U.S. v. McClain, 89-3087

• Decision Date: 19 June 1991
• Docket Number: No. 89-3087,89-3087
• Citation: 934 F.2d 822
• Parties: 33 Fed. R. Evid. Serv. 818 UNITED STATES of America, Plaintiff-Appellee, v. Clarence McCLAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 822

934 F.2d 822

33 Fed. R. Evid. Serv. 818

UNITED STATES of America, Plaintiff-Appellee, v. Clarence McCLAIN, Defendant-Appellant.

No. 89-3087.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 9, 1990.

Decided May 28, 1991.

As Amended June 19, 1991.

Michael J. Shepard, John F. Hartmann, Barry R. Elden, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Mark D. DeBofsky, DeBofsky & DeBofsky, Chicago, Ill., for defendant-appellant.

Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Appellant Clarence McClain was indicted, together with eight other defendants, as the result of a federal investigation into corruption in the award of a Chicago city contract. Only he and codefendant Morgan Finley chose not to plead guilty, and they were tried together before a jury. ¹ McClain was convicted of numerous federal offenses, from which he appeals on several grounds. We affirm in part and reverse and remand in part.

I.

In 1983 the City of Chicago began to consider options for increasing city revenue. One of the methods discussed was changing its parking ticket collection system from an outdated and ineffective criminal system administered by the Cook County Circuit Court to a more expedient and successful administrative system, which would include hiring private collection agencies. Needless to say, obtaining the contract to collect the city's $600 million in overdue parking tickets was a lucrative prospect--so lucrative, in fact, that it attracted the attention of a private New York collection agency, Systematic Recovery Service (SRS). Setting its sights on the Chicago collection contract, SRS hired Michael Burnett, whose assignment was to "do whatever it takes" to win the contract. Tr. at 1081.

On arriving in Chicago, Burnett found and began collaborating with Clarence McClain, who, while holding no official position in city government, boasted colorfully of the power he wielded over city contract awards. Burnett needed this kind of influence, since SRS was challenged for the Chicago collection contract by Datacom, a competitor in the parking ticket collection business. Just as this collaboration with McClain was getting under way, however, Burnett's allegiance shifted dramatically. He was arrested in Nashville, Tennessee on federal firearms charges during the summer of 1984. To deflect these charges, Burnett informed the Federal Bureau of Investigation agents of the unfolding scheme in Chicago and agreed to continue participating in that scheme as a government informant. Thus, as SRS's parking ticket plan evolved, thousands of hours of conversations between Burnett and the indicted conspirators were recorded, forming the basis for this prosecution.

McClain's alleged involvement in the scheme consisted of several affirmative acts, as well as knowledge of, and acquiescence in, others. The government claimed that he had a hand in the development and submission of a detailed "Parking Study"--a report masquerading as an independent and impartial assessment of different cities' parking ticket collection practices, but in reality a contrived pitch for SRS and critique of Datacom, secretly funded by SRS itself. Apparently McClain also planned and participated in the bribing of John Adams, deputy director of Chicago's revenue department. Adams, who was indicted but pleaded guilty before trial, was to help SRS procure the parking ticket contract. McClain was further alleged to have cheated SRS out of $20,000 by fabricating a tip that Ira Edelson, the acting revenue director of Chicago, had been bribed by Datacom and must be bought back. We will note details of these and other matters as appropriate in the analysis of the defendant's claims on appeal.

For his participation in the overall scheme described above, McClain was charged with conspiring to violate RICO, 18 U.S.C. Sec. 1962(d) (1988). The predicate acts listed in the RICO count included extortion. McClain was also charged with various counts of bribery and extortion under the Travel Act, id. Sec. 1952(a)(1) and (3); attempted extortion under the Hobbs Act, id. Sec. 1951; and using the mails in violation of the mail fraud statute, id. Sec. 1341. He was further tried on the unrelated charges of making and filing a false tax return, 26 U.S.C. Sec. 7206(1) (1988), and concealing assets in violation of the Internal Revenue Code, id. Sec. 7206(4). In addition to the substantive acts that we have outlined, the jury was instructed, under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 90 L.Ed. 1489 (1946), that it could hold a conspirator liable for an offense committed by a coconspirator in furtherance of the conspiracy. The jury convicted the defendant of participating in the RICO conspiracy, three Travel Act violations, five Hobbs Act violations, the mail fraud count and the false tax return charge. The district court then sentenced McClain to an eight-year term of imprisonment for the RICO conspiracy, a five-year concurrent term of imprisonment for most of the other counts, and a five-year consecutive term of probation for one of the Travel Act counts. In this appeal, McClain alleges a number of errors in the district court's rulings and conduct of the case, but none directly relating to his RICO conspiracy conviction. We have grouped his claims by subject matter.

II.

McClain was indicted on six counts of attempted extortion in violation of the Hobbs Act, five of which resulted in convictions. Each count charged that "Clarence McClain, defendant herein, attempted to commit extortion, as that term is used in [the Hobbs Act] ...," and went on to describe one of six specific incidents of alleged attempted extortion. The Hobbs Act penalizes "Whoever in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires so to do...." 18 U.S.C. Sec. 1951(a) (1988). It goes on to define extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Id. Sec. 1951(b)(2). At trial, only McClain was charged with these particular six counts of attempted extortion. On appeal he raises two challenges to the five Hobbs Act convictions.

A. The Pinkerton Instruction

Special verdict forms submitted to the jurors gave them four options for grounding a conviction of McClain on each count of attempted extortion: (1) under color of official right; (2) through wrongful use of fear of economic harm; (3) by aiding and abetting another; or (4) by being a member of a conspiracy when another member committed attempted extortion in furthering the conspiracy. The first two alternatives represent two means for carrying out attempted extortion based on the distinction drawn in the language of the act. United States v. Holzer, 816 F.2d 304, 310 (7th Cir.1987) (describing two prongs of Hobbs Act). On each of the five guilty verdicts, the jury checked only option (4): namely, that McClain conspired with another who attempted extortion. Interestingly, the jury was not instructed that the Hobbs Act itself prohibited conspiring to extort; ² rather the only conspiracy instruction alleged to support these convictions was a Pinkerton instruction. Over defense counsels' objection, ³ the jury heard the following instruction: "A conspirator is responsible for offenses committed by his fellow conspirators if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of or as a natural consequence of the conspiracy." Tr. at 4897.

McClain contends that the convictions were the result of a deficiency in the instructions, arguing under United States v. Manzella, 791 F.2d 1263, 1268 (7th Cir.1986), that the Pinkerton instruction was far too vague and without reference to the specific complications of the jury's task in relation to particular charges. ⁴ Manzella involved a conviction for possession of cocaine with intent to distribute, as well as conspiracy to possess and distribute. On appeal, we determined that, while there was ample proof of a conspiracy to possess and distribute cocaine, "the greatest weakness in the government's case [was] the lack of evidence that Manzella possessed cocaine," 791 F.2d at 1266, leading us to question the substantive count. To save that conviction, the government gleaned from the record an instruction which it contended properly invoked the Pinkerton theory of liability. ⁵ We found the instruction lacking in the particularity required to explain Pinkerton 's vicarious liability:

The jury must be made to focus on the coconspirator's act, on whether it is a crime, on whether the coconspirator's guilt of this crime was proved beyond a reasonable doubt, and on whether it was committed in furtherance of the conspiracy in which the defendant participated.... [The instruction in this case] fails to present the Pinkerton doctrine in an intelligible form to the jury.

Id. at 1268. The defendant has a right to have his guilt determined by a jury, we concluded, not by an appellate court. Id. at 1269.

To apply Manzella to a given instruction, it is necessary to look not only at the Pinkerton instruction itself, but at the evidence supporting a particular charge and at the specific difficulties confronting a trier of fact in applying a Pinkerton theory to the evidence. Hence it is impossible to address a Manzella objection without some inquiry into the proof adduced at trial. ⁶ When application of coconspirator liability is straightforward, a simple Pinkerton instruction may suffice. Compare United States v. Galiffa, 734 F.2d 306 (7th Cir.1984), discussed infra. But as the proof of Pinkerton liability becomes more complex, the instruction must provide a higher degree of specificity if it is to survive Manzella. We therefore must inquire whether, with respect to each of...