*2 THE EVIDENCE GARTH, Before ADAMS and Circuit On this appeal, we must view the LACEY,* Judges, Judge. District light evidence in the most favorable to the States, government. Glasser United THE OPINION OF COURT U.S. S.Ct. 86 L.Ed. LACEY, Judge. District over- Long’s guilt The evidence of Appellant Long was convicted whelming. Thus the heard evidence to in the District Court for the Western Dis- the following effect: on October * Lacey, Frederick B. United States District dence because the facts set forth the affida- Judge, Jersey, sitting by desig- District prob- of New vit to the search warrant do not establish cause, nation. upon able in that those facts were based the uncorroborated statements of an unnamed Appellant arguments ap- reliability properly formulated his informant whose was not peal as follows: established. denying appel- I. The District Court erred in 2. Fed.R.Evid. 403 reads as follows: juror lant’s motions for withdrawal of a based Although relevant, be excluded upon the introduction of evidence of other al- substantially if its value is out-
leged activity. criminal weighed by prejudice, of unfair con- admitting II. The District Court erred in issues, misleading jury, fusion of the or hearsay evidence in the form of documents and delay, considerations of undue waste of testimony. time, presentation or needless of cumulative denying ap- III. This District Court erred in evidence. pellant’s suppress illegally motion to seized evi- contractor, leaving after immediately met with two the F.B.I. garbage Braddock, councilmen, envelopes the nine Pennsylvania, Long, and relieved of North them, elected) the de- (who recently given Irvin had been and the cash he had political admit that on (a Hackett veteran of wars in fendants had to and did area). Long given and Hack- Hackett and North Braddock October had $2,160.6 ett that Irvin had Irvin a total were unaware become an *3 informant, F.B.I. that he had Spe- advised Hackett, (and the tapes) the events so cial F.B.I. Agent that he and Stewart reveal, He was immedi- quick thinker.7 Long receive a bribe from at Hackett would that story Long ately formed the “cover” he, Irvin, this been meeting, and that had 2,160 raffle agreed buy had to a total wearing meeting furnished and was this tickets, divided, nine from the coun- evenly recorder tape concealed which recorded (and Long), him Unfortunately cilmen. the entire conversation.3 on being memorialized their scheme was made, just body was Irvin Irvin’s recorder. tape the as pay-off That predicted, by recording had is reflected tell Irvin heard Hackett jury Thus conference, played for the October by was weakened story that the “cover” jury objection.4 without $2,160, envelopes,” “9 figure, and the “odd” (i. say that he e., Long) “would was into but “Red” envelopes The cash divided nine for each (one councilman), gives money us ... Long always each was Hackett then tells a “sticker” election.” 241a. suggest put App. heard to that on Long. App. nobody speak them that will to “so we’ll know that touched it Irvin he Hackett state to hears jury .” 227a-228a. obvi- 244a. also App. . feeling not to 246a): “I had a ously (App. the cash he Irvin referring to had delivered ” Hackett, implicates to . . money. Irvin and then him- take . self in scheme when he is re- pay-off search, F.B.I. days Within two after straightens you as saying: corded “So 2,160 deliveries, raffle separate and in two up October, two every to see and then Long. The first were to tickets delivered . . . you months know. It’s and Irvin. Hackett 2,000 was delivery 229a. App. $120.”5 son delivered day Hackett’s following delivered in turn Irvin who 160 tickets to Irvin Hackett stopped
Since Irvin’s testi- warrant, searched, Long. to a them to pursuant According search Now, $240 was a Irvin, newly fact that isn’t it a to the Q. elected North Braddock 197a), payment of North Brad- (App. early councilmen had Council learned as as dock, envelopes, council- for each had one March 1974 that been off nine $240, bring App. containing councilmen. North Braddock 201a-204a. man May reported payoffs up from the he fact to the local their date for them police Agent Special him to hauling chief who referred until October? thereafter, Stewart; cooperated Irvin with Hackett “No.” answered: right” Stewart because “he didn’t think it was recording. response is contradicted His (i. e., getting pay-offs). App. councilmen 279a. obviously of Irvin’s co- unaware 6. Hackett was suppress tapes Pretrial motions to had Thus, immediately operation F.B.I. with the App. been 2a. denied. search, wonders how the F.B.I. after the as he say (App. 227a): 4. Thus is heard to “Just opines “tipped,” been he “[w]e night, had opened envelope, up $100 there’s two anybody [sic] anything last a said shouldn’t $20, just bills check it and two there. I told App. huh.” 240a-241a. Malley get you I couldn’t when first called.” Hackett, 1, 1974, was recorded on November 257a): stating (App. . I as “. . Irvin together. were tried 5. Hackett and As a grabbed when it to Stewart had mentioned part government of its case the read to the money, money, I ticket that’s the I said grand jury testimony November thought quick, ya just know . real prose- grand proceeding, each. In the (emphasis supplied). question cutor embodied in a Hackett by Long (App. 408a): language used mony, Long agreed go along words, with By his own as replayed for the jurors, contrived tale.8 them guilty Hackett stood before charged. grand jury testimony His Irvin, The defendants and who was still 395a-448a) (App. they read to them after F.B.I., secretly cooperating with the went had recordings heard the and Irvin’s testi- grand before a federal jury November mony, supplemented which reinforced and grand recorded material. Hackett’s recorder, The body which had not func- jury testimony faithfully follows the sce- thereafter, tioned on October 17 and unwittingly placed nario he had on Irvin’s again once concealed on Irvin’s person and recorder, tape preceding on November was recording as he and Hackett drove to grand jury appearance.
the federal courthouse for their grand jury crumbled, Long Hackett’s defense Once appearances. The recording of this conver- interlocking too was doomed in view of the *4 played sation was for the jury, again with- explanations. of their “raffle ticket” This objection. out that, point eloquently is made fact while the recording of the October Thus the jury heard Hackett relate to meeting subject demonstrated that the Irvin day (October he, before 31) raffle or dis- tickets was never mentioned Hackett, had met with Long and counsel cussed, Long, grand in his heard “from 12 o’clocktill about a quarter after App. jury testimony, state that it was. one.” One of the participants was describ- jury impact to the 371a-394a. Added ed Hackett as “one of the best criminal description of inconsistency this bald is the attorneys.”8a App. 258a. The then meeting, as embodied in October heard Hackett describing what had oc- Hackett’s with Irvin recorded conversation curred at the meeting as he Long implicating Long on November being prepared grand for their jury appear- Hackett, cover-up. Thus like could ances, with quoting Long Hackett (App. have escaped guilty only through a verdict 260a) as the latter reviewed the raffle tick- justice. a gross miscarriage of story et at this meeting. Hackett then 260a): states to Irvin (App. THE CHALLENGED TESTIMONY “We’re 2,000 fortunate Roman had those testimony subject which is the of the tickets.” Irvin, claim of trial was given by error as follows:
The recording thereafter reflects Hackett advising Irvin how to Q. Now, 1,1974, handle before the you on November did grand jury his own part in the plot. App. waiting go have lunch while 260a-265a. In what obviously was an at- Jury? Grand tempt keep line,” Irvin “in Hackett Yes, A. I did. warns him (App. 265a): “. . . If Q. present Who was lunch? at that they’ve been getting it for years fifteen A. Mr. Pruchnitzky Long. and Mr. you’ve been month, it getting you’re for one Q. lunch, During what conversa-
just as guilty they are.” any, tion if you did have with Mr.
Hackett’s concerning garbage callousness is contracts? exemplified by his stating 270a): to Irvin (App. “Wish we A. He day, told me at lunch that court, was in criminal we’d have the paying Duquesne, [sic] was still off in Mun- fix in already.” hall, Homestead and Rankin. 8. On October Long’s attorney when Hackett and appeal Irvin 8a. at trial and on previous told of the F.B.I. pre-indictment seizure on the not counsel stated, day, Long according (App. stage. to Irvin 251a): “. . . we were finished. We were beat. We were sunk and he never should have given money never begin- [sic] us the ning.” Next, we whether objected This to. consider the admission MR. CINDRICH: is matter error. challenged of the this trial. place is not proper That a require objecting Evidence Rules of Federal Objection overruled. THE COURT: stating grounds be “specific” counsel to MR. ROARK: BY 103(a)(1). The rea- objection. Rule for an Q. What was the conversation? The trial for this is obvious. son still off in A. He said he was by the thereby alerted to the issue raised Munhall, Duquesne, Boroughs objection. Rankin. Homestead and made what was Long’s lawyer 278a-279a. App. objection to the but a anything may question.9 Charitably, evidence DISCUSSION that, him supplemented by be said as later To ascertain whether the admission to a 280a), objection up added (App. his testimony challenged of this amounted testimony relevancy claim that lacked error, analysis begins with 404(b).10 reversible our The trial Fed.R.Evid. under 103(a) Federal of Evi do as well.11 Rule Rules found it relevant. We dence: nothing than re- more 404(b) does predicated upon Error of this the law been long what has state or excludes ruling which admits exam- Circuit, pre-Rule, as enunciated right party
unless
substantial
Stirone,
F.2d
United
ple, in
States
affected
grounds,
1958), rev’d
*5
212,
270,
The draftsmen of Rule 404(b) in is, that, tended it to he never stated even be construed as one of “inclu sion,” if objected and not the material had “exclusion.” They intended to emphasize value, admissibility “substantially outweighed by “other crime” *6 evidence. emerges This from the legisla danger prejudice.” the of unfair the Since tive history which saw the “specific” objection “exclusionary” requirement of Fed.R. approach of the Supreme with, Court 103(a) version of Evid. complied was not Rule modified. Thus the Supreme trial judge required was not to deal with Court’s formulation, final after prohibiting Moreover, Rule 403. dynamics of trial evidence of other prove crimes to the char do always permit analysis not a Rule 403 defendant, acter of the had provided that the detail suggests ap- the concurrence as “this subdivision does not exclude the evi propriate. While a judge help- trial can be dence when offered for other purposes such ful to an appellate spells court if he out for as . .” The list of exceptions fol- it such an analysis, require a detailed lowed. 183, F.R.D. balancing every statement in each and case is objection
As unrealistic. Where an does in- finally adopted however, by Congress, 403, judge words voke Rule the trial however, are: “It should record may, be admis- sible for other his to the extent that purposes balancing analysis his . .” The House fairly Committee re- may exercise of discretion be Judiciary ex- plained However, placed where “greater emphasis appeal.12 viewed on Rule on admissibility than did the invoked, final judge’s Court 403 is not the trial balanc- version.” H.R.Rep.No.650, 93d Cong., 1st ing ruling. will be in his subsumed 12. The misinterprets arbitrary concurrence thus our characterized as irrational or holding. Contrary suggestion (see 768, infra); of the con nor do we hold “that the trial currence, only we do not judge “maintain need state that the admitted materi judge the trial need comply not set forth the reasons al is ‘relevant’ order to with Rules long ruling for his action so as his cannot be (See infra.) 403 and 404.” subjective (a) probative factors of val-
We turn now to the Rule 403 balanc judicial ue, (b) presented by the concurrence. If self-re ing prejudice desirable, when a Rule straint is ever it is strengthened evidence. inference is by This is reviewed analysis of a trial court the fact that the Rule does not establish a appellate tribunal. standard, mere but rather imbalance as requires “may” that evidence be barred (1 pointed Weinstein out Wein- Judge As if value is probative “substantially Evidence, at Berger, stein & Weinstein’s outweighed” by prejudice. judge, The trial 403, as 1403[01], 403-4), proposed by appellate judge, posi- not the the best Supreme Court read as follows: prejudice tion to assess the extent of the Rule 403. Exclusion of Relevant Evi- party by piece caused a of evidence. The Prejudice, on Grounds of Confu- dence record, appellate judge works with a cold sion, or Waste of Time. whereas the trial is there in the (a) MANDATORY. Al- EXCLUSION courtroom. relevant, though evidence is not admissi- substantially ble if its value upon disagree- A reversal based appellate outweighed by prej- unfair judge’s balancing ment with the trial under udice, issues, of confusion of the or of upon Rule 403 must necessarily be founded misleading jury. which, reasons, experience highly subjective (b) EXCLUSION DISCRETIONARY. us, recogniz- always readily teaches are not relevant, Although be ex- dangers inherent in able or definable. The cluded if its value is substan- exemplified in understanding this are tially outweighed considerations of un- v. Robin- recently decided United States time, delay, pre- due waste of or needless 1977) (en banc), son, F.2d 507 sentation of cumulative evidence. conviction, vacating the affirming a decision, previous panel The same points treatise out under had reversed the conviction. formulation, (a) original subdivision conditions, judge, under certain had to question The en banc court discussed evidence, exclude the whereas under subdi- ap- to be standard of review is “what (b) vision exclusion rested exercise of upon judge. plied” rulings to Rule 403 of a 403[02], the court’s Id. at discretion. 403- H had found the panel The vacated decision to be error admission of certain evidence proba- reversal because its grounds view of the revision made was, in the words of Rule tive value Congress, and the use of in the final “may” danger “substantially outweighed by version of Rule it is manifest The full took a prejudice.” unfair court draftsmen intended that view, doing by different aided so given very discretion in substantial “bal *7 namely, that adopted, standard of review it ancing” probative value the one hand on “unless other, judge upheld the trial will be and “unfair prejudice” on the and 560 F.2d at arbitrarily irrationally.” acts simply that he be should not be reversed is view Con- support cause an it in of this appellate court believes Cited Building have the matter otherwise struction Ltd. Brooks-Skinner decided 1973).13 Co., differing highly because of a view of the case, Construction, might judge well have we 13. Thus this in Ltd. stated: trial in this Court pótentially prejudicial na- concluded assessing potential prejudice The task of outweighed its ture of the evidence judge, considering one for which the trial his However, say probative we cannot worth. familiarity array with the full of evidence in a judge in his discretion the trial abused case, particularly suited. . The contrary reaching conclusion. practical problems balancing inherent in this course, was, pre-Rules case. Rule 403 This of a intangibles against of worth —of “preju- change the old and well-known did not prejudice of or confusion —call for Construction, was which Ltd. dice” rule under vesting generous of a measure of discre- judge. sitting in tion the trial Were we as a here, Because the trial here did not lant was involved in a scheme to ob- admitting abuse his discretion in the evi tain collection his garbage contracts question, in and further rea boroughs dence for the a number of company from that, did, even if he the evidence of offering son of part Pennsylvania by western guilt overwhelming is so appellant’s boroughs. councilmen in kick-backs to a alleged error did not “substan affect There evidence that when pay-offs is also right,” Long’s judgment tial of conviction of North Borough Braddock became will be affirmed. subject grand jury investigation, Long of a associate, Hackett, attempted his John and
ADAMS, Circuit Judge, concurs. story explain, fabricate that would terms, their payments non-criminal ADAMS, Judge, concurring. Circuit councilmen. It latter aspect was this of their conduct concur I in the result reached by the rise gave specific charges to the lead- majority. However, my regarding concern ing appeal. Hackett were to this and important recurring issue in the bribing borough indicted for council- administration of justice prompts criminal men, lying conspiring but for before and to set me forth my separately. views investigating mislead a that was grand My majority difference with the stems the alleged bribery. particularly, More a divergence from of perspectives be- charged falsely denying with process by which a trial court must evaluate grand jury bribery fore a his of a North attempts prejudicial to admit concededly Additionally, the indict- Braddock official. prior evidence of against misdeeds a de- “cor- charged Long conspiring ment with in a fendant criminal of case. Because witness, grand ruptly influence” scope expansive concept of the threshold of conspiring perjury to suborn in an effort to “relevance” under the Rules of Evi- Federal alleged up bribery. cover his dence the trial judge’s duty to balance the investigation The FBI conducted its value proffered evidence Irvin, a Bor- persuading North Braddock against potential prejudice is an es- councilman, ough body to wear a recorder safeguard sential to the of criminal fairness meeting while with and Hackett. As trials.2 performing duty under the a result of the information in this secured Evidence, Federal Rules of I believe the recorder, manner the evidence trial must articulate weighing his ob- participation bribery, Hackett’s maintain, two those factors. To as the ma- justice, conspiracy struction of jority appears to suggest, own overwhelming. Hackett’s recorded judge need not set forth the reasons for his establishing guilt, comments went far in his action so long as his ruling cannot char- and he was convicted. arbitrary acterized irrational or is not deference the admitted discretion of the however, was against court, trial but a refusal to assure that such less convincing, damaging for no admissions discretion is in fact exercised. out own captured of his mouth were Indeed, tape. per- this must have been the ception prosecution, because From the evidence produced Long’s trial for lying grand jury *8 appear that appel- Irvin, Francis the prosecutor sought the to elicit from decided, changed nor has it probable standard the we evi- than it would without the Construction, applied in Ltd. dence. 1. F.R.Evid. 401 reads: Advisory 403. The F.R.Evid. Committee’s having “Relevant sweep evidence” means evidence Note to Rule 401 of states that the broad any tendency any exclusionary to make of the existence by Rule to be 401 is “limited the consequence fact that is of to the determina- principles of 403.” or; probable of tion the action more less
769 informant, Long prejudice especially that had told Potential for a statement in four bribery efforts on-going Irvin of the in case at hand. of the great One surrounding boroughs.3 charged crime, a offenses is not substantive itself, a conspiracy but to commit a substan- testimony to this
Long’s objected counsel bad ground prior crime, on the that justice by tive namely, obstructing of] “[evidence trial of ... not admissible in a acts is a misleading grand jury about still another In the course of his (280a) a defendant.” crime, bribery. yet substantive Evidence of however, not Long’s counsel did objection, bribery a third crime —another effort at 404(b) either Rule or specifically mention the similar to crime concealed— allegedly Rule 403 number. invite, cause, jury well the to may indeed objection on The trial overruled the culpabili- focus attention on the defendant’s to that evidence was relevant the basis the it This is so for ty “bribery” general. for in (281a), scheme” and to establish “a common to bribe —not proclivities is the defendant’s what a payoff “knows prove Long perjury the crimes of and obstruct- however, not, (282a) is.” He did kickback justice before the ing presently —to prejudice weigh relevancy against the question is most di- which evidence might engender that such evidence re- rectly testimony To admit relevant. of the jury. minds well en- garding alleged might other bribes 404(b) courage the which Rule outcome seeks to conviction on the basis avoid: ruling To determine whether “guilt by reputation.”6 admitting trial evidence con- error, my analysis begins stituted reversible Rules is no the Federal There doubt that with the embodied in Federal Rule precepts deprive designed of Evidence were to not 404(b).4 provides of Evidence That rule discretion. Such courts of their testimony wrongs may other regarding a trial is because important, discretion most perpe- not be used to to propensity show to position advantageous judge is issue, an ac- trate and that wrongs to trial and of the ascertain climate subject cused should to conviction on not be mate- prejudicial appraise impact the basis of with which he is not crimes provided Nonetheless, safeguard rial. charged.5 associated with such sa- Closely use against prejudicial Federal Rules by the lutary principles proposition is the requiring of evidence is established relevant even when for another introduced value of of the balancing miscon- purpose, evidence of other criminal hand, and its the one material, on tendered duct will it a frequently carry with other, before prejudice, potential infer- will draw forbidden it is determining appropriate whether crim- person ence that a who has committed jury.7 it to be submitted once, again. inal acts so allow likely do identity, intent, knowledge, preparation, plan, testimony proffered had 3. The or accident.” to Irvin “was off or absence of mistake said still Munhall, Homestead, Duquesne, and Rankin.” Cook, F.2d g., v. 538 States testimony objectiona- 5. See e. United While this indirect is not 1000, (3d 1976); States United 1003-1004 Cir. “hearsay” meaning Feder- ble within 992, James, U.S.App.D.C. F.2d 555 Evidence, v. party al Rules of since is a Beechum, (1977); v. States 1000-1001 United 801(d)(2)), proceeding (F.R.Evid. none- 1977). (5th Cir. 507-509 factors theless it a carries with number of upon against placing reliance militate Cook, F.2d g. v. States 6. See e. United hearsay. (3d 1976); quoting Govt. Cir. Toto, Virgin F.2d Islands other provides: 4. Rule “Evidence 1976). crimes, wrongs, admissible or acts prove person in order the character of a provides: Evidence 7. Federal Rule of conformity It show that acted in therewith. relevant, “Although pur- be exclud- may, however, be admissible substantially out- motive, opportunity, value is poses, ed if its proof *9 770 adjudication stated:8 reasoned is the corner- regard, recently we Such stone of of the legitimacy of the actions weighing competing entails
Because the judiciary, safeguard and an essential interests, be em- it is delicate and must broad proper exercise of the trial court’s care, ployed with lest accommodation to discretion.9 in subvert- prosecutor’s needs result ing principle that is central to our con-
cept of fairness. pro- Long engaged
I am somewhat troubled because
Evidence that
in other
bribery schemes—in this case evidence of
attempts
which Rule 403
to establish
tection
hearsay quality
of limited relevance
disregarded in the case
may have been
be-
—was
jury.
issues before the
Cer-
balancing
place,
fore us.
no
took
Since
tainly
inquiry
this is true if our
limited to
record,
which is set forth on the
least none
reasons addressed
trial court.
it is difficult
to determine
there
whether
The district
declared that he admit-
has been an exercise of discretion or a mis-
part
gen-
ted
evidence to “show
take.
10
plan
eral
or
he be-
Apparently
scheme.”
The explicit weighing which Rule 403
allegation
Long may
lieved that
not,
course,
mandates need
be as exten-
sought
borough
have
to bribe other
councils
sively articulated as the
balancing which
Yet,
being
was relevant to the issue
tried.
this concurring opinion engages. Eviden-
judge recognized,
being
the trial
the case
tiary decisions most often are made in the
jus-
tried
to do with
obstruction
“ha[d]
trial,
course of a
explication
and extensive
tice
perjury
grand jury,”11
before the
might unduly delay the proceedings. None-
Munhall,
bribery
Duquesne,
Home-
theless, the record should reflect some reck-
Any
stead and Rankin.
conclusion
oning of the balance between relevance and
“payoffs”
challenged
referred to in the
tes-
prejudice and the alternatives available for
timony
part
of a common scheme to
prejudicial proof.
substitution of less
perjury
commit
or to
grand jury
before the
weighed by
danger
prejudice,
propensity,
of unfair
than
if he finds that the
issues,
misleading
confusion of the
or
substantially
value of such evidence is
out-
weighed by the risk
will
admission
Advisory
Committee’s Notes
to Rule
danger
preju-
create a substantial
of undue
prior
state that where the evidence of
dice.
permissible purpose,
bad-acts
is offered
Stirone,
571,
(3d
United States v.
262 F.2d
determination
“[t]he
must be made whether
1958)
212,
grounds
Cir.
revd on other
361 U.S.
prejudice outweighs
of undue
S.Ct.
L.Ed.2d 252
probative value of the evidence in view of the
Cook,
8. United States v.
538 F.2d
availability
proof
of other means of
and other
(3d
1976).
Virgin
Cir.
See
Islands
Govt. of the
appropriate
making
facts
decisions of this
Felix,
(3d
v.
prosecution cases evidence, 4Ó3and the
prejudicial to balance the trial court
require here judgment against prejudice,
value reversed.
need not be guilt particular
The evidence of in this legal error
case is so substantial harmless.19
may be considered any necessity balancing in order to of careful in this case with are not concerned We any improper alleged-miscon- respect use of other questions Munhall or avoid with charge place based Braddock because obtain a conviction on a than North duct to solely transgression. questions related at that on an'unrelated these solely charge point in this and that But, you Virgin Toto, those other indictment. can look to See Govt. of Islands v. there 1976) (test to determine whether or matters 283-84 for harmless conspiracy questions as to answer the highly probable error is whether evi charged dentiary conviction); in the indictment. error did not contribute to 52(a) Federal Rule of Criminal Procedure “taking majority suggests we are (harmless error is one that does not affect sub contrary, task.” To rights). stantial point out is to purpose discussion of this sole