United States v. Francis P. Long, A/K/A "Red", John Hackett, A/K/A "Jack"United States v. Francis P. Long, A/K/A "Red", John Hackett, A/K/A "Jack"
Lead Opinion
OPINION OF THE COURT
Appellant Long was convicted by a jury in the District Court for the Western District of Pennsylvania of conspiracy, obstruction of justice, and making a false material declaration to a grand jury (perjury), in violation of
On appeal, Long makes three contentions.
THE EVIDENCE
On this appeal, we must view the evidence in the light most favorable to the government. Glasser v. United States,
The evidence of Long’s guilt was overwhelming. Thus the jury heard evidence to the following effect: on October 16, 1974
That the pay-off was made, just as Irvin had predicted, is reflected by the recording of the October 16 conference, played for the jury without objection.
The cash was divided into nine envelopes (one for each councilman), and Long was heard to suggest that a “sticker” be put on them “so we’ll know that nobody touched it . .” App. 227a-228a. Long, obviously referring to the cash he had delivered to Irvin and Hackett, then implicates himself in the pay-off scheme when he is recorded as saying: “So that straightens you up to October, see and then every two months you know. . . . It’s only $120.”
Since Irvin and Hackett were stopped and searched, pursuant to a search warrant, by the F.B.I. immediately after leaving Long, and relieved of the nine envelopes and the cash he had given them, the defendants had to and did admit that on October 16 Long had given Hackett and Irvin a total of $2,160.
Hackett, so the events (and the tapes) reveal, was a quick thinker.
Thus the jury heard Hackett tell Irvin that the “cover” story was weakened by the “odd” figure, $2,160, and the “9 envelopes,” but “Red” (i. e., Long) “would say that he always gives us money ... for each election.” App. 241a. Hackett then tells Irvin that he will speak to Long. App. 244a. The jury also hears Hackett state to Irvin (App. 246a): “I had a feeling not to take that money. . . . ”
Within two days after the F.B.I. search, and in two separate deliveries, 2,160 raffle tickets were delivered to Long. The first delivery of 2,000 was by Hackett and Irvin. The following day Hackett’s son delivered 160 tickets to Irvin who in turn delivered them to Long. According to Irvin’s testi
The defendants and Irvin, who was still secretly cooperating with the F.B.I., went before a federal grand jury on November 1, 1974.
The body recorder, which had not functioned on October 17 and thereafter, was once again concealed on Irvin’s person and was recording as he and Hackett drove to the federal courthouse for their grand jury appearances. The recording of this conversation was played for the jury, again without objection.
Thus the jury heard Hackett relate to Irvin that the day before (October 31) he, Hackett, had met with Long and counsel “from 12 o’clock till about a quarter after one.” One of the participants was described by Hackett as “one of the best criminal attorneys.”
Hackett then states to Irvin (App. 260a): “We’re fortunate Roman had those 2,000 tickets.”
The recording thereafter reflects Hackett advising Irvin how to handle before the grand jury his own part in the plot. App. 260a-265a. In what was obviously an attempt to keep Irvin “in line,” Hackett warns him (App. 265a): “. . . If they’ve been getting it for fifteen years and you’ve been getting it for one month, you’re just as guilty as they are.”
Hackett’s callousness is exemplified by his stating to Irvin (App. 270a): “Wish we was [sic] in criminal court, we’d have the fix in already.”
By his own words, as replayed for the jurors, Hackett stood before them guilty as charged. His grand jury testimony was read to them (App. 395a-448a) after they had heard the recordings and Irvin’s testimony, which reinforced and supplemented the recorded material. Hackett’s grand jury testimony faithfully follows the scenario he had unwittingly placed on Irvin’s tape recorder, on November 1, preceding the grand jury appearance.
Once Hackett’s defense crumbled, Long too was doomed in view of the interlocking of their “raffle ticket” explanations. This point is eloquently made by the fact that, while the recording of the October 16, 1974 meeting demonstrated that the subject of raffle tickets was never mentioned or discussed, the jury heard Long, in his grand jury testimony, state that it was. App. 371a-394a. Added to the jury impact of this bald inconsistency is the description of the October 31 meeting, as embodied in Hackett’s recorded conversation with Irvin on November 1, implicating Long in the cover-up. Thus Long, like Hackett, could have escaped a guilty verdict only through a gross miscarriage of justice.
THE CHALLENGED TESTIMONY
The testimony which is the subject of the claim of trial error was given by Irvin, as follows:
Q. Now, on November 1,1974, did you have lunch while waiting to go to the Grand Jury?
A. Yes, I did.
Q. Who was present at that lunch?
A. Mr. Pruchnitzky and Mr. Long.
Q. During that lunch, what conversation if any, did you have with Mr. Long concerning garbage contracts?
A. He told me at lunch that day, that he was still paying off in Duquesne, Mun-hall, Homestead and Rankin.
MR. CINDRICH: This is objected to. That is not a proper place in this trial.
THE COURT: Objection overruled.
BY MR. ROARK:
Q. What was the conversation?
A. He said he was still paying off in the Boroughs of Duquesne, Munhall, Homestead and Rankin.
App. 278a-279a.
DISCUSSION
To ascertain whether the admission of this challenged testimony amounted to reversible error, our analysis begins with
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . .
This Rule incorporates the concept of harmless error. Given the overwhelming evidence of Long’s guilt, we have no hesitancy in stating that, assuming arguendo that the trial judge improperly admitted the challenged evidence, no “substantial right” of Long was “affected” and reversal would thus be unwarranted.
Next, we consider whether the admission of the challenged matter was error. The Federal Rules of Evidence require objecting counsel to be “specific” in stating grounds for an objection.
Long’s lawyer made what was anything but a specific objection to the evidence in question.
Thus it can be said that the law of this Circuit, pre-
This Circuit’s pre-404(b) approach to “other crime” evidence is seen not only in Stirone, supra, but also in United States v. Dansker,
The draftsmen of
As finally adopted by Congress, however, the words are: “It may, however, be admissible for other purposes such as . .” The House Committee on the Judiciary explained that this placed “greater emphasis on admissibility than did the final Court version.” H.R.Rep.No.650, 93d Cong., 1st Sess. (1973), reprinted in 4 U.S.Code Cong. & Ad.News, pp. 7075, 7081 (1974).
That the Senate Committee on the Judiciary felt the same is shown by its statement that, “with respect to permissible uses for such evidence [i. e., ‘other crimes,’ etc.], the trial judge may exclude it only on the basis of those considerations set forth in
Given this approach, we have no difficulty in finding the evidence in question of substantial relevance, see 765, n. 11, supra, under
The concurring opinion takes the trial judge to task for not engaging in a neat scholarly balancing as required by
As Judge Weinstein pointed out (1 Wein-stein & Berger, Weinstein’s Evidence, at 1403[01], 403-4),
Rule 403 . Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
(a) EXCLUSION MANDATORY. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
(b) EXCLUSION DISCRETIONARY. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The same treatise points out that under subdivision (a) of the original formulation, the judge, under certain conditions, had to exclude the evidence, whereas under subdivision (b) exclusion rested upon exercise of the court’s discretion. Id. at H 403[02], 403-12.
In view of the revision made by Congress, and the use of “may” in the final version of
A reversal based upon appellate disagreement with the trial judge’s balancing under
The en banc court discussed the question of “what standard of review is to be applied” to
ADAMS, Circuit Judge, concurs.
Notes
. Appellant formulated his arguments on appeal as follows:
I. The District Court erred in denying appellant’s motions for withdrawal of a juror based upon the introduction of evidence of other alleged criminal activity.
II. The District Court erred in admitting hearsay evidence in the form of documents and testimony.
III. This District Court erred in denying appellant’s motion to suppress illegally seized evidence because the facts set forth in the affidavit to the search warrant do not establish probable cause, in that those facts were based upon the uncorroborated statements of an unnamed informant whose reliability was not properly established.
.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Irvin, newly elected to the North Braddock Council (App. 197a), had learned as early as March 1974 that Long had been paying off North Braddock councilmen. App. 201a-204a. In May 1974 he reported this fact to the local police chief who referred him to Special Agent Stewart; thereafter, Irvin cooperated with Stewart because “he didn’t think it was right” (i. e., councilmen getting pay-offs). App. 279a.
Pretrial motions to suppress the tapes had been denied. App. 2a.
. Thus Long is heard to say (App. 227a): “Just opened [sic] up the envelope, there’s two $100 bills and two $20, just check it there. I told Malley I couldn’t get that when you first called.”
. Hackett and Long were tried together. As a part of its case the government read to the jury the November 1, 1974 grand jury testimony of each. In the grand jury proceeding, the prosecutor embodied in a question to Hackett the language used by Long (App. 408a):
Q. Now, isn’t it a fact that the $240 was a payment to the councilmen of North Braddock, nine envelopes, one for each councilman containing $240, which would bring them up to date for their payoffs from the hauling until October?
Hackett answered: “No.”
His response is contradicted by the recording.
. Hackett was obviously unaware of Irvin’s cooperation with the F.B.I. Thus, immediately after the search, as he wonders how the F.B.I. had been “tipped,” he opines that “[w]e shouldn’t a said anything to anybody last night, huh.” App. 240a-241a.
. Hackett, on November 1, 1974, was recorded by Irvin as stating (App. 257a): “. . . I had mentioned it to Stewart when he grabbed that money, I said that’s the ticket money, I just thought real quick, ya know . . . (emphasis supplied).
. On October 17, 1974 when Hackett and Irvin told Long of the F.B.I. seizure on the previous day, Long stated, according to Irvin (App. 251a): “. . . we were finished. We were beat. We were sunk and he never should have never [sic] given us the money in the beginning.”
. Long’s attorney at trial and on appeal was not counsel to Long at this pre-indictment stage.
. The objection, which came after the answer was in, was: “This is objected to. That is not a proper place in this trial.” (App. 279a). Long’s counsel referred to no federal rule of evidence, raised no hearsay objection, and did not claim that the evidence was unreliable.
.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Given the advantage an appraisal by hindsight affords, we would have found particular relevancy underFed.R.Evid. 401 in the light this testimony cast upon Long’s state of mind (i. e., knowledge and wilfulness) when he went into the grand jury room and, when asked (App. 374a): “How long have you been making payoffs or bribes to councilmen of North Braddock in return for the garbage contract that you have?”, he responded: “I have never been paying off any bribes to any community that I am doing business with.” The Indictment embodies the specific question and answer in Count IV, charging Long with lying to the grand jury.
See United States v. Kopel,552 F.2d 1265 (7th Cir. 1977), where, convicted of extortion and perjury, the appellant argued unsuccessfully to the Court of Appeals that the government improperly introduced transcripts of a grand jury proceeding showing that appellant consulted with his attorney prior to answering the crucial questions which were the subject of the perjury counts. The court concluded, over the dissent of one judge, that evidence showing the consultation tended to prove that Kopel’s statements were made in a deliberate fashion rather than as the result of inadvertence and mistake. CitingRule 403 , the court found the evidence to be far more probative than prejudicial.
. The concurrence thus misinterprets our holding. Contrary to the suggestion of the concurrence, we do not “maintain . that the trial judge need not set forth the reasons for his action so long as his ruling cannot be characterized as irrational or arbitrary . (see 768, infra); nor do we hold “that the trial judge need only state that the admitted material is ‘relevant’ in order to comply with
. Thus this Court in Construction, Ltd. stated:
The task of assessing potential prejudice is one for which the trial judge, considering his familiarity with the full array of evidence in a case, is particularly suited. . The practical problems inherent in this balancing of intangibles — of probative worth against the danger of prejudice or confusion — call for the vesting of a generous measure of discretion in the trial judge. Were we sitting as a trial judge in this case, we might well have concluded that the pótentially prejudicial nature of the evidence . . outweighed its probative worth. However, we cannot say that the trial judge abused his discretion in reaching the contrary conclusion.
This was, of course, a pre-Rules case.
Concurrence Opinion
concurring.
1.
I concur in the result reached by the majority. However, my concern regarding an important and recurring issue in the administration of criminal justice prompts me to set forth my views separately.
My difference with the majority stems from a divergence of perspectives on the process by which a trial court must evaluate attempts to admit concededly prejudicial evidence of prior misdeeds against a defendant in a criminal case. Because of the expansive scope of the threshold concept of “relevance” under the
2.
From the evidence produced at trial it would appear that Francis Long, the appellant here, was involved in a scheme to obtain garbage collection contracts for his company from a number of boroughs in the western part of Pennsylvania by offering kick-backs to councilmen in such boroughs. There is also evidence that when pay-offs in the Borough of North Braddock became the subject of a grand jury investigation, Long and his associate, John Hackett, attempted to fabricate a story that would explain, in non-criminal terms, their payments to the councilmen.
It was this latter aspect of their conduct which gave rise to the specific charges leading to this appeal. Long and Hackett were not indicted for bribing borough councilmen, but for lying before and conspiring to mislead a grand jury that was investigating the alleged bribery. More particularly, Long was charged with falsely denying before a grand jury his bribery of a North Braddock official. Additionally, the indictment charged Long with conspiring to “corruptly influence” a grand jury witness, and conspiring to suborn perjury in an effort to cover up his alleged bribery.
The FBI conducted its investigation by persuading Irvin, a North Braddock Borough councilman, to wear a body recorder while meeting with Long and Hackett. As a result of the information secured in this manner by the recorder, the evidence of Hackett’s participation in the bribery, obstruction of justice, and conspiracy was overwhelming. Hackett’s own recorded comments went far in establishing his guilt, and he was convicted.
The evidence against Long, however, was less convincing, for no damaging admissions out of his own mouth were captured on tape. Indeed, this must have been the perception of the prosecution, because in Long’s trial for lying to the grand jury the prosecutor sought to elicit from Irvin, the
Long’s counsel objected to this testimony on the ground that “[evidence of] prior bad acts ... is not admissible in a trial of a defendant.” (280a) In the course of his objection, however, Long’s counsel did not specifically mention either
The trial judge overruled the objection on the basis that the evidence was relevant to establish “a common scheme” (281a), and to prove that Long “knows what a payoff or kickback is.” (282a) He did not, however, weigh the relevancy against the prejudice that such evidence might engender in the minds of the jury.
3.
To determine whether the ruling by the trial judge in admitting this evidence constituted reversible error, my analysis begins with the precepts embodied in
Potential for prejudice was especially great in the case at hand. One of the offenses charged is not a substantive crime, itself, but a conspiracy to commit a substantive crime, namely, obstructing justice by misleading a grand jury about still another substantive crime, bribery. Evidence of yet a third crime — another effort at bribery similar to the crime allegedly concealed— may well cause, indeed invite, the jury to focus attention on the defendant’s culpability for “bribery” in general. This is so for it is the defendant’s proclivities to bribe — not the specific crimes of perjury and obstructing justice presently before the jury — to which the evidence in question is most directly relevant. To admit testimony regarding other alleged bribes might well encourage the outcome which
There is no doubt that the Federal Rules of Evidence were not designed to deprive the trial courts of their discretion. Such discretion is most important, because a trial judge is in an advantageous position to ascertain the climate of the trial and to appraise the impact of the prejudicial material. Nonetheless, the safeguard provided by the Federal Rules against prejudicial use of evidence is established by requiring a balancing of the probative value of the tendered material, on the one hand, and its potential for prejudice, on the other, before determining whether it is appropriate to allow it to be submitted to the jury.
Because the weighing entails competing interests, it is delicate and must be employed with care, lest accommodation to the prosecutor’s needs result in subverting a principle that is central to our concept of fairness.
I am somewhat troubled because the protection which
The explicit weighing which
4.
Evidence that Long engaged in other bribery schemes — in this case evidence of hearsay quality — was of limited relevance to the specific issues before the jury. Certainly this is true if our inquiry is limited to the reasons addressed by the trial court. The district judge declared that he admitted the evidence to “show part of the general plan or scheme.”
The trial judge also suggested
Even if a reviewing court is not limited to the reasoning articulated by the trial judge, the probative value of the questioned testimony remains marginal. The prosecution’s terse invocation of the purpose of showing “intent, motive and knowledge”
Concern that potential prejudice substantially outweighed any probative value is heightened by the use that the government ultimately made of the testimony at issue. Thus, in his closing, the prosecutor did not refer to the prejudicial evidence as it bore on intent, motive or any of the other grounds set forth when the prosecution urged the inclusion of the testimony. Instead, the prosecutor invited the jurors to consider the evidence in question primarily as it touched on Long’s character.
5.
But although I believe that, where the prosecution seeks to introduce potentially prejudicial evidence, Rule 4Ó3 and the cases require the trial court to balance probative value against prejudice, the judgment here need not be reversed.
The evidence of guilt in this particular case is so substantial that the legal error may be considered harmless.
. F.R.Evid. 401 reads:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or; less probable than it would be without the evidence.
. F.R.Evid. 403. The Advisory Committee’s Note to
. The testimony proffered was that Long had said to Irvin that Long “was still paying off in Duquesne, Munhall, Homestead, and Rankin.” While this indirect testimony is not objectionable “hearsay” within the meaning of the Federal Rules of Evidence, since Long is a party to the proceeding (F.R.Evid. 801(d)(2)), it nonetheless carries with it a number of the factors which militate against placing reliance upon hearsay.
.
. See e. g., United States v. Cook,
. See e. g. United States v. Cook,
.
The Advisory Committee’s Notes to
“[t]he determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decisions of this kind underRule 403 .”
See Govt. of the Virgin Islands v. Felix,
Even before the Federal Rules, the standard in this Circuit was phrased in these terms:
Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime. Of course, the trial judge may, in the exercise of his sound discretion exclude evidence which is logically relevant to an issue other than propensity, if he finds that the probative value of such evidence is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice.
United States v. Stirone,
. United States v. Cook,
. As Justice Frankfurter stated in a different context:
That a conclusion satisfies one’s private conscience does not attest to its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached.
Joint Anti Facist Refugee Committee v. McGrath,
. 281a.
. Id.
. Cf. United States v. Klein,
. 282a.
. Id. at 160a-162a.
. Appendix p. 281a.
. The prosecutor’s comments were:
Now, what did Mr. Long say to Norm Irvin at lunch? What do you recall about that testimony? Mr. Irvin, as I recall it, said the defendant, Long told him at lunch, I am still paying, still paying; Rankin, Munhall, Du-quesne and Homestead. I am paying there. Does that mean that he is still paying there but he is not paying in North Braddock because the heat is on? That is something for you to think about.
* * * * * *
Mr. Cindrich talked about presumption of innocence. Mr. Wedner talked about presumption of innocence. Mr. Cindrich talked about a reasonable doubt. Mr. Wedner talked about a reasonable doubt. But, you must follow the law given to you by the Court.
But, there are other foundations and other pillars upon which our country is built and one of those is a government of the people, by the people, for the people. Not in the back rooms at Long Hauling Company and other — under the table to the Council of North Braddock and how many other garbage contracts Mr. Long has bought that way.
. The jury charge on this point reads:
THE COURT: Now, there is a principle of law that says that you may consider like acts or a pattern of activity to prove specific intent. The willful, intentional or deliberate value of the acts charged.
That is, which are not concerned here with — let me put it the other way. We are concerned here with whether or not there were payoffs, kickbacks or bribes. As far as North Braddock is concerned. You may look to any other statements such as Rankin, Munhall, anything of that kind, if you first find that the statements were made.
You may look to them to determine whether there was a pattern of activity to prove the specific intent about which we are talking.We are not concerned in this case with any questions with respect to Munhall or any other place than North Braddock because these questions were solely related at that point and that is solely the charge in this indictment. But, you can look to those other matters to determine whether or not there was a conspiracy to answer the questions as charged in the indictment.
. The majority suggests that we are “taking the trial judge to task.” To the contrary, the sole purpose of this discussion is to point out the necessity of careful balancing in order to avoid the improper use of other alleged-misconduct to obtain a conviction on a charge based on an'unrelated transgression.
. See Govt. of Virgin Islands v. Toto,