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United States v. Sullivan

argued: September 19, 1986.

UNITED STATES OF AMERICA
v.
EUGENE SULLIVAN, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, Criminal No. 85-00296-01

Author: Adams

Before: ADAMS, STAPLETON, and VAN DUSEN, Circuit Judges

Opinion OF THE COURT

ADAMS, Circuit Judge.

Eugene Sullivan appeals on various grounds from a decision of the District Court for the Eastern District of Pennsylvania finding him guilty of one count of conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951, and fourteen counts of specific violations of that Act. The violations in question occurred between March 1980 and September 1983, when Sullivan commanded the Northeast Division of the Philadelphia Police Department. As division commander, Sullivan personally directed a vice lieutenant and and eight-member vice squad responsible for policing illegal gambling and prostitution within the division's boundaries. According to the jury, Sullivan headed a conspiracy among the members of the Northeast Division vice squad to extort money from owners and operators of illegal gambling and houses of prostitution in exchange for police protection.

I.

In March 1980 Sullivan assumed command of the Northeast Division. At Sullivan's request, Lt. Walter McDermott and Officer George Bowie were transferred to his vice squad from the Eastern Division. During their service in the Eastern Division, McDermott and Bowie had actively participated in an organized extortion scheme.

At trial, Bowie testified that the Northeast extortion ring was structured to insulate Sullivan, who supervised the operation. Bowie was the "chief bagman" for two years, routinely collecting at least $10,000 in cash each month from the various vice operators who had agreed to pay for protection. Bowie reported each month's collection to McDermott, who divided up the proceeds: $4,000 for Sullivan, $2,000 for McDermott, $1,000 for Bowie, and $650 for each of the squad members. In 1982, Bowie and McDermott left the division, but their places were taken by Thomas Volkman, William Maahs and Lt. Bowman, and the extortion ring continued to operate until terminated by the federal investigation.

According to the testimony at trial, on a number of occasions Sullivan personally involved himself with screening vice operators for acceptance of protection money. On one occasion, Sullivan instructed Maahs to "leave [Lester Barry's] machines alone" when Sullivan realized that Barry had been making monthly protection payments to the squad. Moreover, Bowie testified that the cash received from Robert Sadowl, the owner of one of the largest collection of illegal video poker machines in Philadelphia, was not "cut up with the squad" because it belonged "strictly" to Sullivan. This money from Sadowl alone ranged from $300 to $800 per month.

On August 8, 1985, a federal grand jury sitting in the Eastern District of Pennsylvania returned a 30-count indictment against Sullivan, as well as McDermott, Maahs, John Czman and Robert Schwartz, for violations of the Hobbs Act, 18 U.S.C. § 1951. After a jury trial, Sullivan was convicted of one count of conspiring to extort, and fourteen specific counts of extortion. He was sentenced to 15 concurrent terms of 13 years' imprisonment, and fines totalling $105,000 were imposed on him. The district court suspended execution of the sentence pending this appeal.

Sullivan now raises five objections to his conviction that merit discussion.

II.

A. The District Court's Exclusion of then Ten State Court Judges as Character Witnesses

Sullivan sought to call at trial some 61 character witnesses, including ten Pennsylvania state court judges, to attest to his reputation in the community. Rule 1701 of the Pennsylvania Rules of Judicial Administration requires judges to apply for permission from the State Supreme Court before appearing as character witnesses. In accordance with this rule, the judges in question filed a petition to appear on Sullivan's behalf, but the petition was denied by the Pennsylvania Supreme Court on November 8, 1985. In spite of this ruling the district court allowed Sullivan to issue subpoenas to the ten judges, declaring that the sixth amendment gives every defendant the right to subpoena anyone he chooses. At trial, however, the district court directed ...


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