## Facts

- Federal and local authorities investigated suspected Chicago police corruption involving a shop operated by Leo Dyer, believed to be making payoffs to police.
- The FBI, under court authorization, installed microphones in the shop and monitored the shop’s telephone; Chicago police conducted physical surveillance from across the street.
- On July 31, 1976, three men identifying themselves as police officers entered Dyer’s shop purportedly to execute a narcotics search warrant; two were off-duty officers James A. Blakey and Louis A. Berry.
- Blakey and Berry went with Dyer to the back of the shop, then returned to the front and filled bags with store merchandise before leaving.
- The government alleged the officers obtained merchandise by extortion under color of official right, in violation of the Hobbs Act, and conspired to do so.
- The defense claimed the merchandise was purchased rather than taken.
- Shortly after the officers left, Dyer made recorded statements in the shop describing the event; by trial, Dyer had died.
- The district court admitted Dyer’s recorded statements as present sense impressions under Federal Rule of Evidence 803(1).
- A jury convicted Blakey and Berry of extortion and conspiracy; they appealed.

## Issues

1. Whether the government proved the Hobbs Act jurisdictional requirement that the extortion affected interstate commerce, where the victim business allegedly had illegal aspects.
2. Whether admitting the deceased victim’s recorded statements violated the hearsay rules and the Sixth Amendment Confrontation Clause.
3. Whether the district court abused its discretion or denied due process in conducting hearings concerning the admissibility and integrity of the tape recordings.
4. Whether alleged prosecutorial references to facts not in evidence, and the trial court’s reprimand of defense counsel during argument, denied defendants a fair trial and effective assistance of counsel.

## Decision

- The Seventh Circuit affirmed the convictions on all counts.
- The court held the Hobbs Act interstate-commerce element was satisfied under a minimal-effects standard and was not defeated by the presence of illegal activity where the business had legitimate commercial operations.
- The court upheld admission of Dyer’s recorded statements as present sense impressions under Rule 803(1) and found no Confrontation Clause violation given their reliability and corroborating circumstances.
- The court found no abuse of discretion or prejudice in the trial court’s pre-verdict and post-trial proceedings on the recordings.
- The court concluded the prosecutor’s closing argument, viewed in context, did not warrant reversal and the judge’s admonishment of defense counsel did not deny a fair trial or effective assistance.

## Legal Principles

- The Hobbs Act’s interstate-commerce requirement is satisfied by a minimal (de minimis) effect on interstate commerce.
- Extortion affecting a business’s legitimate commercial activity can fall within the Hobbs Act even if the business also engages in illegal conduct.
- A statement describing or explaining an event, made while the declarant perceives it or immediately thereafter, may be admitted as a present sense impression under Federal Rule of Evidence 803(1).
- When a declarant is unavailable, admission of a present sense impression may satisfy the Confrontation Clause if the circumstances provide sufficient guarantees of trustworthiness.
- Trial courts have broad discretion over evidentiary rulings on recordings (including authenticity and audibility), and reversal requires a showing of prejudice affecting trial fairness.
- Improper argument warrants reversal only when, in context, it is sufficiently prejudicial to influence the verdict.

## Conclusion

The Seventh Circuit upheld Hobbs Act extortion and conspiracy convictions of two police officers, ruling that a minimal effect on interstate commerce supported federal jurisdiction despite the victim business’s alleged illegality and that the deceased victim’s near-contemporaneous recorded statements were properly admitted as reliable present sense impressions without violating the Confrontation Clause.


United States v. Blakey, 607 F.2d 779 (7th Cir. 1979)