U.S. v. Adcock, 76-2056

• Decision Date: 06 July 1977
• Docket Number: No. 76-2056,76-2056
• Citation: 558 F.2d 397
• Parties: , 2 Fed. R. Evid. Serv. 1113 UNITED STATES of America, Plaintiff-Appellee, v. Homer R. ADCOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 397

558 F.2d 397

43 A.L.R.Fed. 851, 2 Fed. R. Evid. Serv. 1113

UNITED STATES of America, Plaintiff-Appellee, v. Homer R. ADCOCK, Defendant-Appellant.

No. 76-2056.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1977.

Decided June 14, 1977.

Rehearing and Rehearing En Banc Denied July 6, 1977.

Gary S. Gill, Des Moines, Iowa, for appellant; Walter R. Brown and Harold N. Schneebeck, Jr. Des Moines, Iowa, on brief.

Daniel W. Schermer, Tax Div., Dept. of Justice, Washington, D. C., for appellee; Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Jr., Robert E. Lindsay, Tax Div., S. Cass Weiland, Crim. Div., Dept. of Justice, Washington, D. C., and George H. Perry, U. S. Atty., Des Moines, Iowa, on brief.

Before HEANEY and STEPHENSON, Circuit Judges, and NANGLE, ^* District Judge.

STEPHENSON, Circuit Judge.

Defendant Adcock appeals from his jury conviction on two counts charging violations of the Hobbs Act (18 U.S.C. § 1951); three counts charging willful evasion of federal income taxes (26 U.S.C. § 7201) for the years 1969, 1970, and 1971; and three counts charging the filing of false income tax returns (26 U.S.C. § 7206(1)) for the same years. The district court ¹ imposed a three year concurrent sentence on all counts, and fines totalling $20,000. In this appeal defendant urges numerous trial errors. We affirm.

In brief the evidence indicates that appellant was a member of the Iowa Liquor Control Commission (Commission) for over 12 years, from July 1, 1959, to December 31, 1971. He served as its chairman except for the two year period from July 1, 1967, until July 1, 1969. Iowa is a "controlled" or "monopoly state." Wineries and distilleries sell their products to the Commission, which warehouses and distributes the liquor products to approximately 200 state-operated liquor stores for sale to the public. Companies desiring to sell to the Commission submit proposals to it. If the proposals are accepted the Commission then gives the company a "listing" for its product.

During the period in question it was the practice of the chairman to present proposed orders to the full (three member) Commission, which as a matter of course generally approved the same. Liquor orders were initially prepared by the merchandise manager and submitted to the Commission chairman, who either approved, disapproved, or modified them. The manager testified that appellant, while serving as chairman, changed the orders about ninety percent of the time and often refused to reorder products which were in low supply or out of stock.

Mario Perelli-Minetti (Perelli-Minetti), general manager of the California Wine Association, testified that in late July 1965 he came to Iowa for the purpose of retaining a representative for his company. Its previous representative had died in 1964. During the course of his visit he met with appellant in his office at the Commission. Perelli-Minetti testified that appellant, among other things, said, "You don't need a broker. * * * I will take care of your orders. * * * I will see that your products are distributed to the state stores. * * * (N)obody can do as good a job as I can." Perelli-Minetti then related that appellant asked for $20,000 in cash starting in 1965; the same amount each year thereafter, to be paid in $10,000 installments at the spring and fall monopoly state conventions. He testified that $15,000 was actually paid in 1965, $25,000 in 1966 to make up the $5,000 deficit in 1965, and the $20,000 each year thereafter, including the prosecution years of 1969, 1970 and 1971. According to Perelli-Minetti, funds for making the payments to appellant were generated within the company by false invoices and payment was made in cash. Numerous documents corroborative of Perelli-Minetti's testimony were received in evidence. Other evidence supporting the guilty verdict will be discussed in connection with the trial errors urged by appellant.

Appellant testified in his own behalf and denied that he received any funds from Perelli-Minetti or anyone else. He acknowledged receiving $200 a couple of times from Linwood Pedrick, another liquor representative, to buy dinner tickets to a political party. He also admitted receiving a gold watch, a portable tv set and a suit as gifts from Perelli-Minetti on various occasions.

Similar Acts

Appellant objected to Perelli-Minetti's testimony concerning the genesis of the extortion scheme in 1965 and all subsequent payments prior to the prosecution years. The experienced trial court promptly cautioned the jury ² that the defendant was on trial only for those acts charged in the indictment and that "Such evidence is only admissible to shed light on the possible motive or intent of the Defendant or the possible existence of a scheme or plan in terms of the crimes charged in this indictment. * * * (E) vidence of other acts you may deem to be similar are not admissible to show the Defendant acted in conformity with those acts at a later date * * * ." The court repeated this admonition on several occasions and further instructed on this subject in its final charge to the jury by giving the instruction found in E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 13.08, at 281 (2d ed. 1970).

The evidence was admissible under Fed.R.Evid. 404(b), which provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Here the extortion plan began with the demands for cash made by defendant to Perelli-Minetti in late July 1965. ³ The demands were met by the payments of cash commencing in 1965 and continuing without interruption through the prosecution years and until appellant left the Commission on December 31, 1971. It is well established that it is appropriate to show the course of conduct leading to the events which form the basis of the crime charged. United States v. Calvert, 523 F.2d 895, 907 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); United States v. Conley, 523 F.2d 650, 653 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976); United States v. Cochran, 475 F.2d 1080, 1082-83 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); McCormick v. United States, 9 F.2d 237, 238-39 (8th Cir. 1925). The evidence objected to was clearly admissible.

Other similar acts objected to by appellant consisted of proof that appellant received illegal payments from other individuals in the liquor industry under circumstances similar to the payments made by Perelli-Minetti and Clair Fischell ⁴ during the prosecution years, Linwood Pedrick, a liquor representative, testified over objection to making $200 a month payments to appellant during a two-year period from July 1, 1965, to July 1, 1967. It was his recollection that some of the money was paid to appellant at meetings or conventions. Similarly, Raymond Sibbert, a liquor representative, related that he had made payments totaling approximately $5,000 to appellant at his office over the period 1962 to 1967. He indicated that upon instruction from appellant he placed the money in appellant's desk and closed it. In each instance the trial court gave a cautionary instruction to the jury similar to that previously described in connection with Perelli-Minetti's testimony concerning payments to appellant during non-prosecution years.

Appellant argues that inasmuch as he denied both that the acts for which he was charged occurred, and that the prior similar acts occurred, the issue of intent was never raised and therefore the court erred in admitting the evidence for that purpose. We disagree.

Initially we observe that intent was an essential element of each of the crimes charged. The burden was on the government to prove appellant's guilt beyond a reasonable doubt. It was duty-bound in its case-in-chief to establish all of the essential elements of the crimes charged. The government need not await the defendant's denial of intent before offering evidence of similar acts relevant to that issue. United States v. Conley, supra, 523 F.2d at 654. At the time the evidence in issue was received the trial court carefully instructed that the "evidence is only admissible to shed light on the possible motive or intent of the Defendant or the possible existence of a scheme or plan * * * ." (emphasis ours.)

Neither the court nor the government can be expected to be clairvoyant. It was not an abuse of discretion for the court to admit relevant evidence on the essential issue of motive and intent unless the court found that its probative value was "substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. United States v. Maestas, 554 F.2d 834 (8th Cir., 1977); United States v. Conley, supra, 523 F.2d at 654; United States v. Marchildon, 519 F.2d 337, 346 (8th Cir. 1975); United States v. Olsen, 487 F.2d 77, 79-80 (8th Cir. 1973), cert. denied, 415 U.S. 993, 94 S.Ct. 1594, 39 L.Ed.2d 890 (1974).

It is also well settled that in a tax case the government may show proof of unreported income in prior years indicating a pattern of understatement of income which is relevant to the issue of willful intent. United States v. Berzinski, 529 F.2d 590, 593 (8th Cir. 1976); Amos v. United States, 496 F.2d 1269, 1273-74 (8th Cir. 1974).

Similar acts have also been admitted in evidence in extortion cases in order to show motive and intent. United States v. Braasch, 505 F.2d 139, 149 (7th Cir. 1974); United States v. Kenny, 462 F.2d 1205, 1224 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972).

Appellant's income from liquor companies during the post-indictment year

Appellant con...