781 F.2d 1234 (7th Cir. 1985), 85-1289, United States v. Burke

Docket Nº:85-1289.
Citation:781 F.2d 1234
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dennis BURKE, Defendant-Appellant.
Case Date:December 11, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1234

781 F.2d 1234 (7th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dennis BURKE, Defendant-Appellant.

No. 85-1289.

United States Court of Appeals, Seventh Circuit

December 11, 1985

Submitted Oct. 31, 1985.

Rehearing Denied Jan. 8, 1986.

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[Copyrighted Material Omitted]

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Edward M. Genson, Genson & Steinback, Jeffrey B. Steinback, Chicago, Ill., for defendant-appellant.

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Michael T. Mullen, Asst. U.S. Atty., Charles B. Sklarsky, Chicago, Ill., of counsel, for plaintiff-appellee.

Before BAUER, POSNER and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

United States v. Donnelly, 179 F.2d 227, 233 (7th Cir.1950), holds that when a defendant introduces evidence of his good character, the jury should be told that "character evidence may in itself be sufficient to create in the minds of the jury a reasonable doubt at to the guilt of the defendant." Instruction 3.15 of this circuit's pattern jury instructions incorporates the requirement of Donnelly. Every other court of appeals that has spoken on the question has concluded that such an instruction gives undue weight to character evidence. The district court, agreeing with this perspective, refused to give pattern instruction 3.15. Today we join the other courts of appeals. We overrule Donnelly and affirm the conviction. 1

I

The jury convicted Burke of extortion and attempted extortion, in violation of 18 U.S.C. Sec. 1951. He received fines aggregating $30,000, nine months in a work release program, and five years' probation on condition that he cease being a private investigator. His investigation business led him to ruin.

The facts, which we recount as we must in a light favorable to the prosecution, showed that in April 1984 Thomas Clark, one of Burke's neighbors, told Burke that Illinois Bell Telephone Co. had received a subpoena from a federal grand jury in Alabama. The grand jury was interested in the business of Capitol Lighting Products, a firm of which Clark was president. Capitol apparently made extensive use of the interstate phone system to sell its products.

Clark asked Burke--who had been an officer of the Chicago Police Department before becoming a private investigator in 1976--what the subpoena meant. Burke replied that he knew the FBI agent in charge of the investigation and had been told that the grand jury was investigating violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq., violations that Burke assured Clark could allow the government to take Clark's home, business, "and everything." Clark did not find this assuring at all. He volunteered that if the grand jury was investigating Capitol Lighting, it was probably also investigating Midwest Industrial Lighting Co., a firm using similar business methods run by Clark's former partner Michael Noonan. Burke obtained some information about Noonan, promised to check out his situation, and insisted that Clark visit an attorney of Burke's choice.

Burke conveyed an accurate picture of the sanctions under RICO. See United States v. Ginsburg, 773 F.2d 798 (7th Cir.1985) (en banc). That was, however, his only truthful statement. He knew nothing about the investigation, which ultimately did not produce indictments and never had been concerned with RICO. He did not know either the prosecutor or the responsible agents; he never talked to any of them. But Burke spun out the tale in subsequent meetings with Clark and Noonan. Burke told both that they had to pay him (or the attorney) substantial sums so that he could pay off the FBI agent in charge of the investigation, an agent who Burke claimed as a friend and who, Burke threatened, had already obtained sealed indictments against both Clark and Noonan.

Burke insisted that Clark and Noonan not talk to each other. Then he told Clark that Noonan's firm was the prime target, so that Clark could escape jeopardy for only $15,000--$10,000 for the agent and $5,000 for Burke. Clark eventually gave a check for $5,000 to the lawyer and started raising the other $10,000. Burke told Noonan that he could have Noonan's indictment

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taken care of for $70,000. By the time Burke and Noonan met, however, Noonan was wearing a concealed tape recorder furnished by the FBI. Shortly after this meeting Noonan told Clark that Burke was a fraud. Clark stopped payment on his check to the lawyer and told Burke that he was backing out. Noonan and Burke had one more conversation; this, too, was recorded. Burke told Noonan that he would "have front row seats and be able to see exactly what would have happened if he did not pay the money." The payoff, said Burke, was now "72 firm" ($72,000), and the FBI agent had agreed to all terms.

His threats and inducements on tape for all to hear, Burke did not deny that he had demanded money from Clark and Noonan. His defense was that he was trying to lead Clark and Noonan on, to find out why they were willing to pay so much money to escape indictment. Once he figured out what Clark and Noonan were up to, Burke maintained, he planned to turn them over to the FBI for prosecution. He asserted that this would have been a public relations bonanza, promoting his investigations business.

A public relations agency might have questioned a strategy of angling for new clients by proclaiming that you have just sold your old ones down the river. Doubtless Burke was not planning to use testimonials to attract business. However that may be, the jury did not believe that Burke was a publicity-seeker determined to root out crime. It convicted him on all counts.

II

Burke called ten character witnesses, all affiliated with law enforcement. Some knew Burke socially, some had worked with him professionally. All testified that he had a reputation for truthfulness and abiding by the law; some testified that he had given aid in enforcing the law. Burke then took the stand and gave his explanation for his dealings with Clark and Noonan.

Burke asked the district judge to read pattern instruction 3.15 to the jury. The instruction states: "You should consider character evidence together with and in the same manner as all the other evidence in the case. Character evidence alone may create a reasonable doubt of the defendant's guilt." The district judge declined to give the instruction. She replaced the second sentence with: "Character evidence may be considered by you in determining whether the Government has proven the defendant's guilt beyond a reasonable doubt." The judge allowed Burke's lawyer to argue his theory of defense to the jury and to point out the role character evidence played in that theory.

Burke objected to the judge's modification of instruction 3.15, pointing to the advisory committee's note, which states in part: "The Committee recommends giving the standing alone instruction in all instances in which character evidence is introduced. First, the United States Supreme Court arguably has sanctioned its use in Edgington v. United States, 164 U.S. 361 (1896), and Michelson v. United States, 335 U.S. 469 (1948). Second, and most importantly, the courts have failed to define with particularity the instances in which the instruction concededly must be given. Accordingly, the exclusion of the 'standing alone' language from the character evidence instruction creates an unnecessary issue."

Judge Getzendanner disagreed with the committee's comment. She explained: "In this case it would be particularly inappropriate to give that standing-alone kind of instruction because here the defendant has testified. And if the jury believes that the defendant is lying, then one could not conceivably acquit him on the basis of the character testimony.... I think that it would be a tremendous point of confusion to the jury to say that even though they disbelieved the defendant they may acquit him because he has a reputation for being law-abiding."

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This reasoning is exactly right. 2 The "standing alone" instruction conveys to the jury the sense that even if it thinks the prosecution's case compelling, even if it thinks the defendant a liar, if it also concludes that he has a good reputation this may be the "reasonable doubt" of which other instructions speak. A "standing alone" instruction invites attention to a single bit of evidence and suggests to jurors that they analyze this evidence all by itself. No instruction flags any other evidence for this analysis--not eyewitness evidence, not physical evidence, not even confessions. There is no good reason to consider any evidence "standing alone."

If a jury ever should be told to consider evidence in isolation, character evidence is the wrong kind to single out. It is usually inadmissible, because it is usually off the point. It does not speak to the question whether the accused committed the crime. People of impeccable reputation may commit crimes, and when they are charged with crime the question is whether they did it, not whether they enjoy a high social standing. Fed.R.Evid. 404(a) declares that as a rule character evidence is not admissible. Although the defendant may introduce the evidence (giving the prosecutor the right to put in more in reply), this dispensation is not based on a strong belief that the evidence is probative. The Advisory Committee's note to Rule 404 states: The "circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof.... [The] basis [of the rule] lies more in history and experience than in logic ... In any event, the criminal rule is so deeply embedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence." Character evidence...

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