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United States v. Frasch

decided: May 6, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BRUCE FRASCH, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 CR 555, James F. Holderman, Judge.

Author: Flaum

Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge. Bruce Frasch was convicted on multiple counts of racketeering, extortion, and tax evasion. On appeal, he raises three objections to the manner in which his trial was conducted. First, Frasch argues that the district court abused its discretion in refusing to redact three tape recordings of conversations in which Frasch used the word "nigger." Second, Frasch argues that the government failed to prove the requisite connection between his extortion activities and interstate commerce for purposes of the Hobbs Act, 18 U.S.C. ยง 1951 (1982). Finally, Frasch objects to the district court's admission into evidence of statements by his co-conspirators, on the ground that there was insufficient independent evidence of a conspiracy for purposes of Federal Rule of Evidence 801(d)(2)(E). We reject each of these claims, and affirm Frasch's conviction.

I.

In 1981, Bruce Frasch, a sergeant with the Cook County Sheriff's Police, was promoted to the position of commander of its Vice Control Unit. This unit was primarily responsible for the enforcement, in Cook County, of state laws pertaining to gambling, prostitution, and liquor.

On August 28, 1985, as a result of an FBI undercover investigation called "Operation Safebet," a federal grand jury returned a twenty-one count indictment against Frasch and five other officers of the Cook County Sheriff's Police. The indictment charged that between 1977 and 1985 the defendants had solicited and received bribes in their official capacity in order to protect the activities of various bookmakers, gamblers, and houses of prostitution operating in Cook county. Frasch was named as a defendant in fifteen of the counts.

Four the six police officers named in the indictment pleaded guilty; only Frasch and one co-defendant, James Keating, stood trial. At trial, the government's case rested on three groups of witnesses: operators of unlawful businesses who had assisted the FBI in its investigation; FBI agents who had established direct undercover contact with the suspects; and Vice Control Unit members who had admitted their involvement in the charged scheme. The jury found Frasch and Keating guilty of all counts brought against them, and Frasch now appeals his conviction.

II.

A.

Before the trial, the government provided defense counsel with copies of all tape recordings related to the case, and transcripts of these recorded conversations. On three of these tapes Frasch could be heard making racially derogatory remarks to Tom Gervais, a man who had been active in various prostitution and off-track betting schemes and had agreed to cooperate with the FBI investigation. For example, on November 23, 1981, Gervais and Frasch discussed setting up an off-track betting service for horse racing. In the course of this taped conversation, Frasch remarked:

Se what happens. 'Cause I really think that if niggers hadn't gotten involved in the last time. They just ripped everybody off, you know, might not have a problem.

On January 13, 1982, Gervais and Frasch had a similar conversation. According to the transcript, Frasch remarked, "Yeah, who plays the . . . harness, it sucks, it's just a nigger game, you know, for the most part." In the course of this conversation, Frasch also advised Gervais to be careful with "trick bets" (bets with long odds and big payoffs):

That's what happened last time, see, when the niggers got involved. They, "fuck you, we ain't paying you. We didn't get to the track today."

Finally, in a conversation on January 15, 1982, Frasch gave Gervais further advice about setting up an off-track betting service, and made a number ...


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