Appendix — Callahan v. United States

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Seventh Cirenit

No. 74-1618

United States of America,

Plawtif A ppetle«.

v.

Jerome V. Callahan,

Defendant Appxtlent

ORDER

[Dated May 5, 1975, entered by Chief Judge Fairchild,

Cireuit Judge Cummings, and Cireuit Jadge Doyle of

the 10th Cireuit.*}

This is an appeal of a criminal conviction. The indict.

ment contains two counts under 18 U.S.C. § 1961, the Hobie

Act. Each count describes a distinet extortion (rameaction

The jury returned a verdict of not guilty on Cowst 1 and

of guilty on Count 2.

The first count alleged that the appellant, « Ceptaia for

the Chicago Police Department, obtained the com of 670

from a Mr. Sannasardo, « tavern owner. The tacident

which gave rise to this was a fight which corerred co Jew

uary 19, 1969. A customer who was burt called the polive

The investigating officer went to the tavern. He imtiqusted

* Sitting by designation.

App. 2

to Sannasardo that he was in danger of losing his liquor

license. Thereupon, Sannasardo offered to pay the officer

$100, but the latter said that that would be insufficient and

that Sannasardo would have to come to the station. He did

so and met appellant police captain who demanded $1200.

Negotiations followed and an agreement was made to pay

$750 to appellant.

The second count was not dissimilar from the first in

that it involved the use of official authority by the appel-

Jant against one Medow who operated a liquor store in the

appellant’s district. It started when the appellant told the

owner, Mr. Medow, that he had seen his trucks making

illegal deliveries. Appellant told Medow that he had had

a similar problem before and had made an arrangement

with the owner. He also told Medow that he could use a

ease of whiskey. Medow gave the case of whiskey to the

appellant. Thereafter, appellant came to Medow’s store

with some regularity. Every five or six weeks he obtained

free a case of VO Whiskey worth approximately $60.

Medow’s testimony was that he felt threatened, that he

knew appellant was the Captain of the Police in his dis-

trict and he considered that it was better to have him as

a friend than as an enemy.

On this appeal it is contended that as a result of dissimi-

larity between the transactions, joinder of the two counts

was improper or, in the alternative, that a severance should

have been granted due to the prejudice arising from the

joinder. The many other points raised by appellant are

alleged trial errors:

Alleged improper admission of evidence which occurred

prior to January 1969; failure of the court to question

the jurors as to newspaper accounts of the trial; insuffi-

ciency of the evidence to establish the essential element of

App. 3

extortion. On this it is maintained that the evidence mere-

Jy supports the conclusion that these were gifts; failure of

the court to instruct the jury on the contrasting definition

of bribery; alleged error in the court’s instruction to the

jury that the court would not, during their deliberations,

entertain requests as to the evidence.

The above are some but not all of the points which are

advanced. There are other arguments set forth in the

brief. Based on a consideration of the entire record to-

gether with all of the points argued, we conclude that the

judgment must be affirmed.

I

JOINDER AND SEVERANCE

The argument here, as we have indicated, is that it was

prejudicial error to join the two counts which have been

described briefly above. The standards for joinder are

set forth in Rule 8(a) which provides in pertinent part:

Two or more offenses may be charged in the same in-

dictment . . . if the offenses charged .. . are of the

Same or similar character or are based on the same

act or transaction or on two or more acts or transac-

tions connected together or constituting parts of a

common scheme or plan.

Are the offenses here the same or of similar character?

The contention is that there is a dissimilarity because 1)

there are different victims; 2) different considerations

passed, money in the one case and whiskey in the other;

3) the money transaction in Count 1 described a single

incident, whereas Count 2 pertains to continuing viola-

tions and continuing payment of whiskey; 4) the allega-

tion in Count 1 is that there was extortion by causing fear

of economic harm and under color of official right, whereas

Count 2 merely alleges color of official right.

a mea INES AIA mgr A IS

App. 4

There is similarity in that each count alleges use of

official position to obtain property from another. True,

the victims were different and the property obtained was

different. We hold, however, that the differences are less

important than the similarity. In both instances official

position was used to wrongfully obtain the property of

another.

The general character of each case was the same. The

factor of different victims assumes little importance. Thus

in Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964),

joinder of a count charging robbery of one store with a

count charging attempted robbery of another store was

upheld. See United States v. Franklin, 452 F.2d 926 (8th

Cir. 1971) involving interstate transportation of forged

checks. In Franklin count 1 was a transaction which was

remote from and unrelated to counts 2 and 3. See also

Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968),

cert, denied, 400 U.S. 965 (1970). Here there were two

counts of income tax evasion for the years 1962 and 1963.

In the case at bar neither remoteness in time nor the fact

that one transaction was continuing rendered the counts

improperly joined.

United States v. Quinn, 365 F.2d 256 (7th Cir. 1966) is

not controlling. There the court said that even if joinder

was proper, severance should have been granted in view

of the complexity of the transactions.

We recognize that under Rule 14, Fed. Rules Crim. Proc.

severance is proper if the joinder is prejudicial.

In our judgment the order here which denied severance

was a correct exervise of discretion. United States v. Bar-

rett, 505 F.2d 1091 (7th Cir. 1974); United States v. Hutul,

416 F.2d 607 (7th Cir. 1969), cert. denied, 396 U.S. 1012

(1970).

App. 5

The general rule is that if evidence on one count would

be admissible with respect to the other as a similar of-

fense, the denial of severance is proper. See Drew vy.

United States, 331 F.2d 85 (D.C. Cir. 1964). See also

United States v. Williamson, 482 F.2d 508 (5th Cir. 1973) ;

Robinson v. United States, 459 F.2d 847 (D.C. Cir. 1972) ;

Bradley v. United States, 433 F.2d 1113 (D.C. Cir. 1969).

Here, evidence as to each crime is relevant with respect

to intent or motive.

We conclude that the two counts in this case were simple

and not likely to confuse the jury. The incidents were dis-

tinct and the instruction to the jury to consider the evi-

dence in support of each count on a separate basis served

to avoid possible confusion.

Appellant finally argues that he was prejudiced because

he was deprived of the right to take the stand and testify

on one count. It is true that joinder may possibly produce

prejudice where the defendant wishes to take the witness

stand and testify on less than all of the counts. Cross v.

United States, 335 F.2d 987 (D.C. Cir. 1964). But the mere

assertion that he may wish to testify in this manner is not

sufficient. He must make some showing of prejudice. See

United States v. Williamson, 482 F.2d 508 (5th Cir. 1973).

We find no prejudice in any onerous or invalid sense.

II.

IMPROPER COMMENTS DURING VOIR DIRE

During the voir dire the trial court, in explaining the

government’s burden of proof and the appellant’s right to

remain silent, first asked the jury if any of them had feel-

ings for or against policemen. The court then, by way of

illustration, stated that the jurors should start out with

no advance feelings and without being programmed. Thus

App. 6

the court used the computer metaphor. Also, the court

asked the jurors to consider that they were sitting at either

the government’s side of the table or the appellant’s and

to ask themselves whether if it were their case they would

be willing to trust the decision to 12 persons with the same

attitude which they had.

We are unable to see any error in the use of illustrations

of this kind b¥ the court, nor do we perceive error in the

court’s statement that the evidence of the defense follows

that of the government as being an implication that the

defense will present a case. The jury was also instructed

that the appellant had no obligation to present a case and

that he had an absolute right to refuse to testify. In this

instance he exercised this right.

Ii.

EVIDENCE OF OTHER OFFENSES

Count 2 of the indictment charged a continuing offense

of extortion of Medow from January 1969 to July 1971.

Medow was allowed to testify, however, that the practice

of giving liquor to appellant commenced in May or June

1967. It was at this early date that the conversation re-

garding illegal deliveries took place. The giving of liquor

during the years of January 1969 to July 1971 was a con-

tinuation of the original transaction. The question posed

is whether the action of the court in receiving all of this

testimony involving as it does prior criminal activity not

charged in the indictment was error.

Appellant makes two points: first, he argues that the

evidence does not support the common scheme or plan ex-

ception to the rule excluding this kind of evidence. He also

argues that since much of this evidence was beyond the

statute of limitations, that fact should also bar it.

App. 7

The second main contention is that the evidence is pro-

hibited by the rule of United States v. Fierson, 419 F.2d

1020 (7th Cir. 1969), wherein the court said that evidence

of prior criminal acts is inadmissible to show intent or

knowledge if intent or knowledge is not an issue in the

case. First, the Fierson rule is not applicable because at

bar the intent element was more than a formal issue. True,

the appellant did not present positive evidence, but evi-

dence was brought out on cross-examination of the gov-

ernment’s witnesses and the general object of this was to

demonstrate that appellant did not have a corrupt intent.

We are mindful also that the intent of the victim Medow

was in issue and there were efforts on the part of appellant

to establish that Medow’s motives were purely charitable.

Of course, the 1967 original conversation between Medow

and appellant was indispensable to an understanding of

the subsequent actions by the parties.

We disagree with the appellant’s other contention that

the evidence was inadmissible to show a plan or scheme.

See United States v. Jones, 438 F.2d 461 (7th Cir. 1971);

United States v. Turner, 423 F.2d 481 (7th Cir.), cert. de-

nied, 398 U.S. 967 (1970). In Jones this court said:

Evidence of other criminal activities is admissible

if it is relevant, unless minor probative value is out-

weighed by major prejudicial effect. And the balanc-

ing of probative value against prejudice is, in the first

instance, left to the sound discretion of the trial judge.

438 F.2d at 465.

The evidence of the 1967 conversation and the pattern of

gifts was probative. Indeed, the value derived far out-

weighed any prejudicial effect. See United States v.

Braasch, 505 F.2d 139 (7th Cir. 1974).

App. 8

Finally, the fact that some of the acts occurred prior

to the period of limitations is not a bar. The important

consideration is that it was not so remote as to be without

probative value. The transaction was continuing and the

incidents of it were admissible. See United States v. Gen-

eral Motors Corp., 121 F.2d 376, 408 (7th Cir.), cert. de-

nied, 314 U.S. 618 (1941).’

IV.

PUBLICITY DURING TRIAL

The jury was selected on June 17, 1974 and the case was

submitted on June 20, 1974. During this period there were

four newspaper articles, two on June 19 and two on June

20. Since the jury was not sequestered, it had access to

these articles. Appellant’s counsel called the court’s atten-

1 Appellant also contends the evidence was inadmissible because

it was not disclosed in the bill of particulars. Appellant relies on

United States v. Neff, 212 F.2d 297 (3d Cir. 1954). Neff was

charged with perjury in denying to the grand jury that she had col-

lected dues for the Communist Party. In the bill of particulars the

government listed the times of the payments of dues as August,

September, October of 1946 and January 1948. The dues were col-

lected from Woolley and Verderosa. At trial the government called

an additional witness, not disclosed until trial, who testified as to

payment of dues by two other people in 1945. The court held this

proof was inadmissible as outside the bill of particulars and that the

new evidence had surprised defendant and substantially increased

the burden of her defense. In Neff, the prosecution had been al-

lowed to produce new evidence from which the jury might convict

even if it disbelieved the evidence with respect to the other alleged

payments of dues. Here, Callahan was adequately apprised of the

offense with which he was charged. A bill of particulars is not to

be used as a discovery device. Appellant knew Medow would testify

and it was not necessary that the bill of particulars recite what his

testimony would be in every detail.

App. 9

tion to the four articles and requested that the jurors be

examined with respect to them. However, the trial court

determined after an examination of the articles that there

was no prejudicial material in them and on that ground

refused to question the jury. The trial court did, however,

instruct the jurors repeatedly that they were not to read

or listen to any publicity about the case and that it was to

consider only evidence introduced in court.

In Margoles v. United States, 407 F.2d 727 (7th Cir.),

cert. denied, 396 U.S. 833 (1969), there had been extensive

publicity. Two articles in particular created problems.

The one contained the names and addresses of the jurors

resulting in anonymous mail being sent to them. The sec-

ond published testimony given outside the presence of the

jury, which evidence was ruled out. The four articles in

the case at bar were mere factual reports which were short

and had non-prejudicial headlines. Although they con-

tained minor inaccuracies, they did not bring out evidence

which had been ruled inadmissible. Since, therefore, there

is a sound basis for the trial court to rule that the articles

were not prejudicial, the court was not called on to ques-

tion the jurors as to whether they had read or heard about

the same.

¥.

ALLEGED INSUFFICIENCY OF THE EVIDENCE

The argument is that the evidence considered in its best

light lacks corrupt character; that it merely shows gratu-

itous gifts evidenced by the friendly relationship between

appellant and Medow. We disagree, however, that this

friendliness rules out extortion. See United States v.

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

Demet, 486 F.2d 816 (7th Cir. 1973), cert. denied, 416 U.S.

App. 10

969 (1974). The surrounding circumstances were such that

the jury could infer the existence of an underlying threat

from appellant to Medow, and Medow testified that he was

aware of this.

VI.

Further assertions are advanced by appellant. It is

contended that the government counsel was guilty of mis-

conduct in closing arguments and that the appellant’s

counsel was invalidly restricted in his closing argument.

It is also said that the judge erred in his final instruction

to the jury which admonished the jurors not to make in-

quiries as to the specific testimony which had been given.

We find no error in any of these assignments nor do we

perceive error in any of the court’s instructions or in the

rulings of the court with respect to tendered instructions.

We have not failed to consider the argument concerning

the denial of appellant’s motion for continuance and the

assertions regarding the refusal to dismiss the indictment

and the allegations with respect to refusal of the court

to suppress Medow’s testimony. Moreover, we see no

error in the action of the court in excusing jurors. Each

and every other argument of appellant has been considered

and has been determined to be without merit. The cause

was carefully and ably tried.

The judgment of the district court is affirmed.

App. 11

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 7, 1975.

Before

Hon. Thomas E. Fairchild, Chief Judge

Hon. Walter J. Cummings, Circuit Judge

Hon. William E. Doyle, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 74-1618 vs.

JEROME CALLAHAN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

(73 CR 890)

On consideration of the petition for rehearing and sug-

gestion that it be reheard en bance filed in the above-entitled

cause by counsel for the defendant-appellant, no judge in

active service having voted to grant the suggestion, and

all of members of the panel having voted to deny a re-

hearing.

It Is Ordered that the petition for a rehearing in the

above-entitled cause be and the same is hereby Denied.

App. 12

APPENDIX C

Summary of Facts

There was a great deal of conflict amongst the three

government witnesses—Joseph Sannasardo, proprietor of

a tavern (Tr. 106-84) ; Peter Sannasardo, father of Joseph

(Tr. 196-206) ; and John Landa, patron of the tavern (Tr.

207-22)—concerning Count I.* A summary of all of their

testimony follows:

While Joseph Sannasardo was at his parents’ apart-

ment, upstairs of his tavern, a fight broke out among some

of the patrons. John Landa was injured in the fight and

the police were summoned. An officer who identified him-

self to Joseph Sannasardo as Officer Hippert (and who did

not testify) advised him they would have to ‘‘pull his

license’’ because of the fight on the premises; Joseph

offered him $100 to avoid such action. Hippert told him

it would cost a lot more than that; that he would have

to see someone at headquarters. At the station Hippert in-

troduced him to a Captain (whom Joseph Sannasardo iden-

tified as petitioner) who advised Sannasardo it would cost

$1200 to straighten it out; they negotiated as to price,

finally settling on $750. Sannasardo had $250 with him

which he gave to the Captain, and brought in the balance

of $500 the following day. Landa was taken to a hospital

by police vehicle the night of the fight, which, according

* Although petitioner was acquitted upon Count I, the facts per-

taining to that Count are briefly set forth herein, inasmuch as the

evidence adduced thereon is now pertinent as bearing on petitioner’s

argument herein that the trial court’s refusal to sever the counts for

trial resulted in prejudice to him as to Count II, upon which he was

convicted. (See Argument, Point 1, pp. 9-14, supra.)

App. 13

to hospital records (Tr. 222-30) was January 19, 1969. No

police reports were written up concerning the incident at

the tavern, absence of which reports was contrary to

standard operating procedure of the police department,

according to several witnesses to that effect. An Officer

Hippert was on duty the night of the incident in the area

where the tavern was located. Petitioner was the Watch

Commander on duty on January 19 and 20, 1971, in Dis-

trict 19.

John Fahey, called by the government to identify cer-

tain police records and petitioner’s signature, and to

testify concerning the duties of a watch commander and

various police department procedures, testified that he

was District Commander of the 19th District from 1962

to May 4, 1970; during the entire period of time that peti-

tioner was a Captain and Watch Commander, Fahey

was his commanding officer. On cross-examination, Fahey

testified that during petitioner’s seven years as a Watch

Commander under his supervision, he found petitioner to

he an effective police officer and had no bona fide com-

plaints that he was dishonest. (Tr. 258)

As to Count II,** the evidence was as follows:

Robert J. Medow testified that he was president of the

corporation which owns and holds the liquor license for

Southport Crown Liquors at 3709 N. Southport, Chicago.

(Tr, 326-28) During the period January 1969 through

** A rather detailed summary of the evidence as to Count II is in-

cluded herein to give this Court an opportunity to consider the im-

pact of errors claimed in this Petition in the light of the factual

framework of the entire trial, per Kotteakos v. United States, 328

U.S. 750, 763-65 (1946), and Chapman v. California, 386 U.S. 18,

24 (1967).

App. 14

July 1971, petitioner came to his place of business on the

average of every 5-6 weeks to two months, and on each

such occasion Medow gave petitioner a case of V.O. whis-

key. (Tr. 332-34) Over objection, the witness testified

that in May or June of 1967 he had a conversation with

petitioner about giving him whiskey, and that the occa

sions in 1969 through 1971 when he gave petitioner whis-

key were a continuation of a practice which started in

1967. (Tr. 334-36) Petitioner’s motion for mistrial was

denied. (Tr. 336) Medow testified that at this initial 1967

conversation, at which only he and petitioner were present

(Tr. 335), petitioner told him he had seen Medow’s de-

livery trucks delivering whiskey and beer to taverns, and

asked him didn’t he know that was against the law. Medow

said he knew it was against the law, and that petitioner

‘related that he had come up against the same kind of

problem’’ previously. (Tr. 336) ‘‘He said he had come to

some type of arrangement with the other retail liquor

owner, Rothchild by name.’’ Petitioner’s motion for mis-

trial was denied. (Tr. 337) Medow testified petitioner

said, ‘‘I could use a case of whiskey,’’ and he gave him

one (in May or June 1967). (Tr. 337) (Renewal of motion

for mistrial, denied. Tr. 337-38) Medow stated he felt

threatened by petitioner because he (Medow) was doing

something ‘‘slightly irregular’’. (Motion for mistrial, de-

nied. Tr. 338-39) After that, petitioner would call every

5 weeks to two months and say he was out of whiskey, he

could use a case of whiskey and would come to Medow's

store, and on each occasion Medow gave him a case of

V.O. (Tr. 339) With respect to the subsequent deliveries

of cases of whiskey by Medow to petitioner, Medow tes.

tified :

“I never changed my state of mind. The other reason

would be that if you are a retail liquor license holder

App. 16

liquor store rather than a local bar. (Tr. 348-49) In the

past, Medow had made gifts to other police officers, both

at Christmas time and on other occasions, both of cash

and liquor. (Tr. 349) During the period of time covered

by the indictment, January 1969 to July 1971, Medow

never asked petitioner for an improper act of any form.

(Tr. 351) If there was a choice on his part, Medow testi-

fied, he wanted petitioner as a friend. (Tr. 351) Medow

had refused to speak to various investigators petitioner's

counsel had sent to interview him (Tr. 350), but on one

occasion Medow sold one of petitioner’s investigators a

case of wine for a very good price. (Tr. 352) Neither that

investigator nor the court reporter who accompanied him

to Medow’s establishment threatened Medow in any wav.

(Tr. 352-53) Medow was invited to petitioner’s house to a

party. (Tr. 353) Medow gave petitioner some decorations

—three stuffed leprechauns—-for use at that party. (Tr.

353-54)

During the period from January 1969 to July 1971, peti-

tioner did not threaten Medow. (Tr. 354)

When Medow was interviewed by the FBI, he was never

told that he (Medow) had committed any crime (Tr. 355),

and he never stated that petitioner had extorted him. (Tr.

356)

Petitioner never threatened to put Medow out of busi-

ness or to take his license. (Tr. 356)

On one occasion Medow asked petitioner to come out

and take a look at Medow’s trucks and parking area from

a security standpoint; the parking area is not visible from

the street. While Medow did not remember exactly, he

testified it was possible that he had asked petitioner to

keep a lookout in the evening for the trucks in the back,

and also to look out for and keep his eye on Medow’s store,

which contained substantial inventory. (Tr. 357-58)

App. 17

On redirect, Medow testified that when petitioner pur-

chased alcoholic beverages for his daughter’s wedding, he

asked how much it was going to cost. He never asked how

much the cases of V.O. would cost. (Tr. 358-59) Medow

did not consider the cases of V.O. as gifts; he considered

that petitioner had threatened him for something he knew

Medow was doing that was ‘‘slightly irregular,’’ and

Medow felt it was ‘‘sort of blackmail.” (Motion for mis-

trial, no ruling thereon.) (Tr. 359) Medow’s trucks con-

tinued making deliveries to liquor stores during 1969

through 1971 (Tr. 359-60); he stopped in 1972 after the

State stopped them. (Tr. 360) If petitioner had not been

a Police Captain, Medow would not have given him liquor

on a regular basis. (Tr. 360) (Objection, overruled)

Medow continued to give petitioner cases of V.O. even

after his trucks stopped delivering to retail establishments

in January 1972. (Tr. 361)

William Nass testified that he has been employed by

Medow’s establishment for the past 15 years. (Tr. 362)

About four or five years ago (Tr. 363) Nass was told by

Medow that petitioner was coming in, and if he came in

to give him a case of liquor. (Tr. 364) Petitioner did not

pay or offer to pay Nass for the liquor. (Tr. 364-365)

During the period January 1969 to July 1971, Nass per-

sonally allowed petitioner to obtain cases of liquor sev-

eral times, under orders from Medow. (Tr. 365) The

liquor he allowed petitioner to have were cases of fifths

of V.O. whiskey. (Tr. 366)

On cross-examination, Nass testified that on each of the

occasions when petitioner would get whiskey from Nass

after getting instructions from Medow (Tr. 366-67), peti-

tioner came into the establishment himself; he was al-

ways pleasant; Nass never saw him threaten or get hos-

App. 18

tile with anyone, neither with himself (Nass) or Medow,

or anyone else. (Tr. 367) Nass knew petitioner to be

Watch Commander in the district. At the time, Nass

never thought of calling the police because petitioner was

getting whiskey from Medow. (Tr. 367) Nass never heard

Medow state that he wanted petitioner to break the law,

or that he wanted something from petitioner that would

violate the law, for giving petitioner whiskey. (Tr. 367-

68) Nass testified he was Medow’s right-hand-man; when

Medow was not there, Nass was in charge; Nass has a key

to the establishment, wherein liquor worth many tens of

thousands of dollars is kept. Medow has confidence in Nass.

Nass’s dealings with petitioner were always amicable.

(Tr. 368)

The government presented evidence that both liquor

stores purchased alcoholic beverages from outside Illinois

for resale in Illinois. (Tr. 291-326)

After the government rested (Tr. 369), the court de-

nied petitioner’s motion for acquittal at the close of the

government’s case. (Tr. 378) The defense rested. (Tr.

390) The court reserved ruling on petitioner’s motion

for directed verdict at the close of all the evidence (Tr.

446) and denied said motion as to Count II after the

verdict was returned. (R. 57)