CUDAHY, Circuit Judge.
Defendant-appellant Jerome Berardi was charged in a seven-count indictment with
Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the jury could have found the following to be the facts:
The defendant, Jerome Berardi, was employed from 1975 until September of 1980 as Chief Clerk of the Cook County Board of Appeals (the "Board"). The function of the Board is to review real estate assessments made by the Cook County Assessor. As Chief Clerk, Berardi exercised administrative authority over the processing of taxpayer complaints filed with the Board.
In the spring of 1976, Edward Krupa, a clerk employed by the Board, introduced Berardi to Walter Heiden, then the president of Gateway Chevrolet Sales, Inc., a car dealership located in Chicago.
Heiden presented his tax bills to Berardi in November or December of 1976. Berardi said that he could save Heiden $9,000 on his taxes but that this effort would cost Heiden $3,000 in cash. Heiden paid Berardi the money, after which Berardi filed with the Board a complaint (including property appraisals) concerning Gateway Chevrolet's property assessment. The Board lowered the assessment, resulting in a reduction of $9,000 in Gateway Chevrolet's 1976 tax bill. Heiden at no point during this proceeding filled out a complaint or appeared at a hearing before a Board hearing officer. A similar deal concerning Gateway Chevrolet's 1977 taxes was successfully completed in January of 1978, for the same price and with the same reduction in taxes.
Sometime in late 1978 or early 1979, Berardi informed Heiden that a reporter for the Chicago Tribune was examining Board records. Berardi told Heiden that, if questioned by the reporter, he should say that Heiden himself had prepared the complaint forms and had appeared at a Board hearing before hearing officers Jimmie Smith and Donald Erskine. Berardi also instructed Heiden not to reveal Berardi's participation in the property assessment reductions or to disclose the payment of money to Berardi. No part of this story was true but Heiden repeated it to the reporter when he in fact questioned Heiden.
On February 15, 1979, the Special January 1979 Grand Jury entered the picture, commencing an investigation into allegedly unlawful real estate assessment reductions granted by the Board. During April and May of 1979, the FBI examined the Board's files and interviewed a number of Board employees.
Perhaps sensing the possible uncovering of the Heiden payoffs, Berardi visited Heiden at Gateway Chevrolet in late March or early April. Berardi told Heiden of the FBI's investigation and indicated that he wanted to return some ($1,000) of the money that Heiden had paid him. Berardi instructed Heiden, if he should be summoned to appear before a grand jury, to say that Heiden had personally ordered and paid for the property appraisals, and not to disclose Berardi's own role in the assessment reductions at Gateway Chevrolet.
Heiden was served with a subpoena on July 23, 1979. He immediately called Berardi with the news. Again Berardi pleaded with Heiden not to disclose the payoffs and he also told Heiden to lie to the grand jury. At this point, Heiden said he was going to get a lawyer.
On January 8, 1981, a superseding indictment was returned, charging Berardi with four counts of mail fraud, 18 U.S.C. § 1341 (Counts One through Four), two counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (Counts Five and Six), and one count of obstruction of justice, 18 U.S.C. § 1503 (Count Seven). The jury, as indicated, found Berardi not guilty of mail fraud and extortion but found him guilty of obstructing justice.
Berardi's first contention is that Count Seven, charging him with obstruction of justice, was prejudicially duplicitous. Count Seven alleged that "[f]rom in or around April 1979 and continuing until in and around July 1979," Berardi in violation of 18 U.S.C. § 1503
A duplicitous count is one that charges more than one distinct and separate offense. United States v. Zeidman, 540 F.2d 314, 316 (7th Cir.1976); United States v. Isaacs, 493 F.2d 1124, 1154 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); 8 J. Moore, Federal Practice ¶ 8.03 (1981).
The line between multiple offenses and multiple means to the commission of a single continuing offense is often a difficult one to draw. The decision is left, at least initially, to the discretion of the prosecution. United States v. Tanner, 471 F.2d 128, 138 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). In the instant case, it is no doubt true that the three acts of obstruction described in Count Seven could have constituted independent violations of section 1503 and could have been charged in separate counts. Had the government taken this route, of course, Berardi would have been subjected to multiple statutory penalties. The government, however, declined this opportunity to cumulate these punishments and the indictment, fairly interpreted, charges Berardi with a continuing course of conduct, during a discrete period of time, to influence Heiden's grand jury testimony.
We believe that the government's characterization of the facts as a single continuing offense was a fair one under the circumstances and is one which comports with the language of section 1503. See United States v. Zeidman, 540 F.2d 314, 317 (7th Cir.1976). The obstruction of justice statute makes it unlawful for a person to "endeavor" to "influence, intimidate, or impede any witness." Although the section permits an indictment for each discrete act of obstruction, it also contemplates a continuing course of conduct, during the pendency of a judicial proceeding, designed to further the single object of influencing, intimidating or impeding a witness.
From what we have said it should be apparent that our conclusion does not conflict with United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972), on which Berardi relies. In Tanner, a number of defendants were charged in a single count with transporting explosives in interstate commerce with intent to cause damage to property. A bill of particulars disclosed that the acts of transporting explosives occurred on numerous dates during a three-month period and involved journeys to five different cities. This court held that the offense was so vaguely defined in the count as to be prejudicially duplicitous. In the instant case, by contrast, the three acts alleged in Count Seven were much more closely interrelated than the wide ranging activities charged in Tanner, as the acts
We reach our conclusion that Count Seven was not prejudicially duplicitous recognizing that, "[w]hen the offenses joined bear a relationship to one another and may be said to constitute a continuing course of conduct, the `distinct and separate' test should be applied, not as a metaphysical exercise, but with a view toward serving the purposes of the prohibition against duplicity." United States v. Pavloski, 574 F.2d 933, 936 (7th Cir.1978). The dangers posed by a duplicitous indictment include the possibility that the defendant may not be adequately notified of the charges against him, that he may be subjected to double jeopardy, that he may be prejudiced by evidentiary rulings at trial, and that he may be convicted by a less than unanimous verdict. United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980); United States v. Starks, 515 F.2d 112, 116-17 (3d Cir.1975). None of those dangers were present in the instant case.
The detailed specification of the three acts of obstruction alleged in Count Seven provided more than adequate notice of the charges against Berardi, and foreclosed any possibility that he might later be prosecuted for the same acts. See United States v. Zeidman, 540 F.2d 314, 317 (7th Cir.1976). Berardi does not claim to have been prejudiced by any evidentiary rulings at trial. Berardi argues strenuously, however, that the alleged duplicity of Count Seven deprived him of the clear concurrence of all of the jurors in the verdict. Specifically, he contends that the jurors may have relied on different acts in concluding that he was guilty of obstructing justice. The jury was instructed, however, that, in order to convict Berardi, they "must be unanimous in ... finding that the defendant did at least one of the acts charged...." Tr. 950. We think that this instruction, reasonably interpreted, required that with respect to at least one of the three acts charged, the jury unanimously agree that Berardi was guilty.
Prior to trial, Berardi filed a motion pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure seeking a severance of Count Seven from Counts One through Six on grounds of prejudicial joinder. He assigns as error the district court's denial of the motion. We conclude that the court below acted properly.
Rule 8(a) authorizes the joinder of offenses that "are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). "Transaction" is a word of flexible meaning and "may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." United States v. Park, 531 F.2d 754, 761 (5th Cir.1976) (quoting Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926)). In determining whether the connection between the acts charged is sufficient to meet
We agree with the district court that joinder was proper in the instant case. The acts alleged in Count Seven were logically related to those charged in Counts One through Six. Berardi's participation in a scheme to reduce Gateway Chevrolet's taxes in exchange for a financial payoff could not succeed unless the facts relating to the scheme were withheld from the grand jury investigating this and similar transactions. Moreover, there was substantial overlap in the evidence used to prove Berardi's guilt on the various counts. In United States v. Rajewski, 526 F.2d 149 (7th Cir.1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976), we considered the question of evidentiary overlap in the context of an obstruction of justice count joined with a fraud count. Upholding the joinder, we observed:
526 F.2d at 155. See also United States v. Raineri, 670 F.2d 702, 708-09 (7th Cir. February 8, 1982). Similarly in the instant case, evidence of Berardi's involvement in the alleged extortion and mail fraud tended to establish a motive for the obstruction of justice, and evidence of his efforts to influence Heiden's testimony tended to establish Berardi's guilty consciousness of the illegal payoffs. Count Seven and Counts One through Six were thus "inextricably connected" and their joinder under Rule 8(a) was permissible.
Even though distinct offenses have been joined properly under Rule 8(a), a court may grant severance if it appears that the defendant will be prejudiced by the joinder. Fed.R.Crim.P. 14.
Berardi advances two arguments in support of his claim of prejudicial joinder. First, he maintains that much of the exhaustive testimony adduced at trial on the first six counts would have been inadmissible, or of limited admissibility, at a separate trial on Count Seven. He notes specifically that evidence pertaining to the operations of the Board and the County Assessor's
Berardi's second argument is that his acquittal on the first six counts of the indictment destroyed the government's theory of a "logical relationship" between Count Seven and the other counts. He relies on United States v. Ragghianti, 527 F.2d 586 (9th Cir. 1975). In that case, the defendant was charged with the commission of two separate bank robberies, joined in a two-count indictment as offenses "of the same or similar character." Fed.R.Crim.P. 8(a). After the jury returned a verdict of guilty on both counts, the trial court granted a motion for acquittal on one count because of insufficient evidence. The Ninth Circuit reversed the conviction on the other count after indicating the possibility of prejudicial joinder. Ragghianti, however, differs from the instant case in at least two respects. First, it involved the joinder of offenses of the same or similar character, where the dangers of prejudice are recognized to be particularly pronounced. See 8 J. Moore, Federal Practice ¶ 8.05 (1981). Also, the evidence was insufficient with respect to one of the joined counts; in the instant case there was sufficient evidence to submit all seven counts to the jury.
The jury was instructed in the instant case to give separate consideration to each count in the indictment. This instruction was an adequate safeguard against the risk of prejudice in the form of jury confusion, evidentiary spillover and cumulation of evidence. United States v. Strand, 617 F.2d 571, 575 (10th Cir.), cert. denied, 449 U.S. 841,
Berardi's final argument is that the evidence was insufficient to support the guilty verdict on Count Seven.
A. The April 1979 Act
Count Seven charged that, "[i]n and around April 1979," Berardi instructed Heiden that, if questioned, he should testify falsely that he had personally ordered and paid for the property appraisals, that he attended a Board hearing on the property assessment reductions, and that he did not pay Berardi any money in connection with Gateway Chevrolet's tax reductions. There was evidence at trial — primarily the testimony of Heiden — that Berardi had in fact committed the act charged during a conversation with Heiden in late March or early April of 1979.
Over Berardi's objection, the jury was given the following instruction:
A "witness" under section 1503 is one who knows or is expected to know material facts and is expected to testify to them or to be called on to testify. United States v. Chandler, 604 F.2d 972, 974 (5th Cir. 1979), cert. dismissed, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980); United States v. Griffin, 463 F.2d 177, 179 (10th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 34, 34 L.Ed.2d 254 (1972); United States v. Grunewald, 233 F.2d 556, 571 (2d Cir. 1956), rev'd on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev'd on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941). At issue in this case is the question whether the phrase, "is expected to testify," refers to the expectation of the defendant, the putative witness, or both. Berardi relies on Berra v. United States, 221 F.2d 590 (8th Cir. 1955), aff'd on other grounds, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), in support of his argument that Heiden was not a "witness." In Berra the court did expressly reject the argument that the defendant's expectation that a person will testify is itself sufficient to make that person a "witness" under the obstruction of justice statute. In so doing, the court separated, for purposes of analysis, the definition of "witness" from the statute's scienter requirement. Berardi is thus correct that Berra holds that, in order to be a "witness" under section 1503, the ostensible witness must himself expect or intend to testify in a federal judicial proceeding.
For at least two reasons, however, we must reject Berardi's argument that Heiden was not a "witness."
We thus hold that a person need not always intend or expect to testify in order to be a "witness" within the meaning of section 1503. In the instant case, Heiden was a "witness" at the time of the April conversation because Berardi, the defendant, expected him to testify before the grand jury and he was in fact called to testify. Accordingly, the jury was properly instructed and sufficient evidence was presented supporting the jury's verdict.
B. The June 1979 Act
As the second act of obstruction, Count Seven alleged that "[i]n and around June 1979," Berardi again instructed Heiden to make false statements concerning the real estate assessments of Gateway Chevrolet. In support of this charge, Heiden testified at trial that this second of three contacts with Berardi occurred at "the end of June, but July sort of rings a bell." Tr. 189. Heiden stated that the conversation with Berardi took place immediately after the FBI questioned Heiden, an interview recalled by Agent Olson of the FBI to have occurred on July 17. On the basis of this ambiguity concerning the actual date on which the second act of obstruction was committed, Berardi contends that the government adduced no evidence of a June 1979, as opposed to a July 1979, act.
Berardi's assertion is refuted by the terms of the indictment, the instructions to the jury and by Heiden's own testimony. Heiden testified to three separate contacts with Berardi, corresponding to the three acts charged in Count Seven. Heiden said the second act occurred in late June or in July. The indictment alleged that the act occurred "[i]n and around June 1979." The jury was told that, "Although the evidence need not establish with certainty the exact date of the alleged offenses, it must establish that the offenses were committed on dates reasonably near the dates charged." Tr. 935-36. We conclude that Heiden's testimony, taken together with the jury instruction that was given, provided sufficient evidence to submit to the jury the allegation of an act of obstruction occurring, "[i]n and around June 1979."
C. The July 1979 Act
The third and final act charged in Count Seven involves Berardi's instruction to Heiden "[i]n and around July 1979," to state falsely, if questioned, that no money was exchanged between the two in connection with Gateway Chevrolet's property assessments. Heiden at trial gave testimony supporting the charge, and Berardi's only argument here is that there was a genuine conflict in the accounts given by the various witnesses. It is the province of the jury, however, to weigh the evidence and determine credibility. United States v. Niemiec,
Thus we conclude that the commission of each of the three acts alleged in Count Seven was supported by evidence sufficient to sustain the jury's verdict.
For the reasons stated herein, we affirm Berardi's conviction for obstruction of justice.