Mr. Justice Clark,*fn* Waterman and Friendly, Circuit Judges.
CLARK, Associate Justice:
The appellant stands convicted of a conspiracy, consummated in New York, to use the facilities of interstate commerce in furtherance of a scheme to extort money from one Morris Cohen in North Carolina in violation of 18 U.S.C. § 1952.*fn1 The gist of the offense is that appellant conspired to entice Cohen into a compromising situation in New York, steal his wallet and identification cards and thereafter use the same to extort money from him in North Carolina. The case was here before and was remanded for a new trial on grounds not here involved. 389 F.2d 535 (1968). On remand the appellant was again convicted before a jury.
At the outset it is well that we point out that about a month before this case was submitted the Supreme Court of the United States decided United States v. Nardello, 393 U.S. 286, 89 S. Ct. 534, 21 L. Ed. 2d 487. There Chief Justice Warren for a unanimous Court found that the generic term "extortion" as used in § 1952 covered the acts committed in this case. Indeed, he referred to this case by name in footnote 2, page 288, 89 S. Ct. page 536, and specifically found that appellant "was charged with involvement in a scheme identical to that in which" Nardello participated. This makes our task much easier since it not only gives us helpful guidance but disposes of appellant's claim that North Carolina's blackmail statute cannot be equated to the requirement of extortion in § 1952. Nardello holds to the contrary.
Appellant argues, however, that the threat to be made in North Carolina to arrest Cohen for the offense of sodomy committed in New York -- outside of the State of North Carolina -- was not within the prohibitions of the blackmail statute of North Carolina. Other questions raised include a failure of evidence; the use of the testimony of a co-conspirator at the former trial who was incompetent to testify at the second one; the refusal of the trial judge to admit psychiatric testimony as to the mental condition of the same witness as affecting his credibility; and the failure of the trial judge to open for inspection the grand jury minutes in support of an allegation that the indictment was based solely on hearsay. We find no merit in any of these contentions and, therefore, affirm the conviction.
As indicated the conspiracy charged had to do with a scheme, known as "the shakes," to extort money from homosexuals. The overall plan of operation was that a person, known in the business as "a chicken," would steal the wallet and credentials from another person with whom he had homosexual relations. The wallet and credentials, known as "a poke," would then be passed on to others in the racket who, posing as police officers, would "play" the victim by threatening him with exposure and arrest for the offense of sodomy. In this manner the victim would be induced to pay for the dropping of the charges or to deposit a cash appearance bond, as in United States v. Schwartz, 398 F.2d 464, 7 Cir. 1*fn2 also discussed in Nardello, supra, 393 U.S. at 294, 89 S. Ct. 534. The indictment alleged a conspiracy between appellant and three co-conspirators, Rochford, Kaminsky, and Hammock, to carry out such a scheme but charged only appellant and Rochford with the offense.
The Government proved that appellant obtained the wallet and credentials from the victim, Cohen, in the latter's hotel room in New York City and gave it to Rochford for the purpose of delivery to Kaminsky who was to "play" Cohen. Kaminsky called co-conspirator Hammock, who lived in Cohen's home town, to see if the latter was a likely victim. Hammock reported back that Cohen looked "like he might be a $10,000 man. He is certainly well worth playing for." Rochford, on being informed, advised appellant and later took the wallet and credentials to Kaminsky and Hammock in person in Durham, North Carolina. At that time "a phony" arrest warrant on New York Municipal Court printed forms was drawn up by Kaminsky for the arrest of Cohen on a charge of sodomy and a spurious "confession" was typed up which falsely recited homosexual activity between appellant and Cohen on the occasion mentioned in New York. Armed with these papers and with false police identification badges and credentials, Hammock then drove Kaminsky and Rochford to Cohen's home. The latter two went in to see Cohen but he was out of the city. Some three weeks later, with appellant's knowledge, a second attempt -- this time by Hammock and Kaminsky -- was made but Cohen was in Puerto Rico. Thereafter on a trip to Florida, Kaminsky and Hammock misplaced a suitcase containing "the phony" warrant, badges and identifications along with Cohen's wallet and credentials. It fell into the hands of Florida police and this prosecution resulted.
At the first trial Rochford pleaded guilty and testified against the appellant. Hammock was the Government's star witness and Kaminsky was a fugitive. Appellant testified on his own behalf.
At this, the second trial, Rochford, who was then serving a two-year term on his plea of guilty, was found to be suffering from schizophrenia and incompetent to testify. The Government then offered his testimony given at the first trial. On objection a full hearing was held, without the jury. Dr. Kinzel, a psychiatrist, testified for the defense that he was under the impression that Rochford was suffering from schizophrenia before and during the first trial and that "the illness was getting worse all of the time." But he said that he could not with any degree of medical certainty say that Rochford's illness had progressed to such an extent in June 1967, immediately before the time of the first trial, that he would be subject to suggestion. He found him incompetent to testify at the second trial, however. The record showed that while Rochford had been treated for epilepsy and was taking medication for it prior to the time of the first trial, there was nothing indicating schizophrenia at that time. It was stipulated that if Dr. Ciccone, the Director of the Government Medical Center at Springfield, were present, he would testify that Rochford was competent to testify at least until May 1, 1968, when he last examined him. The first trial was held in July 1967. Daniel Isles, Rochford's attorney at the first trial, testified that he represented Rochford for 13 months prior to the time of that trial and had conferred with him on many occasions during that period. He said that Rochford "could state everything from A to Z in connection with the matters" that he inquired about; that he "knew exactly what he was doing concerning every aspect of the entire situation." While Isles knew of Rochford's epilepsy he said that he evidenced no traces of the disease in his conduct. The court on this evidence permitted the reading to the jury of the testimony of Rochford at the first trial. The defense made an offer of proof of Dr. Kinzel*fn3 as to the credibility of this testimony and it was refused. The court did instruct the jury in this regard.*fn4
Appellant's testimony at the first trial was also admitted in evidence over his objection. It denied some of the details as to how he secured possession of the Cohen wallet and credentials but admitted giving it to Rochford. Appellant insisted, however, that he knew nothing of the conspiracy and that Rochford, a friend of 15 years, had framed him. He admitted having been in "the shake" business; of using a police badge in Philadelphia to extort money from homosexuals; of "rolling" homosexuals and taking their "pokes" which on two occasions he had given to Rochford; and that he knew that Rochford operated with Kaminsky and Hammock.
As the Supreme Court held in Nardello, supra, the Travel Act was adopted "to aid local law enforcement officials." Id., 393 U.S. at 290, 89 S. Ct. at 537. The congressional purpose was to prevent the mobile modern professional criminal from violating certain state laws with impunity by skipping back and forth across state boundaries. It made it a federal crime to travel in or use the facilities of interstate commerce to promote "extortion" in violation of state or federal law. As the Chief Justice said in Nardello, supra :
"The Travel Act, primarily designed to stem the 'clandestine flow of profits' and to be of 'material assistance to the States in combating pernicious undertakings which cross State lines' thus reflects a congressional judgment that certain activities of organized crime which were violative ...