Full opinion text
WISDOM, Circuit Judge: Oscar E. Hyde, Richmond Flowers, Joe Breck Gantt, and James C. Kelly, were charged with extortion and conspiracy to extort 2in violation of the Hobbs Act, 18 U.S.C. § 1951. By statutory definition the extortion must affect interstate commerce. Shortly before the trial, Kelly suffered a heart attack and the court granted Kelly’s motion for a continuance and a severance. (See Part VI of this opinion.) After a trial lasting six weeks, the jury found Hyde and Flowers guilty on all counts. Each was sentenced to serve a term of eight years on each count, the terms to run concurrently. Hyde was fined $10,000 on each of the first two counts and Flowers was fined $5,000 on each count. Gantt was convicted on the three counts with which he was charged. He was given concurrent sentences of five years on the first two counts, which were suspended; he was sentenced to serve one year and a day on count four. Flowers was the Attorney General of Alabama from January 1963 to January 1967; Gantt was his top assistant. Hyde was close to Flowers as a friend, political supporter, and business associate. The theory of the Government’s case is that during the years Flowers was in office the defendants conspired to extort payments from life insurance companies and small loan companies in Alabama under the threat of Flowers’s taking certain action (or, in other cases, failing to take certain action) that would have the effect of preventing the companies from doing business in the State. One of the duties of the Attorney General of Alabama, by statute, is to enforce the laws regulating small loan companies with respect to loans in excess of $300. The Attorney General is also the State Securities Commissioner. In this capacity his duties include the approval of all intrastate public offerings of securities and the regulation of broker-dealers handling intrastate sales of stock issues. Customarily in Alabama a particular Assistant Attorney General handled matters involving the Securities Commission. When Flowers assumed office he relieved Owen Bridges, longstanding Assistant Attorney General-Assistant Securities Commissioner of all duties relating to securities. In his place Flowers appointed Gantt. During the period that Bridges was Assistant Securities Commissioner, he had supervised all applications for the sale of stock and had affixed the signature of the Attorney General to orders permitting the sale of insurance stock. After Bridges’s removal, Flowers himself, on Gantt’s recommendation, would sign the orders approving the sale of public issues of stock. Flowers, therefore, knew or should be presumed to have known of every application to the State Securities Commission for approval of a public offering of securities. To put this ease in context we sketch some of the facts showing how the defendants operated. The defendants threatened certain small loan companies that unless pay-offs were made to them they — through Flowers as Attorney General — would put the companies out of business by filing suits in state courts showing that the companies were charging illegally high rates for their loans. The defendants threatened certain life insurance companies that unless payoffs were made to them they — through Flowers as the Securities Commissioner — would not approve intrastate stock issues necessary for the companies to do business and would not license stock salesmen. In a typical situation Hyde or one of the unindicted conspirators made threats —almost always oral threats — to the victims. In one case, however, Gantt, under the pretext of a routine inspection of Century Discount of Prichard, a small loan company, removed some of the company’s records necessary to its business operations; at the same time, Flowers was causing a quo warranto proceeding to be filed against the company on the ground that it was operating contrary to law; later Hyde communicated to the parent company that the suit could be dismissed and the records returned for a price; the company paid the price — $62,-000. Typically, the extortion was paid under seemingly legitimate contracts. For the loan companies, the contracts were for credit life insurance, a form of insurance on debtors to assure repayment of loans. For the life insurance companies, the contracts were usually for advisory services in connection with stock sales. All of these contracts were shams: the interested parties understood from the beginning that no insurance or advisory service of real value was being purchased. The companies to which payments were made channeled the funds to the defendants, usually to Hyde. Hyde was the most visibly active of the defendants: he conveyed most of the threats and arranged the payments. Gantt’s position, however, made him an important participant too. For example, he helped arrange the contract by which Trans-Southern obligated itself to pay $90,000 to the defendants. Trans-South-era was interested in obtaining approval of the sale of stock in Alabama and also in obtaining approval of exempt sales prior to the public offering. Donald Orr, then organizing Trans-Southern, met with Hyde who told him that in order to have certain exemptions approved it would cost him $25,000 and to obtain approval of the public issue of stock it would cost him an amount equal to 5 percent of the amount of the issue. Orr agreed to this, paid the $25,000, and received the exemptions. At the direction of Hyde, checks totaling $20,000 were made payable to a law firm in Montgomery about which Orr knew nothing, a law firm that did no legal service for Orr, and $5,000 to a company that had no connection with Orr and performed no service for him or for his company. After the exemptions had been issued and the approval of the public issue had been obtained, Gantt called Orr and told him to come to Montgomery. The purpose of the meeting as Gantt explained to Orr was to put into writing the agreement Orr had previously made with Hyde. This agreement obligated Trans-Southern to pay $5,000 a month to Security Merchants, a shell corporation, until $90,000 had been paid. Orr paid some $70,000 on the contract but did not pay any more after Flowers left office. Even though under the terms of the contract the sum of $20,000 was still owing, Security Merchants took no action to recover this significant sum. When the details of the contract were being explained to Orr by Gantt, Flowers made a brief appearance and told Orr that the execution of the contract as suggested by Gantt and Moore was necessary “in order to keep Oscar [Hyde] happy”. Flowers attempted, not too successfully, to stay in the background. Essential to all the schemes however was the use of his office as an ever-present sword of Damocles dangling over the heads of his victims. He made a number of statements to victims and to neutral third parties indicating that Hyde spoke for him. For instance, Hyde offered Aspin-wall, President of United Security Life Insurance Company, all of the credit life insurance business in Alabama. After Aspinwall questioned his ability to produce such business, Hyde arranged for Aspinwall to meet with Flowers. Flowers confirmed to Aspinwall that Hyde’s deal was his deal and that he would padlock any company that refused to give credit life insurance business to United Security Life Insurance. The conspirators set a figure of $75,000 as the price Aspinwall should pay for a “package deal”. The package Aspinwall was forced to buy amounted to this: In exchange for $75,000, Aspinwall received advance approval of the public issue of stock of Aspinwall Associates; help in obtaining a national bank charter; no difficulty concerning licensing of salesmen; and no trouble from the Attorney General's office. The evidence showed that Flowers directly benefitted from some of the schemes. Shortly after one victim had paid $2500 to Pan-American Public Relations and Advertising, a sham Florida public relations company, a check from the company for the same amount was deposited in Flowers’s personal bank account. Paramount Life Insurance Company of Alabama, a subsidiary of an Arkansas company, had difficulty securing approval of a public issue of the sale of stock. Gantt notified the company’s attorney that approval of the stock registration might take a year. Hyde set a price of $25,000 to secure approval. Paramount paid the money by checks made out to an attorney selected by Hyde. The first pay-off, $10,000, was sent to Hyde’s office; the attorney endorsed the check for deposit and then signed a check drawn on this account to the Richmond Flowers Campaign Committee in the amount of $8,000. At Hyde’s direction, the company paid two additional amounts of $5,000 each to other persons. He described one of these payments as a “flat lay-off”. The company secured approval for its stock issue within 48 hours after agreeing to make the $25,000 payment. The evidence also showed that part of the money extorted from First American Life Insurance Company included a mortgage loan of $50,000 for Kelly to buy Hyde’s house in Florida for Flowers’s use. On appeal the defendants do not contest the sufficiency of the evidence except in the following respects. They assert that the evidence shows at worst that their actions constituted bribery rather than extortion under the Hobbs Act. They contest the sufficiency of the evidence to show that their actions affected interstate commerce under the Hobbs Act. Gantt contests the sufficiency of the evidence to show his participation in the alleged extortion. The issues on appeal will be discussed in the following order: I. Composition of Grand and Petit Juries II. Flowers’s Motion for Severance III. Extortion or Bribery IV. Interstate Commerce: Evidence, Variance from Indictment, and Charge to Jury V. Gantt’s guilt VI. Motion for Continuance Based on Kelly’s Illness and Severance VII. Admission of Testimony to Show State of Victims’ Minds VIII. Improper Statements in the Trial IX. Prejudicial Newspaper Publicity I. COMPOSITION OF GRAND AND PETIT JURIES The defendants contend that the grand jury which returned the indictment and the trial jury which returned the verdict were illegally constituted in that they were not drawn from a pool, master jury wheel, representing a cross-section of the community; they assert that blacks and women were discrimina-torily excluded from the jury system. They argue also that the court erred in denying them hearings in which to challenge the composition of the juries. The grand jury of the District Court for the Northern District of Alabama indicted the defendants in this case August 2, 1968, that is, before the effective date of the Jury Service and Selection Act of 1968, 28 U.S.C. § 1861 et seq. According to the 1960 census, 79.2 percent of the adult population of the Northern District of Alabama at that time was white, and 20.8 percent black. 47.4 percent of the population was male, and 52.6 percent female. The grand jury that indicted the defendants was composed only of men, and only three of the tweny-one men were blacks. The record shrieks the lack of extensive factual statistical evidence usually presented in cases involving an alleged systematic exclusion of blacks from the jury system (unless a case presents systematic discrimination obvious from the total or virtually total exclusion of blacks).5 Instead, the defendants rely on uncertain conclusions drawn from two last-minute depositions, one from Clerk of Court Davis and one from a deputy, Jones. As the defendants translated the clerks’ guesses into percentages, Davis estimated that blacks composed 6.1 percent of jurors; Jones estimated 10 percent. Davis estimated that women composed 7.4 percent of jurors; Jones estimated 20 percent. Contrasting these estimates with the state 1960 census figures showing the population to be 20.8 percent black and 52 percent female, the defendants contend that blacks and women (See White v. Crook, M.D.Ala.1966, 251 F.Supp. 401) were discriminatorily excluded from the jury system in the district. In the Northern District of Alabama, at the time this case was tried and before the 1968 Jury Act went into effect, the Clerk of Court, under the supervision of the Chief Judge, attempted to establish a fair cross-section system for selecting jurors. In 1963 the Clerk wrote to 1754 persons (so-called “key men” or “nominators”) asking for suggestions for jurors These nominators suggested 18,-715 names. The Clerk then sent questionnaires to the 18,715 named. The questionnaires had no inquiries about race, but did call for information on the sex of the prospective jurors. Approximately 11,000 questionnaires were returned. The clerks pared this group down to 7,000 qualified jurors, excluding those who fell within one of the explicit statutory exclusions and also those who fell within certain categories established by the district judge. These 7,000 names were then combined with another 7,000 names left from the jury list compiled in 1959. From these 14,000 names the Jury Commissioner selected the final list of 6,000 by choosing at random the number of jurors from each of the 31 counties in the district, reflecting the proportion of the county’s population to that of the district. The Commissioner allocated jurors to each county in four broad categories — bankers, farmers, merchants, and others — in accordance with the ratio of each category to the total population in the county. From this list of 6,000 names the grand jury and petit jury venires were selected by lot. In the order denying the motions to dismiss the indictment, the court distinguished the jury selection system in its district from the system usually described as the “key men” system: While this terminology [“key men”] may be correct, the court is of the opinion that the so-called keyman or nominator system as used in this district in the filling of the jury box in 1963 does not fall within the factual situation, also described as a keyman system, which was discussed in great length by the United States Court of Appeals for the Fifth Circuit in Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34. ¶ * * * Every segment of society was represented both in the nominating procedure and in the final selection process. The court both judicially and personally knows that prospective jurors have been selected without regard to race, creed, color, sex, or political affiliation and that ' the grand and petit juries drawn from the box which was filled as aforesaid represented a reasonable cross section of the community without regard to race, creed, sex, color, or political affiliation. A fair-minded person would have to conclude that whatever shortcomings this system of jury selection may have in terms of the end result, it cannot be said that it was systematically designed to exclude blacks and women. A description of the system — about all the record shows — falls short of a prima facie showing of intentional discrimination. “The evil [in an inadequate jury system] lies in the * * * systematic and intentional exclusion” of an “eligible class or group in the community in disregard of the prescribed standards of jury selection.” Ballard v. United States, 1946, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181. In Jackson v. Morrow, 5 Cir. 1967, 404 F.2d 903, a civil action by blacks against white police officers, the plaintiffs-appellants attacked the jury selection system in the very district where the instant ease was tried, the Northern District of Alabama. The venire was composed of 39 persons, 36 whites and three blacks; 37 men and two women. Chief Judge Brown, for the Court, held that “unlike Rabinowitz” the plaintiffs failed to make an “adequate showing” that the jury box was “spectacularly” not a cross-section of the community. The showing of systematic, purposeful exclusion of blacks and women is no more adequate in the case now before the Court than it was in Jackson v. Morrow. We discuss below the jury discrimination arguments raised by the appellants. A. Anyone would have to say that the figures the clerks gave for the proportion of blacks and women serving on juries are uncertain indicators of the fairness of the jury selection system in the district. The clerks were hesitant to state from recollection the number or percentage of jurors falling in the two categories. Clerk Jones, who had the closest contact with the jurors, estimated the percentage representation of blacks and women at ten percent and twenty percent respectively. In jury discrimination eases the focus is on the composition of the jury box or master jury wheel rather than on the individual jury. But the defendants have made no showing of the composition of the jury box: it cannot be extrapolated from the numbers given in the clerks’ depositions. Both clerks’ answers to questions of the defense attorneys indicated confusion whether the numbers they gave showed the blacks and females whose names were in the jury box or those who were on the venire lists or those who had appeared in response to the call of the venires or those who actually sat on juries. The composition of the jury box cannot be decided from that of the veniremen appearing or jurors actually serving. Many of those summoned wrote asking to be excused or simply did not appear in court. The defendants made no effort to show the composition of the non-appearing portion of the venires. It is not unlikely that poor Negroes and women with small children would form a disproportionately large part of this group. As Judge Brown said in Jackson v. Morrow, 404 F.2d at 906: All we have here is testimony concerning the number of white males, Negroes, and women of both races on the typical or average venire (see note 2, supra) summoned for the week of case. This is clearly a long way from establishing the make-up of the larger source — the jury box of 6,000 names. The venire was what remained after all excuses had been allowed. These incuded — to a liberal extent on the Judge’s own unchallenged word stated into the record — women with family responsibilities. Included also were the traditional individual mileage and hardship excuses which would encompass laborers, many of whom are Ne-groes. There is thus a total gap which makes it unsafe — either statistically or judicially — to draw inferences on mathematical probabilities using the venire result as both the starting and ending point. B. In jury composition cases courts tend to avoid setting precise numerical or percentage requirements reflecting a cross-section of the community. This is true of both constitutional cases (see Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1, 22 n. 40, cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135; Billingsley v. Clayton, 5 Cir. 1966, 359 F.2d 13, 15-18, cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed. 2d 74) and cases based on the former federal jury act (see Hunt v. United States, 5 Cir. 1968, 400 F.2d 306, cert. denied 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566). A jury system exactly reflecting the black-white population of a community could be helter-skelter on the basis of economic, educational, social, and job-status representation. Consistent with this approach and in the absence of a prima facie showing of systematic exclusion of a cognizable group, the cases have tended to rely on the purposes and standards of the jury selectors: Have jury commissioners intentionally excluded cognizable groups? This Court has had wide experience in cases dealing with the systematic exclusion of Negroes from juries. When there is a complete absence or “spectacular” underrepresentation of Negroes on juries, the courts have read the figures as establishing a prima facie case of purposeful discrimination on the theory that discrimination against Negroes is the most reasonable explanation for the composition of the jury system under scrutiny. In such cases, the federal government or the state, as the case may be, has the burden of overcoming the prima facie case by showing no deliberate or systematic exclusion or discrimination. In each case the court considers whether the record shows that the jury selectors operate in a brazenly anti-Negro manner, as for example, by asserting that few Negroes meet the moral qualifications for jury service. See Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34. The court scrutinizes the method employed to determine if there is a lack of concern for achieving a cross-section of the community. For example, did the white jury commissioners or key men restrict the selection to their personal acquaintances, also all white, and make little or no effort to gain knowledge of any qualified Negroes? See Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Witcher v. Peyton, 4 Cir. 1969, 405 F.2d 725. Conversely, when courts have found neither complete exclusion nor mere token inclusion but rather serious under-representation they have in several cases relied on good purpose and non-discriminatory explanations in finding jury systems non-discriminatory. This has been true both as a constitutional standard and as a federal statutory standard under the former federal jury statute. The Supreme Court followed this pattern in Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. There the Court found that the jury system of Tal-ladega County was not tainted with illegality despite the fact that Negroes constituted only 10-15 per cent of the petit jury panels drawn from the box while they constituted 26 per cent of the adult male population. In reaching this conclusion the Court relied heavily on two factors. First, the jury commissioners did not restrict their selection to personal acquaintances, nor did they express any view that Negroes were less fit for jury service. In fact they were unaware of the race of the individuals whose names appeared on the list of jurors and did not know the number of Negroes in their beats. They sought names from various sources. They had business contacts with Negroes and were familiar in general with white and Negro members of the community. They relied on membership lists of biracial organizations. Second, the Court pointed out that there was no “meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners.” 380 U.S. at 209, 85 S.Ct. at 830. This Court also adopted such an approach in Hunt v. United States, 5 Cir. 1968, 400 F.2d 306, which considered a challenge to a petit jury panel as viola-tive of the federal statutory scheme. The evidence showed that although Mexican-Americans constituted 35 per cent of the population, they constituted only 17.5 per cent of the jury pool. The Court there found persuasive two findings. First, the jury selectors, the clerk and commissioner, had made deliberate efforts to obtain names of Mexican-Americans for the jury box. They understood that it was their duty to obtain a cross-section of the community. Second, evidence showed that lower educational attainments of the Mexican-American population was a non-discriminatory explanation for much of the disproportion. Under these criteria the sparse evidence here produced by the defendants does not show an invalid system. As in Swain, the underrepresentation of Negroes does not per se amount to “purposeful discrimination based on race alone.” 380 U.S. at 208, 85 S.Ct. at 829. The defendants have shown neither a selection system insensitive to the need for a cross-section of the community nor the absence of non-discriminatory factors to explain the disproportion. C. The defendants have alleged that the key man system of jury selection is inherently biased because the key men are “the leaders of the white male community,” tend to recommend their friends and acquaintances, and therefore the people they recommend are as unrepresentative as they. But although the names of the key men relied on in 1963 were available, the defendants made no factual study of the composition of that group to support their general assertions. Contrary to the defendants’ assertions, the court clerks in their depositions pointed out that among those selected as jury nominators were members of Negro teachers’ organizations, Negro VFW posts, and organized labor which included both skilled and common laborers. The clerks also made efforts to obtain names from women’s organizations. The clerks testified that in choosing the key men an effort was made to get a cross-section. “These inquiries were directed to persons representing the following organizations : American Legion; V.F.W.; civic and fraternal organizations; labor organizations; Masonic lodges; bankers ; judges of probate; county super-intendants of education; city superin-tendants of education; Jeanes teachers and special supervisors; county boards of revenue; county agents, home demonstration agents; agriculture stabilization and conservation service officers.” The letter that the clerks sent to the 1754 key men requested their assistance in “filling the jury box * * * without regard to race, creed, sex, or politics * * * ” And although jury questionnaires sent to those suggested did request information as to the individual’s sex, no information concerning race was sought or recorded in any way. Non-discriminatory factors having nothing to do with the use of key men might explain a disproportion in the jury lists. The disproportion might have occurred, or it might have been accentuated, at two steps in the winnowing process. First, of the 18,700 to whom questionnaires were sent, only 11,000 returned them. Second, the clerks, on the basis of the questionnaires, determined that only 7,000 were qualified. At either step Negroes and women might easily have dropped out disproportionately but in a non-discriminatory fashion. D. The defendants allege that they were improperly denied a hearing on the issue of grand jury composition. We cannot agree. The indictment was returned in August 1968. September 16, 1968, Flowers moved to dismiss the indictment because of improper composition of the grand jury. November 20 Flowers’s attorney filed a motion for a hearing on the grand jury issue. It was not until January 20, 1969, just one week before the trial was scheduled to — and in fact did — begin, that defense attorneys began discovery, that is, took the depositions of the two court clerks on the issue of grand jury composition. Defense counsel say, “Although the Clerk’s discovery deposition was taken, producing some raw data, this did not enter into the district court’s decision”. The colloquy that occurred between the defense counsel and the trial court shows that the depositions were put in evidence. Moreover, the clerk’s stamp on the depositions show that they were filed on January 22, 1969. The trial judge therefore had the benefit of the transcribed depositions before he entered his order of dismissal January 23, 1969. The trial judge stated that he had “no objection, as far as the Court is concerned to putting it all in the record”. There is no basis for the defendants’ assumption that the trial judge did not consider the evidence brought out in their depositions. This case is unlike either Mobley v. United States, 5 Cir. 1968, 379 F.2d 768, or Scott v. Walker, 5 Cir. 1968, 358 F.2d 561, heavily relied on by the appellants. In Mobley the trial judge denied the defendant access to questionnaires on file that would have helped to determine the racial composition of the list from which his grand and petit juries were drawn. This Court reversed the denial of access and remanded for a hearing on the jury issue. In Scott v. Walker an investigator working for the defendant was denied access to official records in his attempt to determine the composition of jury lists. The court was therefore more willing to rely on the testimony of jury selection officials as to the composition of the jury lists in reversing the conviction. That testimony was sufficient to make a prima facie case of purposeful jury discrimination. In this case the defendants were not denied access to any of the records retained by the clerk’s office. Yet they filed no affidavits with their motions and they failed to make a timely or detailed study based on the records. Indeed, the trial court delayed a decision on the motion to quash at the request of defense counsel because they “had not had time to take the depositions”. The defendants had full opportunity to depose officials responsible for the jury selection. Appellants were not denied their right to a hearing. E. Defendants also argue that the jury suggester system in the Northern District of Alabama was per se illegal under Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34. Rabinowitz did not declare the key man system illegal per se. See Mobley v. United States, supra; Hunt v. United States, supra. Rather, Rabinowitz turned on a showing of a great underrepresentation of Negroes on the jury lists due to highly subjective standards used by the small group of jury commissioners and grossly inadequate sources of names. If not illegal per se, the defendants argue, use of a key man system is so suspect that it shifts to the state the burden of proving that Negroes and other identifiable groups were not underrepresented. Here the defendants attempt to convert a burden of explanation that the government has when it is shown that jury composition is spectacularly disproportionate into a burden of statistical analysis whenever general allegations of discrimination are made. We cannot agree with this broad proposition. F. The defendants also contend that the jury selection system was rendered illegal under Rabinowitz by the inclusion in the letter to the key men of the following sentence: “I know that you will give this matter your very careful consideration, and select only such men and women as you would want to pass on a case involving your life, liberty or property.” For text of entire letter, see note 8. The Supreme Court has said that such a standard is not on its face unconstitutional. Carter v. Jury Commissioner, 1970, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed. 2d 549; Turner v. Fouche, 1970, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567. Nor is the inclusion of such extra-statutory standards in jury selection criteria for federal district courts per se illegal under the former jury selection statute despite language in the majority opinion in Rabinowitz, No court in this circuit has held that the use of such standards is illegal in the absence of a showing, such as that made in Rabinowitz, that highly subjective standards were used by a small group of official jury selectors who made little or no effort to obtain a fair cross-section of the community and that the result was gross underrepresentation of Negroes in the jury system. This Court has several times refused to reverse judgments where similar extra-statutory standards were used in the selection of federal juries. See Jackson v. Morrow, 5 Cir. 1968, 404 F.2d 903, 906, n. 5 (same jury-lists in the Northern District of Alabama) ; Hunt v. United States, supra (“a prospective juror should be esteemed in his community as a person of good character, approved integrity, sound judgment and fair education”). If the challenged statement in the letter stood alone and if we could make the violent assumption that the key men were all upper-or-middle-class whites, the challenged statement might be unfair because of its apparently having been addressed to the interests of the key men rather than to those of the community. But the statement must be considered in the light of the letter as a whole and in conjunction with the admonition that the jury list was to be compiled “without regard to race, creed, sex, or politics.” Moreover, the key men who were sent these letters were themselves, according to the clerks’ depositions, representative of a cross-section of the community. G. The petit jury for the defendants’ trial was selected according to the plan of the district court for the Northern District of Alabama, adopted pursuant to the Jury Selection and Service Act of 1968 and approved by the Fifth Circuit Judicial Council. After finding that voter registration lists “represent a fair cross section of the community in the Northern District of Alabama” the Council determined that jury selection should be based solely on voter registration list. The plan also established certain categories of people who would be excused on individual request and other categories who were exempt altogether from jury service. The first day of trial the defendants moved to challenge the array and to quash the venire from which their petit jury was to be drawn. The ground for challenge was that the venire was not representative of a cross-section of the community solely because of the excuses and exemptions established in the jury selection plan. The district court denied the motion. On appeal, the defendants raise two points with regard to the petit jury. First, they allege that the court erred in summarily denying the motion because they were entitled to present testimony to the court in support of the motion under 28 U.S.C. § 1867(d). This section provides that when defendants allege facts that * * * if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motions the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. It is not clear that the trial judge did deny a request for a hearing; he stated that at a later point he was willing to allow the defendants to put on testimony, particularly that of Clerk Jones “who would know” the facts defense counsel wanted to bring out for the record. Even assuming that this might constitute a summary denial, there were no facts in the allegation that if true would show the venire to have been illegally constituted. The plan provided for reasonable categories for excuses and exemptions. In fact, three of the four categories of exemptions that the defendant challenged were established by Congress in the statute. 28 U.S.C. § 1863(b) (6). Second, defendants allege that the plan under which the jury was chosen was defective because its reliance on voter registration lists produced an under-representation of blacks. The statute prescribes voter lists as the sole source for names unless other sources are needed as supplements to achieve a fair cross-section of the community. 18 U.S.C. § 1863(b) (2). The defendants argue that the voter lists are not a sufficient source for the jury list here because, although 88 per cent of the 850,071 white adults are registered to vote, only 54.5 per cent of the 220,282 Negro adults are registered in the district. This ground of objection to the venire was not brought up at the trial, either in the written motion or in the oral statement. The Act under which the plan was promulgated stipulates that objection at the beginning of the trial is the exclusive means by which a defendant may challenge a jury “on the ground that such jury was not selected in conformity with the provisions of the title.” 28 U.S.C. § 1867(e). Thus the defendants have foregone any opportunity to challenge the racial composition of the jury venire on statutory grounds. The attempt of the defendants to raise constitutional objections to the reliance on voter lists also falls victim to F.R. Crim.P. 51, which requires that a defendant make known to the court his objections and the grounds therefor. Although the defendants did object to the venire, they made no objection to basing the jury lists solely on voter lists, Therefore this Court cannot consider the issue unless it amounts to plain error. See Landers v. United States, 5 Cir. 1962, 304 F.2d 577; Wright, Federal Practice and Procedure § 843. This contention does not rise to the level of plain error. Using the voting rolls, on the basis of the appellants’ figures, blacks would constitute 14 per cent of the source of the random selection for the jury lists while they constitute 20 per cent of the adult population of the district. On the facts of this case, such a disparity does not reflect unconstitutional discrimination against blacks. The underrepresentation is certainly not so great as to give blacks mere token inclusion. Nor can it be said that there was a purpose to exclude blacks. The primary reliance on voting rolls was prescribed by Congress as the best way, in most cases, to achieve jury lists containing fair cross-sections of the community. Congress, under the Voting Rights Act of 1965, had previously acted to ensure that voting rolls in the South are open to all who desire to vote, despite historical discrimination against Negroes. In sum, we hold that the defendants failed to show a purposeful, systematic exclusion of blacks and women from the jury system in the Northern District of Alabama at the time of the defendants’ trial. II. FLOWERS’ MOTION FOR SEVERANCE Flowers contends that he should have been granted a severance of trial. This contention is grounded on an asserted right to comment on the failure of his co-defendants to testify, as this Court discussed in De Luna v. United States, 5 Cir. 1962, 308 F.2d 140 (Wisdom, J.). We hold that the De Luna dilemma is absent here. Flowers’s defense rests on the theory that (1) no crime occurred (2) and if Hyde and Gantt were acting criminally, he was not involved in the crime. He argues that he “had a right to avail himself of every legal inference of innocence available to him, including the guilt of others.” Flowers’s attorney argued to the trial judge that he wanted to point out the co-defendants’ failure to testify in order to highlight the guilt of the others and to stress that Flowers had the “honesty, integrity and courage in his belief that the was innocent of any criminal offense to take the stand * * * >> This contention shows a misunderstanding of the reasons that led the Court in de Luna to recognize the right of one defendant in certain circumstances to' comment on the failure of a co-defendant to testify In that case two men were tried for possession of drugs. They had been arrested in an automobile immediately after one of them, Gomez, had tossed a package of drugs out of the car window. The theory of each defendant at the trial was that only the other defendant was guilty of possession. de Luna, who did not testify, relied on the theory that he had never possessed the drugs. Gomez took the stand and testified that the package was exclusively de Luna’s and that when de Luna saw the police he handed the package to Gomez and told him to toss it out the window. In closing arguments, Gomez’s attorney, in an effort to bolster the theory that his client was the innocent one, commented on de Luna’s failure to take the stand. In de Luna we referred to “an attorney’s duty to his client * * * to draw the jury’s attention to the possible inference of guilt from de Luna’s fail-silence * * * [as] integral to Gomez’s defense.” 308 F.2d at 141, 143. We recognized Gomez’s right to draw the inference of guilt from de Luna’s failure to testify only because the entire trial had developed on the theory of mutually exclusive guilt: either Gomez or de Luna was guilty, but not both of them. To show de Luna guilty would therefore exonerate Gomez. Flowers’s defense in this case could not rationally profit from showing the guilt of Hyde and Gantt. These defendants were interlocking parts of a whole. There were no mutually exclusive theories of guilt in the case. Flowers’s main defense theory was that no crime had been committed by any of the defendants. Showing that Hyde and Gantt were guilty gives no support to this position. Flowers’s second defense theory was that even if Hyde and Gantt were guilty he was not involved. But proving Hyde and Gantt guilty did not support this theory. Their guilt was not inconsistent with his innocence, but it gave no assistance to proving innocence. III. EXTORTION or BRIBERY? On appeal the defendants in effect concede that operators of life insurance companies and loan companies made payments to the defendants to influence the Attorney General’s regulation of their businesses. But, they ask, “[w]ere the alleged victims extorted from or were they willing participants in an attempt to bribe?” We hold that although there may have been some bribery, there was sufficient evidence to allow the jury to convict these defendants of extortion. The defendants argue that the “victims” were shady operators and that therefore any payments to avoid the just actions of the Attorney General’s office must be bribery rather than extortion. The argument relies on the reasoning that extortion occurs only when a legal right is threatened, that shady operators have no legal right to stay in business, and that therefore there was no extor-tive threat in this case. Assuming that some or all of the companies making payments were engaged in practices for which the Attorney General’s office might properly have prosecuted or closed their offices, the conclusion that payments must be bribery does not follow. Threatening to take official action — even where it is action that the official is duty-bound to take — for the purpose of coercing the victim to pay the official is extortion. See United States v. Sopher, 7 Cir. 1966, 362 F.2d 523, cert. denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210. The language of the statute makes clear that the actions of officials may constitute extortion: (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b) (2). The language is consistent with an interpretation that the wrongful use of an official right may be a basis for extortion. Yet it does not explicitly answer the question whether extortion includes threatening to do what the official has a duty to do. In the Model Penal Code commentary such action is within the Code’s definition of extortion And the application of the Hobbs Act in the area to which it was primarily directed — labor relations — makes clear that this is extortion. For instance, although an employer has no absolute right to labor tranquility and a labor leader has a right to organize strikes and pickets for certain purposes, it is extortion for a union leader to threaten an employer with labor troubles in order to coerce payments. E. g. United States v. Kramer, 7 Cir. 1966, 355 F. 2d 891, cert. denied in part and granted in part, 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396, cf. People v. Dioguardi, 1960, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 880, 168 N.E.2d 683. It is the wrongful use of an otherwise valid power that converts dutiful action into extortion. If the purpose and effect are to intimidate others, forcing them to pay, the action constitutes extortion. Put another way, it is the right to impartial determination of the issue on the merits (i. e. whether to enforce the law or whether to picket or strike) that the victim is deprived of when these actions are taken for the purpose of coercing him into paying. The distinction from bribery is therefore the initiative and purpose on the part of the official and the fear and lack of voluntariness on the part of the victim. There was evidence in this case to support a finding that the defendants coerced companies into paying fees in order to avoid harmful legal action. In some cases explicit threats were made. For instance, an official of Alabama Factoring and Finance Company testified that Hyde told him that if he did not enter an agreement for payments the corporation’s stock issue would not be approved by the Attorney General’s office. Also, Louis Tortorigi, part owner and operator of Jeffco Finance, testified that two weeks after the company began operations Harvey Moore, an employee of Hyde, approached him and said that he had to buy worthless credit life insurance to stay out of trouble with the Attorney General’s office. According to Tortorigi, Moore called it a “shakedown”. Top officials of the interested companies, such as Held of Paramount Life Insurance of Alabama and Orr of Trans-Southern testified that they learned that the Attorney General’s office would not approve stock issues unless they paid Hyde. As we previously noted, in the case of Century Discount, the Attorney General’s office took affirmative action to frighten Century Discount’s officers into paying the defendants. This occurred when Gantt removed vital records as part of an official investigation and when Attorney General Flowers filed a suit against the company. Hyde was with the members of the Attorney General’s office immediately after the seizure of the records and said to Gantt that once the investigation of the company had been launched he would take it from there, implying that this would be the basis for extortion. Brozman, the president of Century Acceptance, the parent company, testified that when he came to Alabama to see what was happening to the subsidiary, Harvey Moore suggested to him that he could be of help in his problems. Moore took Held to see Hyde, who sought a payoff. There was also evidence supporting the finding of a general scheme on the part of the defendants to extort from these and similar companies. Indeed, as pointed out, Hyde offered a great deal of the credit life insurance business in Alabama to Aspinwall of United Security Life Insurance (USLI) in return for 25 per cent of the gross premiums. The purpose was to use USLI as the collection agent for payments from other companies. That this was part of a scheme of extortion rather than simply preparedness for widespread, spontaneous efforts to bribe is shown by Flowers’s statement made at the same time. According to Aspinwall’s testimony, Flowers said that any loan company that did not give USLI the credit life insurance business would be padlocked. Additionally, Jerry Coe, an attorney, testified that Hyde, in the presence of Flowers, sought to have him serve as a collection agent for the extortion in the following manner: Hyde would refer people seeking approval of stock issues to Coe and tell him what fees to charge them— the implication being that they would have to pay the fees in order to have their issue approved — and would later tell him how to distribute the money. There was also testimony from the witnesses who paid that they did so because they feared financial ruin otherwise. The defendants attack the credibility of the witnesses furnishing the above testimony. They argue that the witnesses were bribers and that in retrospect they doctored their testimony to exonerate themselves by creating a picture of extortion. The Supreme Court has said in response to very similar contentions: “[t]he short answer to this is that the credibility of a witness is a question for the jury. * * * It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 1944, 315 U.S. 60, 77-80, 62 S.Ct. 457, 468-469, 86 L.Ed. 680, 703-704. There appears no reason on this appeal to disturb the jury’s fact finding. The fact that relations between the victims and the extorters were often cordial is not inconsistent with extortion. Knowing that they were at the mercy of the Attorney General’s office, it is a fair inference that the victims felt that to save their businesses they had to keep the ex-torters satisfied. The evidence the government presented with respect to some of the payments made no explicit reference to threats or coercion. The jury could infer that these people knew of the general pattern of extortion and sought out Hyde with the knowledge that they would have to deal with him eventually in order to get their issues approved. Even if these persons were not coerced, that is, they were willing bribers, the jury could find that other payments were made by victims coerced into paying extortion. IV. INTERSTATE COMMERCE: EVIDENCE, VARIANCE FROM INDICTMENT AND CHARGE TO JURY A. Sufficiency of Evidence The Hobbs Act applies only to one who “in any way or degree obstructs, delays, or affects” interstate commerce. 18 U.S.C. § 1951(a). The defendants urge on appeal that this jurisdictional element was not proved below. We disagree. There is evidence in the record to support the conclusion that each of the companies mentioned in the indictment was involved to some extent in interstate commerce and that the extortion sufficiently affected interstate commerce to support the exertion of federal jurisdiction under the statutory criterion. The record shows that the following corporations — all those mentioned in the indictment — were involved in interstate commerce in the following ways: (1) Alabama Factoring and Finance Corp., as a factor, purchased from Alabama manufacturers invoices representing sales to out-of-state purchasers. Thereafter it would have to collect payments from the out-of-state purchasers. In effect, such buying of invoices represented a financing of interstate sale transactions. (2) Aspinwall & Associates, registered with the Federal Securities and Exchange Commission, was established to, and later did, create a wholly-owned Florida subsidiary, Aspinwall Company, for the purpose of building a marina in Florida. Additionally, United Security Life Insurance Company, the corporation that paid the extortion to benefit Aspin-wall & Associates, was itself in interstate commerce. Located primarily in Alabama, USLI also did business in Georgia and Mississippi. It was engaged in enough interstate activity for the SEC to order it to cease trading its stock. (3) Paramount Life Insurance of Alabama was set up by Held and others in control of Paramount Life Insurance of Arkansas. Arkansas residents invested $130,000 in Paramount Foundation, which became the organizer of Paramount of Alabama. As an operating life insurance company, Paramount of Alabama was in interstate commerce in the following ways: it had a reinsurance agreement with a Tennessee insurance company; and Arkansas Management, a part of the corporate family of Paramount Life Insurance of Arkansas, issued the Alabama company’s policies and kept its financial books, both for a fee. (4) Trans-Southern Corp. was established with $50,000 seed capital, $15,000 of which was contributed by a resident of Colorado. Trans-Southern was conceived of as a holding company for a life insurance company and a bank. Trans-Southern Life was established and as part of its operations it had a reinsurance agreement with a Tennessee insurance company. The company acquired the bank. (5) Century Discount Corporation was in fact twenty Alabama corporations wholly owned by Century Acceptance Corporation, a publicly owned corporation in Kansas City, Missouri. These companies were in the small loan business. The subsidiaries were essentially local offices of the parent company: when they needed additional lending funds, the parent corporation would borrow in Kansas City, Chicago, New York and other cities, and forward funds to the local offices;. when these offices had excess funds on hand, they would remit them to Kansas City. During the period of the conspiracy, the Alabama offices of the corporation held about $5,000,000 in receivables. The defendants raise several objections to reliance on these facts. First they raise the corporate identity problem. For instance, they argue that the indictment refers to interstate commerce of Century Discount, whereas proof shows that Century Acceptance paid the extorted fee and that no showing was made as to which of the twenty subsidiaries in Alabama received which funds from Century Acceptance. Additionally, they point out that although the interstate commerce aspect of Aspinwall & Associates is cited in the indictment, this company paid nothing; it was United Security Life Insurance Company— controlled by the same people as Aspin-wall & Associates — that paid to secure Aspinwall & Associates’ registration. And they point out that the Arkansas financiers put no money into Paramount Life Insurance of Alabama, but only into Paramount Foundation Company, which in turn established and invested its funds in stock of Paramount Life Insurance of Alabama. Such a formalistic approach cannot be used to hide the true nature of these enterprises and the effect of extortion from them. Each set of companies was in practice integrated, operating as one large enterprise. These companies were tied together in the minds of the ex-torters. Their impact on interstate commerce was not diminished by their division into different corporations nor was it affected by the identity of the particular corporation in each family that actually put up the funds to pay the extortion. Additionally, the defendants argue that some of the companies were not engaged in interstate commerce at the time of the extortion. They say, for instance, that Alabama Factoring did not buy any invoices until several months after it paid extorted fees. And Aspinwall Company did not build its marina until a year or so after the extortion. This argument is without merit. The companies were formed, and registration for a stock sale was sought, with a stated purpose of going into the activities that support a finding of interstate commerce. Neither the statute nor the Constitution requires that the company be engaged in an interstate transaction at the moment of the extortion to support federal jurisdiction. A reasonable reading of the statutory language “in any way or degree obstructs, delays, or affects” interstate commerce is that it includes preventing the establishment of an organization that will engage in such commerce. See United States v. Tropiano, 2 Cir. 1969, 418 F.2d 1069, cert. denied, Grasso v. United States, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (interstate commerce requirement met by expectation of further orders of refuse trucks and containers from out of state). The defendants further contend that the effect on interstate commerce was de minimus while the statute requires a substantial impact. What the defendants were shown to have done with respect to interstate commerce is this: having power to interfere with the continued Alabama operations of a number of companies that, although local in many ways, had significant interstate aspects, the defendants threatened the existence of the companies and extorted money from them as the price of survival. In so doing, under Count One of the indictment, the defendants threatened the existence of a company that would finance interstate sale transactions (Alabama Factoring); of a company that proposed to build a marina in another state (Aspinwall & Associates); and of two life insurance companies, one of which (Paramount) was established on the basis of a large financial contribution from Arkansas and had continuing financial relations with its sister corporation in Arkansas, and the other of which (Trans-Southern) was established partly by an out-of-state investment and had a reinsurance agreement with a Tennessee corporation. Count Three relies only on the effect on Paramount Life of Alabama. In the facts on which Counts Two and Four are based, the extorters threatened to close the local operations of an interstate small loan operation in which there was a continual interchange of money between the parent company in Missouri and the local subsidiaries. These facts show sufficient impact on interstate commerce to meet the statutory requirement. The impact on interstate commerce need not be substantial, as the defendants argue. In Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, the Supreme Court said the Hobbs Act “ * * * speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” And the Second Circuit Court of Appeals, in United States v. Tropiano, 2 Cir. 1969, 418 F.2d 1069, cert. denied, Grasso v. United States, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530, has held that “ * * * extortion or threats of violence need affect interstate commerce only in a minimal degree to constitute a violation.” The standard under the Hobbs Act is therefore different from that under the Sherman Act, which requires a substantial impact on interstate commerce. United States v. Malinsky, S.D.N.Y.1956, 19 F.R.D. 426. By this standard, the jurisdiction requirement was certainly met as to Counts Two and Four on the basis of the interference with Century Acceptance and subsidiaries. Also the totality of interstate contacts under Count One was sufficient for interference with these businesses to affect interstate commerce. We also conclude that the involvement of Paramount Life Insurance of Alabama in interstate commerce was alone sufficient for interference with it to constitute affecting interstate commerce within the meaning of the statute. B. Variance from the Indictment The defendants contend that resting a finding of jurisdictional interstate commerce on the above enumerated facts is in conflict with their Fifth Amendment right to trial only on charges brought in an indictment by a grand jury. In Stirone v. United States, supra the Court voided a conviction because the district court allowed the prosecution to put into evidence and charged the jury with respect to information about an interstate aspect of the extortion victim in addition to the aspect specified in the indictment. The defendants here allege that the prosecution relied on facts not charged in the indictment rather than those interstate commerce facts that the grand jury did consider and charge. It is true that the prosecution did not make any showing of some of the specific facts alleged in the indictment. Thus the prosecution made no attempt to show that the reserves of Paramount and Trans-Southern Life Insurance Companies were invested in securities through interstate commerce. Nor was it shown that the bank purchased by Trans-Southern Corporation had any dealings in interstate commerce. Conversely, many of the facts showing that the extortion affected interstate commerce were not specified in the indictment. Yet we do not think that this case falls within the rule of Stirone. These defendants’ convictions are not based on facts outside the scope of the indictment, the defect in Stirone. The first paragraph of the indictment against these defendants describes in very broad terms the interstate commerce aspects of the companies involved in this case. See note 31, supra. The description of the specific activities of the particular companies is introduced by language indicating that the specifies are given as examples of the broad allegations about the interstate aspects of the establishment and operations of the companies. It is apparent that the indicting grand jury had in mind that the types of activities proved at the trial would constitute sufficient interstate commerce contact to meet the statutory criterion. The proof did not therefore go beyond the indictment. Nor is it fatal to the conviction that there was no proof supporting some of the specific interstate commerce allegations in the indictment. As long as the remaining portions of the indictment validly charge a crime, the existence of surplusage in the indictment will not affect the validity of a conviction. See Thomas v. United States, 5 Cir. 1967, 3