventh Circuit) have ignored the above stated

principles. The trial court admitted evidence of prior bad acts

(Record at 537) that was highly prejudicial, even though it had

little if any, probative value. First, the evidence that was

admitted was hearsay. It contradicts basic rules of evidence to

find that the evidence in question had probative value since the

evidence should have been excluded pursuant to Federal Rule

of Evidence 802, 28 U.S.C. Rule 802, which prohibits the

admission of hearsay. Nor would it be possible to find an

exception to the hearsay rule that would allow this evidence to

be admitted.

Ostensibly, the trial court allowed the evidence in to show

“people’s state of mind.” (Record at 537). However, since

only Ries’ state of mind was relevant to the action, Lockwood’s

11

testimony had to have been admitted to show Ries’ state of

mind (had it been offered to show anyone else’s state of mind it

should have been excluded as irrelevant). While there is a state

of mind exception under Rule 803(3), that exception is limited

to admitting hearsay to show the state of mind of the declarant.

28 U.S.C. Rule 803(b). There is no exception which allows

hearsay to be admitted to show that state of mind of a third

person that is neither the witness, nor the declarant.

Furthermore, even if such evidence had not been hearsay it

should not have been admitted because its probative value was

deminimus. It was deminimus because there was other evi-

dence that was sufficient to show that Ries believed that the

petitioner had some sort of power to affect the disposition of

cases within the criminal courts, as the Court of Appeals noted

in its opinion; Agent Ries’ belief was explored in detail in 169

pages of direct testimony. (Slip op. at p. 5). Thus, the need for

the prejudicial evidence admitted was minimal indeed.

By allowing the evidence in, both the District Court and

the Court of Appeals have ignored the principles behind Rule

404(b). The Advisory note to Rule 404(b) states that “[t]he

determination must be made whether the danger of undue

prejudice outweighs the probative value of the evidence in view

of the availability of other means of proof. . .” Advisory note to

28 U.S.C. Rule 404(b). Similarly, cases in other Circuits and

the Seventh Circuit itself, have indicated the usefulness of

assessing the Government’s need for the evidence. United

States v. Dolliole, 597 F.2d 102 (7th Cir. 1979), cert. denied,

442 U.S. 946 (1979); United States v. Fosher, 568 F2.d 207,

213 (lst Cir. 1978); United States v. Beechum, 582 F.2d 898,

914 (Sth Cir. 1978), cert. denied, 440 U.S. 920 (1979).

Finally, the evidence as to prior bad acts was anomalous to

reality. The evidence admitted directly inferred that criminal

charges had been brought against the petitioner when, in fact,

no such charges ever existed. Thus the evidence was grievously

12

unjust in that it allowed the jury to hear of criminal charges,

which were in fact never brought, and it reduced the probative

value to naught, while simultaneously increasing its prejudicial

effect. The lack of probative value of the evidence in question is

evidenced by the fact that the admittance of prior bad acts into

evidence has as a rule been conditioned on such evidence being

clear and convincing. United States v. Dixon, 596 F.2d 178

(7th Cir 1979); United States v. Drury, 582 F.2d 1181, 1184,

N.6 (8th Cir. 1978); United States v. Herrell, 588 F.2d 711 (9th

Cir. 1978), cert. denied, 440 U.S. 964 (1979). Because the

evidence was in fact erroneous, it was neither clear nor

convincing. Thus, the Seventh Circuit has put itself in conflict

with other Circuits and has so far departed from the statutory

rules of evidence and cases which have interpreted those rules,

as to invoke the supervisory powers of this Court.

13

PRAYER

Petitioner prays that this Honorable Court grant his peti-

tion for issuance of a writ of certiorari.

Respectfully submitted,

IRA BLACKWOOD

By

WARREN LUPEL

Attorney for Petitioner

Of Counsel:

WARREN LUPEL

LUPEL AND AMARI

Two North LaSalle Street

Chicago, Illinois 60602

(312) 346-8550

la

in the

United States Court of Apprals

For the Seventh Cirrnit

No. 84-2852

UNITED STATES OF AMERICA,

Appellee,

IRA BLACKWOOD,

Defendant- Appellant.

Aseea from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 83 CR 977—James B. Moran, District Judge.

ARGUED APRIL 24, 1985—DECcIDED JULY 11, 1985

Before SCHBACH and POSNER, Circuit Judges, and

TIMBERS, Senior Circuit Judge.*

TIMBERS, Circuit Judge. On December 14, 1983, Ira

Blackwood (appellant) was indicted by a federal grand

jury and charged with one count of racketeering (Count

One) in violation of the Racketeering Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c)

(1982), and ten counts of extortion (Counts Two through

Eleven) in violation of the Hobbs Act, 18 U.S.C. § 1951

(1982). On July 2, 1984, the United States District Court

for the Northern District of Illinois, James B. Moran,

District Judge, denied appellant’s motion to dismiss the

indictment. On August 10, 1984, the court entered judg-

ment on a jury verdict finding appellant guilty on all

* The Honorable William H. Timbers, Senior Circuit Judge of

the United States Court of Appeals for the Second Circuit, is

sitting by designation.

2a

No. 84-2852

eleven counts. Appellant was sentenced on October 18,

1984 to two concurrent terms of imprisonment of seven

years each on Counts One and Two, to be followed by nine

concurrent terms of probation of five years each on Counts

Three through Eleven. The court ordered a stay of

execution pending appeal.

I.

Appellant became a police officer with the Chicago

Police Department in 1957. He became secretary of the

Department’s Traffic Court Unit in 1974. His office was in

the Cook County Traffic Court building until February

1983 when he became a court sergeant in one of the

branch courts of the Cook County Circuit Court.

Appellant’s indictment stemmed from the Federal

Bureau of Investigation undercover investigation known

as Operation Greylord which concerned alleged corruption

in the Cook County Circuit Court. Appellant was indicted

for soliciting and receiving bribes between December 1981

and May 1983 from FBI Agent David Ries to influence the

disposition of cases pending in various branch courts of

the Cook County Circuit Court in violation of 18 U.S.C.

§§ 1951 and 1962(c).

In September 1981, appellant was introduced to

Agent Ries by former Judge Brocton Lockwood who had

contacted the United States Department of Justice about

criminal violations he believed were occurring in the

Traffic Court building. Judge Lockwood agreed to cooper-

ate with the investigation. He posed as a corruptible

judge in the Cook County Circuit Court. Agent Ries posed

as a private defense attorney new to the City of Chicago

who was looking for a contact to help him in his practice of

law in the Cook County court system which we have

described above. Agent Ries paid appellant a total of

$4400 to influence judicial decisions in the ten circuit court

3a

No. 84-2852

misdemeanor cases! which formed the basis of the in-

dictment.

On appeal, appellant claims that his indictment and

conviction for racketeering and extortion cannot stand as

a matter of law; that the court committed reversible error

in its evidentiary rulings; and that the government vio-

lated his Fifth Amendment privilege against self-

incrimination by commenting on his failure to testify. We

shall consider each of these claims seriatim.

Il.

(A) HOBBS ACT :

The Hobbs Act, 18 U.S.C. § 1951, proscribes extortion

which affects interstate commerce. The Act defines ex-

tortion as “the obtaining of property from another, with

his consent, induced... under color of official right.” 18

U.S.C. § 1951(b)(2). A public official’s use of his office to

obtain money not due him or his office is “the crux of the

statutory requirement of ‘under color of official right’ ”.

United States v. Braasch, 505 F.2d 189, 151 (7th Cir. 1974),

cert. denied, 421 U.S. 910 (1975).

“It matters not whether the public official induces

payments to perform his duties or not to perform his

duties, or even... to perform or not to perform acts

unrelated to his duties which can only be undertaken

because of his official position. So long as the motiva-

tion for the payment focuses on the recipient’s office,

the conduct falls within the ambit of 18 U.S.C.

§ 1951.” Id.

In United States v. Rindone, 631 F.2d 491 (7th Cir. 1980),

we held that

“De jure ability to perform the promised act need not

be present; sufficient is ‘a reasonable belief that the

' Nine of the cases were contrived by the FBI; only one was

based on events which actually took place.

4a

No. 84-2852

state system so operated that the power in fact of the

defendant’s office included the effective authority’ to

fulfill the promise.” Jd. at 495, quoting Untied States v.

Mazzei, 521 F.2d 639, 643 (3rd Cir.), cert. denied, 423

U.S. 1014 (1975).

Appellant contends that the court erred in denying

his motion to dismiss Counts Two through Eleven which

charged him with violating the Hobbs Act. He contends

that those counts did not allege extortion “under color of

official right”, since as a matter of law it is unreasonable

for the victim of an extortion to believe that a police

officer assigned to the Traffic Court Unit of the Chicago

Police Department, by virtue of his official position, has

the power to affect the disposition of cases being tried in

the Circuit Court of Cook County. We cannot say that as a

matter of law appellant’s victim could not reasonably have

believed that appellant’s official position enabled him to

keep his promise to influence judicial decisions by passing

bribes on to judges in the Traffic Court and to judges

Agent Ries believed had previously worked in the Traffic

Court. United States v. Kaye, 586 F. Supp. 1395, 1405 (N.D.

Ill. 1984). We hold that the court correctly denied appel-

lant’s motion to dismiss the Hobbs Act counts.

Appellant also contends that the evidence adduced at

trial was insufficient to sustain the conviction on Counts

Two through Eleven, since the evidence failed to establish

that Agent Ries, the victim of the extortion, reasonably

believed that appellant, by virtue of his official position,

could influence the judicial disposition of cases heard in the

Traffic Court and other local courts. We must view the

evidence in the light most favorable to the government,

United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974),

and affirm the conviction if there was some competent and

substantial evidence before the jury which fairly tended to

smile ~ verdict. Abrams v. United States, 250 U.S. 616,

19 (1919).

Clearly, appellant’s official position did not encompass

the power to render judicial decisions. There was, how-

ever, competent and substantial evidence before the jury

Sa

No. 84-2852

from which it could have concluded that Agent Ries

reasonably believed that appellant’s power to affect judi-

cial determinations was due—at least in part—to his

official position as a patrolman assigned to the Traffic

Court Unit who worked as a liaison between the court and

the police department.

In his opening statement at trial, appellant’s counsel

made clear that appellant’s defense to the Hobbs Act

charges was that “no person with any semblance of

reasonableness could have believed that [appellant] pos-

sessed any type of clout, a patrolman on the Chicago police

force.” The reasonableness of Agent Ries’ belief was

explored in detail in 169 pages of direct testimony by

Agent Ries, followed by 302 pages of cross-examination.

Ries testified regarding his belief about the power of

appellant’s position, his conversations with appellant, his

observations of appellant, and appellant’s independent

knowledge of the court proceedings in question. Approxi-

mately 400 pages of transcript from taped conversations

with appellant were reproduced for the jury.

Agent Ries testified that he saw appellant at various

locations in the Traffic Court building—appellant’s office,

the hallways of the first three floors, various courtrooms,

the Corporation Counsel’s office, and the Cook County

Circuit Court Clerk’s office. Agent Ries observed appel-

lant talking to policemen, various members of the public,

traffic court defendants, court clerks, court adminis-

trators, bailiffs, private defense attorneys, attorneys on

the staff of the Corporation Counsel, assistant state’s

attorneys for Cook County, and Traffic Court judges.

Agent Ries further testified that each time he paid

appellant money in regard to a particular case, his state of

mind was

“that Officer Blackwood, by virtue of his position in

the traffic court section and as a court sergeant, and

by virtue of the knowledge and experience gained

from that position, and by virtue of the people he

knew, the judges, other court personnel that he knew,

6a

No. 84-2852

that he had the ability to influence the disposition of

cases heard in Cook County Circuit Court.

My state of mind during this time period was

based on several things, one of which was my general

conversations with Ira, his demeanor, the tone of

voice, his inflections, how he handled himself, how he

carried himself.

Likewise, it was based on the people with whom I

had seen him speaking, the places that I had seen him,

the people about whom he spoke and the way he spoke

about them.

It was also based on the general structure of our

dealings in these cases where I would give him the

information about the cases, and he would meticu-

lously copy it down, and that later on he would get

back to me telling me whether he could do anything

on the case and what it was going to cost me.

Likewise, that if there was a specific judge that

was going to be hearing a case that he could not

influence, he would, likewise, tell me that.

It was also based on his ability to know things

about these cases that I did not tell him, so that it

indicated to me that he had an independent source of

knowledge about these things.

,On the 11 cases on which we had prior arrange-

ments on, 10 of those cases were resolved in a favor-

able manner.

The two judges that I talked to in regards to

these cases, both of them acknowledged some prior

contact about these cases.

In the case of [Talmas] Benham, Officer Black-

wood was able to produce tangible results for me

without the defendant ever showing up in court,

7a

No. 84-2852

without me showing up in court. I received a bond slip

through the Circuit Court of Cook County.

Likewise, when the government did have [a]

wiretap on his phones, Officer Blackwood did know

about that. He told me about that several times.”

On cross-examination, Agent Ries testified that he

believed that appellant had knowledge of the type of

judge that would serve in the particular courtrooms and

that appellant was able to influence a decision with some

of the judges who often sat there.

Agent Ries testified that appellant told him on April

12, 1982 that he took “care of parking tickets for several

judges, and that he knew several judges from the time

that he had been in traffic court as they passed through

there.” Appellant stated on February 17, 1983 in a tape

recorded conversation with Agent Ries that, if a judge

had a problem, he would see appellant, that the judges

came to him “for tickets, or for any car fixin’, or anything

they needed”, that “that’s how I got in with all the

judges.... [G]Jo see Ira. That was the name of the

game.... SoI got in with every judge....”

Based on the above evidence, a jury could have found

that Agent Ries reasonably believed that appellant had

the power, through his official position and the connections

and contacts it gave him to the personnel, workings, and

records of the Circuit Court, to influence the judicial

decisions in the cases for which appellant received bribes.

We hold that there is no basis for disturbing the jury’s

resolution of this issue.

Appellant’s final contention regarding the Hobbs Act

counts is that the court erred in failing to instruct the jury

that Agent Ries’ belief that appellant, by virtue of his

official position, had the power to influence judicial deci-

sions must have been reasonable “given Reis’ [sic] posi-

tion, his knowledge and experience”. Since appellant

never requested the court t» give such an instruction and

failed to object to the instructions given on the ground

8a

No. 84-2852

now raised on appeal, he may not assign error in this

respect except on the ground of plain error. Fed. R. Crim.

P. 30, 52(b).

The court gave the following instructions to the jury

concerning the element of “under color of official right”:

“Extortion under color of official right means the

obtaining of money or property by a public employee

through the wrongful use of his position where the

money or property obtained was not lawfully due and

owing to him or to the position which he held. It

includes the misuse of one’s position of employment in

order to induce payments. The government must

prove beyond a reasonable doubt that it was reason-

able for the persons described in Counts II through XI

to believe that the defendant had power to obtain

favorable results in the FBl-created cases.

I further instruct you that in considering wheth-

er extortion under color of official right was com-

mitted, it does not matter who induced the payments.

If the public employee knows that the motivation of

the alleged victim named in the indictment focused

on the employee’s public position and that the money

or property that was allegedly paid by the victim was

not lawfully due and owing to the employee or to the

office which he held, that is sufficient to satisfy the

requirements of the law of extortion under color of

official right so long as I have said the government

also proved that it was reasonable for the persons

described in counts II through XI to believe that the

defendant had the power to obtain favorable results

in the FBl-created cases.

Extortion under color of specific [sic] right does

not require proof of specific acts by an employee

demonstrating force, threat or use of fear so long as

the alleged victim consented because of the office of

[sic] position held by the employee to whom the

alleged victim paid the money or property.

ae So ee Se a ea

9a

No. 84-2852

The public employee need not control the result

promised so long as the extorted party possesses a

reasonable belief in the employee’s power to obtain

the results.”

The court also gave an interim instruction to the jury

during the cross-examination of Agent Ries that the

government must

“prove beyond a reasonable doubt that Agent Ries in

paying money reasonably believed that the defend-

ant, because of his public position, had the power to

affect the disposition of cases.”

Since the instructions given adequately apprised the

jury that the government must prove that it was reason-

able for Agent Ries to believe that appellant had the

power to influence judiciai decisions, and that Agent Ries

focused on appellant’s official position in paying the

bribes, we hold that there was no plain error.

(B) RICO

RICO, 18 U.S.C. § 1962(¢), makes it unlawful 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 activity or collection of

unlawful debt.” Appellant contends that the court erred

in denying his motion to dismiss Count One which charged

him with racketeering in violation of RICO, since the

indictment failed to charge that he was associated with an

enterprise that was organized for the purpose of carrying

on racketeering activity. The enterprise specified in the

indictment was the Cook County Circuit Court. Appel-

lant’s contention is without merit. RICO encompasses

both legitimate and illegitimate enterprises. United

States v. Turkette, 452 U.S. 576, 578-83 (1981).

Appellant also contends that the evidence adduced at

trial was insufficient to sustain the conviction on Count

10a

No. 84-2852

One. He concedes that the government proved that he

was associated with a legitimate enterprise and that he

committed racketeering activity while so associated. He

contends that it failed to prove that he conducted his

racketeering activity through the Cook County Circuit

Court. At issue is whether there was sufficient evidence of

a connection between appellant’s racketeering activity

and the affairs of the Circuit Court to support a jury

finding that appellant directly or indirectly conducted or

participated in the conduct of the affairs of the Circuit

Court through a pattern of racketeering activity. See

United States v. Nerone, 563 F.2d 836, 852 (7th Cir. 1977),

cert. denied, 435 U.S. 951 (1978). To establish the requisite

nexus, the government must show that “(1) the defend-

ant has in fact committed the racketeering acts as al-

leged; (2) the defendant’s position in the enterprise

facilitated his commission of the racketeering acts, and

(3) the predicate acts had some effect on the lawful

enterprise.” United States v. Cauble, 706 F.2d 1322, 1333

(5th Cir. 1983) (footnote omitted), cert. denied, __. US.

___., 104 S.Ct. 996 (1984). Effect on the lawful enterprise

is established by proof that “the racketeering acts affect-

ed the enterprise in some fashion.” Jd. at 1333 n.24.

We hold that here there was sufficient evidence from

which a jury could find that appellant sought to influence

the disposition, or affect the handling, of criminal cases

through solicitation of bribes, falsification of Circuit Court

records, use of Circuit Court offices and equipment, and

contact with Circuit Court judges.

Ill.

Appellant contends that certain of the court’s eviden-

tiary rulings constituted reversible error. He claims that

the court erred in admitting testimony regarding his

prior bad acts and testimony to prove Agent Ries’ state of

mind regarding appellant’s power, by virtue of his official

position, to influence judicial decisions.

lla

No. 84-2852

Judge Lockwood was permitted to testify that appel-

lant told him

“that he had a lot of clout within the system, that he

had been in trouble nine years before, that some big

people were ready to jump off bridges at that time,

that he kept his mouth shut, and that as a result

everybody trusted him. He took the heat at that time,

and charges were eventually dismissed against him.”

Following this testimony, the court gave a limiting in-

struction that the testimony was to be considered solely in

connection with the “state of mind of people respecting

what the defendant could or couldn’t do.” Appellant asked

the court to declare a mistrial on the ground that the

testimony “clearly says to the jury [appellant] was guilty

in the past”. After the court denied appellant’s request,

appellant rejected the court’s offer to further instruct the

jury on its use of the testimony.

While “[e]vidence of other . . . 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

admissible for other purposes....” Fed. R. Evid. 404(b).

Here, the evidence was admitted to prove the reason-

ableness of Agent Ries’ belief that appellant was ex-

torting him under color of official right. Much of what

Agent Ries reasonably could believe about appellant’s

power, by virtue of his official position, was influenced by

his knowledge of the conversations Judge Lockwood had

with appellant. Evidence of a victim’s state of mind is an

essential element of the government’s case in a Hobbs Act

prosecution for extortion under color of official right.

United States v. Craig, 573 F.2d 513, 520 (7th Cir.), cert.

denied, 439 U.S. 820 (1978). The evidence, therefore, is

admissible to prove that element so long as the danger of

unfair prejudice does not outweigh its probative value.

Fed. R. Evid. 403. The court considered the prejudice to

appellant from the references to being “in trouble” and

“charges” being “eventually dismissed against him”, but

noted that the statement “was couched in terms of kee-

l2a

No. 84-2852

ping his mouth shut, which is more a matter of knowing

and not telling”. The court concluded that, in light of

appellant’s defense that the victim’s belief was unreason-

able, the likelihood of prejudice was lessened. The court

admitted the evidence for its probative value in estab-

lishing the reasonableness of the victim’s belief. The

admissibility of such evidence is within the sound dis-

cretion of the court. We hold that the court did not abuse

its discretion in admitting the evidence and refusing to

declare a mistrial.

Appellant also contends that certain evidence was

inadmissible hearsay—Agent Ries’ statements regarding

his state of mind during the investigation, Ries’ testi-

mony regarding appellant’s alleged statements to him,

and a taped conversation between two persons not called

as witnesses which Ries testified affected his state of mind

regarding appellant’s ability to influence a particular

judge. Since the evidence was offered to show that Ries, as

the victim of appellant’s extortion, reasonably believed

that appellant had the power by virtue of his official

position to influence the judicial disposition of cases, and

was not offered “to prove the truth of the matter as-

ry it was not inadmissible as hearsay. Fed. R. Evid.

l(c).

We hold that the court did not err in its evidentiary

rulings.

IV.

Appellant’s final contention is that the following

comment made by the government in its-closing argu-

ment violated his Fifth Amendment privilege not to “be

eee ee ee case to be a witness against

“Let me just say, we have his words, we have his

deeds, we have him holding himself out all of these

remarkable coincidences, Dave Ries is supposed to

believe I am so gullible that all this stuff would have

13a

No. 84-2852

happened anyway, it doesn’t make any difference in

the size or the age of these particular cases. Let’s get

down to what this case is all about: money. What has

Ae 58 gen told you about money?” (emphasis

).

Appellant’s counsel objected that the last sentence vio-

lated his client’s constitutional right to remain silent. The

government attorney stated that he was about to quote

what appellant had said in regard to money in the tape

recorded conversations that had been admitted in evi-

dence. The court ruled that the government could com-

ment on what appellant had said on the tapes.

While we are wary of any statement which refers to a

defendant’s failure to testify, we do not believe that any

juror could have understood this comment as referring to

anything other than appellant’s taped statements. The

comment was made approximately an hour and twenty

minutes into the government’s closing argument during

which time the government attorney had quoted, para-

phrased, and referred approximately one hundred times

to what appellant had said in the tapes and the transcripts

of his conversations. Following the comment in question,

the government attorney proceeded to quote and para-

phrase eleven specific instances in the tapes and the

transcripts where appellant stated that he was motivated

by money.

Considering the comment in context, we hold that it

did not violate appellant’s constitutional right. Even

assuming that it did, we hold that it was harmless beyond

a reasonable doubt. United States v. Hasting, 461 U.S. 499,

510-11 (1983).

. F

To summarize: We hold that the district court cor-

rectly denied appellant’s motion to dismiss the indictment

and correctly entered judgment on the jury verdict of

guilty on all counts. We further hold that appellant has

l4a

No. 84-2852

failed to establish any reversible error in the court’s

evidentiary rulings or in the court’s ruling with respect to

the government’s closing argument.

Appellant was convicted after a fair trial on the basis

of overwhelming evidence of serious crimes committed

over a period of a year and a half. We order that the

mandate issue forthwith.

AFFIRMED.

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 50234—Pandick Midwest, Inc., Chicago—7-11-85—450

15a

[4] Ries—direct

Q. Mr. Ries, how are you employed?

A. I am a special agent with the Federal Bureau of

Investigation.

Q. How long have you been so employed?

Since July of 1976.

Do you know a man by the name of Ira Blackwood?

Yes, I do.

Do you see him in the courtroom today?

Yes, I do.

MR. RODDY: We will stipulate for the record that he

is seated at the table here.

MR. NEWMAN: So stipulated?

THE COURT: It is so stipulated.

> OPO P

BY MR. NEWMAN:

Q. When did you first meet Mr. Blackwood?

A. September 4th, 1981.

Q. And when did you arrive in Chicago?

A. In March of 1980.

Q. When you met Mr. Blackwood on September 4th,

1981, how was he employed, if you know?

A. He was a Chicago police officer.

Q. Where was he employed?

A. At Cook County traffic center, 321 North La Salle

Street in Chicago.

Q. What position did he hold, if you know?

l6a

[8] Q. Did you hold any licenses at that time?

A. Yes, I did.

Q. What type of license did you hold?

A. I held a license to practice law in the State of Illinois.

Q. During this same period of time, 1981 to May of ’83,

did you assume any role?

A. Yes, I did.

Q. Would you tell the ladies and gentlemen of the jury

what your role was.

A. I assumed the role of a private defense attorney in

private practice within the City of Chicago.

Q. Did you use your reai name?

A. Yes, I did.

Q. And did you also use a code name?

A. Yes, I did.

Q. Did you also alter your name a little bit to adopt also

your code name?

A. Yes.

Q. Were you part of an undercover investigation?

A. Yes, I was.

Q. What was the name of that investigation?

A. The investigation was commonly known as the Grey-

lord investigation.

Q. What type of practice were you in?

A. I was allegedly involved in a criminal defense and

traffic

[161] gained from that position, and by virtue of the people he

knew, the judges, other court personnel that he knew, that he

17a

had the ability to influence the disposition of cases heard in

Cook County Circuit Court.

My state of mind at that time I believe was based on

several things.

MR. RODDY: I object to this. I don’t know if there is

a question pending, or are we to going to get a narrative

here.

MR. NEWMAN: I asked him what his state of mind

was based on.

THE COURT: There is a question pending.

BY THE WITNESS:

A. My state of mind during this time period was based on

several things, one of which was my general conversations with

Ira, his demeanor, the tone of voice, his inflections, how he

handled himself, how he carried himself.

Likewise, it was based on the people with whom I had

seen him speaking, the places that I had seen him, the

people about whom he spoke and the way he spoke about

them.

It was also based on the general structure of our

dealings in these cases where I would give him the

information about the cases, and he would meticulously

copy it down, and that later on he would get back to me

telling me whether he could do anything on the case and

what it was going to cost me.

Likewise, that if there was a specific judge that was

[ 162] going to be hearing a case that he could not influence, he

would, likewise, tell me that.

It was based on the fact that he was able to know

things—

MR. RODDY: I object, again, to a speech rather than

answer as to the state of mind. It’s becoming a speech

here.

18a

THE COURT: I think he can continue, although it is

sort of dragging out.

Go ahead.

BY THE WITNESS:

A. It was also based on his ability to know things about

these cases that I did not tell him, so that it indicated to me that

he had an independent source of knowledge about these things.

On the |1 cases on which we had prior arrangements

on, 10 of those cases were resolved in a favorable manner.

The two judges that I talked to in regards to these

cases, both of them acknowledged some prior contact

about these cases.

In the case of Thomas Benham, Officer Blackwood

was able to produce tangible results for me without the

defendant ever showing up in court, without me showing

up in court. I received a bond slip through the Circuit

Court of Cook County.

Likewise, when the government did have wiretap on

his phones, Officer Blackwood did know about that. He

told me about that several times.

I think that about wraps it up.

[537] Lockwood—direct

him.

THE COURT: It is relevant. I think it can come in. I

am perfectly prepared to give an instruction to the effect

that the statements relating to matters which by testimony

the defendant was not involved in and that they are

matters that have nothing to do with the substance of the

charges here.

MR. RODDY: Okay.

(End of discussion at side bar. )

19a

BY MR. PODLISKA:

Q. Mr. Lockwood, you may continue. What did Officer

Blackwood tell you?

A. He told me that, in explaining that he had a lot of clout

within the system, that he had been in trouble nine years

before, that some big people were ready to jump off bridges at

that time, that he kept his mouth shut, and that as a result

everybody trusted him. He took the heat at that time, and

charges were eventually dismissed against him.

THE COURT: Ladies and gentlemen, with reference

to that. As is evident, the testimony is not with respect to

anything that this defendant did wrong at a prior time, and

in any event that has nothing to do with the substance of

the charges that are before you now, as the testimony is

introduced solely for matters of state of mind of people

respecting what the defendant could or couldn’t do.

MR. RODDY: Judge, could I be heard again at the

sidebar?