Opposition Brief — Blackwood v. United States

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Supreme Court, U.S,

No. 85-413. ‘NOV 16 ae

JOSEPH F. SPANIOL, JR.

In the Supreme Court of the United States

OctToser TERM, 1985

IRA BLACKWOOD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JouN F. De Pug

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support peti-

tioner’s convictions for extortion in violation of the Hobbs

Act, 18 U.S.C. 1951.

2. Whether the district court abused its discretion in

admitting evidence under Fed. R. Evid. 404(b).

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

United States v. Beechum, 582 F.2d 898,

eR re 6

United States v. Bibby, 752 F.2d 1116,

petitions for cert. pending, Nos. 84-1692

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United States v. Braasch, 505 F.2d 139,

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United States v. Brown, 540 F.2d eis 5

United States v. Burchinal, 657 F.2d

ew enee cece 6

United States v. Mazzei, 521 F.2d 639,

cert. denied, 423 U.S. 1014 ................ 4,5

United States v. Rabbitt, 583 F.2d 1014,

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United States v. Rindone, 631 F.2d 491 ........ 4

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

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(IIT)

IV

Page

Statutes and rules:

Hobbes Act, 88 U.S.C. 1951 «1 cicccsecasddinwees 1

1S UBS FD co eies sce vescevssdean<teters 1

Fed. R. Evid. :

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In the Supreme Court of the Mnited States

OCTOBER TERM, 1985

No. 85-413

IRA BLACKWOOD, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-14a) is

reported at 768 F.2d 131.

JURISDICTION

The judgment of the court of appeals was entered on July

11, 1985. The petition for a writ of certiorari was filed on

September 6, 1985. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Illinois, petitioner was con-

victed on one count of racketeering, in violation of 18

U.S.C. 1962(c), and ten counts of extortion, in violation of

the Hobbs Act, 18 U.S.C. 1951. He was sentenced to con-

current terms of seven years’ imprisonment on the racket-

eering count and one of the extortion counts, to be followed

(1)

2

by concurrent terms of five years’ probation on the remain-

ing extortion counts, and fined $20,000 on the racketeering

count. The court of appeals affirmed.

1. The evidence at trial showed that petitioner, a Chicago

police officer, was assigned as secretary of the police

department’s Traffic Court Unit in 1974. In 1983, petitioner

became a court sergeant. The charges against petitioner

stemmed from his acceptance of bribes to influence judicial

decisions. His misconduct was discovered during the Fed-

eral Bureau of Investigation’s “Operation Greylord” under-

cover investigation into corruption in the Cook County

Circuit Court. In cooperation with the FBI, Judge Brocton

Lockwood posed as a corruptible judge. Petitioner told

Lockwood that the judge could make enough money by

accepting payoffs to “retire within two years” and that

petitioner had “enough clout” with the system to help him

obtain the illegal payments (Tr. 532). See Pet. App. 2a.

In 1981 Lockwood introduced petitioner to FBI Agent

Ries, who was posing as a defense attorney. Ries subse-

quently paid petitioner a total of $4,400 to influence judicial

decisions in ten misdemeanor cases. These bribes formed

the basis for the indictment. Pet. App. 2a-3a. Ries testified

at trial that he believed that petitioner, “ ‘by virtue of his

position in the traffic court section and as a “curt sergeant,

and by virtue of the knowledge and experien<. gained from

that position, and by virtue of the people he knew, * * * had

the ability to influence the disposition of cases heard in

Cook County Circuit Court’ ” (id. at Sa-6a). In each of the

ten cases charged in the indictment, petitioner was able to

arrange a favorable outcome.

2. The court of appeals affirmed (Pet. App. la-14a).

After reviewing the extensive trial testimony (id. at 5a-7a),

the court held that the evidence was sufficient to support

petitioner’s convictions for extortion in violation of the

3

Hobbs Act because the jury could have concluded that

“Agent Ries reasonably believed that [petitioner] 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 deci-

sions in the cases for which [petitioner] received bribes” (id.

at 7a). The court of appeals also held that the district court

did not abuse its discretion in admitting Lockwood’s tes-

timony that petitioner had boasted of his history of influ-

ence with the court system (id. at 10a-12a).

ARGUMENT

1. Petitioner argues (Pet. 5-9) that the evidence was

insufficient to support his extortion convictions.' He con-

tends that the Hobbs Act, which proscribes the obtaining of

property “under color of official right,” requires proof that

his victim reasonably believed that petitioner had the offi-

cial authority to affect the disposition of cases rather than

merely the de facto power to do so by virtue of his official

position. Petitioner’s argument misapprehends the grava-

men of a Hobbs Act violation, and there is no conflict

among the circuits. Further review is therefore un-

warranted.’

‘Petitioner was sentenced on the Hobbs Act counts only to probation

and to a term of imprisonment concurrent with that on the racketeering

count (Pet. App. la-2a). Petitioner does not challenge the sufficiency of

the evidence supporting his racketeering conviction.

*The view of the Hobbs Act now advanced by petitioner is different

from that set forth, without his objection, by the district court in its

instructions, which the court of appeals ruled were not plainly errone-

ous. See Pet. App. 9a; Tr. 960-967. (Petitioner objected to one of the

instructions merely as a matter of form. See Tr. 1007; see also U.S. C.A.

Br. 26 n.30.) The district court instructed the jury that petitioner “ ‘need

not control the result promised so long as the extorted party possesse{d]

a reasonable belief in [petitioner’s] power to obtain the results’ ” (Pet.

App. 9a, quoting Tr. 999). To similar effect, the district court stated that

the government need prove only that it was reasonable to believe that

petitioner “ ‘had power to obtain favorable results’ ” (Pet. App. 8a,

4

Although a public official must “use * * * his office to

obtain money not due him or his office” to violate the

Hobbs Act (Pet. App. 3a), there is no requirement in the

statutory language that the defendant have promised to

perform an act within (or reasonably thought to be within)

the de jure authority of that office.? Rather, the lower courts

have consistently ruled that the offense is proven where the

victim “held, and defendant exploited, a reasonable belief

that the * * * system so operated that the power in fact of

defendant’s office included the effective authority to”

confer the benefits for which payments were made. United

States v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc), cert.

denied, 423 U.S. 1014 (1975) (emphasis added). See also,

e.g., United States v. Bibby, 752 F.2d 1116, 1127-1128 (6th

Cir. 1985) (although defendant lacked legal authority over

the benefit in question, his influence on the ultimate

decisionmakers was “sufficient to create a reasonable infer-

ence that he could deliver the goods”), petitions for cert.

pending, Nos. 84-1692 and 84-1851; United States v. Rin-

done, 631 F.2d 491, 495 (7th Cir. 1980) (“{d]e jure ability to

perform the promised act need not be present”). In view of

petitioner’s well-placed position in the county court system,

his knowledge of that system, his contacts with its judges

and other court personnel, his representations to Agent

Ries, and the successful outcomes he achieved, it is beyond

quoting Tr. 998) and that the offense “does not require that the services

to be performed be related to [petitioner’s] actual duties” (Tr. 999).

Petitioner does not contend that the evidence is insufficient to show that

he did in fact enjoy the power to affect the outcome of cases; indeed, he

obtained a favorable resolution in each of the cases that formed the

basis for the indictment.

Petitioner’s reading of the statute would immunize every official

except the ultimate decisionmakers (here the judges) even though func-

tionaries such as petitioner were intimately involved in and profited

from the same pattern of corruption by virtue of their own public

offices. This is simply not the law, nor should it be.

5

peradventure that petitioner in fact possessed the ability to

affect the disposition of cases, which is more than sufficient

to sustain his convictions.

Petitioner’s claim of a conflict among the circuits (Pet.

7-9) is unfounded. United States v. Rabbitt, 583 F.2d 1014

(8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979), is the

only case relied on by petitioner in which the defendant’s

conviction was reversed.* The court there, however, fol-

lowed the same rule as did the court of appeals here: “The

official need not control the function in question if the

extorted party possesses a reasonable belief in the official’s

powers.” 583 F.2d at 1027, citing, inter alia, United States v.

Mazzei, supra, and United States v. Braasch, 505 F.2d 139

(7th Cir. 1974), cert. denied, 421 U.S. 910 (1975); see also

Pet. App. 3a-4a. No such reasonable belief was proven in

Rabbitt because there was no evidence that the defendant’s

influence affected the award of state contracts (583 F.2d at

1028). As already recounted, there was ample evidence of

the extent of petitioner’s influence here.

2. Petitioner also argues (Pet. 10-12) that the district

court abused its discretion in admitting certain evidence

under Fed. R. Evid. 404(b). This factbound contention was

correctly rejected after being carefully considered by the

court of appeals (Pet. App. 10a-12a), and it merits no

further review.

‘In United States v. Mazzei, 521 F.2d at 643-644, the court rejected

an argument almost identical to that made by petitioner in holding that

the defendant state senator’s lack of statutory power over the awarding

of state leases did not take his conduct outside of the Hobbs Act. In

United States v. Brown, 540 F.2d 354, 372 (8th Cir. 1976), the court

followed Mazzei in stating that the defendant need not by virtue of his

office have de jure authority over the benefits in question. In United

States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132

(1982), the defendant was a judge who misused his legal authority to

affect the disposition of cases. The court did not address facts such as

those presented here nor did it suggest that the misuse of actual, as

opposed to legai, authority would not violate the statute.

6

The evidence in question was Judge Lockwood’s testi-

mony that petitioner had told him that “ ‘he had a lot of

clout within the system’ ” and was “ ‘trusted’ ” because he

had “ ‘kept his mouth shut’ ” about troubles in the court

system several years earlier (Pet. App. 11a). Agent Ries was

aware of this statement. It was properly admitted under

Fed. R. Evid. 404(b) solely to help show that Ries harbored

a reasonable belief in petitioner’s influence in the court

system, the principal controverted issue at trial (see Pet.

App. 5a, 11a). The statement was not hearsay because it was

admitted to show Ries’ state of mind, not “the truth of the

matter asserted” (Fed. R. Evid. 801(c)). Nor did the district

court abuse its discretion under Fed. R. Evid. 403, which

permits the exclusion of evidence where “its probative value

is substantially outweighed by the danger of unfair preju-

dice.” The evidence went to a central issue at trial; a limiting

instruction was given; and the statement did not admit

affirmative misconduct on the part of petitioner so much as

his “ ‘knowing and not telling’ ” of the misdeeds of others

(Pet. App. 12a). Accordingly, the evidence was properly

admitted. See generally, e.g., United States v. Burchinal,

657 F.2d 985, 993 (8th Cir. 1981); United States v. Bee-

chum, 582 F.2d 898, 916-918 & n.23 (Sth Cir. 1978) (en

banc), cert. denied, 440 U.S. 920 (1979).

ie |

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DE PUE

Attorney

NOVEMBER 1985

DOJ-1985-11