United States v. DeMet

• Decision Date: 25 October 1973
• Docket Number: No. 72-1657.,72-1657.
• Citation: 486 F.2d 816
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George DeMET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 816 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. George DeMET, Defendant-Appellant.

No. 72-1657.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 1973.

Decided October 25, 1973.

Rehearing Denied November 26, 1973.

James G. Demopoulos, Chicago, Ill., for defendant-appellant.

John J. Robinson, Appellate Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges.

FAIRCHILD, Circuit Judge.

Defendant was convicted by a jury of obstructing, delaying and affecting commerce and the movement of articles in commerce by extortion in violation of 18 U.S.C. § 1951, commonly called the Hobbs Act.¹ On this appeal defendant asserts error in jury selection, insufficiency of the evidence as to extortion and effect on interstate commerce, and erroneous rulings during the course of trial. We have considered these contentions, find none meritorious and affirm the conviction.

Viewing the evidence in a light most favorable to support the verdict, the following facts appear:

Louis King owned a Chicago cocktail lounge called "The Scene" during the period covered by the indictment, November, 1969 to February, 1970. King purchased some of the beer for his business from the Chicago branch of Anheuser-Busch. It was brewed outside Illinois. Some of the liquor he purchased came from distilleries in other states or countries.

During the period of the indictment, defendant was a Chicago police officer and vice coordinator assigned to the district where the Scene was located.

In late November or early December, 1969, defendant and several other police officers visited the Scene. They sat at the bar and defendant asked King how it was going and whether King had any problems. King described how a police sergeant would come into the lounge on weekend nights and require payment of $10 or $20 in exchange for not enforcing a late night parking ordinance which went into effect one hour before closing. King also told defendant that police officers would come on week nights and unjustifiably accuse him of staying open after hours.

This conversation occurred at about 2:00 A.M. when the lounge was busy. Defendant asked if there was a more quiet place where they could talk. King led defendant to a back room. Once in the room, defendant said, "In order to avoid all this bullshit why don't you pay so much a month." King asked, "Now, what's the mutuels ?" To which defendant replied, "Well you tell us." King offered $50.00 a month, a sum which defendant found acceptable. King and his wife made the payment to defendant.

King testified that he paid the money to defendant because he feared that if he did not pay it might jeopardize his liquor license and lead to more "harassment."

Just before Christmas, 1969, defendant and three other officers all in plain clothes entered the Scene Lounge. During conversation with King one of the officers mentioned that a gift had been given or would be given to the "Commander." One of the officers asked what King was going to give. King displayed a bottle of Grand Metaxa. Then one of the officers asked, "Well what about us ?" King replied, "O.K. Stop around Christmas and I will have something for you."

King testified that he inferred from this conversation that if he didn't cooperate he might be charged with liquor violations or risk loss of his license.

Later during the Christmas week, defendant stopped at the Scene between 7:00 and 8:00 P.M. before it had opened for business. He had previously called to make sure someone would be there. King had two cases of liquor and two extra bottles waiting for him when he arrived, and assisted in loading the cases into defendant's car. King estimated the value to be over $300.00.

Sometime between Christmas, 1969 and New Year's Day, King had another conversation with defendant at the police station. King complained to defendant that even though he was paying $50.00 a month, he had been forced to pay $300.-00 to a sergeant and a patrolman the previous evening. Defendant professed ignorance of the incident and suggested that they go see the "boss." Defendant and King then went to the district commander's office. Defendant went in to see the commander and, after a few minutes, King was invited into his office.

In the presence of defendant, King related to the commander the incident of the previous night. King then asked, "Why am I paying $50.00 a month when I am brought into the station for after hours and forced to pay $300.00 a month ?" The commander replied, "I will take care of this. Don't worry about it."

In January, 1970, defendant again visited King at the Scene in the company of other police officers. Defendant asked to see King for a few minutes. The two then went to a back room. King called his wife; Mrs. King came in and gave defendant $50.00.

Following the payments, the Scene had no further parking problems.

1. Claim That Challenges For Cause Were Improperly Overruled.

Shortly before defendant's trial began, another vice officer from defendant's district was tried and convicted of extortion of a tavern owner in violation of § 1951 before another judge of the district court. In other respects the two cases were unrelated.

During the selection of the jury for this case, seven, ultimately, of those called had served on the earlier jury. One indicated that his judgment might be affected by such service and was excused for cause. Each of the other six testified he could be impartial, and defendant's challenges of them for cause were overruled. Defendant exhausted his peremptory challenges, using five for other jurors, but one of the jurors from the other case remained on the jury.

Mere service on another jury confronted with similar charges and similar facts is not, even where some of government witnesses are the same, the type of experience from which the law will infer bias.² We find no error.

2. Alleged Failure to Prove Extortion.

Under § 1951 extortion is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened fear, or under color of official right." The government's proof was directed to showing that King feared economic loss should he not comply with defendant's demands.

Defendant contends that the government's proof was an insufficient basis upon which to convict for extortion. Because King admitted his encounters with the defendant were friendly and defendant never said nor intimated he would cause "trouble," defendant contends that King's conduct was not motivated by fear as required by § 1951. Rather, defendant argues, King willingly gave money to defendant because it brought certain advantages (such as non-enforcement of parking restrictions) to which he was not lawfully entitled. Thus, in essence, defendant argues that he was merely a receiver of bribes and could therefore not be guilty of extortion.

Fear, as used in § 1951, includes not only fear of physical violence but fear of economic harm, as well. Bianchi v. United States, 219 F.2d 182, 189 (8th Cir., 1955), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249; United States v. Sopher, 362 F.2d 523, 527 (7th Cir., 1966), cert. denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210. It is not necessary that this fear be a consequence of a direct threat, it is enough that the circumstances surrounding the alleged extortion render the victim's fear reasonable. See e. g., United States v. Tolub, 309 F.2d 286, 288-289 (2nd Cir., 1962); United States v. Addonizio, 451 F.2d 49, 73 (3rd Cir., 1972), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812; Carbo v. United States, 314 F.2d 718, 740 (9th Cir., 1963); Callanan v. United States, 223 F.2d 171, 175-176 (8th Cir., 1955); United States v. Glasser, 443 F.2d 994, 1006 (2nd Cir., 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95.

Indeed, fear may be present even if confrontations between the victim and the alleged extorter appear friendly:

"The fact that relations between the victims and the extorters were often cordial is not inconsistent with extortion. Knowing that they were at the mercy of the Attorney General\'s office, it is a fair inference that the victims felt that to save their businesses they had to keep the extorters satisfied." United States v. Hyde, 448 F.2d 815, 834, 5th Cir., 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745.

Finally, it is important to note that the economic loss which the victim fears may be a consequence of action which the alleged extorter has a duty to take:

"It is the wrongful use of an otherwise valid power that converts dutiful action into extortion. If the purpose and effect are to intimidate others, forcing them to pay, the action constitutes extortion. Put another way, it is the right to impartial determination of the issue on the merits (i. e. whether to enforce the law or whether to picket or strike) that the victim is deprived of when these actions are taken for the purpose of coercing him into paying. The distinction from bribery is therefore the initiative and purpose on the part of the official and the fear and lack of voluntariness on the part of the victim." United States v. Hyde, supra, at 833.

While portions of King's testimony taken with other evidence may be consistent with defendant's view that King freely gave money and liquor to obtain advantages, the jury could reasonably infer from all the circumstances, including defendant's official position, that King was in fear of harm to his business, his fear was reasonable, and defendant exploited it to extort money and liquor.

If early morning customers of the Scene had their cars ticketed, they might take their business elsewhere or at least leave earlier. An arrest for staying open after hours could lead to loss of the...