United States v. Emalfarb, 72-1207.
| Decision Date | 02 July 1973 |
| Docket Number | No. 72-1207.,72-1207. |
| Citation | 484 F.2d 787 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Seymour EMALFARB, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John Powers Crowley, Chicago, Ill., for defendant-appellant.
James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.
Certiorari Denied December 3, 1973. See 94 S.Ct. 571.
Defendant-appellant Seymour Emalfarb appeals, after a jury trial, his conviction on three counts of extortion in violation of 18 U.S.C. § 1951. He received concurrent sentences of three years in the Attorney General's custody: a ninety-day period confined to a jail-type or treatment institution with the remainder to be probation. He was also fined $5,000.
The defendant raises five issues on appeal: (1) the sufficiency of the evidence, (2) the trial judge's prejudicial comment to the jury that they would have no difficulty in determining the victim's state of mind, (3) the failure of the trial judge to give a missing witness instruction, (4) an erroneous instruction, defining reasonable doubt, and (5) the refusal of the trial judge to instruct on the defendant's theory of the case.
Defendant was the president, general manager, and salesman for Statewide Tire Company. The company was incorporated in 1959 by Emalfarb, Paul Powell, Clyde Choate, and C. W. Davis.1 Statewide sold tires to the Illinois Tollway Commission in 1962, 1963 and 1964 for use on official cars. The defendant had frequent contact with the state police officers assigned to patrol the Illinois Tollways and was often seen at the headquarters.
Robert Schreiber, the victim of the alleged extortion owned his own trucking company in Hebron, Indiana. His company had about sixty trucks which carried sand and stone between Chicago and Gary, Indiana. Schreiber testified that the defendant called him in October 1966 and told him that he (Schreiber) had been running his trucks through Illinois for the last three years and "had not contributed to the Powell cause" and that he should pay $1,500 cash or buy 110 tires. Schreiber stated that he refused. Immediately after that telephone conversation, Schreiber's trucks were increasingly stopped and ticketed by Illinois state police. On November 9, 1966 the day after Paul Powell was elected Secretary of State in Illinois,2 the defendant telephoned Schreiber and asked: "Are you ready to say uncle?" Schreiber proceeded to reduce by negotiation the requested $1,500 sum to $1,000. On the following day, November 10, 1966, Schreiber met the defendant at a motel parking lot. They went into the motel coffee shop and Schreiber gave the defendant $1,000 in cash. The defendant excused himself and made a telephone call. As he returned, a state police car drove away from the motel. The defendant in referring to the departing police car told Schreiber: "See what powers I have." After the exchange of money, Schreiber's trucks were infrequently ticketed. Schreiber in response to a later telephone call paid defendant another $500 in cash on December 5, 1966. A third payment of $500 in response to another call occurred on January 4, 1967 when Schreiber gave the manager of defendant's office a check payable to cash which the manager proceeded to cash. The manager did not remember what he did with the proceeds.
The defendant's defense is that these payments were Schreiber's voluntary contributions to Paul Powell's campaign funds in hope of receiving favorable licenses from the recently elected Secretary of State.
The defendant argues that the evidence was insufficient to sustain a conviction since Schreiber's testimony that the harassment followed the initial telephone call by Schreiber is contradicted by the existence of a telephone call slip which indicated a phone call was made from defendant's Statewide Tire Company to Schreiber's company on October 27, 1966 and that Schreiber's trucks had received tickets on October 24 and October 26 prior to the telephone call of October 27th. There is no evidence as to who made or received the telephone call on October 27, 1966. The existence of a telephone call on October 27, 1966 does not refute Schreiber's testimony for there is no evidence of the parties to, or subject of, the call. This information about the telephone call of October 27, 1966 was evidence before the jury. The alleged contradiction was argued in defense counsel's summation. The jury apparently decided the credibility issue adverse to the defendant.
Defendant also argues that the Government failed to prove a connection between the defendant and the ticketing of Schreiber's trucks. The actual issue to be decided here was not whether the defendant had the power to have Schreiber's trucks stopped and ticketed but whether it was reasonable for Schreiber to believe that he had that power.
The evidence supports the jury finding that defendant was guilty on the three counts of extortion.
Defendant argues that the trial judge erred in commenting to the jury on the possible inference to be drawn from Schreiber's testimony as to his state of mind after the telephone call by the defendant in October 1966. The record shows that the following occurred while Schreiber was being directly examined by the assistant United States Attorney:
Defense counsel did not move to strike the trial judge's comments or to give the jury a cautioning instruction.
Although the trial judge's comment appears to be ambiguous, we do not think that the trial judge should have made such a comment since it was uncalled for and might have under other circumstances prejudiced the defendant's case. However, in this case, we believe that the comment was harmless error in light of the judge's later charges to the jury:
On the specific issue of Schreiber's state of mind, the judge's charge eliminated any possible prejudice to the defendant from his ambiguous but unfortunate comment. He stated:
You are not bound by the statements of either Mr. Schreiber or any of the other people as to what his state of mind was. You can conclude from the evidence, all of the evidence, that in fact he couldn\'t reasonably have had that state of mind, or you may conclude from the evidence that he could reasonably have had the state of mind which he testified to. . . .
The defendant's cited authority dealing with a trial judge's comments on testimony and other evidence is not precedent for reversal in this case since the judge gave sufficient cautionary instructions. Moreover, his comments were ambiguous and did not directly express an opinion that Schreiber's testimony was worthy or unworthy of belief. United States v. Kwitek, 433 F.2d 18, 20 (7th Cir. 1970).
Defendant argues that the trial judge erred in denying a missing witness instruction since the Government failed to call Trooper Lewandowski who issued a ticket to one of Schreiber's trucks on November 22, 1966. The theory of the Government's case was that between the threatening phone call of the defendant in October 1966 and the postelection telephone call on November 9, 1966, Schreiber's trucks were subjected to increased stoppings and tickets by the Illinois state police and that this harassment stopped after Schreiber gave the defendant $1,000. Lewandowski's testimony as to the circumstances concerning the ticket on November 22, 1966 was not relevant to the Government's theory. The ticket was only introduced to establish the infrequency with...
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U.S. v. Brown
...harm, however, as long as the victims reasonably believe such harm may result through the acts of defendant. United States v. Emalfarb, 484 F.2d 787, 789 (7th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). The evidence of fear of economic injury was in any event su......
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...the Hobbs Act. The Seventh Circuit did face the issue of a private citizen's conviction under the Hobbs Act in United States v. Emalfarb, 484 F.2d 787 (7th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). The court upheld the conviction of a private citizen who obtai......
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...372 (8th Cir. 1976). The appearance of authority is sufficient. U.S. v. Price, 507 F.2d 1349, 1350 (4th Cir. 1974); U.S. v. Emalfarb, 484 F.2d 787, 789 (7th Cir. 1973). Furey argues that the above cases are distinguishable from the instant action, because those cases involved either defenda......
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State v. Gora
...(521 F.2d at 643; footnote omitted) See also, United States v. Price, 507 F.2d 1349, 1350 (4 Cir. 1974); United States v. Emalfarb, 484 F.2d 787, 789 (7 Cir.), Cert. den. 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); State v. Dolton, 146 N.J.Super. 111, 369 A.2d 17 The standard to be ......