United States v. Salvatore Battaglia and Dave Evans

Riley in June time and 1964. At that Crowley, John Powers Maurice J. letting Evans the sewer con discussed Walsh, Anthony Ray Champagne, V. Riley Lansing apartments. tracts for the Smith, Chicago, Haft, mond J. Morris A. up told Evans to line subcontractors Ill., appellants. for boys keep it in Mel- “from secret Hanrahan, Atty., Edward V. U. S. specifically Park,” from rose defendant Werksman, Atty., Gerald M. Chicago, Ill., Asst. S.U. Shine) (also and Amabile known as Joe appellee, for Peter John Riley from told Nick Palermo. Lulinski, Atty., Asst. S. of counsel. U. if learned of that Amabile and Palermo SCHNACKENBERG, Before SWY- possibly project, Riley quite be CUMMINGS, Judges. GERT and Circuit again as forced to subcontrac use them tors. had been connected with Amabile Judge. CUMMINGS, Circuit Riley projects on earlier and had several Riley and February 1967, his fam In Dave occasions defendants threatened King ily. keep Evans, Joseph promised Salvatore Apartment from conspiring Arthur information for Amabile were indicted However, few Amabile and Palermo. with each other with non-defendant 1. In person attempts plan mits or threatens structs, (18 “ commerce, (a) pertinent movement Ü.S.C. § Whoever or purpose delays, or property conspires part, 1951): by robbery or any to do physical the Hobbs any way affects article or anything furtherance or violence to commerce or Act extortion do, commodity degree in viola- provides or com- ob- or or twenty than tion of fear, “(b) actual or threatened obtaining “(2) ^[*] $10,000 consent, As used years, The term under section ^[*] or property or induced imprisoned in this section— color of official both. shall be “extortion” ^[*] force, wrongful fined not more not more than another, ^[*] violence, means the right.” use ^[*] or days later, requested go Riley $20,000 to him the in cash and Amabile ac- Afterwards, Plumbing cepted the told the Melrose Park deal. Pranno the office of Riley “guy” Company Palermo. to meet DiVito that Evans was Amabile’s Nick say any- Amabile never acceded. Both Palermo and DiVito should thing meeting. it would were at the Palermo insisted front of Evans because plumbing receiving their contract back to Amabile. project. Amabile said La-Key testified that he attended Riley’s stop that otherwise would oth- September meeting apart- at Amabile’s underway apartment projects building er Evans, ment DiVito and Amabile. Westmont, Illinois, Northlake giving he was Amabile said that Lansing walking “would the streets job Pranno sewer to DiVito and candy They they with a cane.” nothing getting except and eared about knew where mother lived and La-Key’s top.” “off the . where his children went to school and presence, relayed the DiVito later mes- had a baseball bat to handle sage to Pranno about Amabile’s demand guys” “wise like him. La-Key $20,000. directed days later, Riley complained DiVito to meet with Amabile A few lounge. At at the El Morocco Evans about the leak meeting DiVito told that there Palermo. Mel- told Evans that the enough money any would not be in the con- group Park not to rose Lansing receive pay top.” $20,000 tract to Riley Management him “off the work from figure Corporation. August Amabile then instructed Evans to In in- way money job. more the to obtain from structed to Evans obtain sewer contrac- original up Evans tore “foreign” tor that was to Amabile contract contract, raising price wrote a new Palermo. $150,000 $199,600. from DiVito, Amabile had told Mike sewer contractor, gave could La-Key ap- that Amabile Pranno DiVito and Lansing if proximately sewer DiVito’s name $13,000 open work a bank ac- September to be on the Amabile ad- contract. count for In Carlson. co-conspirator vised DiVito and Rocco Evans advised that he had selected good up Pranno “a to come clean the Company Carlson Construction as the they fellow” if contractor, reputation were to obtian busi- sewer that its They suggested Henry La-Key, excellent, by ness. operated and that experienced Henry La-Key. Thereafter, construction foreman. In Carlson by September 1964, La-Key Company was hired Construction was awarded super- Pranno and $150,000, DiVito as construction sewer contract for about be firm, paid directly for a by intendent brand-new Carlson a suburban Carlson savings Company, through Construction with the title and loan association president. pay-out by Riley’s slips company. issued Lansing Carlson commenced the work DiVito said he Pranno met with September or October apart- Evans and Amabile Amabile’s mid-September.2 La-Key mid-October, ment plained Pranno ex- In Evans told La-Key to Amabile that that the ing let contracts Evans at Lans- “clean,” said Amabile that before ones Amabile told him to. giving La-Key Pranno and DiVito Evans Riley that told he did not want job $20,000 sewer he wanted in cash. Evans know that knew Amabile. looking figures, November, La-Key After at Evans’ DiVito In Amabile told that $20,000 Amabile, told be Pranno there would Evans worked for Amabile in cash placed office, above and DiVito’s costs had Pranno’s Evans profits job. Thereupon for that Evans do whatever Amabile would give Pranno told he Amabile that would told him to do. apartment meeting La-Key. 2. This the same Amabile infra described loan La-Key locate making draw from bile the first Before days repaid. later La-Key Several savings association, told could be and loan going he was Amabile that for Pranno would be told Amabile draw in order see “the man” “the farm” to day, and Le- $57,000. next Amabile from La- $5,000 Amabile obtain hospital to have Key where drove to the La-Key result- Key At the back loan. patient. told Amabile was a meeting, ing Battaglia attended give $5,000 farm going Amabile was DiVito, Amabile, Pranno job, Pranno and instead as his cut on to Evans gave $20,000 Lans- hospital $7,500. At mentioned Battag- ing job for was intended reduced sewer a “wad of bills.” Evans lia, second time ap- then nodded. The for the draw who estimate first Battaglia, $20,000 for proximately $10,000. was mentioned “yes.” Battaglia also said: he said 1964, La-Key re- On November “ ‘Well, La-Key is I don’t think Hank $47,517.97 from ceived the first for draw guy, him, I like I like bad savings He de- and loan association. him,’ had other work with payroll posited $39,000 in ac- Carlson’s things coming up, they could and that wages, count, retained for his $517 again use him he was clean.” gave $8,000 Pranno. Three to Rocco later, instructions, days he He told Pranno see what Amabile’s $5,000. $20,000 could as On out account do drew from Carlson’s farm, gave the drive back from the it to Amabile. thought that he Amabile was DiVito December, early In November late short-changing keeping La-Key accompanied to a farm $20,000 himself. Pingree Grove, Illinois, January 1965, La-Key advised La-Key bile introduced enough that Carlson did Lansing, “running job for them” money pay necessary to for materials. La-Key ask Illinois. heard saying: La-Key worry, told Evans to not why getting “that Amabile Evans was “ money.” explained kind of that Amabile T will talk [Amabile] to Joe Shine had he had made a who deal with Evans man and Joe Shine will talk to the “got job.” he also us said Amabile [Battaglia Riley3]. see will We promised $7,500 he and that had Evans money for that in the bank ” morning would take care of The next it. you.’ La-Key mentioned he had that to Evans told La- That same month Amabile Battaglia’s farm, Evans been and Key prepare papers the sec- to for Later, warned him not to talk it. about La-Key ond draw. that second said explained Pranno that La- Amabile to $60,000. said draw would be Amabile Key to the should have been taken high he de- was too that this attemped hit La- farm. When Pranno to termine how much it and would should be Key, stopped saying him, he Amabile that straighten it out That same with Evans. La-Key that had down farm and night, La-Key’s to home and Evans went says [Battaglia] “the man he is OK.” changed bring prices down to the draw Pranno, draw, present Di- $48,000. La-Key Prior to the first to Evans told to Meltzer, La-Key $5,000 papers be- Vito borrowed second draw to Sol money. Riley’s However, cause had run short of financial Melt- Carlson officer. gave $4,500 La- to this amount zer draw. refused to authorize Key deposit La-Key Thereupon, loan to This Carlson. to see Amabile. went by January repaid present La-Key 1965. Later told was not Evans was while happened. about that month Amabile what had The next Pranno told Amabile morning They La-Key picked presence up this in and asked DiVito’s Evans. record, instances evi- “the man” Bat- In other sion to defendant refers supports expres- finding taglia. dence that * * * Riley separately. people. Riley’s the other much about entered office get quit. pay-out I could back I can’t wish said that he would authorize ” my job suppliers. I came paid to own from.’ had its when Carlson Riley meeting La-Key told that At this he he wished Evans then said that $200,- job gone up to cost he never that Amabile reiterated met explained that be- this was 000. Evans quit. deep inwas too to job.” “complications set in on cause Sufficiency the Evidence as to Evans reported La-Key thereupon to Amabile still not au- second draw was Evans concede La-Key ac- thorized. Amabile told to enough conspir there was evidence of company Riley’s next office the Manage acy money Riley obtain morning. following day Amabile theOn Corporation by ment fraud. Evans ad La-Key Riley pay that he had there mits was sufficient [Battaglia] because “the man” wanted conspiracy. party he was a La-Key paid. that other- Amabile said He used extor also admits Amabile wise there “all of trouble.” would be sorts tion to induce authorize sec physical Because of his fear of harm and However, ond draw. contends collapse, Riley economic authorized the is no evidence to show $48,512.48. second draw of This was pursuant extortion sum mentioned in and was indictment reject of which he a member. We deposited by La-Key in a ac- Carlson that contention. later, days count. in- A few record, On is obvious that Evans La-Key $17,000. structed out draw knew of fear of Amabile. Al- La-Key thereupon $5,000 in obtained though signifi- stand, he Evans took $12,000. cash and a certified check for explained cantly never that violence was upon or- Amabile insisted all cash and contemplated. La-Key was told La-Key accompany dered Evans Amabile, would talk to cash the cheek. After check that Amabile “the man” would talk to cashed, La-Key Evans went instance; (Battaglia Riley in see apartment, gave La-Key Amabile’s supra) note the second order to gave $17,000. Amabile the then paid. draw Evans knew that La-Key $5,000, gave La-Key of which unwilling the second draw because $1,000. La-Key Amabile told unpaid, and that Carlson’s bills were vacation, take a went to Florida. Riley jury afraid of Amabile. was Shortly thereafter, advised Evans La- properly infer Evans knew could Key Chicago, to return to at Amabile’s Riley through induce Amabile would — request. complained Amabile then Af- fear —to authorize the second draw. La-Key paying had been Carlson’s not draw, La-Key ter the second withdrew bills, getting thus Amabile in trouble Amabile, $17,000 then another for who “ Riley ‘making Dave Evans gave gave La-Key $5,000, in turn who job. taking my lose his You are man though $1,000.4 he Evans Even ” right Riley’s.’ La-Key out of [Evans] spoken the second to Amabile about then told Amabile that mon- there was no La-Key draw, statement to Evans’ own ey in the Carlson account because Ama- willingness part ain take showed his bile had it. bled pay- cause course of action would which days later, La-Key complained A few unrea- It would be ment coercion. unpaid Evans that the Carlson bills suppose would be that Evans sonable La-Key because of actions. Amabile’s closely with Amabile so associated get why asked he didn’t out of the realizing that without scheme to defraud replied: business. Evans employ means coercive Amabile would “ deep obtaining Cf. T can’t out. I for second draw. am too 1, States, with Joe too Pereira 347 U.S. Shine know v. United [Amabile]. Previously, according La-Key, 4. bills” from Amabile. had received another “wad

311 358, La-Key As Bat 12-13, L.Ed. 435. 74 98 in numerous ventures. S.Ct. 66, States, taglia knowledge paid F.2d Evans’ v. 74 admitted Lefco United acknowledged 68, (3rd re- 1934), has role. He also 69 Cir. conspirator’s con- from common to receive a cut sorted Lansing. extremity, through tention, he was contract made Carlson charged sub-conspiracy in the out party a stake Since digest conspiracy, indictment, strin even the but our come of the gent conspiracy liability quite suffi- evolved discloses evidence evidence test allegations Judge cient Learned States to sustain Hand in United single (2d finding participation 579, Falcone, of his in a Cir. 581 v. 109 F.2d encompass- money, 205, 1940), affirmed, 311 to obtain 61 S.Ct. U.S. ing Battag 128, 204, extortion as well as fraud. L.Ed. satisfied. 85 among disputes lia was also arbiter of v. Evans has relied on Stirone Being co-conspirators. an associate 270, States, 212, United 80 S.Ct. 361 U.S. venture, is of Amabile in this 252; 4 L.Ed.2d United v. Critch States knowledge chargeable properly ley, (3rd 1965), 353 358 Cir. Amabile, confederate, resort to his (9th Carbo v. United 314 F.2d 718 money necessary if extract threats 1963), denied, Cir. certiorari Riley. Battaglia “take his 1626, 953, 12 498. None 84 S.Ct. L.Ed.2d the methods used chances” apposite. Stirone, is In con Court co-conspirators. other v. United States demned the variance indictment between Andolschek, supra. in United States As proof proof. seen, As we have (2d Kahaner, 468, 459, note 317 F.2d here is consistent with indictment. 1963), denied sub Cir. certiorari nom. Critchley, In the evidence did not show 835, States, 375 U.S. Corallo v. United time, at the so that critical threat L.Ed.2d “there was no extortion. Here there question ample raise a evidence ample co-conspirator Ama joined jury whether he had for bile ob threatened with violence found, conspiracy; if the draw, tain the second course Evans co-conspirator held bribe mon who [a chargeable co-conspirator’s with his responsible ey] criminally for the conspiracy.5 acts furtherance conspirators and acts of the other Carbo, legitimate Gibson had business perform than a failure to more few own reasons association with con acts would immaterial.” Evi overt spirators, whereas Evans’ associations knowledge dence of of the details illegal clearly pur with Amabile were participation plan of others is not or of poses. Hickey, required. Sufficiency to Bat- Evidence as 1966), certiorari de F.2d 127 taglia nied, 17 L.Ed. 87 S.Ct. U.S. 2d during above, noted As Di- Vito’s, February Pranno’s Amabile’s Knowledge Intent Affect (or March) early Battaglia’s 1965 visit to on Interstate Commerce Effect farm, Battaglia La-Key said he liked they things Battaglia and could use him in other insists that this, necessary was clean. From the intended to af to find that he jury Battaglia conspir knowledge could infer that had em the fect or had commerce, “upon barked acy in of affect criminal venture would interstate (United definite outline” An insufficient States and dolschek, knowledge. 503, (2d 142 F.2d A similar Cir. or 507 of intent 1944)). long- rejected argument He was committed to in United States (2d relationship 665, contemplating Varlack, term Cir. the use 672 225 F.2d Sansone, 5. (2d 1956), denied, United States v. 231 F.2d 892 Cir. certiorari 351 U.S. 1055, 100 76 S.Ct. L.Ed. 1500. 312 taglia recently to in-

1955). held in United asserts that he entitled As we Pranno, formation about 385 F.2d 387 the States v. 1967): with Palermo-Amabile threats Westmont, respect Northlake however, proved, must be “All that Illinois, projects. requests 2Nos. But conspired to commit is that defendants provide: and 3 extortion, effect natural and that the threat, things carrying done whether “2. State the of out their acts not, by adop- petitioner and, would conscious it or of the [Evans were tion, Battaglia] by the commerce.” which he affect persons, other named combined, unnamed jury charged the Court District agreed to- confederated and necessary the is that that “all that gether obstruct, delay affect acts committed natural effect charged. commerce as affect, pursuant delay dates, com- or obstruct times [interstate] “3. State alleged merce,” requisite effect on places and that when and jury be- paragraph be found if commerce would acts set forth above “beyond performed.” doubt lieved reasonable done or were by the the defendants’ activities as shown if the District ordered Even Court any way degree obstruct- evidence ed, delayed re- these Government answer ' commerce.” or affected quests, threats the Palermo-Amabile proper under These instructions Since would have been revealed. nor Hobbs Act. Neither informa- did not ask for this argues no have that the extortion would below, may error tion not assert Here, interstate on commerce. effect respect. Furthermore, none of the this accomplish ex- one the means to requests in the motion for a bill of five to cause the threat tortion was otherwise subject particulars matter. covered this Riley Management Corporation “all sorts Therefore, the not re- Government was Many deliveries interstate trouble.” quired respond it. No abuse as to Lansing being project. made to its respect has been discretion shown with destroy If threats to Amabile’s partial to the Wong motion. denial of out, com- interstate been carried Tai v. United necessarily ob- merce have been would 47 S.Ct. 71 L.Ed. The Hobbs Act covers such structed. Conspiracy Instruction Pranno, v. Riley situation. supra. Furthermore, com- During early portions of the depleted ex- pany’s reserves were per trial, District Court refused depended, its tortion. Since business de mit the Government to have ship- part, ability for interstate against fendants’ considered declarations jury site, could ments trial, upon mo all of them. Later in the that the infer extortion Government, in tion of the Court effect on interstate Under commerce. structed follows: (see language note this statute proceed tak- we “Before supra), is a sufficient nexus case, ing testimony of further in this commerce. interstate I have a direction instruction BUI Particulars Denial give you, you. make during “You will the course contest Evans’ briefs recall do requests trial was ad- certain denial of Nos. 2 one or particulars.6 mitted a How evidence motion for bill of as you Battaglia adopted defendants, ever, requests more of the these argues er instructed at that time such evi- that Court that District Specifically, roneously Bat- dence was not to be considered denied them. then granted requests were and the Government answered them. 6. The other three bane), denied, any en certiorari against to whom defendant 14 L.Ed.2d pertain. not did Battaglia jury claims that responsibility my under “It is now not it could not told that acts consider you law, such evi- instruct or declarations of a co-defendant made against all of the is admissible dence presence outside the of defendant in connection as evidence defendants against the absent defendant it unless charged conspiracy alleged conspiracy and that found that a existed indictment, or not whether in the the furtherance, declarations were in its acts and present of defendants each examination of but an in- or conversations when acts transcript an instruc- shows that such were done testified about cidents given. tion was carried on. Admission Pre-indictment Threats of evi- then such “You consider Made Amabile and Palermo and pertaining the de- of as to all dence Admission Statements Co-con- fendants.” spirator Pranno Pronger, Citing United States also asserts 1961), Battaglia (7th com- F.2d 498 Cir. erroneously admitted Ri District Court plains a direc- that this instruction was ley’s testimony of 1962-1963 threats conspiracy jury tion that a erroneously Amabile and Palermo and proven that each defendant been admitted outside Pranno’s statements However, conspiracy. a member presence agree We defendants. paragraph instruction the last with the that the Palermo Government alleged conspiracy” and referred to “the to show threats were relevant jury the Government not did tell fear when reasonableness conspiracy. in- proved A later confronted with Amabile’s demand to au jury plain struction made thorize the second draw. The District declarations could acts and not consider carefully jury Court instructed the against conspirator un- others of one pur to that was limited jury aof found the existence less the (Tr. 2564). pose the acts and that criminal Pranno, the As to evidence con in furtherance and declarations were cerning January 1965 visit to Bat conspiracy. taglia’s farm, well as other evidence as controlling Pronger case is previously summarized, shows instruction here. The terms co-conspirator was Amabile, here, to those that case were dissimilar La-Key’s so that and DiVito’s in that instruction and apparently defect testimony concerning Pranno’s state a later instruc- not cured presence ments outside the of defend Conspiracy instructions similar tion. properly ants received. approved in United here were those Accomplice Instruction Bernard, 719-720 (7th 1961), reinforces our which Cir. Battaglia complains that the later instruction conclusion accomplice District Court’s instruction slight prejudice too made the risk of La-Key advised the that DiVito Pronger justify con- has been reversal. accomplices. The instruction was the erroneous to a fined situation follows: as given part in effect instruction was as gentle- “I must tell ladies and you, where, charge apply does jury, accomplice men of the that an here, time intervened between trial person one who with another unites final, and the assailed comments commission of crime volun- charge. Alle- proper United States v. tarily and with common intent. An gretti, accomplice incompe- 340 F.2d does not become 314 partici- because of the refusal cer-

tent witness assails court’s receive charged. pation study criminal tain A the act defense exhibits. testimony contrary, these On cross-examination witnesses by you, accomplice alone, believed that de- if shows District Court allowed Restriction was not erroneous. accomplices could find sufficient setting, nesses as Ed. ed States v. the district affirmed, tinized with ary plices. The instruction complice, Mathes struction Courts. that DiVito and relies on F.2d This instruction States, (7th Refusal ed convict testimony keep tain a verdict of unless supported doubt.” to be other evidence. not exclusive fact instructions already if Cir. 82 corroborated be of sufficient received and Ruvel v. 20 you has to Admit person F.2d any accomplices. Here the mind that great judge 1952); been F.R.D. testimony special giving of this Bucur, (7th Cross-examination beyond been believe defendant La-Key 305, States were advocated with does termed care. instructed finder, use Cir. La-Key However, you Cir. Defense defendants. 244. care. 308 proposed found to Wainer guilty 194 F.2d caution and United 57 S.Ct. 1926). of an 1949), obviously means You should all (7th should be two which the weight Balodimas, and there supported Such upon A say were testimony DiVito even Exhibits unsupported named wit instruction Cir. similar v. United accomplice reasonable but Battaglia 79, 297, in Unit caution District the un- In this to sus- though accom weigh- it was an ac should 1936), Judge imply 81 scru jury Vito’s 305 not in L. is amine ants were show that file and docket entries was a defense to Assistant of that matter. missed, he could sistant United charge of the tion attaching why the Hence Battaglia’s DiVito’s the instant cago testified cumulative and did not reveal DiVito sistant Government’s ed it was obvious been dismissed cross-examined DiVito for his witness * * fense “deal” Battaglia. “milking” defense Equipment Company. proof showing their tax show District Court refused to counsel considerable ^[7] *_» La-Key regarding testified for United lawyer agreeing given ample opportunity the check and the DiVito this case. United counsel was drop La-Key case, exclusion Battaglia’s case. Later that a that he of the Carlson Construction jje ajso testified that put dismissal DiVito tax had States against DiVito in return States served us with that we had into evidence the court indictment to be a States income the reasons tax indictment Attorney Battaglia’s case also been Attorney extensively still counsel endeavored “were relating responsible indictment. Government paid called the balances Attorney tax not satisfied paid The defend government receipt latitude. prejudicial First As charge that mo satisfied attempt no the As in 1964 for in Chi counsel merely “deal.” permit charge to ex taxes, about case dis Mr. had Di- If if Court’s in the Carlson the District bank accounts. The Dis assails restricting rulings trict Court did cross-examination sustain the Government’s objection Riley; he DiVito, La-Key also certain cheeks. But Bat- judge testimony, (2d 1957); By allowing trial 248 F.2d 334-335 Wigmorc 1940) (3rd consistently on that bias Evidence the rule ed. acted 948-950, 1005(b); §§ a collateral is not McCormick or interest a witness Evi (1954) 40, pp. issue, ad- evidence is dence § extrinsic 85-80. Lester, missible thereon. United

315 ruling, discre- taglia prejudiced No District Court’s abuse was not exclusionary already reflected tion been shown has were for the checks received, ruling. ledger had been sheets that Battaglia’s enabling counsel to ar- thus Battaglia complains in Amabile’s that La-Key gue the Carlson looted Riley, Amabile was cross-examination of personal gain. In Company his own permitted Oc- not to show being addition, offered checks 5, 1965, Federal tober statement attempt contradict a in an witness Investigation not Bureau refer did relating not matter collateral Palermo and to the 1962-1963 threats of allegedly im- This extorted. However, Riley Amabile. testified that Masino, permissible. v. States United threats he had the FBI of these advised 1960); 129, (2d Unit- 133 Cir. 275 F.2d pages only and added: “I read two have Sweeney, 262 F.2d 276- 272, ed v. States I see [of October 5 statement] 1959). Wigmore (3rd on Evi- 277 3 Cir. Battaglia’s there, yes, coun- sir.” If 1940) (3rd Prior con- dence 979. Ed. § point pursuing, sel worth considered mat- on a tradiction be shown agents he could called FBI Dahlman ter material the substantive issues of contrary. prove Unit- and Kotsos to States, 344 trial. Gordon United v. Borelli, 376, ed States 391 v. 336 F.2d 369, 13, 414, 420, 97 U.S. note 73 S.Ct. (2d 1964), denied, certiorari Cin- Cir. judge there, trial L.Ed. 447. As noted States, 960, quegrano v. United 379 U.S. in control of cross- has “wide latitude 647, 85 S.Ct. 555. 13 L.Ed.2d dealing examination, especially in Battaglia’s reply brief, In his 344 collateral to character.” evidence as counsel contends that the Government p. 423, p. 375. U.S. at 73 S.Ct. at granted pro request for should have Next, states grand jury duction of DiVito’s testim showing Riley’s pur precluded from was ony.8 particularized No need for this price It is for the land. chase shown, nor was was true that the real estate contract showing justice re the ends of not of the best evi admitted virtue quired production. Therefore, produc Battaglia had dence rule. But earlier unnecessary. tion v. See Dennis through tes shown Robert Biederman’s 868-875, 855, States, 86 United 384 U.S. timony price $140,- was about 1840, S.Ct. 16 L.Ed.2d 973. disparity 000. between the Since Battaglia’s principal cited As to cases purchase price price and the used error, v. to show in Alford reversible negotiations already rec loan States, 687, 51 United S.Ct. ord, prejudice no from this rul stemmed 75 L.Ed. defense counsel ing. permitted prosecution to establish that a Battaglia complains Ri too that custody government witness was in ley’s February 5, 1960, bankruptcy peti might expect In consideration. therefore Again, tion have been admitted. should permitted to case, defense the District had broad discretion Court show that both DiVito to refuse it as a matter. custody. Spaeth collateral Unit government v. United 1956) ed (6th 218 F.2d Bender, States Cir. 232 F.2d 776 1955), denied, Hogan, Cir. certiorari 232 F.2d sought U.S. 99 L.Ed. 1253. (3rd 1956), defense Riley’s bankruptcy supposedly petition government who witnesses cross-examine offense, that he no or bonds stated owned stocks federal of a stood convicted expected date, record as but this does to show effort testimony. bankruptcy leniency show that the statement was for their in return “obviously perjured” to allow refused The District Court claims. Riley's grand request La-Key’s Battaglia’s production tes- counsel did not timony. Battag- case, should noted various criticized In this cross-examination. evidentiary rulings Court subjected of District DiVito counsel lia’s approved in the rea- those Unit- were well within lengthy about cross-examination (7th Lawinski, 195 F.2d 1 tax evasion ed States v. of the the dismissal sons for 1952). together, serves Cir. Taken eviden- against This also him. indictment Masino, rulings tiary gave these defendants here distinguish v. States United and do in Lawinski 1960), broader latitude than (2d Cir. F.2d 129 275 of discretion. government wit- not to an amount abuse of cross-examination permitted. was not nesses Evans’ Character Witnesses 414, United 344 States, Gordon v. U.S. precluded Evans was from 369, 447; United 73 S.Ct. 97 L.Ed. States showing good through four character 1946), Beekman, (2d v. 155 F.2d 580 Cir. acquaintances. Relying on Michelson States, and 163 Meeks v. United States, 469, 213, 335 69 U.S. S.Ct. 1947) 598, (9th 11 Cir. deal Alaska 378 168, explained 93 L.Ed. the District Court documentary evi- with the exclusion of rulings evidentiary that his were based showing prosecution wit- dence improperly put on questions and im on violating punished had nesses been proper foundation. As to some of subject and federal law were still questions, this over have been an jurisdiction agency which of the court application However, strict of Michelson. imposed punishment. In each no foundation was laid to show that these case, the information contained people witnesses knew of who prove documentary tended to community lived where Evans present bias and was not otherwise reputation “among resided. Proof Judge case, In record. the District group employees limited such as fellow point: “I assume that remarked at one particular building” in a has been held government who could is the one 17, p. 481, inadmissible. 335 U.S. at note voluntarily [of the dismissal move 221; p. 69 S.Ct. at Williams v. United against DiVito.]” the tax indictment States, 92, 382, 397, 168 18 U.S. S.Ct. coupled statement, This exten- with the 509; 42 L.Ed. Kroot v. United sive and the cross-examination DiVito (7th 1933). 449, Al 66 F.2d Cir. examination of First Assistant Unit- though approach liberal to char more Attorney Chicago, told the ed States precedential rulings acter witness has dis- the indictment had been basis, we Mr. adhere to Justice Jackson’s government. missed on motion rulings precept of trial to “disturb any other Defendants do not show that except courts” in troublesome field significant information was contained (335 p. in rare instances U.S. at documentary evidence. the excluded 213). S.Ct. Gordon, further Meeks are Masino Testimony Restriction Evans’ distinguishable cases in those cumulative reversal was based on the argues Court’s the District prejudicial errors. of two or more effect rulings during evidentiary errors This case at least one lacks opportunity present an denied him an found in each of cases. those adequate defense. foregoing approve of the We permitted It true that was not affording the policy cases deny secrecy sup- certain admonitions showing bias. latitude defense wide posedly Lansing project made about disposition We do not view the during Riley’s 1964 conversation June them. inconsistent with issues herein as Evans, because of the but this was leading suggestive Battaglia’s of his trial other nature We have considered secrecy, cross-examination, questions. ex- counsel’s To rebut points relating to permitted to elicit documentary in- Evans’ counsel was exhibits clusion of Riley company prepared a without to be find them structions discussion, promote sales of closing brochure merit. “showing no the stand. There was Hammond apartments, project prejudice de- story real will result published about the Times (United inability fendant’s to comment” August 1964. Kahn, 381 F.2d permitting rulings 1967), denied, 389 certiorari U.S. questions as certain to answer 19 L.Ed.2d La-Key, Amabile, conversations that severance was not necessitated. based DiYito Publicity Trial questions lack improper form rulings are proper These foundation. though Even defendants suc rudimentary of rules supportable under cessfully objected sequestering the per Furthermore, was evidence. jury, Battaglia argues prejudi now those deny he met mitted publicity cial process violated his due rephrased his counsel persons after rights. closing argument, In his counsel questions. recognized repeatedly that the trial court sheets, was allowed As to the bid ignore admonished the news orig- signed testify there were coverage. any There is no claim that signed copy sewer of the inal and a jurors any “prejudicial” read arti the signed sheets, and that bid contract cles, differentiating thus the case from office, original left in 310, Marshall v. United 360 States, U.S. attempt- very points counsel his trial 1171, 79 S.Ct. 3 L.Ed.2d 1250. In Janko ing to elicit. 716, v. United 366 81 U.S. S.Ct. 1662, 846, 6 L.Ed.2d second convic charged with Since tion was reversed because the trial court conspiracy, cannot January we 1965 inquired jurors had not whether Dis for the was erroneous state that Post-Dispatch read a St. Louis article wheth Judge irrelevant to consider trict published during containing the trial and high in in esteem held Evans er prejudicial “inadmissible information.”9 August 1965. jurors Here the were twice asked wheth study shows of Evans’ Our er had seen articles the ease. about present- great scope given he was having None admitted done so. United any part con- ing in the his denials (7th Accardo, States v. 298 F.2d 133 exclusion- spiracy. Court’s District The 1962), Largo, Cir. and United States v. rulings jeopardize defense ary did not (7th 253, 1965), 346 F.2d 256 Cir. cer interpretations permissible and were denied, 904, 240, tiorari 382 U.S. 86 S.Ct. of evidence. the law 157, 15 L.Ed.2d do not hold that interrogate always District Court must Inability to Comment Counsel’s Evans’ juror singly. each See United States Failure Battaglia’s Amabile’s Jannsen, 916, v. 339 F.2d 919-920 Testify 1964). presented defendants Before the in witnesses, Battaglia complains Court District also of the their presence permanent press refer in not to of a table counsel structed their Supreme to take has defendants the bar.10 The Court of the side failure of recently emphatically disapproved of course instruction This the stand. rights Maxwell, (Sheppard protect Fifth Amendment installation 333, defendants, 384 86 L.Ed.2d U.S. S.Ct. 16 two silent 600), Judges the three so that District should defenses and Amabile. reserving mutually exclusive. consider the bar of the court accused were argument closing (384 at for counsel in the future U.S. Also, counsel’s Evans’ having 1507). p. 355, However, taken do advantage 86 S.Ct. we of Evans’ took filed Memorandum tables have been installed Such General’s Solicitor 9. See Northern case. trial courtrooms Supreme in the Janko various Court District Illinois. press I. placement of this not consider error, reversible to constitute table SUFFICIENCY OF THE EVIDENCE “frequent confu- no reveals record “con- Accepting light disruption trial” evidence sion and (384 bar” Government, most favorable within commotion stant view, S.Ct.). our unquestionably p. showed that U.S. Amabile, into this Pranno, Evans, DiVito, media of the news intrusion a LaKey great obviate not so devised executed a scheme trial (cf. Riley Management Estes v. State showing prejudice Corpora- defraud the 1628, 14 by using Texas, 85 S.Ct. tion 381 U.S. Construction Carlson Maxwell, Sheppard Equipment Company & as a facade L.Ed.2d moneys L.Ed.2d pur- meant for construction satisfy us poses 600). failed to partici- has could be diverted to those pating trial free denied a But this scheme that he was scheme. publicity. charged was not the one indict- of adverse unquestionably ment. The evidence also Eavesdropping showed that Amabile threatened reprints purpose obtaining money. for the The Government’s brief of 18, 1967, barren, August however, Assist- record from the is evi- letter of charge Attorney circumstantial, of dence, in direct or ant General to sustain Department charge of Division of Criminal that and Evans Attorney conspired obstruct, Justice to the United de- States Amabile “to Chicago. lay De- The letter confirms and affect move- commerce” in the pre-trial partment’s advice to the ment of materials for the construction Attorney Riley dwelling no elec- that there was of units means monitoring in Cf. Hoffa case. tronic this extortion. v. United early 1964, Riley Management In Accordingly, is L.Ed.2d began Corporation planning construc- Court the District now academic whether apartment building Lansing, tion of an at granted hearing deter- should have year, Illinois. June that William eavesdropping electronic mine whether Riley, president Riley company, of the place. had taken requested superinten- his construction dent, having Evans, lining up con- prejudicial been Dave error start No Lansing project, judgments tractors shown, are affirmed. the two keep project asked “secret Pa- from Nick Joe Shine [Amabile] (dissent- Judge SWYGERT, Circuit days Riley, A Ama- lermo.” few at later ing). request, bile’s Palermo met Amabile and indepen- This dissent on based two plumbing the latter’s Melrose Park grounds. First, dent I do not believe company office. concern- testified that the Government introduced ing meeting: to convict sufficient Nick Palermo if I asked me charged against of the Sec- crime them. Lansing, going project to build a ond, although my on the suffi- views I Illinois. I told that Mr. Palermo ciency of would dictate the evidence me when and Mr. Palermo asked remand, a multitude reversal without going blueprints he was prejudicial which errors occurred figure I told work. that he could singly, precluded the combination, if not plan on I Mr. Palermo that did receiving trial. a fair defendants giving Pa- Mr. I told the work. trial Consequently, these the basis ex- on his lermo that he was behind efficiency errors, remanded isting case should be projects and with enjoying, regardless it was insuffi- we were now that trial a new give project. him this ridiculous ciency evidence. Joe me out of business. they give me didn’t use be them ing -X- Joe Shine Joe Shine putting a smart would hell was them the work give Westmont, ^[*] I they I had to use stop they outme doing punk. them, it to told told me that -X- asked trying anyone it. me project Illinois. now me ^[*] business, I I told they them, else basically Lansing, pull, in Northlake I wasn’t ^[*] if told not other would They Nick and I * * process didn’t what 45- than way told if put go- * I completion like president” of to be called the Carlson plation hired per $20,000 in cash.” replied, no told they LaKey Equipment Corporation a fellow to do [but] before During week have him to were LaKey and that Amabile that “Okay, plus giving starting I to work for them for $200 period, a ten give you he was clean.” work that’s the sewer work to Di- job. put company. a “new per DiVito and Pranno for us called “on the They and DiVito cent bonus fine Construction corporation” job, they In contem- told * paper I want LaKey would Hank * upon “had & * Pranno, Vito and apparently I be me shouldn’t told Joe Shine signed drafted a written contract to be guy. me he knew told wise Joe Shine by Carlson Construction. The contract guys handle wise how to originally however, that Evans up, drew walking with a the streets be would unsatisfactory to DiVito and Pranno candy cane. decided, looking after n X -X* *X' -Jr vr -ir plans, over the insuf- Joe knew where Shine me he proceeds job ficient from the my would —he told mother lived. He twenty-thousand bile the had dollars he my went me that he knew kids top.” demanded point, “off the At this they bat had a baseball school figure Amabile way told Evans to a guys to handle wise like me. get money job. more out of the Evans meeting, Riley gave After this Palermo raising rewrote price the contract the Lansing plumbing contract for the the approximately forty forty-five thou- project. looking plans sand dollars. After at the specifications seeing high August 1964, July early the In late price job pursuant DiVito, to the rewritten sewer con- Amabile met a Mike contract, tractor, DiVito informed Pranno that Pranno in the latter’s and Rocco $20,000 “there would be in cash Supper Park, above Illinois. D’Or in Club Stone profits.” our costs and learning Pranno Upon then told the from Amabile about presence in Amabile the Riley Lansing, project DiVito and asked in DiVito give twenty Evans that he would sewer the if could obtain some of the he replied “Okay, thousand dollars. Amabile possible,” work. Amabile “it was said it’s a deal.” In accordance with their didn’t DiVito’s name on the he want previous discussion, Pranno, DiVito, days Amabile told contract. A later few LaKey up they formed the Carlson if came Construction DiVito and Pranno that Equipment Company. they & good fellow,” could DiVito with “a clean forty-five get per each received for cent the sewer contract the remaining conversation, LaKey of the stock and project. Shortly the after Henry per ten persuaded cent. DiVito and Pranno LaKey (who foreman a had been September, in Riley Sometime asked for jobs) to work construction sewer up whether he had lined a sewer getting they in if them succeeded contractor. Evans said that he had ob- Lansing contract. tained contractor, an excellent Carlson Pranno, DiVito, mid-September, Construction, operated by a man named LaKey. Evans, latter’s met Riley and Amabile Evans told “had that he Northlake, apartment Illinois. Pran- repu- looked into Carlson Construction’s * * * money account out of the kind of taken tation, [he] excellent, and it was * * * you what tell will could at this time. man quite felt confident he would also said that to draw.” He job.” good Construction Carlson do a arrange- straighten same Evans. That it out with given under the contract figure $48,000 Savings day, Loan Evans reduced whereby & Lawn ment papers, told and, approving upon re- after Carlson towas Association Riley LaKey present for the to Meltzer them slips payment ceipt issued LaKey presented slip. payment com- When company. Construction Carlson covering for papers second draw September or work sewer menced authorize approval, refused to Meltzer October, 1964. request. Early November, instruct- Amabile LaKey immediately necessary papers went LaKey get see ed relating presence bile, in Evans’ what ready making After the first “draw.” instruction, happened. At LaKey Amabile’s preparing papers, went to see LaKey Riley night Evans and went Morocco, see club Amabile at El day. request, next Pursuant to Evans’ Northlake, operated Illi- Amabile however, they sepa- entered the office LaKey nois. “Joe Shine [Ama- testified: rately. LaKey Riley he When told much draw asked me how bile] * * * get Riley draw, was there to second $57,000. Joe for. I told him replied that Carlson get Construction’s bills Dave hold of said would Shine being paid, and that straighten out.” Within LaKey payment authorize when day LaKey two, Amabile went obligations. During Evans, had satisfied patient Illinois these who was a see LaKey conversation, told Hospital. saw Masonic Before job gone up from LaKey the cost of Evans, that Evans told $120,000 cut, $200,000. $5,000 asked going When as his to receive explain why price Evans to had been originally planned. theAt increased, Riley, “There’s meeting, gave Evans a “wad complications job set we papers on the bills.” Evans then looked over price up job had to raise the num- out a first and crossed draw done.” papers had been ber items. After the $10,000 retyped, reflecting a reduction LaKey reported Riley to Amabile that papers draw, approved the had refused to authorize draw. the second Riley’s LaKey take them to and told to replied: Amabile “You tomorrow be here LaKey received office. On November morning. go you personally to I’ll $47,517.97 Lawn for from Sav- check straight- myself. get the office I’ll this ings based & Loan Association next ened out once and for all.” The Meltzer, slip approved pay-out Sol morning LaKey arrived and Amabile LaKey deposited Riley’s comptroller. Riley’s in unan- at and walked office pay- $39,000 in Construction the Carlson why Riley nounced. asked Amabile remaining $8,517, roll account. Of pay LaKey. Riley couldn’t did not said he gave LaKey retained $517 LaKey paid draw until authorize the days later, $8,000. at Amabile’s Three Riley: “I his bills. told Amabile then $20,000 direction, LaKey withdrew nothing man’s don’t care about that. The ac- from the Carlson Construction cash you got money Bill, coming, I his want gave Amabile. which count money.” point, pay Ama- At that LaKey to the back bile went January told Amabile a conversation office and commenced draw. papers prepare for a second during LaKey arms lot of “seen a ready which got papers showed LaKey doing Shine,” moving by who was Joe much how asked who to Amabile them talking. Amabile “$60,- Then LaKey replied, most for. draw wink, LaKey, gave him a figure towards thought walked that this 000.” money get your laughed, said, “You’ll high, saying, that “I don’t want too meeting, deposited LaKey $48,512.48 Amabile turned leaving, now.” Before Bill, check, Meltzer, forget, received from the Carl- “Don’t and said: you Later you son Construction bank account. pay I want man. I want this LaKey $17,000 to withdraw I Amabile told pay know mean.” him You what now. amount, Morocco, Of this way La- from the account. to the El On the back gave LaKey LaKey $5,000; in turn bile Key how he was able asked Amabile gave $1,000. Riley” big to do. what man “a like tell got said, “I put up fist this, analysis A close of the evidence in * * * right here, son of a bitch this case is essential to determine whether He’s afraid of me.” proved the Government crime Riley gave stand, On the this witness charged. precise charge The was a con- meeting: version of the spiracy money Riley. to extort from The gist of crime is an pay I Mr. told me that had to Shine agreement people, two or between more man, this that this man was a friend rather than the resultant action under- theirs; expected pay that I pursuant agreement. taken Since them; pay all if I didn’t them agreement gist crime, is the people sorts mad. agreement proved itself must be I told it would be foolish Joe either direct circumstantial evi- payment; me to this make circumstantial, dence. If the circum- company just pushing stances must as to warrant just ruination; was abso- finding alleged conspira- that the pay lutely this man and ridiculous to unity tors had purpose, “some some pay I did him. not want design undertaking, common some ****** meeting arrange- of minds in an unlawful * * Shannabarger Mr. me that I had no ment Shine told matter; 1938). I choice on had to pay man; the man wanted conspiracy charged in this case paid. him. allegedly obstructing aimed silly. I I had delaying told him this was the interstate movement of ma- big pending Equitable Life loan supplies required terials and destroy would, thing and this it could project. That obstruction and trying everything delay that we was to result the extortion of up. that, I build him fact Riley Management from the Cor- begged pay poration him. to have to engendering bodily fear of I had to him. injury He told me that Riley. and economic in William he was quently harm jected to and Riley him him pay this trouble and there ^[*] ruination He told me the Nick Palermo. to his him and he told further because authorized the afraid; ^[*] previous would be was no family for he was testified ^[*] his myself so I better company threats sense man said I had and all sorts Shortly a friend of theirs. he had been sub- me if ^[*] payment that he his in me I by ^[*] after didn’t employees Amabile physical with Amabile trouble, making subse- ^[*] pay lia ments testified to the commit their cerning sible, ictment.2 Riley, which dence shows either alleged coconspirators. Assuming crime There is a substantial agreed sake charged still do the with extortion admissibility argument, however, were and not believe that was relevant and nor Amabile Pranno by DiVito, LaKey, neither that Evans binding charged and Pranno to or that relevant question many on absent the evi Battag that all the ind agreed admis state con and except through acquaintance proof and Bat- common with that Evans There no 2. was Amabile, DiVito, Pranno, LaKey. each other taglia had connection regard by office, prearrangement Evans to The evidence only agreement separately. “com- the entered the office Evans shows that undertaking” Riley design on to which this occasion com- “there’s mon Riley job plications to party one bilk the in on the to set we was was up get job by price deceit company of fraud and the means to the done.” raise money for the out of earmarked foregoing facts, involving con- The all de- job. to a scheme Consistent with occurring his state- duct after kept in the fraud, DiYito and heavily by on ment relied Govern- the ordering expressly background, Amabile ment, suggest deceptive on conduct “good, job. stay A the off to DiVito part, complicity his than in a rather LaKey, to fellow,” recruited clean Moreover, scheme to extort. same these through Con- of Carlson facade act highlight action facts the individual effort constant There struction. resorting When Amabile in to extortion. among conspirators make sure to subterfuge was Amabile realized that Ama- Riley about kept the dark working longer past, no had in as it Construc- Carlson connection with bile’s things in his own decided take misrepresented were Both draws tion. and, hands, others, un- unknown to the expenditures. being legitimate Riley as Riley in mask the fraud and threaten many others facts, as well All these get approval of order the second rather record, of fraud indicia are draw.3 by mis- is marked Fraud than extortion. argues Government also The deceit. deception, representation, merely creation of Carlson Construction very and brutal —the is direct Extortion “put glove on fist with velvet the iron of fraud. antithesis Man’ which had ter- ‘The argues most Government Although Riley past.” rorized in the showing Evans direct conclusive past extortion been used to “willing participant” con- to be contracts, obtain con- Government spiracy is a statement made situation, present Ama- tends that anxiety LaKey LaKey expressed when cooperation, bile, with Evans’ did “I paying Evans said: about his bills. resort force to obtain will will talk to Shine and Joe Shine Joe contract; could sewer instead Amabile *** see We will talk the man. pressure wait his to obtain exert you.” money bank for obligated money by the contract. January (This statement made argument fact, however, and after after the first draw reveals top.”) gotten import “off bile had clear of the evidence in arrange- Subsequent statement, prac- to Evans’ case —that a fraudulent scheme Riley. flatly second ments undertaken ticed refused When Again attempts though made approve draw. second draw even Riley. persuade decreased deceive Evans had him in tried LaKey. prepared by making misrep- amount of the draw other direction a bald ap- LaKey resentation, unilaterally, the draw When failed LaKey to proved, accompanied perhaps spontaneously, reverted to man,” phrase ring Battaglia, damaging like This use of “the as- the most uses, (See against pect infra some of its other the Government’s case text) accompanying phrase iden- to fails Evans is neutralized. Because the 5-7 tify person being ambiguous, to. The referred is “the man” so indefinite majority recognizes only speculation supply instance that in this and surmise could Battaglia phrase purport Battaglia. refer either to could of a reference by implica- Riley. they speculation Yet conclude But is .the same surmise Riley, referring majority’s necessary support ra- that Evans was tion properly stating, infer could that “The tionale statement reflected going induce Amabile would Evans’ that Evans knew awareness that Amabile was Riley through Riley. authorize fear —to exercise extortion — refer- he instead draw.” If second got LaKey up role, Hank of an extor- where we to set that accustomed more company on the and do work for us and action This unilateral tionist. figure Battaglia $20,000 you?” in transformed cannot be part Amabile ar- agreement with Evans nodded. gued and Amabile then prior into a LaKey had taken Government whether Amabile Battaglia as the to extort Battaglia away from interceded Pranno. charged indictment.4 by saying: you Keep it out, “Cut fellows. Govern- reed on which the The slender it further down.” DiVito testified: agree- depends to demonstrate an ment Then Jim Pranno continued to talk and Amabile ment to extort between says, he “You know we had to borrow respect present with is even $5,000 keep job Lansing this in touching upon Battaglia. The going and I LaKey, now can’t find Battaglia’s crime connection with you $20,000 know there was in this charged follows. as be summarized you.” Battaglia deal for nodded, Mr. although had Riley he testified that says “Yes.” And then Jim Pranno con- Battaglia, had seen met he never says, tinued and “I want to know what night early 1964 in Amabile’s in once doing you Joe Shine is to me. I want Bat- saw that he club. DiVito testified taglia get tell Joe Shine to that in October that talk to Amabile LaKey from so that we can back LaKey year testified in Amabile’s club. loan,” this and Jim Pranno continued December, early that in November late say on to LaKey that Hank a no Battaglia’s farm he was Amabile at with good Battaglia says, s.o.b. Then Mr. Illinois, Pingree Grove, he in “Well, LaKey I don’t think Hank is running LaKey “Hank introduced as job guy, him, such a bad I I like like Lansing, Illinois.” While for them him,” they work with had other Battaglia there, Amabile ask he heard things coming up, and that could “getting why kind Evans was again use him was clean. he money.” replied: “I made Amabile so, pause And after a minute or got us man deal with the man. The job. about a minute, * * * then Mr. $7,500, I’ll promised him I got up said, out chair testified it.” DiVito take care of “Rocky, you.” I’ll I see what can do for February with he went or March any On this record there is absent Battaglia’s farm. Pranno to evidence, circumstantial, direct or demon- later three minutes and the came a few strating money knew Battaglia’s Ac- arrival. of them awaited was to be extorted or that cording DiVito, Ama- Pranno said Riley by threats were to Battaglia’s presence, be made to Ama- “You bile’s bile. Nor is evidence that deal about know Riley. Riley’s prior with in trouble. You’re 4. The record indicates making job. LaKey Dave Evans lose You’re Evans told draw second only my taking right Riley’s. I man out of out here “let Evans would contracts going don’t know what on. You are [Lansing] tells Shine the ones Joe are causing nothing deep but trouble.” involvement me.” Evans’ sum, although statement con- indicated bile is further Amabile, LaKey firms association second Evans’ after made to just strongly suggests their “I can’t out. when he draw said: scheme, deep association know furtherance Shine. I of a too with Joe I am meeting people.” The to defraud. At the time of the the other too much about LaKey LaKey, conversation, day testified Evans was unaware before that Amabile a meet- committed extortion from Florida to back been called upon Riley ing obtain and Evans. the. second draw. attended properly place: LaKey inference that can what took described LaKey’s therefore, testimony, got drawn from Joe Shine in a conversation with I Club, got attempting keep was that Amabile first as soon as going by said, impres- me, conveying “You’re ruse hollered and taking you’re bills, paying sion to Evans not the scheme to defraud the job. operation. got trouble was still in me in You of the care 324 Battaglia Battaglia These which the Government Riley inferences or that feared draw, money some of non them extorted seeks of the received higher spec- sequiturs, can no than

Riley. Finally, is no evidence rise Pranno, Amabile, Battaglia agreed ulation and surmise. with charged the crime to commit against Much of Government’s case the argues against Yet Government them. Battaglia identifying him as rests on in its brief: of in “The Man.” But the numerous phrase of in Just as acted at Amabile’s stances of the use many Battaglia, record, direction, worked at direc- refer not to Battaglia. LaKey,5 Evans,6 and Amabile.7 defendant rather tion alleged Battaglia Battaglia’s in bile muscle financial was the while stake conspiracy demonstrated, brains, setting policy extort is ac was the and set- Government, cording by tling secrecy two disputes. his His veil saying anonymity, mention supposed a “Yes” nods at his known Although you.” “$20,000 in for wanted few as “The Man.” When one Battaglia’s responses Man,” “The mention went to the to see one “The money a that he was Farm.” indicate Lansing stranger venture, are foregoing jury From the a way probative complicity in in no of his Battaglia real could infer had a conspiracy extort. The force interest in the of the outcome regard argument Government’s project, participating fi- he largely by is diminished the fact nancially in Carlson Construction’s sup [Battaglia], “the Brains” who was co-eonspira- contract and that all other posedly “setting policy,” had be re direction, directly as tors acted his minded that he had twice Amabile, indirectly, money coming to him. Evans. placed majority is on Reliance From his ad- own mouth cases, two Second Circuit United States knowledge of Evans’ role mitted Andolschek, (2d Cir. F.2d being paid. that Evans was 1944), Falcone, 109 United States LaKey’s Carlson knew of role and that (2d Cir.), aff’d, on the had the contract Construction (1940). Andol- L.Ed. 128 LaKey Lansing project. He knew support proposi- schek cited of the front, being “he used as a “Battaglia tion that ‘embarked Battaglia’s knowl- clean.” With ” criminal venture of indefinite outline’ edge foregoing, could therefore, chances’ “had ‘take his participant conclude that he co- as to methods used other place Riley conspiracy pas- conspirators.” full text of the Riley position learned that when illuminating: however, sage, is more in fact Ama- Carlson Construction was party Battaglia, It is that a to a authorize true bile money identity, need not know the or even payment escrow contract, confederates; number, when his account, not because upon embarks a criminal venture feared Amabile but because he outline, indefinite he takes his chances “The Man.” 7. concern- met Amabile Pa- to see When first Amabile went 5. When said, April 1962, Riley testified, draw, “The ing lermo the second Bill, coming, just money got want “Mr. met struck Shine who I man’s my money.” (Emphasis add- you his face in and told me he was face (Emphasis ed.) add- man in Northlake.” ed.) going LaKey Amabile were When said, LaKey hospital, visit Evans “Joe, deal was added.) (Emphasis man.’’ my sufficiency membership, Because of views on the as to its content evidence, however, they common of I fall within the do not be it that believe purposes them. that an understands extended discussion of the trial as he Nevertheless, necessary appropriate. be aware errors is he must either of only accept they upon purposes, I must them and refer to them as reflect those implications, whole, to be the conduct of their he is this trial as a if striking aspect charged most with what others do in of which was the pro- in which the execution them. United States unfavorable climate of ceedings Perhaps Andolschek, supra, no conducted. at added.) single occurring (Emphasis error that cli- outside require mate would be sufficient despite majority’s And assertion that reversal; however, their ef- cumulative conspiracy “stringent liabili- test of fect, exemplified by the three errors ty” by forth in set Falcone was met detail, that will be in discussed leads here, condemned Government that case inevitably to the de- conclusion that guilt by mere association. fendants were denied a fair trial. There are indeed instances of crimi- kind, liability nal of the same Pre-conspiracy A. Threats merely imposes punishment be- the law charged The indictment that a con- cause accused did not forbear spiracy among the defendants to violate wrong was do that from which the July, began the Hobbs Act “in or about likely follow; prosecutions in Yet, 1964.” William Riley, the victim abetting, his attitude alleged extortion, permitted undertaking towards forbidden testify objection made over about threats enough positive. must be more It is not by in 1962 and 1963 defendants normally forego a he does and Nick Palermo. These Amabile activity, fruits of which lawful Riley’s proposed threats related to build- un- will an he knows that others make ing project Northlake, Illinois use; pro- sense lawful he must some subsequent payment Ama- himself, make mote venture their bile. also about threats testified own, in its outcome. stake made and Palermo in important especially distinction is regard plumbing work today many prosecutors seek when so building project Westmont, Illinois. drag-net sweep of con- within Palermo on “would that occasion said he spiracy been asso- all those who have bury Hubley,” Riley’s super- construction degree whatever ciated intendent, “would and Amabile said he United States the main offenders. hammer the nails on the coffin.” Falcone, supra, 109 F.2d at 581. Riley at that bile made threats other Amabile and can no There doubt testimony Purportedly, time. but, together, as the associated showing purpose admitted Falcone, mere associa- court stated Riley’s basis of fear of in Jan- guilt testimony insufficient tion is uary, ample 1965. There was support a conviction. Riley, however, of made threats date Amabile after the commencement II. alleged conspiracy. ERRORS TRIAL According majority, the testi- mony urging reversal, “relevant these threats point errors show fear of trial to a number reasonableness unduly prej- demand when confronted with Amabile’s which claim not prevented The Dis- them, them to authorize second draw. but also udiced carefully Contrary receiving trict instructed the a fair trial. Court majority’s disposition con- limited to that of these Although agree proof purpose.” I tentions, did such errors believe the reasonableness extortion occur. alleged conspiracy proven testimony prior by was fact. victim’s fear F.2d generally v. United permissible, the testi- See Gordon is threats 1965). Palermo, by mony who 9 Cir. made of threats charged unindicted as an was not even C. Evans’ Character Witnesses any coconspirator, irrelevant was Moreover, I loss purpose. sought am a testimony to elicit referred good through find instruction” the “careful four witnesses. character by majority. Because the testi- inept Conceding to mony the manner somewhat the by both undertaking attempted Palermo was of threats in was which this inflammatory, defend- counsel, judge’s the by irrelevent and Evans’ the district prejudiced the district ants were was neverthe- treatment of these efforts jury Throughout the instruct unduly court’s failure the less restrictive. testimony. disregard Cf. United efforts course of defense counsel’s (3rd Critchley, question witnesses, Gov- the character 1965). objections interposed ernment counsel questions all directed to an assessment Accomplice Instruction B. The general reputation honest, an Evans’ as law-abiding truthful, al- citizen. On accomplice im- instruction was The objections every occasion, most these in his proper judge, district the indiscriminately the were advanced accomplice, prac- for all of an definition equal simple statement, object.” “I With jury the purposes the tical regularity, judge objec- the sustained the charged com- fact had in been crime tions, only rarely intimating the reasons doing, the invaded In mitted. so action. jury. an province This kind of of the prose- proper in a be obviously would point, instruction At one Evans’ counsel alleged accomplice ad- cution where the bewildered, frustrated the asked participation in a conceded judge mitted his prior on his elaborate statement situation, an In that question improperly put.” offense. criminal that “the given cor- here one the response, instruction like rectly judge In should have either weight to be ac- delineates demanded that counsel Government accomplice testimony of the objections corded the frame his in concrete more implicate testimony others specific objec- tends terms sustained the been committed. has crime convey tions a manner to to defense case, however, the crucial rulings. In the instant question counsel the His reason for his participants of who unnecessary was do failure to so worked an were, but whether crime prejudicial hardship conceded on Evans’ coun- Act, the Hobbs to violate testimony sel's efforts to elicit character by the charged, formed had been crime from his witnesses. conspirators. alleged addition, rulings of the some court’s sustaining objections did not ex- instruction the Government’s Because question open whether were sion, On more occa- plicitly erroneous. than one leave accomplices, qualify were any foundation laid witnesses reasonably interpreted witness, question posed have ap- properly phrased. from the direction witness parent as a the instruction judge charged sustaining rulings had been basis crime for the objections par- risk this substantial the Government’s to these To avoid proved. questions should have ticular prejudice, the instruction jurors sought reputation un- related to Evans’ that the framed been community business rather than equivocally informed any reputation community witness where judges of whether sole majority accomplice. modifica- dis- Such lived. The tinction, relied on this an fact stating, instruction's foundation was cured the “[N]o tion assumption laid implied show that these knew witnesses vice—the charge case because people in the com- on which de- lived who imprisoned, fendants were munity convicted and Evans resided.” agreement money, to extort community, Reputation in the business person sustained the evidence. No repu- probative however, than is no less punished should our under criminal community to residential tation guilty proved laws unless he has been presence of certain show the absence specific by competent offense In this in an accused. character traits process in a fair trial. of law de- Due observa- regard, Professor McCormick’s nothing mands less. apposite: tion is usually be reputation said is which obtained limited lived, community accused to embrace extended should be but this group whom considerable business, constantly associated activity, and

work, continued or other thought reasonably might be who him. opinion about a collective have America, UNITED Law STATES McCormick, Handbook C. Plaintiff-Appellee, (1954). 158, at 335 of Evidence § Whiting States, 296 also v. United See Salvatore Evans, BATTAGLIA and Dave (1st 1961). Because Defendants-Appellants. charged against the crime Nos. 16313. setting, probative most char- business kept evidence was from the acter Appeals States Court of rulings. rulings These court’s Seventh Circuit. They prejudicial. erroneous. also April Supreme in Michel- For Court said Rehearing April 17, 1968, Denied en banc. son v. United (1948), 213, 219, 93 L.Ed. 168 presenting privilege character “This [of

testimony] is sometimes valuable * * * defendant for * * * enough alone, may raise * * guilt a reasonable doubt

III. presumption of the traditional

Instead defend- with which criminal of innocence ordinarily clothed, record

ants are suggests presumption of that a this case criminality of these the acts attached to infamous of their defendants because notoriety.

reputations The defend- guilty nefarious ants have been imprison- they deserve for which conduct

ment, they may had such bad menaces

reputations considered as to be however, alone, society. facts Such eyes, per- blinding of warrant cannot is mitting to stand a conviction than evidence. rather on surmise

based difficulty present in This kind notes

Case Details

Case Name: United States v. Salvatore Battaglia and Dave Evans

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 9, 1968

Citation: 394 F.2d 304

Docket Number: 16313_1

Court Abbreviation: 7th Cir.