Vinсent M. Fiorillo, long engaged in the garbage collection business in West-chester County and elsewhere, was convicted on trial to the jury in the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, of perjury 1 in his testimony before a Southern District Grand Jury investigating possible violations of the Hobbs Anti-Racketeering Act in the garbage collection industry, and he appeals. We find no error and affirm the judgment.
Appellant’s chief claims are insufficiency of proof and error in the charge relating to the required quantum of proof, error in refusal of a request during the trial by defense counsel that he be allowed to withdraw since hе felt he should testify, violation of the Communications Act by an agent’s listening in on a telephone conversation, prejudicial cross-examination of defendant, entrapment, and lack of materiality of the perjured testimony.
Before the Grand Jury, appellant testified as follows:
“Q. Now I ask you, Mr. Fiorillo, if you received a telephone call from Tony Vone in Mаrch of this year in which Vone asked you whether you had contacted Nick Perry and Tobia DeMicco concerning the permanent transfer of this Daitch stop to Vone? A. No, sir.
Q. You never received any such telephone call from Vone? A. No, sir. From Vone?
Q. Vone. A. Not to my recollection.
Q. Are you quite sure of that? A. I am positive.
Q. Now, do you recall telling Vone in a telephоne conversation this year that you had not contacted Nick Perry or Tobia concerning the transfer of the stop, but you expected to contact them in the near future? A. Why would I want to contact them? They had no bearing on that, nothing to do with that. It was my account. I was servicing that account for Daiteh-Shоpwell. So why would they be involved in that? I don’t know what — where did you get the information, but it’s wrong. This is my ae- *183 count. It’s not anybody else’s. It was my account, Daitch-Shopwell in Pelham and I have been doing — I have had it for fifteen years approximately.
Q. Is it your sworn testimony, sir, that you never told Tony Vone that you were going to be contacting these other men; namely, Nick Perry and Tobia DeMicco, concerning this Daitch-Shopwell stop? A. Never.
Q. Did you ever tell Tony Vone or anybody else that you couldn’t transfer this Daitch-Shopwell stop at Pel-ham without the consent of Nick Perry and DeMicco? A. No, sir.
Q. And you are positive of that? A. Positive.
Q. Did you ever tell Tony Vone or anybody else that yоu in fact had contacted Nick Perry and Tobia De-Micco and they had told you to take this stop, this Pelham stop of Daitch-Shopwell’s, away from Vone and give it back to D’Onofrio? A. No, sir.”
Taking the evidence in the light most favorable to the government, as we must, United States v. Padilla,
In February, Fiorillo called Vone and told him he was under pressure from Ratenni and others and might have to give the Daitch stop back to D’Onofrio. On a morning in March, appellant called Vone, who was out. On Vone’s return he called but failed to reach appellant. When appellant returned the call, F. B. I. Agent Taylor was in Vone’s office and with Vone’s permission listened in on an extension phone. Appellant told Vone that the Daitch subcontract would have to be returned to D’Onofrio, that Ratenni and DeMicco were putting pressure on appellant and that without their permission to do otherwise he would have to return the stop to D’Onofrio. Vone asked appellant to talk to Ratenni and De-Micco again and appellant said he would see what he could do. A few days later D’Onofrio’s company resumed the service of the stop.
The testimony of Fiorillo before the Grand Jury was plainly material to an investigation of possible Hobbs Act, 18 U.S.C. § 1951,
2
violation by obstruc
*184
ing, delaying or affecting commerce or the movement of а commodity in commerce by extortion or attempted extortion, or threats or violence. Materiality turns on the testimony’s potential, viewed as a matter of law to be decided by the trial court, for affecting the course of the inquiry. United States v. Winter,
The proof of falsity of the appellant’s testimony before the Grand Jury was clearly sufficient, since the telephone conversation was testified to by two witnesses, Tаylor and Vone, and there was, moreover, substantial corroboration in the treatment of the Daitch stop, as well as in the evidence of a post-indictment attempt to obtain an exculpatory affidavit from Vone.
After the indictment of appellant, appellant had met Vone and an assoсiate of his, one Feraca, at a diner run by Charles Reiter. Appellant asked Vone for an affidavit of recantation respecting the phone call in question and Vone refused. Thereafter appellant had arranged to help Vone obtain a truck for use in his business.
Judge Weinfeld correctly chаrged the jury it could convict on the basis of direct testimony of two witnesses or of one witness plus independent and trustworthy corroborating circumstances. There is not nor ever has been a requirement that where two witnesses testify, circumstances must be ignored. Weiler v. United States,
The claim of entrapment is made, but upon what basis escapes us. There is no slightest indication that the government instigated the false testimony or implantеd the idea of lying in Fiorillo’s mind. Compare Sorrells v. United States,
The claim of error for refusal of the court to permit withdrawal of counsel *185 during the trial is based on the fact that appellant’s trial counsel, one Terkeltoub, decided to take the stand to contradict Vone’s version of the post-indictment diner meeting, during part of which counsel was present. The possibility of such a situation had been known to counsel and to appellant before the trial date was set, for the government had disclosed to court and counsel its intention to call Vone to testify concerning the diner conversation, pointing out that counsel had been present and a conflict might arise. The court required counsel to take the matter up with appellant, and with full knowledge of the possibility, counsel, with appellant’s consent, entered upon the trial without employing other counsel. There was no error in these circumstances in going on with the trial even though Terkeltoub took the stand.
No case has been found requiring a new trial because the complaining party’s attorney testified at trial hence depriving him of the assistance of counsel. Such a claim seems untenable unless the attorney testifies
against
his client who is unable to cross-examine him. Nor does the record show that appellant’s counsel was distracted from his defense by preoccupation with his own testimony and credibility. Nor was appellant prejudiced by such testimony since, unlike Weil v. Weil,
Testimony of the attorney for a party is not incompetent in fеderal court. Lau Ah Yew v. Dulles,
In view of the conflicting testimony between Vone and appellant, counsel’s testimony was relevant and rеasonably necessary as he was the only other party present in court who witnessed the conversation (though Feraca, Vone’s associate, could have been subpoenaed). Finally since no prejudice resulted to appellant and the government does not complain, the trial cоurt did not abuse its discretion in refusing to permit withdrawal, especially since appellant himself requested counsel’s continuance, which may be considered a waiver.
Appellant attacks several questions put to him on cross-examination. One was whether he carried a gun. Since the government knew that hе had a permit to carry it, it is hard to tell what the examiner was seeking to show, for no claim was made that there was evidence Fiorillo threatened anyone with it other than that he had carried it during strikes.
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However, the cross-examination was perhaps broadly relevant to Fiorillo’s claim of long established gоod reputation in this industry, cf. United States v. Bowe,
Fiorillo was also asked on cross whether he had not been ejected from the garbage business in the Bronx. There does not appear to be anything improper here, in view of Fiorillo’s explanation that he had, indeed, had his New York City license cancelled because of his former partnership with Ratenni, and, in view of the fact that he had denied the claimed telephonе conversation as to his present relationship with Ratenni. Moreover, on direct examination in response to his counsel’s questions, Fiorillo made numerous assertions as to his good reputation as an “outstanding representative” of the garbage collection industry and thus opened the door to the gоvernment’s question relating to Fiorillo’s being ejected.
It is well-settled that no statutory or constitutional violation ensues from the use of evidence resulting from use of an extension by an agent with the consent of either of the parties to the conversation. Rathbun v. United States,
Finally, admission of Taylor’s testimony did not violate the Fifth Amendmеnt because appellant’s statement to Yone was not involuntary in any sense, nor was appellant required to be warned or offered counsel at such an early stage in the investigation, See Miranda v. State of Arizona,
The judgment is affirmed.
Notes
. Title 18 U.S.C. § 1621.
Perjury generally
Whoever, having taken an oath before a competent tribunal, officer, оr person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
. Title 18 U.S.O. § 1951.
Interference with commerce by threats or violence
(a) Whoever in any way or degreе obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened^forcе, or violence, or fear of injury, immediate or future, to his person or property, or *184 property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
(3) The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.
(c) This section shall not be construed to repeal, modify or affect section 17 of Title 15, sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of Title 45.