United States v. Garner

Eight defendants appeal their convictions for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1962(c) (RICO), and the Hobbs Act, 18 U.S.C. Sec. 1951.1 The defendants were all House Drain Inspectors for the Department of Sewers of the City of Chicago. They raise on appeal nearly a score of issues. Their primary contentions are that they were improperly joined for trial, that the jury instructions were faulty, that inadmissible evidence was used against them, and that the evidence was insufficient to support their convictions. For the reasons set forth in the following opinion, we affirm all of the convictions.

* General Background

This case involves the payment of bribes by private sewer contractors to sewer inspectors of the City of Chicago. Sewer work on private property in Chicago is performed by contractors regulated by the city. All contractors must be licensed by the city, and a permit and inspection must be obtained for most sewer work.

Sewer contractors pay a fee to the city to obtain work permits. The amount of this fee varies depending on the job that will be done. Before a contractor begins a job, he is required to contact the Department of Sewers and report the type, location, and price of the work. This information is then transmitted to a central desk for assignment to an inspector. The inspector travels to the jobsite to check the contractor's work, handle citizen complaints, and accept the check or money order for the permit fee. Inspections are performed after the work is completed but before the excavation is filled in. Inspectors are not entitled to any payment other than the permit fee. After inspecting the job and accepting the permit fee, the inspectors return the fee to the permit desk by interoffice mail.

The government does not contend that the defendants ever failed to remit the permit fee. Rather, this case involves the payment of additional amounts to inspectors by contractors. At trial, the government presented evidence demonstrating that sewer contractors, as a matter of course, gave inspectors from $10 to $20 per inspection. The government contended that this system was the product of a conspiracy among the sewer inspectors, and that the receipt of these additional payments constituted acts of bribery and extortion. The defendants contended that there was no conspiracy among the inspectors, and that the additional payments to inspectors were mere gratuities and were not intended as bribes nor induced by extortion.2

On July 17, 1985, a grand jury returned an 84-count indictment against 14 defendants, all of whom were inspectors for the Department of Sewers of the City of Chicago. In Count 1 of the indictment, all 14 defendants were charged with conspiracy in violation of the RICO statute, 18 U.S.C. Sec. 1962(d). This count of the indictment alleged that the defendants had agreed to conduct the affairs of the Department of Sewers through a pattern of racketeering activity, and it incorporated by reference the predicate acts alleged in the later individual RICO counts. In counts 2-15, each of the 14 defendants was charged with one count of violating the RICO statute, 18 U.S.C. Sec. 1962(c). The indictment alleged numerous acts of racketeering activity by each defendant in violation of the Illinois bribery statute and the Illinois official misconduct statute.3 In Counts 16-84, each defendant was charged in five counts with extortion under color of official right in violation of the Hobbs Act.

Eight of the 14 defendants were tried jointly. The trial began on January 6, 1986 and concluded on February 21, 1986. The government's case centered on the testimony of more than 50 witnesses. Most of the witnesses were contractors or their agents who had paid money to inspectors. Many of these witnesses testified under a grant of immunity. Four witnesses were not contractors or their agents, including one of the most important witnesses, Aubrey Blunt, a sewer inspector, who testified under a plea bargain agreement.

The government also introduced a substantial amount of documentary evidence. Many of the sewer contractors retained records of various jobs, and some even kept records of payments to inspectors. Records of the Department of Sewers also were introduced that identified which inspectors had been assigned to particular jobs. Most of the evidence of bribery and extortion was provided by the direct testimony of contractors. As to each defendant, several contractors testified that they made payments to the inspector and that these payments were accepted. At least five contractors testified against each inspector.4

The government did not provide as much evidence about the purpose of the payments. A number of contractors characterized the payments as "the system" or the "cost of doing business" in Chicago. Most witnesses testified that they had been trained to pay inspectors by a friend, relative, or co-worker in the business. In a few cases, the inspector explicitly requested payments. In other cases, the contractor paid the inspector for the purpose of encouraging the inspector to look the other way when there was an improper permit or when improper materials were used. Most common, however, was the statement that the payments were made to avoid generalized fears of harassment or delays.

Most of the defendants used the ambiguity regarding the purpose of the payments as their primary defense. These defendants contended that the payments were a longstanding tradition in the industry, that they represented nothing more than mere gratuities, and that there was no expectation by either contractors or inspectors of a quid pro quo. Defendants Harold Knies and Hensley Garner, however, did not use this defense. Defendant Knies contended that he had never received payments, and that there was no custom and practice of making payments. Defendant Garner claimed that there was insufficient evidence to believe beyond a reasonable doubt that he had committed any offenses.

Before the case went to the jury, the defendants moved for a judgment of acquittal on the conspiracy count; the motion was denied. The jury found all of the defendants not guilty of conspiracy. However, the jury found all of the defendants guilty of the individual RICO count, and seven of the eight defendants guilty of at least one extortion count. The defendants filed post-trial motions for new trials and for an arrest of judgment, which were denied. These appeals followed.

The defendants filed various pretrial motions. The most important of these motions dealt with the conspiracy charge and with the government's intention to join the defendants for trial. The defendants contended that the conspiracy indictment was insufficient as a matter of law, and that there was no reasonable expectation that the conspiracy would be proved at trial. Therefore, they argued that joinder was inappropriate under Rule 8(b) of the Federal Rules of Criminal Procedure.5 Several defendants also contended that the court should sever the trial, pursuant to Rule 14 of the Federal Rules of Criminal Procedure,6 because a joint trial would severely prejudice the defendants. These motions were denied. Furthermore, the court ruled that there was sufficient evidence of conspiracy to warrant the admission of co-conspirators' statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence.

As proof of the conspiracy, the government offered a good deal of "custom and practice" evidence. This evidence was admitted over the objection of the defendants. Custom and practice evidence consisted of testimony by contractors concerning the tradition of giving and receiving money in the sewer business. Contractors testified that it had long been customary in the business for inspectors to receive payments of $10 or $20, or even more, per inspection. They tesitifed that these payments were made because it was commonly understood that inspectors would cause hassles and delays if they were not paid. Some contractors testified that they were advised to make these payments by their parents or friends or prior employers, and that the regular practice was to conceal the payment from the customer by putting it in an envelope or folding the cash into the check for the permit fee.

The government also presented evidence of an established price structure for payoffs. For many years, the standard "fee" for a permit was $10. Later, the price went up to $20. One contractor testified that he was told by an inspector that "the price of poker went up." Tr. 10 at 1416. Several contractors testified that they were told by inspectors that the standard fee had gone up to $20. The defendants conceded at oral argument that there was evidence of "parallel conduct."

Aubrey Blunt, an inspector, testified that he was told by other inspectors that he should take the money out of the envelopes because it was for him, and that the purpose of the payments was to avoid hassles. Blunt related conversations between inspectors describing contractors as "all right" or "one of the good guys." Blunt testified that these expressions meant that the contractor would make payments. Blunt described a discussion in which Rhey Orme, one of the defendants, spoke to a group of inspectors and told them that the contractors should be paying $20 instead of $10.

As additional proof of the conspiracy, the district court admitted evidence from a notebook kept by employees of Wagner & Sons Sewer Company (Wagner & Sons). The book contained the name of the customer, the customer's phone number and address, the employee assigned to the job, the estimated cost of the job, the permit number, the inspector who was paid, the type of job, and the date. Julie Anderson, an employee of Wagner & Sons, testified that the purpose of the book was to prevent double payment to an inspector. Ms. Anderson testified that occasionally one inspector would collect money for another inspector, and that this would be noted in the book. The defendants objected to the admission of the Wagner & Sons notebook because it included evidence of payments that were not charged in the indictment and on the ground that it was unduly prejudicial. In its final instructions to the jury, the court did not give a limiting instruction directly relating to the notebook; however, the record does not reveal that one was requested.

The district court determined before trial that joinder of the defendants was appropriate under Rule 8(b) of the Federal Rules of Criminal Procedure because the government had properly alleged that the defendants were guilty of conspiracy, "which 'ordinarily is sufficient to satisfy Rule 8(b)'s joinder requirements.' " United States v. Caputo, No. 85 CR 451, mem. op. at 8 (N.D.Ill. Dec. 26, 1985) (quoting United States v. Hattaway, 740 F.2d 1419, 1424 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984)) [hereinafter Mem. op. of Dec. 26, 1985]; R. 236 at 8. The court ruled that it did not need to assess the evidence before trial to decide whether the government would successfully prove conspiracy. Rather, it said that " 'the test for misjoinder is what the indictment charges, not what the trial shows,' or put another way, 'Rule 8 on its face is about pleading rather than proof....' " Id. (quoting United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986)). Concluding that the conspiracy indictment was legally sufficient, id. at 3, the court ruled that joinder was appropriate under Rule 8. Id. at 10.

The court then examined whether severance was appropriate under Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides for severance if a party is prejudiced by the joinder, even if joinder is appropriate under Rule 8. The court ruled that severance was not necessary here because, although the indictment was lengthy, "the charges are simple (involving only two statutes) and the evidence will be easily compartmentalized." Id. The court also noted that severance would have resulted in "numerous duplicative trials which, given the conspiracy charge, would ... be neither simple nor short." Id. at 11.

The court also rejected the argument that severance was necessary because of a potential conflict between the defenses of different defendants. Defendants Andrew Federinko and Donald Hojnacki claimed before trial that they were considering using the defense that they never received any payments and that payments were not given as a matter of course. They argued that this defense would conflict with the other defendants' argument that the alleged bribes were mere gratuities. The court ruled that severance is required " 'only where the acceptance of one party's defense precludes the acquittal of the other defendant.' " Id. (quoting United States v. Keck, 773 F.2d 759, 765 (7th Cir.1985)). It then said that there was no conflict between a claim by one defendant that he did not accept payments and a claim by another defendant that payments were mere gratuities. As to the conflict between the defense that payments were not given as a matter of course and the defense that giving gratuities was a tradition in the industry, the court said that "Federinko and Hojnacki can be acquitted on their (possible) theory that they took no money even though a well-established tradition is ultimately determined to have been in existence." Id. at 12. Therefore, the court denied the motion for severance under Rule 14.

After trial, the defendants filed a motion for a new trial on the ground that joinder was inappropriate in light of the jury verdict for the defendants on the conspiracy charge. The court ruled that joinder had been in good faith and that there was sufficient evidence to justify joinder under Rule 8(b). United States v. Caputo, No. 85 CR 451, mem. op. at 2 (N.D.Ill. Apr. 25, 1986); R. 429 at 2. As to Rule 14, the court said that "the amount of evidence was considerable but could be compartmentalized as to each defendant." Id. It added that "[t]he jury was instructed to give each defendant separate consideration." Id. Therefore, the court believed that the defendants had not been prejudiced by the joinder.

a. Contentions of the Defendants

The defendants raise two basic arguments with respect to Rule 8. First, they argue that the indictment did not conform to the literal requirements of Rule 8. Second, they argue that, because the jury found the evidence did not support a conspiracy allegation, we must conclude that the government misjoined them in one indictment.

With respect to the first argument, they argue that the conspiracy indictment was invalid as a matter of law and that, therefore, joinder was inappropriate under Rule 8(b). The defendants contend that the government failed in the indictment to allege adequately and to support all essential elements of a RICO conspiracy. In particular, they claim that the indictment was devoid of facts relevant to an agreement. "The government ... did nothing more than restate the word agreement four different ways. This bare allegation, even said four times, is insufficient to meet the higher standard of pleading required in a RICO case such as this." Appellants' Lead Br. at 51.7

In support of their second argument, the defendants contend that, because they were all found not guilty by the jury on the conspiracy count, this court now should review the evidence in the light most favorable to the defendants. When the evidence is viewed in that light, the defendants submit, no reasonable juror could have found them guilty of conspiracy. The defendants concede that mere error by the district court on this second ground is insufficient to establish misjoinder under Rule 8(b), and that this circuit's cases suggest that a defendant must show bad faith by the government to establish misjoinder under Rule 8(b). They contend, however, that the bad faith standard has been applied only in dictum in this circuit, and that the correct standard should be whether the government offered adequate evidence of conspiracy. But under either standard, the defendants submit, joinder was inappropriate under Rule 8(b); they argue that there was little or no evidence of conspiracy, that the conspiracy count was clearly brought in bad faith, and that they were prejudiced by this misjoinder.

b. Analysis

We cannot agree with either of the defendants' contentions. Under Rule 8(b) of the Federal Rules of Criminal Procedure, joinder of defendants is appropriate if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." It is well-established that a conspiracy charge is a proper basis for joinder under Rule 8(b). United States v. Dounias, 777 F.2d 346, 348 (7th Cir.1985). Rule 8(b) only requires that the conspiracy be alleged--there is no requirement that the government demonstrate, at the pleading stage, sufficient evidence to support joinder. United States v. Bruun, 809 F.2d 397, 406 (7th Cir.1987) ("Proper joinder is determined from the face of the indictment."). As the Supreme Court has said, "once the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14...." United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986) (interpreting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960)).

Joinder was appropriate in this case under Rule 8(b). The indictment properly alleged conspiracy. An indictment must state all of the elements of the offense charged; it must inform the defendant of the nature of the charge so that he may defend himself; and it must enable the defendant to plead the judgment as a bar to any later prosecution for the same offense. United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985). The conspiracy count satisfied those prerequisites. The charge recited the elements of the offense, and it specified the nature of the illegal racketeering activity. The count then included by reference the specific factual allegations contained in the individual RICO violations. Further, the conspiracy count properly alleged an agreement. Alleging conspiracy is oftentimes difficult because direct proof of conspiracy is rare. But just as pragmatic concerns must govern the drafting effort, an appreciation of those concerns must govern appellate review. Here, the defendants were on notice of the allegation, and they could defend against it. Moreover, the allegation was sufficiently precise to protect them against double jeopardy. Therefore, conspiracy was properly charged, and joinder was warranted by Rule 8(b).

With respect to the defendants' second argument, if joinder was proper initially under Rule 8(b), they can establish misjoinder only if the evidence at trial demonstrates that the conspiracy indictment was brought in bad faith. Dounias, 777 F.2d at 348-49; United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986); Brandom v. United States, 431 F.2d 1391, 1396 (7th Cir.1970), cert. denied, 401 U.S. 942, 91 S.Ct. 950, 28 L.Ed.2d 223 (1972). However, even if the allegation was brought in bad faith, severance is not automatic. The defendants still must establish "actual prejudice" from being misjoined. Lane, 474 U.S. at 449, 106 S.Ct. at 732.

The defendants, who have the burden of establishing bad faith, United States v. Garza, 664 F.2d 135, 142 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982), have provided scant evidence that the conspiracy count was brought in bad faith. Their only argument in support of finding bad faith is that there was "no evidence of conspiracy." Appellants' Lead Br. at 61. We disagree. As the defendants admitted at oral argument, there was substantial evidence of "parallel conduct" among the inspectors. There was also evidence that inspectors picked up payments and delivered them to other inspectors, that inspectors encouraged other inspectors to demand larger payments, that experienced inspectors taught new inspectors how the "system" worked, and that inspectors informed each other about those contractors who made payments and those contractors who did not. This evidence was more than adequate to disprove an inference of bad faith on the part of the government. Therefore, joinder was entirely appropriate under Rule 8(b).

a. Contentions of the Defendants

As the Supreme Court noted in Lane, "once the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14, which requires a showing of prejudice." 474 U.S. at 447, 106 S.Ct. at 731 (1986) (interpreting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960)). Therefore, we must now examine the defendants' next argument that there was substantial prejudice from the joint trial, and that this prejudice warrants a new trial under Rule 14. As evidence of prejudice, the defendants point out that this case involved a 178-page indictment, with a six-week trial and 348 alleged illegal acts. They claim that the evidence was "massive and complex," requiring severance under the authority of United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985). Appellants' Lead Br. at 63. They also submit that the inconsistent defenses raised by the defendants created extreme prejudice. They contend that no defendant could receive a fair trial when seven defendants were arguing that the payments were mere gratuities, but an eighth defendant was denying any pattern or practice of payments. The defendants admit that individual trials still would have been lengthy because of the conspiracy count, but counter that each trial would not have included nearly as many witnesses or testimony of uncharged bad acts. They concede that the courts have a legitimate interest in joint trials and judicial economy, but that, in this instance, the defendants' right to a fair trial outweighs those interests.

b. Analysis

Rule 14 of the Federal Rules of Criminal Procedure authorizes severance, even if joinder was proper under Rule 8(b), if the joinder prejudices the defendants. Rulings on Rule 14 severance motions are discretionary and the decision of the trial court only will be overturned upon a showing of abuse of discretion. United States v. Rivera, 825 F.2d 152, 159 (7th Cir.1987); United States v. Bruun, 809 F.2d 397, 407 (7th Cir.1987). Because the district court did not abuse its discretion in denying the defendants' motion for severance, we affirm the district court on this issue.

In Oglesby, 764 F.2d at 1276, this court identified four important situations in which severance under Rule 14 might be required: (1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) massive and complex evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; and (4) gross disparity in the weight of the evidence against the defendants. While these four situations are not the only ones that might trigger Rule 14, they do provide a helpful reference in reviewing the district court's exercise of discretion.

The district court concluded that the prospect of antagonistic defenses did not merit severance because the defendants did not show that the defenses were mutually exclusive and irreconcilable. The court believed that there was "no antagonism at all between an admission by one defendant that he took money and a claim by another that he did not where the two alleged incidents of money-taking are separate." Mem. op. of Dec. 26, 1985, at 11-12. Similarly, the court believed a defendant could be acquitted on the theory that he took no payments even though a well-established tradition of making payments ultimately is proven. We agree with the district court on both points, and therefore the court properly declined to order severance based on this issue.

We also agree with the district court that the evidence was not so massive and complex as to compel severance. The evidence was indeed massive, but it was not complex. The evidence consisted almost solely of testimony by contractors that they gave money to particular inspectors. Moreover, it appears that the jury was able to "segregate the evidence into separate intellectual boxes" and to "compartmentalize the evidence against the defendants." United States v. Cavale, 688 F.2d 1098, 1106, 1108 (7th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 380, 74 L.Ed.2d 513 (1982). The jury was instructed carefully to give the defendants separate consideration, and to ignore the evidence against the other defendants. There is every reason to believe that the jury followed this instruction. The jury convicted the defendants on some counts, acquitted on some counts, and could not reach a verdict on others. We note, for example, that the jury did not convict defendant Garner on any of the Hobbs Act counts. This is revealing because it appears that there was somewhat less evidence against Mr. Garner than against the other defendants.

We also note that, even if this case had been severed, each trial still would have involved many evidentiary submissions. Because of the conspiracy charge, each individual trial would have required the government to put forth evidence of custom and practice, and parallel conduct. Thus, the individual trials would themselves have been massive, and judicial resources would have been wasted. Therefore, the district court did not abuse its discretion in denying the severance motion based on the argument that the evidence was "massive and complex."

The third and fourth factors set forth in Oglesby are not particularly relevant here. None of the defendants testified against other defendants, and there was not a "gross" disparity in the weight of the evidence against the defendants. Certainly some defendants were charged with fewer acts than were other defendants, but in no way did this disparity deprive any defendant of a fair trial. Therefore, factors three and four did not warrant a severance.

We are mindful that the jury did eventually acquit the defendants on the conspiracy charge. This is an important factor to be considered in evaluating prejudice. As the Supreme Court said in Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960):

[We cannot] fashion a hard-and-fast formula that, when a conspiracy count fails, joinder is error as a matter of law. We do emphasize, however, that, in such a situation, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. And where, as here, the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice.

Id. at 516, 80 S.Ct. at 948. Thus, the district court continually must consider the evidence. If it becomes obvious that the evidence of conspiracy is thin and that prejudice to the defendants will result, a severance should be granted. Usually, such an obvious lack of evidence will be noticeable long before the case is ready for the jury and, in all likelihood, the matter also will be raised in a motion for judgment of acquittal before jury deliberations begin. Fed.R.Crim.P. 29(a). However, if the case is submitted to the jury and the jury acquits the defendant of the charge which was the basis for the joinder, the trial judge must, of course, take that factor into consideration and be "particularly sensitive" in his assessment of whether the defendant was prejudiced by the failure to sever.

In this case, while the jury ultimately found the defendants not guilty of conspiracy, there is no question that there was sufficient evidence to permit the matter to be submitted to the jury. We are not at all persuaded that any defendant would have obtained a more favorable verdict if severance had been granted, and severance surely would have impinged on the public's interest in the prudent use of judicial resources. United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987). The district court did not err in denying the defendants' motions for severance.

The court received a pretrial proffer from the government which disclosed the conspiracy evidence that the government expected to show at trial. Based on this proffer, the court ruled that a preponderance of the evidence showed the existence of a conspiracy, and therefore, the court ruled that co-conspirator statements would be admissible, subject to a motion to strike. After trial, the court concluded that the government had established the existence of a conspiracy by a preponderance of the non-hearsay evidence. It therefore denied the defendants' motion to strike and ruled that the jury could consider the co-conspirators' statements. The court said that there was evidence of discussions "among the defendants concerning what they could expect from various contractor witnesses in the way of amounts--or money, and there is evidence that some of the inspectors together accepted payments from contractors." Tr. 24 at 4811. The court also relied on the custom and practice evidence, and the evidence that payments were concealed from homeowners.

The defendants argue that the admission of co-conspirators' statements was clearly erroneous. They contend that the government failed to prove by a preponderance of the evidence the existence of a conspiracy. They further contend that the evidence only proved that there were agreements between inspectors and contractors, but that there was no evidence linking inspectors together in a common scheme. "More is required than a series of independent actors committing identical acts while associated with the same enterprise. What is required is evidence of 'mutual dependence and support' between the defendants." Appellants' Lead Br. at 55 (citations omitted). The defendants submit that, because there was so little evidence of mutual dependence and support, the court committed prejudicial error when it admitted the co-conspirator statements.

The admissibility of co-conspirators' statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence is governed by Bourjaily v. United States, --- U.S. ----, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Bourjaily reaffirms that the government must show the existence of the alleged conspiracy by a preponderance of evidence. It also establishes, contrary to the earlier precedent in this circuit, see United States v. Santiago, 582 F.2d 1128 (7th Cir.1978), that the government may use the co-conspirators' statements themselves as evidence of that conspiracy. Bourjaily, 107 S.Ct. at 2782.

This case was tried before the Supreme Court's decision in Bourjaily. Therefore, the government filed a pre-trial proffer with the court stating the independent evidence it expected to show at trial. The court ruled that the evidence was adequate to allow co-conspirators' statements to be elicited, subject to a motion to strike. After the trial, the court again examined the evidence and ruled that the jury could consider the co-conspirators' statements because the government had proved the existence of a conspiracy by a preponderance of the independent evidence.

Our standard of review on this issue is whether the district court was clearly erroneous. Id.; United States v. Andrus, 775 F.2d 825, 840 (7th Cir.1985). Our review of the record persuades us that the court was not clearly erroneous in determining that the conspiracy had been proved by a preponderance of the evidence. Defendants claim that there is no evidence of "mutual dependence and support." To the contrary, there is evidence that contractors occasionally picked up payments and delivered them to other inspectors. The remarkable consistency with which payments were made and the fact that the inspectors raised the standard fee almost simultaneously from $10 to $20 suggests that the inspectors were communicating with each other and encouraging each other to raise the fee. While the jury concluded that this evidence does not prove conspiracy beyond a reasonable doubt, the district court did not err in concluding that the conspiracy had been proved by a preponderance of the evidence. Therefore, we find no error with the admission of the co-conspirators' statements.

The court admitted the Wagner & Sons notebook over the repeated objections of the defendants. This evidence was admitted for purposes of proving the conspiracy. It was also admitted as proof of a few charged acts, but not as evidence of unc