John B. MONROE, Appellant,
v.
UNITED STATES of America, Appellee.
George C. PRATHER, Appellant,
v.
UNITED STATES of America, Appellee.
Roger W. SIMKINS, Appellant,
v.
UNITED STATES of America, Appellee.
Curtis M. TAYLOR, Appellant,
v.
UNITED STATES of America, Appellee.
Albert H. SMITH, Appellant,
v.
UNITED STATES of America, Appellee.
Charles ANDERSON, Appellant,
v.
UNITED STATES of America, Appellee.
Burnie KING, Appellant,
v.
UNITED STATES of America, Appellee.
Nos. 12683-12687.
No. 12689.
No. 12690.
United States Court of Appeals District of Columbia Circuit.
Argued December 20, 1955.
Decided April 30, 1956.
Petitions for Rehearing Denied June 12, 1956.
COPYRIGHT MATERIAL OMITTED Mr. Myron G. Ehrlich, Washington, D. C., for appellants Monroe and Prather.
Mr. John H. Burnett, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellant Simkins.
Mr. Joseph Sitnick, Washington, D. C., for appellant Taylor.
Mr. James F. Reilly, Washington, D. C., for appellant Smith.
Mr. Curtis P. Mitchell, Washington, D. C., with whom Mr. Delong Harris, Washington, D. C., was on the brief, for appellants Anderson and King.
Mr. Harold H. Greene, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, Lewis Carroll, Edward P. Troxell, John D. Lane and Carl W. Belcher, Asst. U. S. Attys., were on the brief, for appellee.
Mr. John F. Doyle, Asst. U. S. Atty., аt the time record was filed, entered an appearance for appellee in Nos. 12683, 12684, 12685 and 12686.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
FAHY, Circuit Judge.
These are appeals from convictions under 62 Stat. 701 (1948), 18 U.S.C. § 371 (1952), for conspiring to violate § 22-704, D.C.Code 1951 by bribery, and from convictions of bribery itself. The conspiracy and bribery were directed toward influencing the official conduct of Lieutenant Todd O. Thoman, Jr., of the Metropolitan Police Department, to perform his duties with partiality and favor, and otherwise than as required by law in the enforcement of the gambling laws of the District of Columbia. Lieutenаnt Thoman was entirely innocent of wrongdoing. In fact he uncovered the allegedly criminal conduct by permitting himself seemingly to participate therein, while at the same time reporting the unfolding events to his superior officers and assembling evidence in preparation for arrests.
The indictment contains nineteen counts. Count one covers the conspiracy. The eighteen other counts cover specific acts of bribery. All appellants, together with John Winston, who was acquitted, were charged in the conspiracy count аnd were also charged with bribery in one or more other counts.
Two appellants, Monroe and Prather, were members of the Metropolitan Police Department. They are the only ones who were convicted of conspiracy. Monroe was also convicted of three charges of bribery.1 Prather was acquitted of bribery, so that his appeal brings in question only his conviction with Monroe of conspiracy. Appellant Anderson was convicted of three charges of bribery and acquitted of three; King was convicted оf one charge of bribery and acquitted of seven; Taylor was convicted of one and acquitted of one; Simkins was convicted of four and acquitted of one; and Smith was convicted of one.
Monroe was sentenced under the conspiracy count to imprisonment for twenty months to five years and to pay a fine of $1,000. He was also sentenced for sixteen months to four years for each bribery conviction, these sentences to run concurrently with one another and with his conspiracy sentence. Since the latter is for a lоnger time than his concurrent sentences for bribery, and since the conspiracy and bribery charges are intimately related, the judgment should be affirmed if no reversible error impairs the conspiracy conviction.2 Since Prather was convicted only of conspiracy we are also required to review only that judgment as to him.
Monroe and Prather contend that there was a fatal variance between count one, the conspiracy count, and the proof, in that the conspiracy count charged but one conspiracy whereas the proof showed several. The same contention is made by all other appellants, but of course it is not available to them because they were acquitted of conspiracy. And insofar as Monroe and Prather are concerned we find no reversible error due to the alleged variance, assuming arguendo its existence. In Berger v. United States,
"The true inquiry, therefore, is not whether there has been a variance in proof, but whеther there has been such a variance as to `affect the substantial rights' of the accused."
The Court said that the reasons for the general rule requiring correspondence between allegations and proof are that the accused be definitely informed of the charges so as to enable him to present his defense without being taken by surprise by the evidence, and that he be protected against another prosecution for the same offense.
Applying these tests to the conspiracy convictions of Monroе and Prather it seems altogether clear their substantial rights were not affected. These two officers were the main participants in the undertaking to secure the bribery of Lt. Thoman. There was testimony that Monroe first approached Thoman about obtaining protection money from gamblers, and that Monroe brought Prather into the scheme with a view of both himself and Prather joining Thoman in carrying out a widespread plan of obtaining such money. After Monroe's initiation of the project, Prather, in accordance with Monroe's plan and at his instigation, personally spoke to Thoman about it. At an arranged meeting with Prather protection money was passed to Thoman. Thoman reported this to his superiors, and with them to the United States Attorney. There was abundant additional evidence of the conspiratorial activities of Monroe and Prather, including the passage to Thoman of names, addresses, and telephone and tag numbers of gamblers, and with contacts, in furtherance of the conspiracy, between Thoman and appellants Anderson, Simkins, Taylor, and King. The conspiracy of Monroe and Prather embraced these others; and if any of the latter considered individually could not be said to have participated in as broad an operation as did Monroe and Prather, this did not significantly affect the fairness of the trial of these two for conspiracy. They were a part in some way of all that occurred, though others might not have been. Therefore it cannot be said that proof of the whole operated unfairly to their prejudice, or came as a surprise to them. Furthermore, thе possibility of prejudice in later defending on the ground of their present convictions, should they again be prosecuted for any of the count one transactions used to obtain these convictions, is too fanciful to be used as a basis for setting aside such convictions. The Supreme Court met a similar problem in Berger by stating, "certainly the fact that the proof disclosed two conspiracies instead of one, each within the words of the indictment, cannot prejudice his defense of former acquittal of the one or former cоnviction of the other, if he should again be prosecuted."
Appellants' argument respecting the alleged variance relies heavily upon the opinion of Mr. Justice Rutledge for the Supreme Court in Kotteakos v. United States, supra, where substantial prejudice was found to have resulted from a conviction of a single conspiracy on evidence conceded by the Government to have proved some eight or more different conspiracies. The indictment named thirty-two defendants of whom nineteen were tried. The cases of thirteen went to the jury and seven were found guilty. The key figure in that case, however, the one common to the total scheme,3 had pleaded guilty. He was not in the case as it was decided by the Supreme Court. The Court held that the variance was prejudicial. But the Berger case was not disapproved. It was distinguished on factual differences between the two cases. The Kotteakos opinion [
Lt. Thoman equipped himself with a Minifon to aid in the investigation. Through this device numerous conversations he held with various appellants were recorded on wires. The spools upon which the recordings were made were turned over to Lt. Thoman's superiors in the Police Department. A number of recordings thus obtained were played for the jury over objections. We find no merit in any of these objections. Appellants contend, in the first place, that this evidence was inadmissible under the best evidencе rule. They say that Lt. Thoman's testimony was the best evidence as to the conversations. But courts have consistently admitted such recordings in evidence. Schuyler v. United Air Lines, D.C.M.D.Pa.,
Appellants also argue that particular recordings, because inaudible at times or incomplete, gave the jury only a part of what they purported to represent. They cite Hunter v. Hunter,
Appellants say the recordings were not admissible as corroborative of Thoman's primary evidence because the latter had not been impeached. They point to the rule that prior consistent statemеnts of a witness are not admissible to corroborate his testimony until he has been impeached, citing Goins v. United States, 4 Cir.,
Various motions were filed for inspection of Government documents and recordings and to "play, hear, record, inspect and/or to copy" the recorded material. These mоtions were all denied. It is doubtful that the Minifon recordings could qualify for discovery and inspection under Rule 16, Fed.R.Crim.P., which applies to "* * * documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process * * *." The recordings are analogous to copies of confessions made by defendants to the police, which several courts have held do not fall within Rule 16. Shores v. United States, 8 Cir.,
Appellants argue that they were entitled to hear the original recordings, not the copies which the Government played. But the Government represented to the court that the original recordings were too fragile to be used for discovery playing and filed an affidavit in which the accuracy of the reproduction from the originals was certified. The truth of this affidavit is not brought in question. Consequently, it was well within the discretion of the trial court to decline to order inspection of the originals. And the argument now made that appellants were entitled to make stenographic transcripts of the recordings, or in lieu thereof to be furnished copies of transcripts made by the Government, was not pressed upon the trial court in any of the motions for pre-trial discovery or production to which we have referred. Nor does it appear that permission was asked of the Government, and denied, to make a transcript at the time thе recordings were played for the benefit of the defendants. Consequently, appellants cannot now complain that they were deprived of any alleged right to have a transcript.
It is contended that telephone conversations between Lt. Thoman and appellants were intercepted and recorded, and that the recordings were used in violation of section 605 of the Federal Communications Act, 48 Stat. 1103-1104 (1934), 47 U.S.C.A. § 605. This provision reads in pertinent part as follows:
"* * * no person not being authorized by the sender shall intercept аny communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * * and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: * * *."
What occurred is that the Lieutenant obtained the telephone recordings now in question through the use of an induction coil apparatus, consisting of a suction cup attached to the telephone receiver, with a wire running from the cup to the Minifon recording device. We need not decide the much discussed question whether this constituted an interception within the meaning of the statute. See Unitеd States v. Polakoff, 2 Cir.,
There is an additional contention that the so-called interceptions had been divulged to police officers and others in the Government's preparation for trial. But Lt. Thoman transmitted the same information legally, as the product of what he himself heard. See Nardone v. United States, supra,
The remaining point requiring discussion is the contention of appellants that the conviction of еach must be reversed because each was prejudiced in his defense by the trial of all substantive charges together, and with the conspiracy charge. Except for the appellant Smith, however, no appellant reserved this point clearly on the record either before, during, or after trial. The motion of appellants before trial attacking the indictment itself for alleged misjoinder went to the validity of the indictment, not to the question of advisability of separate trials. Since the offenses charged were of the same or similar character, and the defendants were alleged to have participated in the same conspiracy, the joinder of offenses and defendants in the indictment itself was permissible under Rule 8, Fed.R.Crim. P. Robinson v. United States, 93 U.S. App.D.C. 347,
The validity of Monroe's conviction of conspiracy renders it unnecessary to consider his conviction of bribery, see note 2 supra, and Prather was acquitted of all substantive charges of bribery. Hence, the question remaining is whether the other appellants were prejudiced by being tried for conspiracy with the substantive offenses, and together on the substantive offenses, of which alone they were convicted. This involves a matter of judgment to be exercised now in light of developments at the trial, keeping in mind that the decision was for the sound discretion of the trial judge. Dunaway v. United States, supra. The jury, as we have seen, acquitted Prather entirely of bribery, Anderson was convicted of three of six charges of bribery, King was convicted of only one of eight charges of bribery, Taylor was convicted of one charge and acquitted of one, and Simkins was convicted of four and acquitted of one.4 Thus, the jury was selective. This at least to some degree indicates that the jury returned verdicts only upon the basis of evidence relevant to each count and each defendant. Finnegan v. United States, 8 Cir.,
"that with respect to the substantive counts of the indictment you must determine the guilt or innocence of each defendant charged thereunder solely on the evidence produced with respect to that defendant. * * *
"Now, I shall not refer in detail to every one of the defendants, but that same rule applies to each and all of the defendants with respect to these substantive counts, and I have just mentioned this particularly so thаt it would be clear to you.
"You are told that testimony which has been admitted only to apply as to a specified defendant may only be considered by you as to that defendant and none other."
Furthermore, the court charged in considerable detail as to the separate substantive counts. She referred to the dates and the amounts alleged to have been paid on those dates for protection, in such a manner that it is clear the jury understood just how they should go about determining guilt or innocence with respect to eаch substantive count. Judging the situation after the trial, therefore, as we must do, knowing that all appellants except Monroe and Prather were acquitted of conspiracy, and considering the evidence supporting each separate substantive count which resulted in a verdict of guilty, together with the court's full, fair and careful charge, we may not speculate that the trial actually led to any conviction which would not have occurred except for the consolidated trial. Dunaway v. United States, supra. While the danger of which the Supreme Court warned in Blumenthal v. United States, supra,
We have examined other contentions of appellants but do not find it necessary to discuss them. None requires revеrsal. They include the claim that the District Court abused its discretion in refusing appellants' request that Lt. Thoman be required to give a typewriting demonstration when being cross-examined about his testimony regarding his typewritten notes; the contention that evidence of other offenses than those on trial was erroneously admitted; and the contention that the court erred in refusing to instruct the jury on the subject of extortion.
Affirmed.
On Petitions for Rehearing.
In the opinion rendered April 30, 1956, we stated that appellants' argument that they were entitled to make stenographic transcripts of the rеcordings or to be furnished copies of the Government's transcripts was not pressed upon the trial court in the motions to which we referred. After issuance of our opinion appellants supplemented the record in this court by including a transcript of certain proceedings prior to trial which had not been before us when we decided the case. In those proceedings appellants did press for the right to make stenographic transcripts of the recordings or to be furnished copies of transcripts by the government. Nevertheless, aside from appellants' failure earlier to bring this matter before us in the record on appeal, we conclude that the refusal to grant the request was not reversible error. In addition to the earlier opportunity, referred to in our opinion, to hear the recordings, those parts of the recordings actually admitted in evidence were played again out of the presence of the jury but with counsel for appellants present. This was done to aid the court in ruling upon their admissibility. This additional opportunity of appellants to acquaint themselves with the contents of the recordings actually used — during a trial which lasted some weeks — with no request or denial then of an opportunity to transcribe them, supports our conclusion that the refusal complained of was not such an abuse of discretion as to require a new trial of these cases. We add that appellants point to no particular prejudice which grew out of the refusal.
The petitions for rehearing are denied.
Notes:
Notes
He was acquitted of three bribery counts
Hirabayashi v. United States,
The conspiracy charged was to obtain loans under the National Housing Act, 12 U.S.C.A. § 1701 et seq. for purposes outside its terms
Smith was convicted of the single bribery charge which was brought against him