UNITED STATES of America v. ASHER, Robert B., Appellant.
Nos. 87-5096, 87-5213.
United States Court of Appeals, Third Circuit.
July 20, 1988.
Argued Oct. 20, 1987. Reargued April 11, 1988.
854 F.2d 1483
CONCLUSION
For the foregoing reasons, we affirm the district court‘s imposition of Rule 11 sanctions against LeFlore and Pavelic & LeFlore. Calloway‘s appeal from the imposition of Rule 11 sanctions is reinstated sua sponte, the $100,000 sanctions against him are vacated, and the case is remanded for proceedings consistent with this opinion. On the cross-appeal, we remand for further proceedings consistent with this opinion to consider LeFlore‘s and Pavelic & LeFlore‘s liability for further sanctions, in the event that sanctions of less than $100,000 are imposed against Calloway. We reverse the award of sanctions imposed under Section 1927. This panel will hear any further appeal in this matter. Appellants LeFlore and Pavelic & LeFlore will bear all costs, to be shared equally between them, except for the appeal from the imposition of sanctions under Section 1927. No costs will be taxed on that appeal.
James J. West (argued), U.S. Atty., Harrisburg, Pa., for appellee.
Before HIGGINBOTHAM, SLOVITER and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal is from a conviction that arose out of events transpiring in the context of contract negotiations between officials of the Commonwealth of Pennsylvania and CTA, Limited (“CTA“), a California corporation that specialized in recovering overpaid Social Security taxes (“FICA“) for
As a result of the scheme, Asher was convicted by a jury of one count of conspiracy to violate the federal mail fraud and interstate transportation in aid of racketeering (“ITAR“) statutes, in contravention of
On appeal, Asher argues that his mail fraud, conspiracy and perjury convictions must be overturned in light of the Supreme Court‘s recent decision in McNally v. United States, — U.S. —, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).2 He also claims that the district court‘s instructions to the jury constituted an impermissible amendment of the government‘s indictment. Asher‘s final claim is that the district court abused its discretion in allowing a prosecution witness, Smith, whose credibility had not been attacked by Asher, to read into evidence a written statement that Smith made in 1984 for purposes of negotiating immunity.
We are not persuaded by either of the first two of Asher‘s arguments and thus will not vacate his conviction on these grounds. Moreover, while we find merit in Asher‘s final argument, we are satisfied that the district court‘s ruling to admit Smith‘s prior consistent statement amounts to harmless error when viewed in conjunction with the remaining evidence adduced by the government. Accordingly, we will affirm the district court‘s order of March 20, 1987, which denied Asher‘s motion for judgment of acquittal or, in the alternative, for a new trial.
I.
Robert B. Asher was elected Chairman of the Republican Party of the Commonwealth of Pennsylvania in 1983. Soon thereafter, he received a telephone call from William T. Smith, who was calling on behalf of his client John Torquato. Smith was seeking Asher‘s assistance in arranging a meeting between Torquato and Robin Ross, a representative of Richard Thornburgh, who at the time was Governor of the Commonwealth of Pennsylvania. When Asher learned that Ross was not available, he set up a meeting between Torquato and John Pierce, who also worked for the Governor.
On the day of the meeting with Pierce, Smith and Torquato first stopped at Asher‘s office in Harrisburg. They explained to Asher that FICA recovery provided an easy—and, to the Governor, a beneficial—way for Pennsylvania to recover a significant amount of money for itself and its state employees.3 Smith and Torquato ex-
The Governor‘s office failed to award the FICA recovery contract for state employees to CTA. Thereafter, in a sequence of events that is not directly related to this appeal, the Pennsylvania state legislature enacted legislation that removed authority to award FICA recovery contracts from the Governor and granted that authority to the state Treasurer, who, at the relevant time, was Dwyer. That legislation was subsequently signed into law by Governor Thornburgh.4
Smith and Torquato next met with Asher to discuss FICA recovery in March 1984. At that time, CTA was pursuing a FICA recovery contract for teachers and other school district employees. Smith and Torquato explained to Asher that, due to the new legislation, any state checks representing FICA refunds would be signed by Dwyer. They also explained the obvious political benefits to the Republican party.
Torquato testified that, at this March 1984 meeting, he and Smith informed Asher that Smith and Dwyer had previously agreed that CTA, in order to secure the FICA recovery contract, would make “campaign contributions” of $300,000. Smith, on the other hand, testified that Asher had learned before this meeting of Smith‘s offer to Dwyer, and that Asher was the one who brought it up at the meeting.
After this meeting, Smith called Asher on numerous occasions, seeking his aid in getting Dwyer to meet with CTA to negotiate a contract. Ultimately, CTA was officially awarded the FICA recovery contract for approximately $5,000,000 on May 10, 1984, despite a significantly lower bid from Arthur Young, Inc. (a nationally recognized accounting firm) to perform the same services. Throughout this period, Torquato was sending Asher carbon copies or blind copies of Torquato‘s CTA-related correspondence.
In July 1984, the FBI began to investigate CTA and the circumstances under which the FICA recovery contract was awarded.5 Thereafter, Torquato decided to cooperate with the government and pleaded guilty to one count of conspiracy. Smith, who had been indicted in the meantime, attempted to negotiate immunity from prosecution in exchange for his cooperation. The government refused to grant Smith immunity. Smith proceeded to trial. In his testimony, he denied offering campaign contributions to Dwyer or to Asher. Asher and Dwyer testified for the defense
Asher and Dwyer were indicted on May 13, 1986. They were tried together in Williamsport, Pennsylvania. On December 18, 1986, the jury returned guilty verdicts against each defendant on the conspiracy, mail fraud, ITAR, and perjury counts. On January 27, 1987, as previously noted, the district court sentenced Asher8 to concurrent prison sentences of one year and one day on each count, and imposed fines totalling $205,000 plus a mandatory special assessment of $50. App. at 1562-63. The district court subsequently granted Asher‘s motion for release on bail pending appeal, United States v. Asher, Crim. No. 86-00088-02 (M.D. Pa. February 6, 1987), but denied Asher‘s motion for a judgment of acquittal pursuant to
II.
Asher‘s first, and most troubling, claim on appeal is that the Supreme Court‘s recent decision in McNally v. United States, — U.S. —, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which was filed after Asher had been convicted, requires that we vacate his convictions on all counts. Although McNally dealt solely with the proper scope of the mail fraud statute,9 and thus would directly affect only the mail fraud and conspiracy to commit mail fraud counts of Asher‘s conviction, Asher claims that his ITAR and perjury convictions were prejudicially tainted by his wrongful mail fraud and conspiracy convictions.
In reviewing the district court‘s order, we are bound by McNally, despite the fact that it was decided after Asher‘s trial had been completed and was therefore unavailable to the district court. See Ashcraft v. Tennessee, 322 U.S. 143, 156, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 170 (3d Cir.1982); Zichy v. City of Philadelphia, 590 F.2d 503, 508 (3d Cir.1979). See also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed. 2d 649 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.“).
As this court has recently stated, “if ... jury instructions [in a pre-McNally case] allowed conviction for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and a defect affecting [the defendant‘s] due process rights.” United States v. Piccolo, 835 F.2d 517, 519 (3d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). However, “when determining the effect of a single challenged instruction on the validity of a conviction, the reviewing court must view the challenged instruction in the context of the
a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.Cupp, 414 U.S. at 147, 94 S.Ct. at 400 (quoted in Piccolo, 835 F.2d at 519). With these principles in mind, we turn to an analysis of Asher‘s appeal in light of McNally and its progeny.
A. The Pre-McNally Decisions and McNally
In McNally, the Supreme Court assessed for the first time whether the statutory language and legislative history of the mail fraud statute,
McNally involved a scheme by James Gray, a former member of the Governor of Kentucky‘s cabinet, Charles McNally, a private citizen, and Howard Hunt, former Chairman of Kentucky‘s Democratic Committee, whereby Gray, McNally and Hunt agreed to purchase a workmen‘s compensation policy for the Commonwealth of Kentucky from Wombwell Insurance Company in return for a promise from Wombwell that it would pay a portion of its commissions to other insurance agencies owned and controlled by McNally, Hunt and Gray. Upon discovery of this self-dealing scheme—which funnelled some $850,000 to agencies designated by Hunt—Gray and McNally were prosecuted on the theory that the scheme defrauded the citizens of Kentucky of their intangible right to honest government.12 The jury instructions at issue in McNally referred to intangible, non-property losses by Kentucky as the basis for a mail fraud conviction. Gray and McNally were convicted of mail fraud and their convictions affirmed on appeal. United States v. Gray, 790 F.2d 1290 (6th Cir.1986).
After reviewing the statutory history of the mail fraud statute and after analyzing congressional intent, the Supreme Court in McNally overturned the line of cases based on the intangible rights theory, holding that the “mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizen to good government.” McNally, 107 S.Ct. at 2879. Although the Supreme Court acknowledged that the mail fraud statute‘s elements “to defraud” and “for obtaining money or property by means of false or fraudulent pretenses, representation or promises” are presented in the disjunctive and thus could be construed independently, it relied on its holding in Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924) to conclude that the term “to defraud” “commonly refer[s] to wronging one in his property....” McNally, 107 S.Ct. at 2880-81.
The Supreme Court also relied on the oft-invoked rule of construction which requires that when “two rational readings of a criminal statute, one harsher than the other,” are possible, the least harsh of the two must be chosen unless Congress has clearly spoken to the contrary. Id. 2881 (citing United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971)). The Supreme Court thus concluded that “Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such [money- or property-depriving] schemes.” Id.
B. The Post-McNally Decisions
Some five months after deciding McNally, the Supreme Court filed its first opinion which clarified McNally. In Carpenter v. United States, — U.S. —, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), R. Foster Winans, one of the authors of the Wall Street Journal‘s (“Journal“) daily “Heard on the Street” column,13 made the information, to
Winans was ultimately convicted for both mail and wire fraud under
The Supreme Court disagreed, and affirmed the Second Circuit‘s decision. It held that ”McNally did not limit the scope of
In the wake of the Court‘s decisions in McNally and Carpenter, a significant number of pre-McNally criminal convictions have been challenged on the ground that they were based on the now outlawed intangible rights doctrine. In response to these challenges, the courts of appeals have sought to analyze and apply McNally and Carpenter within an appropriate framework. Those cases in which a conviction was based entirely on the intangible rights theory of mail fraud, and in which the instructions to the jury could not assure that money or property interests were implicated, have been overturned on McNally‘s authority. See, e.g., United States v. Conover, 845 F.2d 266 (11th Cir.1988); United States v. Ochs, 842 F.2d 515 (1st Cir.1988); United States v. Holzer, 840 F.2d 1343 (7th Cir.1988); United States v. Matt, 838 F.2d 1356 (5th Cir.1988); United States v. Covino, 837 F.2d 65 (2d Cir.1988); United States v. Murphy, 836 F.2d 248 (6th Cir.1988); United States v. Gordon, 836 F.2d 1312 (11th Cir.1988); United States v. Murphy, 836 F.2d 248 (6th Cir.1988); United States v. Cooke, 833 F.2d 109 (7th Cir.1987); United States v. Gimbel, 830 F.2d 621 (7th Cir.1987); United States v. Herron, 825 F.2d 50 (5th Cir.1987).
However, in those cases in which courts have concluded that monetary or property losses have resulted from fraudulent schemes, convictions have been upheld on the basis of those losses, despite the fact that the government may have relied, at least in part, on the intangible rights theory as a basis for the convictions. See, e.g., United States v. Perholtz, 836 F.2d 554 (D.C.Cir.1988); United States v. Piccolo, 835 F.2d 517; United States v. Richerson, 833 F.2d 1147 (5th Cir.1987); United States v. Runnels, 833 F.2d 1183 (6th Cir.1987); United States v. Wellman, 830 F.2d 1453 (7th Cir.1987); United States v. Fagan, 821 F.2d 1002 (5th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988). This court‘s recent decision in United States v. Piccolo, 835 F.2d 517 provides an excellent example of a post-McNally analysis.
The district court‘s jury instructions implicated both property losses allegedly suffered by Piccolo‘s employer and intangible losses arising from Piccolo‘s dishonesty. The property rights component of the instruction included references to Piccolo‘s receipt of a bribe and to money lost by a second company (not his employer) as a result of the fraudulent scheme. The district court‘s instructions stated that in order to return a conviction, the jury must find “that the defendant devised a scheme or artifice to defraud [his employer] United Engineers of its right to the honest, faithful and loyal services of its employee ... and further, to defraud both United Engineers and Delmarva Power and Light Company of money.” 835 F.2d at 520.14
On appeal, Piccolo argued, as does Asher in the instant case, that his mail fraud conviction should be overturned because the district court‘s instructions permitted the jury to convict him for conduct outside the post-McNally parameters of the mail fraud statute. Piccolo claimed that the jury was permitted to convict him of mail fraud if it found that he had participated in a scheme to defraud his employer of its right to his honest and faithful services, even if the object of wrongfully obtaining money or property was not part of the scheme.
In analyzing the district court‘s instructions, we stated that “a plain reading of [the instructions] fairly compels the conclusion that Piccolo could be convicted of mail fraud only if the jury found that he participated in a scheme to defraud United Engineers ... of money.” Id. at 520. We continued by stating that “[e]ven if we assume that the [intangible rights instruction] was a misstatement of the law in the present context, we find that the jury could not, given the totality of the instructions, have convicted Piccolo unless it found that an object of the scheme in which he participated was to obtain money from Delmarva Power.” Id. Accordingly, we found no reversible error in the jury instructions. But see id. at 521 (Aldisert, J., dissenting).
A similar outcome was reached by the Sixth Circuit in United States v. Runnels, 833 F.2d 1183 (6th Cir.1987), though on a somewhat different and more creative theory, and one to which we do not necessarily subscribe. In Runnels, Frank Runnels, the President of Local 22 of the United Automobile Workers (“UAW“), took bribes in return for referring workers’ compensation cases to a particular law firm. Runnels was subsequently charged with committing mail fraud by obtaining money through false and fraudulent pretenses and by depriving Local 22 of his fair and honest services. After he had been convicted, Runnels appealed his conviction, arguing that it could not stand in light of McNally.
In affirming Runnels’ conviction, the Sixth Circuit relied on principles of agency law, reasoning that, because Runnels received a bribe in his role as Local 22‘s president, that money rightfully belonged to the Local, of which he was an agent. The court stated that:
[t]he existence of .. a bribe or kickback makes it unnecessary to invoke intangible rights doctrine. The fiduciary‘s acquisition of an economic benefit which properly belongs to the principal, through an intentional breach of a fiduciary duty owed to the principal, is in itself sufficient to support a finding of guilt under18 U.S.C. § 1341 .
In two subsequent cases, the Fifth Circuit used an analysis somewhat similar to the analysis used by the Sixth Circuit in Runnels, in affirming post-McNally mail fraud convictions dependent in part on the presence of an intangible right. See U.S. v. Richerson, 833 F.2d 1147 (5th Cir.1987); United States v. Fagan, 821 F.2d 1002 (5th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988). Unlike the Local union in Runnels however, the employers in both Fagan and Richerson suffered direct monetary losses in addition to being deprived of intangible rights.
Fagan involved a kickback scheme in which Ralph Fagan, the owner of two companies engaged in the leasing of work boats to offshore oil companies, would pay kickbacks to Donald Riley, the drilling manager for an offshore company, in exchange for a promise that Riley‘s employer would lease boats from Fagan‘s companies. In finding that Riley‘s employer had been economically disadvantaged by Fagan‘s scheme because it might have received some of the economic benefits being kept by Riley, the Fifth Circuit was able to comply with the requirements of McNally and to affirm Fagan‘s conviction, despite the arguably intangible (breach of duty of loyalty) nature of the losses to Riley‘s employer. See Fagan, 821 F.2d at 1011 n. 6.
Similarly, in Richerson, an employee (Richerson) of an offshore oil drilling contractor accepted kickbacks from oil rig parts vendors in exchange for steering business to those vendors. The kickbacks were financed by money received from false invoices submitted to Richerson‘s employer by the vendors. Thus, Richerson‘s employer was deprived of Richerson‘s honest services and unknowingly financed the kickbacks. At Richerson‘s trial, the jury was instructed, inter alia, that “... the object of a fraudulent scheme need not be the deprivation of a tangible interest. Artifices designed to cause losses of an intangible nature also violate the statute.” Richerson, 833 F.2d at 1156. Despite this jury instruction, which allowed for a conviction without a finding of monetary or property loss by the employer, see id. at 1156-57,
The Richerson court‘s primary reliance was on the Supreme Court‘s decision in Carpenter. The Fifth Circuit stated that “Richerson‘s concealment of material information from his employer is analogous to the Carpenter defendant‘s disclosure of his employer‘s material information.” Id. Noting that “the overriding and predominant theory of the Government‘s case involved [the employer‘s] loss of money and property,” the Richerson court minimized the intangible rights language in the challenged jury instruction and affirmed. Id.
Unlike the Fifth Circuit‘s interpretation of McNally in Richerson and Fagan, each of which relied at least in part on Justice Stevens’ McNally dissent, the Seventh Circuit has upheld a pre-McNally conviction on a somewhat broader theory. It held that a conviction may be affirmed where an evaluation of the indictment, jury instructions, and proof in the case leads to the conclusion that monetary or property losses underlay the fraudulent scheme at issue. United States v. Wellman, 830 F.2d 1453 (7th Cir.1987).
In Wellman, Glenn Wellman, the chief executive officer of a shipping tank manufacturer, sold a number of refurbished shipping tanks to M-Chem Chemical Company after having assured M-Chem that the tanks met government specifications. After the government discovered that Wellman had made a series of fraudulent misrepresentations about the tanks’ specifications, Wellman was indicted on charges that he had engaged in a scheme to defraud M-Chem of its right to have tanks which complied with government regulations. The indictment specifically charged that Wellman‘s scheme had defrauded M-Chem of “its right to have safe and authorized equipment for the storage and shipment of hazardous chemicals and of its right to know that equipment it purchased was in full compliance with D.O.T. regulations....” Id. at 1462.
Notwithstanding the intangible character of this part of the indictment, the Seventh Circuit affirmed Wellman‘s conviction. The Court emphasized that the district court‘s instructions had required the jury to find that Wellman had intended to “deprive another of something of value,” id. at 1463, and that the harm to M-Chem, i.e., the money it paid Wellman for the substandard tanks, “was anything but ‘intangible.‘” Id. The court further noted that “Wellman‘s scheme clearly involved ‘wronging [M-Chem] in [its] property rights by dishonest methods or schemes.‘” Id. (brackets in original) (quoting McNally, 107 S.Ct. at 2881). Thus, the Seventh Circuit looked beyond portions of the language in the indictment and jury instructions that referred to intangible rights, and instead focused on the ultimate monetary losses that were clearly part of Wellman‘s fraudulent scheme. Id.
The District of Columbia Circuit was presented with an opportunity to analyze and apply McNally in United States v. Perholtz, 836 F.2d 554 (D.C.Cir.1987) (per curiam) but in a bail pending appeal context rather than on a direct appeal of a mail fraud conviction. In Perholtz, the appellants developed a computerized payroll system and data communications system for use by various federal agencies. They were convicted by a jury of mail fraud committed in furtherance of a kickback scheme whereby they received unearned commissions from subcontractors of one of the systems. On appeal of the district court‘s denial of appellants’ motion for release on bail pending appeal, the D.C. Circuit affirmed the district court on the ground that the McNally issue did not raise a substantial question on appeal. The Court‘s analysis—which focused on bottom-line monetary losses in much the same way as did the Seventh Circuit‘s analysis in Wellman—was predicated on the theory that the scheme,
ensured that the ‘negotiated’ cost of the subcontracts was higher than the price at which the subcontractors would haveId. at 558.been willing to contract, and ensured that this higher cost was passed through to the [government] in its cost-plus contract with the prime contractor. The defendants’ scheme caused the [government] to pay more than it need have, so it cannot be said that the cost would necessarily have been paid to some company in the sense that this was true in McNally. In fact, a lesser cost could have been paid to the prime contractor if the defendants had negotiated subcontracts that did not include the cost of bogus marketing agreements and other kickbacks.
Thus, despite the fact that the indictment and the jury charge included classic intangible rights language, see Perholtz, 836 F.2d at 559, the D.C.Circuit concluded that, when taken together and in their respective totalities, the jury charge and the indictment required that the jury find a tangible property loss by the government in order to convict. Id.
III.
A.
Although the outcomes in the post-McNally cases we have discussed vary depending on the facts, indictments, and jury instructions of the particular case, a common thread running through each of these cases can be discerned. While we recognize that cases may fall on either side of the McNally/Carpenter line, those cases that have sustained mail fraud convictions have done so where the “bottom line” of the scheme or artifice had the inevitable result of effecting monetary or property losses to the employer or to the state. This common thread appears despite references in the indictments, proofs, or instructions to violations of intangible rights.
Essentially, therefore, where rights are involved whose violation would lead to no concrete economic harm, and where those rights are the only rights involved in the case, McNally‘s proscriptions would prevent upholding conviction on appeal. Where, on the other hand, a violation of the rights involved would result in depriving another of something of value, and the indictment, the proofs and the instructions are based on that fact, then the presence of intangible rights language will not prove fatal on appeal.
With these precepts in mind, and with the cases which we have discussed as a backdrop, we turn to a consideration of the facts of this case.
B.
Not surprisingly, the government urges us to affirm Asher‘s conviction primarily on the authority of Piccolo, Runnels, Richerson, Wellman and Perholtz, each of which recognized a real or potential property loss and affirmed a pre-McNally mail fraud conviction on that basis.17 The government‘s supplemental brief emphasizes passages from the indictment18 and the jury instructions, both of which contain references to tangible losses by the Commonwealth of Pennsylvania.19 For exam-
Like the indictment, the jury instructions in the instant case disclose a number of references to concrete economic or property losses by the Commonwealth. For example, in defining intent to defraud, the instructions charge that the jury may find such intent if it finds that the defendants sought “to deceive for the purpose of either causing some financial loss to another, or losses of an intangible nature, or bringing about financial gain to one‘s self, or for any of these purposes.” App. at 1523. In describing the objects of the conspiracy to defraud in the jury instructions, as set forth in the indictment, the court stated that “[o]ne object involves a statutory right, and one object involves a property right.” App. at 1538. In summarizing its conspiracy instructions, the district court once again referred to tangible property interests, stating that:
.. Where the statutory duty of refraining from bribery is concerned, or if you find that one of the objects of the conspiracy was to defraud of the tangible savings coming from an impartially awarded contract, you do not have to consider the public official defendant first, but may consider both defendants and find either one or the other, or both, either guilty or innocent, as the facts indicate.App. at 1540-41 (emphasis added).
It is true that the jury instructions in the present case, like those in Piccolo, Perholtz and Wellman, made references to intangible losses incurred by the citizens of the Commonwealth. However, we are unable to hypothesize a set of circumstances under which this jury could have found Asher guilty of depriving the citizens of the Commonwealth of their right to honest government (an impermissible intangible right under McNally) without also having found that Asher was involved in a scheme, the sole purpose of which was to ensure that CTA obtained a no-bid FICA recovery
Thus, every aspect of the charged crime considered by the jury in this case involved some potential tangible loss to the Commonwealth. Indeed, even without regard to the $300,000 bribe promised by Torquato for the CTA contract, the contract itself deprived the Commonwealth of tangible savings that it would have derived from a less expensive agreement.
This is a substantially different set of circumstances from those presented in McNally. McNally did not involve an allegation of lost savings by Kentucky. Moreover, the focal point of the jury instructions in McNally was honest government rather than tangible losses by the State. See McNally, 107 S.Ct. at 2882. Indeed, in McNally, the Supreme Court went to great lengths to point out that no loss whatsoever was suffered by Kentucky. In contrast, Asher‘s scheme in this case obviously involved “‘wronging [Pennsylvania] in [its] property rights by dishonest methods and schemes.‘” McNally, — U.S. at —, 107 S.Ct. at 2881 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924)).
As was true of the Seventh Circuit‘s decision in Wellman, 830 F.2d at 1463, we are satisfied that the government in the instant case could not have proved a violation of intangible rights without simultaneously proving that the Commonwealth of Pennsylvania was deprived of money as the result of the no-bid contract awarded to CTA. Nor does this case present a Runnels situation where tangible losses could only be found by use of a legal (constructive trust) fiction (i.e., the monies paid to Runnels were never intended to be paid to his union). Here, the scheme was clearly aimed at awarding a contract, which would have had the effect of requiring Pennsylvania to bear the burden of an enhanced cost for a service that was available at a substantially lower price.
Thus, the jury in this case could not have found a fraudulent scheme that consisted solely of depriving the citizens of their right to honest government that did not also involve tangible losses by Pennsylvania—losses which were inherent in the scheme for which Asher was convicted. See, e.g., Perholtz, 836 F.2d at 559, discussed supra at 1494.
Because we reject Asher‘s attack on his mail fraud conviction on McNally grounds, there is of course no need to address his ancillary attacks on the conspiracy, perjury and ITAR convictions.
IV.
Asher also argues that the district court‘s instruction to the jury that Asher could be found guilty in his capacity as a “party official,” improperly amended the indictment which charged him in his capacity as a “public official.” App. at 20-22. Asher claims that this instruction constituted reversible error per se because it impermissibly broadened the indictment.
A.
Asher begins his argument by alluding to the language in the indictment that referred to Asher as a “public official,” who was being “influenced in carrying out official acts.” Appellant‘s Brief at 27. Asher points to various general references in the indictment to the defendants as “public officials.” He refers particularly to the perjury count (Count 13), which characterizes Asher as a public official. Count 13 recites:
The above false declaration was material because the indictment then being tried by the District Court and Jury charged that the named defendants conspired to violate the mail fraud statute ... by, among other ways, offering large cash payments and political contributions to elected public officials and the defendant, ROBERT B. ASHER, was at that time apublic official as defined by the applicable law. App. at 55.
For at least three reasons we reject Asher‘s argument. First, notwithstanding the indictment‘s references to the defendants as “public officials,” see, e.g., Count 1 ¶ 3(c)-(g), App. at 20-22, the indictment at its outset clearly identifies Asher as the Chairman of the State Republican Committee of Pennsylvania. The indictment states that “[a]t all times relevant to the indictment, ROBERT B. ASHER was Chairman of the Republican State Committee of Pennsylvania.” App. at 17.
Second, Pennsylvania‘s bribery statute,
Third, the district court went to great lengths to explain Asher‘s position as a party official and to distinguish it from Dwyer‘s position as a public servant. See, e.g., App. at 1539. This instruction was also repeated at a later stage in the charge. See id. at 1544. Moreover, in defining the manner in which the jury should proceed, the court was painstakingly careful to identify and distinguish those rights owed only by a public official from those owed by a party official. See id. at 1540. Finally, the district court, in instructing the jury, explained the bribery statute and its application to both public officials and party officials. See id. at 1531, 1535 and 1537.
In addition, we cannot overlook the fact that the indictment, which was in the jury‘s possession and which was explained in its particulars by the district court, could have left no impression other than that Asher was a party official. Moreover, while Asher‘s perjury count (Count 13) does identify Asher as a public official, it does so in recognition of the fact that Asher was not an elected public official, as were his codefendants, but was, rather, a party official whose activities were the equivalent of a public official‘s under the Pennsylvania bribery statute. See
B.
We are not persuaded by Asher‘s contention that the district court improperly amended the indictment. In order to rise to the level of an impermissible amendment, a variance must act to modify the indictment so that the defendant is convicted of a crime that involves elements distinct from those of the crimes with which he was originally charged. See United States v. Miller, 471 U.S. 130, 142, 105 S.Ct. 1811, 1818, 85 L.Ed.2d 99 (1985); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir.1971). Thus, where “trial evidence [has] ‘amended’ the indictment by broadening the possible bases for conviction from that which appeared in the indictment,” Miller, 471 U.S. at 138, 105 S.Ct. at 1816 (emphasis in original) (quoting Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960)), the variance violates the defendant‘s “‘substantial right to be tried only on charges returned by a grand jury.‘” Id. “If, on the other hand, the variance does not alter the elements of the offense charged, [courts] focus upon whether or not there has been prejudice to the defendant....” United States v. Castro, 776 F.2d 1118, 1122 (3d Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986). Thus, “[c]onvictions generally
As the district court pointed out, the proof on which Asher‘s conviction as a party official was based does in fact correspond to an offense that was clearly identified in the indictment. Asher is alleged to have violated the Pennsylvania bribery statute,
In summary, although the indictment contained a number of technical errors and could have been more accurately drafted, we are satisfied that it clearly distinguished Asher from his codefendants by identifying him as a party official and did not prejudice Asher. See App. at 17. Moreover, the elements of the crimes charged in the indictment are also the elements of the crimes for which Asher was ultimately convicted. The indictment properly gave notice of the crime for which Asher was convicted and was sufficient to allow Asher to plead his conviction as a bar to subsequent prosecutions.
V.
In his final argument, Asher claims that the district court erred by admitting a written statement made by William Smith in early 1984 for purposes of negotiating immunity prior to his own trial in the same year. In that statement, Smith claimed, among other things, that “Robert Asher was our principal aide in getting Dwyer to act.” App. at 1246-47. Smith‘s full statement is set out in the margin.22
A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.Fed.R.Evid. 801(d)(1)(B) (emphasis added).
The government counters by arguing that counsel for both Asher and Dwyer sought to attack Smith‘s credibility at trial, thus allowing for the admission of Smith‘s prior statement under
While the record clearly indicates that Dwyer‘s counsel repeatedly attacked Smith‘s credibility, thus opening the door to the introduction of Smith‘s prior consistent statement with regard to Dwyer, we are not persuaded that Asher‘s counsel joined the attacks made by Dwyer‘s counsel. The record makes clear the fact that Asher‘s lawyer expressly stated at trial that he disagreed with Dwyer‘s lawyer‘s assertions with respect to Smith‘s credibility. See App. at 1419-20, 1411-13, 1424. Thus, it would be inaccurate to attribute Dwyer‘s lawyer‘s statements to Asher‘s lawyer simply by virtue of the fact that Dwyer and Asher were codefendants.
The record in this case thus weighs heavily against the government on this point. Smith‘s testimony with respect to his wife‘s possible indictment was elicited by the government on direct examination, not by Asher‘s counsel. See App. at 1177-1189. Furthermore, Asher‘s lawyer was careful throughout the trial not to attack Smith‘s testimony or to claim that Smith‘s testimony had been recently fabricated. Indeed, Asher‘s lawyer explicitly stated that he believed that Smith had answered questions about Asher truthfully. See App. at 1419-20; 1411-13, 1424; Appellant‘s Brief at 45.
As noted above,
While it is clear that Dwyer‘s attorney sought to discredit Smith at every turn during the trial, it is equally clear that Asher‘s attorney took pains not to do so. Even the district court had misgivings about admitting Smith‘s prior statement, observing that the government might have to “retry this case,” if it insisted upon placing Smith‘s statement in evidence. See App. at 1195. On the basis of the record,
However, in our view the district court‘s admission of Smith‘s statement constitutes harmless error under
Under this standard, we are satisfied that the district court‘s admission of Smith‘s prior statement is harmless. In addition to Smith‘s testimony during Asher‘s trial, see App. at 1148-1200, Smith‘s former attorney, John Rogers Carroll, who had been released from the confidences of the attorney-client relationship, testified as to his discussions with Smith prior to Smith‘s trial. Carroll, who was examined about Smith‘s prior statement, corroborated Smith‘s testimony in much the same way as Smith‘s prior consistent statement did. See App. at 1258-63. For example, Carroll testified as follows:
What Bill Smith said to me was, the Treasurer and he discussing this, at the conclusion of their talk, both of them thought that Mr. Dwyer should discuss how the money should be paid with Mr. Asher. And he said that Dwyer told him he expected to see Mr. Asher at a political picnic that particular weekend which was coming up at the time of their discussion, and that picnic or meeting did not occur but there was a later discussion, at least it came back to Bill from Mr. Asher that his feeling about it was the money should not be split the way Mr. Dwyer suggested but all paid into the State Committee rather than split it. He told me that they commenced their real negotiations with the Treasurer after that point and had a lot of problems with it. Sometime during those negotiations he was begging Asher to communicate with Dwyer to help them out; that Asher assured him from time to time that he was doing so; that on one occasion he mentioned the contribution to Mr. Phenicie and that eventually they got the contract.App. at 1261-62.
Thus, contrary to the views expressed in the dissent, we view it as highly probable that the admission of Smith‘s prior consistent statement did not tip the balance by contributing to the jury‘s judgment of conviction. We therefore hold that even though Smith‘s prior statement may have been erroneously admitted into evidence, its admission did not constitute reversible error. See
VI.
The district court‘s order of March 20, 1987, which denied Asher‘s motion for judgment of acquittal or, in the alternative for a new trial, will be affirmed.
SLOVITER, Circuit Judge, concurring.
I concur fully in Judge Garth‘s opinion. I write separately only because the dissent states that this opinion cannot be reconciled with this court‘s recent opinion in United States v. Boyce, 849 F.2d 833 (3d Cir.1988), and an opinion that I authored for the court in Holland v. Attorney General of New Jersey, 777 F.2d 150 (3d Cir.1985), which
Whether a trial court‘s error is harmless is a fact-specific judgment. Judge Garth has fully explained why the majority has concluded that the admission of evidence that does not satisfy
The Supreme Court “has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Even when there is error implicating the Constitution, “if the defendant had counsel and was tried by an impartial adjudicator there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis.... Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986). As Judge Higginbotham pointed out in Grayson, “[s]ince the challenged [error] affected no possible constitutional right, we are not required to find that any error ... was harmless beyond a reasonable doubt.” 795 F.2d at 290.
As far as I know, no member of this court has been “reticent to recognize prejudicial error.” Dissenting op. at 1501. Moreover, the Supreme Court‘s admonitions prevent us from “routinely” so finding. Id. This court has conscientiously applied the harmless error doctrine under the facts of each case, and I am confident will continue to do so irrespective of the particular defendant or the crime charged.
A. LEON HIGGINBOTHAM, JR., Circuit Judge, concurring in part and dissenting in part.
Although the majority believes the primary question before us is the effect of United States v. McNally upon appellant‘s mail fraud and related convictions, I am convinced that a principled approach to this appeal begins and ends by assessing the only aspect of this appeal that clearly bears upon every count of appellant‘s convictions: the propriety and effect of the district court‘s decision to admit into evidence a prosecution witness‘s prior hearsay statement. Along with the majority, I conclude that the district court abused its discretion when it permitted the prosecution witness, whose credibility had not been attacked by appellant, to read his prior statement into evidence against appellant. Unlike the majority, however, I am convinced that the government has failed to demonstrate that this error was harmless.
I must note that in this case the Court seems more reticent to recognize prejudicial error than it does routinely in other cases. Just two weeks ago in United States v. Boyce, 849 F.2d 833, 837 (3d Cir. 1988), this Court held, in ordering a new trial, that the introduction of a hearsay statement of a co-defendant “was the linchpin in the evidence forming a central and cohesive bridge between the circumstantial evidence and the identity of Boyce as a participant in the burglary.” In the instant case, the evidence improperly used by the same U.S. Attorney was also a “linchpin in the evidence forming a central cohesive bridge” against Asher. Robert B. Asher should have the same rights as alleged
I. THE EVIDENCE PRESENTED AND THE PROCEDURAL HISTORY OF THIS MATTER
Because my position is based upon an evidentiary issue, I will, recognizing that what follows repeats parts of the majority‘s factual account, set forth the salient facts of this prosecution in some detail. I do so to illustrate the relatively “thin” nature of the government‘s criminal case against appellant, a fact that is minimized in the majority‘s account of the trial testimony and is of great significance in determining that the evidentiary error was not harmless.
Appellant Robert B. Asher, who was Chairman of the Republican Party of Montgomery County, Pennsylvania, was elected Chairman of the Republican Party of the Commonwealth of Pennsylvania in 1983. Shortly thereafter, he received a call from William T. Smith, who was then an attorney in private practice and the Republican Party Chairman of Dauphin County, Pennsylvania. Smith was calling on behalf of a client, John Torquato, Jr., whose company, CTA, Limited (“CTA“), specialized in the business of recovering overpaid Social Security taxes (“FICA“) for employers and employees. Smith was seeking Asher‘s assistance in arranging a meeting between Torquato and Robin Ross, a representative of Richard Thornburgh, who at that time was Governor of the Commonwealth of Pennsylvania. When Asher learned that Ross was not available, he set up a meeting between Torquato and John Pierce, who also worked for the Governor.
On the day of the meeting with Pierce, Smith and Torquato first stopped at Asher‘s office in Harrisburg. They explained to Asher how FICA recovery provided an easy—and, to the Governor, a politically beneficial—way for Pennsylvania to recover a significant amount of money for itself and its state employees. Smith and Torquato expressed to Asher their hope that the Governor‘s office would award CTA the contract to perform such recovery. At Asher‘s trial, Torquato, who testified as a government witness, claimed that, during this meeting with Asher, Smith specifically mentioned that CTA would make a $300,000 campaign contribution if it was awarded the contract. Smith, however, who also testified for the government, denied that precise figures were mentioned at this meeting with Asher and added, moreover, that it was Torquato who had mentioned
As the majority notes, Smith and Torquato next met with Asher in March 1984. At this meeting, Asher chastised Smith for having recently offered money to R. Budd Dwyer, the Treasurer of the Commonwealth of Pennsylvania, but there was conflicting testimony at trial concerning how and when Asher had acquired his information about this offer. Torquato testified that he and Smith were, at the time of this meeting, the ones who informed Asher that Smith and Dwyer had previously agreed that CTA would make “contributions” of $300,000 ($100,000 to Dwyer, $100,000 to Dwyer‘s reelection campaign and $100,000 to the state Republican Committee) to secure the FICA recovery contract. Smith testified, to the contrary, that Asher had learned before this meeting of Smith‘s offer to Dwyer, and that Asher was the one who brought it up. Torquato and Smith agreed, however, that Asher was upset, that he told them that they and Dwyer could go to jail for what they were proposing to do, and that Asher said that contributions, if there were to be any, should go to the state Republican Committee.
After this meeting, Smith called Asher on numerous occasions, seeking his aid in getting Dwyer to sit down with CTA to negotiate the contract.3 In addition, Torquato and Smith met with Asher on one other occasion. At that time, Smith and Torquato discussed the difficulty they were encountering as they tried to get Dwyer to sit down with them and negotiate the FICA recovery contract.
Dwyer, without soliciting competitive bids, awarded the statewide teacher FICA recovery contract to CTA on May 10, 1984.
In July 1984, the FBI began investigating CTA and the awarding of this contract. Thereafter, Torquato decided to cooperate with the government and pleaded guilty to one count of conspiracy. Smith, who had been indicted in the meantime, attempted to negotiate immunity from prosecution in exchange for his cooperation. The government refused to give Smith immunity and insisted that he plead guilty to a felony count. Smith refused and went to trial, where he took the stand in his own defense and denied offering campaign contributions to Dwyer or to Asher. Asher and Dwyer testified for the defense at Smith‘s trial. Smith ultimately was convicted and sentenced to twelve years in prison. Thereafter, the government threatened to indict Smith‘s wife and law partner, Judy Smith. At that point, Smith agreed to cooperate with the government in exchange for its promise not to prosecute his wife and in the hope of reducing his own sentence.
The prosecution of Asher and Dwyer then commenced. They were tried together in Williamsport, Pennsylvania. On December 18, 1986, the jury returned guilty verdicts against each defendant on the con
II. THE ERRONEOUS ADMISSION OF SMITH‘S PRIOR STATEMENT
A. Factual and Legal Background
In December 1984, William Smith, who was under indictment for conspiracy, mail fraud and ITAR, gave his attorney a written offer of proof. This typed statement, which had been prepared by Smith‘s wife from his handwritten notes, Jt.App. at 1187-88, was for Smith‘s attorney to use in immunity negotiations with the government. See Government Exhibit 119, reprinted in Jt.App. at 1246-47. In the statement, Smith admitted, inter alia, offering campaign contributions to Asher and Dwyer. Id. The most damaging portion of the statement concerning Asher was its fourth paragraph, which referred to him as CTA‘s “principal aide in getting Dwyer to act.” Id. at 1246. At Smith‘s own trial in 1985, he contradicted the contents of this earlier written statement when he testified that he had never offered contributions to anyone.4
In 1986, when Smith testified for the prosecution at Asher‘s trial, the government sought to neutralize the potentially negative impact of Smith‘s prior testimony upon his credibility as a witness by introducing, as a prior consistent statement, his original written offer of proof to the government.
Smith‘s prior statement had been made available to Asher‘s defense through pretrial discovery, and it was the subject of a motion in limine that was filed, opposed and denied without prejudice shortly after Asher‘s trial began.5 Jt.App. at 7-8 (docket sheet); Brief of Appellee at 37 n. 26. At trial, Asher, but not Dwyer, objected to the admission of Smith‘s statement.6 The district court, which had previously received legal memoranda from both parties, heard additional arguments on this issue at a side bar conference. Asher argued to the district court, as he does on appeal, that the introduction of Smith‘s original written statement as substantive evidence against Asher was erroneous and prejudicial.
The district court overruled Asher‘s objections, Jt.App. at 1195, 1197, and allowed Smith, on redirect examination by the government, to read into evidence his prior written statement, including the key line that identified Asher as CTA‘s “principal aide in getting Dwyer to act.” Id. at 1195, 1197.
The district court admitted Smith‘s prior written statement as substantive evidence against both Asher and Dwyer under
[a] statement is not hearsay if — ... [t]he declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant‘s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....
On this difficult evidentiary issue,7 the panel is in agreement that the district court abused its discretion because the government was not entitled to put Smith‘s statement into evidence against Asher. This conclusion has both legal and factual components. The legal component, on which our standard of review is plenary, involves the interpretation of Rule 801(d)(1)(B). The majority concludes, albeit implicitly, that, under the rule, credibility attacks on a witness by one defendant do not suffice to
B. Asher‘s, Not Dwyer‘s, Is The Defense That Counts
The plain terms of Rule 801(d)(1)(B) indicate that the first prerequisite to the introduction of a witness‘s prior statement is that the statement must be offered to rebut an attack on the witness‘s credibility. In this case, the record demonstrates that Paul J. Killion, Dwyer‘s trial attorney, directly and vigorously attacked the credibility of the trial testimony offered by the government‘s cooperating witness, William Smith. Thus, when the United States Attorney, on redirect examination, asked Smith to read into evidence those portions of his prior statement that concerned Dwyer, it is not surprising that Killion raised no objection. See Jt.App. at 1189. As the district court noted in passing, there was simply “[n]o question about Mr. Killion and Mr. Dwyer” having opened the door to the admission of such evidence. Id. at 1192.
The threshold issue that concerns us here—whether the statement was admitted to rebut a particular party‘s “express or implied charge of recent fabrication or improper influence or motive“—has not been contested in any case in which this Court has dealt with the admission of a witness‘s prior statement under Rule 801(d)(1)(B). In Provenzano, however, where the appeal arose from the prosecution of multiple defendants, this Court found that the witness‘s prior consistent statement was “relevant to rebut the defense claim —express or implied—that [the witness] was lying against all the defendants in return for benefits from the Government.” 620 F.2d at 1001 (emphases added); accord United States v. De Peri, 778 F.2d 963, 977 (3d Cir. 1985) (one-defendant trial; witness‘s prior statement was offered, “[o]n re-direct examination, to rebut defense counsel‘s implied charge that [the witness] constructed [] his story as a bargaining chip when [he] sought immunity from prosecution“) (emphasis added), cert. denied sub nom. Pecic v. United States, 475 U.S. 1110 (1986) and sub nom. Katz v. United States, 476 U.S. 1159 (1986).
Provenzano and De Peri demonstrate a clear concern on the part of this Court to note exactly who made the accusation that prompted the prosecution‘s introduction of a witness‘s prior statement,10 and to admit such a statement only against a defendant who has opened the door to such rebuttal evidence. In doing so, these decisions properly recognize that personal triggering is a prerequisite to the admission of a witness‘s prior statement under Rule 801(d)(1)(B) against a party. In other words, the prior consistent statement of a
I recognize that, in the context of a criminal trial with multiple defendants, one defendant‘s attacks on the credibility of a government witness may redound to the benefit of the codefendants.11 The theoretical possibility of such free riding does not, however, call for an unprecedented and open-ended reading of Rule 801(d)(1)(B). Indeed, an argument that our decision gives Asher, on the one hand, the benefit of Dwyer‘s attack on Smith‘s credibility while, on the other hand, allowing Asher to exclude Smith‘s prior statement simply by stating that Asher, after all, was not the one alleging fabrication by Smith, would, as Judge Newman once wrote, “ha[ve] things backwards....” United States v. Figueroa, 618 F.2d 934, 940 (2d Cir. 1980).
It is the Government that is trying to enjoy the benefit of having put [Asher] on trial with [his] co-defendant[] and then offering evidence against him on grounds available, if at all, only as to his co-defendant[]. The advantages to the prosecution of a joint trial do not include that maneuver.12 Id.
Having explained why, as a matter of law, Smith‘s prior statement was not admissible against Asher merely because Dwyer attacked Smith‘s credibility, I will now turn to the next step in the argument, which is the factual aspect of this appeal. Although the majority brushes by many of the government‘s factual arguments, I believe that a court that is often the court of last resort owes both sides a fuller explanation of its reasoning. Accordingly, I will examine the trial transcript to determine whether the district court was clearly erroneous in finding that Asher, through his attorney, made a direct or implied charge that Smith‘s trial testimony was recently fabricated or otherwise improperly influenced or motivated.
C. Asher‘s Defense Did Not Include The Requisite Attack on Smith‘s Credibility
1. Hundley‘s Opening Statement
The government‘s most direct argument that Asher did attack Smith‘s credibility is based upon the opening statement of William G. Hundley, Asher‘s attorney, which told the jury that
you‘re going to hear, as you‘ve heard already from Mr. West, [the United States Attorney], you‘re going to hear a lot of evidence about how Smith and Torquato came in with the evil intent of corrupting the Commonwealth of Pennsylvania. Certainly we‘re not disputing that at all[,] that these two now convicted felons did this, and that as Mr. Killion indicated, you should view their testimony with great suspicion.... Please, you‘re going to hear a lot of things about what these two convicted felons[, i.e., Torquato and Smith,] did in Pennsylvania which you‘re not going to like and you shouldn‘t like.... All I ask you to do is don‘t let that influence your decision, your judgment of Robert Asher.
Jt.App. at 141-42. While this passage may be construed as a promise of a forthcoming
In addition, even if an opening statement could open the door to the admission of a witness‘s prior statement, the record does not support an inference that this was such a case. At the time Hundley made the quoted opening statement, he knew only that Torquato and Smith were cooperating with the government and had agreed to testify against Asher and Dwyer. He did not know—and could not have known—what specific testimony each of these prospective witnesses would offer against each of the defendants. Discovery had alerted Hundley to the fact, however, that Smith‘s story was much more favorable to Asher than was Torquato‘s. Accordingly, Hundley told the jury, just minutes before he made the portion of his opening statement quoted above, that
in this case there will really only be two witnesses against Mr. Asher. Those two witnesses will be Mr. Torquato and Mr. Smith, ... and there is going to be substantial contradictions [sic] between the two Government witnesses, Torquato and Smith....
Jt.App. at 133-34. Hundley also noted, referring back to the prosecutor‘s opening statement, that “Mr. West ... has a prob
2. Hundley‘s Cross-Examination of Smith
a.
Hundley began his cross-examination by explaining to Smith the guideline that would govern the questioning: “All right, sir. I want to ask you some questions, and we‘ll try to confine my questions strictly to the testimony you‘ve given about my client, Mr. Asher.” Jt.App. at 1100. The record indicates that much of Hundley‘s questioning drew out Smith‘s neutral, and in many instances favorable, testimony. One example is a line of questions concerning Torquato‘s practice of sending Asher copies of CTA FICA recovery proposals and related correspondence prepared by CTA:
Q. Now, about the same time [as the Torquato-Smith-Pierce meeting,] we‘ve had testimony that a copy of the proposal was sent to Mr. Asher, is that correct, sir?
A. I didn‘t testify to that. I believe that Mr. Asher got a copy of it, yes. And that came from John Torquato.
Q. Did you instruct Mr. Torquato to send that proposal?
A. No, I didn‘t.
Q. Did you ever instruct Mr. Torquato that Mr. Asher should be cc‘d on this various correspondence?
A. No, that was Mr. Torquato‘s doing.
Q. Did you ever instruct Mr. Torquato that blind cc‘s should be sent to Mr. Asher?
A. No.
Q. Did Mr. Asher ever ask you to have all this correspondence and proposals sent to him?
A. No. He never mentioned to me that he was receiving it.
Q. It‘s your testimony, sir, that it was just Mr. Torquato who on his own decided to send these proposals, blind cc‘s, letters to Mr. Asher?
A. No. My testimony is that I didn‘t ask him to do it and didn‘t know how it happened.
Q. You‘re quite correct, sir.
Id. at 1115-16. Another example is Hundley‘s final question concerning the first Torquato-Smith-Asher meeting (the one that moved Asher to set up a meeting for Torquato and Smith with a representative of the Governor‘s office):
Q. So would it be fair to say, sir, that the sum result of your first meeting with Mr. Asher on FICA recovery for state employees was that he set up one meeting with Mr. Pierce?
A. Yes.
Id. at 1118. A final, and perhaps the most indicative, exchange occurred when Hundley questioned Smith about the March 1984 meeting between Torquato, Smith and Asher:
Q. Now, you testified on direct that at some point during this meeting, and I‘m trying to quote your testimony accurately[,] that an angry and upset Mr. Asher chastised you?
A. Yes, he did. He was upset that I would make an offer of a contribution to Mr. Dwyer while we were negotiating a contract with him.
[H]e indicated that he had had a conversation with Mr. Dwyer, and he knew that I had made an offer to him of a $300,000 contribution, and then he was very angry when he began to talk about that, angry with me. Said he thought I knew better than to offer a contribution to Mr. Dwyer, and he said if there was going to be a contribution, it was going to go to Republican State Committee.
Q. Was he in essence telling you that it was wrong for you to have offered a bribe?
A. I believe that he was saying it was wrong for me to have offered that. He didn‘t use the word bribe. He used the word contribution.
Q. He did say—warn you that if you did it that way, you could go to jail?
A. He didn‘t want to see anybody go to jail.
Q. He didn‘t want to see anybody go to jail.
A. He didn‘t say, Smith, you‘re going to jail for that. He said I don‘t want to see anybody going to jail, and there will be no contribution to Dwyer.
Q. But the one that he was principally chastising and lecturing, if I could use that paraphrase, was you?
A. Absolutely.
Q. And as far as you were concerned[,] after you had received this very stern warning and jail lecture, was that the end of any bribe offers as far as you were concerned?
A. I felt very bad about that. I felt bad from the moment I talked to Mr. Dwyer. It was a very, very upsetting period of time for me. Although when we went out of the meeting, Mr. Torquato[,] instead of saying we‘re not going to give anybody any contributions or we‘re going to give contributions to the State Committee, he said, well, we‘re in a fix now. We owe them each 300,000 big ones.
Q. Now, your testimony though, sir, is that after Mr. Asher chastises you on this matter that he says if there‘s going to be any campaign contribution, it‘s going to come to the State Committee, right?
A. Yes.
Q. And I noticed that in all of your [statements to the FBI] and your Grand Jury testimony and all of your prior statements to the government, you had always said that that [was] what Mr. Asher said[,] that if there‘s going to be any campaign contribution, it goes to the State Committee?
A. Yes, that‘s what he said.
Q. And isn‘t it a fact, sir, that after Mr. Asher had chastised you and had said that he didn‘t want anybody going to jail and that if there was going to be any campaign contribution, it would come to the State Committee, that that was the last time that he ever mentioned that campaign contribution to you?
A. That was the last time he ever mentioned it to me, and I never mentioned it to him.
Id. at 1121-25.
Although there are obvious limits to a reviewing court‘s ability to determine, merely by reading the pages of a trial transcript, the thought processes of a lawyer conducting cross-examination, the only plausible inference—supported both by the extensive passages I have quoted, and by other testimony that my colleagues and I have read—is that Smith‘s testimony set forth a version of events that Asher, via Hundley, thought he could explain to the jury, justifying Asher‘s conduct as politically motivated but not criminal. Thus, at the commencement of Hundley‘s re-cross-examination, nothing in the record indicates that he was attacking Smith‘s credibility. The questions, rather, reiterated what already had been established:
Q. And I cross examined you at some length yesterday afternoon strictly about my client, Mr. Asher. Is that a fair statement, sir?
A. I would say that your questions were directed about Mr. Asher‘s involvement in this case, yes.
Q. Right. And is it not a fact that you answered all of my questions about Mr. Asher‘s involvement, as you say, truthfully?
A. Yes. Yes, I have.
Q. And sir, until I cross examined you in behalf of my client yesterday, had I ever talked to you about this case or the evidence in this case?
A. No, sir, you never talked to me about the case. We had about two brief handshake discussions in Mr. West‘s office.
Jt.App. at 1222. Indeed, at the end of re-cross-examination, Hundley asked ques
Q. Is basically what you‘ve testified to about Mr. Asher in this trial?
A. Yes.
Q. All right. And your testimony is that you have testified truthfully about Mr. Asher in this trial.
A. Yes.
Q. And your further testimony is that you answered all of my questions about Mr. Asher truthfully.
A. Yes.
Q. All right. MR. HUNDLEY: That‘s all I have, Your Honor.
Id. at 1230.
The trial transcript, read as a whole, therefore provides no basis for an inference that Hundley‘s cross-examination attacked Smith‘s credibility or implied that Smith had recently fabricated his testimony. I now turn to the specific arguments to the contrary that have been asserted by the government.
b.
The government‘s first claim is that questions concerning the presence of other people at Smith‘s meetings with Asher, see, e.g., Jt.App. at 1108, 1121, implied that the Smith-Asher meetings were innocent ones; that implication, in turn, is claimed by the government to be inconsistent with Smith‘s trial testimony. The claim that Hundley‘s questions made such an implication may, to a degree, be correct. The argument goes no further, however, because any such implication would be consistent with Smith‘s testimony concerning those meetings; the questions, in other words, did not impeach any of Smith‘s testimony at Asher‘s trial. In addition, it was the prosecutor, on direct examination of Smith, whose questions elicited testimony concerning the presence of other people during the Smith-Asher meetings. Jt.App. at 739-40, 795. In general, I fail to understand how cross-examination that replicates direct examination can constitute a claim that a witness is fabricating his or her testimony.15
The government‘s second claim is more powerful. It focuses upon Hundley‘s questions of Smith concerning the assurances that he had given to Asher prior to Smith‘s trial. The government claims that these questions—which elicited admissions that Smith had told Asher that Smith would be taking the stand in his own defense, see Jt.App. at 1141-43, and that Smith had “always take[n] a position with Mr. Asher that [Smith] had done no wrong, and [Asher] said he did [sic] no wrong,” id. at 1145—were designed to imply that Smith told the truth at his own trial and, thus, that he was lying at Asher‘s trial. I conclude that it would be clearly erroneous to draw such a complex inference from this opaque portion of the trial record. Hundley, following up on part of West‘s direct examination, did ascertain that a Smith-Asher conversation in a Holiday Inn parking lot the night before Smith‘s trial was “a chance meeting,” id. at 1141, but Hundley‘s questioning immediately thereafter was concerned with the assurances that Smith gave to his own attorney. Id. at 1142-45. Moreover, the government‘s claimed implication of fabrication is not supported by anything in the clarifying, and concluding, line of questioning that followed:
Q. I believe, sir, you testified that your attorney advised you to testify.
A. He came up here [to Williamsport]. And [my attorney and his partner] talked to me about some recent [Supreme] Court decisions that said that I would have to tell the truth on the stand. And I told them that I was—the story I was going to tell was going to be the truth, when, in fact, it was not.
Q. Mr. Smith, how did you reconcile this with the proffers that [your attorney] had been making to Mr. West?
A. How did I reconcile that with that?
Q. Yes.
A. I told them that that was not true, the proffers were not true, the night before I testified.
Q. You told [your attorney] that the proffers were not true?
A. Yes, the night before I testified.
Id. at 1150-51. This line of questioning did no more than establish the sequence of events that preceded Smith‘s decision to testify at his own trial.
The government‘s third claim is that Hundley, by mentioning during cross-examination the existence of Smith‘s prior statement, opened the door to its introduction as substantive evidence for the prosecution. This argument is predicated solely upon speculation about Hundley‘s intent in making a number of passing references to the statement, and it is not supported by anything that Hundley actually said. Hundley made no reference to the contents of Smith‘s prior statement and did not ask Smith whether his prior statements to the government were consistent with the direct testimony that he was in the process of giving at Asher‘s trial. Indeed, as we read the transcript, the only permissible inference is that Hundley curtailed his questioning in this sensitive area. By only mentioning the existence of Smith‘s proffer, Hundley did nothing to give the government a basis for introducing that prior statement into evidence.
The government‘s fourth claim is that Hundley, through a passing reference to the government‘s threat to indict Smith‘s wife, implied that he had a motive to lie. This argument has no merit. The “slip” by Hundley that this argument relies upon occurred in the brief that Asher filed with this Court, not in Hundley‘s cross-examination of Smith at trial. See Brief of Appellee at 40-41 (quoting “Page 12 of Defendant Asher‘s Brief“). By contrast, the trial transcript reveals that there was no mention of the threat to indict Judy Smith in Hundley‘s cross-examination of William Smith.16
с.
To summarize this factual analysis, a thorough review of the trial transcript convincingly indicates that there is record support for only one reasonable inference: Hundley was scrupulously careful not to attack Smith‘s credibility. This is true is as a general matter, and the government‘s specific arguments to the contrary, focused upon particular passages of Hundley‘s cross-examination of Smith, each lack merit. The record discloses no evidentiary basis for the district court‘s finding that Asher‘s attorney implied that Smith‘s testimony was a recent fabrication. Thus, as to Asher, the panel is in full agreement that
D. Admission of Smith‘s Prior Statement Was Not Harmless Error
At this late point in the evidentiary analysis, the majority and I part company. The Federal Rules of Criminal Procedure provide that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
The government‘s only specific argument concerning harmlessness, which the majority accepts, is a brief and undeveloped allegation that Smith‘s prior statement was cumulative to the testimony of John Rogers Carroll. Carroll was Smith‘s trial attorney. Once Smith began cooperating with the government, he released Carroll from the ethical constraints and confidences of their attorney-client relationship. Carroll thus testified for the government at the trial of Asher and Dwyer.
Carroll‘s testimony fails adequately to support the government‘s contention that the admission of Smith‘s prior statement did not prejudice Asher‘s rights. As an initial matter, it is significant that Carroll‘s testimony at trial occurred after the district court overruled Asher‘s objection and permitted Smith to read his prior statement into evidence.18 Further, apart from this obvious problem of sequence, Carroll‘s testimony fell far short of providing the kind of “formidable array of other evidence,” United States v. Engler, 806 F.2d 425, 430
Two undisputed facts explain why the government is, in this case, unable to meet its burden of showing that the introduction of Smith‘s prior statement did not prejudice Asher. One is the fact the Smith‘s prior statement, Government Exhibit 119, was transmitted to the jury during its deliberations along with all the trial exhibits. Memorandum Of Points And Authorities In Support Of Motion of Defendant Asher For Judgment Of Acquittal Or, In The Alternative, For A New Trial at 24, reprinted in Jt.App. at 1632. The fact that Smith‘s written statement was physically available, on paper in the jury room, for the jury to consider during its deliberations is enough to view it as playing a significant role in the jury‘s determination.20
The other salient fact that refutes the government‘s harmlessness contention is the graphic and forceful way that Smith‘s prior statement was argued to the jury in the government‘s closing argument.21 The U.S. Attorney called the jury‘s attention to this crucial evidence as follows:
[W]ay back when in 1984 [Mr. Smith] had told the truth to Mr. Kleckner and to Mr. Carroll[, his attorneys,] and it had been conveyed to the FBI one Saturday
morning in a U.S. Attorney‘s Office and Ladies and Gentlemen that truth is frozen at that point in time. Smith and Torquato are the window dressing, Ladies and Gentlemen, but you also know when they made their statement the first time, Government Exhibit 119, Mr. Smith, and his attorney testified he said this as early as October, his offer of proof....
Jt.App. at 1354, 1400 (emphases added). At this point in his summation, United States Attorney West began to read to the jury, word-for-word, from Smith‘s prior statement, including the allegation that “Robert Asher was our princip[al] aid[e] in getting Dwyer to act.” Id. at 1401. When West concluded reading from the statement, he again told the jury that, “Ladies and Gentlemen, that is caught in time just like those exhibits....” Id. at 1401-02 (emphasis added).
In these circumstances, I have no confidence at all, let alone the required “sure conviction,” that the erroneous admission of evidence did not prejudice Asher‘s rights. Smith‘s hearsay statement is exactly the kind of evidence—a damning piece of paper, available in the jury room throughout the period of deliberation—that the jury may have seized upon as a decisive factor in convicting Asher on the various counts. In addition, the government reiterated and emphasized this inadmissible evidence as a central theme of its closing argument. Although Smith‘s prior statement concerning Asher was brief, it became a cornerstone of the government‘s case against him. With the cornerstone removed, Asher‘s convictions cannot stand.22
III. CONCLUSION
For the foregoing reasons, I believe that the government has failed—by a margin that is not even close—to bear its burden of demonstrating that the evidentiary error at appellant‘s trial was harmless. Accordingly, I vote to vacate his conspiracy conviction, his mail fraud convictions, his ITAR convictions, his perjury conviction and the sentences and fines imposed on all counts, solely on the ground that prejudicial hearsay evidence was illegally admitted into evidence against him.23 I respect-fully dissent from those portions of the majority‘s opinion that are inconsistent with this approach.
Because, in my view, Asher is legally entitled to complete relief on the evidentiary aspect of his appeal, there is no need to address Asher‘s remaining, independent, claims (1) that the jury charge improperly amended the indictment, and (2) that each of his convictions was based upon a scheme to defraud the public of its “intangible” right to a public official‘s loyal, faithful and honest services, which scheme, since McNally, is not encompassed by the federal mail fraud statute.
Notes
On cross-examination, Smith indicated that his calls to Asher were largely unproductive:Under the Federal Social Security Act workers employed by state and local governments can be covered by Federal Old-Age and Survivors Disability and Supplemental Income Benefits (Social Security) by a contractual agreement entered into between the state and federal government. The Commonwealth of Pennsylvania entered into such a contractual agreement with the Federal Government on August 20, 1952.
* * * * * *
Under guidelines set up by the Social Security Administration (Social Security Ruling 79-31), the FICA tax does not have to be paid on payments made to employees of state and local governments pursuant to a specific plan providing for payments because of sickness (as opposed to a continuation of wages in spite of sickness). If the state or local governments mistakenly made payments of FICA taxes for such periods a credit can be claimed for such payments against future FICA taxes with a resulting refund of overpaid FICA taxes to the involved employees. This procedure is known as a FICA recovery.
* * * * * *
The defendant corporation[] ... [CTA was] in the business of preparing and submitting FICA recoveries on behalf of state and local governments. This service was performed pursuant to contract entitling the defendant corporations to a fee based upon the amount of the FICA recovery obtained. App. at 15-17.
Q. Now, sir, you had testified on direct that you had had several contacts with Mr. Asher after this meeting by telephone and whatnot, and I believe you testified ... that you weren‘t going to Mr. Asher for help, but that you wanted him to see if he could get Mr. Dwyer to sit down and negotiate with you, is that correct, sir?
A. Help in getting him to sit down and negotiate. I didn‘t want him to go in there and negotiate for us. I wanted him to help us to get Mr. Dwyer to come in and negotiate with us.
Q. You also I believe testified on direct that you felt that Mr. Asher became irritated with you, and that you were becoming sort of a pest to him on this, is that correct?
A. Yeah, I was a pest. I pestered him. I don‘t know if I was a pest. I pestered him.
Q. What caused you to reach that judgment[,] that Mr. Asher thought you were becoming a pest and whatnot?
A. Well, a couple of times it took me awhile to get to him.
Q. ... In all of these contacts where you‘re pestering him, asking him to see if he can get you a meeting so you can negotiate with Mr. Dwyer, he never even mentions this campaign contribution?
A. Never even, he just didn‘t.
Q. Never did after that one meeting?
A. No.
Joint Appendix (“Jt. App.“) at 1125-27.Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... knowingly causes to be delivered by mail according to the direction thereon ... any ... matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.For instance,18 U.S.C. § 1341 .
However, even in the face of such criticism, every lower federal court that had been called on to consider the issue had recognized the application of the intangible rights doctrine under the mail fraud statute. See The Supreme Court, 1986 Term—Leading Cases, 101 Harv.L. Rev. 119, 329-330 & n. 4 (1987).
Of course, this will not always, or even often, be the case. In this prosecution, for example, where Asher and Dwyer were tried together, Smith‘s testimony for the government supported reasonable inferences that were harmful to Dwyer and exculpatory to Asher. Thus, to the extent that Dwyer succeeded in impeaching the credibility of government witness Smith, the jury might have concluded that Asher‘s conduct was more culpable than Smith‘s testimony indicated on its face.Jt.App. at 1279.[T]he [witness‘s] reference ... did fall within the ambit of what was opened up on cross by Mr. Hundley, but I am concerned about having it held in any way attributable to Mr. Killion‘s examination, and it worries me that his client is going to get tagged with something that came up not of [Killion‘s] volition but rather from Mr. Hundley‘s volition and so for that reason I‘m going to sustain Mr. Killion‘s objection.
When a person is being paid a salary for his loyal services, any breach of that loyalty would appear to carry with it some loss of money to the employer—who is not getting what he paid for. Additionally, “[i]f an agent receives anything as a result of his violation of a duty of loyalty to the principal, he is subject to a liability to deliver it, its value, or its proceeds, to the principal.” Restatement, (Second) of Agency § 403 (1958). This duty may fulfill the Court‘s “money or property” requirement in most kickback schemes.McNally, 107 S.Ct. at 2890-91 n. 10 (Stevens, J., dissenting). The Runnels Court relied on the theory expressed in footnote 10 in upholding Runnels’ conviction. See 833 F.2d at 1186-92. In the context of an unrelated argument that no member of this panel finds it necessary to reach, the government‘s brief mentions its right to impeach its own witness. See
The government‘s final claim deserves special mention. That Hundley “used the witness Smith to impeach Torquato‘s testimony concerning whether or not the dollar figure of $500,000 had been mentioned at the first Asher meeting and $300,000 at the 1985 Asher meeting,” Brief of Appellee at 39, exemplifies the exact point of Asher‘s appeal. Much of Smith‘s testimony was, at least in comparison to Torquato‘s testimony, favorable to Asher‘s claim to have committed no crime. That is the reason why Hundley “used the witness Smith to impeach,” as opposed to impeaching him.
Moreover, the Secretary of the Budget for the Commonwealth of Pennsylvania, Robert Bittenbender, testified that an in-house recovery of overpaid FICA taxes on behalf of state employees had been accomplished on behalf of all state employees by using state computers at an estimated cost of $200,000. Bittenbender also testified that he would have made the employees who worked on this project available to the Treasury Department, had he been asked to do so. See TR of Nov. 25, 1986 at 165-81.
Thus, the record contains a plethora of government evidence demonstrating the potential savings the Commonwealth would have received had the FICA recovery contract not been awarded to CTA on a no-bid basis. These potential monetary savings by the Commonwealth were made evident during the trial and clearly support the government‘s claim that tangible losses by the Commonwealth would have resulted from the scheme devised by Asher and his co-conspirators had the scheme succeeded.
See United States v. Pendas-Martinez, 845 F.2d 938, 941 (11th Cir. 1988) (“It is an abuse of discretion ... to admit into evidence and send to the jury room government agent case summaries which constitute a written summary of the government‘s theory of the case.“); United States v. Brown, 451 F.2d 1231, 1234 (5th Cir. 1971); United States v. Ware, 247 F.2d 698, 701 (7th Cir. 1957) (“The error ... was compounded by the fact that the jury was permitted, over objection by the defendant, to have the exhibits in the jury room during its deliberations. The jury thus had before it a neat condensation of the government‘s whole case against the defendant. The government‘s witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant‘s detriment, or had but a very slight effect.“); EEOC v. Colgate-Palmolive Co., No. 81 Civ. 8145 (S.D.N.Y. Feb. 3, 1986).(a) Offenses defined.—A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: (1) any pecuniary benefit at consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient; (2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or (3) any benefit as consideration for a violation of a known legal duty as public servant or party official.See generally Rainey v. Beech Aircraft Corp., 784 F.2d 1523, 1528 (11th Cir.) (“defendants were able to capitalize on the improper admission of [opinion evidence] by highlighting the opinions to the jury during closing argument“), vacated, 791 F.2d 833 (11th Cir. 1986), reinstated on rehearing en banc, 827 F.2d 1498 (11th Cir. 1987), cert. granted, U.S. —, 108 S.Ct. 1073, 99 L.Ed.2d 233 (1988); United States v. Reynolds, 715 F.2d 99, 105 (3d Cir. 1983) (“In this case there is much more than the mere risk of prejudice.... There is actual prejudice. Here, the powerfully incriminating hearsay statement was admitted into evidence ... and offered again by the government in its closing argument to the jury as circumstantial evidence....“); United States v. Palumbo, 639 F.2d 123, 128 (3d Cir.) (error was not harmless where, inter alia, “hearsay testimony ... was impermissibly commented on by the prosecutor during cross examination and in his closing“), cert. denied, 454 U.S. 819 (1981); cf. generally United States v. Zarintash, 736 F.2d 66, 72 (3d Cir. 1984) (where “the Government in its summation did not mention, let alone stress,” the evidence that was admitted in error, its admission was harmless).18 Pa. Cons. Stat. Ann. § 4701 (Purdon 1983) (emphasis added).
Senator John J. Shumaker in December 1983 accepted a 50-50 partnership with me for the help he would give CTA LTD in passing the legislation. He asked me to give him a short memo on FICA recovery which I did (Memo in file). Brad Shopp (Judy‘s brother) who is Shumaker‘s Administrative Assistant heard Shumaker tell me he did not want the money personally, he wanted the money put into his “campaign.” 2. Aproximately [sic] ten days after the Marriott meeting, I met with Dwyer in his office and at the insistence of Torquato offered to give him $300,000 if he signed a contract with CTA LTD. Dwyer talked about $100,000 to him personally—$100,000 to his campaign committee—$100,000 to Republican State Committee. He was going to see Robert Asher in Montgomery County that weekend to talk to him about how this should be done. Within the next ten days I met with Torquato and Asher. Asher said that he had spoken to Dwyer and that no money would go to Dwyer. That $300,000 would go to Republican State Committee: for all three statewide campaigns. Asher said he did not want Dwyer going to jail. The next time I saw Dwyer we discussed this situation and from that day forward he was less cooperative. During this discussion he said “I thought it was $300,000—Now I hear $100,000.” I reiterated that Asher said no money was to go to Dwyer. 3. When negotiations were getting tough, I took Mark Phenicie to Cafe Maurice (restaurant) and told him that $300,000 was going to Republican State Committee. Thereafter from time to time Mark indicated to me that Robert Asher had called him on behalf of CTA LTD. John Wellington never knew of this. 4. Robert Asher was our principal aide in getting Dwyer to act. I probably spoke to him 20 times—some in Montgomery County and some in Harrisburg at Republican State Headquarters. Frank McCarthy (son of former State Police Commissioner 59-63) sat in on several of these meetings. 5. Roy Zimmerman returned a call to me at my home when my wife was present in the room. I asked him to send the decision back to Dwyer. I told him I would get Torquato to put $150,000 into his campaign. Roy told me to contact Mike Trant to give him the details. I said I did not like dealing with Trant so he said call Pat Boyle. I set up a luncheon with Pat Boyle for May 30, 1984 at the Maverick restaurant. I told Pat at the luncheon about my request to Torquato to put $150,000 into Roy‘s campaign. He was pleased. He also agreed to have the letter sent to Dwyer as soon as possible. App. at 1246-47.See United States v. Versaint, 849 F.2d 827, 831-832 (3d Cir. 1988) (erroneous exclusion of police report not harmless); Boyce, at 831 (“Far from being harmless error, the introduction of McMahon‘s statement was the linchpin in the evidence forming a central and cohesive bridge between the circumstantial evidence and the identity of Boyce as a participant in the burglary.“); United States v. Pearson, 746 F.2d 787, 795-96 (11th Cir. 1984) (“[T]here was no testimony that [defendant] had access to or had ever occupied the upstairs area where most of the guns [that the court admitted into evidence against him] were found. In fact, the evidence was to the contrary. Furthermore, the court gave no instruction limiting the extrinsic evidence against [defendant] to the two guns found in his bedroom. While we can find no abuse of discretion in admitting the firearms against [his codefendant], their admission against [defendant] was irrelevant and prejudicial.“).