# Opposition Brief — Blackwood v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0715%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 1020

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0715%3A2. Public record. Not legal advice.