United States v. Don Benny Anderson, 716 F.2d 446 (7th Cir. 1983). · Go Syfert
United States v. Don Benny Anderson, 716 F.2d 446 (7th Cir. 1983). Cases Citing This Book View Copy Cite
43 citation events (15 in the last 25 years) across 18 distinct courts.
Strongest positive: v. Scott (coloctapp, 2021-06-04)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) v. Scott
Colo. Ct. App. · 2021 · confidence medium
“Although jury nullification is ‘a natural and at times desirable aberration under our system, it is not to be positively sanctioned by instructions’” because “explicit instructions sanctioning such action pose too great a threat to the rule of law.” Id. at 954-55 (quoting United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir. 1983)).  In United States v. Kleinman, the Ninth Circuit similarly explained that though juries have the power to nullify, they do not have a right to nullify and courts have the duty to forestall or prevent nullification because “it is the duty of ju…
discussed Cited as authority (rule) United States v. Patrick Davis
7th Cir. · 2013 · confidence medium
Although jury nullification is “a natural and at times de *955 sirable aberration under our system, it is not to be positively sanctioned by instructions ----” United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir.1988).
discussed Cited as authority (rule) Thomas Gibbs v. John R. Vannatta
7th Cir. · 2003 · confidence medium
Sparf v. United States, 156 U.S. 51, 102 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895); United States v. Bruce, 109 F.3d 323, 327 (7th Cir.1997); United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir.1983); United States v. Manning, 79 F.3d 212, 219 (1st Cir.1996); United States v. Dougherty, 473 F.2d 1113, 1136-37 (D.C.Cir.1972); Erick J.
discussed Cited as authority (rule) Gibbs, Thomas v. VanNatta, John R.
7th Cir. · 2003 · confidence medium
Sparf v. United States, 156 U.S. 51, 102 (1958); United States v. Bruce, 109 F.3d 323, 327 (7th Cir. 1997); United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir. 1983); United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996); United States v. Dougherty, 4 No. 01-2246 473 F.2d 1113, 1136-37 (D.C.
discussed Cited as authority (rule) Scheidler v. National Organization for Women, Inc. (2×)
SCOTUS · 2003 · confidence medium
See, e. g., Libertad v. Welch, 53 F. 3d 428, 438, n. 6 (CA1 1995); Northeast Women’s Center, Inc. v. McMonagle, 868 F. 2d, at 1350; United States v. Anderson, 716 F. 2d 446, 447-450 (CA7 1983).
discussed Cited as authority (rule) National Organization for Women, Inc., on Behalf of Itself and Its Women Members and All Other Women Who Use or May Use the Services of Women's Health Centers That Provide Abortions, and Delaware Women's Health Organization, Inc., and Summit Women's Health Organization, Inc., on Behalf of Themselves and the Class of All Women's Health Centers in the United States at Which Abortions Are Performed v. Joseph M. Scheidler, Pro-Life Action League, Inc., Andrew D. Scholberg, Timothy Murphy, and Operation Rescue
7th Cir. · 2001 · confidence medium
However, this circuit has repeatedly held that intangible property such as the right to conduct a business can be considered "property" under the Hobbs Act, see, e.g., United States v. Anderson, 716 F.2d 446, 450 (7th Cir. 1983), and we will not revisit that holding here. 84 In a similar vein, the defendants assert that, even if "property" was involved, the defendants did not "obtain" that property; they merely forced the plaintiffs to part with it.
discussed Cited as authority (rule) National Organization for Women, Inc. v. Scheidler
7th Cir. · 2001 · confidence medium
However, this circuit has repeatedly held that intangible property such as the right to conduct a business can be considered “property” under the Hobbs Act, see, e.g., United States v. Anderson, 716 F.2d 446, 450 (7th Cir.1983), and we will not revisit that holding here.
discussed Cited as authority (rule) People v. Williams (2×)
Cal. · 2001 · confidence medium
This should not be allowed." ( Ibid.; United States v. Anderson (7th Cir.1983) 716 F.2d 446, 449-450 [following "the accepted view that, while the `community conscience' verdict is to be accepted as a natural and at times desirable aberration under our system, it is not to be positively sanctioned by instructions ... which would encourage a jury to acquit `under any circumstances' regardless of the applicable law or proven facts"]; United States v. Washington (D.C.Cir.1983) 705 F.2d 489, 494 ["It cannot be gainsaid that juries can abuse their power and return verdicts contrary to the law and i…
examined Cited as authority (rule) United States v. John Arena and Michelle Wentworth (3×) also: Cited "see"
2d Cir. · 1999 · confidence medium
United States v. Daley, 564 F.2d at 649 ; see also United States v. Farrish, 122 F.3d at 149 (interstate commerce element proven by evidence that robbed garage, located near interstate portals, “regularly served cars bearing out-of-state license plates,” permitting inference that the robberies might discourage out-of-state business); United States v. Jones, 30 F.3d at 285-86 (interstate commerce affected by robbery of $9,000 from narcotics buyer, depleting his assets and thereby limiting his ability to make future purchases of cocaine, “a commodity that travels in interstate commerce”)…
discussed Cited as authority (rule) United States v. Hardy
C.A.A.F. · 1997 · confidence medium
Circuits discussed supra, the view that jury nullification should be recognized or encouraged has been rejected by the Seventh Circuit in United States v. Anderson, 716 F.2d 446, 449-50 (1983); the Eighth Circuit in United States v. Wiley, 503 F.2d 106, 107 (1974); the Ninth Circuit in United States v. Simpson, 460 F.2d 515, 518-20 (1972); and the Eleventh Circuit in United States v. Trujillo, 714 F.2d 102, 105-06 (1983).
discussed Cited as authority (rule) United States v. James William Bruce and Murray A. Woodworth, A/K/A Thomas Earl Hardin, A/K/A John C. Wilson
7th Cir. · 1997 · confidence medium
Jury nullification is “not to be positively sanctioned by instructions,” but is to be viewed as an “aberration under our system.” United States v. Anderson, 716 F.2d 446, 450 (7th Cir.1983); see also United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988); United States v. Brown, 548 F.2d 204, 210 (7th Cir.1977).
discussed Cited as authority (rule) United States v. James Walling
10th Cir. · 1995 · confidence medium
Accord U.S. v. Powell, 955 F.2d 1206, 1213 (9th Cir.1991); U.S. v. Kerley, 838 F.2d 932, 937-38 (7th Cir.1988); U.S. v. Anderson, 716 F.2d 446, 450 (7th Cir.1983); U.S. v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983).
discussed Cited as authority (rule) United States v. Cooley
D. Kan. · 1992 · confidence medium
United States v. Desmarais, 938 F.2d 347 (1st Cir.1991); United States v. Powell, 936 F.2d 1056, 1062-63 (9th Cir. 1991); United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988); United States v. Anderson, 716 F.2d 446, 450 (7th Cir.1983); United States v. Trujillo, 714 F.2d 102 (11th Cir.1983); United States v. Drefke, 707 F.2d 978 (8th Cir.), cert. denied, 464 U.S. 942 , 104 S.Ct. 359 , 78 L.Ed.2d 321 (1983); United States v. Simpson, 460 F.2d 515, 519-20 (9th Cir.1972).
discussed Cited as authority (rule) Monts v. Lessenberry
Ark. · 1991 · confidence medium
In United States v. Durden, supra, the court addressed the question of whether a defendant may be required to choose between self-representation or representation by counsel with respect to pretrial motions: A defendant in a criminal case has the right to represent himself or to be represented by counsel, but there is no right to both or a “hybrid” representation, 28 U.S.C. § 1654 ; McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944, 953-54 , 79 L.E.2d 122 (1984); United States v. Anderson, 716 F.2d 446, 449 (7th Cir. 1983); United States v. Trapnell, 638 F.2d 1016, 1026-27 (7th Cir. 1980)…
discussed Cited as authority (rule) United States v. Gillam Kerley
7th Cir. · 1988 · confidence medium
But jury nullification is just a power, not also a right, United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir.1983); United States v. Dougherty, 473 F.2d 1113, 1137 (D.C.Cir.1972); Devlin, The Judge 117-48 (1979), as is shown among other things by the fact noted above that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.
discussed Cited as authority (rule) United States v. Durden
N.D. Ind. · 1987 · confidence medium
A defendant in a criminal case has the right to represent himself or to be represented by counsel, but there is no right to both or a “hybrid” representation, 28 U.S.C. § 1664 ; McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944, 953-54 , 79 L.Ed.2d 122 (1984); United States v. Anderson, 716 F.2d 446, 449 (7th Cir.1983); United States v. Trapnell, 638 F.2d 1016, 1026-27 (7th Cir.1980); in fact, courts have generally held that these two rights are mutually exclusive.
discussed Cited as authority (rule) State v. Ragland (2×)
N.J. · 1986 · confidence medium
United States v. Anderson, 716 F. 2d 446, 450 (7th Cir.1983); United States v. Dougherty, supra, 473 F. 2d at 1135; United States v. Simpson, supra, 460 F. 2d at 519 -20 n. 12; Watts v. United States, supra, 362 A. 2d at 710 n. 5.
discussed Cited "see" Anderson v. Fleming (2×)
5th Cir. · 2004 · signal: see · confidence high
See United States v. Anderson, 716 F.2d 446 (7th Cir.1983).
cited Cited "see" United States v. Arena
N.D.N.Y. · 1996 · signal: see · confidence high
See id. at 450 .
cited Cited "see, e.g." United States v. Willis
7th Cir. · 2008 · signal: see, e.g. · confidence medium
See, e.g., United States v. Anderson, 716 F.2d 446, 449 (7th Cir.1983).
cited Cited "see, e.g." United States v. Willis, Hugh
7th Cir. · 2008 · signal: see, e.g. · confidence medium
See, e.g., United States v. Anderson, 716 F.2d 446, 449 (7th Cir. 1983).
discussed Cited "see, e.g." Northeast Women's Center, Inc. v. Michael Mcmonagle
3rd Cir. · 1989 · signal: see also · confidence low
In United States v. Cerilli, 603 F.2d 415, 420 (3d Cir.1979), cert. denied, 444 U.S. 1043 , 100 S.Ct. 728 , 62 L.Ed.2d 728 (1980), we upheld a Hobbs Act conviction for solicitation of political contributions, stating, "[i]t is well-established that a person may violate the Hobbs Act without himself receiving the benefits of his coercive actions." See United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975) ("there is no exception to the Hobbs Act" permitting extortion "for a religious purpose"); see also United States v. Anderson, 716 F.2d 446 (7th Cir.1983) (upholding Hobbs Act conviction of …
discussed Cited "see, e.g." Northeast Women's Center, Inc. v. McMonagle
3rd Cir. · 1989 · signal: see also · confidence low
In United States v. Cerilli, 603 F.2d 415, 420 (3d Cir.1979), cert. denied, 444 U.S. 1043 , 100 S.Ct. 728 , 62 L.Ed.2d 728 (1980), we upheld a Hobbs Act conviction for solicitation of political contributions, stating, “[i]t is well-established that a person may violate the Hobbs Act without himself receiving the benefits of his coercive actions.” See United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975) (“there is no exception to the Hobbs Act” permitting extortion “for a religious purpose”); see also United States v. Anderson, 716 F.2d 446 (7th Cir.1983) (upholding Hobbs Act co…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Don Benny ANDERSON, Defendant-Appellant
83-1276.
Court of Appeals for the Seventh Circuit.
Aug 30, 1983.
716 F.2d 446
Wayne T. Schoenberg, Hannegan, Knight, Stokes, Schoenberg & Weber, St. Charles, Ill., for defendant-appellant., Frederick J. Hess, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Wood, Cudahy, Wyatt.
Cited by 34 opinions  |  Published
HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Don Benny Anderson appeals his conviction of two counts of violating the Hobbs Act, 18 U.S.C. § 1951, in connection with his abortion protest-related abduction of an Illinois doctor and his wife, arguing that the district court erred in denying defendant’s motion for judgment of acquittal on the basis of insufficient evidence; that his Sixth Amendment rights were infringed by the court’s refusal to permit defendant and his counsel to alternate in conducting his defense; and that the court erred in denying two of his proffered jury instructions. We affirm.

I.

Dr. Hector Zevallos and his wife, Rosalie Zevallos, live in Edwardsville, Illinois. Dr. Zevallos practices medicine both at the TriCity Obstetrics Center and at the Hope Clinic for Women, both located in Granite City, Illinois; the latter facility renders medical services, including abortions. Patients travelled from other states to Illinois for treatment at the Hope Clinic, and the clinic purchased and had shipped to it products from medical and office supply companies located outside of the state.

On the evening of August 12, 1982, defendant and two other men forcibly abducted Dr. Zevallos and his wife from their home at gunpoint, having gained entrance to their home on the pretense of responding to a real estate advertisement. Dr. Zevallos was told initially by the men that they sought only money, and indeed defendant and his assistants did take over three hundred dollars from the couple. The victims were handcuffed, blindfolded and driven to a remote and isolated bunker near Illiopolis, Illinois, where they were held captive in spartan conditions for eight days. During the first two days of captivity, the abductors spoke only of the victims’ money and how it could be obtained. But shortly thereafter, defendant told Dr. Zevallos that he and his helpers were members of the Army of God, an anti-abortion group, and that Dr. Zevallos had been abducted because of his connection with the Hope Clinic. Defendant asked Dr. Zevallos to tape a message to President Reagan requesting legislation banning abortion. When Dr. Zevallos refused to cooperate and was in turn told that he would be executed if he failed to do so, Dr. Zevallos made the tape.

Dr. and Mrs. Zevallos both testified that during the entire period of their captivity, they constantly feared death at the hands of their captors. Toward the end of the abduction, one of the defendant’s helpers told the victims that he would have to kill them, and on the last day, the victims were taken outside the bunker, where Mrs. Zevallos relayed to her husband the helper’s earlier statement that he would have to kill them if Dr. Zevallos did not agree to cease performing abortions. She asked her hus[*448] band to so stipulate, a request to which he assented; his captor’s response was to express relief that they need not be executed after all, but to caution that the doctor would have to convince defendant of his sincerity to be sure that his life would be spared. Dr. Zevallos repeated his affirmation to defendant.

In the course of transporting the victims by car from the bunker, defendant stopped suddenly and demanded that Dr. Zevallos close the Hope Clinic immediately. When Dr. Zevallos equivocated, defendant threatened to take the victims back to the bunker, a threat which led Dr. Zevallos to believe he would be killed at that moment. However, defendant continued to drive and released the victims along a highway near their home.

After a jury trial, defendant was convicted under 18 U.S.C. § 1951 of conspiracy and attempt to obstruct, delay and affect interstate commerce (i.e., that commerce connected with all or some of the Hope Clinic’s business) through extortionate means, and was sentenced to a total of thirty years incarceration. From that judgment, defendant appeals.

II.

A. The Proposed Limiting Instruction

At the close of the evidence, the jury was instructed, in accordance with the Seventh Circuit Federal Court Pattern Jury Instructions § 2.02, as follows:

The defendant is charged with the crimes of attempting to obstruct commerce by extortion and conspiring to obstruct commerce by extortion. The defendant has denied that he is guilty of the charges.

Defendant now protests that the trial court erred in refusing to submit to the jury his proffered instruction which stated,

The Defendant is charged only with the crimes of attempting to obstruct commerce by extortion and conspiracy to obstruct commerce by extortion.
The Government has attempted to show that Dr. and Mrs. Zevallos were kidnapped and that while they were being held money was taken from them.
You are not to concern yourself with the question of whether the Defendant in this case is guilty of kidnapping or stealing. Those questions are not issues in this case.

Defendant points to Fed.R.Evid. 105 which states,

When evidence which is admissible .. . for one purpose but not admissible .. . for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Although conceding that the evidence here of kidnapping and robbery was properly admitted under Fed.R.Evid. 403, defendant argues that the district court erred in not tendering to the jury defendant’s proposed caveats as to the limited permissible use of such evidence, which overlapped with evidence of the crime actually charged.

Rule 105, however, does not require that every cautionary instruction proffered by the defendant be actually given. Weinstein & Berger, 1 Evidence 105[5] at 105-34. This is so especially where adequate protection is afforded by other portions of the charge. United States v. Cina, 699 F.2d 853, 863-64 (7th Cir.1983). Here, the instruction actually given fully focused the jury’s attention on the sole issue in the case: whether there was evidence beyond a reasonable doubt that the defendant attempted or conspired to obstruct commerce by extortion. Accordingly, a list of crimes with which defendant was not charged would be superfluous. But refusal of the instruction was an especially felicitous exercise of the trial court’s discretion here as, in its proffered form, the instruction was not only superfluous, but potentially confusing as well. It first states that the government “attempted to show that [the victims] were kidnapped ...,” but that statement could easily have misled a juror into erroneously believing that the government attempted to prove a separate case of federal kidnapping. The instruction is further potentially misleading in its admonition that the jury is[*449] not to concern itself “with the question of whether the Defendant in this case is guilty of kidnapping.... Those questions are not issues in this case ...;” such language may conversely have erroneously suggested to the jury that the occurrence of violent abduction, even as a means of coercing Dr. Zevallos’ future activities, was not an issue in the case. In short, the proffered instruction added little to the existing charge and contained great potential for mischief. Under such circumstances, it was properly refused.

Moreover, even if it were somehow error to refuse this instruction, we think the record establishes that such an error would have resulted in no prejudice to the defendant. The events of the trial make clear that the Hobbs Act, and not the elements of kidnapping, was the focus of the case throughout: the government began its case by eliciting from its first two witnesses the interstate commerce ties of the Hope Clinic; throughout, the government, as well as the trial court and the defendant, sedulously avoided the use of the term “kidnapping” to describe the events, preferring the term “abduction;” and the cross-examination focused extensively on the actual threats independent of the kidnapping itself. Thus, even if we were to find the actual instructions inadequate as a matter of semantics, in context they adequately clarified the permissible uses of the evidence.

B. Participation in Cross-Examination

The defendant next argues that his Sixth Amendment right to represent himself was infringed by the trial court’s refusal to permit him to alternate conduct of his defense with his attorney; specifically, defendant sought to conduct cross-examination of the Zevalloses, while leaving the bulk of the remainder of the proceedings to his attorney. However, in line with the Supreme Court’s determination that the right to counsel and the right to self-representation are separate and independent guarantees under the Sixth Amendment, Gannett Co. v. Depasquale, 443 U.S. 368, 417-18, 99 S.Ct. 2898, 2924-25, 61 L.Ed.2d 608 (1978); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), this court has squarely held that such “hybrid” representation as defendant proposed here is not an option secured by the Sixth Amendment. United States v. Trapneil, 638 F.2d 1016, 1026-27 (7th Cir. 1980). But in any event in these circumstances, where defendant considered his attorney “very effective” and, the record discloses, was able to confer repeatedly with his attorney in the course of the trial, we decline to overrule our previous holding in Trapneil.

C. The Nullification Instruction

The defendant contends that the trial court erred in refusing his proffered instruction which read,

The jury has the power to decide, according to its own judgment and conscience, all questions of law and fact involved in the issue of guilty or not guilty.
Juries may apply matter [sic] of fact and law together, and form their consideration of, and right judgment upon, both.
Jurors may not be punished for voting for acquittal under any circumstances.

Such an instruction was warranted, defendant argues, in order to advise the jury of its right to acquit as the “community conscience” in a case involving potentially highly politicized events. Citing United States v. Dougherty, 473 F.2d 1113 (D.C.Cir. 1972), the defendant urges that “[t]he power of a jury to pronounce a nullification of a proceeding before it is more than a power; it is a right. Like other rights, it becomes meaninglessly diluted when its holder is unaware of his or her authority.”

This pronouncement, however, does not accurately state the law. A learned discussion by Judge Leventhal of the historical origins and evolution of the “community conscience” or nullification verdict in Anglo-American jurisprudence is contained in Dougherty, 473 F.2d at 1130-37. That discussion concludes with the accepted view that, while the “community conscience” ver[*450] diet is to be accepted as a natural and at times desirable aberration under our system, it is not to be positively sanctioned by instructions, such as defendant’s, which would encourage a jury to acquit “under any circumstances” regardless of the applicable law or proven facts. 473 F.2d at 1137. We agree with Judge Levanthal’s capsulization of the necessary historical tension which is not to be collapsed by explicit nullification instructions:

This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal strictures requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.... The jury system provides flexibility for the consideration of interests of justice outside the formal rules of law. This embraces whatever extra the defendant conveys by personal representation, whether through demeanor or sincerity of justification. But it is subject to the overriding consideration that what is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge’s instructions.

Id. Dougherty, then, states the prevailing view that tacit toleration of jury verdicts of innocence, in apparent contradiction to clear proof of guilt, affords adequate protection to the “conscience” function of the jury, and that explicit instructions sanctioning such action pose too great a threat to the rule of law. Accord, United States v. Simpson, 460 F.2d 515, 519-20 (9th Cir. 1972). In urging reversal on the basis of his refused nullification instruction, defendant would have us upset a carefully and painstakingly developed jurisprudential balance in this delicate and potentially explosive area. We decline to do so.

D. Sufficient Evidence

Defendant finally argues that the district court erred in refusing his motion for acquittal at the close of the .evidence. He contends that the evidence adduced at trial supported, at most, a finding of threats directed towards the making of the tape, but not towards the obstruction of interstate commerce, i.e., the cessation of abortion-related activities at the Hope Clinic. We cannot agree.

At the very least, the evidence showed that, at two points in the abduction, defendant’s threats had an intended potential impact on interstate commerce. The first such incident was the defendant’s threat, conveyed and attributable to him through one of his coconspirators, that unless Dr. Zevallos could convince defendant of his sincerity in promising to cease performing abortions, he and his wife would be killed. The second incident occurred in the course of the couple’s deliverance from the bunker, when defendant abruptly stopped the car and demanded that Dr. Zevallos close the Hope Clinic. This demand was backed up by a threat to return to the bunker, a threat which quite obviously implied the continuation of the previous week’s humiliation, violent restraint, and threats of death. No clearer relationship between the threats and the interstate commerce-related results sought by the defendant could be imagined.

For the foregoing reasons, defendant’s convictions of attempt and conspiracy under 18 U.S.C. § 1951 are

Affirmed.