*1 America, UNITED STATES
Plaintiff-Appellee, CRAIG, North, Jr.,
Robert Frank P. Walker, E. and Jack
Defendants-Appellants. 76-2089, 76-2090,
Nos. 76-2092
and 76-2093. Appeals, Court of
Seventh Circuit.
Argued June 1977. 12, 1977.
Decided Dec.
Rehearing Rehearing In Banc
Denied March *7 Barnett, Purcell, A.
William Charles R. Nellis, Pappas, V. J. Anna R. Peter William 111., Lavin, Chicago, defendants-appel- for lants.
462 Skinner, Atty., U. F. faithful
Samuel K. S. James and honest members of the Illinois Gleason, III, Holderman, Asst. U. John S. General Assembly right S. of their to have the 111., plaintiff-appellee. Attys., Chicago, legislative State’s business conducted hon- estly and and in impartially, accordance CUMMINGS, Cir Before SWYGERT Illinois, with the laws deceit, free from CAMPBELL, Dis Judges, cuit Senior misconduct, corruption, interest, conflict of Judge.* trict bribery fraud, and willful concealment thereof.” Each of Counts Two through CAMPBELL, WILLIAM J. Senior Dis- alleged Twelve that the various defendants Judge. trict specific co-schemers caused a mailing to December, persons fifteen were be made for the purposes of executing of a charged in various fourteen counts scheme. Each of Counts Two through charged count indictment. Count One Twelve are also alleged be overt acts of conspiracy to commit defendants with mail the conspiracy charged in Count One. of 18 fraud violation U.S.C. § Counts Thirteen and Fourteen charged a Twelve through charged Counts Two violation of 18 alleging U.S.C. § mail substantive crime of fraud violation the various defendants caused an individual 1341, alleging of 18 U.S.C. the de § to travel in interstate commerce with intent co-conspirators fendants and unindicted de promote activity, an unlawful namely artifice vised a scheme and to “defraud the bribery in violation of Illinois Revised Stat- citizens of the of Illinois of right State their utes, Chapter 38, 33-1. § faithful, loyal, and honest services of Prior to trial seven defendants co-conspirator those entered defendants and s pleas One, of guilty to who were Count and the public officers and members other charges against them were Assembly Illinois General ... dismissed. Eight acts defendants trial. performance of related to stood Following their jury trial over months, official duties and functions.” lasted two Counts Two six through alleged Twelve also defendants were guilty, the de found and two acquitted. fendants proceedings devised a scheme “defraud the and dispo- citizens, Illinois, public State of its its sition as to each offi defendant are set forth in cers, public employees its loyal, margin.1 and the
* Judge Campbell Senior District William J. United States Court District for the North- ern sitting designation. District of Illinois is Proceeding 1. Defendants Verdict Sentence A. Elected Officials Robert Guilty, Trial charged years, as $5000. Frank P. North Guilty, Trial years, Ct. 1. 10-12 $5000. Carpentier Donald D. Plea years, $5000. Kenneth Course Guilty, Trial charged years, as $5000. Capuzi Louis Guilty, Trial charged Acquitted/Post as Trial John Wall Guilty Trial Not Jack Walker Guilty, Trial charged years, as $5000. Employee/111.Secy, B. of State Guilty, Trial charged years, $10,000. Ready-Mix Industry C. *8 Representatives Arquilla Bernard Plea year Probation, fine Jack Chalden Plea fine Herbert Plea year Probation, fine Arnold Moeller Plea Deceased Merlin Wille Plea year Probation John Edmier Plea year Probation Francis Sheahan Trial Guilty Not at the NIRMMA Committee Transportation
I. FACTS2 Chicago. McBride informed the offices in Chicago metropolitan county six the In Peter the assistance of V. members that as the known association area, trade a necessary the de- procuring in Pappas Materials Ready-Mix Illinois Northern legislation, weight an sired relief the in- represented (NIRMMA) Association industry. ready-mix money cement of be re- amount would the undisclosed of terest which the events years prior many Lauwereins, For an unindict- Morris A. quired. NIRM- prosecution, of this the basis formed of and co-chairman the co-conspirator ed Committee, Transportation through its MA, Committee, par- Transportation NIRMMA cubic increasing by one of was desirous committee members in ticipated with other ready-mix of the amount truck per yard3 re- agenda specifying what drawing up an legiti- could trucks industry which cement desired, and industry instructed lief the roads. Illinois mately haul Pappas. V. In meet with Peter McBride to of NIRMMA held of Directors The Board a effort for to assure state-wide order Chicago 1971. meeting a on October relief, weight Lauwereins truck ready-mix McBride,4 an meeting, James em- At this to contact committee members told other Corporation and ployee of Material Service association, ready-mix the downstate informed the co-conspirator, an unindicted as the Illinois Division —Midwest known garbage the Illinois NIRMMA Board that Association. Ready-Mix Concrete hauling industry just weight obtained Lauwereins, McBride, Wille, Merlin through pas- the garbage for trucks relief legislation Secretary of in the Illinois General sage Connolly, the Executive of Tom Assembly, right and that the time was for were associated of whom NIRMMA —all ready-mix industry cement to do like- industry with Pe- ready-mix with —met indicated that he knew wise. McBride an private a days later in Pappas ter V. several attorney, Pappas, defendant Peter V. who Pappas Peter V. Chicago a hotel. room at ready-mix industry assist could draft- to be followed in the procedures outlined $5,000.00 legislation their for a fee. ing legislation. After seeking weight relief meeting McBride also stated at agenda specifying gave him the Lauwereins Pappas very V. close to the Peter Illi- industry, sought the relief Motor Vehicle Laws nois Commission—an unspecified an amount Pappas stated obtaining pas- important Commission time, required at a later money of would weight legislation relief sage of —and drafting proposed his fee and that legislation cost any such would a considera- $5,000.00. bill was money. ble amount of Two NIRMMA members, Meyer Board Arnold Moeller of The record demonstrates that sometime Company Arquilla Material and Bernard of during period mid-October, 1971, from Ready-Mix, Accurate estimated November, 1971, part early of Peter legislation weight high relief could run as Pappas spoke Representative V. with Pete $100,000.00. Republican member Pappas,5 Illi- meeting, week after this About one Representatives nois House and mem- members of NIRMMA’s Motor Vehicle met with ber the Illinois Laws Com- McBride reading yard 2. Based on our voluminous one tran- 3. The record indicates that cubic below, proceedings 4,000 script ready-mix weighs find we material about ibs. government’s facts fair statement of to be Hence, our accurate. discussion of the is facts 4. McBride was deceased at time of trial. primarily on based the statement contained in government’s brief. instances those Pappas V. are Peter the defendants have claimed that which They related. will be referred to these government’s facts at statement of variance throughout opinion. names trial, the evidence adduced we have own where formulated our statement neces- sary. *9 he thought get through V. could it for Pappas mission. Peter informed “ten”. Pete lead, Pappas meeting Following Craig’s Pete ready-mix Pappas his with the and industry people thought Carpentier and stated “he each indicated that it he would could get money us some for “ten” passage get legislation through take weight legislation.” During conversation, relief In answer Craig side.6 indi- question Peter Pappas’ V. as to how much it that the money paid cated would have to be take, would Pappas Pete that passed answered he bill each House. Carpentier know, did not get but would check and back Republican was to handle the side of the Pappas. to Peter V. Senate; Craig, the Democratic side of the House; Pappas, Republican and Pete Pete Pappas spoke testified that he then three side of House. The then dis- with Carpentier, defendant Donald a Re- the need for cussed a Democratic Senator to publican Senate, member of the Illinois and side, the bill on Pap- handle that and Pete also a of the member Motor Vehicle Laws pas that he talk with indicated would Sena- Pappas Commission. Pete testified that he tor Kenneth Course. Carpentier told that Pappas Peter V. had later, Pappas A few hours spoke Pete said “that was a there chance we could Course with Senator at Course’s desk on the get money weight some from the relief Pappas said, floor of Illinois Senate. ready-mix people,” inquired and had of him there is “Kenny, going to be some money on as to how it much would take. just the cement bill and I finished talking Pappas Pete further testified that later [Craig] [Carpentier] with Bob and Don he day same talked with defendant going get try we are ten for each Robert Craig, a Democratic member get through side the bill and I want to Representatives. Illinois House of Pete you willing know if would be to handle the Pappas Craig that Pappas told had side of Democratic the Senate.” Course was a said “that there chance we could you “It responded: guys is whatever decide get money weight some on the relief for the Pappas is fine with me.” Pete advised ready-mix industry.” reiterating After money paid Course would be as the Craig that V. Pappas Peter had asked him passed bill each House. how much it would take and he an- place these m spring- While events took swered him that he know, did not and that field, met repre- Wille Lauwereins with he question had asked the same Carpen- ready-mix sentatives downstate answer, tier and had received the same Pete association, trade the Illinois Division —Mid- Pappas Craig: “Bob, testified that he asked Ready-Mix (ID- west Concrete Association you if have idea any money as to how much MRCA), on October at a restau- get it would take it through?” Craig Bloomington, rant Illinois. Defendants get answered that he wasn’t sure but would Craig,7 Jack Chalden and Herbert both as- back to him. ID-MRCA, Marcy sociated Lou Craig further testified that Pappas Pete and Ed Sembel other downstate concerns A con- days. within a few contacted him Lauwereins that the time were told among Pappas Craig, versation ensued Pete right ready-mix weight truck relief and Carpentier. Pappas Pete asked that ID-MRCA and NIRMMA join should figures any he much if idea how together the effort because it would be Craig responded would take. that he expensive. Lauwereins also told the group testimony Representative House, 6. The Republican the Democratic side of the reflects that the House chamber and the Senate Senate, etc. side divided which chamber are each aisles run through respective the center of each chamber. Craig is Herbert related 7. Defendant The aisles divided each into chamber sides Craig. Robert defendant occupied along Thus, party which were lines. *10 Vehicle Illinois Motor through the wise for a downstate was that it would be Commission). carry through (MVLC or spokesman to promote Laws Commission He to the downstaters possible, the bill. indicated that it would be further stated He $5,000.00 a for that there would be fee to have properly presented, the bill were if bill, drafting the as well as other unidenti- sponsored as a bill come out Commission the fied expenses. was close meeting Since a Commission bill. those hand, advised Pappas Peter V. at 5, 1971, meeting a luncheon On November develop they have to that would present Chicago a Present at was at hotel. held help he something and that would quickly Chalden and meeting were downstaters Pappas Peter V. testimony. develop them Wille, Lau and NIRMMA members Sembel ex- Lauwereins sentiments reiterated the wereins, McBride, Wig Connolly, one Wes Bloomington in that pressed earlier and one Bill Hendrickson. Lau gington spokes- a be best to have would downstate meeting, and intro wereins chaired the bill in Commission. man introduce present as Pappas Peter V. to those duced who could assist them gentleman Meanwhile, a Springfield, back in few V. Pappas securing legislation. Peter Pappas, Craig Carpen- after days Pete weight informed relief group that then money the amount of re- tier discussed ready-mix trucks sought be for should get through, Pappas the bill Pete quired Pappas presented only.8 Peter V. also Tom Capitol Pappas with Peter V. spoke two Connolly of NIRMMA with $2500.00 fee, drafting Building. Pappas for informed Peter V. invoices indicated money amount of would that an undisclosed Pappas Craig, that he had talked with Car- date, required be a later that “they pentier and Course and would with prepared participate be “should $20,000.00 $20,- House need legisla and other campaign contributions for the and that Peter 000.00 Senate” V. support.” tive discussion ensued as Some he Pappas put was to “whatever needed for a conduit for the to who would function as money top himself on of that and funds, nothing According but decided. paid the legislation have to be as would testimony, Pappas to Wille’s ex Pappas House.” Peter V. then passed each meeting he plained at bill said, “O.K., get you.” I will back appear to be much very would draft “would a down bill” on the first and watered at a hotel meeting held a The Commission reading, second and on the third readings, evening of November on the Springfield be amendments would introduced “that Craig of the downstate 1971. Herbert really gist of what we would introduce the (ID-MRCA) was to industry association V. ex Pappas wanted.” Peter further industry’s pro presentation make Wille, according to that the undis plained, relief. On the ready-mix weight posal money required amount closed would meeting, Peter V. preceding afternoon Houses, only passed if the bill both Lauwereins, Wille, Chal met Pappas Governor, signed by the and was indexed.9 McBride, Marcy den, and Herbert Craig’s pres Herbert and rehearse testimony prepare to the November
Chalden’s as Following presentation Pe- Herbert’s meeting revealed 1971 luncheon entation. Commission, the Commission directed Pappas suggested present to those ter V. Commission’s De to return introducing the bill Herbert way of that an effective statutory compilation. leg- For bill weight a scheme of industry sought relief Initially, the 8. necessary law, indexing not a to become dump as well pertaining trucks islation IV, requirement. Art. 8 and §§ See: Ill.Const. ready-mix trucks. cement 9. assign- context, Indexing, means in this specific of reference area a law to a ment meeting cember with a drafted bill or draft- that Peter V. given him this presentation.10 ed earlier, figure the money would have cash, to be in and that if the bill did not *11 days About ten after the meeting, MVLC law, money required. become no would be recording MVLC, secretary of El Mary McBride and Wille then went to Lauwer- len Kingery, copies mailed of a notice of the eins’ room in the same hotel and informed date, time, place December, 1971, of the $50,000.00 him figure. of the meeting persons mailing on a list she maintained. Connolly, Tom the executive Later in the evening day, of the same NIRMMA, secretary of who had earlier re Wille, McBride, Lauwereins, and Peter V. quested placed that NIRMMA be on the Pappas Spring- met in the same bar in the list, mailing a copy MVLC received field Pappas hotel. Peter V. stated that he December, MVLC meet notice thought legislation the garbage ing in the mail. ready-mix cost as much as legislation, 8, 1971, On December V. Pappas Peter they and that should consider a conduit for presented request Legislative a to the Ref- reached, the funds. No decision was how- Bureau, erence drafting bill agency for ever, as to who would act as the conduit. government, Illinois drafting for the During 17, period February 13 to ultimately bill that 4176, became House Bill 1972, NIRMMA held its annual convention the “cement bill.” Beach, in Miami Florida. At this conven- At the December meeting, MVLC a sub- tion a group of several NIRMMA mem- committee was created to consider 11engaged bers in a poolside conversation as ready-mix legislation. Course, Carpentier, ready-mix bill. After Wille and Con- Pappas and Pete were included as members nolly $50,000.00 group informed the of the subcommittee. Following this meet- cash required was pas- to secure the bill’s ing, Miss Kingery mailed out notices to sage, a discussion ensued as to how those on the mailing list informing them of money suggestions could be raised. Several date, time, and place of the January made, but the record does not show meeting. MVLC The notice also an- that any decision on this issue resulted from nounced that the subcommittee would re- the discussion. port on ready-mix matter. couple A of weeks after the NIRMMA The MVLC meeting took place on Janu- convention, telephone McBride had a con- ary Springfield. On the after- versation Connolly. with Tom McBride told noon of that day, Peter Pappas present- V. $50,000.00 Connolly that fund would ed to an executive session of the MVLC the have to be available April “as the proposals of the ready-mix industry, among people wanted to know that the money which was the proposal that ultimately be- came legislation House available as the going Bill 4176. On that same day, Wille through.” met McBride in a bar McBride said that the cash Springfield at a hotel. placed After would be exchanging pleasantries, deposit Sig- in a safe box. McBride “Well, Mert, told Wille I nators on got- Connolly have the box were to be ten the word. I know what they now, member, want another NIRMMA Peter Pap- V. fifty big ones.” McBride informed Wille pas and his wife. point, government’s
10. At this meeting.” statement of to be in the Commission North re- paragraph, facts substantially contains a sponded, reiter Although “Fine.” of no relevance to ating testimony Pappas. of Pete In immediately effect preceding the events and follow- Pappas just prior Pete testified that to the facts, No ing in the statement of this evidence of meeting, vember 1971 MVLC he had a con exposure North’s initial to the scheme is treat- relating versation with defendant North to the ed infra. availability money weight legisla relief ready-mix industry. tion for the At that con Wille, Connolly, Arquil- 11. Merlin Tom Bernard versation, North, told “I had some la, Wille, Jerry Nagel, Rich and Lou Lincoln. thing going going on the cement bill and it was through of an advance from Moeller Meyer after the Florida mid-February, Transportation convention, the NIRMMA Material. Lauwereins, meeting. held
Committee 30,1972, morning Wille, On the of March the ce- meeting, explained chaired who Lauwereins, Connolly McBride and met at ready-mix its benefits bill and ment $50,000.00 the-NIRMMA office. A total of the bill stated industry. Lauwereins by Connolly placed cash was counted cash, $50,000.00 in and that would cost envelope. Wille informed Connolly in an the sum would be had been decided Material Meyer that Moeller of had contrib- members assessing NIRMMA raised up uted make short- $3160.00 truck ready-mix for each $40.00 suggested that age expense false Transportation Commit- *12 owned. NIRMMA prepared presented and vouchers should specific assigned then tee members were Connolly Meyer to reimburse to Material collection duties. money. Connolly agreed, for the extra and 29, 1972, time, February on About prepared false vouchers were and submitted to Indi- Chicago from travelled Lauwereins Wille, Moeller, by Lauwereins, to NIRMMA group of addressed a anapolis, Indiana and Arquilla. Lauwereins Arquilla and and in- ready-mix executives Illinois downstate expense mailed their vouchers to the Craig. This Herbert cluding and Chalden Connolly prepared NIRMMA office. then in Indi- in a hotel room place address took which, cashed, NIRMMA checks when indus- ready-mix The downstate anapolis. Meyer used to reimburse Material for its holding its (ID-MRCA) was try association advance. $3160.00 Lau- Indianapolis. convention in annual fund, Having Connolly assembled the favorable group that told the wereins left McBride the NIRMMA offices and $50,000.00 cash, in cost bill would ready-mix the First National Bank of drove to Lake quickly placed collected which had to be Pappas Bluff where met Peter V. indicating to After deposit in a safe box. parking Pappas lot. Peter V. paid asked would not be money group law, Connolly money, if he had the to which Lauwereins out unless the bill became support Connolly affirmatively. Thereup- the effort answered ID-MRCA to encouraged on, $50,000.00 hand, amount. collecting Connolly, money with the in his half Chicago. Pappas then returned and Peter V. Lauwereins entered bank. encouragement and re- of Lauwereins spite McBride remained in the car. After enter- refused to ID-MRCA quest support, bank, ing Pappas Peter V. mentioned to collection effort. in the cash participate arranged he for a safe Connolly that had deposit Connolly signed signature box. March, 1972, NIRM- During the month of card, signature and took a second card for Committee members Transportation MA Arquilla’s signature. Connolly received a as- previously the collection duties pursued box, key deposit to the safe and then he and By end of the by Lauwereins.12 signed Pappas the box which the Peter V. took month, Connolly Wille to meet him at told handed to them into a small room clerk had with the collected cash. the NIRMMA office money placed where both counted the fund was Connolly told Wille They returned the box to the it the box. companies had short because some $3160.00 clerk, it in the vault. Both placed who agreed Wille refused to contribute. the bank. shortage departed in the form from up the $3160.00 make Material, Ready-Mix, following Edison Fuel and and The- collections: 12. The record reflects the Ready- Ready-Mix the cash delivered Arquilla len and had funds from Accurate collected Wille; Mix, Ready-Mix, Company, cash from Lauwereins collected Lester Brandt Oremous Corporation; Ready-Mix, gave Service the collected Crown of Material Wille and Valenti Material, Meyer Cowhey' Connolly; collected cash from collected cash from Edmier funds Inc., Ready-Mix, Edmier, Ready-Mix, Company, Davidson and also Jousma Kuhn received Material, Ready-Mix, Fuel and was collected and Van’s cash from Moeller which from Wille; Wigginton ready-mix companies. gave collected several other the cash Material, Dealer’s Fuel and from Evanston Bill,” industry “Cement mise and the would have to us pay House Bill was passed House of both Repre- money introduced in the Illinois after it the House nothing 1972. Two or three and the but had do April sentatives on Senate date, governor’s signature.” with the Peter V. Peter V. days prior Pappas to that Pappas responded, “Okay, I will the rotunda talk Pappas told Pete area of the later, them.” A few Peter V. days Pappas Capitol Building the cash had been Pappas industry informed Pete that “the deposit collected and was in a safe box in pay, would ahead go agree- would with our V. Chicago Pappas area. Peter assured ment and pay passed when bill both that, although Pete Pappas money was houses of the Assembly.” General prob- located in would be no Chicago, there delivering money. Pap- lem in passed House Bill 4176 was by the Illinois pas that the Carpentier money also told House of Representatives May on 1972. deposit box. put been in a safe The bill was introduced the Illinois Sen- ate on May assigned House Bill 4176 Committee. A notice House Motor Vehicle About a two week or weeks before House posted April hearings 1972 for Bill 4176 was in the introduced Illinois Sen- posting, Prior to the that committee. ate, Carpentier spoke with ten Republican Pappas Peter that the V. told senators, Walker, among whom was Jack E. *13 deposit cash box and every- was in a safe Republican a member of the Illinois Senate thing Pappas was set Peter V. also go. to from Lansing, Illinois. In the conversation industry pay money said that the would Walker, with Carpentier asked Walker governor signed soon as the the bill. support the cement bill and Walker he said minute, stated, Pete Pappas “Wait a then Carpentier would. also told Walker “that Pete. That deal. wasn’t our Our deal was help there would in his be district.” money paid to be passed was as it speaking After with Walker and the nine each House.” V. Pappas replied, Peter senators, other Republican Carpentier told “Well, this is industry what wants.” Carpentier Peter V. Pappas “could Pete Pappas responded, “Well, then I’m go- muster 11 the Republican votes on side.” ing to have to talk to Bob on that.”- replied Peter V. Pappas that he would see
Immediately thereafter what he could do on the other side Pappas Pete . spoke days that, aisle. Craig Carpen- Robert One or two after and told Craig Carpentier tier told Course Peter V. Pappas had said that votes and that Course “would industry was have to mus- going pay any money ter up the rest.” until signed the bill by had been gover- Craig nor. responded “That wasn’t our pending While House Bill 4176 was in the deal. Our deal it was supposed was to be (around 1, 1972), June Senate committee paid passed as it each House.” Pappas Pete Craig phone Herbert received a call from replied, .“Well, we go then better over and Craig Lauwereins who told Herbert talk to -Pete V. Pappas], about it.” [Peter the bill and that V. jeopardy was in Peter in cash. Pappas needed Lauwereins $500 minutes, Within Craig a few and Pete Craig told Herbert draw the from $500 Pappas spoke V. Pappas. Craig with Peter expenses out-of-pocket and Lauwereins “Peter, said our deal was that we were to would render a statement from NIRMMA get paid passed when the bill each House.” covering Lauwereins told Her- $500. Pappas Peter V. replied, industry “The Craig bert to take to the third $500 not going to pay signed until this bill is by Building Capitol floor of the where V. Peter governor.” discussion, After further Pappas Craig would meet him. Herbert Craig Robert Pappas asked Pete if it were request related Lauwereins’ to Chalden. all right they said, if compromised and “We go passed would let it until it both Houses June day, next Herbert get money.” Craig then Craig prepared then told and Chalden check $500 that, Peter V. Pappas compro- Craig “We would and cashed it. Herbert took the cash spring area and session of the third floor of the rotunda Illinois General Pappas. 1,1972. Peter V. Assembly Peter V. ended on July was met After the Craig if he had the Pappas asked Herbert legislative session, end of the Pete Pappas when Herbert envelope money with the telephoned Peter V. Pappas in early July “Yes,” Pappas V. said replied, Peter Craig said, “Peter, 1972 and this is Pete. I am an office and They me.” went into “Follow just calling to see when we are going get magazine, laid Pappas opened money.” our Peter V. Pappas replied that Craig put a desk and told Herbert trying get he was it together maga- money inside envelope with the slow, were a little but he would see what he V. and Peter zine. did as instructed could Peter Pappas do.” V. recommended ex- may all. You be Pappas said “That’s Pappas that Pete call McBride gave relat- Craig then left and cused.” Herbert phone McBride’s number to Pappas. Pete Chalden. ed the incident to early In the part middle of July Bill 4176 of House sponsor The Senate Pappas telephoned Pete McBride and told About Harris. mid- originally Senator McBride, “Jim, Representative this is pend- Bill 4176 was while House June calling and I am about the money.” Senate, told Walker Carpentier ing in the said, “Well, McBride they are working on longer sponsor could no Harris that Senator it.” Pete Pappas replied “Well, we have Carpen- sick. because Harris was the bill some commitments to meet.” McBride re- would han- Walker that if Walker tier told sponsed, “Well, let me check into it and I bill, “that an additional would $500 dle the get you.” will back to agreed to handle given him.” Walker early August 1972, Peter V. Pappas the bill. informed Pete Pappas that the industry senators voted in favor of House Thirty going was not to pay because there was a Senate, 4176 in the Illinois which was Bill governor rumor that the was going to veto required pas- of votes the exact number the bill. Pete Pappas responsed, “I don’t passed sage. House Bill 4176 *14 that, care about we have commitments to 21, on June Illinois Senate meet and we at least want to pay our Chalden, secretary the of the executive commitments.” Peter Pappas V. replied sitting in the gallery ID-MRCA was Senate “Well, why you don’t call Morry Lauwer- passed Bill 4176 the when House Senate. it,” eins and talk to him about gave and 22, 1972, following day, June Chalden Pete Pappas phone Lauwereins’ number. prepared announcing a bulletin the fact That same day or day, the next Pete passed that House Bill 4176 had the Senate Pappas telephoned Lauwereins and said heading governor. and was to the Chalden Lauwereins, “Mr. Representative this is copy a of that bulletin to every mailed Pappas Pete and I calling am about the ID-MRCA, including member of the Mate- money.” Lauwereins “I said understand Corporation, rial Service to inform them of governor that the to going veto the bill.” passage urge the bill’s and to them to con- Pappas responded, “Well, I don’t care governor urge governor tact the and the to governor what the does because that wasn’t sign the bill into law. part arrangement. of our Our arrange- Connolly mailed a similar bulletin to ev- ment was get through to it both Houses and ery regular member NIRMMA on June you agreed pay. Now we have commit- urge 1972 to the members of NIRMMA ments to meet and we would like to have write, governor wire or call the and ask money.” the Lauwereins said he would governor the approval for favorable of the check into it and let Pete Pappas know. Wille, upon receipt copy bill. of a bulletin, 8, 1972, telegram governor, August sent a On House Bill the bill, response governor’s and received a from the cement was vetoed Ogil- Governor Carpentier urged governor $50,000 also vie. day office. On that was still in sign the bill. deposit the safe box. 14, 1972, during tugboat Meyer had the most trucks in the industry, August On meeting, with an MVLC Material conjunction Company Material and ride Service Corporation. that some of Carpentier Course told restless,” “getting were fellows Course’s Plaines, Illinois, At a in Des motel will talk it over replied, “I Carpentier and McBride, Lauwereins, Moeller, and Wille he is Pappas, because Representative with Corpora- Nagel Gerald Material Service handling it.” early September tion met in 1972. Lauwer- veto, Also, August 1972 after Nagel legisla- eins told and Moeller that the Wille Course had that Senator McBride told $30,000 they tors felt were entitled to in- McBride for and had asked called McBride original $50,000 stead and that Peter told contribution. McBride campaign up Pappas V. could draw seasonal told that had Course Wille that McBride $5,000. permit Nagel bill an additional for it. anything know about McBride did not and Moeller asked what happened both Wille called about Lauwereins also bill, original no-pay no agreement. said had Lauwereins that he same time. McBride not question, could answer that information that “some received some Nagel but said that Moeller should job done their legislators they felt had the consequences consider what be if might bill been though that even had they chose anything. not do McBride law, they and it had not become vetoed also said that it was possible that there Wille money.” should be entitled some be a could veto override and that Moeller Lauwereins, “What about our earlier asked Nagel should consider what should be bill, pay’ provision?” no Lauwereins ‘no they, done. Lauwereins and Wille said that agreement. was the earlier replied that that themselves, could make decision. $30,000 Wille, said meeting among put up Moeller “the should be At a luncheon McBride, by Meyer at a should be contributed Ma- and Lauwereins restaurant Illinois, Hillside, part Au- terial and Material Corporation.” the latter Service Nagel concurred. gust McBride told Lauwereins with McBride had had phone conversation evening On the of September he say McBride went on to Course. following meeting Pap- MVLC V. had a conversation Peter recent told pas Craig, Carpentier Pappas and Pete felt Pappas legislators and that industry going pay was not they job although had done their anything passage for the bill because $50,000 agreement earlier Governor had vetoed it. Pete $30,000. willing stat- to settle McBride said, then “That was not our deal. We had pay it was not to ed before decided commitment; *15 they a going pay were us industry should consider the anything the passed if it both Houses. We had no con- consequences a veto override or an addi- over the trol what Governor did.” Pete permit or also tional seasonal bill. McBride Pappas say, went on to “We have commit- Pappas that Peter V. had said he could said meet; that they ments we have to at should bill, a up an additional seasonal draw pay enough us least so we could meet our $5,000. bill, an additional fee of permit for general commitments.” There was a dis- they spend any could not Wille stated that of money cussion about the amount neces- the that collected be- money had been sary Craig fulfill commitments. said representations other cause of their thought he that he could take care of bill, ready-mix was “no no dealers Pappas commitments for “five.” Pete Lauwereins concurred. pay.” Carpentier agreed and if could Wille, following morning, $5,000, the informed care of take his commitments for they Moeller of McBride’s comments. Moeller could take care of their commitments $30,000 not be taken the same V. agreed Pappas should for amount. Peter said $30,000 $50,000 fund, industry get that the that he would talk to the from but and companies to them. should come from two back a going tioned date that he was Spring- tele- Lauwereins September “Well, Meyer Pappas replied to take Pete Wille field. that date and asked Wille phoned $30,000 to of the right Why half is all with me. don’t we Company’s meet at Material Wille told Coffeehouse, in Westchester. house which is McBride’s on Interstate 80 re- phone call about Lauwereins’ Moeller it would be on left your you side as are money to take Wille questing driving meeting down Interstate 80.” The have Moeller to house, asked McBride’s set for 10:00 morning. o’clock in the it. ’needed when Wille money ready Immediately phone after the conversation he would. Moeller said Pappas, with Peter V. Pete Pappas tele- Wille re- September, the end of Around said, “Donnie, Carpentier and phoned just I denominations $15,000 in bill $100 ceived had a call from Peter V. and he has the day That same Moeller. envelope from an money and he wants to meet us at house in Westches- to McBride’s went Wille on Interstate 80 at Coffeehouse 10:00 Wille arrived at ter. Lauwereins morning” on agreed o’clock in the the date same time. at about house McBride’s Pappas Pete asked upon. Carpentier if the basement of They proceeded Carpentier it. Carpentier could make said and Peter they met McBride where house could, up with Pap- he and would ride Pete both and Lauwereins Wille Pappas. V. pas. containing cash on a table. envelopes placed Pappas phone Pete told North the contents Pappas removed Peter V. Pappas. call from Peter V. Pete phone money. counted the envelopes and both North that if North could make Pappas told brought contained envelope Wille had Coffeehouse, Pap- at the Pete meeting had $15,000. envelope Lauwereins him. something would have for North pas $14,100, $900 table contained placed on the thought Pappas said that he he could. Pete $15,000 told amount. McBride short “Okay, said fine.” get McBride would Pappas that Peter V. Pappas Carpentier Pete met the morning a Pappas Peter V. missing $900 25,1972 at the Moline September Airport put then Pappas Peter V. later date. and drove to the Coffeehouse on Interstate envelopes put money back in Marseilles, near Illinois. When Pap- Peter V. in his brief case. envelopes Pappas Carpentier arrived at the stop make a on the Cof- that he had to pas said morning Pappas already V. feehouse that North was Springfield. Peter way down North, stated, ago Carpentier Pappas when a man there. and Pete years “Five also vote, cup waiting could count of coffee while you you had his you told it; see if he Pappas have to wait to Peter V. to arrive. After wait- today you light lights up' monutes, and the ing approximately twenty-five the button punches Carpentier placed for sure.” call to Peter V. phone to know Pappas’ home in Lake Bluff and was told 1972, deliv- September Pappas Peter V. Pappas Spring- that Peter V. had left for $5,000 envelope in an to Course in cash ered twenty passed field. Another minutes be- to various then delivered which Course Pappas fore Peter V. arrived and entered senators. Democratic state the Coffeehouse. 25, 1972, Pappas September On When Peter V. arrived at *16 Carpentier and North at Pappas, met Pete Coffeehouse, cup he had a of coffee and near on Interstate the Coffeehouse call V. Carpentier Pappas’ asked Peter $10,000 Marseilles, in Illinois and delivered obliged. Springfield. Carpentier office in envelope Pappas. to Pete cash in an North, Carpentier phone While was on the Peter meeting, a week before About Pappas V. left the Pappas Pete and Peter Pappas by phone that told Pete Pappas V. Coffeehouse. money the and (Peter Pappas) V. had he Pappas, upon V. Pappas Pete and Peter Pap- with Pete meeting a up wanted to set restaurant, got into Peter V. leaving men- the Pappas to deliver it. pas Pappas morning 4, V. sat behind On the 1972, car. Peter Pappas’ November on Pappas pas- sat the Pete Pappas, the wheel and Pete and Course Peter V. Pappas walked out into the senger side. North met ready-mix with industry members car, In away lot the car. the parking Wille, McBride, from Lauwereins, and Herbert envelope on Pappas placed V. an the Peter Craig for breakfast at a restaurant “Now, car seat of the and said if front Springfield. At that meeting there was a gave you any if I anybody you money asked discussion whether a veto override of House say Pappas picked I Pete you up didn’t.” Bill 4176 should attempted. be Course stat- containing money the from envelope the the ed the near end of the meeting that an pocket. it in coat Peter put seat and his V. impossible override was since there were he already given said that Pappas enough votes, and Pete Pappas stated was going his “five” and that he Course that he felt it would better if an override Springfield. Craig later in see of the Governor’s veto was not attempted, but a new bill be pursued could in the out V. Pappas got Pappas’ Pete of Peter next session. envelope, the went over to his car with own got then Pappas opened car and in. Pete In part 1972, the latter of December Con- envelope the and counted out ten $100 bills. nolly Pappas and Peter V. returned to the Pappas got car, Pete out his walked over bank $50,- in Lake and Bluff retrieved the gave and North the ten $100 to North bills. deposit from the safe box. Connolly Pappas and Pete having North discussed took money the and returned portions of it Holiday the lunch at LaSalle Inn and North Wille, Arquilla. Lauwereins and Connol- car got in his and left. ly $3,160 kept which Meyer Material $50,000 advanced to the fund. Connolly Carpentier joined Pappas, When Pete placed the cash in safe, the NIRMMA office Pappas requested Carpentier Pete to drive where it remained until trial. car, Carpentier During which did. ride from the Coffeehouse to LaSalle After commencement the grand 80, Inn Holiday Pappas on Interstate Pete jury investigation which led to the indict- $5,000 out and counted bills handed $100 case, ment in this Carpentier was served Carpentier. Carpentier put money subpoena with a to appear grand before the pocket. North, Carpen- into his inside coat jury May 30, May 1973. On Pappas together tier and Pete had lunch at Carpentier informed Peter Pappas V. and Holiday LaSalle Inn. Course the receipt subpoena and was told Peter Pappas, “Deny V. every- Carpentier Pappas Pete arrived and back thing if we all stick together, p. day. Rock Island about 3:30 m. that won’t have you case and when get Carpentier then went his insurance office finished, call my me in office in Spring- $5,000 in Moline he put had re- field.” Carpentier appeared before the Pappas ceived Pete in a box from file which grand jury on May and after his put he then in a file drawer in office. grand jury appearance called Peter V. Pap- days later, Carpentier A few had his wife pas. Carpentier Pappas told Peter V. type envelopes nine addressed nine Re- he (Carpentier) had denied everything be- publican senators, including envelope an ad- grand fore jury V. Pappas Peter dressed Walker. addresses were said, “Great, if we all stick together like legislative obtained from the handbook. In that, will problem.” we have no Walker, envelope addressed to Carpen- In August put piece telephoned tier five in a wrapped bills Pete $100 Pappas arranged a paper. Carpentier placed meeting bill in each $100 eight envelopes. Carpentier of the other Streid’s Restaurant Bloom- ington, then Illinois. envelopes took nine which had attendance at the meet- proper postage deposited ing Craig, them in V. Pappas, Peter Pete Pap- Markert, pas mail box door of legislator. side front and Lou former *17 office. meeting Markert left the Pap- Peter V. left, appears It from the record that Peter V. defend- Markert After request. pas’ Pappas that Carpentier Pete ant had been called to Craig testify Pappas told at his grand jury had been visited Pappas investigating before Peter V. U.S. At- occasions, Bluff Assistant in Lake two once in May home case on and once Stone, who had dis- torneys (or July), 1973. Skinner in June December of legislation. Peter V. bill the cement engaged cussed Carpentier attorney an who he, Pappas Craig and Pappas told negotiations prosecu- with the conducted three could do one of Pappas, V. Peter agreement By tion. a letter dated March Peter investigation. regard things agreed plead Carpentier guilty to he say he could said that Pappas V. impending felony one count indict- words, money, in other all the “ratholed” cooperate fully in the ment and to investi- it and money kept got that he had but government, this case. The gation in Pappas Peter V. of it on. pass any did not return, agreed per- to dismiss other counts do was to thing he could that another said Carpentier and to taining bring to the he knew everything government tell sentencing judge’s Carpentier’s attention thing was not admit it, the other about government. with the cooperation that be- Pappas V. said Peter anything. Thereafter, June, around the first of grand jury, being called cause he 1974, Carpentier permitted postal inspectors attorney. need to hire an probably he would tape recording to attach a device to his Pappas they if Craig and Pete He asked telephone. On June office defendant $5,000 help him apiece to him give would telephoned Carpentier Walker at his office. Pappas V. expenses. Peter legal pay was recorded. Carpentier The conversation to contact Pappas and Pete asked also immediately then called Assistant United money and see if participants two the other Attorney Skinner to inform him of Peter V. them also. obtained from could be Carpentier place call. told Skinner a talking to he had been said that Pappas Walker, admonishing Carpentier call to but had Corporation Material Service govern- to disclose the fact that he was a going help and were not dropped him try ment informant and to to talk about said that way. Pappas Peter V. him in money given he had Walker and to let of the executives that some he heard Carpentier complied, Walker talk. and a had received Corporation Material Service Carpentier second conversation between immunity on the case. and Walker was recorded. A third conver- Pappas Peter V. in the fall Also July sation was recorded on 1974. The said, “that if the telephoned Carpentier prior reveals that to any recordings, record $5,000 apiece, up would come fellows government was aware that Walker showing his tax return he would amend had counsel. retained $20,000and we would all be off he took Pappas nor Car- Neither Pete the hook.” the tapes Walker contends that of con- Pappas gave ever pentier by Carpentier versations recorded between $5,000 requested. that Peter V. Carpentier himself and should have been and that
suppressed, admission of the AS TO RECORDED II. ISSUES tapes into evidence at trial constituted er- CONVERSATIONS regard, argues ror. In this Walker that the activity in the government resulted which re- raised issues with appellants All four recording telephone of his conversations conversations recorded Car- spect to the constituted an unreasonable search and sei- trial, Pappas. Prior pentier and Pete Amendment, zure under the Fourth a deni- Walker, and Peter V. Craig, defendants process of due under the Fifth al Amend- suppress the district court to Pappas moved ment, right denial counsel under conversations. Follow- tape those recorded Amendment, and a violation of 18 their Sixth the district court denied ing hearing, U.S.C. § motion.
474 Carpentier the outset the well-set record that voluntarily
We note at
con-
pro
recording
that
there is no interest
sented to the
principle
of his conversations
tled
by
Fourth Amendment in those with
Walker.13
tectible
party to a
in which one
conversa
situations
Further, Walker’s contention that
or
in the
reposes a trust
confidence
tion
rights
his Fifth Amendment
were violated
actually
who is
an undisclosed
party
other
since he should have been made aware of
or
agent
g.,
informant.
E.
government
prior
his rights
making
statement
is
States,
293,
v.
385
87
United
U.S.
Haifa
rights
required
no avail. Advice of
is
408,
(1966). Simply
374
17 L.Ed.2d
S.Ct.
custodial
situations where the inherent
legitimate Fourth Amendment
in
put, no
pressures
speak in
govern
the face of
situations,
involved in such
for that
terest is
authority
present.
mental
are
Beckwith v.
no protection
affords
to “a
Amendment
States,
341,
1612,
United
425 U.S.
96 S.Ct.
misplaced
person
belief that a
wrongdoer’s
1;
Gardner,
48 L.Ed.2d
United States v.
516
voluntarily
his wrong
to whom he
confides
(7th
1975),
denied,
F.2d 334
Cir.
cert.
423
302,
reveal
it.”
Id. at
87
doing will not
861,
118,
96
(1975).
U.S.
S.Ct.
The record does not recordings suppressed. tape indicates have been Nothing er’s therein contentions. inadmissible, conversations were the indict of those government withheld argues, Pap- because Pete Pappas whatsoever. Fur purpose ment for acting neither under color of law thermore, pas into a com investigation in an prior intercep- consent to the given oc- nor had involving many persons, as plex scheme whether defendant had retained context of a difference 14. Nor does it make government investigation. recordings government in face of a prior counsel knew Lemonakis, Compare 158 U.S. United States represented The vio- counsel. Walker 162, 175, (1973), App.D.C. right 485 F.2d to counsel lation of the Sixth Amendment denied, 989, 94 S.Ct. cert. 415 U.S. viewed in the context as claimed here is to be (1973). violation occurred in L.Ed.2d 885 of whether the claimed prosecution, stage not in the critical of a might Pappas conversations within mean- become of their involved “an tion ob- 2511(2)(c).15 justice of 18 U.S.C. ing struction situation” § if it later turned the money out was not for that on October The record shows fees but attorney’s rather for use an Pappas government and the en- encouragement not testify. prosecu- agreement into a letter which Pete tered tor, then Assistant United Attorney agreed guilty Pappas plea to enter a to a Skinner, agreed plea if negotiations 7206(1) [making violation of 26 U.S.C. § with Pete fell through, there would return], statement in an tax false income no use recorded against material *20 cooperate fully government with the its Pete Pappas. investigation, to not run for re-election as a Representative, resign from State and to Every aspect of recording the con return, prior In testifying September office to at trial. on versations 27 and October 15 prosecute to government agreed not supervised by government. the was the Pete further, to Pappas any any Pappas only Pete not use taped those conversations him in supplied against any information he government which the directed him to rec way, and to at probation government recommend the ord. The supplied the record sentencing.16 time of ing equipment agent and an who operated the equipment. agent remained near argues Pete Pappas Pappas’ Peter V. that Pappas until Pete had finished record recordings prior of two conversations ing. After each recording, the agent took entering plea into the agreement ac- the custody equipment of original and the complished for purely purposes selfish de- tapes. our record, Under view of the what signed (Pete Pappas’) to increase his value may ever have been Pete Pappas’ motive in government a In support as witness. cooperating with the government, he was argument, Pappas points of this Peter V. “acting under color of law” within the through that Pete Pappas, outs his attor- meaning of 2511(2)(c) U.S.C. § . conversations, offered to ney, tape the and government not use the Pappas could Peter V. also contends Pete tapes unless and until it reached Pappas given had an not had his prior consent agreement with Pete As such Pappas. recording Pe- of the conversations to which Pappas concludes, ter V. Pappas Pete party. was he was a regard, this Peter V. acting “under color of We Pappas argues law.” do not prior to the written Our agree. review of agreement the record indicates October govern- Pappas that Pete agreed cooperate with ment precluded using tapes from government prior recording any con- Pappas’ of Pete recorded conversations Pappas. versations with because, Pete against date, him prior to that Pappas’ attorney suggested recordings government did not have Pete Pappas’ con- during the plea negotiations substance, course of be- sent. In argues Peter V. Pappas cause Peter V. Pappas demanding had been Pappas that Pete withheld his consent to money from Pete Pappas interception for use as attor- of the conversations to fees, ney’s attorney and the was concerned which he was a party until the date by giving Peter V. Pappas money, Pete agreement. written 2511(2)(c) provides U.S.C. guilty plea § as follows: his incarceration after a 15. cooperation represent chapter “It shall not be this a serious threat to unlawful under .person family. acting day signed for a him and under color of law to his On the same he communication, intercept 17, 1973, agreement, a wire Pappas, or oral October Pete person party where attorney, such a to the prosecutor com- appeared his and the be- parties munication or one of the munication has to the com- Judge Morgan fore of the United States District given prior consent such Illinois, Court for Southern District of interception.” plea agreement which time the was disclosed Judge. Pappas plea Pete entered a agreement Pappas recited that Pete guilty agreed January 20, provide 1975. He was concerning would legislators information various year probationary to a sentenced one relationship term. and their with members organized syndicate Chicago, crime charged, showed, it is not ment and the reject argument because evidence We record, and, further, among the conspiracy be- defendants and vari- by the supported (among ous unindicted co-schemers whom that there can be no valid cause it assumes Pappas) occurring was Pete over an extend- un- consent under these circumstances prior period recordings ed of time. The of which plea agreement. til there is a formal We during Craig complains were made the ex- support, Pappas find no and Peter V. alleged proven istence of the conspir- none, an assumption. demonstrated for such Furthermore, acy. Craig voluntarily par- Pappas clear from the record that Pete It is conversations, ticipated in the albeit with- gave prior interception consent to the knowledge Pappas’ out of Pete true func- recording of the conversations.17 cooperating tion as an individual with the Craig also contends18 that the Defendant government investigation.20 in its At the denying pre-trial district erred in court conversations, time recorded Pete suppress evidence in the form of motion Pappas’ confidentiality trustworthiness and tape recordings of conversations made Craig necessarily were characteristics which Pappas Craig partici- in which was a risked, cannot be heard to com- pant.19 Craig argues that Pete plain when it is afterwards learned that *21 by government instructed the to elicit con- Pappas actually govern- Pete had been a past by in events culpability fessions of damaging ment informant and evidence of indulgence cajolery, sympathy, mutual at conversations are later introduced trial. Further, Craig points pretenses. and false See, States, g., supra; e. Hoffa v. United 27, September out that as far as the 1973 White, supra; v. United States concerned, Pappas’ conversation was Pete Lemonakis, supra. tape only mission was to a conversation the Craig tapes further contends of Pappas. with Peter V. Under such circum- not have been his conversations should ad stances, Craig argues, Pappas Pete was preserv into “for want of mitted evidence obliged Craig to advise of his true function substance, their ing integrity.” Craig government agent, as a and that argues custody tape that no chain of of the government rely cannot on 18 U.S.C. recordings proven Specifical was at trial. 2511(2)(c). § Craig complains ly, of the admission into tapes occurring evidence of of conversations Craig’s We find no merit at on Pappas Sep between himself and Pete tempted culpable distinction between state 27, 23, tember 197321 and October 1973. ments contained in recorded conversations occurring during the commission of an of government The record shows that exhib- fense, occurring and such statements after purported it 101-0 103-0 to be the September commission of an offense. The indict- original tape recordings of the demonstrably Pappas Craig, Pappas, 17. The facts in this case are and Pete dis- 19. Peter V. tinguishable participated September from the facts in Weiss v. United in a conversation on States, 321, 269, 27, 1973, Chicago. Pappas 308 U.S. 60 S.Ct. 84 L.Ed.2d Pete at hotel (1939), by upon Pappas. Craig relied V. Peter recorded conversation. and Pete interceptions Pappas participated Weiss involved the of communi- also in a conversation participants ignorant 23, Pappas cations of which the were which Pete recorded on October 1973, Springfield. and to which did not consent. 308 U.S. at at a motel in case, 269. In this the record Pappas indicates that Pete knew and consented reject Craig’s 20. We claim that also under the interceptions. Pappas circumstances of this case Pete obliged to his an reveal status as informant. Craig adopts partially arguments doing expressed of de- Our reasons for so are in con- respect with fendant Walker to the issue by of the nection with an identical claim made de- admissibility tape recordings Walker, supra, respect of conversa- fendant with to Miranda tions between a defendant and an undisclosed warnings. government agent. Craig To extent adopts arguments, reject Walker’s we those Pappas party 21. Peter V. was also a to this arguments expressed for the reasons in connec- taped. conversation and was tion with defendant Walker’s contentions. copies tapes sophisticat- conversations identical October ed, Pappas high quality improved Pete testified that machines. Weiss
respectively.22 immediately prior September audibility copies removing 27 the of those meeting noises, V. Craig Pappas background procedure and Peter etc.—“a he Chicago, speech a hotel went to room of make the sound of closer to that hotel, Inspector D’Hooge in same you using Postal which would have obtained D’Hooge recording where outfitted him with a more tape ideal situation.” Weiss room, D’Hooge’s himself, After departing kept copy tape recorder. one of each Pappas proceeded placed bags, Pete to an area of the the other copies sign- sealed Craig ing bag. hotel where he conversed with the seal on then each Weiss hand- Pappas. recordings conversation was ed the sealed Postal In- who, Pappas immediately spectors. recorded were copies subsequently Pete These conversation, government 101-1, after returned numbered exhibits 102- tape D’Hooge’s original room where the recorder corresponding etc. “-0” person. series, from his D’Hooge removed and Weiss stated from witness kept tape. stand that none these exhibits had been tampered with. further testified that almost later, years on February (May, two-and-one-half Weiss further testified that later 7, 1976, 1976), he tape recording representatives listened at the direction September government, portions he deleted certain conversation of the “-1” (government 101-0), recognized tapes. tapes These were exhibit then 101-3, 102-3, Transcripts identified his voice as well labelled etc. voices cor- responding to the “-3” series were Pappas, and Peter V. labelled and noted that 101A, 102A, etc. parts tape some The district court unintelligible. found *22 proper that a foundation been Pappas that estab- tape stated the recordings tapes lished for the “-3” with accurately the deletions truly and portrayed the conver audibility and enhanced and in he admitted those sations which had participated on tapes into evidence and allowed them to September 27, be 1973. He also testified that played for the jury. a typed transcript tape recording was a true transcript. Pete Pap-pas accurate and. No of custody tapes chain similarly respect stified" with to the te proven Notwithstanding was at trial. this tape recording of the 23 October conversa however, proof, lack of we feel that the (government 103-0) tion exhibit and other tapes were a proper admissible because (government conversations he recorded ex foundation had demonstrated. been The 104-0).23 hibits 102-0 and purpose of of custody the chain rule is to next respect
The
with
witness
insure that the item offered into evidence is
tapes
Weiss,
was Professor
in
quali-
substantially
who
the same condition as it was
fied
accepted by
the district court as an
at the
the proponent
time
of the evidence
expert. Weiss testified that
Cf. United States
Inspec-
possession.
Postal
came into its
Santiago,
v.
D’Hooge
tors
(7th
1976);
and Kelm visited his
768
Cir.
New
534 F.2d
Brown,
March, 1976,
York
in
v.
(8th
offices
the tapes
with
479
Craig
tapes
also contends that
the conversations
accurately portrayed
Further,
expert
participated.
he
because their chain of
which
were inadmissible
opinion
in his
testified
witness Weiss
pursuant
to 18
custody was not effectuated
no alterations.
tapes contained
2518(8)(a).24 Craig argues
§
U.S.C.
proper
that a
court was satisfied
district
recordings of conversa
although consensual
ad-
had been established
foundation
pursuant
color of law
to 18
tions under
agree that
tapes.
We
missibility of
2511(2)(c) may
exception
be an
U.S.C. §
tape
that the
was sufficient evidence
there
interception as established
approved
court
On the basis
recordings were authentic.
2518, Congress intended the
by 18 U.S.C. §
say that
us we cannot
record before
integrity found in 18 U.S.C.
guarantees of
abused its discretion
the district court
con
2518(8)(a)
applicable
to be made
§
See
tapes into evidence.
admitting the
however,
recordings. Craig,
points
sensual
(5th
Biggins, 551
F.2d 64
v.
United States
history of Title
nothing
legislative
in the
Cosby,
v.
F.2d
500
United States
1977);
Cir.
III of the Omnibus Crime Control
Safe
1974); Monroe v. United
(9th Cir.
90-351,
Pub.L.
Act
Stat.
Streets
228,
Craig also
cogent
most
g.,
reasons. E.
required
his conviction is
because the court
Crouch,
(7th
States v.
“The elements of the offense of mail
fraud
.
.
(1)
are
a scheme to de-
MAIL
III.
AS TO
FRAUD
ISSUES
fraud,
(2)
and
the mailing
letter, etc.,
of a
Craig,
Pappas,
and
Defendants
for the purpose of executing the scheme.
tending
contend that
the evidence
Walker
necessary
It is not
the scheme con-
prove
mailings alleged
to
in the indict-
template the use of the mails as an essen-
legally
support
insufficient
ment
tial element. United
Young,
States v.
their convictions for mail fraud under 18
155,
303,
232 U.S.
34 S.Ct.
dustry
charged
participating
with
in the
who addressed
those
secretary,
MVLC
ly by the
Connolly,
the notices would be
mailing list.
scheme knew
a
from
the notices
NIRMMA,
mailing
on the MVLC
list
Secretary
persons
mailed to
Executive
the
the
of the MVLC’s
placed
ordinary
be
in the
course
busi
that NIRMMA
requested
ness,
McBride
aware
Connolly and
those who were not
of the
list. Both
mailing
co-schem-
charged
responsible
as and shown
be
are nevertheless
for
mailings
were
by
the defendants.
caused
other members of
mailings
ers with
the
scheme in its furtherance.
United
the
estab
government’s evidence
The
(7th
1974),
Joyce,
v.
..” But this
in Pereira is
396
90
24 L.Ed.2d
U.S.
S.Ct.
Varelli,
(7th
jeop
mentioned in the context of a double
United
v.
34. Defendant whose is a violation of the mail fraud statute was an adopted by Craig, similarly object conspiracy. defendant contends government required prove that the 486 extent as be if the proof of to the same it would previously,
As indicated
charged.
show
offense alone were
requires
mail
a
substantive
offense of
fraud
Feola,
671, 695,
v.
420
95
mailing
United States
U.S.
ing of a scheme
defraud
1255,
(1975). We do
37. The district court instructed the as fol- sum of raised to be distributed to legislators lows: after H.B. 4176 was vetoed conspir- Governor. Whether “Although charges single there was one the indictment a acy, conspiracies, conspiracy or two conspiracy, possible sepa- or no at it would be to find you conspiracies, relating alleged all is a fact for to determine in rate one to an accord- $50,000.00 passage ance with these sum of raised to instructions.” secure relating alleged H.B. 4176 and the other to an and from causing Lauwereins to travel to must agreement parties “While existence, need each other’s further Indianapolis, know of Indiana with intent to need identity nor each other’s not know Lauwereins’ travel the scheme to defraud. agreement contact. there be direct Travel a violation of the charged long period of time may continue for Act, 1952.38 ad- The evidence U.S.C. § many performance include the trial that on Febru- duced at demonstrated join the may parties New transactions. travelled from ary Lauwereins may others while time agreement Indianapolis meeting to attend a Chicago to relationship. parties terminate their in-order to solicit that Associ- of ID-MRCA identical, this does not but always are not support collecting ation’s financial conspira- separate are there mean $50,000.00 Indianapo- fund. While in bribe cies. lis, discussed the bribe fund Lauwereins between be made must The distinction Chalden, Craig, and other ID- Herb par- where certain conspiracies, separate Lauwereins returned to MRCA members. and one overall to all ties are common day and continued his Chicago on the next par- with various continuing conspiracy money. to raise the terminating their relation- efforts joining ties people times. Various at different ship that since he Craig contends rested at together in further- knowingly joining case, government’s and since close design purpose con- a common ance of was called a co-defendant as Lauwereins While the single conspiracy. stitute witness, who, on a defense cross examina- group a small may have conspiracy tion, testified as to his travels to Indiana who parties conspirators, other core fund, testimony raise the bribe Lauwereins’ core with these knowingly participate may against reject not be used him. We to achieve a com- and others conspirators, government because this contention witness an overall members of goal may be mon Wisner testified that he travelled with Lau- conspiracy. lines, government is the wereins across state essence, question is what If there is one agreement. nature of the witnesses Chalden Herb testified the various agreement among overall $50,000.00 that Lauwereins discussed the functions perform different parties fund with ID-MRCA. Other witness- bribe objectives of the carry out the order concerning es testified Lauwereins’ fund *31 among all the agreement conspiracy, the raising activity upon Chicago. his return to conspiracy” single parties constitutes Pappas Peter V. contends that the evi- omitted). 742) (citations (407 at F.2d that he dence was insufficient to show one overall demonstrates evidence here willfully an unlawful knowingly and caused parties the diverse among agreement activity.39 Specifically, interstate order to different functions perform charged in Pappas argues that the travel objective. conspiracy’s carry out Thirteen and Fourteen was Lauwer- Counts TRAVEL ACT ISSUES V. doing purposes for his own eins’ own use of “happenstance” constitutes at most a of the in- and Fourteen Thirteen Counts with interstate travel. conspirators charged dictment subparagraphs (1), (2), (3) pertinent part: shall be provides in 1952 38. 18 U.S.C. § $10,000.00 imprisoned or fined not more than foreign (a) interstate or travels in Whoever years, facility more than five or both. any for not in interstate or uses commerce or mail, commerce, including (b) foreign in this section “unlawful activ- As used any extortion, (1) proceeds (2) bribery, ity” distribute the intent means ... activities; any (2) or commit crime unlawful or arson in violation of the laws of the State any activity; to further unlawful of violence in which committed or of the United States. establish, manage, (3) promote, otherwise or Craig similarly contends that Lauwereins’ 39. on, promotion, manage- carry or facilitate reasonably anticipa- trip have been “could not on, establishment, any ment, carrying or ted.” activity, performs or and thereafter unlawful specified attempts perform of the acts
489
relief
facility
legislation.
It is also
The use of an interstate
clear that Lau-
travel,
case,
to facili wereins
or,
Indianapolis
interstate
travelled to
intending
as in this
activity
to seek
carrying on of unlawful
ID-MRCA’s financial
tate the
assistance in
for
jurisdictional
raising
funds,
basis
the necessary
a federal
provides
then re-
purely
Chicago
otherwise be of
turned to
which would
to continue his
crimes
fund-rais-
Peskin, 527 ing
Craig
v.
efforts.
concern. United States
and Peter V.
local
denied, 429
71,
1975),
(7th
early participants
cert.
were both
F.2d
78
Cir.
the scheme
(1977);
818,
63,
79
$50,-
97
50 L.Ed.2d
and were instrumental
in setting
U.S.
S.Ct.
(7th
Bursten,
779
560 F.2d
figure.
co-conspirators
v.
000.00
As
United States
in the
a de
1977).
necessary
scheme,
properly
It is not
are
Cir.
accountable un-
travel
reasonably foresee interstate
der
fendant
1952 for Lauwereins’ interstate
§
travel
attach under 18
liability
promote
criminal
bribe fund’s collection ef-
States, 401
v. United
fort.
$50,-
1952. Rewis
Because the collection of the
U.S.C. §
808, 813,
tors in furtherance of the unlawful
VI.
ISSUES AS TO THE INDICTMENT
Peskin, supra,
United
v.
527 F.2d at
States
Craig contends that the indictment
75;
Joyce, supra,
United
v.
499 F.2d
States
in the instant case should have been dis
at 16. The interstate travel under §
judgment
missed and
arrested because the
acts, however, must be
subsequent
and the
indictment, based on federal criminal stat
“significant”
merely
more
than
“incidental”
general applicability,
utes of
violated the
or “minimal”. Cf. United States v. Altobel
Speech
provisions
or Debate
of the Federal
la,
(7th
1971);
442 F.2d
Cir.
and Illinois Constitutions.
If by this con
McCormick,
v.
F.2d
tention
means that
inquiry
federal
Isaacs,
1971);
supra,
United States
*32
legislator’s
into a
activity
state
criminal
is
F.2d at 114640
493
Speech
barred
or Debate Clause of
previously,
Constitutions,
the evidence
the Federal and Illinois
As noted
such
$50,000.00
raising
a contention
light
showed
cannot stand in
of United
(7th
part
Craig,
1976)
bribe fund was an essential
States v.
40.
and Isaacs involved
“travels in interstate or
commerce” as-
“facility
foreign
pect
in
or
commerce”
of that statute should be treated
interstate
different-
why
ly-
aspects
no
1952. We see
reason
§
Brewster,
501, 516,
only
to rule
U.S.
S.Ct.
Craig
purported
But
II
involving
(1972),
asserted
491 Craig’s We fail to see how said to defense was cannot be indictment such an than anymore change an after-trial in prejudiced relations federal-state strain privilege or official legal theory debate of the of this speech viability defense. intended to make to be rely can be said on the privilege Craig’s panel decision to earlier immune “super-citizens, legislators state opinion strategy was a decision which we responsibility.” criminal from in are not inclined to review the absence of Brewster, supra, 408 U.S. v. any showing prejudice. of at 2539. 92 S.Ct. the district contends that Craig also VII. OTHER ISSUES government’s granting court erred Following testimony govern the direct of of portions certain to strike motion
pretrial
Carpentier,
ment witness
defendant Walker
panel decision
original
the indictment. The
production
for the
of
moved
statements and
existence of a waiva
I, holding the
Craig
nine
grand jury testimony
Repub
Illinois
privi
debate
speech or
legislative
state
ble
lican State Senators. Walker asserted that
To com
prior to trial.
rendered
lege, was
(18
3500)
the “Jencks” material
U.S.C. §
suc
government
with this decision
ply
Carpentier
pertaining
indicated that Car
portions of
to strike those
moved
cessfully
approached
pentier
nine senators
acts
legislative
pertaining
the indictment
seeking
participation
their
in the scheme.
argues
Craig
acts.
those
and motives for
These senators were interviewed by postal
amendment
striking constituted an
that the
inspectors during May
June,
1974.
since it
Jury’s indictment
the Grand
Three senators testified before
grand
agree.
We do not
the scheme.
changed
November,
jury in October and
1974.
pertain
strike did not
The motion to
of the
charging paragraph
portion
The memoranda of interviews
postal
por
counts,
only to those
was directed
inspectors
grand jury
and the
testimony
inconsist
arguably
of the indictment
tions
sought by the motion contradicted much of
the law
existing state of
with the then
ent
Carpentier’s
testimony.
trial
All nine sena-
granting
Craig I. The
this Circuit under
any agreement
Carpentier
tors denied
change
to strike did
of the motion
to the cement bill on the
pertaining
condi-
indictment,
rath
but
charged in
scheme
“help in their district.” Five
tion of
portions.
only to remove offensive
er served
Carpentier claimed
eight44 to whom
to have
act to
Furthermore,
striking did not
receiving
money
sent
denied
it. Two sena-
in the indict
charges
contained
burden
receipt of
acknowledged
tors
in the
$100.00
such,
grant
we conclude that the
As
ment.
mail,
knowing
but denied
the source.
not serve to
motion to strike did
ing of the
Walker asserts that
the contents of the
indictment.
amend the
statements would have
senators’
aided his
Carpentier
cross examination
and his de-
argues that he
Craig further
whether
call
cision
declarants as witness-
his de
a fair trial when he based
denied
es. Walker claims that
the memoranda of
enunciat
privilege
the testimonial
fense on
transcripts
grand jury
interviews and the
possible
waiver
I. To avoid
ed
testimony were relevant exculpatory evi-
wit
not take the
privilege, Craig did
Brady
to which he was entitled under
dence
Craig decision
The en banc
ness stand.
83 S.Ct.
Maryland,
v.
U.S.
in the
the verdict
II),
after
(Craig
rendered
(1963),
proper
and that
L.Ed.2d
case,
to emasculate the de
served
instant
government’s suppression
remedy speech
legislator’s
a state
upon
based
fense
evidence is a dismissal of the
this relevant
Craig asserts that had
immunity.
or debate
In the context of the entire
indictment.
it would later
prior to trial that
he known
(United
Agurs,
record before us
States v.
nothing he
there was
determined that
decision,
F.2d
1975),
cert.
the
of
information which he claimed the
523 F.2d
Esposito,
1517,
916,
47 government suppressed,
96 S.Ct.
in
denied,
and
view of the
425 U.S.
agree
we do not
with
district court’s offer
(1976)),
subpoena
the sena-
L.Ed.2d
say
tors and conduct a
we
hearing,
contention.
cannot
Walker’s
of
government
that the refusal
the
to make
Maryland,
Brady v.
su
Under
available the declarations of the nine sena-
1194,
83 S.Ct.
373 U.S.
pra,
deprived
tors
process.
Walker of due
exculpatory material
(1963) any
L.Ed.2d
specifically
and
prosecutor
to the
known
Defendant North
the
contends that
must be made
by the defendant
requested
evidence adduced at trial did not
him
prove
But the evidence
defense.
the
available
guilty beyond a reasonable doubt. Viewing
material,
States v.
United
sought must be
evidence,
must,
as we
the light
in
most
must be unknown to
supra,
Esposito,
government,
favorable to
we conclude
Agurs, supra.
States v.
the defense.
that
there was sufficient evidence from
availability
pre-trial
of
decla
While
jury
which the
could find that North was a
may have
senators
been
of the nine
rations
participant
in the conspiracy and mail fraud
in
of his
preparation
to Walker
valuable
scheme, and was accountable for
acts of
Carpentier, the
record
examination
cross
co-conspirators/co-schemers.
his
prior to
Walker was aware
that
indicates
shortly
evidence showed that
before
which the
the testimonial evidence
trial of
November,
meeting
MVLC,
capable
furnishing,
were
senators
nine
Pappas had
conversation with North
was sup
trial
which he claimed
Springfield,
Pete Pappas testified about
pressed.
their
“I
conversation as follows:
him
told
that
testified at trial
dur-
Walker himself
I
had
on
something going
the cement
to every
1974 he talked
ing the summer of
bill
it was going
to be in the Commis-
for
ce-
senator
voted
Republican
”
said,
meeting.
sion
He
‘Fine.’
two,
or
and that he
except
bill
one
ment
Pete Pappas further testified that in ear-
who admitted
talked to
senator
never
ly
mid-September, 1972,
he telephoned
Furthermore,
July
on
receiving money.
North and “I told
my
him of
call from
a conversation
Car-
Walker had
Peter V. and then I
him
told
if he
Walker
indicated that
pentier
which
could
Coffeehouse,
make the
meeting at
colleagues
deny-
senatorial
some
I
something
would have
for him. He said
grand
had received
ing
jury
he thought
O.K.,
he could and I said
fine.”
This conversation
money
Carpentier.
from
At the
meeting
Pap-
Coffeehouse
Carpentier and was admit-
was recorded
pas
an envelope
delivered
to Pete
at trial.
ted into evidence
car,
Peter
Pappas’
V.
while North
away
that Walker
The record further
shows
from
car. Pete Pappas
returned
then
prior to trial
his counsel knew
automobile,
to his
opened
own
the envelope,
Republican
of the other
senators
names
bills,
removed ten one hundred dollar
exited
voted
H.B.
and where to
who
his automobile “and walked to Pat North
prevented
Nothing
Walker’s
contact them.
gave
him the ten one hundred dollar
the senators as
interviewing
counsel from
bills and then restarted
a conversation
in Walker’s behalf.
potential witnesses
having
about
lunch
Holiday
at the LaSalle
of the sub-
addition Walker’s awareness
Inn.”
statements,
nine senators’
stance
investigation leading
opportunity
Walker
offered
After the
to the in-
judge
subpoena
began,
the senators and
dictment in this case
district
North told Pete
October, 1973,
hearing
presence
Pappas,
“It
to conduct
outside
would be a
we
jury
good thing
forget
to ascertain the information he
if
that we
ever
meeting
(the
sought. Walker declined the district court’s
Interstate 80”
Coffee-
meeting).
house
offer.
The record also demon-
*35
Now,
stated,
inspec-
Craig
substance,
postal
on June
also
in
strates that
North about the
questioned
and
tors visited
when Representative
Pappas
Pete
men-
the in-
meeting. North told
Coffeehouse
tioned that he was
worried about
meeting.
recall
spectors he could not
investigation,
investigation
that
he
Pappas
Pete
of
day
the next
North told
On
him,
stated sure cured
cured him of tak-
inspectors’
“they
visit and that
postal
ing
money
bribe
in the Illinois General
meeting
quite
knew
a bit about
Now,
Assembly.
after admitting his in-
payoff
Interstate 80 where the
was held.”
explaining
volvement and after
that he
argues
against
North
that
the evidence
authorities,
going
deny
was
it to the
legitimate
very comfortably
him “fits
into a
hearing
tape
after
those
recorded conver-
theory
(Reply
of innocence.”
Brief of De-
sations,
question
there can be no.
that
North,
however,
3).
jury,
p.
fendant
Craig knowingly
willfully
Robert
and
We find no basis on the
found otherwise.
in
participated
this scheme to accept
that
record before us to disturb
determina-
money
thereby
bribe
defrauded the
tion.
citizens
the State of Illinois.
Craig and North contend that
Both
prosecutor’s
remarks were
pri-
based
because
conviction should be reversed
their
marily
tape
on the
recorded conversation
im
indulged
prejudicial
prosecutors
Craig
between
Pappas.
Craig’s
closing
rebuttal ar
proprieties in their
statement,
actual
as shown by a
argues
transcript
that
guments. Craig first
labelling
closing argu
conversation,
him in
that
government’s
recorded
indicates:
funds
distributor-recipient
ments as a
If
asked me about
I don’t
improper. Our review of the evidence
know,
going
I’m
I
say
don’t know.
I
is
suggests
adequately sup
this label
don’t
anything
remember
about
evidence in the record and consti
ported by
money
.
go-
.
. . Cause I ain’t
Craig by
a fair characterization of
tuted
ing
(unintelligible) god
to admit
damn
prosecutor.
money now.
Craig
prose
next contends that the
Craig argues
expressed
that he
in that
improperly
upon
cutor
commented
his in
conversation an intent
to invoke his Fifth
Fifth Amendment priv
tention to assert his
privilege, the exercise
Amendment
of which
ilege against self-incrimination. The tran
generally exempt
from comments
script
challenged part
closing
prosecution
post-Miranda
situations.
argument reads as follows:
Hale,
171, 95
422 U.S.
Now, going
tape
to that
back
recorded
However,
(1975).
we
And,
substance,
Representa-
he tells
on a statement
from one
ly commented
tive
three times that he is not
evincing
attempt
an
conspirator to another
going
anything
to admit
if he is asked
In view of the
his misdeeds.
to conceal
And,
money.
about
in addition to the
such
we cannot consider
argument,
entire
got
statement
I
four and I’m not
improper.
comment
it,
going
say anything
Repre-
about
rebut-
challenges
government’s
North
Craig, you
tape,
sentative
recall the
also
contending improper
closing argument,
tal
it,
if they
said
ask me about
I’m not
in four instances.
remarks
prejudicial
going
say.
going
I’m not
I
say
don’t
government’s
First,
argues that
North
know because I am
going
to admit
as a
of his defense
fabrica-
characterization
god
money
damn
now. That is what
depriving
error
prejudicial
tion constituted
Representative Craig
tape,
said on the
if
North,
through
trial.
you
tape.
recall the
of a fair
him
counsel,
forward,
receiving
carry
admitted
the one thou-
the ball
that she
go-
Pappas,
sand dollars from Pete
but defend-
ing
lie,
to have to tell a
that she got
through
ed
circumstantial evidence the re-
caught in.”
ceipt
campaign
as a
money
contribu-
argues,
below,
North
as he did
argument,
prose-
tion.
In his rebuttal
*36
prosecutor
jury
stated to the
his personal
cutor
for the jury
reviewed
his under- opinion
liar,
that Mrs. North was a
and that
standing of the evidence offered by North
this statement was prejudicial. Since there
support
campaign
the defense of a
con-
is a factual basis in the record for the
tribution, argued that the evidence did not
comments,
prosecutor’s
and since the record
defense,
support the
and concluded:
does not show an abusive and indecorous
“The facts are that Mr. North didn’t use of the term “liar”
prejudice
we find no
treat
campaign
this as a
contribution.
It
from its use.
brought
is a fabricated defense that was
prosecutor’s
North also
contends that
get
into this courtroom in an effort to
erroneous account of two events resulted in
you
Frank
acquit
P. North.”
prejudicial error. The first
instance per-
Characterization of a defense-as
postal
tains to the
inspector’s testimony
fabricated,
alone,
standing
is no more im with respect
meeting
to the
at the Coffee-
proper than characterizing a witness as a
Inspector
house. Postal
Greenan testified
Compare,
Isaacs,
liar.
v.
States
su
that he
meeting,
asked North about the
but
pra,
493 F.2d
1166. But where the
During
that North couldn’t recall it.
rebut-
terms “fabricated” or “lies” are used re
tal,
prosecutor
stated that North denied
peatedly
excessiveness,
point
to the
meeting.
the Coffeehouse
“undignified
line between the
and intem
indulging
Without
in a discussion
States,
perate” (Berger v. United
295 U.S.
of the semantical differences between “ina-
78, 85,
(1935))
testimony. prosecutor correctly practice the While we condemn unusual respect with con- Pappas’ testimony to the Attorney to of the United States calling portion in the opening versation with North motivation testimony explaining offer the closing argument. his North’s own coun- of immunity persons to certain granting correctly reiterated the substance of the sel case, we that in a conclude Skin- involved Fur- closing argument. in his conversation irrelevant, although did not testimony, ner’s thermore, this immediately after misstate- error the cir- reversible under constitute ment, recess, district after a brief the this case. cumstances of jury: the court admonished first, note, that counsel We defense argue is lawyers “It the law that who the on several occasions insinuated respective their sides of case have the evidence, immunity tinged was with im right granting on the inter- of comment However, pret they Secondly, it as see it. what court propriety. district say is they jury immunity not evidence and their com- as to properly instructed do ments not make true what claim In view and how it should be considered. you decide, is true. It is for from all controversy granting over the heard, you the evidence have what are counsel, and by created defense immunity the facts.” jury prop that the was in view the fact of immuni erly as to nature instructed repeated The district court a substantially not err ty, we the district court did feel that similar charge admonition in his final call the government jury. circumstances, allowing Under these we find so prejudicial Attorney as a witness. In prosecutor’s no error in the United mis- States however, inti finding, statement. we do not wish to practice. condone mate we such Craig also contends that the district court immunized, govern Where a witness in allowing government erred ob- over- adverse expect vigorous, fairly ment can jection to call the Attorney United States credibility on the of im inquiry attack Skinner) (Sam argues as a witness. Craig counsel. But by defense munized witnesses testimony that Skinner’s enabled the where, here, early stages of the trial government to enhance or vouch for impropriety an so with aura of were imbued veracity given those witnesses who were cre immunity aura grants over immunity. testified in Skinner substance —an of im through ated cross examination grand jury’s investigation that the had be- not witnesses, through argumenta- bogged May, come down in and that it but munized trial, juror presented immunity granted Early importance upon the to Mr. in the one expect lawyers following question judge: for the written to the trial Crown. Can we why immunity prosecution hearing eight people, us this “Since we are the trial of to tell Crown, given?” including I Lester am concerned Coghlan placed great fact has with the that Mr. dire, North during opening voir further contends that reversal of tive statements remarks, examination of non- required in cross conviction is because the prose- say cannot wife, immunized witnesses —we cutor’s cross examination of his Shir- allowing ley North, erred prejudicial. the district court We have re- these insinuations of government to meet viewed the with transcript respect to this testimony the' through impropriety contention no and find error warranting Attorney. United States reversal. jury that the reached North also contends trial, Prior to North moved the district factually inconsistent verdict legally court for dismissing an order the indictment argument, This how- respect to him. and/or suppressing all evidence obtained or ever, rejected previous occa- has been plea derived as a of a agreement result court, reject we it here. sions government between the and Pete Papp Serlin, v. g.E. United F.2d North contends first pro as.49 1976); States v. (7th Cir. ceedings Morgan before Judge violated the Greene, (7th 1085-86 Cir. 497 F.2d doctrine of separation powers, thus de Tankersley, United States 1974); priving independent him of an judiciary 1974). F.2d 962 and, secondly, the plea proceedings improper an of the judiciary that his sentence use
North further claims nothing government find in the convert Pete was excessive.46 We into wit record abuse of discretion ness. indicating an *38 and, sentencing
the district North court in nothing We find in the record of claim. accordingly, reject this proceedings50 Judge Morgan before in North also claims verdict as to dicating agreement that the plea and subse him was void because the district court quent Judge acceptance by Morgan were clerk’s of the misreading47 verdict form improper agreement The illegal. con jury of the polling48 followed revealed templated Pappas, that Pete a resident of jury’s as to the North confusion verdict Island, Rock Illinois, was to be charged with which been prior should have resolved a criminal tax in the violation Southern jury. the discharge of the Illinois, District of Judge where Morgan presides. While the details of the agree Whatever the effect of the clerk’s Judge Morgan, ment were disclosed who consider, no misreading we have occasion to viewed them approvingly, Judge Morgan for it correctly is clear that the verdict was participate did not published negotia in conspiracy as to the count. Since resulting agreement. tions pro imposed sentences on North were run recorded, ceedings concurrently, copies on were reversal the claimed error transcripts would were available to Cf. practical result in no difference. made the de Holtzman, United States v. fendant. court properly 440 F.2d The district denied (7th 1971). Accordingly, Cir. and/or suppress we deem motion to dismiss the it unnecessary to consider North’s claim. indictment. jurors polled 46. The district court sentenced North to four Individual as to their en- three-year imprisonment eight defendants, concurrent regarding terms of tire verdict all on each of the four counts for which North as to each verdict. $5000.00 convicted. North was also fined conspiracy count. 49. The factual for North’s basis contention respect Pappas’ plea negotiations with to Pete supra,
47. When surrounding the district court clerk read the is set text ver- forth in the note impression dict form he left the that North 16 in Pt. II. guilty only One, conspir- found as to Count acy charge. fact, jury had found North transcripts Judge proceedings 50. The before Ten, guilty Eleven, on Counts Twelve Morgan were filed the District Court in this addition to Count One. part appeal. case and the record on are trial, of 18 unindicted provisions perpetrated under the U.S.C. coschemers At a cor- pri- tendered the 3500(c), government rupt upon fraud the citizens of Illinois. § to the Vigorous prosecution of witness or statement was called for. But in camera inspection large perverse court for an was, district as the scheme those state- relationship of determine the did not constitute violation of either the testimony. Judge Pappas’ direct federal mail fraud or travel act statutes. ments the statements Leighton reviewed pertain “not did the statements ruled I Pappas’ this case.” subject matter of In United Joyce, States v. 499 F.2d transmitted to this have been statements 1974), I voiced the view that requested us to re- Court, North has Government had stretched the mail fraud ruling. We have court’s view the district statute to the breaking point by using mail- and find no request, complied ings which only were at best tangentially ruling. court’s the district error in related to the fraudulent scheme. I reluc- are af- of conviction judgments tantly concurred in an affirmance firmed. case. Here the mailings used to sustain the convictions have gone beyond the breaking Affirmed. point. To affirm is to extend impermissibly SWYGERT, Judge, dissenting. scope of federal jurisdiction. Circuit criminal pernicious case follows trend that This A developing in our federal criminal has been long jurisprudence period over a of time: As illustrated by the majority’s opinion, jurisdiction federal beyond the extension of federal courts have increasingly given the by Congress intended when it en- anything mail statute a very expansive fraud inter- provisions pretation. various of the Criminal acted the But in their zeal to convict the Supreme (Only the Court seems to guilty, Code. these courts have blurred a very g., e. halt, called a recently important have distinction between the two ele- Maze, ments of U.S. the offense of mail fraud. I con- *39 Rewis v. United (1974); L.Ed.2d 603 38 cur in the view that the first element —the States, 808, 1056, 401 91 28 U.S. S.Ct. scheme to defraud —should be liberally and (1971).) The speak broadly L.Ed.2d 493 trend I interpreted so as to cover the many about is not confined to the mail fraud unforeseen and diverse kinds of fraud act,1 statute travel but in may and the federal which be devised. I equally am con- vinced, my however, this dissent I shall confine attack on the that the second element— jurisdiction overextension of federal use of the ought interpreted to be mails — these two statutes because are the strictly and narrowly. This interpre- strict ones involved in this case. tation is necessary only not because the mailings provide juris- the basis of federal thing I wish to make one clear at the diction, but interpreta- also because such an outset. The scheme to defraud in this case comports tion with scope the limited of the large magnitude. was of perva- It was also statute. sive, involving members both houses of legislature major purpose statute, Illinois and of both of the mail fraud The political parties. 1872,3 The defendants pro- and their first enacted was limited to prosecutions 1. This trend is also visible un- 2. 18 U.S.C. 1341. § Act, Amabile, der the Hobbs United States v. 47, J., (7th 1968) (Swygert, 1872, 301, 395 F.2d 54 8, Cir. 3. Act of June ch. 335 17 Stat. § dissenting); Battaglia, United States v. 394 Although the statute has been amended 304, (7th 1968) J., (Swygert, 318 occasions, F.2d Cir. dis- on several these amendments have senting); conspiracy, United States Hof- only v. insignificant changes wording; made fa, 698, (7th 1966) (Swygert, 367 F.2d 716 provision Cir. always prohibited has schemes to J., dissenting). involving defraud use of the mails “for execu- 498 event, In pro- than it is not the rather scheme to postal service
tecting the
every
perpe-
fraud
against
viding weapon
defraud which the federal statute con-
legisla-
Although
the states.
trated in
only
demns but
the use of the mails in its
sparse,
is
it is
statute
history of the
tive
execution.
It is that use which consti-
provision
note that
important
corpus
tutes the
delicti of the offense.
entitled, “An Act
chapter
within
placed
Aldridge,
655,
See United States v.
484 F.2d
consolidate,
revise,
and amend the Stat-
(7th
1973);
Lowe,
660
Cir.
United States v.
Depart-
the Post-office
relating to
utes
596,
(7th
1940),
115 F.2d
598
Cir.
cert. de
was concerned
Congress
That
ment.”
nied,
717,
441,
311 U.S.
61 S.Ct.
persons
[*]
object of the law was to
having
using
[*]
fraudulent
[*]
post
[*]
office as a means
designs
[*]
prevent
on oth-
[*]
prevention of schemes to defraud were the
L.Ed. 1151
S.Ct.
Morgan,
(1915).
L.Ed.
U.S.
(1887).
point
is obvious. If
Cf.
Ebeling
primary purpose
statute,
mail fraud
effectuating such fraud.
then
converse would be true: a defend-
adopted
interpretation.
a like
*40
This court has
ant
only
could
convicted
on the number
Browne,
751,
225 F.2d
v.
In United States
devised,
he
schemes
not on the num-
1955),
Major
(7th
Judge
Chief
de
757
Cir.
mailings.5
ber of
clared:
denied,
Note,
911,
1174,
Survey
ting
See
of the
cert.
377 U.S.
84
such
S.Ct.
12
scheme[s].”
237,
Fraud,
(1964); Rosenberg
1975 U.Ill.L.F.
239.
Law of Mail
L.Ed.2d 181
v. United
States,
935,
(10th
1941).
120 F.2d
937
Cir.
States,
193,
41 F.2d
197
v. United
4.
In Cochran
Similarly,
5.
this court has held that neither the
(8th
1930),
Eighth
declared:
Circuit
Cir.
the
ultimate success of a fraudulent
scheme nor
post
office establishment
The use of
defrauding
the actual
of a victim is crucial to a
alleged scheme to obtain
the execution of the
prosecution.
States
successful
United
v.
money by
gist
pretenses
is the
of the
false
Keane,
534,
1975),
(7th
522 F.2d
545
Cir.
cert.
denounces, and not
which the statute
offense
denied,
976,
1481,
424 U.S.
96 S.Ct.
47 L.Ed.2d
to defraud.
the scheme
(1976). Again,
only
746
this can be true
be
Anderson,
F.2d
v.
466
See also United States
cause the federal
is
offense
the misuse of the
Lynn,
(8th
1972);
States v.
1360
United
Cir.
injury
complete
mails and therefore
is
759,
1972);
(10th
Milam v.
F.2d
762
Cir.
461
when the defendant
uses
mails.
1963),
States,
(5th
United
499
ly fulfilled that
requirement.
restrictive
Instead it
even more
But the statute
mailings
uses an incorrect
test:
of the mails.
the use
just proscribing
than
part
“incidental
to an essential
“for the
mailings be
requires
It
test,
alone,
standing
scheme.” This
is whol-
scheme.”
executing
such
purpose
ly insufficient.
It leaves out the necessary
have to be
do not
mailings
Though
Any mailing
causal relation.
can be inci-
nonetheless,
they,
fraudulent
in themselves
scheme; yet it may
dental to the
not fur-
closely related to
“sufficiently
must be
[the
majori-
ther its execution. The flaw in the
conduct
bring
scheme
defendant’s]
ty’s test is that the “essentiality” element is
Maze,
v.
United States
within the statute.”
misplaced.
mailing
must be essential
645, 648,
395, 399,
38
94 S.Ct.
414 U.S.
to the execution or furtherance
(1974).
requires,
The statute
603
L.Ed.2d
scheme.
It matters not whether it relates
nexus be-
therefore,
substantial
a close and
to an essential element of the scheme be-
and the fulfillment of
mailings
tween
cause all the essential elements of a fraudu-
formulations
A number of
the scheme.6
priori
lent scheme must exist a
before a
“[U]sing
post
office as
point:
make the
the sufficiency
determination of
fraud,” Unit-
effectuating such
a means
mailings
majori-
can be made. To use the
881,
(1884);
887
Loring, 91 F.
ed
v.
States
ty’s terminology,
mailing
must be an
being
from
post
office
prevent
“[T]o
essential incidence of the furtherance of the
effect,”
into
Dur
carry
used to
[the fraud]
scheme,
is,
putting
(not
into effect
306,
States,
314, 16
161 U.S.
land v. United
incidental
to an essential element of the
511,
(1896); The
508,
step in
any ques-
the scheme. Nor is there
Connolly
tion that
and McBride caused
B
said, however,
It
be
mailings.8
cannot
these mailings furthered the scheme.
reiterate,
the mail fraud statute re-
To
there be a scheme to defraud
quires that
entirely
It was
immaterial whether
States,
v.
mailing.
Connolly
and a
Pereira
United
McBride and
received written no-
meetings.
tices of future MVLC
As
1, 8-9,
358,
not meet the issue. The letters forming the basis may of Counts Six and Seven have Waiver of and Seven: (2) Counts Six raising been “incidental” to the of the bribe Dues NIRMMA fund, they but do not meet the Staszcuk duplicate let- Six and Seven are Counts test. How can it be possibly maintained the sent to the members of Northern ters suspension-of-dues any the letters in and Materials Associa- Ready-Mix Illinois way furthered the If anything, scheme? in- (NIRMMA). simply The letters tion they merely bookkeeping were to devices formed the of the association members offset the internal of accounts the associa- for three months suspended dues would be tion descrip- members. Even this is a loose large of reserves accumulated because the Certainly tion. not integral an treasury. Appendix C. in NIRMMA’s See part of the execution of the which scheme was well under the way when letters were During the NIRMMA annual convention written. If the Government produced had several February in Miami Beach $50,000 fund, letters mailed to solicit the association, including Con- members of the more ground. would be on solid But when raising met of the nolly, to discuss it uses internal communications between $50,000 passage as a bribe for demanded only association members are inci- Connolly of the so-called “cement bill.” dental to and not in furtherance of the dues the association suggested that of scheme, it reaches a for straw. If mail period of time suspended members be for to flimsy fraud cases are be built such compensate partially those con- to members foundations, then the distinction between tributing the fund. On March NIRM- mere incidental use the mails of and the use suspend MA’s board of directors moved postal of the to further facilities the execu- for three payments the dues members tion disappears. of the scheme to defraud monies of the months reduce reserve compensate part association and to contributing to
members the fund. (3) Eight Counts Nine: Fraudulent Expense Vouchers background, it must noted Given this $50,000 not derived from fund was per When the assessment of the truck $40 companies.12 the NIRMMA funds proved NIRMMA members be insuffi- dues, however, benefitted waiver The fund, $50,000 cient to raise the bribe companies, pro- the individuals who not up by deficit made coschemers $3160 Moreover, the waiver ex- vided the funds. Wille and Moeller. To reimburse them of the association tended all members outlay, expense false vouchers were their officers contribut- whether Arcquilla Bernard and Morris submitted Finally, suspen- the dues ed to fund. Connolly of NIRMMA. The Lauwereins the return of was not rescinded with sion generated by cash these vouchers $50,000 its contributors. fund who in turn reim- Connolly turned over to mailings Wille and Moeller. majority says: “It is clear bursed from form the basis expense these two vouchers $50,000 record that the collection (here, Arcquilla supplied personal Department $1020 scale. from State Police and the Therefore, Staszcuk, funds, Transportation). personal $8200 as in Moeller contributed from funds, supplied $8000 Lester from purpose mailings Crown conflicted rather personal promoted safe. than defendants’ scheme to defraud. example, Wiggington supplied 12. For $1600 company’s from fees collected for the use of *43 States, Appendices 347 U.S. 74 S.Ct. Nine. See Eight and
of Counts (1954), as remote and unfore- L.Ed. 435 too D and E. seeable. operation that this seen readily be It can NIRMMA defraud swindle
was a side Trade Asso- and Eleven: Ten (4) Counts Connolly, industry schemers by concocted Bulletins ciation and Lauwereins. Moeller, Arcquilla, Wille, well have may of the vouchers mailings The subject mailings The which were the separate scheme of this in furtherance been Ten and Eleven consisted of bulle- Counts expense (to themselves benefit ready-mix industry asso- tins mailed two incidental only NIRMMA), they but ciations, Ready-Mix Northern Illinois defraud the the scheme to peripheral (NIRMMA) and Illi- Materials Association pass the cement using bribery public by Ready-Mix nois Division-Midwest Concrete mailing, vouchers, less their much The bill. (ID-MRCA), informing Association their the success of were not essential passage of H.B. 4176 members Senate integral part of its were not an scheme and urging them to contact the Governor to brings following diagram execution. sign Appendices the bill.13 F See and G. point. home the Whether these otherwise innocuous trade
bulletins can be said to be “in furtherance depends scope of the scheme” on how the the scheme is defined. notes, majority
As the
goal
ultimate
ready-mix industry
of the
was the enact-
weight
ment of a new
law for cement
nothing
trucks. There
improper
or ille-
my difficulty in
diagram
illustrates
gal
indeed,
here,
seeking
objective;
such an
understanding
appellants
how the
major
of the
schemers,
purposes
be said to have
one
of trade
can
associa-
legislative
two false ex
mailings
legislation.
of these
tions is to obtain favorable
caused
it
said that
How can
pense
activity
lobbying
vouchers.
This
includes
efforts such
reason
could have
legislative
schemers
urging
members to contact the Governor.
entirely
an
different
ably foreseen that
corrupt
What was
about the instant con-
against NIRM
perpetrated
would be
fraud
bribery
legislators.14
of the
duct was
they
could
How can
be said
MA?
perpetrated upon
This was the fraud
reasonably
industry
foreseen that
have
Illinois,
passage
of a new
citizens of
not
false vouchers
would use and mail
schemers
weight law.15 These considerations lead to
(6%)
the fund?
part
a small
to assemble
inescapable
these mail-
conclusion that
conspiracy
the law of
fully
I am
aware that
ings
integral part
were not an
of the execu-
responsible for the use
holds each member
tion of the scheme to
and were not
by other members. But
defraud
of the mails caused
in furtherance of its execution. Under the
to a case such
blindly apply
principle
test,
sufficiently relat-
Maze
were not
reality.
over
I
as this is to exhalt fiction
come within the mail
Eight and Nine
ed to the scheme to
believe that
the Counts
mailings
within the ambit of Pereira
fraud statute.
fall
amounts,
urged
lesser
after the Governor vetoed the
bulletin also
its mem-
The ID-MRCA
concerning H.B.
bill.
to write the Governor
bers
4177,
subject
bribery
legislation
Appendix
See
F.
scheme.
supported by the fact that
15. This conclusion is
alleged
proved
neither
nor
the Government
pas-
illegal
limited to
scheme was
14. That
object
conspiracy was to influence
supported
sage
law in the two houses is
unlawfully
his staff.
the Governor or
paid, though
bribes were
the fact that the
Mailing
Despite
proof
that the
rested on
the fact
(5)
$500
Twelve:
Count
says
seeming
quicksand,
majority
Walker
Cash
at trial
assurance: “It was shown
Car-
*44
by
Illinois
passed
H.B. 4176 was
envelope
placed
in an
pentier
$500.00
on
1972.
May
Representatives
House of
it to
in fulfillment of their
mailed
Walker
in
Illinois Senate
It was introduced
would receive
agreement
that Walker
prior
Shortly thereafter Car
later.
days
three
bill in
handling
for
the cement
$500.00
Republican
with ten Illinois
pentier spoke
difficulty in conclud-
We have no
Senate.
E.
Car
was Jack Walker.
senators. One
proceeds
of the
ing that
distribution
support
to
the cement
pentier asked Walker
in furtherance of the
the bribe fund was
bill,
“that
there would
ambiguously
saying
It
that the distribution of
scheme.”
is true
1972
his district.”
mid-June
help
in
Walker,
occurred,
if it
to
part
bribe
Senate,
in
pending
while
bill was
scheme, but
was in
that
furtherance
that
Harris
Carpentier told Walker
Senator
delivery,
by
not make its
as asserted
does
sponsor the bill because
longer
could no
service,
postal
use
Carpentier, through the
a
then
Walker
Carpentier
Harris
ill.
told
was
by
the mails
the statute.
contemplated
bill, “an
would handle the
if Walker
fortuitous,
a
unforeseen circum-
It was
given
would be
him.”
additional $500
words,
sport
it was a
In other
in
stance.
to handle the bill.
agreed
Walker
an
totality
integral
of the scheme —not
its
an incident essential
part of
execution or
in September
testified
Carpentier
these convic-
to its success. To hold
from
bills
$100
received $5000
1972 he
using the mails to
charges
tions on
later he
days
a few
said that
Pappas. He
on this weak thread
depend
defraud should
of nine
the addresses
type
had
wife
his
say
the most attenuated use of
is to
further
envelopes. He
plain
senators on
under the
post office is sufficient
stat-
by
supplied
cash
using the
testified
ute.
each of
bill in
a
Pappas,
placed
$100
he
in an
five
bills
$100
eight envelopes
II
Walker,
he
and that
to
addressed
envelope
testi-
envelopes. Walker
then
these
mailed
diagnosis
The flaw
majority’s
in the
denied that he
trial and
fied at the
the convictions on the two travel act
mon-
any
he received
money or that
offered
in the mail
counts17
similar to that
fraud
the bill.
ey in
with
connection
My colleagues, ignoring
counts.
the limited
act,
congressional purpose of the
stretch the
At trial
the Government
an
introduced
beyond
statute
recognition and
un-
extend
mock-up,16 Appendix H,
envelope
appar
see
duly federal jurisdiction
prosecute
what
ently realizing
proof
that its
of mailing was
essentially
state crime.
extremely shaky grounds:
on
the assertion
congressional
he
Carpentier that
had mailed
purpose of the
$500
travel
plain envelope
juxta
cash in a
to Walker
act was to attack criminal activities extend-
posed against
ing
Walker’s denial that he
beyond
the borders of one
state
promised
been
or had received any money.
providing federal assistance in
situations
evidence,
being
corroborating
There
no
the which local law enforcement was ineffec-
proof
of the use of the mails
further this
Nardello,
tive. United
393
U.S.
scheme,
vast
convicting
286, 290-92,
numerous defend
89 S.Ct.
pretation of
way depended on this one
in
scheme
aspects
be scrutinized narrow
travel
should
travel.
That
of interstate
incident
Otherwise,
jurisdiction is ex
ly.
federal
meeting
were
of the ID-MCRA
members
situations
intended
Con
tended to
never
fortuitous.18
completely
Indianapolis
812,
Rewis,
91
gress.
supra, 401 U.S.
was not even
The assistance of ID-MRCA
S.Ct.
to the scheme as the
necessary or essential
section 1952 is
application
$50,000
help.19
for
without
its
The test
bribe was raised
activity
interstate
degree of
the nature and
trip
This one
cannot suffice to invoke
United
state crime.
of the
in furtherance
jurisdiction under
the travel
act. The
1124,
(7th
1148
Isaacs,
F.2d
v.
493
States
scheme involved here was outside the ambit
denied,
94
Cir.),
417 U.S.
cert.
congressional
nothing
concern —there is
major
(1974). As the