Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 83 CR 977 -- James B. Moran, District Judge.
Before ESCHBACH and POSNER, Circuit Judges, and TIMBERS, Senior Circuit Judge.*fn*
TIMBERS, Circuit Judge. On December 14, 1983, Ira Blackwood (appellant) was indicted by a federal grand jury and charged with one count of racketeering (Count One) in violation of the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) (1982), and ten counts of extortion (Counts Two through Eleven) in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982). On July 2, 1984, the United States District Court for the Northern District of Illinois, James B. Moran, District Judge, denied appellant's motion to dismiss the indictment. On August 10, 1984, the court entered judgment on a jury verdict finding appellant guilty on all eleven counts. Appellant was sentenced on October 18, 1984 to two concurrent terms of imprisonment of seven years each on Counts One and Two, to be followed by nine concurrent terms of probation of five years each on Counts Three through Eleven. The court ordered a stay of execution pending appeal.
Appellant became a police officer with the Chicago Police Department in 1957. He became secretary of the Department's Traffic Court Unit in 1974. His office was in the Cook County Traffic Court building until February 1983 when he became a court sergeant in one of the branch courts of the Cook County Circuit Court.
Appellant's indictment stemmed from the Federal Bureau of Investigation undercover investigation known as Operation Greylord which concerned alleged corruption in the Cook County Circuit Court. Appellant was indicted for soliciting and receiving bribes between December 1981 and May 1983 from FBI Agent David Ries to influence the disposition of cases pending in various branch courts of the Cook County Circuit Court in violation of 18 U.S.C. §§ 1951 and 1962(c).
In September 1981, appellant was introduced to Agent Ries by former Judge Brocton Lockwood who had contacted the United States Department of Justice about criminal violations he believed were occurring in the Traffic Court building. Judge Lockwood agreed to cooperate with the investigation. He posed as a corruptible judge in the Cook County Circuit Court. Agent Ries posed as a private defense attorney new to the City of Chicago who was looking for a contact to help him in his practice of law in the Cook County court system which we have described above. Agent Ries paid appellant a total of $4400 to influence judicial decisions in the ten circuit court misdemeanor cases*fn1 which formed the basis of the indictment.
On appeal, appellant claims that his indictment and conviction for racketeering and extortion cannot stand as a matter of law; that the court committed reversible error in its evidentiary rulings; and that the government violated his Fifth Amendment privilege against self-incrimination by commenting on his failure to testify. We shall consider each of these claims seriatim.
The Hobbs Act, 18 U.S.C. § 1951, proscribes extortion which affects interstate commerce. The Act defines extortion as "the obtaining of property from another, with his consent, induced . . . under color of official right." 18 U.S.C. § 1951(b)(2). A public official's use of his office to obtain money not due him or his office is "the crux of the statutory requirement of 'under color of official right'". 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 (1975).
"It matters not whether the public official induces payments to perform his duties or not to perform his duties, or even . . . to perform or not to perform acts unrelated to his duties which can only be undertaken because of his official position. 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." Id.
In United States v. Rindone, 631 F.2d 491 (7th Cir. 1980), we held that
" De Jure ability to perform the promised act need not be present; sufficient is 'a reasonable belief that the state system so operated that the power in fact of the defendant's office included the effective authority' to fulfill the promise." Id. at 495, quoting United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.), cert. denied, 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed. 2d 385 (1975).
Appellant contends that the court erred in denying his motion to dismiss Counts Two through Eleven which charged him with violating the Hobbs Act. He contends that those counts did not allege extortion "under color of official right", since as a matter of law it is unreasonable for the victim of an extortion to believe that a police officer assigned to the Traffic Court Unit of the Chicago Police Department, by virtue of his official position, has the power to affect the disposition of cases being tried in the Circuit Court of Cook County. We cannot say that as a matter of law appellant's victim could not reasonably have believed that appellant's official position enabled him to keep his promise to influence judicial decisions by passing bribes on to judges in the Traffic Court and to judges Agent Ries believed had previously worked in the Traffic Court. United States v. Kaye, 586 F. Supp. 1395, 1405 (N.D. Ill. 1984). We hold that the court correctly denied appellant's motion to dismiss the Hobbs Act counts.
Appellant also contends that the evidence adduced at trial was insufficient to sustain the conviction on Counts Two through Eleven, since the evidence failed to establish that Agent Ries, the victim of the extortion, reasonably believed that appellant, by virtue of his official position, could influence the judicial disposition of cases heard in the Traffic Court and other local courts. We must view the evidence in the light most favorable to the government, United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974), and affirm the conviction if there was some competent and substantial evidence before the jury which fairly tended to sustain the verdict. Abrams v. United States, 250 U.S. 616, 619, 63 L. Ed. 1173, 40 S. Ct. 17 (1919).
Clearly, appellant's official position did not encompass the power to render judicial decisions. There was, however, competent and substantial evidence before the jury from which it could have concluded that agent Ries reasonably believed that appellant's power to affect judicial determinations was due -- at least in part -- to his official position as a patrolman assigned to the Traffic Court Unit who worked as a liaison between the court and the police department.
In his opening statement at trial, appellant's counsel made clear that appellant's defense to the Hobbs Act charges was that "no person with any semblance of reasonableness could have believed that [appellant] possessed any type of clout, a patrolman on the Chicago police force." The reasonableness of Agent Ries' belief was explored in detail in 169 pages of direct testimony by Agent Ries, followed by 302 pages of cross-examination. Ries testified regarding his belief about the power of appellant's position, his conversations with appellant, his observations of appellant, and appellant's independent knowledge of the court proceedings in question. Approximately 400 pages of transcript from taped conversations with appellant were reproduced for the jury.
Agent Ries testified that he saw appellant at various locations in the Traffic Court building -- appellant's office, the hallways of the first three floors, various courtrooms, the Corporation Counsel's office, and the Cook County Circuit Court Clerk's office. Agent Ries observed appellant talking to policemen, various members of the public, traffic court defendants, court clerks, court administrators, bailiffs, private defense attorneys, ...