United States v. Schwartz

• Decision Date: 14 August 1968
• Docket Number: 16466.,No. 16465,16465
• Citation: United States v. Schwartz, 398 F.2d 464 (7th Cir. 1968)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert SCHWARTZ and John J. Pyne, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

398 F.2d 464 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Robert SCHWARTZ and John J. Pyne, Defendants-Appellants.

Nos. 16465, 16466.

United States Court of Appeals Seventh Circuit.

July 12, 1968.

Rehearing Denied August 14, 1968.

Jerome Rotenberg, Edward J. Calihan, Jr., Chicago, Ill., for defendants appellants.

Thomas A. Foran, U. S. Atty., Michael B. Nash, Asst. U. S. Atty., Chicago, Ill., for plaintiff appellee. John Peter Lulinski, Nicholas J. Etten, Asst. U. S. Attys., of counsel.

Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

Rehearing Denied August 14, 1968 en banc.

CUMMINGS, Circuit Judge.

In May 1967, Edmund Pacewicz and defendants John Pyne and Robert Schwartz were indicted for interstate travel (or causing interstate travel) from Chicago to Provo, Utah, on or about March 9, 1964, to promote extortion in violation of a Utah statute,¹ in contravention of Section 1952 of the Criminal Code (18 U.S.C. § 1952). Pacewicz entered a plea of guilty, and defendants Pyne and Schwartz were found guilty after a jury trial.

The evidence showed that on February 25, 1964, Robert P. Thorn, a resident of Salt Lake City, Utah, came to Chicago to attend the National Ready-Mix Concrete Association convention. Thorn was in the construction business in Provo, Utah. On February 27, Thorn attended meetings of the convention and then attended an evening performance of How to Succeed in Business Without Really Trying at the Shubert Theatre. On the lapel of his suit he was wearing a convention tag describing him in block letters as follows:

ROBERT P. THORN THORN ROCK PRODS. CO. PROVO, UTAH

As he left the theatre at approximately 10:30 p. m., defendant Schwartz, who was standing outside the theatre, hailed Thorn by name. Schwartz explained that he was a manufacturer's representative of heavy equipment and wanted to talk to Thorn about his product. Thorn invited Schwartz to Thorn's room at the Palmer House Hotel to discuss this business.

A moment after their arrival in Thorn's room, Schwartz solicited an act of perversion. Thorn immediately ordered Schwartz to leave the room, stating that otherwise he would call the police.

Schwartz then told Thorn that he would be in serious difficulties if he caused any trouble. Schwartz pulled out a folder containing a badge and an I.D. card and told Thorn he was an officer of the Chicago Police Department. Thorn then gave Schwartz his driver's license in a plastic folder containing his business cards. Schwartz took notes from these items and asked Thorn for his business address, the number and ages of his children and information about his automobile and about his wife's automobile.

Schwartz told Thorn that a serious criminal charge would be lodged against him if anything came of this experience. He also told Thorn that his family and business reputation would suffer if he were so charged.

On February 28, Thorn returned to Utah without having called the Chicago Police Department.

On March 9, defendant Pacewicz, calling himself Sergeant Walter Duncan of the Chicago Police Department, appeared at Thorn's office in Provo, Utah. After a 15- or 20-minute conversation, Pacewicz left Thorn's office. A few minutes later, he returned with defendant Pyne, who was introduced as Detective John Anderson of the Chicago Police Department. Pacewicz termed Anderson "a close friend of the father of the young officer" (defendant Schwartz, whom they called Dick) who had visited Thorn's Chicago hotel room. The defendants indicated that Schwartz's father had long been a detective in the Chicago Police Department.

The defendants told Thorn they had a warrant of arrest for his return to Chicago as a result of the Palmer House episode. Pacewicz exhibited papers purportedly for Thorn's arrest and extradition to Illinois. They said that Schwartz was in trouble for not having arrested Thorn, and that Schwartz could only be cleared if Thorn returned to Chicago to stand trial. Thorn said that it would be impossible to do so. Pacewicz said they were obliged to produce Thorn in Chicago or else he would have to post a $25,000 bond. When Thorn advised defendants that he could not raise this amount, Pacewicz said the bond could be reduced to a $10,000 cash bond, resulting in vindication of Schwartz and Thorn. Defendants told Thorn they had to return to Chicago as early as possible.

Later that morning, Thorn gave Pacewicz an envelope containing $10,000 because Thorn was afraid to return to Chicago to face Schwartz's charges. Thorn never recovered this money although Pacewicz had promised its return, less a 10% Illinois bondsman's fee.

Two days later, Pacewicz telephoned Thorn to tell him they would keep everything under control and that the matter would be disposed of in three or four months. In this conversation, Pacewicz refused to give Thorn his business or home telephone number and explained that he was calling on an outside phone to avoid a monitor. He said the case had been continued until a hearing ten or twelve days thence, and they would secure another continuance for 30-45 days. He reported that he had succeeded in straightening out "these two boys" so that everyone felt pretty good about the whole thing "back here."

About a month thereafter, Pyne telephoned Thorn to tell him that they (Pyne and Pacewicz) had gone to court that day and the case had been continued until July 9, and that everything would be straightened out by then.

Both these telephone calls were transcribed. The tape of the March 11th call from Pacewicz to Thorn shows that it was a person-to-person long distance booth call costing $2. The tape of the April 13th call from Pyne to Thorn shows that it was a long distance call from a booth. The tape recordings were played to the jury, but the Court advised the jury that the conversation between Pacewicz and Thorn was not then admissible against Schwartz. The Court also instructed the jury that, absent a common plan, no testimony was applicable to a defendant unless he was present.

On cross-examination, Thorn testified that he had been shown 40 photographs by Federal Bureau of Investigation agents in the latter part of March in Provo, Utah, in an effort to identify Schwartz. Thorn selected a front pose and a profile pose from these photographs.² Since the 40 photographs had not been retained together, the District Court ruled that Schwartz's counsel was entitled to see only the two poses that Thorn had identified as Schwartz. In the jury's presence, the district judge asked Government counsel whether these two pictures were retained and were available in Chicago, and FBI agent Cavanaugh replied:

"Yes, sir. They were identified with police numbers and I can get them downstairs at the FBI headquarters in Chicago, or copies, which are the only photographs available on that P.D. number."

Thereupon, outside the presence of the jury, defense counsel moved unsuccessfully for a mistrial.

A Chicago police sergeant testified that he had been unable to find any arrest warrant for Thorn. Another Chicago police officer stated that there were no Police Department records as to a Sergeant Walter Duncan nor as to a caucasian Detective John Anderson.

FBI agent Kotsos testified that after arresting defendant Pyne in his residence at 10458 South Claremont Avenue in Chicago on June 24, 1966, he searched the residence as an incident to the arrest and discovered two blank Chicago Police Department cards, one for a sergeant and one for a detective.

A Salt Lake City, Utah, Avis Rent-a-Car clerk identified Pacewicz as the man who rented a Ford car from her at the Salt Lake City airport on March 8, 1964, at 9:15 p. m., returning it at 2:00 p. m. on March 9. She identified Pyne as being in the vicinity of the Avis counter at the time the car rental agreement was signed.

Another FBI agent testified that the signature on the Avis rental agreement was that of defendant Pacewicz.

Constitutionality of Federal Statute

Defendant Pyne complains that Section 1952 of the Criminal Code (18 U.S.C. § 1952)³ violates the Fifth Amendment because it incorporates state statutes that vary throughout the United States. The same argument was rejected in Turf Center, Inc. v. United States, 325 F.2d 793, 795-796 (9th Cir. 1963), and in Spinelli v. United States, 382 F.2d 871, 890 (8th Cir. 1967), certiorari granted, 390 U.S. 942, 88 S.Ct. 1025, 19 L.Ed.2d 1130.⁴ We agree with the 8th and 9th Circuits that Section 1952 does not violate the Fifth Amendment even though there is a lack of uniformity among the state laws upon which it depends. See Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326.

Interstate Travel

The defendants argue that there was insufficient evidence to warrant the jury finding that Pacewicz and defendant Pyne had traveled from Chicago to Provo, Utah, on March 8, 1964. Although no direct proof of travel was shown, there was evidence from which the jury could conclude that such an interstate journey had occurred.

The evidence shows that Pacewicz and Pyne rented an Avis car at the Salt Lake City airport on the evening of March 8, and that they conferred with Thorn in his Provo office the following morning. At that conference, they described themselves and Schwartz as representatives of the Chicago Police Department and told Thorn they had to return to Chicago as soon as possible. They indicated that they had come from Chicago on official business — either to "produce Thorn's body to stand trial in Chicago or a bond of $25,000." After they had obtained the $10,000 from their victim, they returned the rented car at the Salt Lake City airport at 2:00 p. m. on March 9. By thus indicating that they had come from and were going to return to Chicago, Pyne and Pacewicz made admissions against their interests. Although such admissions are ordinarily enough to take an issue to the jury, defendants argue that the admissions did not...