Appendix — GERAHTY V. UNITED STATES (Nos. 74-764, 74-782, 74-5752)

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APPENDIX “A”’

4 IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 74-1000 thru 74-1017 and 74-1105

United States of America,

Plaintiff-A ppellee,

Vv.

Clarence E. Braasch, Edward J. Barry, John M. Geraghty,

Daniel H. Armstrong, Thomas D. Batastini, Natale R.

Cale, John Catalano, Martin D. Eshoo, Edward F. Finn,

Carl Flagg, Philip R. Grana, Edward McGee, Emmons P.

Russell, Harry R. Salvesen, Joseph A. Schillinger, Steve

L. Seno, William D. Swallow, Thomas D. West and Mike

Zakoian,

Defendants-A ppellants.

Argued June 5, 1974 — Decided October 23, 1974

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division —

No. 72 CR 979 — William J. Bauer, Judge

Before CLARK, Associate Justicé,* FATRCHILD and

* Honorable Tom (C. Clark, Associate Justice (Retired) of

the Supreme Court of the United States, is sitting by des-

ignation.

Se RETNA a ae A deed SAAN RHIAN

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STEVENS, Circuit Judges.

_ CLARK, Associate Justice. This prosecution, brought

under the extortion statute, 18 U.S.C. § 1951," * * *

The indictment covers the period ‘from 1966 to 1970

during the tenure of Captain Clarence E. Braasch as

Commander of the 18th Police District and names asx co-

conspirators more than two dozen police officers who were

attached to the 18th District during all or part of that

period, including Braasch and three vice coordinators, Ser-

geants Fischer, Barry and Geraghty. The facts are

‘‘stranger than fiction’’,? revealing a brazen extortion

scheme involving a shakedown of some 53 bars, taverns

and other business establishments serving alcoholic hev-

erages and located within the District. Initially, four po-

lice officers on the vice squad — two during daylight hours

1. 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, hy * * * extortion or at-

tempts or conspires so to do, * * * 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. |

(3): The term ‘‘commerce”’ means * * * all commerce

between any point in a State, Territory, Possession,

or the District of Columbia and any point outside there-

of *¢ dl

2. Byron, Don Juan, Canto XTV, St. 101.

Ter Nags ee

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and two at night —- collected $100 to $150 per month from

each of such establishments and divided this money, known

as the ‘‘package”’, among the members of the yice squad.

The quid pro quo on the part of the police officers was

that they would “‘protect’’ the victims of the scheme —

known as the ‘vice eluh”’ or “‘liitle club’? — from enforce-

ment of various regulatory laws and from loss of busi-

ness, revocation of licenses and other disturbances, some

of which were caused by manufactured police harassment,

In the regular operation of the ‘little elub’’, a vice co-

ordinator would obtain from the police officers of the vico

squad a monthly list of the establishments that might he

included in the club’s collections and present this list to

Captain Braasch, who would then strike from it the names

of those establishments that he decided should be excluded

for various reasons. The resulting list contained the names

of the club ‘‘members”’ until the next month’s list was

approved.

From the testimony, it appears that a similar ‘‘eluh’?

existed in the district at least as far back as 1961, but

abruptly ceased operations in the middle of 1966 when

Captain James Holzman was appointed District Com-

mander. The rapid change of command from Holzman to

Captain Braasch in August, 1966 marked the heginning of

the conspiracy at bar.

Braasch brought with him Sergeant Robert Fischer to

be his new Vice Coordinator. Soon after Braasch and

Fischer began their new assignments, one Bill Gold, rep-

resenting certain nightelub and gambling interests in the

18th Police District, telephoned Fischer that he wanted to

see him about some business that might he of interest to

him and his hoss, Captain Braasch, and left his telephone

re Soon tet Rapier, e rR Ss

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number. Fischer reported the call to Braasch, who told

him to see Gold. At lunch the next day, Gold told Fischer

that he would pay Captain Braasch $3,600 per month to

protect gambling operations in the 18th District from

police harassments and arrests, and, in addition, he would

pay $1,500 per month for Braasch to protect ten specific

night spots also in the 18th District.

Fischer reported to Braasch, who promptly accepted

the offer. This arrangement, known as the ‘‘big ten’’ or

the ‘‘big club’’, started in operation in October, 1966, and

continued at least during Braasch’s tenure as Commander

of the 18th District, which ended in 1970. For some 27

months during the operation, Fischer acted as ‘*bagman’’

for Braasch. The money was collected first from Gold and,

after his death, from one Glitta, and ran as high as $6,810

a month. Initially, some of the money was passed on to

key police officers, such as Braasch’s friend, Barry, a group

of Captains and Lieutenants, and two vice squad officers,

Cello and Rifkin. The latter two were included because,

as Fischer testified, ‘‘the only two vice men... we would

have to worry about would be Rifkin and Cello because

they were assigned to work gambling on day .. .’’* Fischer

3. After these payments Braasch and Fischer split the

balance equally between themselves, except $100 which was

given by Gold and Glitta to Fischer as a ‘‘tip’’. During the

period that Fischer acted as ‘‘bagman’’, the total payoffs

amounted to some $185,000. Braasch received in total

about $85,000, and Fischer about $25,000. Barry first re-

ceived $100 a month as a favor from Braasch, but later

$1,000 a month when he became Vice-Coordinator; the

Captains as a group received $500 a month; the Lieuten-

ants $600 a month; and Cello and Rifkin $200 each per

month.

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was succeeded by Barry as ‘‘bagman”’ for the ‘big club’’,

but the record does not show the take during that period.

In November of 1966, some of the members of the Vice

Squad approached Fischer with regard to their resump-

tion of the pre-Holzman practice of collecting monies from

retail liquor establishments in the District. The word

about the “big club’? had gone the rounds of the Vice

Squad and its members were anxious to share in the pro-

ceeds. When Fischer made it clear that Braasch would not

be sharing the payoffs from the ‘big club’’, it was sug-

gested that the Vice Squad police officers organize their

own ‘‘club’? among the remaining bars and taverns in the

District. Fischer then took this mater up with Braasch

who agreed to the proposal. According to Fischer’s testi-

mony, when Braaseh was apprised of the proposed ‘felub’’,

he commented: ‘I guess it is not a bad idea if these guys

want to make a buck for themselves, We got our own thing

going, haven’t we?’’ Braasch’s primary concern was that

he have a veto power over which establishments would be

included.

Braasch was interested not only in making sure that

none of the nightelubs in his own “hig ten’? were being

shaken down by the Vice Squad, but also in keeping off

the list any ‘‘trouble spots’’ — establishments that catered

to prostitutes, operated after hours, or served minors —

which might prove embarrassing if the publie insisted on

police action. Pragmatically, Braasch and Fischer decided

not to share in the proceeds of the “little elub’”’ for rea-

sons related by Fischer in his testimony. According to

Fischer, he told Braasch, when they were privately dis-

cussing the ‘‘little elub”’ arrangement:

(I]f there is any complaints on these places and there

has to be an arrest made, why, if we weren’t taking

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money from it, why we could tell them to go out and

make the arrest. But if we were taking money from the

thing, we would be in kind of an awkward situation.

* * * So, I suggested that we don’t participate, par-

take in any money in this and besides, ‘‘We got our

own thing going and let’s not get hungry.”’

Braasch agreed.

The original collectors for the ‘‘little club’’ were Cello,

Rifkin, Mascolino and Napier, all of whom were Vice Squad

officers, and who subsequently testified as witnesses for the

Government. Toward the end of 1966 or early 1967, the

members of the 18th District Vice Squad held a meeting

in the 18th District station house to discuss the function-

ing of the extortion ‘‘club’’. At that meeting, the officers

discussed the procedures to be followed in protecting their

‘*club’’?’ members; they discussed the amount of money

that would be paid to each vice officer as more bars were

recruited; and they discussed which officers would be re-

sponsible for collecting the money on each shift.

While Fischer and Barry were Vice Coordinators, Offi-

cers Cello, Rifkin, Mascolino, and Napier distributed the

money they collected from the bars among the members

of the Vice Squad. Cello, Mascolino, Rifkin, and Napier

each received approximately $300 and later $500 per

month; the other vice men received $150 and later $250

per month as their share of the ‘‘package.’’

Witness Cello testified in the Governmen’s case-in-chief

that the conditions for membership were as follows:

The conditions were that they would pay $100 a

month to the vice officer that would be collecting. In

return, there would be no harassment by members of

the vice squad. Under harassment, it would be classi-

fied as premise checks, I.D. checks of individuals in

AZ

the bars. If it was a gay bar, you would not go in

there with flashlights and harass the patrons of the

bar. You would assist them in any trouble that they

have. If you were assigned to make a followup report,

in your followup report you would try to make it or

slant it in any way or form that would help the tavern

owners. —

If you received knowledge that there was — any

knowledge or any information that VCD was going to

come into the district to make a raid on these tav-

erns, you would forewarn them. Also that none of the

vice — there would be no individual shakedowns by

any individual vice officer on these taverns if a check

had to be made on a tavern, it would be checked out

first with one of us.

As the years from 1966 to 1970 went on, other Vice Squad

officers assisted in the collection tasks for the ‘‘little

club’’. In February, 1967, Fischer was promoted and trans-

ferred to other duties outside the 18th District, and Barry

succeeded him as Vice-Coordinator. Barry took over the

duties of intermediary between the “little club’ and

Braasch, but he received no money from the ‘little elub’’

operation, his take being the $1,000 heretofore mentioned

from the ‘‘hig club’’. As indicated above, however, Fischer

continued as ‘‘bagman”’ for the ‘big club”’ through Janu-

ary, 1969. In 1970, Sergeant Geraghty succeeded Barry as

Vice-Coordinator and continued to perform the same serv-

ices as the latter, except that Geraghty assumed the month-

ly responsibility of personally receiving the **package”’

collected from the ‘little club’? and distributing it among

the members of the Vice Squad.

A. The Indictment and Trial:

On December 29, 1972, a sixteen-count indictment was

returned against twenty-four Chicago police officers, chare-

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ing in the first count that they participated in a conspiracy

to commit extortion in violation of 18 U.S.C. $1951 by

extracting money under color of official right from the

proprietors of the fifty-three liquor establishments com-

prising the ‘‘little elub’’. The remaining fifteen counts of

the indictment charged separate violations of 18 U.S.C.

§ 1623.4 Each count separately charged one of those named

4. 18 U.S.C. § 1623 in relevant part provides:

(a) Whoever under oath in any proceeding before

or ancillary to any court or grand jury of the United

States knowingly makes any false material declaration

or makes or uses any other information, including any

book, paper, document, record, recording, or other

material, knowing the same to contain any false ma-

terial declaration, shall be fined not more than $10,000

or imprisoned not more than five years, or both.

(c) An indictment or information for violation of

this section alleging that, in any proceedings before

or ancillary to any court or grand jury of the United

States, the defendant under oath has knowingly made

: two or more declarations, which are inconsistent to

the degree that one of them is necessarily false, need

;

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not specify which declaration is false if—

(1) each declaration was material to the point in

question, and

(2) each declaration was made within the period

| of the statute of limitations for the offense charged

: under this section.

In any prosecution under this section, the falsity of a

declaration set forth in the indictment or information

shall be established sufficient for conviction by proof

that the defendant while under oath made irreconcil-

7 ably contradictory declarations material to the point

: in question in any proceeding before or ancillary to

PS At SRR IEG LEON:

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in Count One with making false material declarations to

the Grand Jury by appearing before the Grand Jury and

falsely denying his participation in the “little club’ extor-

tion scheme.*

At the trial before Judge William J. Bauer which began

on August 13, 1973, the Government presented the testi-

mony of seven police officers who had formerly been as-

signed to the 18th Police District. Five of them — Fischer,

Cello, Rifkin, Mascolino and DuShane — testified under im-

munity granted pursuant to 18 U.S.C. § 6002; the sixth,

Anthony Corsentino, testified without immunity; and the

seventh, Lowell Napier, one of those originally indicted,

pled guilty before trial and testified. These officers testi-

fied to their own complicity in the “‘little elub’’ and to the

involvement of those on trial. In addition, 48 witnesses

were produced by the Government who were owners or

employees of the liquor establishments in the ‘‘little elub’’;

who testified under a blanket immunity grant, and who

any court or grand jury. It shall be a defense to an

indictment or information made pursuant to the first

sentence of this subsection that the defendant at the

time he made each declaration believed the declara-

tion was true.

5. Of the twenty-three defendant who went on trial,

eight were charged only in Count One ( conspiracy) ; Police

Sergeant Barry, Police Officers Cale, Catalano, Finn, Mc-

Gee, Salveson, Seno, and Zakoian, The remaining fifteen

were charged in Count One and in one of the fifteen indi-

vidual counts of false declarations to the Grand Jury:

Police Captain Braasch, Police Sergeant Geraghty, Police

Officers Armstrong, Batastini, Demke, Eshoo, Flagg, Grana,

Lazar, Pierson, Russell, Schillinger, Swallow, Troche, and

West.

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asserted that they had personally made payments to the

police officers who were collecting extortion money for the

Vice Squad. The trial was concluded on October 3rd, and

the jury found nineteen defendants involved in the instant

appeal guilty, and found four others — Demke, Lazar, Pier-

son and Troche — not guilty on all charges.

We have read the 6,836-page record and find that it re-

veals a carefully organized and skillfully operated extor-

tion machine of massive proportions in both membership

as well as monetary ‘‘take’’, which operated over several

years and corrupted the entire Vice Squad of the 18th

Police District, including its top officials. The testimony of

the 48 proprietors and employees of the participating

‘little club’? members established that the extortion pay-

ments were made. The testimony of the bagmen Cello,

Rifkin, Mascolino and Napier confirmed that they had

received the payments and disbursed them to police officers

of the Vice Squad as well as to themselves. The testimony

of DuShane, who was the police officer assigned to cleri-

cal work in the Vice Squad, detailed fiscal arrangements.

And the testimony of Fischer explained the organization

of the ‘‘little elub’’; why certain officers, such as Cello and

Rifkin, were included in the payoff of both the “little”? and

‘big’? clubs; and the intimate conversations that he had

with Braasch that tied the latter inextricably to the “little

club’* conspiracy and revealed the depths of venality to

which Braasch would stoop to protect his “own thing’? —

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the ‘*hig elub’’.

6. Exclusive of the “‘hig elub’’ evidence pertaining to

the motivation of Captain Braasch and his various vice

coordinators, a number of factors connect each of the re-

maining appellants to the conspiracy. First, most of them

Fa ORR

All

B. The Issues Tendered Here:

The appellants raise the following issues, some sixteen

in number:

(1) Were the statutory requirements of 18 U.S.C.

§ 6001 ct seq. met in granting immunity to various Gov-

ernment witnesses:

(2) Was it proper for the trial court to have sup-

pressed the orders granting such immunity;

(3) Was the grand jury process abused by calling

certain prospective Government witnesses before the

grand jury after the indictment was returned;

(4) Did the re-assignment of the case to another

judge several weeks before trial but after completion of

pre-trial motions violate appellants’ constitutional pro-

tections;

(0) Did the couspiracy ‘affect commerce’? within the

meaning of 18 U.S.C. § 1951 :

(6) Was knowledge and intent sufficiently proven;

(7) Was the evidence sufficient to prove Braasch’s

participation in the conspiracy ;

received a monthly share of the “package”? efter joining

the District Vice Squad; second, many participated in the

actual collecting of money from the victim bars; third,

some participated in the distribution of the ‘*package’’;

fourth, some names appeared on a list indicating that they

received a share for one month in early 1967; and, fifth,

some officers attended the Vice Squad meeting in late 1966

or early 1967 at which the ‘‘club”’ and the “‘nackage’’ were

diseussed at length. The evidence at trial from the repre-

sentatives of the bars and taverns as well as that from

Fischer, Rifkin, Cello, and the other officers who testified

for the Government tied each of the appellants to one or

more of these factors.

Set PARI Rado ndhe Rui abe agahen

See nent cee erties & SCR DT Oran 32 sine Pte elec dear

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(8) Was the evidence sufficient to prove that Grana’s

declarations before the Grand Jury were false;

(9) Was the admission of the evidence as to the ‘‘big

club’? improper as to Braasch and Barry and so highly

prejudicial to the other appellants as to have denied them

a fair trial;

(10) Were the twenty-four defendants and sixteen

counts properly joined in the indictment;

(11) Does a police officer’s abuse of the power of his

official position in order to obtain payments from mer-

chants come within the meaning of 18 U.S.C. §1951’s

ban on extortion ‘‘under color of official right’’. |

(12) Was it proper to admit evidence of a similar

extortion scheme within the 18th District antedating the

conspiracy at bar;

(13) Was it proper to admit evidence showing the

state of mind of the extortion victims:

(14) Did other evidentiary rulings result in preju-

dice to the appellants;

(15) Did the prosecutor’s closing argument consti-

tute reversible error because of his references to the

evidence tying appellant Grana to the conspiracy; and

(16) Was there an abuse of discretion in the sen-

tences imposed.

The bulk of these issues are either frivolous or controlled

by previous decisions and do not merit extended discussion.

We will deal with them in the order above outlined.

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C. Disposition of the Issues:

is

Appellants claim that the Government failed to comply

with 18 U.S.C. § 6002 which, they argue, requires that a

witness actually refuse to testify before being granted

immunity. Unfortunately for the success of their claim,

18 U.S.C. § 6003 (b) (2) specifically authorizes the Gov-

ernment to seek such a grant where the witness ‘‘has re-

fused or is likely to refuse to testify or provide other in-

formation on the basis of his privilege against self-inerim-

ination.’’ (Emphasis supplied) Appellatts also claim that

the trial court’s immuniiy orders were too broad, prohib-

iting the use of the immunized testimony against bar

owner-witnesses not only in criminal trials but also in

subsequent state administrative proceedings, such as liq-

uor license revocation hearings. However, we need not

pass on this difficult question since appellants have no

standing to raise the question. United States y. Lewis, 456

F. 2d 404, 410 (3d Cir. 1972); United States vx rel. Ber-

berian v. Cliff, 300 F. Supp. 8, 14 (E.D, Pa. 1969). Cf,

Lopez v. Burke, 413 F. 2d 992, 994 (7th Cir. 1969).

is

Appellants further claim that suppression of the orders

granting immunity to several dozen bar owners violated

their Sixth Amendment right to the effective assistance of

counsel by heing denied important information. The sup-

pression orders were entered by Chief Judge Edwin A.

Robson in March of 1973, ‘‘fiJn order to encourage fur-

ther disclosures and in order to protect the personal safety

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and security of the informers and potential witnesses by

concealing their identity.’’ Since, as we have said, a de-

fendant has no standing to contest the propriety of a grant

of immunity, it follows that appellants had no right to be

present at the immunity hearings nor any right to obtain

the identity of Government witnesses by or through being

furnished copies of the orders granting immunity. Chief

Judge Robson denied appellants’ motions to lift the sup-

pression order and we agree with his conclusion on the

matter. It also follows that defense counsel had no right

to be at the immunity hearings. Cf. United States v. Ben-

nett, 409 F. 2d 888, 899 (2d Cir.), cert. den. sub. nom

Haywood vy. United States, 396 U.S. 852, (1969), holding

that defense counsel’s presence is not required when a

prosecutor interrogates a prospective witness in prepara-

tion for trial. Moreover, no possible prejudice could have

arisen since a copy of the immunity orders was provided

the defense with the Section 3500 material at the coneclu-

sion of the direct examination of the first immunized wit-

ness and was used by appellants’ counsel in cross-exam-

ination.

III.

Appellants next complain that the Government abused

the grand jury process by calling prospective witnesses

before the Grand Jury for the purpose of preparing an

already pending indictment for trial. The short answer is

that the Government even when the evidence received may

also relate to a pending indictment. Beverly v. United

States, 468 F. 2d 732, 742 (Sth Cir. 1972). Appellants have

shown no prejudice from these occurrences and their con-

tention must fail. United States v. Star, 470 F. 2d 1214, 1217

(9th Cir. 1972).

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IV.

Appellants next claim that their constitutional protec-

tions were violated because of the transfer of the ease to

another judge. This is frivolous. A litigant does not have

a right to have his case heard by a particular judge.

United States vy. Dichiarinte, 385 F. 2a 333, 337 (7th Cir.

1967), cert. den., 390 U.S. 945 (1968); United States v.

Stone, 411 F. 2d 997, 598-9 (Sth Cir. 1969). The fact that

the original judge decided pretrial motions is of no econ-

sequence. In central calendar courts that is done every day.

United States vy. Marachowsky, 213 F.2d 235, 244 (7th Cir.

1954), clearly approves the action of one judge. sitting for

another to make any order necessary to preserve the rights

‘of the parties. |

V.

Appellants also challenge the technical sufficiency of the

Government’s proof that their conduct ‘affects commerce”?

within the meaning of 18 U.S.C. § 1951. At the outset we

note that there were no objections to the trial court’s

instructions as to what constitutes effect on commerce,

Section 1951 proscribes extortion which ‘tin any way or

degree obstructs, delays or affects commerce or the move-

ment of any article or commodity in commerce . . .’? As this

Cireuit held'in United States v. De Met, 486 F. 2d 816 (7th

Cir. 1973), cert. denied, 94 S. Ct. 1991 ( 1974):

Because Congress has seen fit to exercise its full power

under the commerce clause, extortionate conduct hav-

ing an arguably de minimus effect on commerce may

nevertheless be punished. [486 F. 2d at 821]

The record indicates that representatives of eleven Chicago

area wholesale distributors of beer and liquor testified as

to their purchases of alcoholic beverages from numerous

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locations outside the state and six other wholesale distrib-

utors were included by stipulation. Voluminous sales and

purchase records of the establishments in the “‘little club”

were admitted into evidence. The dependence of the Chi-

cago retail liquor establishments upon interstate commerce

for a supply of alcoholic beverages was fully covered by

the testimony of the Chief of Technical Services Branch of

the Office of the Regional Director of the Mid West Re-

gion of the Alcohol, Tobacco and Firearms Bureau. It

revealed a limited number of distilleries and wine manu-

facturers located in the State of Illinois during the pe-

riod covered by the conspiracy. This proof shows that the

impact on interstate commerce was substantial rather than

de minimis. Nor is there merit to the further contention

that the warehousing of the alcoholic beverages prior to

sale severs the interstate nexus. See United States v. Gill,

490 F. 2d 233, 236 (7th Cir. 1973). .

Vi.

Appellants also claim that they did not know of either

the extortionate nature of the conspiracy, the source of

the money they received, or the interstate impact of their

involvement. It may well be that each of the uppellants

did not know of the minute details of the operation of the

‘little club’’, but once the conspiracy was established —-

the evidence of which was overwhelming — slight evidence

is sufficient to connect a particular participant. See United

States v. Robinson, 470 F. 2d 121, 123 (7th Cir. 1972);

United States v. Marrapesc, 486 F. 2d 918, 921 (2d Cir.

1973); Untied States v. Nunce, 483 F. 2d 453, 460 (9th

Cir. 1973), Each of the appellants were Chicago police

Officers assigned to the vice squad, except Braasch, who

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was their boss; each received money every month from

the “Mtthe elah’’ operation, except Braasch, Fischer and

Barry; they knew the money was not due them or their

office by reason of their official position; the record di-

rectly connects most of the officers with the fact that the

money came from the liquor establishments since four of

them were collectors of it and others were present when

money was collected: Armstrong, Batastini, Catalano,

Eshoo, Finn, Flagg, Grana, Russell, Salvesen and Seno;

the operation of the club was freely discussed among the

vice officers; Barry was told all about it when he first

became Vice-Coordinator; a meeting of the Vice Squad

members was held in the 18th District Police Station for

the purpose of discussing the ‘little club’’; and Officer

DuShane testified that he had conversations about the

“little club’’ with every vice officer assigned to the Dis-

trict during the time in question. Moreover, during the

entire relevant period — 3% years — only three arrests

were made by the Vice Squad officers at the 53 bars that

were in on the “‘little club’’, and after March, 1967, not

a single arrest was made by any member of the Vice Squad.

In our view the evidence was overwhelming.

Lf) &

In arguing the insufficiency of the evidence to support

his conviction, Braasch specifically attacks the credibility

of Fischer. That, of course, was a matter the jury decided

against Braasch, and we have no power to set aside their

determination on the point. Besides, Fischer was corrob.

orated in large part by Cello, Rifkin, and Napier.

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VIII.

Grana claims that the Government failed to prove beyond

a reasonable doubt that he made false declarations to the

Grand Jury as alleged in Count Seven, relying on Bron-

ston v. United States, 409 U.S. 352 (1972). But that case

is not apposite, since it involved an ambiguous question

and a true but unresponsive answer. The questions put to

Grana were not ambiguous, nor were his answers unre-

sponsive. Indeed, the latter were unequivocal negative re-

sponses to questions probing his knowledge of and partic-

ipation in the extortion scheme.

IX.

As we have indicated in our factual resumé, the Govern-

ment introduced evidence concerning a ‘big club”? payoff

that was not alleged in the indictment. It was introduced

solely for the purpose of establishing intent and motive as

to Braasch and Barry’s participation in the “little club”

conspiracy and the trial court so advised the jury with

carefully worded instructions. Braasch and Barry, who

received none of the proceeds from the “little ¢elub’’, as-

sert that the jury was so inflamed by this evidence that

it convicted them for that crime rather than the one

charged in the indictment. The remaining appellants also

claim prejudice and assert that the jury was confused by

the introduction of this separate and uncharged conspiracy

into the ease. In response, the Government asserts that

Fischer’s role as Braasch’s ‘‘bagman”’ for the ‘‘big elub”’

payoffs —a role later undertaken by Barry — was abso-

lutely necessary to paint the whole picture of the “little

club’’ operation and to explain the motive of Braasch,

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A19

Fischer, and Barry in approving its organization. Since

Braasch and his Vice Coordinators had their ‘own thing

going’’, it was necessary to protect that operation, i.e.,

the “big club’’. By examining the monthly lists of es-

tablishments in the “little club”? which were submitted for

his approval, Braasch was able to make certain that there

would be no conflict between the two operations. More-

over, the record shows that word of the “‘big club’’ had

gone the rounds of the Vice Squad and there was dissat-

isfaction because the Vice Squad was not in on the take.

It is a reasonable inference that Braasch concluded that

unless he took steps to satisfy the Vice Squad, this dis-

satisfaction would increase as time passed and disclosure

of the ‘‘big club’? would inevitably result.

It is well-established that proof cf motive is one of

the exceptions to the general rule that evidence of ‘other

crimes”’ not charged in the indictment is inadmissible in

the prosecution’s case-in-chief. Sec United States ex rel,

Durso v. Pate, 426 F. 24 1083, 1086 (7th Cir. 1970), cert.

denied, 400 U.S. 995 (1971 ). As in most questions regard-

ing the admissibility of evidence, trial judges are given

wide discretion to balance the proffered item’s probative

value against its prejudicial effect. See United States v.

Gaus, 471 F. 2d 495, 499 (7th Cir.), cert. denied, 412 U.S,

938 (1973). We can see no abuse of discretion here,

True it is that detailed evidence as to a similar, con-

temporancous conspiracy has a potentially prejudicial ef-

fect, but here that effect was outweighed by the importance

of this motive evidence as well] as the District Court’s

cautious and thorough limiting instructions which were

delivered to the jury not only at the conclusion of witness

Fischer’s direct examination, but again after witnesses

Cello and Murphy testified briefly as to their involvement

Nea) ongereer enemas

A20

in the ‘‘big club’’, and for a third time in the final charge

to the jury. These instructions specified that the ‘‘big club’’

evidence was not to be used against any other of the de-

fendants besides Braasch end Barry, and as to them it

was only to be considered as it relates to their motive and

intent to participate in the ‘‘little club’’ conspiracy charged

in the indictment. We have no reason to doubt the effec-

tiveness of these carefully drawn instructions. See United

States v. Pauldino, 443 F. 2d 1108, 1114 (10th Cir.), cert.

denied, 404 U.S. 882 (1971). The jury verdict — in which

four of the twenty-three defendants.were.acquitted — itself

supports this conclusion. aon

Appellant Braasch additionally claims that his consti-

tutional right to be informed of the nature and cause of

the accusation against him, guaranteed by the Sixth

Amendment, was infringed by the omission of any men-

tion of the ‘big ciub’’ in the indictment. The right to be

informed of the accusation is a central right in our con-

stitutional system, but it does not place a limitation on

the evidentiary rule which allows the introduction of ‘‘other

crimes’’ evidence in the proper circumstances. Cf. McCon-

key v. United States, 444 F. 2d 788, 789 (8th Cir.), cert.

denied, 404 U.S. 885 (1971). Here the Government notified

counsel for Braasch on August 27th, some two weeks

before Fischer testified — and weeks before it closed its

case — that it would introduce just such evidence pertain-

ing to his involvement in uncharged criminal conduct in

order to prove his motive for participating in the ‘‘little

club’’. United States v. Baum, 482 F. 2d 1325 (2d Cir.

1973), on which appellant Braasch relies, is therefore dis-

tinguishable since appellant had both notice and opportu-

nity to meet the Government’s proof of concurrent criminal

conduct.

FEI SLAG FTO OOD OAT FE PASTEL PAIS ARG AMPS oO alg OM WALT] BEY DIES BBs ap

A21

x.

Appellants argue that it was prejudicial urder Fed. R.

Crim. P. 14 to join the conspiracy count which names all

of the 24 conspirators, with the 15 separate perjury counts,

each of which named a single conspirator. They rely or.

the panel opinion in United States v. Pacente, 490 F. 2d

661 (7th Cir. 1973), which reversed the convictions of a

Chicago policé officer on a similar indictment charging

both extortion and perjury. Since the time that briefs were

submitted in the present case, however, an en banc recon-

sideration of the Pacente opinion has resulted in its re-

versal, United States v. Pacente, No. 72-1988 (7th Cir., filed

August 6, 1974), so that such a joinder has now been given

full approval by this circuit. Moreover in the instant case,

the trial judge in his charge specifically instructea the

jury to give separate consideration to each count and to

render separate verdicts on each defendant. The charge

admonished the jury further that each defendant was en-

titled to have his guilt or innocence determined from his

own conduct and from the evidence as applied to him as

if he were being tried alone and that the guilt or inno-

cenc> of any one defendant should not influence the jury’s

verdict respecting the others. Further, with regard to the

perjury counts, the charge instructed that testimony in-

troduced as to them was to be considered only as evidence

of the false materi il declaration charge and that the jury

should not consider that testimony as evidence of any

defendant’s guilt as to Count One of the indictment. The

fact that the jury found four of the defendants not guilty

on both the conspiracy and the respective perjury counts

showed that they not only knew what they were doing but

did what they intended. See United States v. Gill, 490 F. 24

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A22

233, 239 (7th Cir. 1973). We add that the massive dupli-

cation of effort entailed in separate trials is not justified

absent a more specific claim of prejudice than the one now

urged by appellants. Cf. United States v. Haim, 218 F.

Supp. 922, 932 (S.D. N.Y. 1963); United States v. Verra,

203 F. Supp. 87, 90 (S.D. N.Y. 1962).

Some of the appellants contend that the joinder of so

many defendants in a single indictment deprived them of

the privilege of calling a co-conspirator to the stand to tes-

tify in their behalf. None of the appellants, save Braasch,

attempted to make any positive showing of either the

utility or the availability of such testimony. As this cir-

cuit has held again and again ‘‘[t]he unsupported possi-

bility that such testimony might be forthcoming does not

make the denial of a motion for severance erroneous”’.

United States v. Kahn, 381 F. 2d 824, 841 (7th Cir.), cert.

den., 389 U.S. 1015 (1967). Braasch claims that his eo-

defendant Barry could have testified that Fischer (the

Government’s star witness against Braasch) told Barry

that he (Fischer) had denied to the Government any in-

volvement in any extortion scheme, stating to Barry fur-

ther: ‘‘They [the prosecutors] want Braasch and the only

way I could give them Braasch is to lie’’. However, when

the trial judge held an in-chambers roir dire on the mat-

ter, Barry invoked the Fifth Amendment and refused to

answer all questions, including whether he would testify

on behalf of Braasch in a separate trial if severance was

granted. The facts here are, therefore, a far ery from the

leading case of United States v. Echeles, 352 F. 2d 892 (7th

Cir. 1965), where a co-defendant repeatedly offered to give

obviously exculpatory testimony. Barry’s refusal to give

such assurance left Braasch without that one element which

A23

was essential to his motion for severance. Sec United States

v. Johnson, 426 F. 2d 1112, 1116 (7th Cir. 1970); United

States v. Caci, 401 F. 2d 664, 672 (2d Cir. 1968).

XI.

The appellants assert that the crime, if any, charged

and proven here is not cognizable under the provisions

of the Hobbs Act utilized in the indictment, i.e., extortion

“*under color of official right’’. Extortion “‘under color of

official right’? as used in the Act, they say, means either

the acceptance of money by a public official to perform an

act that he was already under a legal duty to perform or,

alternatively, the taking of money under a claim by the

officer that he had an official right to the money by virtue

of his office. Here, they urge, the proof showed only that

the appellants took money to refrain from performing their

duties and thus their conduct could not be ineluded in the

statutory phrase ‘‘under color of official right’’, but in-

stead ‘‘constitutes classie bribery’’, citing People v. Dio-

guardi, 8 N.Y. 2d 260, 203 N.Y.S. 2a 870 (1960), and other

New York cases. Pursuing this line of argument, appel-

lants contend that there was a fatal variance hetween

indictment and proof since the conduct proved did not fall

within the ‘‘ official right’’ extortion charged and the Goy-

ernment failed to charge them with the other type of ex-

tortion covered by the first clause of 18 U.S.C. § 1951 (b) (2)

—extortion by the wrongful use of actual or threatened

force, violence or fear.

Appellants, however, overlook the fact that the evidence

shows that the conspirators used the power and authority

vested in them by reason of their office to obtain money

not due them or due the office. The use of office to obtain

Aw

payments is the crux of the statutory requirement of ‘‘un-

der color of official right’’, and appellants’ wrongful use

of official power was obviously the basis of this extortion.

See United States v. Staszcuk, No. 73-1869 (7th Cir., filed

Sept. 10, 1974). It matters not whether the public official

induces payments to perform his duties or not to perform

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

acts unrelated to his duties which can only be undertaken

beeause of his official position. So long as the motivation

for the payment focuses on the recipient’s office, the con-

duct falls within the ambit of 18 U.S.C. § 1951. That such

conduct may also constitute ‘‘classic bribery’’ is not a

relevant consideration.’

The police officers of the vice squad harassed bars, tav-

erns and liquor establishments through their official po-

sition by making unusually frequent premise cheeks (four

times a day) and identification examinations of patrons:

they inspected bars catering te homosexuals with flash-

lights and harassed the patrons; they individually ‘‘ shook

down”’ proprietors often; they set-up under-aged drinkers

in bars in order to frame a violation of law; and they sent

liquor licensing authorities false reports about hars, result-

ing in cancellations. In short, a set of roving police officers

preyed upon the vulnerable position of the bars in the 18th

District for their own profit. The proprietors wished to

stop this sort of harassment, and the payment of “ protec-

tion’’ money appeared to be the only answer. It may be

7. As appellants themselves point out, ‘‘the modern

trend of the federal courts is to hold that bribery and

extortion as used in the Hobbs Act are not mutually ex-

elusive. United States v. Kahn, 472 F. 2d 272, 278 (2d Cir.

1973), cert. den., 411 U.S. 982, 93 Sup. Ct. 2270.”

OO a SOD Bla Fg elie |

A25

that some of the payments were made from fear of eco-

nomic harm, which does come within the type of coercive

extortion prohibited by the first clause of 18 U.S.C. $1951

(b)(2) and not by the clause relating to extortion ‘‘under

color of official right’’.* Nevertheless, it was appellants’

misuse of the power of their office that triggered the harm

as well as the payments in this case and made it the type

of extortion cuarged in the indictment. We must, therefore,

reject their contention.

8. It may be true that duress is an essential element of

a case prosecuted under the provision of the Hobbs Act

relating to “‘wrongful use of actual or threatened force,

violence or fear’’, but coercive extortion is not the only

type outlawed by the Act. The other is inducing payoffs

*‘under color of official right’’: and that offense does not

require proof of coercion. Few cases have dealt with the

distinction between these offenses, but several are relevant.

See United States v. K. enny, 462 F. 2d 1205 (3d Cir.), cert.

den., 409 U.S. 914 ( 1972). See also United States y. Nar-

dello, 393 U.S. 286 ( 1969) (Warren, C. J.) (discussing la-

bels and classification of extortion offenses by the states) ;

Bianchi v. United States, 219 F. 24 182, 193 (8th Cir.),

cert. den., 349 U.S. 915 (1955): United States v. Sutter.

160 F. 2d 754, 756 (7th Cir. 1947) ; United States y. Hyde,

448 F. 2d 815, 832-4 (5th Cir. 1971), cert. den., 404 U.S.

1058 (1972); United States y. Pranno, 385 F. 2a 387, 390

(7th Cir. 1967), cert. den., 390 U.S. 944 (1968); United

States v. De Met, 486 F. 24 816, 823 (7th Cir. 1973) ( Swy-

gert, C. J., concurring). Here, the Congress intended to

and did exercise all of its power under the Constitution,

and the Act is to be construed broadly. United States y.

Pranno, 385 F. 2d at 389. See also Stern, ‘‘Prosecutions of

Local Political Corruption Under the Hobbs Act: The Un-

necessary Distinction Between Bribery and Extortion’? ;

3 Seton Hall L. Rev. 1 (1971).

A26

CONCLUSION

We have carefully considered the remaining issues raised

by appellants regarding admissibility of background, state

of mind and other evidence, the prosecutor’s closing argu-

ment, and the trial judge’s sentencing of appellants. We

find these claims without merit and therefore affirm the

judgment.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

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A27

APPENDIX “B”

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604 |

November 21, 1974

Before

Hon. TOM C. CLARK, Associate Justice

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. JOHN PAUL STEVENS, Circuit Judge

No. 74-1000 thru

. 74-1017 and 74-1105

5

a Appeal from the

UNITED STATES OF AMERICA, United States

Plaintiff-Appellee, | District Court

for the

vs. Northern District

of Illinois,

CLARENCE E. BRAASCH, et al., Bashers Divielen

Defendants-Appellants. (72 CR979)

J

This matter comes before the court on the five separate

petitions for rehearing filed herein by various defendants-

appellants. They are:

The ‘‘Petition For Rehearing en banc’’ filed herein

on November 5, 1974 by counsel for defendants-appel-

be) Nesey ASNT Yee allan ADU ARNOT edie ate eats ena AL ean ANNE MRT ne ne let chia

| ae ney ary

A28

lants Natale Cale, John Catalano, Edward Finn, Harry

Salvesen, Steve Seno and William Swallow;

The ‘‘Petition For Rehearing On Behalf of Appel-

lants Daniel Armstrong, Thomas Batastini, Martin

Eshoo, Carl Flagg, Emmons Russell, Joseph Schillinger

and Thomas West’’ filed herein on November 6, 1974;

The ‘‘Petition For Rehearing en banc’’ filed herein

on November 6, 1974 by defendant-appellant Edward

J. Barry, pro se;

The ‘‘Petition For Rehearing En Bane by Defendant-

Appellant Clarence E. Braasch”’ filed herein on Novem-

ber 7, 1974. And

**Petition For Rehearing On Behalf Of Edward Me-

Gee, Philip R. Grana, John M. Geraghty And Mike

Zakoian’’, which requests en hane consideration on page

eleven thereof, filed herein on November 7, 1974.

No judge in active service has requested a vote thereon,

and no judge has voted to grant the suggestion for en bane

consideration. All the members of the panel have voted to

deny rehearing in each of the aforesaid petitions. On con-

sideration whereof,

IT IS ORDERED that all five of the petitions for re-

hearing filed herein be, and they are hereby, DENIED.

NOTE: Judge Philip W. Tone disqualified himself from

consideration of any of these petitions.

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