U.S. v. Berardi
| Citation | 675 F.2d 894 |
| Decision Date | 14 April 1982 |
| Docket Number | No. 81-1902,81-1902 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerome BERARDI, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Patrick A. Tuite, Chicago, Ill., for defendant-appellant.
Thomas M. Durkin, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Senior Circuit Judge, and CUDAHY and POSNER, Circuit Judges.
Defendant-appellant Jerome Berardi was charged in a seven-count indictment with mail fraud, extortion and obstruction of justice. The jury acquitted him of mail fraud and extortion but found him guilty of obstructing justice. He appeals from this judgment of conviction. In his appeal Berardi raises a number of issues concerning the alleged duplicity of the obstruction of justice count, prejudicial joinder of counts, and the sufficiency of the evidence. We affirm his conviction.
Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the jury could have found the following to be the facts:
The defendant, Jerome Berardi, was employed from 1975 until September of 1980 as Chief Clerk of the Cook County Board of Appeals (the "Board"). The function of the Board is to review real estate assessments made by the Cook County Assessor. As Chief Clerk, Berardi exercised administrative authority over the processing of taxpayer complaints filed with the Board.
In the spring of 1976, Edward Krupa, a clerk employed by the Board, introduced Berardi to Walter Heiden, then the president of Gateway Chevrolet Sales, Inc., a car dealership located in Chicago. 1 Krupa asked Heiden to sell Berardi a car at dealer cost, apparently sweetening this request with the suggestion that Berardi might prove helpful with Gateway Chevrolet's real estate taxes. Heiden did subsequently sell Berardi a car, and in July of 1976, Berardi returned to Gateway Chevrolet seeking repairs. Krupa, who was present at Gateway Chevrolet during this visit, asked Berardi if he could assist Heiden with his real estate taxes. Berardi instructed Heiden to collect his old tax bills and Berardi agreed to review them.
Heiden presented his tax bills to Berardi in November or December of 1976. Berardi said that he could save Heiden $9,000 on his taxes but that this effort would cost Heiden $3,000 in cash. Heiden paid Berardi the money, after which Berardi filed with the Board a complaint (including property appraisals) concerning Gateway Chevrolet's property assessment. The Board lowered the assessment, resulting in a reduction of $9,000 in Gateway Chevrolet's 1976 tax bill. Heiden at no point during this proceeding filled out a complaint or appeared at a hearing before a Board hearing officer. A similar deal concerning Gateway Chevrolet's 1977 taxes was successfully completed in January of 1978, for the same price and with the same reduction in taxes.
Sometime in late 1978 or early 1979, Berardi informed Heiden that a reporter for the Chicago Tribune was examining Board records. Berardi told Heiden that, if questioned by the reporter, he should say that Heiden himself had prepared the complaint forms and had appeared at a Board hearing before hearing officers Jimmie Smith and Donald Erskine. Berardi also instructed Heiden not to reveal Berardi's participation in the property assessment reductions or to disclose the payment of money to Berardi. No part of this story was true but Heiden repeated it to the reporter when he in fact questioned Heiden.
On February 15, 1979, the Special January 1979 Grand Jury entered the picture, commencing an investigation into allegedly unlawful real estate assessment reductions granted by the Board. During April and May of 1979, the FBI examined the Board's files and interviewed a number of Board employees.
Perhaps sensing the possible uncovering of the Heiden payoffs, Berardi visited Heiden at Gateway Chevrolet in late March or early April. Berardi told Heiden of the FBI's investigation and indicated that he wanted to return some ($1,000) of the money that Heiden had paid him. Berardi instructed Heiden, if he should be summoned to appear before a grand jury, to say that Heiden had personally ordered and paid for the property appraisals, and not to disclose Berardi's own role in the assessment reductions at Gateway Chevrolet.
Heiden was interviewed by the FBI in late June or early July. 2 Heiden related to the agents the story that Berardi had basically outlined for him, namely, that Heiden had ordered the property appraisals and had appeared at a Board hearing over which Smith and Erskine had presided. As they left, the agents told Heiden to expect a grand jury subpoena. The following day, Heiden called Berardi to report on the FBI interview and to inform Berardi of the anticipated subpoena. Berardi again advised Heiden not to reveal to the grand jury that he had paid Berardi money in exchange for reductions in property assessments.
Heiden was served with a subpoena on July 23, 1979. He immediately called Berardi with the news. Again Berardi pleaded with Heiden not to disclose the payoffs and he also told Heiden to lie to the grand jury. At this point, Heiden said he was going to get a lawyer.
On January 8, 1981, a superseding indictment was returned, charging Berardi with four counts of mail fraud, 18 U.S.C. § 1341 (Counts One through Four), two counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (Counts Five and Six), and one count of obstruction of justice, 18 U.S.C. § 1503 (Count Seven). The jury, as indicated, found Berardi not guilty of mail fraud and extortion but found him guilty of obstructing justice.
Berardi's first contention is that Count Seven, charging him with obstruction of justice, was prejudicially duplicitous. Count Seven alleged that "(f)rom in or around April 1979 and continuing until in and around July 1979," Berardi in violation of 18 U.S.C. § 1503 3 corruptly endeavored to influence Heiden to testify falsely before the grand jury. The count then described three episodes in which Berardi was alleged to have furthered this endeavor. In each episode, Berardi was charged with having instructed Heiden to give false testimony to the grand jury. 4 Berardi claims that each episode or act constitutes a separate and distinct offense. Before trial, he moved to dismiss Count Seven or, in the alternative, to compel the government to make an election as to which of the three acts it would rely on at trial. This motion was denied by the district court.
A duplicitous count is one that charges more than one distinct and separate offense. United States v. Zeidman, 540 F.2d 314, 316 (7th Cir. 1976); United States v. Isaacs, 493 F.2d 1124, 1154 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); 8 J. Moore, Federal Practice P 8.03 (1981). 5 A count is not duplicitous, however, if it simply charges the commission of a single offense by different means. United States v. Pavloski, 574 F.2d 933, 936 (7th Cir. 1978); United States v. Tanner, 471 F.2d 128, 138 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). Rule 7(c) provides that "(i)t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means." Fed.R.Crim.P. 7(c)(1). This rule necessarily contemplates that two or more acts, each one of which would constitute an offense standing alone, may be joined in a single count without offending the rule against duplicity. Pavloski, 574 F.2d at 936. 6
The line between multiple offenses and multiple means to the commission of a single continuing offense is often a difficult one to draw. The decision is left, at least initially, to the discretion of the prosecution. United States v. Tanner, 471 F.2d 128, 138 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). In the instant case, it is no doubt true that the three acts of obstruction described in Count Seven could have constituted independent violations of section 1503 and could have been charged in separate counts. Had the government taken this route, of course, Berardi would have been subjected to multiple statutory penalties. The government, however, declined this opportunity to cumulate these punishments and the indictment, fairly interpreted, charges Berardi with a continuing course of conduct, during a discrete period of time, to influence Heiden's grand jury testimony.
We believe that the government's characterization of the facts as a single continuing offense was a fair one under the circumstances and is one which comports with the language of section 1503. See United States v. Zeidman, 540 F.2d 314, 317 (7th Cir. 1976). The obstruction of justice statute makes it unlawful for a person to "endeavor" to "influence, intimidate, or impede any witness." Although the section permits an indictment for each discrete act of obstruction, it also contemplates a continuing course of conduct, during the pendency of a judicial proceeding, designed to further the single object of influencing, intimidating or impeding a witness. 7 The government's characterization of the offense was also appropriate under the particular facts of this case. The three alleged acts of obstruction occurred within a relatively short period of time, were committed by one defendant, involved a single witness, and were in furtherance of Berardi's solitary object of influencing Heiden not to reveal to the grand jury the circumstances of the property assessment reductions.
From what we have said it should be apparent that our conclusion does not conflict with United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409...
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