U.S. v. Hocking

• Decision Date: 06 December 1988
• Docket Number: No. 88-1087,88-1087
• Citation: 860 F.2d 769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Oliver HOCKING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 769

860 F.2d 769

UNITED STATES of America, Plaintiff-Appellee, v. James Oliver HOCKING, Defendant-Appellant.

No. 88-1087.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1988.

Decided Oct. 14, 1988.

Rehearing and Rehearing En Banc Denied Dec. 6, 1988.

John Casey, Casey & Casey, P.C., Springfield, Ill, for plaintiff-appellee.

Patrick J. Chesley, Asst. U.S. Atty., J. William Roberts, U.S. Atty., Springfield, Ill., for defendant-appellant.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

James Hocking appeals from his convictions on one count of racketeering in violation of 18 U.S.C. Sec. 1962(c) (the Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. Secs. 1961-1968 (1978)) and one count of extortion in violation of 18 U.S.C. Sec. 1951 (the Hobbs Act, 18 U.S.C. Secs. 1951-1955 (1986)).

I

In April 1986, James Hocking was employed as a Pre-qualification Financial Analyst with the Illinois Department of Transportation ("IDOT") assigned to the task of "pre-qualifying" contractors who wished to bid on road construction contracts let by the IDOT. Hocking's job required him to assess the financial resources and work capabilities of applicant firms by examining their assets, liabilities, operating equipment inventories and work experience. Based on that evaluation, Hocking would assign each firm a financial rating and a work rating that determined the maximum size contracts the contractor could bid on and the maximum total dollar amount of contracts the firm could hold at any one time.

On April 8, 1986, two Federal Bureau of Investigation ("FBI") agents, Steven Nash and David Steele, arrived at the Hocking residence at 5:30 p.m. When Hocking answered their knock at the door of the house, the agents identified themselves and inquired if they could enter in order to ask some questions regarding an ongoing criminal investigation being conducted at the IDOT. Hocking allowed the agents to enter his home whereupon he, his wife and the two agents walked into the living room and sat down. Shortly thereafter, the FBI agents asked appellant's wife to leave the room. At that point the agents began to question Hocking. The agents did not advise appellant of his Miranda rights at the beginning of, nor at any point during, the conversation.

Hocking was first asked to explain his job and describe how the pre-qualification and bidding processes work. That portion of the conversation lasted for somewhere between one-half hour and one and one-quarter hours. At that point the agents informed Hocking that some persons in the IDOT were taking money and other gratuities from contractors in exchange for favorable treatment of those contractors in the pre-qualification and bidding processes. They then confronted him with allegations that on two or more occasions he had accepted money from contractors. Hocking denied having accepted any money from contractors.

The FBI agents next told Hocking that they had tape recordings of two conversations between Hocking and contractors concerning payoffs made by the contractors to him. Although there is some dispute as to precisely what the agents said, it is apparent that they also told Hocking that he faced criminal charges and could be imprisoned. They spoke further of the possibility of the government forcing him to forfeit any monies he had received illegally or any items purchased with those funds. The agents also encouraged Hocking to tell the truth.

After protesting his innocence for some time, Hocking eventually acknowledged that he had accepted $1,000 on one occasion. At some point near the end of the conversation, one of the FBI agents prepared a one-page handwritten statement and gave it to Hocking for his signature. The statement reads:

I, James Oliver Hocking, do provide the following statement to special Agents Steven G. Nash and David E. Steele of the Federal Bureau of Investigation without any threats or promises: [sic] In approximately 1984, while employed by the state of Illinois, Illinois Department of Transportation, as Pre-Qualification Anaylsis [sic], received $1,000 cash from, I believe the name to be, Lawrence LaGioia, in return for assistance in pre-qualifying LaGioia for state contracts. This money was not due me and I know it to be illegal for my acceptance of the money. LaGioia is the brother of Vito LaGioia who is a paying [sic] contractor located in the Chicago, Illinois area. The money was paid in cash at the Illinois Department of Transportation Building, 2300 South Dirksen, Springfield, Illinois. [sic]

Hocking initialed the statement at its beginning and end, and signed and dated it at the bottom. Shortly after Hocking initialed and signed the statement, agents Nash and Steele left the house.

In a three-count indictment handed down on July 30, 1987, Hocking was charged with racketeering under 18 U.S.C. Sec. 1962(c), as evidenced by acts of extortion in violation of 18 U.S.C. Sec. 1951 and bribery in violation of Ill.Rev.Stat., Ch. 38, p 33-1(d) (Count 1), and two separate acts of extortion in violation of 18 U.S.C. Sec. 1951 (Counts 2 and 3). Before trial, the government moved to dismiss Count 2 and those portions of Count 1 that cited federal extortion as racketeering activities. The government's motion was granted by the district court and the Count 3 Sec. 1951 extortion charge (renumbered Count 2) and the Count 1 Sec. 1962(c) racketeering charge, with an alleged act of state law bribery as its basis, proceeded to trial on October 21, 1987.

On August 31, 1987 appellant had moved to suppress the statement he gave to the two FBI agents on April 8, 1986. After a hearing on the matter on September 10, 1987, the district court denied appellant's motion to suppress. Following a jury trial, during which the district judge denied appellant's motion for a directed verdict of acquittal at the close of the government's case in chief, Hocking was found guilty on both counts. After denial of appellant's post-trial motions for a new trial and for judgment of acquittal, the district court sentenced him to eight years imprisonment and five years probation. This appeal followed.

II

Hocking raises five claims on this appeal. First, he maintains that the statement he signed on April 8, 1986 in the presence of the two FBI agents should have been excluded from evidence because the agents failed to give him Miranda warnings at any time during their interview of him on that date. Hocking claims further that the April 8, 1986 statement was inadmissible because he was coerced into signing it by the two FBI agents. Appellant also asserts that the district court erred in not granting his motion for a directed verdict of acquittal. The basis for that motion was Hocking's claim that the court was without jurisdiction over the charged Sec. 1951 offense because the government failed to prove the nexus between his actions and interstate commerce necessary to support a conviction under the Hobbs Act.

Hocking also asserts that the district court erred when, in instructing the jury on the 18 U.S.C. Sec. 1962(c) racketeering charge, it defined the Illinois Department of Transportation as an "enterprise" falling within the reach of Sec. 1962(c). Finally, appellant maintains that the district court erred when it denied his motion for a directed verdict of acquittal on the Sec. 1962(c) racketeering charge because the government failed to prove that he committed any acts of bribery as proscribed by Ill.Rev.Stat., Ch. 38, p 33-1(d).

III

A. The Failure of the FBI Agents to Give the Miranda Warnings

Hocking maintains that the failure of the two FBI agents who questioned him on April 8, 1986 to give him Miranda warnings renders the statement he signed on that date inadmissible. It is well established that "[t]he police are required to give [Miranda ] warnings only 'where there has been such a restriction on a person's freedom as to render him in custody.' " United States v. Bush, 820 F.2d 858, 861 (7th Cir.1987) (quoting California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 3519, 77 L.Ed.2d 1275 (1983) (quoting in turn Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977))). "[P]olice officers are not required to administer Miranda warnings to everyone whom they question." Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. "Miranda deals only with 'the admissibility of statements obtained from an individual who is subjected to custodial police interrogation.' " United States v. Lane, 811 F.2d 1166, 1170 (7th Cir.1987) (quoting Miranda v. Arizona, 384 U.S. 436, 439, 86 S.Ct. 1602, 1609, 16 L.Ed.2d 694 (1966)). See also United States v. Jackson, 836 F.2d 324, 326 (7th Cir.1987); United States v. Jones, 630 F.2d 613, 615 (8th Cir.1980) ("The critical question [with regard to the necessity for the Miranda warnings] is whether the interrogation occurred in a custodial setting.").

Hocking asserts that he was in fact in custody at the time the two FBI agents interrogated him in his home. He argues that due to his age (62 years old), heart condition and inexperience with the law, the admonitions by the two agents that he faced indictment, imprisonment and forfeiture of his assets acted in concert to convince him that he was under restraint. Hocking believes that this perception of restraint on his part was sufficient to trigger the necessity for Miranda warnings. Appellant also points out that he was "beyond the suspect stage" and "definitely at the accusatory stage" in April 1986.

The district court determined that the April 8, 1986 interview of Hocking by the two FBI agents did not constitute a "custodial interrogation" as contemplated by Miranda and its progeny. Although this determination tends to follow from various factual findings, the ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact. United States v. Calisto, 838 F.2d...