U.S. v. Abraham

• Decision Date: 09 September 1976
• Docket Number: Nos. 75-1828,75-1829,s. 75-1828
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William ABRAHAM et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1234

541 F.2d 1234

UNITED STATES of America, Plaintiff-Appellee, v. William ABRAHAM et al., Defendants-Appellants.

Nos. 75-1828, 75-1829.

United States Court of Appeals,

Seventh Circuit.

Argued April 30, 1976.

Decided Sept. 9, 1976.

Thomas H. Ramsey, Raymond J. Smith, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., Anne Bowen Poulin, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, BAUER, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

PER CURIAM.

Defendants-appellants William Abraham, Ronald Henkin and Francis M. Mulligan, together with four co-defendants, were tried by a jury on a one count indictment charging them with conspiracy to commit extortion, in violation of Title 18, United States Code, Section 1951. ¹

The indictment charged that, at various times from January 1964 to the date on which the indictment was filed, the defendants were members of the Chicago Police Department assigned to the vice squad of the 19th Police District. Further, the indictment charged that they wrongfully used their positions as Chicago Police Officers to obtain sums of money from named retail liquor dealers and their employees, inducing the consent of the liquor dealers under color of official right. It was also alleged that the money so obtained was distributed among the members of the police vice squad. Of the seven defendants, the jury convicted only Abraham, Henkin and Mulligan. ² Judge McGarr sentenced Henkin to one year and Abraham and Mulligan each to eighteen months.

The government's evidence at trial centered around the evidence presented by a key witness, Joseph Thomas, an unindicted co-conspirator who testified pursuant to a grant of immunity. When Thomas, also a Chicago Policeman, joined the 19th District vice squad in February of 1964 he discovered that the vice squad was organized to collect monthly payments from "the club".

The payments constituted "the package", which would be divided among the vice officers at a monthly "sit-down". The club was composed of tavern owners and bookmakers located in the 19th District. The officers assigned to the night shift collected the "night package" primarily from the tavern owners. The other officers collected the "day package" from other sources. The officers would bring what money they collected to the sit-downs where the package was divided and current club membership discussed. Relief officers shared in the package, but did not attend the monthly meetings. The sit-downs were held at the beginning of the month in various locations.

Thomas' periods of duty with the 19th District vice squad overlapped those of Abraham, Henkin and Mulligan. During the periods of overlap, Thomas discussed the club with each defendant. Thomas' share of the package was $125 a month when he first joined the vice squad and eventually got as high as $500 a month. In addition to the regular monthly collection, there was an extra collection at Christmas.

Seventeen tavern owners testified that, as members of the club, they had made payments to members of the vice squad. They paid monthly, giving extra for Christmas and generally paying in cash from the tavern receipts. The club was originally organized by Gene Benjamin, who pleaded guilty before trial. Some club members paid only Benjamin. Four tavern owners, however, each testified that they paid money to, or discussed the club with, Henkin and Abraham. Six tavern owners testified that they paid money to, or discussed the club with, Mulligan. In return for their payments, the tavern owners avoided harassment and diligent law enforcement that could discourage business.

Various liquor distributors testified that they shipped, in interstate commerce, whiskey and beer to certain tavern owners who belonged to the club. They further testified that the beer and whiskey they sold was purchased by them from sources outside of Illinois. There was no testimony that any liquor was shipped in interstate commerce to these tavern owners during 1964 to 1966.

On appeal the defendants claim that their convictions should be reversed because the evidence presented showed a minimum of two separate conspiracies creating a fatal variance; that the trial court erred in his evidentiary rulings and instructions to the jury; and that the prosecutor's final argument was improper. We will consider each of these points separately.

I. THE GOVERNMENT'S EVIDENCE PRESENTED AT TRIAL ESTABLISHED A SINGLE CONTINUOUS CONSPIRACY.

The details of the conspiracy were provided by former policeman Thomas. Because of his duty assignments he did not serve in the vice squad the entire eleven years covered by the indictment. But he did testify that during the two periods he was assigned to the vice squad he participated in the conspiracy with the defendants. From February 1964 through October 1965 Thomas worked with defendants Abraham and Henkin. In fact Abraham was Thomas' partner for six of those months. Thomas testified that during this time the defendants shared in the proceeds of the extortion plot. In addition, various tavern owners testified that Abraham and Henkin received payoffs from them.

Abraham and Henkin both left the vice unit in mid-1966 and returned after Thomas left in late 1970. Defendant Mulligan joined the vice unit in early 1968 and was still a member when Thomas left. Thomas testified that at various times Mulligan also affirmatively participated in the conspiracy. Certain tavern owners also named Mulligan as a recipient of the payoffs.

The defense argues that, as a result of the various assignments of Thomas and the other defendant police officers, the government failed to prove a single continuous conspiracy. We disagree. The periods in which the defendants were not actively participating in the conspiracy, and the absence of a direct link between Mulligan and the other two defendants, does not create a fatal variance between the proof offered and the indictment. We see the evidence as establishing a single ongoing conspiracy in which various co-conspirators moved in and out of active participation. There is no evidence that the defendants ever took affirmative action to withdraw from the conspiracy. Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Borelli, 336 F.2d 376, 388-90 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). ³

In nearly every conspiracy case the claim is made that a variance exists because multiple conspiracies were shown. This line of argument is based upon Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), in which thirty-two persons were indicted and the government admitted that eight or more conspiracies were present with little factual connection. But this case does not involve a factual situation as was presented in Kotteakos. Rather, this case meets the test as described in United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), in which this Court set forth one method to distinguish between a single conspiracy and multiple conspiracies. The Court stated:

"While the parties to the agreement must know of each other's existence, they need not know each other's identity nor need there be direct contact. The agreement may continue for a long period of time and include the performance of many transactions. New parties may join the agreement at any time while others may terminate their relationship. The parties are not always identical, but this does not mean that there are separate conspiracies.

The distinction must be made between separate conspiracies, where certain parties are common to all and one overall continuing conspiracy with various parties joining and terminating their relationship at different times. Various people knowingly joining together in furtherance of a common design or purpose constitute a single conspiracy. While the conspiracy may have a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy.

In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, the agreement among all the parties constitutes a single conspiracy."

Id. at 742 (citation omitted).

The Court reversed the convictions in Varelli because it did not believe that there was "one overall agreement among the various parties. . . ." But in this case there was evidence showing one agreement to organize, maintain and collect monthly payments from a club of tavern owners. The Thomas testimony is not continuous due to the various district reassignments of Thomas and the other defendants. Nevertheless, the collections from the tavern owners did not stop while Thomas was absent from the vice squad during October 1965 through June 1966. Mr. Baukas, owner of the Beritz Theatre Lounge, testified that he made monthly payments to members of the vice squad from sometime in 1964 through late 1971 or early 1972. Nor did the conspiracy terminate when Thomas left the vice squad in November 1970. Various tavern owners testified that they continued to make payments to three defendants after Thomas left the vice squad.

The defense also argues that the refusal to instruct the jury on the question of multiple conspiracies was improper. United States v. Varelli, supra, and United States v. Borelli, supra, both hold that the trial judge should instruct the jury on multiple conspiracies when the possibility of a variance appears. The record discloses that the trial judge discussed the proposed defense instruction at a conference with counsel. After hearing argument, the judge concluded that the instruction would not help the jury, stating:

"This whole thing is premised on the possibility that the jury...