U.S. v. Kendall

• Decision Date: 28 December 1981
• Docket Number: No. 81-1138,81-1138
• Parties: 9 Fed. R. Evid. Serv. 1346 UNITED STATES of America, Plaintiff-Appellee, v. Francis B. KENDALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 126

665 F.2d 126

9 Fed. R. Evid. Serv. 1346

UNITED STATES of America, Plaintiff-Appellee, v. Francis B. KENDALL, Defendant-Appellant.

No. 81-1138.

United States Court of Appeals Seventh Circuit.

Argued Sept. 17, 1981.

Decided Nov. 23, 1981.

Rehearing and Rehearing En Banc Denied Dec. 28, 1981.

David W. Mernitz, Doninger & Mernitz, Indianapolis, Ind., for plaintiff-appellee.

Kennard P. Foster, Asst. U. S. Atty., Indianapolis, Ind., for defendant-appellant.

Before PELL, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and CUDAHY, Circuit Judge.

PELL, Circuit Judge.

The appellant, Francis B. Kendall, was convicted following a jury trial on three counts of violating the Hobbs Act, 18 U.S.C. § 1951 (1976). The first count alleged a conspiracy to obstruct interstate commerce by extortion. Counts 2 and 3 alleged extortions on March 2, 1979, and March 7, 1979, from the Indiana Surety Agents Association (ISAA). The principal issue on appeal is whether the trial court committed prejudicial error when it admitted evidence concerning conversations among members of the ISAA pursuant to rule 801(d)(2) (E) of the Federal Rules of Evidence. ¹

Kendall raises three additional issues on appeal. First, he contends that the trial court abused its discretion in denying his motion for a bill of particulars identifying the known but unnamed co-conspirators. Second, the appellant contends that the evidence demonstrated the possibility of multiple conspiracies and that the judge below committed prejudicial error by not instructing the jury accordingly. Finally, Kendall maintains that the trial court committed prejudicial error in denying his motions for severance.

I. Facts

The ISAA was an organization of bail bondsmen in the State of Indiana. Its principal purpose was to lobby for legislation favorable to the bail bond industry. In late 1978, the ISAA was concerned about the possible enactment of legislation allowing a defendant to post ten percent of the amount of his bond with the court rather than requiring him to secure a corporate surety bond for the full amount of the bail. The pertinent legislation was embodied in Senate Bill 155, Senate Bill 256, and House Bill 1490, then pending before the First Regular Session of the 101st Indiana General Assembly.

Following the recommendation of an ISAA member, the ISAA president, Bruce Harris, got in touch with Francis Kendall in early 1979. Kendall subsequently indicated that his corporation, Capitol Business Systems (Capitol), would be willing to act as a "legislative director" for the ISAA for a fee of $12,000, payable at $1,000 per month. Capitol was to gather information useful in lobbying against the pending legislation. Kendall said that he was very close to the legislature. He introduced Harris to his business associate, John Cline. Cline was to handle the ISAA account because Kendall planned to be out of town for much of the legislative session. Harris paid Cline a $1,000 retainer in early February, 1979, although he declined to sign a written contract. Cline made various contacts on behalf of the ISAA after February 6, 1979. The contacts, which included several conversations with Martin K. Edwards, President Pro Tempore of the Indiana Senate, were noted in Capitol's files, to which Kendall had access.

House Bill 1490 passed the House on January 31, 1979. ² Cline testified that on March 1, 1979, Edwards phoned him and detailed a payment schedule "to get (House Bill 1490) handled." Edwards wanted $3,000 immediately, $5,000 when the bill came out of committee, $4,000 when it reached the Senate floor, and $15,000 when it went to the House.

Cline made contact with Harris. Various members of the ISAA delivered checks to Harris. On March 2, 1979, Cline delivered to Edwards the $3,000 that had been collected by Harris. On March 5, 1979, the officers of the ISAA met and agreed to raise funds and to make contributions themselves for the purpose of paying Edwards. This meeting was tape-recorded by Harris.

The bill came out of committee on March 6, 1979. It had been amended to require any cash deposit for bail to be equal to the full amount of the bail. On March 7, 1979, Cline delivered to Edwards the $5,000 that Harris had raised. Edwards returned $2,000 to Cline and, within the next two or three days, Cline delivered half of the $2,000 to Kendall. Cline told Kendall "how much was there and what it was for and where it came from."

On March 16, 1979, House Bill 1490 was amended so as to delete the amendment added in committee that was supported by the ISAA. The bill passed the Senate in its original form.

On March 26, 1979, officers of the ISAA met with Kendall and Cline at the offices of Capitol. The discussion included: (1) whether Capitol should be employed pursuant to a $1,000 per month contract to help with future legislative efforts; (2) whether $5,000 should be paid to Edwards to secure the appointment of a favorable study commission on bail bonding which might recommend legislation to the next session of the legislature; and (3) a general discussion of the money already paid to Edwards. The members decided not to sign the contract nor to make other payments.

Cline's next contact with Harris was on May 10, 1979, to discuss appointments to the study commission; however, the ISAA did not take any further action.

The original indictment charged Kendall and Cline each with three counts of violating the Hobbs Act, 18 U.S.C. § 1951 (1976). Edwards was charged on the same three counts as well as four additional counts. ³

Kendall filed a motion for a bill of particulars, seeking disclosure, inter alia, of the names of conspirators known to the grand jury but unnamed in the indictment. He also filed a motion for relief from prejudicial joinder. The Government responded to both motions on September 3, 1980. In response to the motion for a bill of particulars, the Government detailed materials which had been made available to the defendants pursuant to rule 16 of the Federal Rules of Criminal Procedure. The tape recording and transcript of the March 5, 1979 meeting were among the materials provided, the latter totalling over three hundred pages.

On October 13, 1980, the trial court denied the request for a bill of particulars. Kendall's motion for reconsideration was similarly denied on October 30, 1980. On October 16, 1980, the court granted the Government's motion to dismiss all counts of the indictment as to Cline with prejudice. The court thereupon found Kendall's motion for severance to be moot.

The Grand Jury returned a superseding indictment on November 6, 1980. Six of the seven counts contained in the first indictment were repeated; ⁴ additionally, Edwards was charged with three counts of violating 26 U.S.C. § 7206(1) (1976). Kendall's alternative motion for severance as to these three counts was granted the next day; however, his renewed motion to sever entirely his trial from that of Edwards was denied.

II. Federal Rule of Evidence 801(d)(2)(E)

Appellant Kendall contends that the trial court committed prejudicial error in admitting as substantive evidence of the conspiracy testimony about conversations among ISAA members. In particular, Kendall challenges the admission of a tape recording of the March 5, 1979 meeting, testimony by Delbert First concerning statements made by his brother, Robert First, and testimony by Harris as to a conversation he had with Cline on May 10, 1979. The appellant argues that it was legally impossible for the ISAA members to be co-conspirators under the Hobbs Act, 18 U.S.C. § 1951 (1976), and therefore it was error for the court to admit the testimony pursuant to rule 801(d)(2)(E) of the Federal Rules of Evidence. Additionally, Kendall argues that testimony by Delbert First did not concern statements made in furtherance of the conspiracy and that the May 10, 1979 conversation between Cline and Harris occurred after the conspiracy had ended.

A. Legal Impossibility

The appellant reasons as follows: (1) the ISAA was the victim of the conspiracy; ⁵ (2) the intent and purpose of the Hobbs Act, 18 U.S.C. § 1951 (1976), is to protect the victims of extortion regardless of whether they are "willing" victims; (3) because the ISAA was victim to the extortion, its members could not have been charged as Hobbs Act co-conspirators; and (4) therefore, conversations among ISAA members should not have been admitted as substantive evidence pursuant to Federal Rule of Evidence 801(d)(2)(E).

Kendall relies for support on cases decided under statutes other than the Hobbs Act which have held that the victim of the crime charged cannot be deemed a co-conspirator under the pertinent statute. See United States v. Nasser, 476 F.2d 1111 (7th Cir. 1973) (conspiracy to violate a conflict of interest statute, charged under 18 U.S.C. § 207(a) (1976)); Nigro v. United States, 117 F.2d 624 (8th Cir. 1941) (conspiracy to sell, barter and exchange narcotics, charged under 26 U.S.C. § 1044 (1976); Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206 (1932) (conspiracy in violation of the Mann Act, now codified at 18 U.S.C. §§ 2421-2424 (1976)).

We need not decide, however, whether the ISAA members and directors might have been charged with a Hobbs Act violation. This court has previously held that "conspiracy" as an evidentiary concept, embodied in rule 801(d)(2)(E), and "conspiracy" as a concept of substantive criminal law are not coterminous. United States v. Gil, 604 F.2d 546, 549-50 (7th Cir. 1979); accord, United States v. Trowery, 542 F.2d 623, 626 (3d Cir. 1976) (per curiam), cert. denied, 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555 (1977). To distinguish the two concepts, courts have referred to the evidentiary principle as a "joint venture" exception, United States v. Swainson, 548 F.2d 657, 660 (6th Cir. 1977), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255, or a "concert of action" exception, United States v. Trowery, 542...