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United States v. Fellabaum

March 7, 1969


Swygert and Cummings, Circuit Judges, and Gordon, District Judge.*fn1

Author: Gordon

MYRON L. GORDON, District Judge.

These are appeals by John Pyne and John Fellabaum from judgments of conviction entered after jury verdicts of guilty against each of them. They were found guilty of a conspiracy under 18 U.S.C. § 371 to "travel and cause travel in interstate commerce, with intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity involving extortion * * * in violation of Title 18, United States Code, Section 1952." The indictment alleged six overt acts performed in furtherance of the conspiracy.

Indicted along with Pyne and Fellabaum were Sherman Kaminsky and Doss Smith. Kaminsky entered a guilty plea and thereafter became a fugitive; he still was a fugitive at the time of this appeal. Smith pleaded guilty and was sentenced to a prison term of four years. Another conspirator, Elwood Hammock, was not indicted. The facts are to be viewed in a light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). A summary follows.

On April 19, 1966, Bruce Kaiser, who lived in Normal, Illinois, met defendant Fellabaum at a bar in Chicago, and shortly thereafter accompanied Fellabaum to a hotel room where Kaiser and Fellabaum engaged in a homosexual act. Fellabaum then demanded and got Kaiser's wallet and money. The following day Fellabaum called Hammock, the unindicted co-conspirator, who was then in New York. Hammock testified that after Fellabaum told him about the Kaiser incident, he told Fellabaum to come to New York. On April 21, Fellabaum arrived in New York, gave Hammock several cards from Kaiser's wallet, and informed Hammock that Kaiser looked like a good prospect for extortion.

Hammock then called Pyne, told him of the Kaiser affair, and advised Pyne to call Kaminsky and ask the latter to contact Hammock in Fayetteville, North Carolina, where Hammock was going. On April 23, Kaminsky called Hammock in Fayetteville and told him to come to Chicago to meet with Pyne. Hammock arrived on April 24 and called Pyne. Kaminsky, Pyne, and Hammock then discussed when they should "make a play" for Kaiser. Hammock called Fellabaum in New York, told him of his discussion with Pyne and Kaminsky, and directed him to come back to Chicago. Fellabaum agreed to do so.

On April 26, Hammock was arrested by agents of the Federal Bureau of Investigation on another charge. He was released in time to go to New York for a court appearance on May 6. On that day, he began full cooperation with the F.B.I. in the matter now before this court. No further action was taken by Hammock in the Kaiser matter without the knowledge and usually the accompaniment of the F.B.I.

Subsequent to May 6, Hammock met Kaminsky in Philadelphia and discussed doing something about Kaiser. Pursuant to this conversation, Hammock called Doss Smith on Kaminsky's instructions and told him to mail the wallet to Fayetteville; in the meantime, Smith had obtained the wallet from Fellabaum. Kaminsky then called Hammock and instructed him to come to Chicago. Hammock and two F.B.I. agents then left for Chicago, and Hammock picked up the wallet at the post office box to which he had previously mailed it. Kaminsky told Hammock he would be ready to move the following morning on the "Normal" matter (i.e., the Kaiser extortion).

The next morning, Hammock and Kaminsky drove to Pyne's house, and Kaminsky took a police badge (referred to as a "button") from Pyne's car to use in the extortion. After beginning the drive to Normal, the men concluded they would arrive at Normal too late in the day to accomplish their purposes, and Kaminsky therefore decided it would be better to wait a few days. Some discussion was then had as to whether they should continue "the Kaiser play". Apparently, however, no further effort was made to contact Kaiser prior to the time they were arrested.

This appeal presents a number of asserted errors in the trial court. They will be taken up individually.


The first allegation of error is that the government failed to prove travel in interstate commerce, which the defendants contend is an essential element of the crime charged in the indictment. The defendants' argument runs as follows: The indictment charged a conspiracy to violate 18 U.S.C. § 1952, to-wit: "to travel and cause travel in interstate commerce, with an intent to promote * * * an unlawful activity, involving extortion. * * *"; the only overt act alleged in the indictment having to do with travel in interstate commerce was the trip on May 18, 1966 from North Carolina to Chicago by the co-conspirator, Hammock; since at that time Hammock had already begun cooperating with the F.B.I., this trip could not be in furtherance of the conspiracy; therefore proof of interstate travel by a co-conspirator, the "gravamen of the charge", is missing.

The following cases are cited to support the defendants' contention: Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 67 S. Ct. 224, 91 L. Ed. 196 (1956); Brown v. United States, 150 U.S. 93, 14 S. Ct. 37, 37 L. Ed. 1010 (1893); and United States v. Morello, 250 F.2d 631 (2d Cir. 1957). These cases state the rule that acts done after a conspiracy has ended, or acts done by one not a co-conspirator at the time, may not be attributed to the alleged co-conspirators. See especially the Morello case at 635.

If Pyne and Fellabaum had been charged with the offense of interstate travel as a substantive crime under Title 18, § 1952, this question raised by the appellants would be relevant. However, the appellants err in contending that Hammock's travel was the "gravamen" of this indictment; defendants were charged with conspiring to violate § 1952, and interstate travel itself is not an essential element for such conspiracy.

A conspiracy to commit a crime is a different offense from the substantive crime which is the objective of the conspiracy. United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682, 59 L. Ed. 1211 (1915). The gist of the offense of conspiracy under § 371 of Title 18 is the agreement to violate the substantive statute, which in this case is § 1952. United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert. den. Cinquegrano v. United States, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965).

The government was obliged to prove that there was an agreement to commit the crime of interstate travel in aid of racketeering and to show at least one overt act toward that end; it was not necessary for the government to prove the accomplishment of the objective of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946); Downing v. United States, 348 F.2d 594 (5th Cir. 1965), cert. den. 382 U.S. 901, 86 S. Ct. 235, 15 L. Ed. 2d 155 (1965); Lewis v. United States, 11 F.2d 745 (6th Cir. 1926). It is also not necessary that the prosecutor prove each of the overt acts alleged in the indictment. See United States v. Vittoria, 284 F.2d 451 (7th Cir. 1960).

The testimony in this case was sufficiently clear to enable the jury to find an intention on the part of the conspirators to travel or cause travel in interstate commerce in furtherance of the agreement. If the jury believed Hammock's testimony that Kaminsky called him in North Carolina on May 16 and told him to come to Chicago, this was sufficient to support a finding of an intent to travel and cause travel in interstate commerce. The fact that this intention failed because of Hammock's cooperation with the F.B.I. is immaterial in a conspiracy prosecution. See Singer v. United States, 208 F.2d 477 (6th Cir. 1953).


The defendant Fellabaum also asserts that the government failed to prove that he had the requisite knowledge or intent to conspire to commit the crime charged in the indictment. Fellabaum urges that Ingram v. United States, 360 U.S. 672, 79 S. Ct. 1314, 3 L. Ed. 2d 1503 (1959) is precisely in point. In Ingram, the Supreme Court stated at pages 677, 678, 79 S. Ct. at 1319, that

"It is fundamental that a conviction for conspiracy under 18 U.S.C. § 371 cannot be sustained unless there is 'proof of an agreement to commit an offense against the United States.' Pereira v. United States, 347 U.S. 1, 12, [74 S. Ct. 358, 98 L. Ed. 435]."

Evidence of a defendant's knowledge of the purpose of the conspiracy must be clear and unequivocal. It may, however, be inferred from the circumstances, acts, and conduct of the parties. ...

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