*4 Association, that in July testified late STEPHENSON, Circuit Judge. for the purpose he came to Iowa of retain- Defendant Adcock appeals ing representative company. a for his Its on charging conviction two counts viola- previous representative had died in 1964. (18 1951); the Hobbs tions Act § U.S.C. During the course of his visit he met with charging three counts evasion of willful his office appellant in at the Commission. (26 7201) federal income taxes for U.S.C. § Perelli-Minetti testified appellant, years 1971; the and and three said, among things, other “You a don’t need * * * charging counts the income filing of false I broker. will take care of your * * * (26 7206(1)) returns for tax U.S.C. the § I will your prod- orders. see that years. imposed same The district court1 a ucts are distributed to the state stores. * * * year three concurrent sentence on all [Njobody good can do as joba as counts, $20,000. totalling and fines In this ap- can.” Perelli-Minetti then related that appeal urges defendant trial er- numerous $20,000 pellant for in asked cash in starting We rors. affirm. 1965; year the same amount each thereaft- er, $10,000 in appel- paid In brief the evidence to be the indicates installments at Liquor spring monopoly was a member and fall lant of the Iowa state conventions. $15,000 (Commission) Commission for over He testified that was actually paid Control Nangle, *The Honorable John F. United States $10,000 Southern District of íowa. A fine of Judge District for the imposed Eastern District of Mis was counts, $5,000 on Count I of the extortion souri, sitting by designation. count, on the 1969 tax evasion $5,000 Hanson, charge. 1. The Honorable and William 1970 tax C. evasion Chief Judge, United States District for Court giving the E. $25,000 instruction found in Devitt up in 1966 to make in $20,000 Blackmar, 1965, and the each C. Federal and $5,000 Jury deficit in and Practice prosecution 13.08, thereafter, including (2d at 281 ed. Instructions year § 1969,1970 According years un The evidence admissible Perelli-Minetti, making pay- funds 404(b), provides: which der Fed.R.Evid. generated within appellant ments to were (b) crimes, Evi- wrongs, or acts. Other by payment invoices company false crimes, dence or acts is wrongs, of other documents made in Numerous cash. prove not character of a admissible corroborative of Perelli-Minetti’s person in order to show he acted Other received in evidence. evidence were however, conformity may, therewith. will verdict be dis- supporting guilty purposes, admissible for other such as errors in connection with trial cussed proof motive, intent, opportunity, urged by appellant. preparation, plan, knowledge, identity, own testified in his behalf and Appellant of mistake or absence accident. any he funds from denied that received plan Here with the began the extortion else. He ac- anyone Perelli-Minetti or by demands for made cash knowledged receiving couple a $200 in late The de 1965.3 Pedrick, another liquor times from Linwood mands met payments were cash dinner tickets to a representative, buy commencing continuing in 1965 and without party. receiving also admitted political He interruption through prosecution years watch, set and suit as gold tv a portable appellant until left Commission on various occa- gifts from Perelli-Minetti December 1971. It is established well sions. appropriate that it is course of *5 show the Acts Similar conduct to the form leading events which of the crime charged. basis United Appellant objected to Perelli-Minetti's Calvert, 895, 907 (8th v. 523 F.2d States Cir. of ex- testimony concerning genesis 1975), denied, 911, cert. 424 96 U.S. S.Ct. scheme all subsequent tortion in 1965 and 1106, 47 (1976); L.Ed.2d 314 States United prior prosecution to the payments years. 650, Conley, (8th 1975), v. 523 F.2d 653 Cir. experienced trial court cau- promptly denied, 920, 1125, cert. 424 96 47 U.S. S.Ct. jury2 tioned the that the defendant onwas L.Ed.2d (1976); 327 United v. Co States only charged trial those acts in the chran, 1080, Cir.), (8th 475 F.2d 1082-83 only indictment “Such evidence is that denied, 833, 173, cert. 414 94 38 U.S. S.Ct. possible to light admissible shed mo- L.Ed.2d (1973); United 68 McCormick v. intent or possi- tive or of the Defendant States, 237, 238-39 (8th 9 F.2d Cir. plan ble existence of scheme or in terms a to objected clearly evidence admis charged of the crimes in this indictment. * * * sible. [Ejvidence of other acts you may objected deem to be similar are not admissible to acts by appel- Other similar in proof show the Defendant acted lant consisted of that re- conformity appellant * ** acts with those at a later date ceived illegal payments from other individ- repeated The court this admonition on sev- uals in liquor industry under circum- payments by eral occasions and further instructed on this stances similar to the made charge in its to the subject jury by final and Clair during Perelli-Minetti Fischell4 * * * Calvert, by 895, obtaining 2. See United States v. 523 tion to wit: on or about F.2d ** denied, 911, 24, 1971, (8th 1975), April 907 Cir. 424 from Mario cert. U.S. 1106, (1976). $10,000 property currency 96 S.Ct. 47 314 in the form of in L.Ed.2d ”* * * charged I of 3. Count the extortion counts 1, 1964, Fischell, January employee on or 4. Clair an of a firm that “between about and on * ** April 24,1971 represented about Brothers Wine and Christian Branr * * * * * * companies, feloniously dy liquor delay did testified other * * * years commerce, during prosecution of 1970 and affect interstate extor- the tax 402 and intent issue of motive unless the court Pedrick, a Linwood years, prosecution “sub value was objec- probative found that its testified over
liquor representative,
danger of un
outweighed by
payments
stantially
a month
making
tion
$200
period from
403. United
during
two-year
a
Fed.R.Evid.
appellant
prejudice.”
fair
1,
(8th Cir.,
1, 1965,
Maestas,
It was
834
July
v.
554 F.2d
States
money
supra,
some of the
523
1977);
Conley,
v.
recollection
United States
meetings
654;
Marchildon,
or conven-
at
v.
appellant
at
United
paid
F.2d
States
Sibbert,
liquor
a
Similarly, Raymond
337,
(8th
1975);
tions.
519 F.2d
Cir.
United
made
that he had
77,
related
Olsen,
(8th
79-80
Cir.
representative,
v.
487 F.2d
States
$5,000 to
totaling approximately
payments
993,
,
denied, 415
94 S.Ct.
1973) cert.
U.S.
period
office over the
appellant at his
(1974).
Neither
court
885,
Sparrow,
470 F.2d
expected
clairvoyant.
ment can be
to be
936,
1972),
denied,
cert.
411 U.S.
93 S.Ct.
was not an abuse of discretion for the court
1913,
(1973);
to admit relevant evidence on the essential
36 L.Ed.2d
United States
money
pay-
appellant
$500
1971 on three
he made
the
from his
occasions
wallet
would
appellant
open
put
ments to
in his office at the
his drawer and Fischell would
the
Commis-
money
sion. Fischell indicated that after he removed
therein.
he
209,
in 1970 or 1971
had
discussion
Hicks,
that
U.S.App.D.C.
marketing of
with Perelli-Minetti over the
Moreover,
testimony
the
(1967).
admitting
court before
wine in Iowa. The
the
of Per
testimony
of
was corroborative
that “such
testimony
jury
cautioned the
that
that
told him
he
appellant
elli-Minetti
being
prove
not
admitted to
testimony is
not to wor
leaving the Commission but
only
he
any
the truth of
matters
asserts but
secretary
still be there. Ac
his
would
ry,
alleged
of the
to show the state of mind
Perelli-Minetti,
further
cording
appellant
then testified that “I
as
victim.” Karkule
just
can
about much for
told him “I
do
Iowa,
he
him
he
into
and
got
as I could in
asked
how
outside the
you
Commission
**
* I
him
way’
‘The hard
.
asked
said
We are satisfied
side
Commission.”
cost,
it
recollection is
my
what
and
best
did not
its discretion in admit
court
abuse
* *
United that
he
20 or 25
*.
Cf. Sears v.
said
thousand
ting
testimony.
this
* * *
said, ‘Well,
I
States,
that didn’t
too
cert.
150, 152-53 (8th Cir.),
seem
F.2d
’
**
*
with, ‘Well,
denied,
and he remarked
41 bad
417 U.S.
94 S.Ct.
”
Pedrick,
every year.’
Linwood
an-
that’s
L.Ed.2d 670
liquor representative,
testified that
other
he, too,
paid money
had
to the defendant
Instructions
continuing the
doing
and that in
so he was
error in the trial
urges
Appellant
practice
up by
prede-
which had been set
his
his
instruc
give
requested
refusal
court’s
cessor,
prede-
Coates.
stated “my
Pedrick
No.
which refers to
absence of
tion
on,
was going
informed me that this
cessor
in a
duty
of the defendant
any
part
on
at his retirement
and
produce
or
case to call witnesses
criminal
arrangements
continued the
that had been
evidence,
which in
instruction No.
* * *(Prior
re-
previously made
weigh
were not to
structs
repeated
ceiving
this
the court
its
of the number of
on the basis
the evidence
instructions.)
of mind
similar acts and state
side. After
testifying
either
witnesses
argues that Karkule’s and
appellant
aas whole we
the instructions
examining
were
hearsay
Pedrick’s statements
fully instructed
satisfied that the court
are
therefore inadmissible.
of the
of innocence
presumption
The court further
instructed
.defendant.
this,
Act
such as
In a Hobbs
case
upon
proof
“always
is
burden
victims
the state of mind of the extortion
is
guilt beyond a
prosecution
prove
charged.
crime
an essential element of the
doubt,”
“the law never
and that
reasonable
must establish
in a criminal case
imposes upon defendant
part
the victim
with
induced
any witnesses
calling
or
duty
the burden
money
defend
property
Further,
any evidence.”
or producing
may be
so
extortion. Extortion
by
ant did
fully
credibility witnesses
matter of
fear,
or “under
committed either
use
of error
appellant’s claim
covered. We find
right.”
color of official
U.S.C.
to with
respect to the instructions
with
of
1951(b)(2). Extortion “under color of
§
out merit.
*7
wrongful
taking by
right” is the
a
ficial
not
public
money
property
officer of
due
to
state of
statements
show
Out-of-court
office,
taking
not the
him or his
whether or
mind
force, threats or use of
accomplished by
was
of eco
The
“fear” includes fear
the district court
fear.
term
The
contends
appellant
payments are made
testimony of Ed-
nomic loss. Unless the
admitting
in
certain
erred
Pedrick,
compulsion there is no
Karkule,
under some form of
Perelli-Mi-
Linwood
ward
recognized that
appellant
The
instructing
in
extortion.
Joseph
and
Vinti and
netti
victims was
alleged
of the
the state of mind
state of mind testimo-
jury concerning
At
close of
Karkule,
repre-
crucial
conviction.
liquor
then
ny. Edward
an instruc
proffered
appellant
evidence the
doing
with
state
sentative
business
and
bribery
defined
extortion
objection by appellant
tion which
Iowa, testified over
it,
that defendant could
made of
the utterance is
jury
and cautioned the
admissible,
the indictment
not be convicted under
for
therefore
so far as the
course, connotes a vol-
bribery. Bribery, of
concerned.
Hearsay rule is
gain, where
offer to obtain
extortion
untary
See
Wigmore,
Evidence
§
coercion. Under
connotes some form of
States, supra.
Nick v. United
Thus it is
could not be
indictment defendant
convict-
ground
no
objection
the third
the state of
bribery.
ed of
Thus
mind of
person making the statement
to the vic-
is
evidence
victim crucial and
thereof is
tim is not produced as a witness or even
803(3).
admissible. Fed.R.Evid.
that he is not
named.
defendant’s
right of
preserved
cross examination is
in
it is well
In this circuit
settled that
that he can ask the witness whether he
state of
testimony showing mind of the
truly
fear-producing
heard these
state-
victim through out-of-court statements
is
ments.
admissible in an extortion case. United
Freeman,
See also United
v.
States
514 F.2d
Biondo,
635,
States
(8th
483 F.2d
Cir.
1184,
(10th
1975);
1190-91
Cir.
denied,
cert.
1973),
947,
415 U.S.
94 S.Ct.
Stirone,
States v.
(3d
Wherever an utterance is offered to such invoices were furnished and used by evidence the state of mind which en- him. Since Perelli-Minetti was testifying sued in another person in consequence did, as to what he said and there was no utterance, of the it is obvious that hearsay problem. no Fed.R.Evid. Adviso sought ry assertive or testimonial use is (d). Committee Note to Subdivision urges (deceased), trial further Perelli-Mi- was unavailable and his state- was, paying fact, penal netti’s statement $20,000 that he Karkule ment in in violation of his $25,000 year Bribery do business interest. awas violation of the Iowa charge Iowa was also admissible rebut a statutes and in of 18 violation U.S.C. § 801(d)(1)(B). (interstate recent racketeering fabrication. Fed.R.Evid. travel in aid enter- suggested prise). Counsel for defendant in his cross- We need reach these not contentions examination of Perelli-Minetti that Perelli-Mi- because we are satisfied the statements were paying properly netti was not but was in fact received to show state of mind. How- *8 stealing government ever, employer. from his in the case of statements to Coates’ Pe- urges Pedrick, death, also that Coates’ statement to drick before his it must be conceded hearsay, even if guarantee considered was admissible un- contained the circumstantial of 804(b)(3) reliability der by Fed.R.Evid. as a statement truthfulness and envisioned the against penal exception hearsay interest. Coates at the time of- to the rule. merit. Indictments were re- and without the trial also contends Appellant 1976, 13, and April on testimony turned in this cause admitting the of in court erred initially set 18, invoices 1976. The case was Vinti, phony identified June who Joseph 1976, 12, by July and checks endorsed for on and continued Inzinna trial by utilized 30, testimony Vinti’s August deceased father. until 1976. On Vinti’s to conver related objected by appellant upon a continuance the appellant moved for not offered which were prepare with Inzinna sations time was needed to ground more of Inzinna’s statements prove the truth granted motion was and his defense. The the circumstances offered to show but were set for 1976. trial was October with Vinti dealings surrounding Inzinna’s its the court abused dis- claims Appellant Inc. the termi Advertising, and and Vinti the bill of on denying particulars cretion in a relationship. It was collat of that nation untimely. was the the motion He ground prejudicial no way and in eral matter 29 “Written argues that under Local Rule defendant. discouraged in criminal cases are motions Hearing until the completion of Omnibus Arguments Closing in Rule Procedure set forth 31.” [Local] for the closing arguments counsel In the purpose a hearing, latter calls for the government commented: encourage voluntary of which is to disclo- is in the that he Adcock testified Mr. government sure the eliminate writ- by Vegas taking Las going of habit practice except necessary. ten motion when too cash, of it clear large sum and wasn’t Appellant any untimeliness on his contends $20,- whether it was testimony the on part due to his reliance these solely $40,000. 000 or complied rules which were not with. object am going MR. GILL: this The trial took note of same court was clear. testimony that. The ruling contention and in its stated: $15,000. understanding has been Court’s this [I]t it was. The COURT: Whatever THE hearing that no formal omnibus would be is. will what the record determine held, parties and that the would informal- interruption un- Let’s have less Proceed. ly comply with Local Rule 31. This is substance to it. less there real understanding was reinforced the the we echo reviewing testimony After meeting counsel Court’s informal with of the trial court. expressed the sentiment significant to It is note August appellant’s little claim There is substance filed pending the motion was some that misrepresented government counsel meeting, and six weeks after that some thus appellant and de- of prior to the Octo- impending four weeks trial. prived him a fair * * 18,1976 for case. ber trial date this charges Because nature Motion for New Trial against adequately are dis- defendant because the Appellant complains him, in view the detailed closed to for new trial trial court denied his motion the fact nature of indictments and an request oral granting without already dis- the Government has This is matter within hearing thereon. much the defend- closed information to trial the discretion of the court. ant, request, even if must be timely, Pitts, 1237, 1241 (8th States v. denied. find no abuse of discretion on We this record. reviewing the record we are After abuse court did not its satisfied trial for Bill of Motion Particulars particulars. denying discretion bijl motion The record indicates appellant’s The trial court denied the sources of particulars September for a bill of filed informed income, during prose- both grounds untimely unreported it was *9 cution pre-prosecution years. Sufficiency two of the Evidence indictments in this case total pages seven At evidence, the close of all de- and are detailed. They set forth in factual fendant moved to withdraw the issue of terms the elements of the offenses charged. whether defendant any made threat within sufficiently apprised defendant was the meaning of 18 U.S.C. § what he must be prepared to meet. The grounds of insufficient evidence. This mo- language was definite enough and certain tion was renewed at the close of all the protect defendant’s guar- constitutional evidence. Defendant against judg- antee double also moved for jeopardy. See United Brown, (8th v. 540 F.2d States Cir. ment of acquittal on all counts urging in- 1976). sufficiency of the evidence. provides U.S.C. part as fol- § Discovery lows: Appellant makes the general al (2) The term “extortion” means the legation that “The interest of justice and obtaining property another, with rights defendant’s under the Sixth consent, by wrongful induced use of
Amendment
required that he be afforded
force,
pre-trial
violence,
broader
actual or
discovery rights then
threatened
were
given
argues
him.” He
that he should have
fear, or
right.
under color of official
been afforded the same broad discovery
The trial
court properly in
rights permitted in civil litigation. An ex
jury
structed the
that
“may
extortion
amination of the record indicates that
committed either by use of fear or ‘under
furnished appellant
a vast
”
color of
right.’
official
United States v.
amount of
requested
material
by him in his
16(a),
Brown,
Fed.R.Crim.P.,
Rule
(8th
1976).
motion
540 F.2d
for dis
371-73
Cir.
covery
inspection.
It appears that ap Here the
overwhelming
evidence was
pellant’s principal complaint arises from the
appellant obtained funds under “color of
court’s
15(a),
denial of his Rule
Fed.R.
right.”
Furthermore,
official
the trial
Crim.P.,
(filed
motion
simultaneously with
court property instructed the jury that
his motion for a bill
particulars)
to take
“The term ‘fear’ does not necessarily refer
the discovery depositions
potential
of 19
to physical fear or fear of violence.
It
government witnesses.
In denying the mo
includes fear of economic loss.” See United
tion the trial court noted that depositions in
Brown,
supra,
States
covery matters are committed to the sound HEANEY, Judge, dissenting. Circuit discretion of the trial court and are review view, respectfully my dissent. In it was only able upon an abuse of that discretion. appropriate to admit the Per- States v. Crow Dog, We find no elli-Minetti on both the initial abuse of demand for discretion here. cash payments and the pursuant to that *10 This tes- through 1971. from 1965 demand MURPHY, Radford David show the course timony was admissible Plaintiff-Appellant, to the events which leading of conduct charged. It of the crime the basis formed however, error, to receive the testimo- CORPORATION,
was L & J PRESS Defendant-Appellee. probative of Pedrick and Sibbert. ny substantially was testimony value of this No. 76-1092. preju- of unfair danger outweighed of Appeals, Court United States testimony was judgment, their my dice. In Eighth Circuit. rather, it was convincing; not clear 14, 1977. Submitted Feb. Moreover, I am un- vague. indefinite and June 1977. Decided was how this evidence able to determine Rehearing Rehearing and issue of Adcock’s intent. En.Banc relevant Aug. Denied testified that Adcock de- witness Neither only stated payments; manded the money to him. they paid to ad-
Also, clearly inappropriate it was received, testimony.
mit Karkule’s out, on theory majority points
as the to show Perelli-Minetti’s tended it mind, he coerced namely, that
state of it I believe making payments.
into most, thing. it estab- no At
showed such payments made
lished that whether was not asked Karkule Adcock. it or whether was was a bribe payment Yet, payment nature
extorted. this case. crucial issue in
was the de- properly trial court
I that the agree that it was grounds discovery
nied factor, this it not for timely.
not Were particularized hold that there was
would discover
need to effect, In Adcock was
government witness. charges different against
forced to defend indictment those raised
than to in- adequate opportunity
do so without his defense. prepare
vestigate