*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. 46 L.Ed.2d 89 413. Nor is the Fourth Amend at S.Ct. Judge As Bauer stated in United States v. agent because the undisclosed ment violated Bastone, supra, 526 F.2d 977: simultaneously records conversation person “A is warnings not entitled to recording device on his with an electronic simply because investigation an has fo- States, v. 373 person, Lopez United U.S. upon cused him. The test is not focus 427, 1381, (1963), 83 10 L.Ed.2d 462 S.Ct. alone, rather, plus but focus custodial in- electronically is because the conversation terrogation. Illinois, v. Escobedo 378 agent transmitted the undisclosed 478, 1758, 84 U.S. S.Ct. 12 977 L.Ed.2d it is overheard place remote where other (1964); Arizona, 436, Miranda v. 384 U.S. v. agents and/or recorded. United States 1602, 86 S.Ct. (1966).” 16 L.Ed.2d 694 745, White, 1122, 401 U.S. 91 S.Ct. 28 While is clear the investigation (1971); v. L.Ed.2d 453 On Lee United upon Walker, had focused defendant his States, 967, 747, 72 343 U.S. S.Ct. 96 L.Ed. recorded Carpentier conversations with in (1952). tape 1270 Evidence in the form of volved no governmental confrontation with recordings gener of such conversations are authority in the context aof custodial inter ally one admissible where to the con party rogation calling warnings. for Miranda versation consents the electronic record Consequently, we reject must Walker’s con ing. States, Rathbun v. United 355 U.S. tention recordings that his violated 107, 161, (1957); 78 S.Ct. 2 134 L.Ed.2d rights. Fifth Amendment Bastone, v. (7th 526 F.2d 971 States 1975), denied, cert. 425 96 Cir. U.S. Nor did the recordings violate (1976); 48 L.Ed.2d 797 United Walker’s Sixth Amendment right to coun Martin, 1967); By terms, 372 F.2d 63 sel. its own the Sixth Amend denied, cert. right 387 U.S. 87 S.Ct. ment affords the of counsel all “[i]n (1967). prosecutions.” L.Ed.2d There is no doubt from criminal purely For Sixth Conceding fully supports interception the record of communications where the finding Carpentier giv person intercepting acting district court’s under color of law prior recordings, en given prior consent Walker and has consent thereto. find, l(2)(c). nevertheless contends that the consent of Car § U.S.C. We and Walker con- pentier peculiar cedes, was under circumstances amply supports record the dis- government of this case the consent of the trict court’s determination the conversa- itself, and, hence, legal Arguing without effect. tions and the circumstances under which those exigent there were no circumstances conversations were fall recorded within 18 justify government’s failure to obtain a 2511(2)(c). finding § U.S.C. Even if a of valid interception court order for the of the commu naught consent could be held for in view of the pursuant nications U.S.C. Walker § peculiar case, given circumstances of a we find Carpentier’s judi asserts that consent without peculiar no such circumstances in the record approval naught. cial should be held for We before us. agree. Congress do not has seen fit to condone many places, *19 as and carried on curring in as right a defendant’s purposes, Amendment by the time scheme established only long at or after as the counsel attaches case, compelled has been in this we are judicial proceeding government adversary Illinois, Kirby v. 406 against him. unadorned reject initiated Walker’s contention 1877, 688, L.Ed.2d 411 682, 32 92 S.Ct. was withheld for the charge U.S. that his formal Stewart, J.); opinion of (1971) (plurality event, any asserted here. purposes 201, States, 84 377 U.S. v. United Massiah certainly required government (1964). 1199,12 246 also: L.Ed.2d See S.Ct. investigation into a on-going cease an far- 387, Williams, 97 430 U.S. S.Ct. v. Brewer ap such as this when it reaching scheme (1977). accused of 1232, L.Ed.2d 424 One 51 to seek an pears probable to have cause to be entitled to counsel a crime is said as to individual. Cf. Hoffa indictment one prosecution. any stage “critical” States, v. supra; v. United United States Wade, 218, 236, 87 v. 388 U.S. United States Gardner, Skelley, v. supra; United States 1926, (1967); 18 L.Ed.2d 1149 Gilbert S.Ct. denied, 1974), 447 cert. 501 F.2d 263, 267, California, 87 388 U.S. S.Ct. v. 629, 1051, 42 L.Ed.2d 647 419 95 U.S. S.Ct. (1967); v. 1951, L.Ed.2d 1178 Simmons 18 (1974). 383, States, 377, 390 U.S. individual claimed Recognizing that his 967, 19 (1968). right Walker’s L.Ed.2d Fourth, Fifth and violations Sixth fail for the sim- argument must to counsel rights alone are insufficient to Amendment yet there had not been a ple reason that reversal, Walker submits that warrant when his conversa- prosecution” “criminal in this totality of the circumstances case Carpentier with were recorded.14 tions government that requires us to hold Nevertheless, argues that at the Walker permissible exceeded bounds. We activity the recorded conversations time of totality of the circumstanc- reject Walker’s longer simply was no investi- government because, for the reasons stated argument es that because gating him. Walker asserts respect with to the individual claimed viola- had bribed Carpentier testify would that he support we find no in the rights, tion of other witnesses would Walker because activity the assertion that the record for needed to establish other provide evidence permissible exceeded government scheme, his indictment elements damning the effect of However bounds. setting as certain as the sun “was then case, recordings upon Walker’s we tape being was deferred the West and that indicate that nothing in the record to find up permit government to beef merely recordings rights by were violated by obtained its case with admissions to be or the ad- Carpentier, conversations by concludes trickery.” stealth and Walker recordings. of those mission into evidence being was stating that “the indictment withheld, pur- the conscious perhaps with Pappas Peter V. also Defendant avoiding any right prob- to counsel pose of be tapes that of conversations contends lems.” Pappas Septem Pete tween himself and 15, 1973 should support Walk ber October

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 482 F.2d 1226 question, subjected tapes 1973). that he purpose to Cir. of the rule is analysis where, here, scientific purposes for of determin- a proper served as foundation ing splices alterations, the existence demonstrating accuracy and trustwor that, opinion, tapes Pappas contained thiness of evidence laid. Pete “no indication participated taped of alteration whatsoever.” testified that he in the conversations, Weiss further made tapes truly testified that he two and that the copy recordings testify 22. A “-0” these series 23. Pete did not were the con- given trial, recorded, prior to defense counsel and the tents of conversations he and his original tapes inspec- postponed for were made available cross examination was until after tapes played jury. tion. were for the

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, 234 F.2d 49 States, U.S.App.D.C. States, seq. 18 U.S.C. 2510 et support v. United 298 F.2d Todisco (1956); § 1961). Indeed, Cir. our research reveals contention. Congress primarily concerned with from markedly is thus different This case privacy the intrusions into caused “the Starks, (3rd United States 515 F.2d 112 use and abuse of electronic sur widespread In the 1975), on which relies. relied on a Starks government techniques.” S.Rep.No.1097, case the veillance 90th physi- when evidence of a presumption that Cong., reprinted 2d in 2 Sess. U.S.Code introduced, the trial cal nature has been (1968). Cong. pp. & Admin.News public offi- is entitled to assume that court Act, 802 of U.S.C. § Section in their tamper cials did not with exhibits was enacted to delineate “on a uniform some evidence possession in the absence of conditions un basis the circumstances and suggesting otherwise. The court there held of wire and oral interception der which the attack is made as to that “when a colorable Id., may authorized.” communications accuracy, the bur- tape’s authenticity interceptions But consensual at 2153. party offer- den on those issues shifts to intercep those specifically exempted from requires ing tape and the better rule unlawful tions which would otherwise be party prove custody.” its chain of the Act. 18 comply for failure to *23 Id., held 515 F.2d at 122. The court further excep created this Congress U.S.C. § that it for the trial court to shift was error reflects ex largely “largely because it tion unau- proving to defendant the burden of Id., consensual isting p. law.” 2182. Since case, the Id. thenticity. In the instant different interceptions significantly are presump- government rely any did not and interceptions, from non-consensual affirmatively of but rather regularity, tion legislative nothing in the Act or its since the record- accuracy demonstrated the of recordings of con- any tampering. history indicates that the ings and the absence of judge recordings or- 2518(8)(a) provides: shall be wherever 24. § They destroyed except ders. shall not be any “The contents of wire or oral commu- judge issuing denying upon an order of the or any intercepted by nication means authoriz- kept years. any for ten and in event shall be shall, by possible, chapter if be re- ed this may Duplicate recordings made for use or be comparable tape corded on or wire or other pursuant provisions sub- of disclosure any recording contents of device. The of the chapter (1) (2) this 2517 of § sections this sub- wire or oral communication under investigations. presence of the seal for way as will be done in such section shall subsection, by provided or a satisfac- for recording editing protect other from thereof, tory explanation absence for Immediately expiration upon the alterations. prerequisite the use or disclo- order, shall be for period of the or extensions of the any thereof, wire or oral com- recordings sure of the contents of shall be made avail- such judge issuing munication or evidence derived therefrom such order able to the (3) Custody 2517.” § of the under subsection under his directions. sealed interceptions by were intended tapes sensual Con- tioned in the nor was a conversation subject 2518(8)(a), to 18 gress U.S.C. in which he participated § recorded. reject Craig’s we contention. It is well established that a sev granted except erance should not be for the contends that reversal of

Craig also cogent most g., reasons. E. required his conviction is because the court Crouch, (7th States v. 528 F.2d 625 Cir. reporter did not transcribe the conversa 1976). Essential to a successful motion for tape recordings tions contained on the severance is the strong showing preju played jury for the in violation of the Court dice as a result of its denial. United Act, Reporters 753(b).25 28 U.S.C. Point § Cervantes, (7th 466 F.2d Cir. ing to holding authorities26 the re 1972). Prejudice, severance, required quirements mandatory, Craig of the Act are means that the movant will be unable to argues dispute that the below was “what secure fair trial unless the severance is (Reply was heard in the court.” Br. of granted. showing A that a separate trial Appellant Craig, p. 21). Defendant We will offer a better chance acquittal find no merit in this contention. tape plainly inadequate. Blue, United States v. recordings played the jury and the tran 1971). 440 F.2d 300 script recordings part of those are of the Thus, appeal record on to this Court. we attempting requi to make the have the most accurate record of what was strong site showing prejudice, North ar jury, heard and the fact that gues, below, as he any did deletion reporter court did not transcribe the con recordings from the sound would create an tents tape recordings way of the in no unmistakable inference the minds of the impedes proceedings our review of the bel jurors something very damaging tape ow.27 Because the recordings played suppressed. agree him had been We cannot to the jury part are appeal, record on argument. nothing with this We find we find compliance substantial with 28 the record to indicate that Bruton exci 753(b). U.S.C. § created inference in sions the minds of Defendant jurors. contrary, contention with re- To the North’s the district spect to the tapes is of a different jury nature. court instructed the both at the time North argues that the tapes played district court erred in the were immediately pri- not granting him a severance taped from oth- or to its deliberation that the conver er defendants upon government’s based only against sations were to be considered recordings use of transcripts which con- participants those conversations. More over, tained deletions.28 North asserts that if he the court jury also instructed the alone, had been tried tapes tapes played would have the time the disregard Having been inadmissible. North men- was neither the excisions.29 failed to demon- 753(b) provides part: taped argument 25. 28 § U.S.C. in relevant conversations. This over- ability tapes looks our to listen to the reporters appointed “One of the for each accuracy government-pre- determine the such court shall attend at each session of the pared transcripts. court . . and shall verbatim record *24 by shorthand or mechanical means . . . (1) witness, proceedings government’s expert all in criminal cases had in 28. The Professor open Weiss, portions tapes court . . . .” excised certain at government. the direction of the Such exci- g. States, 180, 26. E. Calhoun v. United 384 F.2d sions, prior knowledge done with all the of the (5th 1967), 183-184 Cir. and cases cited there- concerned, parties comply were effectuated to in. 123, States, with Bruton v. United 391 U.S. 88 1620, (1968). Craig argues 27. S.Ct. 20 L.Ed.2d 476 Other than here as he did below that be- contention, tape recordings cause North’s no issue is raised as he considered to the unin- telligible, prejudiced by these he is deletions. the failure of the reporter court reporter to transcribe what tapes heard played, when Judge Leighton part: were and that the 29. stated in final “One government-prepared transcripts tapes point recordings: recordings of those about these these interpretation are at subjected, best its you of the contents of have been heard Professor severance re- the denial of this strate with Pereira inquiry begins Our States, reject any prejudice, in we v. United quest 1, 8-9, resulted 347 U.S. 74 S.Ct. 358, 362, (1954): North’s contention. 98 L.Ed. 435

“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. 58 L.Ed. 548 charged 1341.30 The indictment U.S.C. § mailings, in each of Counts Two eleven one support To fraud, a conviction for mail in through mailing alleged Twelve. The mailings must be closely enough related to proven by govern- indictment and the fraudulent Ohrynowicz See v. scheme. following: at trial consists of the ment States, United (7th 1976); F.2d 715 Cir. — Britzman, United States v. Agenda 542 F.2d 380 Two to Five Notices and Counts Meetings of De- MVLC 1977). In determining the rela- cember and January tionship between the mailings and the mailed 1972, by scheme, fraudulent our inquiry concerns Mc- MVLC Secretary Bride and Connolly. whether the uses of the mails that were charged in the indictment and shown by the — Dues Abatement letters Counts Six and Seven evidence properly may be said to have been Ed- from NIRMMA to Inc. and Accurate mier, purpose for the executing the scheme Ready-Mix. meaning within the of 18 U.S.C. § —Fraudulent Eight and Nine Vou- Expense Counts Maze, See United States v. 395, 414 U.S. mailed chers by Arquilla 94 S.Ct. (1974); 38 L.Ed.2d 603 and Lauwereins to NIR- United States v. Sampson, 371 U.S. MMA for purposes Parr covering a (1962); L.Ed.2d 136 short- $3160 age in the bribe fund. States, 370, 385, 363 U.S. 80 S.Ct. 1171, 4 (1960). L.Ed.2d 1277 Ten and Eleven —Bulletins from Counts ID-MRCA urging and NIRMMA mailings charged proven and members to contact through Counts Two Five of no- consisted urge Governor to him to December, agenda tices and 1971 and sign House Bill 4176. January, meetings the MVLC. — Twelve Count cash from $500 Dayoff ready-mix These notices were mailed to in- to Walker. Carpentier or Weiss to certain deletions furnish or unlawful use ply, testify yesterday, procure processing obligation, which have been necessary. coin, counterfeit or any spurious knowledge These deletions were anything done with the or other or article, security, repre- all the case and parties they or intimated or held out to be sented to be legal need not be con- proper you attempting so to such scheme or artifice or legal cerned about basis for these deletions office or authorized do, places any post or the reasons for the deletions. You should matter, for mail matter or any depository disregard consider the entire fact tape thing whatever to be sent or delivered by subjected have been deletions Postal or takes or receives there- Service, determining guilt or excisions innocence thing, knowingly matter or or from, such any of the defendants in this case.” any according delivered mail causes to be or thereon, the direction at place 30. The Mail Fraud Statute provides: to be delivered which it is directed having intending “Whoever, devised or such addressed, whom person any devise scheme or defraud, artifice *25 thing, matter or shall be fined not more than obtaining for or means of money by property not more than $1,000 or five imprisoned false or fraudulent pretenses, representa- or both.” years, tions, loan, or to sell, of, promises, dispose exchange, give distribute, alter, away, sup- 482 Although it is clear not all of and Connol- McBride representatives

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. 499 F.2d 9 Cir. States and co-schem the defendants lished that 1031, 512, denied, 95 42 cert. 419 U.S. S.Ct. a to devise ers/co-conspirators conspired Isaacs, (1974); v. L.Ed.2d 306 United States citizens and the by which bribery scheme 1974), (7th cert. denied F.2d 1124 Cir. 493 de would be of Illinois legislators honest States, v. 417 sub nom. Kerner United U.S. government. honest right their prived of 3183, (1974); 1146 41 L.Ed.2d S.Ct. passage was the the scheme object of The Keane, (7th v. 522 F.2d 534 United States Assembly giv the Illinois through of a law denied, 1975), cert. 424 U.S. Cir. ready-mix weight relief for ing highway (1976). 47 L.Ed.2d 746 S.Ct. record shows trucks. The industry cement mailings represented Because the body initially which MVLC was the that the through Five were incidental Counts Two weight legisla relief proposed the reviewed scheme, part of the overall to an essential to the Gen and made recommendations tion mailings furthered the exe and because the Thus, the introduction Assembly. eral scheme, mailings of the cution of the eventually became of what the MVLC different significantly notices are MVLC strategic essential a “cement bill” was mailings legally found to be insuf from the envisioned, by and carried out planned step, States, supra, and ficient in Parr v. United mailings of the no the co-schemers. The Staszcuk, 502 F.2d 875 the MVLC to NIRMMA meetings tices of denied, 423 1974), cert. U.S. upon request of Con representatives, 65,46 (1975), of which both industry co-schem L.Ed.2d nolly, keep the S.Ct. served to Parr upon by defendants. sought- their cases are relied as to the status of ers advised board officials of school prosecution record shows that legislation. after tax funds. notices, of school misappropriation receipt of the the schem after the circum Supreme held under presentation their in The Court prepare ers met legally com of that case that change in the truck stances support proposed by to send use of the mails defendant weight pelled law. We conclude that limitations assessments, notices of receipts, and the “cement” bill in the tax the introduction of hearings was not shown to be MVLC, membership included reassessment among whose Parr, supra, Course, in furtherance of scheme. Pappas, Carpentier, Staszcuk, We fur of the scheme. 363 U.S. part an essential convicted, city alderman was mailings of the no the defendant conclude that ther alia, of violations of 18 U.S.C. meetings § to names on inter tices of the MVLC approval for his by secretary requiring payments mailing list maintained mailings charged part zoning changes. to that essential were incidental States, of the scheme consisted v. United su be furtherance Cf. Pereira scheme. zoning com hearings sent requested notices of The MVLC notices pra. City occupants industry mittee of the Council keep NIRMMA to Connolly of property which was sub develop buildings near apprised of MVLC co-schemers zoning amendment. ject proposed bill” the “cement respect ments mailings charged acquired We concluded With such information proposal. conflicted proven by government mail, industry schemers’ through the defendant’s promoted with rather than accordingly. planned actions could *26 defraud, and, hence, age. not in False expense to were scheme vouchers were then Staszeuk, su- of the scheme. furtherance to NIRMMA. prepared submitted Connolly F.2d at 880-881. pra, 502 to pay expense checks the false vouchers. cashed, Connolly When Meyer reimbursed inapplicable are here. Parr and Staszeuk Material for the $3160.00. directed to those mailings The were MVLC to placed who had asked co-schemers It is clear from the record that the to mailing the list. The notices served in- $50,000.00 bribery collection of the fund recipients of the status of their form the scheme, an of part was essential the and in the sought-after proposal MVLC so that the mailings charged in Counts Six steps necessary passage the to secure its through Nine were done as incidental as mailings taken. We feel that the could be of pects assembling the task of the fund. of to the MVLC notices McBride and Con- Because the collection of the fund bribe was enough nolly closely related scheme, part an essential and because such, promoted the fraudulent As scheme. mailings charged the through Counts Six mailings Connolly caused the of the notices Nine were incidental that essential as executing of the purposes fraudulent scheme, of pect Cf. v. Pereira scheme. States, supra, at 347 U.S. we S.Ct. mailings The involved Counts Six conclude that mailings those were done for of from Seven consist letters NIRMMA to purposes executing the scheme to de advising suspension its members them of a fraud, and, as such were to sup sufficient The of dues.31 evidence showed that port convictions for mail fraud. in February, NIRMMA convention in Miami Craig argues mailings proposed compa- it was that member expense (Counts the false Eight vouchers per nies be assessed truck as their $40.00 Nine) entirely constituted an different $50,000 contribution to the bribe fund. At perpetrated against fraud NIRMMA. subsequent Transportation NIRMMA mailings claims that the involved in meeting, plan agreed Committee those fraudulent acts could not have been upon March, 1972, carried out. by foreseen the defendants. We under NIRMMA Board of Directors decided to stand this contention mean that Craig abate the dues of member firms and mailed did not cause the use the mails Counts informing letters so the members of that Eight and Nine within meaning allows, decision. As Craig the record indi- 1341. But a § schemer causes the use of cates that the “reason for these letters was the mails when he has knowledge soften blow by occasioned the assess- use mails will follow in ordinary up $50,000.00 ment make fund.” business, course where such use can (Brief Craig, p. 20). of Defendant rec- foreseen, reasonably be although actu ord shows that Ready-Mix Accurate Con- ally States, intended. Pereira v. United (Count Company Six) crete Edmier, 8-9, supra, 347 U.S. at 358. Fur (Count Seven) Inc. received these letters thermore, each member of a mail fraud through mail.32 responsible scheme is for the use of the mailings which formed the basis for mails caused other members in exe Eight Counts and Nine consist of ex- false cution of the scheme. United pense by Arquilla vouchers mailed and Lau- supra, Joyce, 499 F.2d 16. wereins NIRMMA office. When the $50,000.00 purse bribe Undoubtedly Craig assembled in the had no concern March, 1972, NIRMMA office in Meyer industry Ma- for the utilized methods terial fund, advanced raising prob- $3160.00 cover a short- co-schemers in bribe Ostensibly given Craig challenges proof 31. the reason in the letters for of the use of the surplus receipt respect the dues abatement awas in the NIRM- mails with Edmier’s treasury. MA abatement letter. Our review of Edmier’s testi- mony compels reject challenge. us to *27 properly chargeable scheme and expense co- that false ably never intended. through schemer defendants. the be vouchers would submitted fund, part of the and mails to assemble charges Count Twelve the mailing proce- a not foresee such probably could of hundred dollars to defendant five Walk however, same, cannot be said of dure. at Carpentier er. It was shown trial that ready-mix the in- Craig’s counterparts in envelope in an placed and it $500.00 mailed mailings clearly were caused dustry. prior to in fulfillment of their Walker Arcquilla them, that by the fact agreement that Walker would receive the to submit false used mails Lauwereins handling for the cement bill in $500.00 the of the vouchers in furtherance expense difficulty We have no Senate. in conclud certainly a process fund’s collection ing proceeds that distribution of the of the mail. reasonably foreseeable use of the bribe fund was in furtherance of the reason- industry the schemers could Since Barrett, v. scheme. Cf. United States in the use the mails ably foresee the of 1975), denied, F.2d cert. fund-raising of aspect the the execútion of U.S. L.Ed.2d 450 scheme, are re- and since the defendants (1975); Isaacs, supra. by the mails their such use of sponsible for respect With to each the of above must be industry counterparts, defendants mailings, which we have found to be in represent- mailings the responsible for held scheme, the furtherance of defendants Nine. Eight and ed in Counts Pappas, Peter Craig, V. and Walker assert variously charged they in that cannot be mailings Counts said to have .The mailings, caused the that they consist of bulletins mailed or could and Eleven not Ten anticipated mails, have such use of directing the or by and NIRMMA their ID-MRCA they knowledge that had no of gov participa the membership to contact respective Hence, mailings. tion in the sign defendants urge him to the cement and to ernor contend, the evidence of mailings is insuffi argues the Craig that de bill into law.33 support cient to conviction under § 1341. contemplation that the .a pos had no fendants arguments, however, Defendants’ ignore any part veto was of the sibility principle they the do have to use or and, thus, contemplation of the use scheme personally cause the use of mails the in a veto prevent hardly mails to could of the furtherance of the scheme to held re reasonably been envisioned or antici have sponsible the Mail Fraud under statute. As vein, V. Pappas In a similar Peter pated. we previously, stated members of mail mailings in Ten the Count argues responsible fraud schemes are the for mail sufficiently to were not related the Eleven ings by caused co-schemers the execution the conspiracy because was never scheme of the scheme. When the existence of an encompass improper to alleged influence on agreement scheme participate to to arguments miss governor. These the established, is mailings defraud and when mailings time charged At the mark. of the furtherance scheme are caused Ten Eleven of the indict in Counts schemers, liability some of criminal ment, the scheme was on the brink of frui mailings properly attributable oth view of tion, point least from the regardless er schemers of whether part It was an industry schemers. essential of, to, approved, agreed knew or contem that the cement bill be enact of the scheme plated specific uses of the mails. such, mailings As law. ed into sum, members the NIRMMA jury we conclude that the bulletin could those members to urging mailings properly represented ID-MRCA find that the sign 4176 into governor through H.B. Counts Two Twelve were effec- press the purposes executing tuated for the clearly within furtherance law were respect respect challenges proof viewed the with evidence mail- XI, sufficiently ing proves mailing charge in and find that a bulletin sent use Count Company. Meyer have We re- mails. Material a conviction scheme, mailings those on both substantive and that mail conspiracy fraud counts and to commit caused the defendants. in the charged crime substantive count con IV. ISSUES CONSPIRACY jeopardy, stituted double court in Per jeopardy eira found double no bar to a contends that Defendant conviction on both substantive counts and a failing incorpo- erred in the district court conspiracy count. The court noted defining conspiracy to rate in instructions *28 “charge conspiracy requires of proof not that the requirement commit mail fraud the to the essential convictions on the substan use the mails.34 Be- defendants intended to proof agreement tive of to com we re- requirement, cause we find no such offenses — against an offense the United mit States— ject this contention. and it cannot be said that the substantive count, the respect conspiracy With to identical, conspiracy offenses and the are jury, part, court instructed the district 11-12, Id., ...” 74 at 364. S.Ct. that: Hence, we cannot view the Court’s state any defendant of this offense “To convict ment that “the essence of the conspiracy beyond a prove the Government must charge is agreement an to use the mails to the existence of a con- reasonable doubt support defraud” as for the proposition that mail spiracy to commit the offense of government prove must that defend fraud, defendant, with knowl- agreed join ants the conspiracy with conspiracy, edge purpose of knowledge that the conspiracy contemplat reasonably foreseeing a use of the ed the unlawful use of the mails or that the thereof, be- willfully mails in furtherance conspired defendants intending to use the a . conspiracy came member of mails. proposition Such a require would proof of a mental greater state than that . . . necessary “It is required for conviction of the substantive government prove beyond a reasonable clear, however, mail fraud offense. It is was aware of the doubt that a defendant required the mental state for a con reasonably could purpose, common spiracy greater conviction is no than that of the mails in further- foresee the use necessary to commit the underlying sub purpose, and was a ance of that common stantive offense. United States v. Zaratti willing participant with intent to advance ni, 753, (7th 552 1977); F.2d 760 Cir. United ” conspiracy . . . purpose Mauro, (2d v. 1974). States 501 F.2d 45 Cir. Pappas argues jury should terms, In its baldest 18 U.S.C. 371 § have instructed that a defendant can been makes it a crime for two persons or more guilty conspiracy be found to commit conspire to commit any against offense if it is shown that he only mail fraud United States. It is well established that agreed join conspiracy with the the essence of the crime conspiracy is an knowledge conspiracy contemplat- that the See, agreement to commit such an offense. ed the unlawful use of the mails. Donner, g., e. United v. States 497 F.2d 184 contention, In of his Peter support (7th 1974), denied, 1047, Cir. cert. 419 U.S. Pappas points following V. sentence 641; 619, 95 42 S.Ct. L.Ed.2d United States States, supra, in Pereira v. 347 Greer, United U.S. (7th 1972), v. 467 F.2d 1064 Cir. cert. 1, 11, 358, 364, 74 98 L.Ed. 435: “The denied, 929, 1364, S.Ct. 410 93 U.S. S.Ct. 35 conspiracy charge 590; is an Fellabaum, essence of L.Ed.2d United v. States agreement (7th denied, to use the mails to defraud 1969), 408 F.2d 220 Cir. cert. 109; language 858, 125,

..” 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. 407 F.2d 735 States ardy response 1969). issue. contention Cir. Walker, argument

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 43 L.Ed.2d 541 pur for S.Ct. by35 caused a schemer which was conspirator’s knowledge not consider executing In a mail the scheme. poses jurisdictional to be an the federal elements prove need to prosecution, there is no fraud essential, necessary conspiracy in a element the mails. intent of the defendant to use v. mail fraud. United States to commit Cf. Tenenbaum, F.2d 210 v. 327 United States Polesti, 822, 1973); (7th F.2d Cir. 824 905, 1964), denied, (7th cert. Cir. U.S. Thompson, v. 476 F.2d United States (1964). It L.Ed.2d 177 (7th 1973); Cir. v. 1198-1200 mailings to show were in sufficient that the Fernandez, (9th 497 F.2d Cir. 738-739 scheme, caused furtherance of the and were Iannelli, 1974); United States v. 477 F.2d Hence, culpability the defendants. (3rd 1973); Cir. United States mail conspiracy commit the offense Roseili, F.2d 891-892 only agree requires fraud that one *29 denied, 1970), cert. 91 S.Ct. U.S. constitute to commit acts which others the 883, 27 L.Ed.2d 828. fraud,36 i. e. mail the substantive offense of in a scheme agree participate must to one find to We also sufficient evidence reasonably in which foresee to defraud the conspir support defendants’ convictions for of the able use of the mails in furtherance protests acy to commit mail fraud. Walker by is caused a co-schemer/co-con scheme only linking the evidence him to the that the conten spirator. We find no basis for Carpentier’s is statement that conspiracy that government tion that the must show and, “help there would be in his district” conspirators agreed mail fraud to com the later, that there would be available $500.00 knowledge mit the forbidden acts with that in return vote and han to Walker for his conspiracy contemplated the unlawful the Based review of the dling the bill. on our use of the mails. record, the jury properly we think could from the evidence that Walker know infer By govern the contending that bribery ingly agreed participate in the required ment was the con prove scheme. the spirators intended use of the unlawful Craig’s to de with re- mails furtherance of the scheme Defendant contention fraud, conspiracy the a differ- spect in effect contends count of government respect- the show that the sort. As with his contentions must ent specific mailings, Craig the evi- knowledge ing urges defendants of conspired charges nature of their misdeeds. to sustain the of federal dence failed Craig points the mails out Specifically, Use of caused a defendant indictment. concept the scheme had one furtherance of scheme renders that the briber-contractors $50,000.00 jurisdiction. amenable payments to defraud to federal scheme — Compare: Blassingame, weight legislation pay United v. relief on a no law-no (2d 1970); bribee-legislators had a 427 F.2d 329 Cir. United States basis —whereas 1970). Howey, (9th concept payment Cir. of the F.2d different scheme — are mailings jurisdictional money passed The thus a ele as the cement bill each of the House, regardless ment of the offense of mail fraud. A con of whether or not it ever knowledge jurisdic law. After the in under- spirator’s of the federal became difference of an only standing groups tional element offense is relevant between two was dis- united 347 U.S. States, 8-9, knowledge supra, does 35. “Where one an act with 74 S.Ct. the use of the mails will follow in the at 363. business, ordinary such use course or where reasonably foreseen, though even not course, can object 36. Of an overt effect the act to intended, actually the mails to then he ‘causes’ conspiracy required. is also 18 U.S.C. Kenofskey, 243 U.S. be used. States v. § Pereira v. 37 S.Ct. 61 L.Ed. 836.” covered, It is clear from Craig argues, the briber-contrac- the record that raising $30,000.00 conspired to raise the independently tors did serve to create a $30,000.00 separate eventually conspiracy, which was used and distinct but fund rather understand constituted an effort pay legislators. industry We off conspiracy members of the argue patch up the evidence showed differences in understanding as to the separate conspiracies and distinct rather dis- tribution of the understood, bribe fund between conspiracy. than one overall the two So groups. argument has no basis in the record. Furthermore, jury was instructed charged one overall indictment that although charged the indictment a sin- conspiracy by which the defendants devised gle conspiracy, possible it would be to find a scheme to defraud the citizens of the more than conspiracy.37 one jury right their loyal, State of Illinois of only conspiracy found one as charged. We public The in faithful and honest service. find no basis in the record for disturbing alleged part conspiracy dictment that finding. The evidence demonstrated that the defendant members of the Illinois one overall scheme in conspira- which the Assembly and Peter V. Pappas General knowingly themselves, tors associated par- accept money purpose for the agreed to ticipated sought to make it succeed. laws, changing weight limit and that portion these defendants received This case is thus significantly different $30,000.00 fund. Our review of the record States, Kotteakos v. United from 328 U.S. in this case indicates that the evidence es 66 S.Ct. (1946) L.Ed. 1557 scheme, general one albeit a com Varelli, tablished United States v. 407 F.2d 735 The scheme involved plex one. numerous 1969), both of which are upon by relied *30 responsibilities part conspira on the Kotteakos, Craig. In government con its purposes. tors to effectuate As the ceded the existence of several conspiracies, supra indicates, legisla statement of facts characterizing conspiracies “separate as tors in both Houses of the General Assem spokes meeting at a common center.” The bly pur had to bribed to “handle” the Court noted proof that “admittedly legislation. legislators After the in posed case, made out a single of a conspiracy dicated how much their services were several, but of notwithstanding only one worth, ready-mix functionaries estab charged was in the indictment” and added plan raising lished a the bribe fund and the rim of the wheel to enclose the upon designed embarked a to effec spokes was not made out. Kotteakos v. course plan. States, legislators tuate To assure the United supra, 328 U.S. at available, readily the fund was S.Ct. at 1243. placed deposit cash was in a safe Af box. Varelli, In this Court found on the record passed Assembly, ter the bill the General insufficient evidence to sustain charge the legislator-conspirators pressed for their of one overall conspiracy. panel The noted money. Subsequently, the money paid. the evidence sepa demonstrated two governor’s After the veto of the cement conspiracies, rate each of which had a single bill, misunderstanding payment as to purpose. recognized As and reiterated in groups conspirators between the be- Bastone, supra, States v. two 526 F.2d at apparent. came Discussions then ensued as 979-980, Varelii sets forth the test to distin possible to a override of the veto. Future guish single between a conspiracy and mul weight legislation tiple conspiracies: relief was also discussed. jury $30,000.00

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, 28 L.Ed.2d 493 91 U.S. S.Ct. 000.00 bribe fund was an essential part of necessary scheme, that a defendant (1971). Nor bribery is and because Lauwer- travel or the use knowingly cause interstate eins travelled to and from Indianapolis to facility. United v. interstate States of an facilitate the collection of that fund —acts 78; Peskin, supra, 527 F.2d United for which Peter V. Pappas Craig are LeFaivre, 1288, 1297 (4th v. 507 F.2d co-conspirators States accountable —Lauwer- denied, 1974), 95 cert. U.S. eins’ Cir. interstate travel cannot be considered (1975). “minimal,” “incidental,” 43 L.Ed.2d 762 It is or “fortuitous.” Hence, to show interstate travel or sufficient we conclude on the basis of the facility with intent to use of an interstate record before us that Lauwereins travelled carry activity, on an unlawful promote or in interstate commerce with intent to facili- constituting promotion and facts promotion tate the of the bribery scheme activity. the unlawful carrying and thereafter engaged in acts constituting course, here, promotion 1952. Of where as U.S.C. of that § scheme within the shown, conspirators are re conspiracy statutory prohibition of 18 U.S.C. § co-conspira sponsible for the acts of their activity.

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. 537 F.2d 957 Cir. II). conspiracy. (Craig Any privilege The record further shows that assertable a ready-mix industry legislator against association in Chica state inquiry federal is (NIRMMA) to go important considered based on the doctrine of official immunity, ready-mix industry by Craig the downstate a doctrine held II to inapplica include gain weight in its effort to ble to association criminal acts. McCormick, Altobella, foreign

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 33 L.Ed.2d 507 and when evidentiary questions bribe tak- Cummings noted in privilege. Judge ing part As involving is of a mail fraud scheme decision, “only the evi- original panel legislators, state there is likewise no official speech or debate dentiary aspect of immunity no corresponding testimonial appeal.” in this Unit- privilege is involved privilege. Craig II. An indictment charg- Craig, ed 528 F.2d a ing legislator conspiracy state 1976), I). in his (Craig Judge Tone mail commit fraud is not insufficient be- concurring opinion41 indicated: cause it a legislator names state as a de- unnecessary “It is the scope consider fendant. We find no authority, Craig Mail Fraud and the Hobbs Statute [the us,43 has demonstrated none indicating decide this . appeal order to Act] Congress, enacting the mail fraud [Determining whether the doctrine of of- statute, exempt legislators intended to state given legislative immunity ficial shields application. from its Craig I does not so only preliminary step conduct is a in re- hold. solving question ultimate of whether In support of his contention Craig relies intended a statute Congress apply upon Barrera, Wheeler v. 417 U.S. that conduct”. 528 F.2d at 784. (1974). L.Ed.2d 159 This re- Judge quoted In reliance on Tone’s state- clearly liance is misplaced. Wheeler in- ment, Craig argues that the federal stat- volved a federal providing law federal legislators which the state utes under funding special programs for for education- cannot serve as a for charged prosecu- basis ally deprived public private children in tion because the Illinois Constitutional schools. The clearly federal law evinced a or Debate clause is Speech “valid unless specific Congressional intent the ac- clearly prohibited by the federal Constitu- cepting state’s spending constitutional pro- specifically pre-empted by fed- tion valid scriptions pre-empted not be as a condition (Brief legislation.” eral of Defendant accepting federal funds. Neither substance, p. II).42 Craig argues Craig, mail fraud legislative statute nor its history indicted for a that he cannot be federal expression indicates an specific Congres- legislator because he was a state en- crime sional exempt intent state legislators legislative activity at the time he gaged from the operation of the mail fraud stat- committed the crime. The reason allegedly ute. sacrosanctity is asserted to be the pre-eminence Speech of the Illinois or De- Nor can the indictment here be said law, over federal criminal ab- bate Clause to strain federal-state relationships. The Congressional expression a in- sent valid indictment did not call the state legislators speech a pre-empt tent to state’s or debate to account for legislative their acts and provisions. motives Nor did the indictment therefor.. serve to outline, interfere with the simplest legislative In its this case processes of the charge conspiracy a trial on a Illinois General Assembly. involved merely which The indictment engage charged a scheme to defraud in certain indi role. vidual state bribery played key taking legislators Bribe with violations of protected by speech the federal or de the federal criminal law. Under the cir case, privilege, bate testimonial United States v. cumstances of this prosecution based Judge concurring opinion ultimately Craig unpublished Tone’s 43. has cited to us two dis- opinions, Giliock, became the en banc decision of this trict court Circuit. United States v. (W.D.Tenn.1976) II. No. CR 76-104 and United *33 Meyers, (W.D.Penn.1977). States v. No. 76-163 opinions purport But those to deal with the rejected ar- 42. The Third Circuit has a similar evidentiary privilege legislator (Cian- of a state gument Jury Proceedings in In Re Grand —a controversy by 577, laid to rest the en banc frani), (1977). decision 563 F.2d 582-583 Craig of this court in II.

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, 49 L.Ed.2d 342 U.S. the en banc could waive under Orzechowski, (1976); aggressive. United States have been more defense would any currency Carpentier to one senator. not mail testified that he did *34 492 In light of 1977); pre-trial knowledge States v. Walker’s United (7th Cir.

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 45 L.Ed.2d 99 Representative Craig conversation with view, us apparently Craig wishes cannot Representative Pappas at the Man- to, expression an Craig’s statements as sion View Motel in October of undisputedly post-arrest admits his involvement silence. desire to maintain a this case. Rather, mere- prosecutor it is clear that the

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)) 79 L.Ed. 1314 “denial,” bility to recall” and we feel that may and the hard or harsh but fair be the use of “denial” was not an inappropri- impairment crossed with a “the resultant ate characterization of North’s statements calm and detached search for truth to postal inspector. to the The record showed aspire.” which a criminal trial should prior to the postal interview with the (United Spain, 536 F.2d inspector, North told Pete Pappas, “It 1976)). We do not think the char would be a good thing if we forget would a acterization of North’s defense as fabrica that we meeting ever had that on Inter- tion, govern in the circumstances of the Further, state 80.” day on the after the rebuttal, line ment’s crossed and be interview, North mentioned to Pete Pappas improper. prejudicially came postal that the inspectors quite “knew a bit Similarly, North contends that the meeting about the on Interstate 80 . . .” prosecutor’s characterization of defense evidence, In view of this prosecutor Mrs. prejudicial witness North as liar was properly drew the inference that North de- trial, During error. Mrs. North testi nied the Coffeehouse meeting. in behalf of fied her husband. On cross Finally, prejudicial North claims error in examination, she first stated that North did prosecutor’s account of a conversation not tell her the one thousand dollars inwas between Pete Pappas and North. Pete cash, then, questions later, a few stated Pappas testified that on 8, 1971, November money North did tell her the was in he conversation with North. Pete cash. With respect to this inconsistency, Pappas related: “I told him that I had prosecutor in arguments, rebuttal stat something going on the cement bill and it ed: going to be in the Commission meet- point “She reached the where she tried a ing.” responded: North “Fine”. little too help hard to her husband and got she caught a lie . . . . Mrs. During argument, rebuttal North realized that going prosecutor if she was stated a concededly erroneous necessary grant immunity became to Ma- conversation: of that version will Pappas ‘there Corporation employees and its was told terial Service North bill,’ the cement something you on investigation. govern- further bill,’ you on the something for ‘there ment offered Skinner’s tes- contends to no sought avail . North to statements made timony response correct misstate- judge the trial have during the voir dire exami- defense counsel ment. statements jurors, opening nation of the cross during the jury, examination remark, adding the “for prosecutor’s result, the witnesses. The non-immunized a mis- “something,” clearly you” was the creation of the argues, government Yet, Pappas’ testimony. of Pete statement jurors impression in the minds the mis- the circumstances which under prosecution free from made, persons certain we do not find it to statement was *37 unjustifiable and rea- for so as to re- some nefarious prejudicial have been warrant Pappas’ heard sons.45 jury versal. recited

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. 85 L.Ed. 466 service, postal as distin- the misuse Minnec, (1941); United v. 104 F.2d schemes to prevention of guished from the 575, (7th Cir.), denied, 577 cert. such, by its insertion 308 is shown U.S. defraud as original en- language in the following 577, 94, 60 S.Ct. 84 (1939); L.Ed. 484 actment: States, v. Worthington 936, 64 F.2d proportion . . . shall court (7th 1933). 938 Cir. [T]he Other circuits have degree especially punishment adopted a interpretation.4 similar post office which the abuse That the essence of the federal offense is enters as an instrument establishment the postal abuse of service and not the device. scheme and into such fraudulent scheme to defraud is further shown interpreting judicial decisions The first fact that counts are related to the number congres confirmed the limited the statute involved, mailings the number of Jones, v. purpose. In United States sional Aldridge, schemes. United States v. 484 469, (S.D.N.Y.1882), the court 470 10 F. 655, (7th 1973); F.2d 660 Cir. United States noted, consists in gist of the offence “[T]he Browne, 751, v. 225 F.2d 757 1955). v. of the mail.” United States the abuse against This is because the offense 881, 883, (N.D.Ill.1884), Loring, 91 F. 887 United States the misuse of the mails and specific: was more the court injury is sustained as soon as the mail- right punish person who uses [T]he States, ing occurs. Badders v. United 240 . purposes mails for of fraud 367, 391, 394, U.S. 36 S.Ct. 60 mail fraud L.Ed. 706 scope is the and intent [the (1916); Henry, In re 123 U.S. statute]. ers from

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 322 F.2d 104 Cir.

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, 40 L.Ed. 709 S.Ct. scheme). central, necessary used “as a mails must be perpetra instrumentality in scheme’s] [the Congress could have drafted a much role,” tion,” indispensible “an play broader statute than it did.7 But it did not 408-09, Maze, v. 414 U.S. United Rather, Congress do so. only intended J., dissenting); The (White, 94 at 652 S.Ct. certain, type combat a limited of fraud. receipt step “a toward mails must be The federal mail fraud statute does not scheme,” United States v. fruits of the purport frauds, reach all only but those 875, Staszcuk, 1974), F.2d 880 502 limited instances in which the use of the 65, denied, 46 423 U.S. S.Ct. cert. part mails is a of the execution of the (1975). sum, In a causal relation L.Ed.2d fraud, leaving all other cases to be dealt mailing and the must exist between the by appropriate state law. Kann v. execution of the scheme. States, 88, 95, U.S. S.Ct. 148, 151, (1944). 89 L.Ed. 88 the mail- acknowledges that majority of” the must be “in furtherance Because the mail fraud statute ings only reaches how scheme, fails demonstrate a use of the mails which is essential to the but then scheme, careful mailings diagnosis listed in the indictment actual- execution of the Maze, Supreme reviewed its because the success of the scheme did not 6. Court explained prior depend way mailings. mail fraud decisions and on the Id. at differing degree of connection results on the 94 S.Ct. 645. mailings the execution of the between the example, For in Pereira v. United scheme. Congress could have drafted the mail fraud States, 98 L.Ed. 435 347 U.S. require only statute so as to the mails in (1954), was affirmed because the the conviction Maze, fact be used. United States U.S. mailing “played significant part enabling 395, 405, (1974). 94 S.Ct. 38 L.Ed.2d 603 *41 acquire the defendant in that case to dominion States, See also Badders v. United 240 U.S. $35,000.” 401, 414 94 S.Ct. at over the U.S. 391, 393, 367, Or, (1916). 36 S.Ct. 60 L.Ed. 706 contrast, in Parr v. the convictions 649. clause, using Congress simply the commerce 370, 1171, States, 4 363 U.S. 80 S.Ct. United prohibited could have fraud as a class of activi- States, (1960) United L.Ed.2d 1277 and Kann v. affecting any ties interstate commerce without 88, 148, (1944), 89 L.Ed. 88 323 U.S. 65 S.Ct. States, Perez v. United use of the mails. Cf. mailings were “im- were reversed because 1357, 146, 150, 402 U.S. 91 S.Ct. 28 L.Ed.2d 686 of the schemes. material” to the consummation (1971). 400, 401, The defend- 414 U.S. at 94 S.Ct. 645. in Maze ant’s conviction was also reversed (1) Counts Two necessary. Upon through Five: MVLC is mailing each Notices a jurisdiction of fed- depends the diagnosis who has devised to convict one eral court mailings The which formed the basis for temptation Two, Three, Four, the convictions on Counts scheme to defraud. agenda Five were notices and once a fraudulent adopt a cavalier attitude January meetings December 1971 and be to have existed must scheme is shown of the Motor Vehicle Laws Commission juris- extend federal The trend to resisted. (MVLC) ready-mix which were mailed to so as to convict haphazardly diction industry representatives Connolly and stopped. at all costs must be States guilty McBride, two unindicted coschemers. Be- prosecute ability have the and resources purpose cause the of the scheme was the fraudulent schemes perpetrate those who weight enactment a new law for cement against own citizens. their trucks, doubted, majori- it cannot be as the an backdrop, I now turn to Against observes, ty of the proposed submission mailings. legislation in important individual the MVLC was an analysis of the

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, 98 L.Ed. 435 347 U.S. S.Ct. present were at the meetings,9 committee (1954). jurisdiction, But federal support they could hear the announcement when requires element further that: mailing Moreover, the committee met next. “cause” the use of the (a) the defendant regular met on a key MVLC basis10 and a mails, (b) he use the mails “for the Government witness testified that these no- the scheme. purpose executing” are necessarily” tices “not received before 395, 399, Maze, v. U.S. meeting. the next Because there was no 648, (1974). One causes 38 L.Ed.2d notice, upon need for no reliance used when he “does an act the mails be mails, receipt through of the notice knowledge the use of the mails itself, upon no reliance the notice these ordinary course of busi- will follow in the mailings were not in furtherance of the ness, reasonably or where such use can be scheme and were not sufficiently related to foreseen, actually though even intended it to bring them within the statute. These Pereira, supra. To meet . .” mailings step cannot be considered “a to- requirement, mailings must second receipt of the ward fruits of the scheme.” “further,” “aid,” Staszcuk, “step toward” the United States 502 F.2d at or be 880. mailings fulfillment of the scheme. The majority’s effort distinguish Parr present case cannot be said to further States, v. United 363 U.S. 80 S.Ct. scheme, instances, or in some be said to (1960), 4 L.Ed.2d 1277 is a combination of illogic irrelevancy.11 caused or foreseen the defendants. only One has and, parties Monday dispute whether the met on 8. The MVLC MVLC the second if necessary, Tuesday every required by these notices or does second month. law to send merely courtesy persons. so as a to interested light is irrelevant in Resolution issue inapposite major- 11. Staszcuk also is not as the Staszcuk, 875, 880 United States v. 502 F.2d Staszcuk, ity purpose contends. As in “[t]he denied, 1974), n.11 cert. 423 U.S. provide opportunity the notices was to an (1975). 96 S.Ct. 46 L.Ed.2d 56 persons objections pro- affected posed [legislative] changes.” to state present meetings 9. Also at the MVLC 502 F.2d at 880. Wille, Pappas, Craig, Staszcuk, parties defendants Peter V. As in did come as a result of Chalden, objections and coschemer Lauwereins. the notices to state their to the bill *42 part was of the bribery see fund an essential to how themselves the notices look scheme, mailings were done as or scheme and the per- from the are they remote of aspects assembling of the task incidental utterly innocuous say, how to haps better and B. A the This Appendices pronouncement fund.” facile were. does they See

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. 21 L.Ed.2d 487 count, ants down to on this boils one man’s (1969). See also Erlenbaugh v. against word another’s. States, 239, 245-46, 409 U.S. 93 S.Ct. charged envelope mock-up 17. Count Thirteen the defendants with Interestingly, is ad- trip Indianapolis February Lauwereins’ Avenue. Count 18018 Arcadia dressed to 29, 1972, charged charges mailing to and Count Fourteen them of the indictment Twelve trip Chicago day. return next Avenue. Burnham seeking to associations tions, was aimed and trade The statute (1972). L.Ed.2d a new and, legislators to obtain partic Illinois organized at crime bribe primarily in this in one state is no evidence ular, reside law. There persons who Illinois activity with the managing activities lo interstate record of operating while States, trip one exception Rewis v. United of Lauwereins’ single in another. cated 808, 811, 28 L.Ed.2d Indianapolis. 401 U.S. the view that the (1971). I concur with coschemer, Lauwereins, an unindicted limited to the the statute is not scope of Chicago Indianapolis travelled from e., organ i. congressional purpose, original members of the Illinois Division- meet with activity operating interstate. criminal ized Association Ready-Mix Concrete Midwest *45 Peskin, 71, 527 F.2d v. United States See attending an annual (ID-MRCA), who were denied, 429 (7th 1975), cert. U.S. 76-77 Cir. trip of his purpose convention there. The 63, (1976). As 818, 50 L.Ed.2d 79 97 S.Ct. $50,000 them of the bribe and was to inform statute, alleged the mail fraud with the support raising money. in the to seek their broadly. should be viewed activity criminal help, refused to Lau- When the ID-MRCA statute, But, with the mail fraud Con as Chicago. returned to wereins broad-ranging intend a inter gress did not showing bribery is no that the There section 1952. The interstate

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 41 L.Ed.2d 1146 the scheme which suggests any about rea- concedes, trav degree of interstate ity that why police powers son state needed to be minimal or activity must be more than el or government. supplemented federal incidental; was intended to the statute I would therefore that hold the interstate activity. only significant interstate reach minimal, incidental, activity was “so 1146; v. Al Isaacs, supra at United States fortuitous, peripheral” and so to the (7th 1971); tobella, Cir. United 442 F.2d scheme, Isaacs, supra at it was McCormick, (7th 442 F.2d 316 Cir. v. error to submit these counts the jury. 1971). Ill activi- interstate significant was no There One, activities defendants’ Little need said about Count in this case. ty residents, corpora- charge conspiracy to use the mails to Illinois all local: ey, 18. The Midwest Ready-Mix the check had to clear the Detroit bank Associa Concrete Furthermore, divisions. the court in and Indiana where it was drawn. has both Illinois tion scope between of the convention alternates noted that interstate The annual Peskin activity states. two was “clear.” Id. at 78. unlawful Burstein, recent case of United States v. Peskin, (7th F.2d 71 Cir. v. 19. United States 1977), distinguish- is also 560 F.2d denied, 1975), 97 S.Ct. cert. 429 U.S. Peskin, the interstate clearance able. As (1976), upon which Government L.Ed.2d 79 carrying was “essential to the on of the checks Peskin, relies, distinguishable. In is therefore activity.” illegal Id. at 783. receive the defendant essential it was money the mon- To obtain make the bribes. Attorney’s through office sifts mailings is States proof Where defraud. mailings the file and constructs a then the substantive to establish insufficient legal may be used theory in order conspiracy was to alleged counts fraud. charge to form the basis for of mail charged same offenses commit trip, totally fortuitous incidental and One counts, insufficiency then the those unforeseen, by an coschemer unindicted conspiracy mailings carries over the two act counts. forms the basis of travel States, U.S. charge. Parr is, course, conspiracy A count added. 1171, 4 L.Ed.2d 1277 370, 393, 80 S.Ct. fashion, this is the fact that the mail Equally important fraud (1960). statute and bare of evidence completely is travel act are subverted purposes the record co- their any of defendants which they were never long- intended. No agreed or in- contemplated, ever schemers er are mailings and travel considered further the exe- to use the mails to tended integral part scheme; essential or an to defraud the citi- of their scheme cution they are seen and used as mere technicali- Illinois. zens of ties necessary which are to obtain federal jurisdiction. Naturally, public a scenario which I by depicting I conclude so, pleased, rightfully corrupt pub- the facts of approximates little doubt have lic officials have been brought to book. But officials, getting Federal prosecution. *46 what of prosecutor’s responsibility to state deal between Illinois wind use the criminal only federal in a laws ready-mix cement indus- legislators and the manner in which were intended? investigate. In due assign agents to try, Once the prosecutor course, to some of the determines federal immunity promised is jurisdiction company lacking, is his legislators responsibility officials lies involved cooperation testimo- in cooperating in return their with the enforce- state law Recording placed devices are on some ny. aiding ment officials and prose- the state in to obtain incul- persons of the immunized cuting When guilty. convic- he seeks who admissions from those are pating tions for crimes that are not within the targets prosecution. Once the inves- federal jurisdiction, irresponsibly he acts completed, consideration is then tigation keeping high office. offense, to what if has given any, federal The court should not condone. The mail fraud statute? been committed. I would reverse. investigation act? The The federal travel mailings are searched to find some files Appendices follow. travel. evidence of interstate