United States v. Theodore J. Isaacs and Otto Kerner, Jr.

America, UNITED STATES Plaintiff-Appellee, Kerner,

Theodore J. ISAACS Otto Jr., Defendants-Appellants. 73-1409,

Nos. 73-1410. Appeals, Court of States

Seventh Circuit.

Argued Oct. 23 and 1973. Feb.

Decided

Rehearings Denied March

H27 1131 XV), (Count tax eva- 18 1001 U.S.C. § (Count XVI) and sion, 26 U.S.C. return, in a tax false statement 7206(1) XVII). (Count Isaacs was C. § evasion, tax also convicted of U.S.C. § (Count XVIII), false state- and return, ment tax U.S.C. § XIX). 7206(1) (Count post-trial motions, considering After judge April dis- on district against each defend- five counts missed VII, X, ant, XII. He V, XI and Counts years’ three sentenced both defendants to Magidson, totalling D. imprisonment $50,000 Warren C. Sherman and fines Welch, II, III, Chica- ($10,000 I, H. and Jackson each on Wolfson Counts Patton, IV, Kerner, E. go, Connolly, Thomas R. as Paul and Count XVI defendants-appel- C., Washington, Isaacs), prison D. for Count XVIII running concurrently on re- lants. sentences all defendant, maining against each counts Gary Atty., Thompson, James R. U.S. accumulating consecutively the fines on Skinner, Starkman, Wil- L. K. Samuel against each five counts defendant. Huyck, Glynna Freeman and W. liam T. Attys., Monico, Asst. D. Michael affirm the We convictions Isaacs 111., plaintiff-appellee. Chicago, IX, I, VI, VIII, and Kerner on Counts XIII, and convictions reverse their JOHNSEN, LUMBARD Before II, III, on af- Counts IV. We also BREITENSTEIN, Circuit Senior firm the conviction of Kerner on Counts Judges.* XV, XIV, XVI, con- and XVII and the on viction Isaacs Counts XVIII CURIAM. PER XIX. Following trial before a six-week indictment, returned December Illinois, jury District the Northern 15,1971, named five defendants: Jr., Kerner, J. Isaacs Otto Theodore Isaacs, who had been Illinois Director guilty February were found of Revenue from to 1963 arising while variety out of of offenses governor, Kerner was Illi- of certain on behalf their activities return Kerner, governor interests nois who Illinois $150,000 than each. resignation more bribes from 1961 until his in 1968 convicted on both and Kerner were Judge, become United States Circuit an indictment all those counts Joseph Knight, Illinois Director of Fi- conspiracy to charged an 18 U.S.C. § Institutions, nancial while Act, 18 U.S.C. § the Travel violate governor, Kerner was Act, U.S.C. Mail Fraud and the Miller, S. William chairman of the Il- I); of interstate facili- (Count use Racing Board, IRB, by appoint- linois bribery, 18 U.S.C. furtherance ties in Kerner, ment of and through (Counts V) and mail II Mclnturf, secretary. Faith Miller’s (Counts fraud, VI 18 U.S.C. § , Knight Joseph was because severed XIII). through also con- Kerner was illness; trial. he died after the When grand jury, perjury before victed of agreed in Miller make to full disclosure (Count XIV), false U.S.C. August 1972 he and Mclnturf were agents, statements to Internal Revenue Judge * the Tenth Jean Breitenstein Harvey S. Judge M. Johnsen Senior Circuit, sitting by designation. all Judge Eighth Circuit, J. Edward Senior and Senior Circuit of the Lumbard Second granted charges immunity and propriety is attached to these contribu- against ultimately them were dismissed. tions. Monies which Miller collected testified; Marjorie given Miller L. he were to Theodore Isaacs who Everett, managed racing in- campaign. behalf of whose Kerner’s After bribery allegedly election, appointed terests under- was he Kerner’s Isaacs as taken, govern- principal Department were the two Director of Revenue ment witnesses. Mrs. Everett Miller as was chairman of IRB. suggest coconspirator named unindicted invited Miller as an new members government’s appointment Racing particulars. in Board bill Everett, through Miller, Mrs. recommend- Our discussion numerous claims appointment ed the of Ernest Marsh requires summary of error of the evi- Racing Donald to the McKellar Board dence, campaign from Kerner’s for elec- Hayes Racing and James to the Harness tion in 1960 to the disclosures and the appoint- Commission. Kerner made the investigations 1970 and 1971. Later, ments so recommended. Miller many years prior Marjorie For to 1960 objected ap- Everett Mrs. Lindheimer Everett had her fa- assisted pointments of A. J. Monaco and David ther, Benjamin Lindheimer, oper- in the Meyers appointments those thoroughbred racing ation of his inter- made. Lindheimer, Chicago ests area. suggested In 1961 Miller Ev- Mrs. Arlington controlled Jockey Park Club erett that she enter field of harness Arlington which owned track, Park race racing get greater more income from Washington and he also controlled Park Arlington Washington use of Park and Jockey Washington Club which owned accomplish To Park facilities. Park race entity track. Another in the legislation necessary was to obtain picture Jockey Club, BJC, is Balmoral permit corporation to own two one race racing company. Mrs. Everett owned tracks, racing company to allow a to con- some BJC stock at the time of fa- her duct a meet at a track other than its ther’s death and desired to continue his foreign corpora- own and to authorize a racing enterprises. Miller, a friend of operate tion to own and race tracks Lindheimer and IRB, than a member of approv- Illinois. Bill Senate which which at thorough- time allocated corporate actions, ed such was lobbied racing agreed dates, bred help her. through legislature by the Illinois Miller Chicago Thoroughbred Enterprises, signa- and it became law with Kerner’s CTE, organized was and financed ture. bank loans of more than million. $8 spent $5,000,000 equip 3,000 CTE CTE issued over shares of stock of Washington racing. 2,000 Park for harness went to Mrs. Everett who Washington Trotting Association, pledged Park them the bank as collateral organized WPTA, to run the meets secure Arlington the CTE loan. Park and it made a Jockey lease CTE contin- Washington Club and Park Jock- gent upon receipt ey dates Club became divisions of CTE.. The Racing from the Harness Commission. transactions in evidence relate to the ac- percentage quisition Rental the form of and disposition, Isaacs and gross Kerner, handle. WPTA stock was CTE, BJC, of stock in and a lat- legisla- er made to various Illinois company, Chicago available formed Harness Racing tors and issued nominees. Company, CHR. Chicago Racing, Otto Kerner was the Harness Democratic can- governor organized Inc., didate for CHR, Ever- Mrs. Illinois financing Miller assisted in ett Miller and had the same land- cam- paign through and, Miller, relationship lord-tenant with CTE as did Mrs. Ever- companies ett’s $45,000 WPTA. The initial CHR stockholders contributed Chicago campaign. cash to Kerner’s The com- It is not businessmen. government placed claimed the mon in a im- shares were for a time day, met Miller November of The next voting the control to maintain trust gover- the suggested Kerner Isaacs to her with Everett. Miller Mrs. Springfield of told them office and nor’s 50,000 stock be of CHR shares According offer. stock those Mrs. Everett’s distribution made available very Miller, nice company. “That’s Kerner said thought might help the hewho Marj.” took the stand 50,000 play prominent When These shares seeing Together, on he Miller November subsequent admitted part events. anything had been $6,000,000 9 denied that but earned about WPTA and CHR offer of stock. during period Mrs. Everett’s said about 1962-1968. for CTE the Kerner testified that the discussion According Everett, in- Miller to Mrs. racing meeting the related to at the as liai- formed her that Isaacs would act had scheduled for dates that been Miller and Governor son between government However, year. ev- next thought racing it es- on Miller matters. racing showed that final idence a friend in the Ker- sential that she have until a board dates were scheduled in order to ensure ner administration meeting Kerner testi- November 20. on racing CTE’s award of dates at being that he heard of stock fied first generally consider- tracks and favorable Knight Joseph he from available agreed governor. their ation from testimony While Knight’s to invest in it on recom- disagreed as who initiated undisputed However, mendation. it is subject, Everett and Miller dis- Mrs. nothing done was to set aside racing desirability making cussed the up years take it stock until four stock available to Kerner and Isaacs. later summer of 1966. At the result, As a November 1962 Mrs. time of Mrs. Everett’s November 1962 Everett Miller a handwritten note sent $1,000 offer of at CTE stock share which read: $2,500 was worth a share. approached Dear SW Isaacs Miller on a number following wanting memo is to confirm occasions know when today. promised telephone our conversation of would be made stock available. your suggestion January 1964, At Mill- earlier we have December 1963 or holding: been er handed over to Mrs. Everett’s Although For O. K. November 8 note. the note specified 25 shares of types C. T. E. had com- number $25,000 defendants, mon shares to be received shares at trial that the commit- W.P.T.A. Miller testified 10.000 $10,000 common ment considered flexible with particu- exact number shares and For T.I. $5,000 companies lar in which an shares C.T.E. common interest definitely would be awarded not settled. shares W.P.T.A. 2.000 Thus, example, $2,000 common share of Isaacs changed you subsequently from to 25 We did not issue the above as although suggested CTE, shares the reasons for had that I hold stock this explained until increase were at trial. we received further instructions you. spring In the of 1964 Kerner con- your you For further information problem fronted with the of the alloca- will recall stock of common Maywood tion of dates Park merger C.T.E. at the time of had val- Trotting Association, competitor ue of a share. $1000 enterprises. Mrs. Miller had Everett’s pleased I shall be corresponded Kerner, informing either issue the above stock or hold any it in it—or handle Maywood engaging him that been suggest. you manner practices. Bradley, fraudulent Thomas personal regards, Kindest who was Chairman of the Harness Rac- Marj ing time, Commission testified deeply quested involved in the members of the Board that Kerner had been accuracy racing May- reports determine the allocation of dates to According Bradley, Maywood’s insolvency. he wood. to had arranged been contacted Kerner who successfully Kerner ran for meeting May- they which discussed a governor. Everett reelection as Mrs. Kerner indicated that wood’s future. $15,000 a to his made cash contribution Maywood had become and had insolvent campaign delivered Miller which was by “wrong people.” been taken over again question to Here Kerner. Bradley But with took issue Kerner’s propriety raised as to the of the contri- Maywood’s characterization financial bution. asserting condition, that, fact, it was dispute In late a arose second being reputable family a run was racing over allocation dates. process in the renovation. substantial Trotting Association, Egyptian one of Despite remarks, these Kerner ordered Washington tenants, Park had CTE’s Bradley to “cancel the dates” that tentatively the same fall been allocated Racing Harness Commission had set for the 1965 season that it had dates Maywood aside for the fall of assigned year. previous . been These reassign Sportsman’s and to them to highly late fall dates desirable Washington Park, Park and latter days on since included there which CTE, division of controlled Ev- Mrs. competition thorough- be no from adamantly Bradley erett. When refused racing. Clyde Lee, bred Executive this, responded: “Well, Kerner do Egyptian, Director of testified that aft- Tom, now an order.” this is hearing Egyptian’s er rumors that dates Bradley that, testified instead might, Maywood fact, be awarded to obeying order, he Kerner’s chose to hold meeting arranged he with hearings Maywood’s and audit books. meeting, Kerner. At this he told Ker- emerged picture which from the ner that while he did not want to exert hearings Maywood and audit was that pressure ap- governor, on the he would racing was entitled to the fall 1964 dates preciate retaining Egyptian’s the late tentatively assigned that had been it. A According Lee, fall dates. Kerner ac- transcript hearings was sent knowledged that he in the middle “was Kerner, who refused to meet with Brad- thing probably and would have to ley requested resignation, his make the decision.” shortly was submitted thereafter. Lee testified he was not satisfied stand, When Kerner took the he dis- response with Kerner’s and flew down puted Bradley’s Maywood account of the Everett, Florida to see Mrs. had who having incident. He denied ever had company, CTE, direct stake since her private meeting Bradley or or- Washington leased Park race track dering reassignment dates Egyptian percentage received a Sportsman’s Washington Parks. of the handle. told her Lee about After meeting did admit he governor, with the conversation Mrs. spring in the of 1964 with the entire immediately Everett contacted James Racing Commission, Harness and that at Hayes Egyp- told him she wanted meeting question Maywood’s tian to retain the late dates. But fall probable insolvency had been discussed. Hayes hospital mean- He May- testified that his concern over while active member of insolvency prompted by wood’s re- commission, Murphy, three-man Walter ports concerning from several sources taking steps award the dates poor its financial condition and he Maywood. reports proved feared that if these true then Illinois would lose revenue Murphy eventually ob- Kerner, came to see tained in the form of complaining Hayes a share of the take get that he could not Maywood’s operations. sign re- awarding the orders the fall having that, if he recall he that could tified indicated Kerner dates. Lynch. Miller, approve Powell, and Lee, with again, Hayes in fact met would tried cross-examination, Additionally, he Murphy Kerner’s followed orders. he, fact, supported Hayes, been had had that in as stated

instructions original accepting Although Egyptian legislation, agreed. promised, re- when get specific it had watered-down version dates did not original legisla- additional clear that six harsher quested, allocated it was pass He which, course, increased tes- dates, meant tion would Senate. of throughout stand, took the tified that he had Kerner insisted When revenues. legislation resulting dealings any there be some of that denied he recollection racing. allocation in an in from in the increase revenues or involvement Lee with racing Egyptian. admit- He to dates August signed Kerner into of 1965 Murphy, having spoken but tes- with ted abolished the Harness law a bill which suggested merely he had tified that Racing proved Commission, had change posi- might Hayes him that Bradley’s Thomas so troublesome under again. approached denied He if tion Racing chairmanship. place, In its personal in the mat- involvement further given jurisdiction over both Board was ter. thoroughbred racing and and harness Among expanded to seven members. by legislation approved In 1965 enlarged appointed to the Board those Representatives the Illinois House Miller, chairman, as and Ernest were 1187) de- (Bills which was origi- McKellar, both Marsh and Donald signed at the state revenues increase appointed by nally the Board Kerner operators, in- expense track of race beginning term on the of his first at creasing receipts thor- from the state’s Also recommendation Mrs. Everett. Racing oughbred racing. and harness appointed members were Crowdus as including Everett, interests, were Mrs. Baker, Roy Tuchbreiter, P. Charles opposed On strongly to these measures. Apart Murphy, Sr., and Kenneth Clark. Lee, according Clyde he May Clark, names from all the others were Powell, Kerner, the Sec- Paul met with suggested he Miller after Kerner Illinois, retary then of State had with Mrs. Everett had discussions Lynch, Mrs. Ev- Senator William State Indeed, both and Isaacs. Tuchbreiter attorney. shown Kerner was erett’s with Baker had earlier been associated prepared ac- Mrs. Everett’s schedules affiliates. CTE its legislation indicating countants might on cer- a disastrous effect have An Illinois law enacted racing companies. Lee tes- tain harness (1965), prohibit- Rev.Stat., Ch. 37al he would tified that Kerner stated that Racing ed members Board [them] “and let consider matter maintaining interest harness long something.” after, Ker- Not know racing company. Miller, Thus as chair- Miller Isaacs. ner met Miller and Board, man of the found himself late suggested legislation involv- alternative having dispose position in the racing ing impact on the severe less 50,000 which had been shares CHR agreed companies. Kerner and Isaacs company’s to him the forma- allocated original legislation 28,000 Eventually tion detrimental the state possession shares into the came sup- associations. Miller’s active With 50,000 CHR Isaacs and Kerner. legislation lobbying, port and revised hands shares had into Miller’s come significantly enacted which reduced extending through a series of events originally contemplated by burden the Il- Knight Joseph in- back 1962 when Representatives. linois House of formed Miller he “his friends” signed the bill into law. displeased they had not been examination, disput- track as offered race stock On direct interests legislators. relayed many Miller ed Lee’s account of events. Kerner tes- had Everett, given message Everett message, in the Mrs. who Isaacs’ Mrs. something 50,000 would do commented that she summer of made available possible. ob- shares were about it soon as of CHR. The shares engineering split stock CHR tained time, At the Mrs. Everett most objections chair- over the man, board single up tied in a her shares of CTE protested Spiegel, Modie who pledged 2,000 certificate as collat- share in a letter to his interest dilution of on Bank eral at the First National com- he also in which Mrs. Everett re- multimillion loan. CTE’s dollar She plained he had “informed that been tempo- permission from the bank ceived imperative to have receive was others rarily con- to 50 shares on withdraw get in order to CHR its stock [CHR] eventually dition that she return [racing] dates.” February 8,1966, 25 share them. On two attorney, sent to her certificates were acquisition of the To finance the long Lynch. after, toward William Not secretary, stock, had Miller had his February, with end of Miller met Mclnturf, $20,000 to Faith a check draft golf in- Isaacs on a Florida course and Ralph Atlass, who been had chosen him were formed the CTE shares to nominee for Mill- Mrs. Everett Lynch's ex- Isaacs available at office. receiving 50,000 Upon er’s Mill- shares. pressed satisfaction, indicated that but check, deposited it, er’s drafted Atlass he quences. look into the tax conse- wanted to $20,000 check and delivered own for secretary. Bell, it to CHR Albert Atlass In with March met Isaacs voting received a trust certificate for Knight again arrange acquisi- to for the shares, CHR stock at the time 50.000 being Knight tion of the told Miller stocks. voting entirely held con- trust however, shortly thereafter, that neither trolled Mrs. Everett. On termination he nor had cash to Issacs sufficient single trust, of this Atlass received a complete sug- Miller transactions. share certificate which he 50.000 presented gested Knight secretary, see his May 6, to Miller on Mclnturf, arrange Faith to a “loan.” day, Knight That same Miller called Knight contacted Mclnturf and a request- told him that the had shares he $40,000 arranged. “loan” was Knight, however, ed were available. unprepared pay to August them. The Miller, Knight On pursuant Knight’s sug- agreed, two George Schaller, and Isaacs met with gestion, open that Miller would num- attorney for Mrs. Everett’s prises. Schaller, on enter- Co., bered account at Sincere a bro- & Ev- behalf Mrs. kerage #206, account, This house. erett, tendered to Isaacs the two 25 $4,800 Knight credited with he, Schaller, share certificates that 12,000 stock, shares of CHR Lynch. received from turn, In re- 38.000 William #208, shares went into account which promisso-. Schaller received Isaacs’ Knight’s Immediately account. ry note and two checks. The note was thereafter, 1,000 CHR issued twelve backdated to November promised 26,000 share and one certificates share pay $50,000 simple at 5% single replace 38,000 certificate to pledged interest. The CTE shares were share certificate. given security. The two checks payable made Ev- Schaller were to Mrs. long January 1966, not after the personal erett and drawn Isaacs’ ac- new certificates had been delivered $8,958. $50,000 count in the sums of Co., CHR to Sincere & Isaacs informed presented $8,958 “in- check as that “the old Miller man and I are irri- although according terest” Ever- Mrs. delay receiving tated about she had ett never with discussed a loan Marj’s promised [CTE] stock.” Miller Isaacs or Kerner. Schaller marked paid gave contact Mrs. Everett at once. When note it to Isaacs and the $5,600 given check to to Miller. 1966 issued certificates CTE eventually reached check was worth cash. of CTE time a share At this proceeded pur- use it Isaacs who $6,000. Bank cashier’s a Civic chase Center Isaacs, request of Miller and theAt for the amount made cheek #358 same Isaacs, after sent Everett Mrs. Knight. payable to the reverse side On August meeting, letter, backdated receipt check, cashier’s for the purported November of W.P.T. Isaacs wrote: pchse. “O.K.’s % purchase shares of 50 to confirm Chicago Har- 11/12/62 per $1,000 The letter CTE at share. Trott, by P. ness substituted W. hold stated that Mrs. Everett would resulting agreement from error fail- note to Isaacs’ shares as collateral for according purchase shares ure to W.P.T. 5%, bearing $50,000 interest her for agreement 1962.” Isaacs to of Nov. 15, 1966. and due on or before November together $5,600 and check added his own given to had The funds which Isaacs deposited in these two checks were in come for the CTE had Schaller shares Knight’s account, reimbursement for large part $40,000 Faith from the Knight $11,200 outlay had de- which an Knight. Aft- “loaned” to Mclnturf had posited more earlier than two weeks Knight depositing er check Mclnturf’s Miller’s account and Sincere & Co. amount had drawn a check for same the 28,000 price equal to was the deposited payable the Isaacs. to Isaacs and to Isaacs Ker- CHR shares allocated Knight ac- $40,000 from to his check ner. $5,000 check to cash count as well as a Later, 14,000 the share certifi- two slip deposit ac- from Kerner. On the and Kerner cates destined for Isaacs typed: companying check, Isaacs to were transferred from name Sincere’s “Repayment payment to TJI of advance Knight. early October, In that of Knight owing CTE, to TJI is balance George and re- wrote Schaller July $20,000 plus interest from at 5% quested he nominee because become 15, 1966.” Knight Knight’s poor health. own $45,000 to the In addition letter who the did not mention in his Knight checks, and Kerner Isaacs con- were, but Schaller beneficial owners $5,000 to cov- funds tributed his own agreed upon Mrs. Ev- to act as nominee given $50,000 er check to Ever- Mrs. request he do so. erett’s The other ett for 50 shares of CTE. and CHR In the fall of CTE given by check Isaacs to Schaller racing applications dates filed for 1967 $8,958 payable Everett, for to Mrs. applications submitted with IRB. CTE represented interest on the fictitious subsidiaries, Arling- its on behalf of two pay- and the loan. No interest was due Washington jockey Park ton Park gave appear- ostensibly ment thereof application Mrs. Everett clubs. On legitimacy to note. ance of the backdated 2,000 CTE was listed as the owner $8,950 from Ker- One-half of the came although shares, Kerner, in Isaacs erroneously originally ner sent it to who beneficially fact, owned 25 these each Miller, who Mrs. Everett. She called application Similarly, CHR’s shares. represented for to him told her to send the check 38,000 owned that Schaller transmittal Isaacs. Later although shares, and Kerner were Isaacs Everett, form to Mrs. sent an IRS 14,000 each the beneficial owners payment reporting the him. interest These statements were those shares. (The mailing the basis of this form is though page on which even made VI, Fraud one the Mail Count holdings appli- notified were listed counts.) cant that Holdings indicated, Dummy turn now the manner which must be We owning generated pay parties equity $40,000 order the real July 19, off therein must stated. the Mclnturf “loan.” On also be granted requested dates terest These thereon. cheeks were de- posited CTE CHR on Isaacs, the basis of their Kerner and Mclnturf reports. accounts, inaccurate respective in their with the check to Kerner then sent his bank to February CHR declared a 20^ depository (This a central bank. per dividend, share so that Isaacs and charged basis for mail fraud $2,800. Kerner each became entitled VIII.) Eventually Count all three Knight requesting wrote Schaller through deposited checks cleared “pay he such dividend to the true own- Louis, Federal Reserve Bank Mis- St. identity thereof, ers whose I have dis- (These souri. transactions are basis orally.” you according Isaacs, closed to Act, violations of Travel 18 LhS. testimony, shortly to Schaller’s thereaf- charged III, IV.) II, C. in Counts ter him and visited told him to write personal checks, payable two obligation one still had Mrs. Everett Isaacs one to Kerner. After in- return CTE shares First forming Everett, deposited originally Mrs. Schaller National Bank where the two dividend 2,000 checks in his part account been share col- held as and then drafted two checks each in the lateral on dollar loan. the multimillion $2,800 payable amount of The First Bank authorized her National Kerner. depos- exchange shares, These 10,000 checks were then also held BJC by ited Isaacs and by Kerner in collateral, their ac- the bank for 50 out- as (The mailing by counts. standing CTE shares. was a thor- BJC deposit check for oughbred racing was the basis company for controlled IX, Fraud.) Count CTE, Mail Everett, Mrs. Miller and and ran its Miller meets as a tenant of CTE. Miller, later, Two months who had exchange .agreed and Issacs CTE stepped position down from his as beneficially shares and Kerner Isaacs long- Chairman IRB, was asked a May 10,000 owned for BJC On shares. friend, Joseph Becker, time whether he exchange place. 1967 the took any knew of race track stock for sale. put BJC shares in the name were proceeded arrange Miller a deal again Knight, acting nominee for once as whereby Becker and his brother would Isaacs and Kerner. purchase 28,000 CHR shares of held gained Miller had control of CHR. by Schaller as nominee for Isaacs and company With funds obtained from the Joseph Knight’s Kerner. At direction acquire he was able on June express approval, and with Isaacs’ controlling in As interest BJC. chair- agreed Schaller to sell the stock to Committee, man of BJC’s Executive he Joseph Beckers. Becker directed application racing submitted an for 1968 secretary, Mclnturf, Miller or his Faith Racing dates to failed Board which $28,000 payable to draft two checks for to reveal Isaacs’ and Kerner’s beneficial May 17, to Schaller. On these checks ownership stock. BJC On basis presented were to Faith Mclnturf. misleading application, of this the Rac- eventually them, depos- Schaller received ing granted applied for, Board the dates personal ited them in his account and sending acceptance a race date form to personal payable then drew two checks (This Miller on November Knight Joseph and them delivered mailing the basis of the mail fraud Isaacs. Isaacs delivered the checks to charged XIII.) in Count Knight deposited who in them his ac- steps checks, subsequently count and Miller then issued three one took to ac- payable quire $7,000, to Isaacs one for to Ker- Issacs’ and BJC shares. Kerner’s amount, $300,000 ner for $41,642.- Faith Mclnturf drafted a CHR same and payable repay- 48 check to Faith check dated Mclnturf as March 10,000 $40,000 advance, Knight, ment for in for her earlier return BJC August beneficially which owned the defend- had enabled the 1966 ac- shares Knight quisition shares, plus check in of the 50 CTE in- ants. endorsed this Isaacs, gave who ar- and had then had a value of it blank and Bank, respectively. $28,000 $150,000 Ac- ranged Civic Center cording negotiate government, was, these had attorney he whose although endorsement, were thus as or- been bribes and taxable an without procedures. dinary in At the contrary income trial the bank to normal government expert check- tax $135,000 in his testified deposited receipt ain treatment of the items as the ing similar amount account opened bribes, ordinary checking in- for Ker- and hence taxable as account new $15,000 in a each in come in tax defi- deposited result he Then ner. ciency $83,000 savings accounts, he had of over for Kerner new two (Count $87,000. for Isaacs of over XVI opened himself and Kerner. charged income tax evasion Kerner with these transac- all The end result Count violation of U.S.C. 7201. had Isaacs and tions was charged him with false statements XVII gained divi- $159,800 from sales each return in violation of U.S.C. § only pocket each out of dends 7206(1). similarly charged Isaacs was $15,079. XIX.) in Counts XVIII during per- shows The record In her tax return for Mrs. Ever- competitor of Mrs. question iod long-term capital claimed a loss on ett racing dates. Everett lost of the 50 CTE After the sale shares. gain of the additional in dates was that begun investigation IRS Egyptian, of her days a tenant six enterprises. return, her her disclosed she from horse revenues State knowledge which had transactions million from $19.6 increased provided her records. occurred During the in 1968. million 1961 to $40 ensuing investigation, Kerner, enterprises period Everett’s Mrs. same governor resigned who had eventually disposed of flourished. She office a States Circuit take as United racing interests, which she her Illinois Judge Circuit, the was visit- for Seventh by taking in million, bonds at valued $20 15, 1970, by chambers, July on ed in his Industries. and Western Gulf agents special told him who IRS two investigation year he under criminal the that was return for In his tax violations, gave acquired him and reported had for income tax he that Isaacs warning. Agent July “Chicago Stuffle- Co.” on the Miranda 14,000 of shares identify the had to “Chi- $5,600 and sold asked Kerner of beam at a cost cago $28,000; on the 1967 return. Co.” listed May for on the stock acquired a financial insti- 25 shares Kerner said that was had and that he tution, purchased for the stock “Bajo that he had November Co.” on May 12, broker, and of his that on on the advice $25,000 them and had sold Brown, the Isidore cor- $150,000. his, for friend of In his return 1967 for porate that reported he The facts were Chi- that officer. year Kerner tax “Chicago cago privately owned, that Ker- 14,000 Co. was acquired shares had stock, of its $5,600 had owned July and ner never 1966 for on Co.” never been May 25, $28,000. Brown had that Isidore for and them sold on company. Kerner that reported involved with item identified an Kerner also Chicago agents Exchange 5,000 the Co. Bal- told the that also Co. for C.T. as “as Chicago refer to did not acquisition of No- transaction date moral” with an Racing Company that his and $25,000 a sale Harness 1962 for vember racing involv- (These in stock $150,000. May 12, for transactions date of ed transactions. these the CTE-BJC treated and Kerner each Isaacs gains. Count for long-term capital The formed the basis statements items as making charged XV, government however, which asserted, in violation 18 U.S.C. statements false referred to were CHR items in acquired had been 1001.) CTE stocks grand jury government After the federal com- XII. Summations investigation menced its of Illinois rac- counsel. ing operations, requested ap- Kerner to pear. During lengthy testimony his in jurisdiction The I. court district specifically June he order- denied try judge upon to an in- federal prior ing Bradley Maywood’s withdraw to dictment to removed from of- racing dates denied conver- impeachment. fice regarding Egyptian sation with Lee Cir- became a United States (Count XIV, perjury dates. Judge for the Cir- cuit Seventh Judicial count, is be- based on these statements xv, May on cuit F.2d grand jury.) fore conspiracy still The holds office. period beginning above, prior count covers a As stated testified continuing length behalf, explained 1961 and the date his own return of overt the indictment with one transactions, version of the various per- specifically accepted act related to conduct denied he jury anything count cover deprive peo- bribe or did 1001 count occurring ple right matters after he honest, took office as Illinois of their good government. judge. a federal All other relate did not testi- counts precede fy. offenses that event. relation to With the income tax counts, the defendants showed that their question is whether a court has prepared by tax returns were ac- their jurisdiction try judge upon a federal countants on whom relied. In addi- an indictment before his removal tion, fifteen character witnesses testi- impeachment process. office fied for Kerner. point trial This raised presented court and time first principal points presented re- appeal. on this view are as follows: F.R.Crim.P., 12(b)(2), Rule jurisdiction I. The of the district objections provides that defenses try judge court a federal institution of the based defects upon prior indictment an prosecution indictment, other from office im- removal jurisdiction or than a failure show peachment. charge offense, may mo made Sufficiency II. the evidence made, and, are tion before trial if not bribery. jurisdiction of thereafter waived. Lack Validity III. of the convictions un- during any may be at time noticed der Travel Act counts. pendency prosecution. The first problem Validity are IV. of we concerned the convictions un- is whether subject-matter personal jurisdic der the Mail Fraud counts. or may jurisdiction be Personal tion. Validity on V. of the convictions challenge sub to but waived failure conspiracy count. may ject-matter jurisdiction not. Sewell Validity VI. of Kemer’s conviction Cir., 1289, States, 406 F.2d v. 8 United perjury under the count. Cir., 1292, States, 1 v. and Pon United Validity VII. of Kerner’s conviction 374; 373, Ford v. F.2d also 168 see under false statement 593, 606, 47 S. 273 U.S. count. 531, Ct. 71 L.Ed. 793. Questions relating joinder. VIII. argues provi Questions relating IX. to severance. I and of the Consti Articles II sions (cid:127) Miscellaneous, including ques- X. relating impeachment provide tution regarding tions admission removing judge means evidence. and, on office, conviction from because charge jury. charges re- XI. The criminal is tantamount Supreme Court, office, in the are the first time federal courts moval Swan, person. Mansfield, M. v. C. & L. R. Co. jurisdiction over without 379, 510, argument 382, 4 L.Ed. is U.S. S.Ct. for the The real basis 462, City of v. Brown privilege Gainesville im constitutional claim of a Co., 54, goes power Crummer Investment 277 U.S. munity. claim That 59, 454, 781, held pertains act, S.Ct. 72 L.Ed. hence of the court to Cooper on the constitutional au jurisdiction. v. the attack subject-matter thority judges heard should be 308, Reynolds, 10 Wall. though 931; even not raised in the trial court. 316-317, Binde 308, 19 L.Ed. U.S. Inc., at 1459. Exchange, U.S. 82 S.Ct. rup Pathe v. 308; 291, 305-307, 44 68 L.Ed. S.Ct. challenge on Kerner’s is nonfrivolous v. Mutual Ins. Co. Farmers Elevator grounds. It relates to the constitutional Sons, Inc., 8 Austad & Carl J. power of the court hence to act and is 11; Exploration Co. Coast F.2d West subject-matter jurisdic- concerned with U.S.App.D.C. McKay, tion, 12(b)(2), under Rule F.R. which denied 347 U.S. cert. may Crim.P., any Ac- be raised at time. 1123; and United 98 L.Ed. S.Ct. cordingly, jurisdic- we must consider the Co., Cir., York New & O.S.S. States v. tional issue on its merits. F. 66. An refer- examination textual impeachment in the Constitu- ences Zdanok, Company Glidden following. The House tion reveals 530, 535-537, 8 L.Ed.2d given Representatives pow- is the sole authority with the concerned impeachment. I, er Art. 2. The § judges special federal courts sit given power try all Senate the sole general designation in federal courts I, impeachments. Art. convic- 3. A § jurisdiction. The contention was go beyond impeachment tion on cannot under Art. special are created courts disqualification office and removal from their and hence I of the Constitution I, future offices. Art. 3. Con- to hold § judges may on Ill courts. not sit Art. impeachment does not bar on viction presented point in the trial The was not against proceedings subsequent criminal time the first raised for court but was I, Presi- 3. The Art. the offender. argued government appeal. on grant power pardons in dent has precluded doctrine consider- the de facto II, impeachment. Art. To cases of 2.§ authority judges’ for the ation of impeachment, removed from office be Supreme appeal. time on first Vice-President, President, “obviously recognized the sound Court must of the United States civil officer litigants preventing policy from abid- bribery, treason, or other convicted of be ing then the outcome of a lawsuit and II, high misdemeanors. Art. crimes and overturning upon techni- if adverse process proceeds impeachment 4.§ previously cality of which Ill, by jury. Art. without trial 535, 82 aware.” 370 U.S. at provisions, ex- do not Three other pointed However, out the Court impeachment, pressly must concern merely is not tech- that when the defect Congress are of considered. Members strong policy af- nical but embodies a during sessions, privileged from arrest administration, fecting judicial the felony, except treason, and breach of for jurisdic- Court treated the defect as has questioned for peace, may not be the though not tional considered Congress. Art. any speech or debate opportunity. raised at the earliest judges I, hold their offices Federal 6.§ at 1465. The Court Ill, good during behavior. Art. § say went “A on to is fortiori per- background of the challenge upon non- historical so when the is The based grounds.” provisions has been frivolous Ibid. tinent constitutional constitutional analyzed explored thoroughly The of Court noted that the existence di- g. Berger, Im- versity many e. See R. citizenship could considered scholars. of be peachment: permit impeachment The Constitutional Prob- sion does not ; Brant, Impeachment, lems triggers Trials and I. conduct less than that which Errors; Judges— Shartel, impeachment provisions B. Federal of I and Articles Appointment, Supervision, By and Removal II. the same token it does ex- prosecution —Some Possibilities Under Constitu- clude for crime. Protection tion, 870; Ziskind, 28 Mich.L.Rev. Judi- of tenure is not a license to commit forgiveness cial Tenure in the American Constitu- crime or a of crimes com- English Precedents, tion taking : Otherwise, and American mitted before office. Supreme 135; assuming 1969 The person upon judicial Court Review a federal Kurland, P. The amnesty Constitution and the office receive would Judges: misdeeds, Tenure of Federal Some Notes not be accountable for his History, Chicago University whenever occurred. We believe 665; Keeffe, Explorations L.Rev. that the did framers the Constitution Impeachment, the Wonderland of 59 not intend such a result. Any Am.Bar Ass’n Journal 885. reex- supported by con Our conclusion is subject by amination of this esoteric us temporaneous construction of the Consti good purpose. would serve no Congress passed tution. The First 21§ April Act of 18 U. now The Constitution does not for provided judge that a S.C. which § bid judge the trial of a federal for crim accepting thereby convicted of a bribe is inal offenses committed either before or disqualified to hold office. Thus the assumption judicial after the office. Congress members of who must have provision I, The Art. cl. provisions acutely been aware of the impeached judge “subject an is to In Constitution and debate which dictment, Trial, Judgment and Punish preceded adoption their construed ment, according to Law” does not mean permit Constitution to the removal of a judge may that a indicted and not be judge impeachment. without tried impeachment without first. The purpose phrase may Representatives to assure the House impeachment that after a trial on Attorney crimi referred to the serious General charges nal against judge. charges foreclosed territorial a principle jeopardy, may of double Attorney judge or it ruled that General provisions be to differentiate the information, prosecuted by in- could be English Constitution from prac impeachment. dictment, Shartel, or See impeachment. tice of Berger, supra supra, R. at n. 40. The fact that citing 78-80, at 1 Wilson, J. judge Works 324 question I, an Art. rather (McCloskey ed.); Cong. 14 Annals of Ill, judge provide than an does not Art. (giving (1805) interpretation persuasive They distinction. are both Martin, clause L. member Attorney civil ad- officers. The General Convention.) the Constitutional judge vised the House that prosecuted by information, could be indictment, provision Ill, of Art. impeachment and recommended infor- judges that federal “shall hold their Of cheaper mation or during good indictment as and eas- fices Behavior”, which had (cid:127) recognized ier. The took House no action on the At- meaning common law torney report. General’s accompanied at common law procedure effectuation, Congress 1802, by its Jeffersonian serves as a limitation on repealing Judiciary tenure of the 1801 Act judges. Berger, supra federal throwing midnight R. thereby the so-called 125-128. No clause in judges office, the Constitution out of con- did so meaning. is without Marbury premise v. Madi stitutional it could remove son, 137, 1 174, 137, 174, Cranch judges. Marbury 5 U.S. The fact that after v. 60, 2 L.Ed. Jennison, Madison, Holmes v. 137, 14 137, 1 Cranch. 5 U.S. 2 L. 571, Pet. 540, 540, 571, gave 60, judges U.S. up 10 L.Ed. Ed. the and never 579. The provi- inclusion of the proves tenure sued to retain offices noth- their vio- interesting found no constitutional that this reversed ing. fact is The 520, said, at The Court U.S. Congress lation. it did. early acted as at 2541: S.Ct. history, the Turning pages of Su- the appellee sweeping of claims The decision, an 1882 preme said in Court -Congress of render Members 196, 220, Lee, 106 v. U.S. States United range virtually immune from a wide S.Ct, 171, 240, 261, that: 27 L.Ed. simply acts in of crimes because the high country is so in this No man question peripherally related to No officer law. he is above that holding claims are their office. Such defi- may law at that set the law of reading with the inconsistent impunity. officers theAll with ance given, not Court has highest government, from the of the Speech Clause, Debate also or but law, lowest, of are creatures legislative privileges the other embod- obey it. and are bound I, ied 6. in Art. § power only supreme in our It is the 606, Gravel v. United 408 U.S. every government, system man of 2614, 583, con- S.Ct. 33 L.Ed.2d accepting participates office who validity subpoena cerned with the a only the more in its functions requiring the assistant a Senator strongly to that su- to submit bound appear as a witness before a federal the limita- observe premacy, and to grand jury. The Senator intervened and imposes upon the exer- it tions which asserted violation constitutional gives. authority cise privileges. With reference to Free- States, 202 U.S. Clause, said, Burton In v. dom from Arrest the Court 1057, 688, 344, L.Ed. Unit- 615, S.Ct. at 2622: 408 U.S. at S.Ct. among convicted, ed Senator was States is, sufficiently plain therefore, It having things, a bribe taken other that the constitutional freedom from U.S.C. of what is now 18 in violation exempt arrest Members does argued conviction would He Congress operation from the of the expel that un- from the him Senate though ordinary laws, criminal even Senate der Constitution imprisonment may prevent inter- or expulsion. re- power Court sole performance their du- with the fere ap- quoted jected contention, * * * Indeed, ties as Members. Lee, and proval v. from United States scope implicit of the narrow principle of found no violation is, privilege of freedom arrest powers. separation of judgment noted, Jefferson ought legislators above stand v. Judicial Council Chandler general- ought they law create but Circuit, 74, 90 S.Ct. Tenth 398 U.S. ordinary ly it as are Doug- bound be 1648, 26 Mr. Justice L.Ed.2d Ibid, persons. dissenting opinion, in his las said they "If Littleton, [fed- at 1682: at 90 S.Ct. Finally, we have O’Shea law, judges] can eral break 94 S.Ct. 38 L.Ed.2d prosecuted.” in his Black Mr. Justice January decided Ibid, said, at gener- language dissent although Court, its “ * ** judges, oth- like dictum, perhaps on the touched al convicted, pun- tried, proc- people, judges can be vulnerability criminal * * ess, said, crimes ished for 94 S.Ct. 669, 680, L.Ed.2d 674: Brewster, 408 U.S. In United States * * * held that have never we 33 L.Ed.2d judi- performance charged duties of 201 viola- with a Senator officers, cial, legislative, executive held or The trial court tion. contemplates precluded requires immuni- crim- Speech or Debate Clause depriva- Supreme criminal prosecution. zation of otherwise Court inal indictment, rights. proof, Ex of Cf. such as burden tions of constitutional parte innocence, presumption Virginia, L.Ed. which a and of 100 U.S. co-equal jud- contrary, prosecutor face. With (1879). the must theOn potential government, ieally im- of the of offical of branches doctrine fashioned any of munity as to one them inherent. reach abuse is ‘so far does system However, bal- proscribed the of and checks criminal conduct immunize by * *' * ances, press, public Congress resent- a free an Act of attempted any ment toward domination Gravel United guaranteed preserve in- all work to the 33 L.Ed.2d (1972). dependence of each branch. argument the On the basis of the text of the Kerner’s claims, sup Constitution, background, privilege is not its contem he its any construction, prag poraneous ported precise used in and the “the words consequences provisions case, surely prior not on of the sense matic its Brewster, cases, impeachment, fairly read.” we are convinced that of those subject judge 516, 92 to indictment S.Ct. at 2539. We federal is impeachment that immunities or that trial before conclude privileges whatever try jurisdiction the Constitution confers the district court had assuring independ purpose of defendant Kerner. govern- co-equal ence of branches Sufficiency . Brib- II. Evidence exempt ment do not the members of of ery. operation those “from branches ordinary criminal laws.” Criminal question the evi- A is whether basic part necessary is not conduct dence to show the transac- suffices performed public functions officials. improper question were for the tions for that conduct will not in Punishment influencing purpose conduct. official legitimate operations terfere with charges agree- conspiracy The count government. Historically, a branch of by the Act ment to violate the Travel impeachment process proven has use of interstate facilities distribute fraught politi be cumbersome proceeds bribery, and to violate cal overtones. believe that inde We by the the Mail Fraud Act use pendence judiciary is better aof furtherance States mails charges against served when criminal its to defraud the of Illinois scheme State members tried in a are court rather right have citizens of their its Congress. trial, than in With a court and execution of its the administration judge given protections is assured of the corruption laws free from and fraud. charged to all those with criminal con The tax on the counts are bottomed duct. The are heard a calm issues theory that received ordi- defendants subject and reasoned manner and are nary income in the form bribes rath- presumption the rules of evidence, the resulting long-term gains capital er than innocence, safeguards. and other 408 from business investments. 519-520, U.S. at 92 S.Ct. 2531. say The defendants the stock argues trial and convic- acquisitions legitimate business judge tion of a federal frustrates any attempt transactions unrelated separation powers concept because the official conduct and their influence executive prose- branch would indict and proprie- conduct was within the realm of cute. Constitution ty. government makes all “civil contends, subject impeachment. officers” jury found, its verdicts must have issue, then, is whether civil officer that the evidence that Mrs. established subject pre-impeachment indict- Everett and Miller offered the stock presents separation ment. prob- This intent, corrupt with a that Isaacs and points lem. out, Brewster 408 U.S. at Kerner received stock with knowl- n. barriers, edge intent, of that and the result was influencing the 1966 Isaacs note con- Everett is official Mrs. improper the admittedly letter, which were Everett duct. sup- frail to and furnish backdated Act, U.S.C. Travel ordinary port of an busi- the claim to any facil use it unlawful to 1952, makes to camou- The effort transaction. ness ity to distribute commerce in interstate by payment flage the transaction the activity. proceeds unlawful of an the a note discredits interest on fictitious phrase defined include is latter legitimate of a business trans- the claim laws of the bribery in violation the action. The indict committed. in which state finding a that an The record alleges bribery of Ill. sustains in violation ment is that offer was It not contested made. Rev.Stat., 33-1. Subsection Ch. shares, bribery property, the ac- 50 CTE (d) provides occurs that 33-1 quired public worth. accepted by fraction its true property is when brings question knowledge to the of the in- This us is offered that it with official knowledge of performance tent of the offeror and the the intent to influence position. offerees of intent. public the that Miller testi- act related to his contemplated fied that he made the offer with stock particular No by act need be “to intent cause him contin- [Kerner] There is offeree. the offeror upon ue favorably to look Mrs. Everett bribery is with intent if the offer made enterprises.” her favorably Before offer to the of act that the offeree signed legislation People had necessary. Kerner which v. See when feror possible 809; operations. the CTE Aft- Woodruff, made N.E.2d Ill.2d offer, approved legislation sup- er the People Rizzo, he 29 Ill.2d 194 N. cf. ported by Lapham, Mrs. Everett and others inter- E.2d Commonwealth racing. ested The evidence N.E. estab- 156 Mass. regulato- appointments lished that they that Kerner contend approved ry by Everett and bodies Mrs. purchased 1962 at stock stated governor by were Miller made Kerner as price; pledged that the col- stock was appointments and that were made lateral for loan and could not be deliv- men of whom Mrs. and Miller Everett immediately; paid ered and that disapproved. Kerner’s involvement agreed purchase price when the racing May- the allotment of dates to ready delivery stock was in 1966. competitor wood, a of the Everett enter-' Alternatively, they claim if No- prises, Egyptian, and to a tenant of 9, 1962, was not a bember transaction enterprises, gov- those is established option buy, sale then it is, an ernment witnesses. legal commitment Mrs. Everett sell stock them at the men- evaluating the contentions of the price. tioned parties jury entitled consider relating denied the November CTE, facts BJC conversation with Miller relative to the CHR These carried were transactions. meeting through stock offer. He admitted the on the issuance and transfer of Indeed, with Miller. corporate shown in Ker- stock the names of nomi- diary. nels nees, exchanges Kerner testified that of checks which on only purpose meeting towas learn at least one occasion involved a check racing from Miller the cash, dates $300,000 the use of the check to es- year. been scheduled for the next bank tablish accounts without the en- evidence was final depositor, dates dorsement the use of meeting until brokerage scheduled a board accounts, numbered the back- dating November If letter, stock offer was of the note and the ficti- discussed at November 9 meet- payments, tious interest and the in- IRS ing, then for the defend- showing basis formation return ants’ claim of a 1962 payment commitment interest to Mrs. Everett (3) promote, manage, she entitled. was not The defense otherwise establish, explanations carry are not on, these activities or facilitate the convincing. promotion, management, establish- ment, carrying on, any or of unlaw- stamp Significant places evidence the * * activity, ful *. bribery When of on transactions. the per $1,000 CTE offered at the stock was government’s proof sup The $2,500 per share, it worth share. porting jurisdiction federal on Counts CTE the time of transfer of the At stock, the II, III and IV rested on evidence that exchange BJC for the its checks, Joseph Knight by three drawn stock, $6,000 the CTE was worth stock account at the First National per share. was sold The BJC stock Illinois, Alton, Bank of to distribute $300,000. none Isaacs and ran proceeds bribery the some of ordinary the in busi- of risks inherent Isaacs, to scheme Kerner and had cleared comparatively min- ness affairs. Their through the Federal Bank in Reserve St. camouflage outlays iscule cash served deposit by as Louis, Missouri, the re after complex to conceal the true nature of the cipients Specifically, in Illinois banks. activities. $7,000 Count II involved a check drawn by payment in and received Appeals The of does Court the CHR III sale Count con stock. weigh retry case, evidence, the the $7,000 cerned second check drawn to credibility or determine the of witness payment Kerner in for his CHR shares. Miles, Cir., v. es. United 401 States 7 Count IV based on the of a clearance jury F.2d The verdict of the 67. $41,642.48check Mclnturf Faith as re if, taking be must view sustained the payment loan, for her which had enabled government, favorable the most sub Isaacs and obtain CTE stock. stantial evidence and reasonable infer government that support maintains the ences therefrom the action of passage checks, by jury. three either these States, the Glasser United express, truck 680; or air across R.E.A. U.S. S.Ct. L.Ed. Mississippi the River into Missouri from Zimmerman, and United States represents sufficient interstate Illinois F.2d are that 3. convinced We activity support and Kerner’s Isaacs’ the evidence is more than sufficient violating convictions for 1952. beyond § establish the a reasonable doubt defendants, hand, on the other contend bribe, acceptance offer of a the requires that a more substantial offer, corrupt offerors, § intent of the showing of use of interstate facilities as knowledge by in offerees that alleged necessary un- element of the tent, receipt property of valuable activity. lawful low, For reasons which fol- offerees, actions the offerees conclude the use of inter- we that favorable to the offerors. minimal, in- state facilities here sowas fortuitous, peripher- cidental, and and so Validity III. the Convictions under Isaacs, Kerner and al activities of the Travel Act Counts. bribery participants other Issaes and Kerner were found scheme, that it was error to submit guilty, charged II, Counts III II, jury. III and Counts IV to IV, violating 18 U.S.C. § Supreme spoken Court has Act, alia, prohibits, Travel inter primarily scope in Rewis v. of § the use of U.S. any facility foreign or interstate holding 1056, 28 L.Ed.2d In including commerce, mail, in- gambling operators of a Florida es- tent to— n prosecuted un- tablishment could (1) proceeds distribute der the fact reason of * * * activity; unlawful their travelled there some of customers juris- emphasized Georgia, federal and state criminal tween the Court traditionally enacting In sensitive Congress intend- diction. legislation affecting organized areas, at such as primarily to strike ed balance, requirement operations and federal crime’s interstate legis- that the clear statement assures desire there faced, intended lature has in fact relation- federal-state alter sensitive bring issue, the critical mat- into * * * limited ships, overextend judicial * * * involved decision. ters resources, police federal Rewis, accept declined an ex- we in which produce situations [or] interpretation pansive the Travel customers, origin geographic at Act. 404 happenstance, would trans- matter of offenses relatively state form minor Circuit also Decisions Seventh 812, at argument 401 into felonies. U.S. support federal to lend defendants’ activity 91 1059. S.Ct. in this case that interstate trigger inadequate to 1952. The was § the de- that to hold The Court concluded decisions, of these v. United States first crossing of state liable for fendants Altobella, Cir., 310, 442 F.2d involved 7 unduly by their would lines customers an in which individ- scheme an extortion power prosecute es- federal to extend the compromising photographed in ual was Similarly, sentially crimes. state situation and then threatened with dis- upheld, the be 1952 counts here to § paid he demanded closure unless the sum seriously would be federal-state balance the defendants. defendants upset. It would be the rare case where knew that the victim was Philadel- investigation enterprise in viola- pay them, phia he and that order would not some tion law disclose state check. would have cash an out-of-state of inter- incidental fortuitous use through Chicago being After cleared might then be used state facilities which to Phil- banks, this check was forwarded support prosecution. Noth- a federal held, adelphia by how- mail. court ing legislative supports history in the ever, not violat- that the defendants had reading such broad of the statute. S. court, Speaking for ed 1952. § Sess., Rep.No.644, Cong., 1st 87th U.S. noting Judge began by that § Stevens Cong. 1961, p. Code & 2664. Admin.News criminal activ- 1952 enacted to curb was Erlenbaugh See also v. United ities, racketeering, particularly extend- 239, 247 34 U.S. n. ing beyond one state and borders of 335; Archer, L.Ed.2d United States v. against ef- which local law enforcement Cir., F.2d 670. would ineffective. More than forts be with the incidental When faced task minimal interstate travel determining ambiguous alleged activity scope contem- of an criminal was Congress plated federal inter- criminal statute such before courts as § long principle S.Rep.No. adhered have vention be warranted. would ** * “ambiguity Sess., Cong. Cong., must resolved 1st be 87th U.S.Code lenity.” p. 2664; in favor of v. United States & United Admin.News Enmons, Cir., Zizzo, 411, 93 States F.2d 580. S.Ct. light this, L.Ed.2d also the court held 379. See Bass, United convictions of the defendants in 349- Altobella States v. Am- would be reversed since L.Ed.2d 488. have plifying principle, on the Court by the use of the mails bank [t]he Bass noted that through appellants’ victim’s ** * emphasized only check cleared was Term in Re- last [We] States, supra, purely appellants’ wis v. United will incidental to sordid we quick Congress purpose Their would have assume that scheme. significant equally has meant if the vic- effect been achieved well change in be- tim had from asso- the sensitive relation borrowed $100 McCormick, 7 States the hotel or written a check 1952 United ciates at § the basis 442 F.2d at wherein bank. 315. a local jurisdiction placed an advertisement apply with considerations These same in a Indiana the defendant local forming equal three checks force to the peddle newspaper lot- salesmen here. for the 1952 counts basis § tickets, though tery even lotteries violat- They, too, were incidental copies ed Indiana Some 200 to 500 law. scheme; have clear- checks which would newspaper’s the ad were mailed to through through Chicago, ed rather than the basis out-of-state subscribers. On just easily have St. Louis could been mailings, defendant was of these Indeed, for find- utilized. the foundation violating charged convicted with and ing strong- a violation of 1952 even § review, the conviction was On er in there at The defendants Altobella. ear- reversed. The court reaffirmed its least had reason to the check believe Altobella, position lier “minimal” Here, would no one travel interstate. facili- “incidental” use of interstate sup- involved in the scheme reason to ties does violation constitute pose checks on the Alton drawn through bank clear St. Louis. Lee, Cir., States v. F.2d government, nevertheless, cert. denied 404 argues present that the case is distin appeal L.Ed.2d concerned an guishable activity since the interstate from a conviction under run 1952 for § here in was furtherance a far more illegal ning gambling operation an in “serious” offense than the extortion employees regularly which two crossed although in scheme Altobella. But brib state lines from their residences in Ken involving ery concededly state officials tucky illegal enterprise to reach the in legislative crime, is a more “serious” the appeals upheld Indiana. The court of history and 1952 itself draw no dis § noting convictions, the that the record tinctions between serious insubstan by disclosed “continual interstate travel Rather, state tial the offenses. test employees illegal of the venture well as application 1952 is nature and § regular illegal activity as substantial degree activity in interstate further * * ‘thereafter’ 448 F.2d ance of the state crime. however, Lee, contrast with here the de government suggests responsible only also fendants were three may distinguishable that Altobella be on checks written in furtherance of the ground activity bribery the interstate happened scheme and which brought in by that case was about be sent across state Like Mc lines. actions of the victim and not Altobella, those Cormick and there was present the defendants in the “happenstance” as case. an “incidental” or use of (cid:127) disagree. We it is travel, While true that interstate without which the signed victim in just Altobella the check that easily criminal scheme could travelled commerce, in accomplished. interstate he had have been matter; little choice his actions Only in the Fourth Circuit do find we compelled by were extortionists any support government’s posi- for the They furtherance of their scheme. were Salsbury, tion. In United States responsible as much for the interstate Cir., the court held that activity in that case as were Isaacs and cashing of out-of-state checks awith Kerner here. The determination druggist operator by local of a whether been has violated should § Maryland gambling operation supported hardly depend signs actually on who or a conviction under 1952 since these § receives a check that crosses state lines eventually checks were sent across state process in the of collection. by lines for clearance bank which druggist A month deposited Although after the decision in Altobel- them. again interpreted language la the suggesting Seventh Circuit there is some charge judge’s jury and would 1952, the facts interpretation of § broad require a support itself reversal of Isaacs’ conviction case would reading given on the three Kerner’s convictions § restrictive under the even incorrectly judge stated counts. decisions. Circuit the Seventh Salsbury activity The interstate happen- matter or a not incidental depositing repre- The act of a check gambling operation catered stance. senting proceeds of unlawful cus- large of out-of-state number bank, is, activity in a national pay prepared their who were tomers Re- the Federal bank or a member of as- only by To gambling check. debts System or a bank insured serve gam- patronage by these sure continued Deposit Corpora- Federal Insurance conduct thereby the successful blers tion, FDIC, of a facili- constitutes use activity it crucial criminal ty in commerce. interstate accepted, even checks these Accordingly, on convictions Counts eventually travel they though II, III and IV must be reversed. Indeed, the for clearance. out-of-state deposited and checks number sheer Validity the Convictions under IV. Maryland’s beyond be sent destined to the Mail Fraud Counts. inter- view that enforces the borders also convicted Kerner were Isaacs and hardly Salsbury activity in state VI, VIII, IX fraud under Counts mail fortuitous, incidental, but minimal, indictment, 18 U.S.C. and XIII of the criminal central rather was charged Specifically, 1341.— scheme. of Illinois and the State withjdefrauding deci earlier Fourth Circuit An and faithful its the honest citizens Salsbury and relied sion cited governor, of Kerner as services [failing here, v. government United States the Wechsler, the statélñ an the laws of administer 344, de Cir., cert. F.2d 4 392 prof- manner, impartial secret Obtaining 2283, L. 932, 20 88 S.Ct. nied 392 U.S. bribery scheme-im. its a result of a deposit of 1389, involved Ed.2d they participated, actively and(de- which bribery of a in furtherance check racing frauding Illi- associations that court concluded A divided scheme. right racing dates nois of obtain check, there deposits a one “[w]hen bribery. corruption On free from is that he little doubt would seem to be challenge appeal, they convictions their using facility commerce” in interstate a they vio- arguing by not have could play. F.2d 392 into 1952 comes so that § because the mail fraud statute lated agree are unable n. 3. at 347 & We charge failed indictment however, 1952, with view § this Illinois, its the State of had defrauded citizens, only use that the it because assumes “out or the associations may single crossing lines state a check something money value, of definable sug trigger 1952, also because but § Toss,' monetary' property.” Absent a or gests need not the check fiduciary maintain, the breach agree that travel We cannot interstate.1 duty here amounts which occurred regulat federally incidental use of a fraud and more than constructive .a juris banking facility ed furnishes agree. do not a violation We § a offense. element of 1952 dictional is not statute The mail fraud highly same erroneous This application to cases restricted its in the prejudicial reflected view actual victim suffered has S.D.N.Y., by DeSapio, “fa- of the term 1952’s use indicated United States v. See foreign Cir., cility 448-449, aff’d, F.Supp. 436, commerce” 435 2 in interstate or 299 foreign “facility 999, 272, or of interstate 91 than S.Ct. rather F.2d cert. denied 402 U.S. 2170, That some interstate commerce.” 29 L.Ed.2d 166. by actually required the statute is is travel 1150 g., get public

monetary property See, e. A scheme to loss. contract or S.D.N.Y., Dorfman, on more terms 335 favorable than would v. United States got grounds, likely bribing 675, 679, be F.Supp. otherwise aff’d other only public 246; Cir., v. official would not be a United States 2 Faser, plan 380, 384; bribery, F.Supp. E.D.La., to commit the crime of 303 States, but would also Cir., 5 129 scheme to defraud Bradford United 683, public. 274, 276, Id. F.2d denied 317 U.S. cert. —xthe 205, L.Ed. 547. 63 S.Ct. 87 above, As has been shown precisely what occurred here. The development, Supreme In a related citizens of Illinois were defrauded of Court made clear that a defendant has Kerner’s honest and faithful services as may conspiracy de be convicted of governor. States, 371, fraud the United 18 U.S.C. § " though government recently has not suf Seventh Circuit dealt even Henkel, with a fact Haas v. somewhat similar situation fered a financial loss. George, 462, 479, in United 216 569; States v. L.Ed. Barnow, F.2d cert. denied 239 U.S. 414 U.S. United States v. (Oct. 9, 1973). S.Ct. L.Ed.2d 61 L.Ed. 155. See S.Ct. employee States, Cir., case, In Zenith Ra also Miller v. United Corporation 353, 359, dio F.2d received kickbacks from cert. denied 276 U.S. supplier In of cabinets whom he Ham S.Ct. 72 L.Ed. 745. awarded a Zenith merschmidt contract. evi supplier 968, dence L.Ed. showed that cabinet only was the that: available source of the item Court noted time, price paid at the that the Ze necessary It is not that the Govern- reasonable, nith was fair and and that subjected property ment shall be preferential no other treatment was ac pecuniary fraud, loss but supplier corded the in return for the legitimate that its official action affirming convictions, kickbacks. purpose misrepre- shall be defeated the court stated that overreaching sentation, chicane or * * * If there was intent to de- charged carrying of those out prive employee’s] Zenith hon- [its governmental intention. loyal est and the form services in States, giving supplier] Cir., preferential Shushan v. United his [the treatment, simply 117 F.2d cert. denied is beside the point may employee] that L.Ed. it was not [the recognized (or to) that have had to had exert occasion special sup- influence in favor [the No trustee more has sacred duties plier] or that Zenith was satisfied public than a official and scheme product supplier’s] and [the advantage by corrupting to obtain an prices. F.2d at 512. such one must in the federal law There was here not evidence that considered a scheme defraud. 117 the State of Illinois citizens were its F.2d at 115. deprived loyal and honest services upheld prose- Shushan the mail fraud governor, Kerner, of their but that the cution of a par- member of a Louisiana special actually defendants did exert in- receiving ish levee board kickbacks prefer- fluence favor of and bestowed plan from the underwriters re- ential treatment on Mrs. Everett. outstanding fund bonds of the levee dis- argued trict. The Having defendant that no ac- concluded that there tual prosecutable fraud had occurred since the re- defraud, was scheme to funding operation actually profita- participation was with active and intentional ble to the Nevertheless, levee by Kerner, board. the Isaacs and we must then con court stressed jury sider whether the could find that personal ac- from CHR in his the check mailings alleged the indictment writing own check to scheme, re- count and then in furtherance of were Kerner for the same amount. As with quired by that it conclude 1341. We Knight, $7,000 re- check from find. could so ceipt payment repre- deposit of this on an form IRS VI was Count based laundering method an elaborate sented by by payment mailed notice 1099 interest conspiracy which the to defraud Everett, about on or Mrs. Kerner to could be concealed and was thus an inte- copy of which February gral part of the mail fraud scheme. Revenue the Internal Serv- sent to mailing charged The in Count claimed, government ice. The acceptance XIII letter was the race date find, jury Mrs. Everett could Racing by the Illinois Board on or sent “interest” to Kerner. The made no loan about November Balmoral deceptive reported was a on the form Jockey president, Club Harold Anderson. legitimizing the backdated method accept The in the dates awarded in 1966 presented Everett note Mrs. on ance letter had been the ba allocated acquisition of time of Kerner’s at the application by sis of a false submitted the bribe in order to make stock CTE Jockey listing Club, Balmoral purchase. It appear as a 1962 sale Knight’s beneficially name the stock mailing enough contributed that the by Kerner, owned in violation of board carrying See out of scheme. regulations The and state law. defend 1, 8, States, United Pereira v. argue mailing ants 435. S.Ct. L.Ed. by caused them therefore does not charged and IX VIII Counts support mailing their convictions. mailings related to the distribution acceptance letter the board bribery resulting proceeds from have occurred had William charged mailing specific scheme. application Miller not first sent the transmittal, in Count VIII was racing dates, which he knew was false. check, $7,000 1, 1967, about June sought obviously response ap He to his Knight of Kerner the order drawn plication from board. Since there Antioch deposited in the was evidence that and Kerner Bank, by Savings bank and Loan scheme'; participants in the collec Bank for National the American “may mailing be convicted of of a Knight to $7,000 from tion. This check . partners letter which one of [their] proceeds represented caused mailed in the to be execution broth Becker sale of stock CHR scheme.” Chambers United mailing May, ers 524; 237 F. Baker of the scheme because furtherance States, Cir., depended upon re the venture success of cert. denied 312 U.S. ceipt nominees funds laundered L.Ed. Knight, depended in turn such upon which as anything find in do not United We processes. Dis collection bank 395, Maze, 414 U.S. States v. through proceeds of the tribution CHR 645, 603, by decided the Su- 38 L.Ed.2d pro step plan in the was one nominee January 1974, preme on which Court the cash benefits of vide Kerner with any require on reversal of these bribery. case four mail fraud counts. charged that, on or Maze received the full benefit Count IX had 6, 1967, had mailed each fraudulent use of the stolen credit Kerner

about March check, divi of the in- $2,800 of CHR card before the transmittal the sum by George voices mail to the Louisville bank. his received Schaller dends nominee, “[Respond- Bank of Thus the Court said that First National Chicago he deposit. fruition when had ent’s scheme reached Schaller initially depositing motel, there out of and washed the funds checked mailing by no indication that success of Kerner, is IX Count on any way depended in on scheme or about March 1967, of Schaller’s ultimately $2,800 which of his victims bore the check the First National Bank - n — -, (cid:127), Chicago, loss.” U.S. S.Ct. necessary was also to the ac- ceptance 649, 38 L.Ed.2d 603. and concealment of a dividend from the CHR stock. Here success of the scheme de- mailing by Racing The Count XIII participants, par- so far as all and fraud BJC, Board on or about November ticularly Isaacs, were con- acceptance of the form, race date cerned, depended on the continued con- necessary sequel was a to the conceal- bribery scheme, cealment ment of the beneficial interest Isaacs complicated which devious devices BJC, Kerner then had in without they finally until were used received the might the race concealment dates bribery cash benefits March given application not have been as the It 1968. was not until Isaacs and Ker- therefor failed to make the disclosures $150,000 ner had each received for their required. BJC stock which received exchange for CTE stock that it can be Since there was evidence as to all the bribery said that had come to full elements ing violation includ- " fruition, payment $300,000 participation active in a scheme to for the stock CHR was concealed a defraud, intent, fraudulent and use Knight Joseph cheek for that amount to scheme, mails furtherance of the who held the stock as nominee for States, supra, see Pereira v. United we Isaacs, Knight and Kerner. in turn en- affirm the convictions of Isaacs dorsed the check to Isaacs. Isaacs was VI, VIII, Kerner on IX Counts by negotiat- to avoid able endorsement XIII. ing through bank for which he counsel, proceeds and divided the be- Validity V. Convictions on the through tween Kerner and himself new Conspiracy Count. opened. accounts which then charges conspiracy I Count a 371 Moreover, April it was not until violate the Travel Act and the Mail that Isaacs and Kerner made dis- Fraud Act. have that the con- We held gains closure of their in their tax re- victions on the substantive Travel Act year 1967, turns for the which even then counts must be reversed and those designed were their conceal true na- the substantive Mail Fraud counts must ture. problem sustained. remains as Thus, mailings, all made in validity to the of the conviction on the which form the basis the four mail conspiracy count. fraud counts of which Isaacs and Kerner Conspiracy independ convicted, were each made for the perhaps reprehensible offense, ent more purpose executing the fraudulent than the substantive crime. United attempting scheme or to do so. The Rabinowich, States v. mailing by Count VI Kerner of the 1099 S.Ct. Each 1211. count L.Ed. form Everett, to Mrs. on or about Feb- sepa an indictment must be treated aas ruary 21, 1967, integral pre- rate Dunn indictment. tense that Mrs. Everett had loaned mon- 76 L.Ed. ey to Isaacs and Acquittal on a substantive count The mailing Count $7,000 VIII of conspiracy the does not bar for conviction Knight check to Kerner identity proof the Antioch unless there is an of the Bank, on or 1, 1967, about June necessary. Fassoulis, was nec- v. United States 2 essary acceptance to the Cir., 13, 18, and the conceal- 445 F.2d cert. denied 404 proceeds ment of the stock, of the 100; CHR U.S. 92 S.Ct. L.Ed.2d part the bribery. smaller of the Carlton, Cir., United States F. v. 907; 104; F.2d v. and Andrews

2d and Mackett United States, Cir., Cir., 108 F.2d 515. evidence sustains conviction on the the the assert Defendants conspiracy count. in proof to use not show an intent does in violation terstate facilities Validity Kerner’& un- VI. Conviction in viola to use the mails Act or Travel Perjury the der Count. theOn the Mail Fraud Act. tion of per- Kerner attacks his conviction have Fraud counts we Mail substantive jury under 18 1623 on conten- U.S.C. § requi the the evidence showed held that (1) duplicity of the tions of count the use mails. On site intent to the XIV), (2) possibility (Count the convic the we reverse Travel Act counts jury “literally him convicted for true” of the minimal use tions because question posed him answer to a to be- of an facilities because interstate grand jury, (3) fore the unconstitu- Travel Under erroneous instruction. tionality of the statute. facilities of the interstate Act the use part duplicity The claim rests in jurisdictional only base furnishes upon preliminary question which was perti intentional. and need not be questions not included and an- required by re the statute intent nent alleged swers which the indictment proceeds to the distribution lates question That false. was: activity. evidence unlawful you people come to As Governor did the brib distribution shows you you and discuss with or ask part complex, ery proceeds racing respect with favors to dates plan Intent the defendants. over-all you people and then refer these to Mr. jurisdictional provide base Racing Miller or Commissioner? conspiracy to com proof of essential negative Ro Kerner answered in the See United States mit the crime. de selli, Cir., F.2d cert. said: * * * 27 L. 91 S.Ct. nied 401 [0]nly anyone ap- once did Ed.2d 828. proach letter, brochure, me and send a concerning racing And it dates. the substan The reversal of Maywood to do with name require does tive Travel Act counts my “Allen” comesto mind. charge. conspiracy Cf. reversal on The declarations of Kerner Bates, F.2d United States v. perjury predicated count are grounds, set 323 U. on other rev’d questioned in footnote 2.2 out He was modified S. L.Ed. coming you anyone I take it— you Q. recall Q. Do n with respect had been to the race dates that My anyone only coming A. recollection of assigned to or were under consideration Maywood. me about race I dates was Trotting? Egyptian have no recollection conversation No, say, I I recollection A. racing anybody about dates else. I with coming complaining anyone me have of inject myself all; didn’t in that area at Maywood. I Allen of never about dates was time. anybody Al- dates with than discussed other Well, you appointed when the members Q. my len best recollection. Racing Commission, Harness you persons interest Do Q. know Bradley Thomas the chairman? entity Egyptian racing known as the Trotting I think he was chairman. A. Association? He was chairman? Q. No, I A. don’t. A. Yes. say you anyone re- with Did ever Q. you dates, spect Egyptian Trotting some occasion he come “It is dif- Did Q. regard- you people him had a discussion to make a two when ficult decision when racing Maywood? ing dates at the same dates?” want statement. A. No. A. I could not have made that length duplicitous. grand jury re- was contentions are at some These

before the allegedly merit. garding that he without discussions Lee, Clyde and Hayes, had with James grand jury’s inquiry was directed racing At Bradley dates. about Thomas at Kerner’s involvement in allocation Bradley testified Lee and the trial both racing regard- questions dates. The Hayes discussions, inci- but the as to ing the conversations Kerner with jury from consider- dent was withdrawn Bradley subsidiary Lee and were to evidence, ation for lack because probe their Kerner’s involvement Hayes’ death. racing the allocation of dates. pre duplicitous A count is one contends that confusing charges supra, question, more than one liminary distinct separate that him to believe offense. United States in that it led Crummer, pertained to subsequent questions F.2d having question influenced denied of his cert. racing dates and 90 L.Ed. 1012. A count does not become allotment of racing duplicitous about because more than one means matter of conversations having alleged may dates, that the indictment to have been involved charged single him as to declarations commission false offense. single count matters a Id. also both of See Driscoll v. these Bradley you discuss Q. Did with Mr. A. No. giv- taking away Maywood and of dates from you making— Q. Do remember ing entity? them to another Woerlieide, A. Mr. that we can so save any I had A. never kind of discussion have your mine, you time and I un- want to know anybody. now, you I of that sort with I tell equivocally any without reservation what- before, you you again, I and I never told tell racing I soever never with discussed dates injected myself in the dates at selection of anybody any exception at time with any time. complaint by Allen, think, filed I whom I Well, specifically, you did tell Mr. Q. you have mentioned. I I never tell discussed Bradley Racing that the Harness Commis- racing anyone. dates with away Maywood sion take dates should give Sportsman’s Judge Park Kerner, you you dates to those Q. I to ask if want Washington long Hayes and to Park? made a distance call Mr. at a say again, anybody A. I I never directed time he when was out Illi- of the State of anything racing dates, change to do I can nois and asked him certain har- say unequivocally. racing that I never involved ness dates? in, any it. I never had of dates. discussion that, A. I have no I recollection of none. I knew after had the dates the Commission why don’t know I I should. never involved them, you un- determined equivocally. but I tell myself. your you Is Q. recollection did not you Q. How learn the after the did dates long make a distance to him and ask call Commission determined them? change racing him dates? harness They published. Usually got A. are I day published. them the before were minute, now, A. a let’s divide Wait couple people Mr. Miller question parts. possible in two I made It’s say, come me “These are dates.” long possible, distance call. but That’s say, I would “Pine. dates, Publish them.” may no. What the conversation you pub- okay Q. Would have to them for been, know, have I I can don’t but assure lication? you now, right Jury and I want Grand No, courtesy they A. interjected this was a this, my- I understand never doing words, for me. other personally racing anybody I knew the self dates with possibly did, public dates except hours before the at plaint time instance of com- one changed date, suggest- but I never I never I had from Allen. change any time, ed a specific date request I can Q. That would include a say unequivocally. Bradley change to Mr. dates? you Hayes Q. Do Yes, recall James who was A. sir. Racing connected specific with the Commission? Q. And that would include re- A. The quest name is Hayes change familiar. Mr. dates? you Q. Did ever talk to him my about A. Yes. I can’t understand what dates ? purpose suggesting would be in it. even

1155 pains 331, explicit emphatic Cir., 324, vacated on other F.2d be 356 before 899, grand 202, jury grounds, 19 the that he at no time U.S. S.Ct. had Warner, injected and in no 1034; manner himself States ever L.Ed.2d United area, 730, repetition Cir., 735, denied into that as a F.2d cert. the two following 194, 930, L.Ed.2d statements demonstrates: S.Ct. * * * n 191; States, 9 v. United Greenbaum A. that we can save [S]o perjury Cir., cases 113, 116. 80 F.2d your mine, you time and I want that one offense is where means unequivocally any know without reser- per committed, all the false declarations vation I whatsoever never discussed charged taining that can be offense racing any anybody dates with at time making that count one count without exception complaint with the duplicitous. v. United See Vitello by Allen, think, filed I whom I have 418, States, Cir., 416, cert. 425 F.2d you mentioned. I tell I never dis- 43, 822, denied 27 L. 400 U.S. racing anyone. cussed dates with 50; Edmondson, Ed.2d States ****** cert. de n. * ** A. I can assure [B]ut 444, 24 L. nied 90 S.Ct. 396 U.S. right you now, and I want Grand Ed.2d 430. Jury this, I inter- to understand never jected myself personally in next contends that any except anybody dates time with at perjury under conviction was invalid complaint I this one instance of that States, Bronston v. United 409 U.S. had from Allen. L.Ed.2d 93 S.Ct. because possibility that it was based that As contention following question: answer to the having elimi 1623 is unconstitutional Q. you anyone say Did ever per long-prevailing rule nated the that Trotting respect Egyptian proven by witnesses, jury two must be dates, “It is a deci- difficult to make upon the such cases as there have been people the same sion when two want question rejected have all the contention. ” racing dates ? In Weiler v. United 608-610, 89 L.Ed. Kerner’s answer was as follows: government urged Supreme I could not have made that A. rule, Court to but Court abandon added.) (Emphasis statement. so, saying: to do refused argued It is that the variance between system justice on the rests Our Lee, president Egyp- words which general assumption the truth is Trotting Association, tian testified that merely by the determined not to be had used a conversation re- of a on each side number witnesses garding Egyptian dates, the lan- * * controversy *. guage question in the which was used posed grand jury special rule which bars convic- to Kerner before solely upon answer, perjury evi- “I made Kerner’s could not have tion for - single deeply statement,” literally made dence of a witness is true. * * language past Lee rooted in *. testified that centuries (Kerner) Kerner had used was that he logically into it fits our Whether thing and was “in the middle of the govern- pattern not, the or testimonial probably make the deci- have to sufficiently co- ment has not advanced sion.” reject gent to cause us reasons * * * long pre- testimony ‘The rule has It is clear from Kerner’s rule. deroga- grand vailed, jury (see 2) he no enactment before the n. our attention. attempting unre- tion of it come to evade be has legislation relating indi- sponsive questions of such on the The absence fixing has been sound and involvement him in of rac- cates satisfactory practice.’ ing contrary, To found dates. he was representa- have had occasion to fraudulent statements or courts that regarded punished by fine deal with 1623 have Weiler tions” shall or im- prisonment. implying the rule is that two-witness as process not one of due substantiveness July 1970, agents 15, special On Stuf- ought holding merely that it not and Campbell and of flebeam the IRS saw legislation in the absence of be abolished by Congress. chambers, in him Kerner his told that he yet upheld court has No investigation was under criminal for in- challenge constitutionality the of the gave violations, tax him the come and Ruggiero, States v. See United § warning. Miranda Stufflebeam asked Cir., 599; v. 2 472 F.2d United States “Chicago identify Kerner to the Co.” 89; McGinnis, S.D.Tex., F.Supp. 344 stock, in listed his 1967 return as a tax W.D.Pa., Ceccerelli, United v. 350 States produced long- of the sale which had Congress F.Supp. power has the capital gain. term Kerner said that the abrogate long-standing of less rule institution, reference was to a financial than See constitutional dimensions. purchased that he had the stock on the 80-83, Evans, 74, v. 400 91 Dutton U.S. broker, advice of his that friend 210, 213; L.Ed.2d v. S.Ct. 27 Hawkins his, Brown, corporate of Isidore was a United U.S. making deny officer. did 136, 3 L.Ed.2d 125. these statements. The evidence estab- Chicago that lished the stock in Co. was holding agree with We privately held, that Kerner had never supra, in Ruggiero, Second Circuit any stock, owned of its and that Isidore 599, 472 F.2d at 606: Brown had never involved been with alleged It is that the removal [§ company. told that Kerner also rule” or 1623] the “two-witness agents “Chicago that transac- Co.” perjury “corroboration rule” for cases Chicago tion did not refer to Harness violates the confrontation clause Racing only Company that his it Sixth Amendment. While in transactions stock involved true that rule has “two-witness” CTE After the conference BJC. long prevailed courts, in the it federal agents, with the Kerner called on IRS is not one of constitutional dimension. morning next accountant * * * Congress specifi- Here has Chicago him disclosed to Co. cally provided that shall not be “[I]t really CHR. The evidence is more than necessary proof such made sufficient to establish that the state- any particular number of witnesses or ments false and were made know- by documentary type of or other evi- ingly willfully. Kerner contends * dence.” As rule is not of eonstitu- responses given that oral conversational Congress’ dimension, judgment tional investigative in agents, an interview with controls. oath, while not do suf- under We affirm Kerner’s conviction on support charge. fice to a 1001 § Count XIV. problem The first is whether the statements were made connection Validity VII. Kerner’s Conviction jurisdiction with a matter within under the False Statement Count. department agency. a federal or charges history Count XV mak- been has reviewed § ing agents great length false many statements to vi- IRS decisions. e. See pro- g. Gilliland, olation of 18 U.S.C. which § United States v. 312 any “[w]hoever, vides that 598; matter 61 S.Ct. L.Ed. United jurisdiction depart- any Co., within the Inc., States Beacon Brass 344 U. agency 61; ment or United States S. 73 S.Ct. L.Ed. United falsifies, knowingly willfully con- Bramblett, States v. 75 S. * * * up or 594; ceals covers a material Ct. 99 L.Ed. and United fact, false, Cir., Adler, or or makes fictitious States v. power adjudi- the FBI “had denied 389 U.S. cert. regula- binding purposes rights, cate establish For our L.Ed.2d 602. tions, finally compel dis- 35 of Crimi the action or to note suffices 1001, pose giving predecessor problem Code, rise to the nal inquiry” false claims originally said. have no occasion in condemned “We present approve context intended to defraud United States either to holding.” disapprove “to property. It was amended Friedman’s gov Adler, protect authorized functions F.2d States agencies departments expressly Circuit ernmental Second might rejected perversion result from the Friedman. deceptive practices described.” from the says agents special that IRS Gilliland, 93, at 522. at 61 S.Ct. 312 U.S. agents category are in the same FBI pecuniary Hence, proof is no of loss investiga because their function is the longer Brass required. Beacon Ibid. tion of criminal violations of the tax recognizes distinction there is no agents Although laws. those crim make statements, oral and written between investigations, inal our attention is di 46, The 1948 at 344 U.S. regulation rected to no or statute which present revision, put in its which 1001 § them limits to that dif The area. IRS any form, 683, did make 62 Stat. regula fers from FBI in that it has change. Bramblett, U.S. 348 substantive tory responsibilities in the administra 508, at statement 75 S.Ct. 504. tion and of enforcement our self-assess Adler, F.2d need not be under 380 oath. system. promulgates ment income tax It Bryson 922, there cited. at and cases regulations (26 7805(a)), ap U.S.C. § States, 64, 70, 90 S. v. United points personnel “for the administration 264, 355, the Court said: Ct. 24 L.Ed.2d and enforcement of the internal revenue legislative there is a valid Because laws,” (§ 7803(a) seq.), and 7601 et §§ integrity protecting of interest may deficiencies, and penalties, assess * * * inquiries we think official (§§ seq., interest 6201 et 6211 et “jurisdiction” should the term not be seq., 6601, 6651, 6671, 6672). These given meaning or technical a narrow provide statutes request a basis for the * * purposes A *. § agents that Kerner furnish them agency’s statutory an re- basis for regarding with information re tax juris- quest provides for information jurisdictional turn. requirement enough punish diction fraudulent 1001 is satisfied. § See United States statements under 1001. § Ratner, Cir., 103; 101, 464 F.2d Unit argues McCue, ed the statute does Cir., States 301 F.2d 452, 454-456, apply 939, to statements made to investi- cert. denied 370 U.S. gating agents. placed 808; Prime reliance is 8 L.Ed.2d Cir., Cir., Knowles v. States, States, United on Friedman v. recognize F.2d 171-172. 374 F.2d which .involved a false We agent expressed concern which statement in an effort has been FBI regard investigation. possible initiate an From its over-extension history see National Commission on Re § review of the § Laws, form of Federal Criminal court concluded that the in- statute was Work ing Papers, pp. 671-673, proper tended but we are con to facilitate the function- ing judicial interpretation regulatory agencies. vinced that The court excluding agents pointed empow- statements to from out that the FBI IRS application investigate regulate ered to 1001 would be to but not § give “jurisdiction” per- the term as used said false did not information investigative function, therein the or technical “narrow mean vert the 374 F.2d ing” Bryson Bryson, at forbids. 396 U.S. at 366 and 369. In change Any S.Ct. 355. the law n. re- 90 S.Ct. at Court noting n mustcome Congress. Friedman, and after ferred remaining problem ry, violation of and false income willfully knowingly return; challenges join- whether Kerner tax he also charging sepa- made a of a false statement material der of XIX Count him rately fact. Paternostro v. United with a false income tax return. application has no (1) join- problems, have We two charge here. The basis against multiple der de- counts one “exculpatory there was a series of no” fendant, (2) joinder multiple agent. questions of an answers Kerner, IRS 8(a), F.R.Crim.P., defendants. Rule lawyer long experience in permits joinder “if offenses public deny * * office, than * did more charged offenses are of the “Chicago Co.”' was He went on CHR. or same character or are based similar and volunteered the information that on the same act or transaction or on two “Chicago institu Co.” was financial or more acts or connected transactions tion whose stock had recommended been together constituting parts of a com- by a broker whose officers includéd 8(b) per- plan.” mon scheme or Rule a friend of his. These statements were joinder mits the of defendants “if untruthfully false. He also said that his alleged participated are to have in the only transactions with race track stocks same act or transaction or in the same Many involved CTE and BJC. of the series of acts or constitut- transactions unusual and concealed transactions ing an offense or offenses.” proof bribery went to related to CHR charged multiple When are defendants posi stock. Kerner’s statements were multiple counts, in the same as well as a affirmative, tive and and were calculat challenge by single join a defendant to pervert ed to government. the authorized functions of charged der of offenses in which he is is Gilliland, See 312 U.S. at governed by Conversely, 8(a). Rule 93, They 61 S.Ct. 518. were material to challenge when one or more defendants a determination of whether the CHR joinder and do not restrict their attack produced transactions income from a pertain solely to those offenses which legitimate bribe rather than from a them, 8(b) applies. Rule United States proceeds business transaction. If the Sweig, Cir., v. 114, 118-119, 2 441 F.2d ordinary were taxable as income rather 2256, 932, cert. denied 403 U.S. long-term capital gain, than as a the IRS 711; 29 L.Ed.2d and United States statutory responsibility had the Roselli, Cir., 879, 898, 432 F.2d cert. duty deficiency to make assessments and denied 401 U.S. L. S.Ct. any penalties determine whether Ed.2d imposed. should be We are convinced the evidence establishes material broadly Rule 8 is construed false statements affirmatively, made vol joinder thereby allow en liberal untarily, willfully, knowingly in a efficiency judicial sys hance the of the matter agency over which an of the Cir., Friedman, tem. United States v. United jurisdiction. States had The 1076, 1082, cert. denied 404 U. government proved all elements es S. 30 L.Ed.2d sential to conviction under 1001. Roselli, supra, United States v. F.2d 899. The word “transaction” contem Questions relating VIII. to Joinder. plates many “depending a series of acts upon not on so much the immediateness joinder Kerner contends that logical upon of their connection as their perjury count, charging sepa- him relationship.” Moore v. New York Cot rately, joint charging with the counts Exchange, ton S. conspiracy, Act, Travel and Mail Fraud 750; Ct. 70 L.Ed. relied on in violations, improper, Isaacs com- Friedman, supra, both United States v. plains joinder of the of the counts and Cataneo v. United charging separately perju- construing Kerner with 822-823, F.2d Rule 8.

H59 says improp- Kerner were offenses which Isaacs erly joined contention problem parts 8(a) presents as does were all same Rule a transactions, regard to series of acts or and hence with Count that of Isaacs also joinder 8(b). subject Rule perjury and other offenses under XIX. log have a are concerned which we with They relationship. are all connected Questions Relating ical to Severance. IX. plan of, with, common out a or arose (a) charging Joinder count regulation of corruptly influence grand, with declarations false before charge racing. perjury horse jury. against involve related to his racing industry, and evi argue ment with the if Defendants that even pertinent joinder permissible of that involvement was dence is Rule a under Sweig, proof granted offenses. to the swpra, of the other un severance should have been perjury counts a case in which appropri Rule An der F.R.Crim.P. joined conspiracy joint count. were ate motion made trial before proof here, commonalty There, Isaacs, and denied. See United States the offenses N.D.Ill., sufficed establish F.Supp. 743, Rule together” pur “connected for the provides preju if a defendant poses 8(a). 441 F.2d at 118-119. of Rule by joinder diced of offenses defend * * * 8(a) in connec find no Rule violation We grant ants, may “the court challenged tion with counts. provide severance of defendants or justice requires.” whatever other relief brings argu This us to the A denial of Rule 14 relief is reviewable presents ment of Rule Isaacs which plain for abuse of discretion or er 8(b) arising problem joinder out of the affecting rights. ror substantial perjury, and false return Echeles, Cir., 892, States v. 7 352 F.2d charging separately. counts 896-897; Sweig, v. United States 2 Multiple may joined defendants if be Cir., 441 F.2d at 119. participated have in the same se ries of acts or spiracy, The con transactions. given Consideration must be Act, Travel Fraud Mail Pacente, Cir., United F. States v. underlying counts all on the bore claim 661, 28, 2d decided December bribery. of The evidence to establish charged police There a officer in a was question pertinent counts was perjury two-count indictment with be proof of other The reliance counts. of grand jury fore a violation States, Isaacs on Krulewitch United v. and interference commerce with 790; 440, 716, 336 U.S. 69 S.Ct. 93 L.Ed. threats or violence in of 18 violation U. v. Grunewald United 353 U. regulations Departmental S.C. § 391, 931, 963, 1 S. 77 S.Ct. L.Ed.2d is compulsory police made it for a officer misplaced. Those were not con cases testify grand jury before a or suffer joinder cerned with but rather with discharge. suspension or The court admissibility of evidence. prejudice impeach (1) found because of separate resulting Joinder ment income tax offens knowl defendant against edge by petit grand coconspirators es jury individual upheld jury Roselli, supra, lied, United States v. determined that defendant had There, here, (2) proof 432 F.2d at 899. the un the burden of was shifted to derlying generated crime tax income defendant who must take the stand to Granello, deny charge, violations. United States v. the false declaration Cir., 990, (3) spill-over 365 F.2d cert. denied 386 U.S. from the evidence 18 L.Ed.2d is false declaration S.Ct. count to the substantive point not in because count. have a that ease We different situation. producing unreported voluntarily appeared venture in Kerner before grand jury. come did not in- involve common of a Instead of a two-count acts charging sum, pertinent perjury and criminal nature. In dictment sub- offense, (b) testify in- Failure stantive we have a 19-count Isaacs to among things, charging, dictment other five After almost weeks trial conspiracy, to IRS false statements government’s the close of the after agree agents, and false tax returns. We case, allegedly Kerner’s counsel became Sweig, F.2d at United States for the first time that aware 118-119, prejudice did not result then take the stand. Counsel from the trial of a defendant on both purporting made an oral statement conspiracy perjury If our counts. testimony would excul show that Isaacs’ .are at conclusions odds with United pate Kerner and moved for a severance. only say Pacente, supra, States v. we can denied court the motion. disagree that we with that decision. moving situation, party must show The false statement and tax return false that he be unable to obtain a fair will charge involving counts offenses deceit- severance, merely trial without ful conduct. The desire of Kerner to separate trial will offer a better testify support honesty of his was no acquittal. chance of United States v. urgent perjury more in defense of the Blue, Cir., 300, 302, 440 F.2d cert. de count than it was in connection with nied L. these other There counts. shift- Ed.2d 68. Kerner’s reliance ing proof. jury burden Echeles, Cir., States v. 352 F.2d adequately instructed in this re- misplaced. In that case the codefendant gard. open exculpated had three times in court only, held defendant. The court along Rule 14 must read with Rule Ibid, importance at that the possibility prej- 8 which balances exculpatory codefendant’s record testi against economy udice considerations of mony required a The court severance. efficiency judicial in the use of the Ibid, comments, separate that a process. complex haveWe before us a time-consuming, trial would not be but conspiracy involving many by the acts entirely practicable. defendants and others. In Pacente the false declaration count was one-half of Johnson, In United States against presence the case him. Here the denied 400 U. cert. multiple involving counts numerous S. 27 L.Ed.2d any possible spill- offenses minimizes against upheld denial of a severance was testimony relating over effect of the testimony the claim that of codefendants relegates false declarations and those separate would be unavailable unless a peripheral declarations role. Ker- granted. trial was approval, The court cited with charge ner initiated the false declaration Ibid, 1116, in at the statement by testifying grand jury. before the He Kahn, Cir., United 824, 841, F.2d States v. 7 381 may advantage not take of a situation unsupported possi that “[t]he which he The created. court did not bility might testimony that such denying abuse its discretion in a sever- forthcoming the denial does make of joinder ance to Kerner of because of a motion for severance erroneous.” In perjury count. bar, deny judge, ease at the trial ing severance, relied on Johnson and concerned, So far as Isaacs is grant said that to severance in the cir jury the court instructed the that evi destroy presented cumstances perjury dence of Kerner’s should not be joint use of trials. permitted prejudice In Isaacs. these there circumstances no of abuse dis Duplication unusually of an Gill, Cir., cretion. United States v. complex trial, one such as the before us 28, 233, 490 F.2d 1973; decided December January 3, 1973, lasted Kahn, Cir., and United States v. February 19, 1973, is a factor which a 824, 837-838, 381 F.2d cert. denied 389 may properly trial court consider when 1015, 591, ruling 19 L.Ed.2d 661. U.S. S.Ct. on a severance motion. United

H6J 772, conspirators Cir., Shuford, F.2d interest evidences States v. reliability. concurring Additionally, 777, likelihood of there was no See n. 5. opinion Dutton, testimony representation of Mr. Justice Harlan that Isaacs’ separate 99, forthcoming in a 400 rights at 210. U.S. Kerner’s S.Ct. would be required to sev- under Confrontation Clause “The court is not trial. possibility were not v. Cer codefend- violated. United States er where the one, Cir., 274, 283, testifying merely cert. de is colorable ant’s showing anything nied it is 405 U.S. 92 S.Ct. 31 L. there gleam possibility in the Ed.2d 1169. more than Wainwright, eye.” Byrd v. defendant’s F.2d including Questions Miscellaneous, X. regarding Evidence. Admission of claim, support To his severance challenge Kerner a constitutional mounts (a) Income tax counts. based on Bruton Kerner that Count concedes 1620, 20 L.Ed.2d charging XVI, of tax evasion due for held in which on confrontation rationale 1966 in violation 26 U.S.C. inculpatory statement admissible the sufficiency or falls on the stands said, The how a codefendant. Court proof bribery. have held the We ever, at n. S.Ct. 391 U.S. proof event oc sufficient. taxable 1624: CTE and curred when Kerner obtained therefore, us, There is before ac for a fraction their CHR shares recognized exception hearsay charging tual Count worth. XVIII petitioner rule is concerned insofar presents tax Isaacs with evasion view whatever we intimate no same situation. exceptions necessarily raise such against Kerner Count XVII questions under the Confrontation against each XIX Isaacs and Count Clause. charge tax returns false statements points out under the co- included These statements conspirator exception hearsay to the CTE, CHR, and misidentification rule, per- Everett and Miller were Mrs. long-term capital BJC, claim of and the testify mitted to various statements gains acquisition date. on a 1962 based relating Isaacs transactions government sustains record implying issue and Kerner’s connection were false claim the statements argument therewith. is that be- willfully. were made inability to call as a cause of witness, right denied intent (b) Miller on Examination of testimony. refute this making stock Mrs. Everett offer. Evans, Dutton objected to the follow- counsel Defense 27 L.Ed.2d ing question put to Miller: argued it Court said that could not be you relay Q. Miller, why did Mr. right “that the constitutional to confron- of stock offer Mrs. Everett’s requires hearsay tation evidence and Mr. Governor can ever In be introduced.” United ? Isaacs Jones, Cir., 461, States 7 F.2d v. 438 intent, 466, rejected ap- Miller’s This called for Seventh Circuit plicability an a intent of Mrs. Everett. of Bruton to situation not the (1) where the of a codefendant three considerations: statements swer included recognized both excep- “fall need the favor of within the well in “She was (2) Isaacs”; hearsay Mr. tion to the rule that declara- Kerner and Governor eager ingratiate on joint herself tions in made connection with was “She [them]”; against party continuing venture are admissible basis any certainly community present.” (3) to avoid who is wanted “She 1162 impera- informed that was I connection with was adverse influence ** in or- stock racing tive to have receive These state- others dates get its dates. Everett’s der to CHR cumulative Mrs.

ments were foundation testimony and had solid Spiegel identified Mrs. Everett proper- objection opinion was In our Thus, as the source information. ly overruled. under became statement admissible exception coconspirator’s there (c) prosecutor’s members Illi- impropriety Examination was no Racing argu during closing Board. nois reference thereto ment. members Illinois Several Racing ex Board asked on direct were (e) to the State Kerner’s contribution prosecutor whether

amination Society. Historical they granted dates to would have if CTE for for 1968 1967 and BJC Ker On cross-examination inter had known of Kerner’s concealed ner a tax was asked about deduction typical companies. an est in those A had con which he claimed because of a Crosby board swer that of member was Society, tribution to the State Historical have voted who said that he would not objection, After issue. matter grant a similar the dates. Later jury instructed court question was board member Mc- asked preju deduction lawful and that no during Kellar on direct examination against dice Kerner be should be felt case, defense his answer was that admissibility cause evi of it. knowledge have such would not influ scope dence the extent and of cross- subsequent enced his This use action. dis examination are matters within the minimizes, of similar evidence if not rulings judge cretion of the trial whose cures, might whatever error there have will not be in the disturbed absence been the admission of this bit of Illinois, abuse of v. discretion. Smith prosecution Wigmore testimony. See 1 129, 132, 748, 390 L. S.Ct. U.S. 88 19 Evidence, 18, p. event 956; Pate, Ed.2d States 7 United v. we believe a case such as that at Cir., 1083, 1086, 426 F.2d cert. denied questions proper. bar “what if” 995, 469, 400 91 27 L.Ed.2d U.S. S.Ct. States, Cir., Bettman United v. 224 F. cautionary 445. The instruction of 830, 819, 642, cert. denied 239 U.S. court rendered the cross-examination 482; S.Ct. 60 L.Ed. United States v. harmless. See Bruton United Aleli, Cir., 20; L. U.S. S.Ct. Lehigh Co., Valley Cir., Searfoss v. R. Kahn, Ed.2d States F.2d 763-764. F.2d cert. denied 389 L.Ed.2d

(d) Spiegel The Modie letter. (f) de- cross-examination Unfair Spiegel, Modie who for a time witnesses. fense president CHR, testified for the prosecution. On direct examination he argues govern Isaacs shown a letter dated October improperly ment cross-examined certain written Everett, him to Mrs. called witnesses so as to cre presentation and intended for to CHR ate the illusion that done board members. The things letter was received Negative to earn re the bribe. purpose showing for the limited sponses the questions empha to such were Spiegel communication between argu and closing sized Isaacs’ counsel Everett, Mrs. and was for received that ment. In the circumstances it diffi is purpose cautionary with a instruction. prej cult to understand how Isaacs was The letter contained the statement: States, udiced. See McBride v. United If there are conflicts the state- con- 1046, Other Cir., F.2d witnesses, it is proven, of different ments go later innuendoes tentions your you can, essentially duty reconcile it if were questions which and every presumes that law wit- the instances the few When innocuous. truth, if sworn to but [tell the] viewed ness is are complained Isaacs you them, the law cannot reconcile background against the six-week the you transcript, the sole and exclusive no makes judges 7,600 page trial and trial credibility of the wit- appears. prejudicial error given weight nesses, and be testimony. their Jury. Charge The XI. government points The no out that court instructions objection to raised this instruction was pages record and dis cover hence, and, at trial error has been diligence, patience, and thor

close Milstein, waived. United v. See States judge. oughness The shot the trial Cir., However, 401 F.2d 53-54. in gun on the of the defendants attack applied plain some have error courts confusing con than more is structions rule, 52(b), F.R.Crim.P., to similar Rule elementary vincing. in It is g. instructions. e. v. See United States a whole considered as must be structions Birmingham, Cir., F.2d is if treat the is sufficient 1315-1316. consider the issue We be- adequately. fairly New of sues importance. cause of its points merit discussion. raised Cupp In Naughten, v. 414 U.S. he was asserts that L.Ed.2d S.Ct. Court in the text of the court’s entitled to corpus before it a state case habeas closing argument. The before structions said, “Every which the instructions wit- action had informed counsel its court presumed speak ness is the truth.” regard requested instruction. to each Cwpp in- Court found that enough comply with Rule is This doubt, structions burden reasonable United States Shir F.R.Crim.P. See v. proof, presumption of innocence 1078; Cir., ley, 7 435 F.2d Martin adequate, and held that in cir- such 404 F.2d language cumstances the mentioned did and like cases. United States negate not or shift established constitu- Bass, Cir., not to the is guarantees. tional case differs Our contrary. In that was mis case counsel Cupp because here statement effectively argue led could not every was that witness “is sworn to [tell prejudice ease. Absent caused sur truth,” presumed to tell the the] obligated prise, a court to furnish is not Cupp. Also, truth as in in the instant argu copies of its instructions before present- an affirmative case defense was Wright, ment. See Federal Practice through many ed the defense wit- Procedure, 482, p. In the case at Accordingly, nesses. whatever benefit convincing showing bar there the instruction afforded went both prejudice surprise, except either prosecution and defense. previously mentioned instruction on the substantive Travel Act counts. challenged instruction “ objections * * * defendants to judged must artifi bribery, the instructions on elements of isolation, cial but in the must be viewed specific intent, good faith do not charge.” context of the overall impress us. When the instructions are at opinion 404. In our whole, points taken as a these are ade- the attacked instruction not consti does quately fairly covered. process, tute a denial of due a conflict following presumption The defendants attack the with the defendants’ of in portion credibility nocence, proof, instruction on a shift of the burden of of witnesses: jury’s province or an invasion of the 1164 credibility say they

determiné witnesses. from im- fices suffer precision did It invade constitutional and over-statement and that right. appropriate insofar as were incorporated trial court them into its complains that the “ac charge. faulty complice instruction was witness” Except in our as noted above discus- conflicting presented stand in that it counts, sion of the Travel find Act we ards. We do not so read instruction. charge no error the court. accurately accomplice It first defines says: and then Coun- XII. Government Summations testimony accomplice is The an sel. weight entitled

admissible and to such jury as it feels should have. vigorously case was weighing argued by In aggressively the evidence an ac- both sides. give regard complice, you argument prosecutor closing due should need might to the fact expo that he have been not be “confined to such detached trial appropriate as defendant You himself. sition as would in a lec weigh carefully Cir., testimony Wexler, should ture.” United v. 2 States cautiously. 526, 530, 79 F.2d 703, denied cert. 297 U.S. 384, 991, L.Ed. 56 S.Ct. 80 because This is not like a ease United States empha him of all oratorical shear “[t]o Donnelly, Cir., 227, v. 233, 7 179 F.2d 232- leaving sis, latitude while wide inconsistently where the court told defense, justice.” is to load the scales jury, first, accomplice the ny testimo Cir., States, Di v. 2 6 Carlo United F.2d judged by is to be the same rules as 368, 364, 706, 45 cert. denied 268 U.S. apply second, testimony and, to other 640, L.Ed. The control S.Ct. 69 accomplice testimony re must be Berger ling v. standard found is garded with due care. the case States, 78, 88, United 295 U.S. 55 S.Ct. bar, duty the court defined 633, 629, 1314, says 79 L.Ed. jury and then stated the test which “may Attorney prosecute a United States apply. was to United Balodi States v. vigor indeed, he with earnestness and — mas, Cir., 487, 7 F.2d 485, 177 like is But, may do so. he strike should while applicable. wise not There court liberty blows, hard he not at strike government said that the witnesses “permitted foul ones.” An advocate is accomplices admittedly who had broken replying considerable latitude in to his presupposed the law. That instruction opponent’s arguments.” United States the commission of a crime. The instruc Lawler, Cir., v. cert. 7 413 F.2d infirmity. tion before no us has like 698, 1046, 24 denied 396 90 U.S. S.Ct. uniformly up The Seventh Circuit has 691; Hoffa, L.Ed.2d v. United States “accomplice held witness” instructions 20, Cir., 51, 293, F.2d aff’d 385 U.S. when, here, they point out, what 408, 374; and see S.Ct. 17 L.Ed.2d accomplice applied is and the test to be 339, v. Lawn United 355 U.S. testimony. to his taglia, Bat States v. 359-360, n. 2 L.Ed.2d S.Ct. Cir., 304, 313-314, principles mind, 321. With these we cert. denied 401 U.S. S.Ct. particular examine the attacks made 828; L.Ed.2d also United see States the defendants. Pritchard, Cir., F.2d cert. denied point The first relates 685; 32 L.Ed.2d and United Attorney’s United States defense of his Fellabaum, States F.2d integrity. Kerner referred Counsel for 220, cert. denied 396 “vigorous imagination of an am 24 L.Ed.2d 69. prosecutor,” lawyer bitious Isaacs’ prolix requested by overwhelming instructions said that there was an de get defendants merit It mention. suf- Otto sire to asked the closing argument counsel only way Isaacs’ In the question whether rhetorical following explanation the made trample Isaacs. over to it was do to rep- the check endorse prosecu- failure to Isaacs’ compared the counsel Kerner’s resenting of the BJC stock: the sale Adolph Hit- technique that to tion’s des- to the made present were References Why ler. to want didn’t Isaacs efforts prosecution and peration simple. the It I think the answer it? persuade witnesses prosecution to money. the half It was all his wasn’t testimony. The com- change their money. Why to the check endorse his reply fall well prosecutor going go of the ments him? to to not it is all when response doctrine. prosecutor within the invited reply, said: the In morning you tells this Mr. Wolfson immunity referring the to After why didn’t Isaacs that the reason prose- given the agreement to Miller be- that check was want to endorse Attorney said: cution, the States money his. We wasn’t all the cause In return the terms. Those ex- for the now six weeks have waited charges testimony, for truthful his why to didn’t want planation Isaacs against in this case Miller William Finally, Mr. check. endorse that dismissed. gives us, that’s it to Wolfson Isaacs contends that reason. improper an statement amounts attempt counsel The of his opinion prosecutor of that Miller his processes explain invited Isaacs’ mental was a truthful witness. The statement government respond weak to the credibility. for Miller’s does vouch argument. in It was not an of the ness that the com There is no insinuation fail jury hold Isaacs’ vitation prosecutor on ment of the was based testify against ure to him. anything de hors the record. Lawn See 339, 359-360, v. United Perlmutter, an accountant n. 2 L.Ed.2d 321. government Isaacs, witness testified as a argument prosecutor’s of Isaacs that designation that false said agreement immunity reference Chicago Co., in re CHR Isaacs’ 1967 as govern improperly insinuated that typing turn, error. was an inadvertent possessed ment evidence outside of the testimony This was at odds with that agreement record is fanciful. Kerner’s accountant who said jury before the for such consideration as Chicago designation Co. for CHR might anyone give wish to it. information furnished accordance with argued Kerner. Defense counsel Arguments of defense counsel government have called as a should insinuated that the United Attor States Joseph partner, witness Perlmutter’s ney, individual, power had the responded prosecution Golman. indict, power. and had In misused that thus: reply prosecutor said: hearing Jury After from one of his A Grand citizens in this accountants, you do think we would District determined there was put another of accountants on bring sufficient evidence to this case testimony Well, they want power stand? if I trial. have no to indict. I that, they them. just put like will have call my name on it. Without a going are call Jury, We them. vote of the Grand this case can’t be here. That much is obvious. Perl- Counsel stressed testimony prosecutor The statement of the was mutter’s as a defense to spite response anything an invited of their and if false tax count. return wrong testimony, with it Perlmutter’s instructions reliance gov- right deny court on the function of an indictment counsel would were both thereon. If adequate. elaborate and ernment to comment remaining either them because vitali- not discussed “voucher rule” has sufficiently Mississippi, covered what ty, have been Chambers see 297, already so 1038, are we said or 296, 35 L.Ed.2d have 284, 93 S.Ct. Evidence, clearly to make without as proposed of substance Federal Rules and applica- unnecessary. place them 607, review of its Rule this is govern- baited Defense counsel tion. summary, the In we affirm convic- reply. into the ment counsel I, on and Kerner Counts tions of Isaacs VIII, VI, XIII, of IX and the conviction prosecution introduced cer XV, XIV, and Kerner on Counts XVI to in Isaacs tain declarations made XVII, on conviction Isaacs the grand vestigators jury as false and the the XVIII XIX. reverse Counts We exculpatory statements. Under the com on Kerner convictions pleteness doctrine, counsel was Isaacs’ II, III Counts and IV.

permitted in the to offer statements per opinion represents curiam This closing argu entirety. In their virtual panel, of the the views the members prosecutor ment the referred those Judge except specially as noted in John- argument as com statements lies. dissenting concurring separate sen’s plained a com of can be viewed as opinion. falsity pretrial on ment the Isaacs’ Those were in statements. statements Judge subject just JOHNSEN, Circuit evidence comment as Senior (concurring dissenting part, part). any in in other of evidence. bit See Chaney, Cir., 571, States 3 446 F.2d agreement I in am with most 575-576, 993, cert. denied 404 U.S. holdings per and statements of the cur- 543, S.Ct. 30 L.Ed.2d 546. iam but differ awith few of them. argues that the clos agree I the district court was ing arguments government counsel possessed subject-matter jurisdiction unduly prejudicially emphasized charges against Kerner, of the me but to perjury prosecutor may count. A com power III, was derived from Article credibility ment of a defendant 1, Section of the Constitution and from who takes witness stand. United U.S.C. the Criminal Code. Jansen, 312, States v. provision, Under the constitutional cert. denied 414 U.S. S.Ct. judicial power of the United States has (Oct. 9, 1973); 38 L.Ed.2d 59 see supreme Court, been vested “in one Deloney, Cir., also United States v. Congress in such inferior Courts as 324, F.2d denied cert. may from time to time ordain and estab- 20 L.Ed.2d We have creating courts, lish.” the district upheld perjury count and the suffi Congress manifestly right had the under ciency of the evidence to sustain a con provision the constitutional to confer charge. Thus, viction of that dowe subject-matter such nature and extent of government have a situation of counsel jurisdiction upon them it chose. Un- as stressing argu an invalid in count give der 18 U.S.C. chose to arguments ment. The of defense coun “original jurisdiction district courts sel responses invited the made * * * against of all offenses the laws prosecutors. of the United States.” opinion arguments In our of the ambiguous provision If of Article prosecutors, taken as a whole or in I, Section Clause of the Constitution piecemeal, were permissible well within any was intended to mean that officer standards. the United who was sub- We are not ject having mindful of impeachment other conten- proceedings tions made brought against him, defendants. We have could not made charges ownership Kerner, bribery until and the on criminal trial to stand impeach- offense had reached The inci- fruition. convicted he had been after my opinion dents after the proceedings, this use which mails ment privi- disposi- personal occurred relation provide to Kerner’s at most obtaining tion of the stock immunity him he or his lege or therefor, go assert, money did com- liberty or not to assert pletion bribery, have held to as between Mrs'. must be he chose. any Everett and attempt such Kerner. United States to assert not to chosen Maze, immunity, never L. he privilege Supreme Ed.2d decided question form before raised attempt January by to Court on seems to me court—neither trial require by dismissed, to reversal to nor as these two the indictment have proceeding counts. trial to have the motion stayed. Pacente, Cir., to United As States v. far, opinion, my it is decided in December This is as necessary go per any discussed to Section IX of the event to sustain curiam, try followed, jurisdiction decision, would, to if district court’s may my judgment, require reversal of all Kerner. determination Whatever necessary convictions, ultimately Kerner’s for made of failure of be grant impeachment trial court to and criminal offense severance. panel agreement holding question, it is it does not to me that that the seem necessary in the is case bad law and that or wise to undertake we can- is present conscientiously it. make that determination in the follow question situation. The subject has been the agitation of bitter and heated PETITION FOR REHEARING

dispute majority’s sides, on both and the holding open to conse- can the door ORDER quences may which it be better for the petition rehearing 1. The for of de- experience nation not to have to in the fendant-appellant Theodore is J. Isaacs present I turbulence times. denied. that, would hold on Kerner’s submission petition rehearing for de- trial, of himself to there no need is fendant-appellant Kerner, Jr., Otto specific question. decide denied. agree majori- I am unable to with the ty’s affirmance of Kerner’s conviction of JOHNSEN, Judge, Senior Circuit dis- IX, mail fraud under Counts VIII and sents. mailings as which the after occurred August, by Kerner had that time PER CURIAM. become the full beneficial owner of the Judge Judge Lumbard and Breiten- bribery. race track stock in the involved stein are of. the view that there is longer right any Mrs. Everett no had good delay reason to action on mo- control right over it. Kerner had the rehearing, tions for and that there is stock, continue hold whose value every why questions reason raised increasing, been or to it. He sell in this case should be settled without it, chose to sell for reasons which are delay. further not difficult to infer. What Mrs. Ever- bribery obligate ett had done in was On three active occasions the herself to sell and later judges Circuit, to make actual circuit of the Seventh sale of the race track stock to Kerner, other than Otto have recused price greatly value, below any participation its market themselves from expected in racing favorable treatment of her has this It seems to us that this case. designated interests. specially When the sale left the court completed, subject stock deciding became any task raised on issues ap- Judge Sprecher proper and appeal; Swygert, Circuit includes Judge propriate application rule of law. District On Poos. December panel opinion, its writ- filed filing petition Initially, after the Judge Swygert, ten Chief which re- petitioner mandamus writ of opin- versed Pacente’s conviction. That August all the then Kerner on purported principle ion to establish the Circuit, judges active of the Seventh that a could defendant not be tried on Kerner, recused themselves. other than charging substantive counts and count communicated This action was perjury relating substantive Judge Swygert Chief Chief Justice charges, at the same trial. Counsel August 9, 1972. There- in a dated letter appellants immediately called our telegram Justice, dat- after the Chief opinion attention to the Pacente and we designated September the three ed gave thought it such attention as we judges panel to hear and deter- of this opinion February deserved in our filed prose- arising mine all matters from the 19, 1974 which affirmed the convictions against the de- cution of the indictment on all but three counts. fendants. wrote, regarding Johnsen Judge The trial of and Kerner com- case, separate concurring in Pacente During January 3, that menced on 1973. dissenting opinion: panel and “The is trial, judges of of the active circuit two agreement holding in in that the the case Judge Swy- Circuit, the Seventh Chief is bad law and that we cannot conscien- gert Judge Kiley, and testified as char- tiously it.” follow acter on of Kerner. witnesses behalf Meanwhile, had filed the States After the on defendants were convicted petition rehearing rehearing a for and en February Kerner and after Pacente, banc in United and on States appeal April filed a notice of on February 19, 1974 the active circuit judges again all the active circuit re- judges granted of the Seventh Circuit Judge Swygert cused Chief themselves. rehearing en banc. by notified the Chief Justice letter dated ap- Thereafter on March 1974, the April 26, view 1973 that was “the of pellants petitions their filed for rehear- judges the circuit of court active this ing rehearing en banc. On the same upon should not act these day by the clerk entered order made appeals.” Judge Accordingly, Swy- Chief judges six active circuit of the Seventh gert requested designation the three of Circuit, Judge Swygert listed as Chief judges from outside the Circuit. Seventh Judges Fairchild, Cummings, Circuit already desig- As the Chief Justice had Stevens, reading: Pell, Sprecher, panel, nated of the we con- members this designation pursuant to act tinued to the defendants-appellants Both in these September 19, of .appeals suggestion have filed a for a rehearing judges en banc. Each of the argument appeals We heard of the on regular disquali- service has active October and 24, reserved de- fied himself from consideration the of September In cision. their briefs filed suggestions rehearing for en banc. and on oral argument, Thus, for a third time, the active circuit urged and Kerner improper it was judges Circuit, of the except- Seventh try charge perjury against the ing Kerner, disqualified have themselves. with the indictment, other counts of the deny it was error severance Isaacs and Kerner have now perjury count. requested delay disposition that we our panel While considering the petitions of their until after the banc en argument appeal, rehearing was heard on Decem- of Pacente which is scheduled ber Pacente, April United States for We see need to panel consisting Judge before a panel of Chief obligation do so. This under no single holding panel. of Such the opinions the Seventh any of follow holdings co-equal between differences panel or Circuit, whether Appeals panels of of have times Courts mat- cases banc, filed en court inadvertently, occurred, sometimes to its constitution subsequent ters a matter of conscientious sometimes as 19, 1972. September on Chief Justice disagreement. given and firm already having Consequently, thorough lengthy consideration capable Usually such a situation is of appeal, and points being taking raised on all the dealt with the court over peti- rehearing, for petitions subsequent hearing case for in banc rehearing denied. establishing are of the cir- tions for and so law conflicting views of cuit as between the appellant wishes event either taking- panels. No such banc the two within petition for certiorari file is, however, pos- case over man- allowed, of the issuance time disqualification sible, because pro- stayed subject to the date will regular judges Court 41(b) the Federal Rule visions Appeals have themselves made of as Appellate Procedure. Rules hearing in But banc case. rehearing sever- for are petitions granted in the Pa- which the Court has ally denied. equally cente will be able to estab- case generally the law of the circuit on lish Judge JOHNSEN, (dis- Senior Circuit necessarily question, and hence senting). the Kerner case. peti- hoped ruling on the I had Sitting panel Ap- the Court rehearing de- have been tions though peals Circuit, the Seventh Appeals after ferred until the Court circuit, from outside I do not believe its rendered for Circuit had the Seventh judicial responsibility could, in that we hearing it in the in banc which decision give propriety, application refuse granted of has the case of United States holding in the Kerner ease an in banc Argument Pacente, No. 72-1988. though might Court, even dis- of the we hearing set the in banc has been agree it, which would be situa- April 10, 1974. if the result Pacente tion case adoption should be an bane panel In the Pacente of the case, original panel by which the views (two judges circuit Court and a district In these circum- decision rendered. judge) held, rendered had a decision I think stances, could indicate our we December failure disagreement, have to but we grant the trial court severance as reversal of Kerner case make perjury, an indictment com- count for Supreme question to the leave Court grand jury by mitted before the which settling ap- the law should returned, the indictment was and a count plied jurispru- a matter criminal as offense, for another substantive sowas dence. though inherently prejudicial, even limiting instruction given, had been as It is for these reasons that I feel we require reversal of the con- both of ought ruling petitions on the defer which had hold- victions That occurred. rehearing. Taking action now could ing, if had been in the followed us situation, complicate the and a re- whole required would have re- case, might put perhaps fusal also to wait of his versal convictions. judicial process into an unfavorable regarded We decision light. Pacente if banc decision Moreover, being right so unsound contrary that we in Pacente should be disagree properly holding with it original panel, prob- and could it, represented panel refuse follow since it our lem of own solved. would be

Case Details

Case Name: United States v. Theodore J. Isaacs and Otto Kerner, Jr.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 28, 1974

Citation: 493 F.2d 1124

Docket Number: 73-1409, 73-1410

Court Abbreviation: 7th Cir.