United States v. Zouras, 73-1734.

• Decision Date: 29 May 1974
• Docket Number: No. 73-1734.,73-1734.
• Citation: 497 F.2d 1115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald M. ZOURAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

497 F.2d 1115 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Donald M. ZOURAS, Defendant-Appellant.

No. 73-1734.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1974.

Decided May 29, 1974.

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Arthur E. Engelland, Robert S. Bailey, Chicago, Ill., for appellant.

James R. Thompson, U. S. Atty., Jeremy D. Margolis, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before CUMMINGS, PELL and STEVENS, Circuit Judges.

PER CURIAM.

Defendant was convicted by a jury upon both counts of a two-count indictment. Count One charged a violation of the Mann Act, 18 U.S.C. § 2421, and Count Two, the use of the mails in furtherance of extortion, in violation of 18 U.S.C. § 876.¹

The evidence showed that Deborah De Witt, now Deborah Ludwell, worked as a prostitute for defendant, beginning in December, 1971. In February, 1972, she traveled by car to New Orleans for the Mardi Gras season with the defendant and another man, Fred Schwartz. While passing through Memphis on their return trip to Chicago, the defendant stopped the car to ask directions from a young girl, Deborah Wertz. A conversation ensued, defendant learned that she was sixteen years old, and earning money by working as a prostitute.

It was agreed that Wertz "was a member of our family now and . . . would be going back north with them."² They returned to Wertz's hotel room, where she collected her belongings. Schwartz said he would not drive north with "jail bait,"³ and was driven to the bus depot; the other three then returned to Chicago by car.⁴

Wertz and De Witt worked for defendant after arriving in Chicago. On May 2, De Witt quarrelled with the defendant, ended their relationship, and returned to her parents' home in Dolton. She provided the Vice Control Division of the Chicago Police Department with information concerning defendant's operation. Apparently as a result of this information, Wertz was arrested on May 9.

On May 22, De Witt's mother was visited by her sister and brother-in-law. They gave her the envelope which is the subject of Count Two of the indictment. The envelope contained two photographs of Mrs. De Witt's daughter engaged in the commission of homosexual acts and a letter reading as follows:

"Mrs. De Witt\'s oldest daughter in action.

"These pictures and other ones like them are going to be sent to the neighbors; youngest daughter\'s graduation; and relatives.

"The De Witt family will be embarrest sic I would say.

"I think Dee should take a vacation for about a year or so. And not make any appearences sic against anyone in court or otherwise from this day on. Then the pictures will never be sent.

"Interested Party"⁵

The record indicates that the defendant had induced De Witt and another woman to engage in posed lesbian acts, and had taken the photographs. He represented that they were to be sold for $20 each.⁶ The record also indicates that handwriting analysis, and fingerprint analysis connected the defendant with the letter.⁷

Defendant offers three principal arguments for the reversal of his conviction. We cannot accept any of them, and therefore affirm the judgment of the district court.⁸

First. Defendant argues that the district court erred when it allowed the Government to impeach Deborah Wertz for her silence. The principal question of fact in the Mann Act count was whether Deborah Wertz returned to Chicago in defendant's car, as De Witt testified, or whether she came by bus, as she testified on cross-examination. Wertz was asked if she had refused to answer any questions posed by the FBI concerning her mode of transportation between Memphis and Chicago.⁹ Defendant argues that she had a Fifth Amendment right to remain silent and, consequently, that her remaining silent could not be commented upon consistently with the Constitution.

The right to remain silent, guaranteed by the Fifth Amendment, is a privilege against self-incrimination, drawn from the language "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." It is not entirely clear whether Wertz's silence was a proper exercise of this privilege, because it is not clear whether the mode of transportation by which Wertz traveled from Memphis to Chicago was relevant to any of her own criminal activity.¹⁰ Nevertheless, since the "privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant," Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, we are not prepared to hold that Wertz had no Fifth Amendment privilege in these circumstances.¹¹

We reject defendant's argument because, assuming arguendo that Wertz's silence was a proper exercise of the privilege, defendant is not entitled to benefit from it. It is clear that evidence excluded by virtue of the privilege against self-incrimination, like evidence excluded by any privilege, is excluded not because the evidence is not relevant — by hypothesis it is — but because of independent policy justifications. Since it is relevant, it should be excluded only when the policies justifying the privilege so require.

We think Wertz's silence was relevant. She testified that she traveled to Chicago from Memphis by bus; the fact that the prosecutor was able to elicit, on cross-examination, that she refused to tell FBI investigators any story — including the one to which she testified — reflects upon the credibility of that testimony. It was, therefore, useful to the jury. Since we do not understand the defendant to argue, and do not think he properly could argue, that, apart from his constitutional claim, he could make any proper objection to this testimony, we think the district court properly allowed it, unless the Fifth Amendment forbade it.¹²

Whether this relevant evidence should have been excluded turns upon the meaning of the constitutional privilege against self-incrimination. In Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548, the Supreme Court outlined the scope of the privilege in general as follows:

"It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to the information that may incriminate him. As Mr. Justice Holmes put it: `A party is privileged from producing the evidence but not from its production.\' Johnson v. United States, 228 U.S. 457, 458 33 S.Ct. 572, 57 L.Ed. 919 (1913)."

More relevant to the case before us, the court continued:

"The Constitution explicitly prohibits compelling an accused to bear witness `against himself\': it necessarily does not proscribe incriminating statements elicited from another."

The privilege then, is one against self-incrimination. It is designed to protect persons from testifying against themselves; its application in cases like Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, is to prevent juries from drawing adverse inferences from the fact that a defendant exercised his right to remain silent previously. Its protection only of the one who was entitled to exercise it, is well established:

"The right of a person under the Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he was the agent of such person." Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 377, 50 L.Ed. 652.¹³

Since there was no in-court claim of the Fifth Amendment privilege by the witness, we hold that it was not error to allow the prosecutor to bring to the attention of the jury the fact that a witness had previously remained silent when, arguendo, she had a right to do so. The defendant had no stake in Wertz's Fifth Amendment rights. Cf. United States v. Castro, 438 F.2d 468, 470 (7th Cir. 1971).¹⁴

Second. Defendant argues that the conduct charged in Count Two of the indictment did not establish a violation of 18 U.S.C. § 876.¹⁵ His position, principally, is that De Witt's testimony was not "a thing of value" within the meaning of the statute.¹⁶ We believe that it was.

The statute prohibits extortion of "money or any other thing of value." This court has suggested that "any other thing of value" is to be given the broad reading its language implies. ". . . We think it obvious that Congress intended . . . to penalize every extortion demand by mail which is coupled with an express threat . . . ." United States v. Prochaska, 222 F.2d 1, 2 (1955). Under such broad language, we have no difficulty in concluding that De Witt's testimony was a thing of value. The defendant's letter indicates that it was valuable to him; De Witt's testimony indicates that she valued the right to testify against him;¹⁷ and the common law's ancient right of the court to everyman's evidence indicates its value to the people at large.¹⁸ The mere fact that the value could not easily be translated into a monetary figure does not affect its character for purposes of § 876.

The indictment charged, and the evidence proved, a violation of that statute.

Third. Defendant argues that the two offenses were improperly joined under Rule 8(a), F.R.Crim.P. and, alternatively if they were not, the district court abused its discretion in not granting a severance pursuant to Rule 14, F.R. Crim.P.¹⁹

In United States v. Quinn, 365 F.2d 256, 263 (7th Cir. 1966), we set forth the requirements for a proper joinder under Rule 8(a), as follows:

". . . Joinder of two or more crimes in the same indictment is permissible only if one or more of the following three circumstances appear . . .: (1) the crimes must be the same or of similar character, (2) the crimes must be based on the same act or transaction, or (3) the crimes must be based on two or more transactions connected together or

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