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United States v. Kuta

decided: June 30, 1975.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANK J. KUTA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 74 CR 22 Prentice H. Marshall, Judge.

Castle, Senior Circuit Judge, Stevens and Sprecher, Circuit Judges.

Author: Castle

CASTLE, Senior Circuit Judge.

Defendant Frank J. Kuta, alderman of the twenty-third ward of the City of Chicago, Illinois from 1967 to 1971, was convicted by a jury on Counts II, IV, and IX of a ten-count indictment. Subsequently, the trial court acquitted the defendant on Count IV. Count II charged the defendant with extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (a), (b)(2),*fn1 and Count IX charged the defendant with the making of a false statement on his federal income tax return in violation of 26 U.S.C. § 7206(1).*fn2 From his convictions on Counts II and IX, the defendant appeals. We affirm.

I.

A.

Count II charged the defendant with obstructing, delaying and affecting commerce by obtaining $1500, not due either him or his office, under color of official right. The indictment further specified that the payment was made because Sam Vanchieri, a realtor, "believed and feared that he would be unable to procure a zoning change on property . . . in the Twenty-third Ward of Chicago, unless he compensated defendant to refrain from objecting to such a change as a member of the Chicago City Council . . .."

Viewed in the light most favorable to the Government, the evidence shows that Vanchieri believed that the alderman of the ward must approve zoning changes. In an attempt to have property that he owned in the twenty-third ward rezoned, Vanchieri contacted the defendant. At this initial meeting, Kuta told Vanchieri that he had no objection to the proposed zoning change. Nothing more was said. Vanchieri then filed an application for a zoning change, and on November 17, 1969 the requested amendment was passed by the full City Council, alderman Kuta voting in favor of the amendment.

On December 1, 1969 the defendant telephoned Vanchieri and asked to see him. Vanchieri responded that he would be right there. He then put a blank check in his pocket and went to Kuta's office. When he arrived, Vanchieri initiated the conversation by asking how much he owed. He asked that question because, in light of Kuta's telephone call, he "thought [he] owed him something for not objecting to the zoning." In response to Vanchieri's question, Kuta replied "$1500." Vanchieri made out the blank check that he had brought payable to himself, endorsed it, gave it to the defendant, and then left the office.

As a result of the zoning change, Vanchieri constructed three buildings on his newly zoned lots using materials transported in interstate commerce.*fn3

The defendant's first attack on his convictions is that the evidence is insufficient to establish the two essential elements of the Hobbs Act offense charged here: interference with commerce, and extortion. Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). Considering first the element of extortion, the type of extortion charged here was the "obtaining of property from another, with his consent, induced . . . under color of official right." 18 U.S.C. § 1951(b)(2). In United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied 421 U.S. 910, 95 S. Ct. 1562, 43 L. Ed. 2d 775, 43 U.S.L.W. 3551 (U.S. April 14, 1975), we explained:

The use of office to obtain payments is the crux of the statutory requirement of "under color of official right" . . . . So long as the motivation for the payment focuses on the recipient's office, the conduct falls within the ambit of 18 U.S.C. § 1951.

The evidence here is sufficient to show that it was Kuta's office that brought forth Vanchieri's payment, and that therefore the defendant committed extortion. Vanchieri believed that the alderman must approve zoning changes, the approval taking the form of not objecting to the proposed change. In addition to Vanchieri's belief, the record shows that persons contacted the defendant about zoning problems,*fn4 and a realtor, Irwin Michaels, testified that he discussed payments for zoning changes with the defendant.*fn5 The jury could conclude from this evidence that as alderman the defendant exercised power over zoning amendments, and that the payment by Vanchieri was made to influence that aldermanic power. See United States v. Staszcuk, 502 F.2d 875, 878 (7th Cir. 1974), rev'd in part on other grounds en banc, 517 F.2d 53 (7th Cir. 1975).

Turning to the interstate commerce element, there was evidence that buildings constructed on the rezoned property could not have been constructed under the pre-existing zoning, and it was stipulated that those buildings contained materials that had moved in interstate commerce. See note 3 supra. Clearly, this is adequate to show that the rezoning affected interstate commerce by facilitating the flow of building materials across state lines. United States v. Staszcuk, supra, at 878 & n.8. The defendant argues, however, that the ...


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