Appendix — Durkee v. United States

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APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

No. 74-1911

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs.

MICHAEL McCARTHY, RONALD UGINCHUS, and

HAROLD DURKEE,

Defendants-A ppellants.

ORDER [entered May 28, 1975, by Chief Judge Fairchild

and Circuit Judges Pell and Tone] [Unpublished per Sev-

enth Circuit Rule 28].

In this appeal from their convictions on charges of ex-

tortion and conspiracy to commit extortion in violation

of the Hobbs Act, 18 U.S.C. § 1951, defendants raise es-

sentially eight separate issues. Finding no reversible

error, we affirm the convictions.

Issues I, II and III

On three different grounds, defendants challenge the

sufficiency of the evidence. First, they allege that a de-

fense of entrapment was established as a matter of law.

The government counters that the entrapment defense

should be rejected as a matter of law, for, says the gov-

ernment, whatever the object of the ‘‘set-up’’ for Lever-

PURI AY SY RIERA EL LF NE OL AR ND | PEG ETL Se mH Steet” Wie te ee ee Ee

App. 2

ence, whether to extort money or obtain an informant,

it is clear from the evidence that the defendants were not

entrapped by Bodie into their subsequent course of con-

duct, although he provided the opportunity for the offense.

Compare Sherman y. United States, 356 U.S. 369, 373

(1958), with United States v. Smith, 508 F.2d 1157 (7th

Cir. 1975).

The Supreme Court has stated in Sorrells vy. United

States, 287 U.S. 4385, 441-442 (1932):

‘|. the fact that officers or employees of the Gov-

ernment merely afford opportunities or facilities for

the commission of the offense does not defeat the

prosecution... . A different question is presented

when the criminal design originates with the officials

of the Government, and they implant in the mind of

an innocent person the disposition to commit the al-

leged offense and induce its commission in order that

they may prosecute.’’

See also United States v. Russell, 411 U.S. 423, 433-436

(1973) ; United States v. Smith, supra, 508 F.2d at 1108;

United States v. Haden, 397 F.2d 460, 466 (7th Cir. 1968),

cert, denied, 396 U.S. 1027 (1970).

Here the evidence does not establish entrapment as a

matter of law. We need not decide whether it establishes

that as a matter of law there was no entrapment, because

the trial judge submitted the issue to the jury with appro-

priate instructions, and there was ample evidence to sup-

port its rejection of the defense of entrapment. Bodie, a

paid federal informant, apparently first brought to de-

fendant MeCarthy’s attention the fact that Leverence was

vulnerable to a ‘‘set-up.’’ But there was evidence from

which the jury could have found that it was McCarthy

who for several years ‘‘repeatedly asked Bodie to help

him ‘set-up’ Leverence,’’ and it was not until the summer

+) magnate

See SER SER ee So TNF POE PLS IPG ESS OE Se eed ee ae CLD

App. 3

of 1973 that Bodie finally contacted McCarthy and ‘‘asked

McCarthy whether he still wanted to get Leverence.’’ This

evidence indicated that Bodie did not induce McCarthy

to commit the offense, and that in fact it was McCarthy

who pressed Bodie to participate in the ‘‘set-up’’ scheme

over a period of years before Bodie agreed to cooperate.

The evidence amply supported the jury’s resolution of

the issue of entrapment against defendants.

Defendants’ second argument regarding the sufficiency

of the evidence is that the jurisdictional element of the

effect on interstate commerce of the alleged extortion from

Leverence of $350 was not proven because the evidence

did not show that the money came from legitimate, as

opposed to illegally obtained, funds, or that the money

would have been used to purchase legitimate merchandise

in interstate commerce. That Leverence bought substan-

tial amounts of jewelry and other merchandise from out-

side Illinois as part of his legitimate jewelry business was

stipulated by the parties. The reasoning of the tavern-

owner extortion cases applies here: although a portion

of Leverence’s business was illegal and some of his funds

thus illegally obtained, the ‘‘depletion of ... [his] as-

sets by the . . . money extorted, or the cessation of his

business if he did not yield and his fears were realized,

would tend to reduce the demand for and amount of”’’

legitimate merchandise, in this case jewelry and supplies,

‘moving into Illinois.’’ United States v. DeMet, 486 F.2d

816, 821 (7th Cir. 1973), cert. denied, 416 U.S. 969 (1974) ;

see United States v. Gill, 490 F.2d 233, 236-237 (7th Cir.

1973), cert. denied, 417 U.S. 968 (1974); see also United

States vy. Augello, 451 F.2d 1167, 1169 (2d Cir. 1971), cert.

denied, 405 U.S. 1070 (1972). Defendants cite no cases to

the contrary. Thus, we conclude that the jurisdictional

requirement of effect on interstate commerce was satis-

factorily demonstrated.

.

yt ———— |

App. 4

The third contention concerns only the sufficiency of

the evidence as to defendant Durkee. Regardless of wheth-

er Durkee was involved from the outset, and there is

some evidence from which the jury could have inferred

that he was, it was unnecessary for the government to

prove that he was a member of the conspiracy at its incep-

tion, if it proved he later became a member, United States

vy. Hickey, 360 F.2d 127, 138 (7th Cir. 1966), cert. denied,

385 U.S. 928 (1966). The record contains evidence that

Durkee participated in planning discussions in the Garrick

Restaurant and in MeCarthy’s car on the way to Lever-

ence Jewelers, and that he actually participated in carry-

ing out the extortion itself by handing Bodie the camera

and giving him some final instructions, by placing Lever-

ence under arrest and later telling him he could probably

beat the charge but did not need the aggravation, by ask-

ing Leverence ‘‘what it was worth for them to forget about

it,’? by bargaining for a payment larger than $350, by

agreeing to the $350 after consulting MeCarthy, by ac-

companying Leverence on the trip to the bank, and by

accepting the payoff money and giving Bodie his $90 share

of it. It was of course unnecessary to prove a formal

agreement to participate in the conspiracy. See United

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

Issues IV and V

The defendants contend that the trial court improperly

and prejudicially restricted the scope of their cross-exami-

nation of the two leading government witnesses. First,

they argue that it was an abuse of discretion not to permit

them to cross-examine Leverence as to a conviction, oc-

curring 10 years earlier when he was 19 years old, based

on fraudulent use of a credit card, on the theory that it

‘‘involved dishonesty’? and thus had a direct bearing on

his testimonial credibility. The trial court conducted a

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App. 5

voir dire on the proposed testimony and ruled that it

should be excluded. Even though the Federal Rules of

Evidence are not yet in effect, we turn to Rule 609 for ?

guidance, as we have directed the district courts to do

(United States vy. McCarthy, 445 F.2d 587, 590 (7th Cir.

1971)). We assume the conviction in question comes with-

in the seope of admissibility described in paragraph (a)

of Rule 609, but it would not be admissible, by reason of

paragraph (b) of that rule, because it occurred over 10

years ago, ‘‘unless the court determines, in the interests

of justice, that the probative value of the conviction .. .

substantially outweighs its prejudicial effect.’’ Because

of this presumption of inadmissibility for convictions more

than 10 years old, the fact that the offense was commit-

ted when Leverence was only 19 years old, and the ad-

mission of other, much more persuasive impeachment evi-

dence which made evidence of the early conviction mere-

ly cumulative in its impeachment effect, restriction of

cross-examination on this subject was not an abuse of dis-

cretion.

Defendants also complain that the trial court restricted

their cross-examination of Bodie. This claim is complete-

ly without merit. At no time did the trial court limit the

questioning of Bodie. Rather, as the transcripts show,

the defense attorneys made a tactical choice not to ask

the court to instruct the recalcitrant witness to answer the

question, and by not pressing the questioning on the sub-

ject the witness’ use of drugs any further.

Issue VI

Defendants argue that Count II of the indictment was

legally insufficient to charge a violation of the Hobbs Act

because it failed to allege the elements of a Hobbs Act

conspiracy. First, the indictment is said to have failed to

PCN STES CHIE LD

App. 6

allege a conspiracy aimed at obstructing commerce, as

opposed to extortion. This argument has been explicitly

rejected by this court in United States v. Pranno, 385 F.2d

387, 389-390 (7th Cir. 1967), cert. denied, 390 U.S. 944

(1968), which is controlling here. Second, defendants ar-

gue that the indictment was defective because it failed to

allege the commission of an overt act. By alleging specifi-

cally that defendants did ‘‘unlawfully obtain and cause

to be obtained .. . various sums of money, which money

was not due them... and was obtained by the defendants

from William Leverence, with his consent, said consent

being induced by fear of economic harm .. .,’’ the indict-

ment in effect, though not in as many words, alleged an

overt act. An allegation of an overt act is not required,

however, where the offense alleged is a section 1951 con-

spiracy. Defendants’ argument to the contrary has been

rejected by the Fifth Circuit in Ladner v. United States,

168 F.2d 771, 773 (5th Cir. 1948), cert. denied, 335 U.S.

$27 (1948), which rests on a line of Supreme Court cases

holding that statutes ‘‘punish[ing| conspiracy ‘on the

common law footing’ ’’ do ‘‘not require an overt act for

the offense... .’’ Singer v. United States, 323 U.S. 338,

340 (1944); Nash v. United States, 229 U.S. 373, 378

(1913). These cases are controlling here.

Issues VII and VIII

In light of our holding on Issue V1, supra, that an overt

act need be neither alleged nor proven under section 1951,

we do not reach the questions raised by defendants’ re-

maining arguments that there was a fatal variance be-

tween the indictment and the instructions concerning the

necessity of proving an overt act and that a reversal on

Count II necessitates reversal oi Count I as well.

AFFIRMED.

App. 7

APPENDIX B

In The

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

No. 74-1911

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

MICHAEL McCARTHY, RONALD UGINCHUS, and

HAROLD DURKEE,

Defendants-Appellants.

ORDER entered June 26, 1975, by Chief Judge Fair-

child and Circuit Judges Pell and Tone, denying petition

for rehearing and suggestion for rehearing in bance.

App. 8

APPENDIX C

(Summary of Additional Facts)

James Bodie, an admitted ‘‘fruit hustler,’’? for the past

ten years had regularly sold stolen merchandise to various

persons, (Tr. 80-83), including William Leverence. (Tr.

10, 35-36, 78, 83) Bodie admittedly engaged in the sale of

marijuana (Tr. 30, 87, cf. 117), and, at the time he testi-

fied,? was on three years’ probation for aggravated bat-

tery * (Tr. 47, 220). Bodie had known defendant McCarthy

for at least six years, having from time to time supplied

officer McCarthy with information about criminal activi-

ties. (Tr. 36, 76, 993) Bodie had also been acting as an

informer for Federal Agent Cavanagh for about the past

ten years. (Tr. 17, 317, 423)

Bodie testified for the government that the name ‘‘ Wil-

liam Leverence’’ had first come up between himself and

defendant McCarthy some six years before 1973, when

1 Bodie testified that he would “hustle fruits” whom he met at the

Greyhound Bus Station in Chicago, by which he meant, according

to his testimony, that he would pretend to accompany men to a hotel

room for homosexual conduct, and then would rob them of watches,

jewelry and other valuables under threats of violence or public ex-

posure. (Tr, 85-86, 238-43). He sold these items to “fences,” such

as Leverence. (Tr. 78) Leverence knew of Bodie’s activities in this

regard. (Tr. 684-91)

2 Bodie admittedly received $290 from federal agents in connection

with his cooperation and testimony in this cause. (Tr. 37). Addi-

tionally, he received $60 in witness fees, plus $20 for each interview

at the federal building. (Tr. 164-66)

* Moreover, Bodie had not reported to his probation officer since

September, 1973, although he was still required to do so by the

terms and conditions of his probation. (Tr. 226)

App. 9

Bodie had advised McCarthy that he (Bodie) sold some

of the items he stole to Leverence, a jeweler. (Tr. 8-10, 78)

Bodie mentioned Leverence’s name initially. (Tr. 78)

Bodie testified that from time to time during the next six

years, McCarthy repeatedly asked Bodie to help him ‘‘set

up’’ Leverence, by having Bodie sell Leverence some

‘‘hot’’ property, then having McCarthy confront Lever-

ence with the prospect of arrest for receiving stolen prop-

erty or a payoff to the police. (Tr. 7-13, 48-49) During

the summer of 1973, Bodie was in need of money, and

asked McCarthy whether he still wanted to get Leverence.

(Tr. 15-16; cf. Tr. 112-14) McCarthy (according to Bodie)

responded in the affirmative, and they arranged to ‘‘set

up’’ Leverence on September 3, 1973. (Tr. 116) Defen-

dant Uginchus was present but was not a party to the con-

versations between Bodie and McCarthy when this was

discussed. (Tr. 14-16)

Bodie then contacted federal agent Cavanagh by phone *

and related the plan to him (Tr. 17-19, 317-19) ; Cavanagh

asked that the meeting be postponed. (Tr. 19, 319) It was

eventually delayed until September 10, 1973. (Tr. 19-21,

143-45)

On September 10, 1973, federal agents (including Cava-

nagh) equipped Bodie with a concealed microphone and

radio transmitter, with the agents having a receiver and

recording device concealed in an attache case, which re-

ceiver was adjusted to pick up transmissions from the

transmitter on Bodie’s person. (Tr. 23, 147, 326-29)

Bodie met all three defendants at the restaurant above

the Greyhound Station (Tr. 24-27), and they proceeded to

*Apparently, Bodie’s anger at a remark (calling Bodie a “fucking

punk”) made by Uginchus precipitated Bodie’s contacting agent

Cavanagh. (Tr. 109, 111-12

-

App. 10

the Mallers Building, wherein Leverence’s jewelry store

was located. (Tr. 28-30). Bodie had never seen petitioner

before. (Tr. 26-27) While Bodie went into Leverence’s

offices, federal agents waited outside, unseen, recording

the transmissions.’ (Tr. 336-37, 415-17) After some pre-

liminary negotiations, Leverence purchased a presumably

stolen camera lens from Bodie for $50 (Tr. 151-52), which

sum he paid by check to Bodie. (Tr. 29-30, 639) While

Bodie testified that defendants supplied the item to be

sold to Leverence, (Tr. 15-16, 28), the officers all testified

that Bodie himself had supplied the property, having

turned it over to McCarthy and Uginchus previously for

that precise purpose. (Tr. 1011, 1026)

After Bodie emerged from Leverence’s office, defen-

dants entered and told Leverence he was in legal trouble

for having bought the lens from Bodie. (Tr. 31, 639-43)

Leverence, McCarthy and Durkee went into Leverence’s

private office, while Bodie and Uginchus waited in the

outer office. (Tr. 31-32, 645-49) (The conversation in this

private office is not corroborated by any tapes.)

Leverence testified that the officers told him he ‘‘would

have to go downtown,’’ ie., to the police station, to be

booked and charged with receiving stolen property unless

he gave them money. (Tr. 644-49) After an abortive at-

tempt to get money from his bank, (Tr. 652-53), Leverence

pretended to borrow $350 cash from another jeweler in

the Mallers building, but in fact, according to his testi-

5 Government's Exhibits 2, the tape itself, and 3 (as revised), the

transcript thereof, were admitted upon stipulation of accuracy. (R.

44) The tape and transcript include conversations in the restaurant

before Bodie and defendants went to the Mallers Building, and in

Leverence’s outer office.

App. 11

mony, obtained it from his safe. (Tr. 34, 653-54) Lever-

ence gave petitioner an envelope containing $350 (Tr. 655)

which, according to Bodie, was divided among himself

(receiving $90) and the officers. (Tr. 34-35) Nothing re-

garding any ‘‘split’’ of the money appeared on the tapes.

(Tr. 405-06) Bodie was not under surveillance for at least

20 minutes after he left defendants and before he reported

to Cavanagh. He had had a drink at a bar in the interim.

(Tr. 35, 269-71, 437-39) Bodie turned $90 over to Cava.

nagh. (Tr. 338, 449) Cavanagh did not search Bodie for

any additional money. (Tr. 422-23) According to defen-

dants, 100% of the money was given to Bodie, (Tr. 1036-

38, 1148-49, 1208-09), since their interest was solely in

gaining Leverence’s future cooperation as an informer

concerning various burglaries and receipt of stolen prop-

erty involving persons in the Mallers Building. (Tr. 1031-

32, 1068, 1130, 1203-09).

Substantial uncontroverted evidence adduced by the

prosecution as well as the defense established that law

enforcement officers’ reliance upon undercover civilian in-

formants is a commonly accepted law enforcement prac-

tice, that developing persons to act in such capacity is

frequently a necessary part of police work, and that the

need to rely upon such individuals is particularly great in

order to solve ‘‘non-eyewitness’’ crimes such as burglary.

(Tr. 519, 546-47, 936-79) °

The court refused to permit defense counsel to cross-

examine Leverence concerning his prior conviction in the

State of California for fraudulent use of credit cards. (Tr.

617-29, 662-73)

6 All cited testimony in this regard is from witnesses other than

defendants.

WORD oo!

App. 12

The court interrupted defense cross-examination of

Bodie regarding his immediate past use of drugs and con-

trolled substances * (Tr. 157), and Bodie refused to answer

pertinent questions posed later during cross-examination

regarding his present and immediate past use of various

‘shard’? drugs.’ (Tr. 244) '

All defendants testified. McCarthy’s testimony was that

Bodie instigated the events concerning Leverence, and

that Bodie furnished the merchandise sold to Leverence.

(Tr. 1014-1153) All the officers testified that their purpose

was not to obtain any money from Leverence, but solely

to gain information regarding criminal activity known to

Leverence in and about the Mallers Building, (Tr. 1031-32,

1068, 1130, 1203-09), particularly concerning a large jewel-

ry theft therein, to which still-open burglary investigation |

McCarthy had been assigned. (Tr. 987-90, 999-1000) All

defendants testified that Bodie alone got all the money

which had been obtained from Leverence, and put it in

his (Bodie’s) shoe. (Tr. 1036, 1148, 1153, 1209-11) While

Uginchus had been in MeCarthy’s company during some

7After Bodie had admitted previous marijuana use, Bodie an-

swered defense counsel's question, “When did you stop [smoking

marijuana],” by stating. “That is my own personal business and

none of yours.” (Tr. 157) To: “When is the last time you used

marijuana,” Bodie replied, “It is none of your business.” (Tr. 157)

The court then terminated this line of questioning sua sponte.

(Tr. 157)

8Q. [by defense counsel]: Did you ever use any other form

of drug or narcotic? Did you ever use speed?

A. [Bodie]: Whatever I used, it doesn’t make any difference.

Q. My question simply is—

A. I think what I have done in that field is my business. If I

have done drugs, it is my business. It is not anyone’s busi-

ness. It is my own personal business.” (Tr. 244)

App. 13

of the preliminary discussions with Bodie (Tr. 14-6, 1007-

08), petitioner, who coincidentally was at the police station

when McCarthy and Uginchus were about to leave to keep

their appointment with Bodie on September 10, 1973, just

happened to go along to assist them in developing Lever-

ence as an informer. (Tr. 1023-24, 1133, 1197-99) MeCarthy

and Uginchus were assigned to Area 1 Burglary, while

petitioner was assigned to Area 1 Robbery, different units

of the Chicago Police Department located in the same

building (Tr. 1197) at the time of the events in question.

(Tr. 986, 1115, 1187). A number of character witnesses

testified for each defendant. (See Tr. 890-979)