U.S. v. Heidecke

• Decision Date: 01 May 1990
• Docket Number: 88-2178,Nos. 88-1749,s. 88-1749
• Citation: 900 F.2d 1155
• Parties: 30 Fed. R. Evid. Serv. 185 UNITED STATES of America, Plaintiff-Appellee, v. Richard A. HEIDECKE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1155

900 F.2d 1155

30 Fed. R. Evid. Serv. 185

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. HEIDECKE, Jr., Defendant-Appellant.

Nos. 88-1749, 88-2178.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1989.

Resubmitted Oct. 25, 1989.

Decided May 1, 1990.

Thomas M. Durkin, David A. Glockner, Anton R. Valukas, David J. Stetler, James R. Ferguson and Victoria J. Peters, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee U.S.

Aldo E. Botti, John R. Wimmer, Botti, Marinaccio, DeSalvo & Tameling, Oak Brook, Ill., for defendant-appellant Heidecke.

Before WOOD, Jr., CUDAHY, and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

A federal jury found Richard A. Heidecke, Jr. guilty of attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951(a), (b)(2). The court sentenced Heidecke to six months of unsupervised probation. Heidecke appeals from an interlocutory order denying his motion to dismiss on the basis of double jeopardy and from the judgment of the district court finding him guilty of attempted extortion.

We have jurisdiction to hear Heidecke's interlocutory appeal under the principles of 28 U.S.C. Sec. 1291 and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We have jurisdiction to hear Heidecke's appeal from the final judgment of the district court under 28 U.S.C. Sec. 1291. For the reasons stated below, we affirm.

I. FACTUAL BACKGROUND

In Illinois, if a person receives three moving violations in a twelve-month period, the secretary of state suspends his or her driver's license. Ronald Seick got his third moving violation during a twelve-month period in April 1982. Accordingly, the secretary of state notified him in October that his license would be suspended for nine months beginning November 14, 1982. Such a suspension presented difficulties for Seick, a salesman paid on commission who traveled daily by car to service customers around the Midwest. Along with the notice of suspension, Seick had received an application for a temporary driving permit. By filling out and returning the application, Seick could get a formal hearing on his request for a permit.

Seick contacted Tom Benda, an Illinois attorney who had earlier represented Seick on a traffic violation, to ask for his assistance in obtaining a temporary driving permit. Benda advised Seick to contact Heidecke, a private attorney and hearing officer who heard applications for temporary driving permits. ¹ Heidecke was the cousin of Benda's law partner. Benda promised to call Heidecke and relate Seick's story. He also told Seick to call Heidecke himself.

In early November 1982, Seick phoned Heidecke a number of times concerning the issuance of a permit. On November 15, 1982, Heidecke told Seick that a temporary driving permit would cost $1,500, payable to him in cash or by check to Benda. After this conversation, Seick became suspicious, and he contacted another attorney who was concerned that Seick had misinterpreted Heidecke's remarks. Satisfied that Heidecke was not referring to $1,500 in attorneys' fees for Benda, the attorney advised Seick to contact the appropriate authorities and explain what had happened.

On November 22, 1982, Seick met with investigators from the secretary of state's office and agreed to assist them in an investigation of Heidecke. At the investigators' direction, Seick phoned Heidecke and asked whether Heidecke would accept a partial payment of the $1,500. Heidecke assented and told Seick to come to his office on November 29. Heidecke also informed Seick that he could get his temporary license within a week if certain microfilmed records were eliminated from Seick's driving record, thereby making it less likely that a supervisor would overturn Heidecke's decision to award a permit. Because of the secretary of state's office procedures, Heidecke could have easily arranged to preside over Seick's hearing.

Seick arrived at the November 29 meeting carrying $600 in bills with recorded serial numbers and equipped with a hidden electronic transmitter that sent signals to a remote tape recorder. Heidecke and Seick first discussed the details of the hearing. Heidecke then made a phone call to Benda's partner, requesting that Benda or another attorney accompany Seick to the hearing. Seick next gave Heidecke the $600 in marked bills, and Heidecke explained the procedures for paying the balance of the $1,500. After Seick left, the investigators from the secretary of state's office entered and arrested Heidecke.

Heidecke was indicted in an Illinois trial court. At the state trial, Heidecke was found guilty on one count of official misconduct and was acquitted on six other counts. Dismissing Heidecke's conviction, the state court subsequently granted a motion for an arrest of judgment based on Heidecke's claim that the indictment failed to allege an essential element in the offense of official misconduct.

Before and after these state proceedings, state prosecutors met with the United States attorney to request consideration of Heidecke's indictment on federal charges. Pursuant to the Department of Justice's Petite policy, ² the United States Attorney's Office initially declined to press charges. Sometime prior to December 4, 1987, the United States Attorney's Office changed its mind, and an indictment was returned on that date. Certain personnel of the state prosecutor's office that had handled the Heidecke case had since transferred to work for federal law enforcement agencies, including the United States Attorney's Office. Although these personnel may have spoken to the United States attorney regarding Heidecke's case, it is clear that the United States attorney alone made the final decision as to whether to seek an indictment against Heidecke.

The five-year federal statute of limitations for Heidecke's offenses had run on November 29, 1987, but Heidecke had waived this defense in an earlier written agreement. A federal court subsequently convicted Heidecke of attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 and sentenced him to six months of unsupervised probation. Heidecke appeals this conviction on the grounds of vindictive prosecution, double jeopardy, statute of limitations, evidentiary errors involving discovery and hearsay, and the lack of a nexus with interstate commerce.

In a prior unpublished order in this case, we held that Heidecke was entitled to an evidentiary hearing on the issue of whether he knowingly and voluntarily waived the statute of limitations. Therefore, while retaining jurisdiction, we remanded this case to the district court for development of the record with respect to the statute of limitations issue. On remand, the trial court held an evidentiary hearing and found that Heidecke had knowingly and voluntarily waived the statute of limitations. 683 F.Supp. 1215. We now address the remaining issues.

II. DISCUSSION

A. Vindictive Prosecution

Heidecke first contends that he was entitled to discovery, production of documents, and a hearing on his vindictive prosecution claim. Without affording him discovery, the district court denied Heidecke's pretrial motion to dismiss for vindictive prosecution. To support his vindictive prosecution claim, Heidecke argued that more serious federal charges were brought against him for exercising his statutory and constitutional rights in seeking a dismissal of the earlier state court indictment. Moreover, Heidecke pointed to the transfer of his former state prosecutors to prosecutorial positions in the federal government. Heidecke postulated that the state prosecutors used their new federal offices to avenge their earlier loss in state court, and he sought access to any evidence that would have helped prove this hypothesis. Thus, Heidecke has not suggested the existence of evidence that would directly prove actual animus, rather he suggests that we presume prosecutorial malice from these facts.

The threshold showing that the defendant must make to compel discovery on the issue of vindictive prosecution is a question of first impression. In the related area of selective prosecution, this court and other courts have firmly settled upon a rule that requires the defendant to show a colorable basis for the claim. See Wayte v. United States, 470 U.S. 598, 623-24, 105 S.Ct. 1524, 1538-39, 84 L.Ed.2d 547 (1985) (Marshall, J., dissenting); United States v. Kerley, 787 F.2d 1147, 1150 (7th Cir.1986); United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985); United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir.1978); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir.1973). Forcing the defendant to come forward with some evidence to support a charge of selective prosecution protects the interests in open and frank discussions within prosecutorial offices, see Berrigan, 482 F.2d at 181; protects the government from harassment or delay by criminal defendants, see Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting); and frees the judicial system of criminal trials with irrelevant massive discovery, see Murdock, 548 F.2d at 600. At the same time, the relatively low burden recognizes that "most of the relevant proof in selective prosecution cases will normally be in the Government's hands." Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting).

Some courts have suggested that defendants have to show more than a merely colorable claim before compelling discovery on a selective prosecution charge. See United States v. Hintzman, 806 F.2d 840, 846 (8th Cir.1986) (defendant must establish a prima facie case); United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986) (defendant's allegations must raise a legitimate...