U.S. v. Grabiec

• Decision Date: 02 September 1977
• Docket Number: No. 76-2224,76-2224
• Citation: 563 F.2d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barney GRABIEC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

563 F.2d 313

UNITED STATES of America, Plaintiff-Appellee, v. Barney GRABIEC, Defendant-Appellant.

No. 76-2224.

United States Court of Appeals Seventh Circuit.

Argued June 1, 1977.

Decided Sept. 2, 1977.

Edwin B. Grabiec, Joliet, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Mary Stowell, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT and BAUER, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Defendant-Appellant, former Illinois Director of the Department of Labor, was convicted on 22 October 1976 of conspiracy to extort money under color of official right from employees of Crown Personnel, Inc., in violation of 18 U.S.C. § 1951. Also tried and convicted with him was Gerald Wall, former Superintendent of the Division of Private Employment Agencies. Defendant On 6 March 1972, Local 1114 of the United Electrical Radio Machine Workers of America struck Honeywell Company. During the eight-week strike, Crown Personnel, Inc., sent 150-180 production personnel to Honeywell to replace the striking workers. Illinois law requires that employment agencies give written notice of any labor disputes to all job applicants before sending the applicant to any place of prospective employment. On 12 May 1972, the Union filed a complaint with the Illinois Department of Labor charging Crown with violating Chapter 48, Section 197(g) of the Illinois Revised Statutes because the notice of the labor dispute had not been given.

Grabiec filed his Notice of Appeal on 9 December 1976.

Defendant Gerald Wall held an informal hearing on the complaint on 9 June 1972. Apparently Crown Personnel, Inc., admitted its violation and the Union demanded a revocation of Crown's license. The hearing was continued without formal action. A formal hearing originally scheduled for 16 June 1972 was continued until 4 August 1972. A hearing was held on 4 August 1972 and at the conclusion Wall took the matter under advisement pending a discussion of the matter with Grabiec. Grabiec met with Union representatives on 14 August 1972 and informed them that revocation would be too severe a sanction and that he believed a 9-day suspension would be appropriate. On 24 August 1972 Crown was given notice that the penalty imposed was ten days suspension and two years supervision. Although a penalty was imposed, no suspension dates were imposed and Crown was never closed for its violation of the law.

At trial, William Organ, owner of a private employment agency and a friend of Daniel Hyland, president of Crown, testified that he played golf with Grabiec at the Cog Hill Country Club on 15 June, six days after the initial hearing. The charges against Crown were discussed and Organ testified that Grabiec told him that something could be done to help Crown for the sum of $1,500.00 to $2,000.00. According to Organ, after he related this to Daniel Hyland, Hyland stated that they would be willing to pay $700.00. Wall apparently rejected this amount.

Further negotiations were pursued through a Mr. Thomas Moran, an owner and manager of another private employment agency. After talking with Wall, Moran contacted Conrad Cairns, vice president and part-owner of Crown. With Moran acting as the middleman and the proverbial bagman, a figure of $2,500.00 was agreed upon and was delivered to Wall by Moran on behalf of Hyland and Cairns. As part of the quid pro quo, Crown received a token penalty that was generously never actually enforced.

SUFFICIENCY OF THE EVIDENCE

Defendant first maintains that the Government failed to prove his guilt beyond a reasonable doubt. He stresses that direct evidence of his participation in the scheme was established by only one witness, William Organ. Organ's credibility is questioned on a number of grounds. Defendant also points to Organ's contradictory testimony and a number of witnesses who testified on his behalf.

It is a well established principle that when the sufficiency of evidence in a criminal conviction is questioned, the reviewing tribunal must examine the record taking a view most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It is not our prerogative to retry the case, weigh the evidence, or assess the credibility of witnesses. United States v. Miles, 401 F.2d 65, 67 (C.A.7 1968). The verdict will not be disturbed if substantial evidence and reasonable inferences therefrom support the action of the jury. United States v. Isaacs, 493 F.2d 1124, 1146 (C.A.7 1974).

Keeping these principles in mind, we have reviewed the record of the trial. Organ was unquestionably the most damaging witness to Grabiec, and he was extensively cross-examined about his implicating remarks. Organ's testimony was corroborated in many respects by Hyland. Although there are reasons offered why a jury might have refused to accept Organ's account of the relationship with Grabiec, the jury in this case apparently resolved the questions of credibility in favor of Organ. It is well recognized that "established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury". Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966). We conclude that the evidence as to Grabiec was not insufficient as a matter of law.

EVIDENCE OF OTHER CRIMINAL OFFENSES

Over defendant's objections, William Broome and Ronald Van Matre testified concerning offenses involving co-defendant Gerald Wall. Both Broome and Van Matre were also engaged in the employment agency business. Broome testified that he had paid $200.00 to Moran to give to Wall in September 1970 (Tr. 321, 322) in order to get a license. Van Matre testified that he also paid $200.00 to Moran for the acquisition of a license in January 1973 from Wall's office (Tr. 484-493). Moran corroborated both the Broome (Tr. 406-408) and Van Matre (Tr. 408-414) payoffs in his testimony.

At trial Moran also testified regarding two (2) payoffs he himself made to Wall in connection with obtaining licenses for his own employment agencies, Career La Grange Personnel in 1969 (Tr. 397-401) and Career Professionals, Inc., in the summer of 1972 (Tr. 401-402). This testimony was also elicited over the objections of defense counsel for Mr. Grabiec.

Defendant argues that the admission of testimony regarding the four transactions mentioned above constituted reversible error on the grounds that they are offenses wholly independent of the offense charged. Evidence of other criminal activities is inadmissible as a general rule unless it fits into several well established exceptions. United States v. Iacullo, 226 F.2d 788, 793 (7 Cir. 1970), cert. denied, 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956). Admission of such evidence is a discretionary task which involves a weighing of the evidence. As this court stated in United States v. Pate, 426 F.2d 1083, 1086 (C.A.7 1970):

It has often been stated, as a general rule, that evidence of prior criminal acts of an accused which are not charged in an indictment is inadmissible (e. g., United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969); United States v. Menk, 406 F.2d 124 (7th Cir. 1968), cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969)); but the true general rule is not nearly so broad. Evidence of other criminal activities is clearly admissible if it is relevant to indicate motive or some other element of the crime charged, unless minor probative value is outweighed by major prejudicial effect. E. g., United States v. Fierson, supra; United States v. Marine, 413 F.2d 214 (7th Cir. 1969). The question on admissibility is, in the first instance, a matter addressed to the discretion of the trial court. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Fierson, supra.

It should be noted that two of the license payoffs (Moran's payoff as to Career Professionals, Inc., and Van Matre's payoff for his agency) both occurred close to the payoff regarding Crown's violation. Van Matre stated in his direct examination that he discussed his transaction with Wall "the early part of January 1973" (Tr. 485). Moran, however, claimed that he had conversations with Van Matre in the "latter part of '72" (Tr. 409). Moran also stated that his conversation with Wall as to Career Professionals, Inc., occurred in "the early summer of '72" (Tr. 402).

The defendant would have us believe that the conspiracy terminated upon the imposition of the penalty in August of 1972. The Government maintains that the conspiracy continued until 1975. Although we decline to fix a precise date for the conclusion of the conspiracy, it is clear that the conspiracy continued sometime after the imposition of the penalty in August because the penalty was never enforced. The notice dated August 23rd stated "Commencement of the penalty date to be designated by the Honorable Barney J. Grabiec, Director of Labor" (Tr. 150, 525). We conclude that the two transactions were conducted during the life span of the conspiracy and cannot be characterized as subsequent criminal acts. Although they are not charged as criminal acts in the conspiracy, the trial court did not abuse its discretion in admitting them.

Neither do we believe that it was error for the court to have admitted evidence of the Broome and Career La Grange transactions that occurred in 1970 and 1969. It has been recognized by this court that additional criminal activities may be admitted to show a pattern of conduct corroborating a similar pattern carried out during the conspiracy and a method of operation. United States v. Iacullo, supra; United States v. Hampton, 457 F.2d 299, 302 (C.A.7 1972), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (C.A.7 1972). Moran, as middleman and bagman, was a central...