U.S. v. Manos, 87-1273

• Decision Date: 20 July 1988
• Docket Number: No. 87-1273,87-1273
• Citation: 848 F.2d 1427
• Parties: 26 Fed. R. Evid. Serv. 352 UNITED STATES of America, Plaintiff-Appellee, v. Louis MANOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1427

848 F.2d 1427

26 Fed. R. Evid. Serv. 352

UNITED STATES of America, Plaintiff-Appellee, v. Louis MANOS, Defendant-Appellant.

No. 87-1273.

United States Court of Appeals Seventh Circuit.

Argued Sept. 23, 1987.

Decided June 14, 1988.

Rehearing Denied July 20, 1988.

Julius L. Echeles, Chicago, Ill., for defendant-appellant.

Mark D. Pollack, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, COFFEY and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Louis Manos was an inspector for the Chicago Consumer Services Department. He received bribe payments from restaurant owners subject to inspection by the Department, which led to his conviction for conducting the affairs of the Department through a pattern of racketeering, 18 U.S.C. Sec. 1962(c), ¹ and for extorting monies from the restaurant owners under color of official right, 18 U.S.C. Sec. 1951. ² Manos seeks a reversal of the conviction, arguing that the district court abused its discretion by limiting Manos's introduction of evidence, permitting the government to introduce a witness's grand jury statement, allowing the government to improperly cross-examine the defendant, and denying Manos's request for a mid-trial continuance. Manos also argues that the government's closing argument deprived him of a fair trial. We affirm.

I. BACKGROUND

The Chicago Consumer Services Department ensures compliance with the city's health and safety regulations, inspecting and licensing various types of businesses. Health inspectors, such as Manos, conduct the periodic inspections of already-licensed restaurants, as well as assist in the more comprehensive "Task Force" inspections of restaurants seeking an initial food-service license. Fire, electrical, plumbing, and building inspectors are also members of the Task Force teams.

During 1984 Manos received bribe money from several persons who were seeking initial food-service licenses. George Frangos, owner of Johnny's Grill, paid Manos twenty dollars on two separate occasions. Duk Yong Kim, owner of the Pear Garden Restaurant, initially paid $1,000 and later fifty dollars to Manos. Manos returned the fifty dollars to Kim ten days after he had received it. He also received $100 from the owner of the Round Robin Restaurant, Solon Gabriel.

Finally Manos helped Lieutenant Richard Dorband, the head of a Task Force inspecting the Thai Town Restaurant (Manos was not a member of this particular Task Force), receive $600 from Ian Thamasucharit, the restaurant's owner. Ultimately, Manos received $150 of the Thai Town money. Sometime later Manos returned or attempted to return the Round Robin and Thai Town money he had received. Manos did not dispute that he had received money from all of these owners except Frangos; he simply argues that the payments were not bribes for him. The jury found otherwise.

II. DISCUSSION

A. Evidentiary Rulings

Standard of Review

"[A] reviewing court gives special deference to the evidentiary rulings of the trial court. We shall only overrule such rulings on a showing that the trial court has abused its discretion." United States v. Kaden, 819 F.2d 813, 818 (7th Cir.1987). "Appellate review of a district court's discretion is very limited. Generally, an abuse of discretion only occurs where no reasonable person could take the view adopted by the trial court. If reasonable persons could differ, no abuse of discretion can be found." Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982).

"Honest" Interactions Evidence

Manos challenges the district court's rulings regarding Manos's attempt to introduce evidence of his honest interactions with numerous restaurant owners. Each of his two arguments is lacking. The first is that this circuit's United States v. Shavin, 287 F.2d 647 (7th Cir.1961), allows the defendant to introduce legitimate transactions to negate the criminal intent component of a continuing-scheme charge. However, we need not even consider the merits of Shavin or its applicability to this case; the record is clear that when properly raised the district court granted Manos's request to elicit testimony regarding honest interactions. It is true that the district court initially denied the motion, however, this was in the context of Manos having not once mentioned that the evidence was to be used to refute criminal intent. Moreover, Manos did not complain when the district court characterized Manos's attempted use of the evidence quite differently, as "no different than if someone was a bank robber and alleged to have robbed a bank. The fact that he might have walked by four others and did not rob those banks is not relevant to prove whether or not he robbed the bank in question." Later in the trial when the district court graciously apologized for what it believed was its earlier misconstruing of Manos's argument, Manos's counsel candidly stated that "[i]t is my mistake for not bringing it is [sic] up in the first place, Judge." The district court did not err.

Manos's second argument is that the government's prejudicial cross-examination of Nick Karitsiotis, a witness called by Manos to testify regarding honest interactions with Manos, effectively foreclosed any opportunity to fully develop the honest interaction testimony of Karitsiotis and other witnesses that would have followed. On cross-examination the government had asked Karitsiotis if he was aware that Manos had been reprimanded on the job for falsifying time sheets and if this might change his testimony regarding Manos's honesty. Karitsiotis never directly responded to the question. According to Manos, this improper cross-examination forced him to forego calling his other witnesses because of the likely prejudice caused by the repetition of the time-sheets questioning with each subsequent witness. (We believe it is quite tenuous to claim that the fear of repetition of the single time-card question justifies blaming the government for the failure to call a number of honest-interactions witnesses.) The crux of Manos's argument is that "[s]pecific acts of misconduct may be inquired into only where the defendant has put his general reputation into issue. Here, the evidence was proffered as character, not reputation evidence." (Emphasis added.)

The government counters that the district court did no more than follow the express language of Rule 405 (and Rule 608) of the Federal Rules of Evidence. Rule 405(a) sets out the methods of proving character, once "evidence of character or a trait of character of a person is admissible." Rule 405(b) allows the use of specific acts to prove character when character is "an essential element of a charge, claim, or defense." Once admissibility is established, 405(a) provides that "[o]n cross examination, inquiry is allowable into relevant specific instances of conduct."

Manos argued to the district court that the honest interaction testimony was admissible "under 404(a)(1)--character of the accused.... [H]is character--or traits of character--as to honesty is clearly admissible. I turn to 405(b), which is a change from the common law rule, and rather than simply offer reputation or opinion, I am allowed to offer specific instances of his conduct in support of the opinion of the witness." The district court agreed and admitted the testimony under Rule 405(b), finding that "honesty, in a broad sense, is an essential element of the charge." ³

Overlooked in Manos's challenge to the cross-examination is Rule 405(a)'s explicit direction: questioning regarding specific instances of conduct is proper on cross-examination. Manos argues that pursuant to Rule 405(b) he was allowed to offer specific instances of conduct "in support of the opinion of the witness." (Emphasis added.) Characterizing the testimony as opinion provides no help to Manos. Opinion, along with reputation, is specifically listed in Rule 405(a); therefore, it follows that both opinion and reputation witnesses are subject to cross-examination regarding specific instances of conduct. See United States v. Williams, 738 F.2d 172, 177 n. 7 (7th Cir.1984) (opinion witnesses may be asked if they heard about specific instances of conduct).

Manos also attempts to set up a meritless dichotomy between character and reputation, citing but two cases, United States v. Park, 525 F.2d 1279, 1284 n. 4 (5th Cir.1976); Bryan v. United States, 373 F.2d 403, 404 n. 1 (5th Cir.1967), in an attempt to undo the express language of the rule. In both Park and Bryan the trials preceded the 1975 effective date of the Federal Rules of Evidence, which allow testimony regarding specific instances, irrespective of the character-reputation contrast Manos attempts to make. In any event, admissible character or character traits, and not reputation, are the operative words when considering the scope of Rule 405(a). As for reputation and opinion, these are the proper methods of demonstrating character through testimony on direct examination under Rule 405(a).

Manos also may be attempting to draw a distinction between testimony pursuant to Rule 405(a) and testimony pursuant to 405(b), impliedly arguing that here only 405(b) applies, and because 405(b) does not expressly authorize cross-examination regarding specific instances of conduct, the cross-examination was improper. This interpretation does not find support in Rule 405's language. Subdivision (b) does not state that the cross-examination language of subdivision (a) is inoperative. ⁴ It does not mention anything regarding cross-examination. An interpretation that would allow cross-examination regarding specific instances when reputation or opinion is offered on direct, but not when specific acts are offered on direct, does not seem reasonable. The notes of the advisory committee on the proposed Federal Rules of Evidence suggest no such limitation and...