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United States v. Blakey

decided: October 25, 1979.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES A. BLAKEY AND LOUIS A. BERRY, DEFENDANTS-APPELLANTS.



Before Pell, Sprecher and Bauer, Circuit Judges.

Author: Sprecher

The defendants, Chicago police officers James Blakey and Louis Berry, were convicted by a jury of extortion and conspiracy to commit extortion in violation of the Hobbs Act, 18 U.S.C. ยง 1951.*fn1 They appeal, alleging several grounds for reversal of their convictions. First, the defendants argue that there is no federal jurisdiction over the alleged offenses because the government failed to prove the connection with interstate commerce required under the Hobbs Act. Second, the trial court's action admitting into evidence recorded statements of the deceased victim of the alleged extortion violated defendants' Sixth Amendment confrontation rights and the rule against hearsay, Fed.R.Evid. 802. Third, the trial court's actions, during pre-verdict and post-trial hearings on the admissibility of the tape recording, constituted an abuse of discretion and a denial of due process. Finally, defendants assert that the prosecutor's reference, during closing argument, to facts not in evidence and the trial court's reprimand of defense counsel during that argument deprived defendants of a fair trial with effective assistance of counsel. We find all of the arguments raised by defendants without merit and affirm their convictions.

I

On July 31, 1976, a shop operated by Leo Dyer at 6724 South Halsted Street in Chicago was under intensive Federal Bureau of Investigation (F.B.I.) and Chicago Police Department surveillance. The F.B.I., pursuant to court order, had planted microphones inside the shop and had placed a wire tap on the shop's telephone. The Chicago Police Department, investigating suspected police corruption, maintained physical surveillance of the shop. Both operations were conducted from an apartment in a building across the street from Dyer's establishment.*fn2 Dyer attracted this attention because he was believed to be engaged in the illegal sale of narcotics and stolen property and in "paying off" Chicago police officers.

At approximately 4:00 p. m. on July 31, 1976, three men identifying themselves as police officers entered the shop, ostensibly to search for narcotics pursuant to a search warrant. It is undisputed that two of the men were the defendants, Officers Blakey and Berry. It is similarly undisputed that neither officer was assigned to the district in which the shop was located, that both officers were off-duty on July 31, 1976, and that no search warrant had been issued to either officer during July, 1976.

Upon entering the shop, the three officers searched Dyer and several other persons there with him. Dyer was directed to place the contents of his pockets on top of a freezer; among the items placed there were a large roll of currency and Dyer's keys. During the search, Alphonzo Pitman,*fn3 the son of one of the women in the shop with Dyer, knocked on the door. He testified that he looked in the window and saw one of the officers counting Dyer's money and that Officer Berry came to the door and identified himself as a police officer. A short time later, Pitman's mother and the other woman in the shop were released and joined him outside. Remaining in the shop were the three police officers, Dyer, and Timothy McCutchen, an associate of Dyer's with a criminal record.

After the personal searches were completed, the officers began searching the shop. While the evidence indicates that Dyer was in the new and used tire business, the shop also contained various items of other merchandise bought and sold by Dyer. The search apparently was quite extensive, with the officers moving merchandise and boxes to facilitate their examination of the premises. Two guns were found, one of which, a shotgun, was fired inside the shop by one of the officers. The noise caused Iva Lee Jackson, one of the women who had left the shop, to look through the shop's window. Ms. Jackson saw Dyer's roll of money still on the freezer and also saw a foil packet containing heroin found during the search. The defendants then called Dyer to the rear of the shop; one of them picked up Dyer's roll of money and carried it into the rear with him. The two officers and Dyer remained in the rear for almost fifteen minutes when the third officer joined them; all three officers emerged approximately one minute later and began filling paper bags with merchandise from the shop. The officers were observed leaving the shop by the surveillance personnel across the street. Before the officers reached their car, Alphonzo Pitman ran after them, at Dyer's request, to retrieve Dyer's keys, which had been next to the money on the freezer; Officer Blakey gave Pitman the keys.

The F.B.I. electronic surveillance team recorded a number of conversations in the shop during the defendants' visit and after their departure. These recorded conversations will be described where relevant in the discussion that follows. Leo Dyer died of natural causes prior to trial and thus was unavailable for cross-examination as to his recorded statements. The defense theory at trial was that the defendants had taken no cash from Dyer and had paid for the merchandise they carried from the store. Apparently, the jury found this theory unconvincing.

II

Defendants' first argument on this appeal is that Dyer's shop was not a tire shop at all; rather it was an illegal heroin and fencing operation not constituting "commerce" under the Hobbs Act.*fn4 Defendants do not deny that some of the tires purchased by Dyer reached his shop through interstate commerce; they argue instead that the tire purchases and sales were a sham, engaged in only to provide a legitimate "front" for Dyer's wholly illicit business. Alternatively, defendants argue that even if the Hobbs Act extends to Dyer's shop, the government has failed to show that the alleged extortion affected interstate commerce. The government concedes that Dyer's illegal activities far exceeded, in dollar volume, his tire sales. The government argues, nonetheless, that the evidence reveals sufficient legitimate business activity to fall within the scope of the Hobbs Act.

Although federal criminal statutes typically receive a narrow construction, the Hobbs Act's interstate commerce requirement has been construed expansively. U. S. v. Elders, 569 F.2d 1020, 1023 (7th Cir. 1978); U. S. v. Staszcuk, 517 F.2d 53, 58 (7th Cir.) (en banc), Cert. denied, 423 U.S. 837, 96 S. Ct. 65, 46 L. Ed. 2d 56 (1975). The expansive construction is dictated by the congressional intent that the Act employ the full federal commerce power. Staszcuk, 517 F.2d at 58; U. S. v. DeMet, 486 F.2d 816, 821 (7th Cir. 1973), Cert. denied, 416 U.S. 969, 94 S. Ct. 1991, 40 L. Ed. 2d 558 (1974). As the Supreme Court has stated:

(The Hobbs) Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.

Stirone v. U. S., 361 U.S. 212, 215, 80 S. Ct. 270, 272, 4 L. Ed. 2d 252 (1960). In determining whether the requisite connection with interstate commerce exists, we must view the evidence in the light most favorable to the government. Glasser v. U. S., 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); U. S. v. Merolla, 523 F.2d 51, 53 (2d Cir. 1975); U. S. v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc), Cert. denied, 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed. 2d 385 (1975); U. S. v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974).

The evidence in this case reveals that, although Dyer primarily engaged in illegal activity, he also engaged, to some extent, in the legitimate sale of new tires which reached his shop through interstate commerce.*fn5 The testimony of several witnesses indicated that Dyer had been engaged in the tire business at least since 1973; invoices from Dyer's tire purchases were in the name of "Leo's Tire Service" and "Leo's Halsted Tire Shop";*fn6 and the invoices indicate that Dyer spent over $2000 on new tire purchases during the first ten months of 1976. This evidence shows that some legitimate business activity affecting commerce took place in Dyer's shop.

The defendants and the government agree that no authority indicates whether the Hobbs Act applies to wholly illegal businesses. We need not consider this issue because it is clear that Dyer's business had a legitimate facet. We can find no cases stating that legitimate commercial activity is drawn outside the coverage of the Hobbs Act when it is conducted together with a much more profitable illegal business.*fn7 On the contrary, Hobbs Act extortion convictions have been upheld where the victim of the extortion was a legitimate business involved in some, albeit quite minor, illegal activities. See, e. g., U. S. v. Braasch, 505 F.2d 139, 142-43 (7th Cir. 1974), Cert. denied, 421 U.S. 910, 95 S. Ct. 1561, 1562, 43 L. Ed. 2d 775 (1975); U. S. v. Pacente, 503 F.2d 543, 545 (7th Cir.) (en banc), Cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642 (1974). These decisions indicate that the presence of some illegality in the victimized business does not Per se remove it from the Act's coverage. Similarly, a Hobbs Act conviction has been upheld where the extortion was directed against a "dummy" corporation, a business operated by the F.B.I. to facilitate detection of official corruption. U. S. v. Santoni, 585 F.2d 667, 671 (4th Cir. 1978), ...


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