Petition — Homer v. United States

* ‘wy U. S.

D

976-1185

276 FEB 28 1977

IN THE

L RODAK, JR. CLERY

Supreme Court of the United States

N 0. A-591

MAX H. HOMER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

STANLEY W. GREENFIELD, ESQUIRE

GREENFIELD & MINSKY

Counsel for Petitioner

412 Carlton House

Pittsburgh, Pennsylvania 15219

(412) 281-8801

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

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Opinion of the Third Circuit Court of Appeals,

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Memorandum Opinion and Order of the United

States District Court for the Western District

of Pennsylvania, Denying Motion for New Trial,

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CITATIONS

CASES

Chambers v. State of Mississippi, 410 U.S. 284

IETS Ree ee 13

Mason v. United States, 408 F.2d 903 (10th Cir.

RE RD SS AE od cel ie Ee SED 13

United States v. Elmore, 423 F.2d 775 (4th Cir.

e ee a 13

United States v. Iaconetti, 19 CR 2419 (1976) 13

United States v. Mazzei, 521 F.2d 639 (3rd Cir.

1975), cert. den. 423 U.S. 1014, 96 S.Ct. 446

Z P 15

: Miscellaneous Authorities.

PAGE

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MISCELLANEOUS AUTHORITIES

Weinstein & Berger, Weinstein's Evidence, (1975)

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IN THE

Supreme Court of the United States

No. A-591

MAX H. HOMER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

| THIRD CIRCUIT

The Petitioner prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Third Circuit entered in the above case

on November 18, 1976, which affirmed the District

Court’s denial of Petitioner’s Motion for a New Trial.

The Petition for Rehearing was denied on December 28,

1976.

Jurisdiction.

OPINIONS BELOW

The District Court for the Western District of

Pennsylvania denied Petitioner’s Motion for New Trial

by Opinion on issues not raised in the Third Circuit

(Appendix). The Third Circuit Court of Appeals

affirmed by Opinion (Appendix) and denied rehearing

by simple order.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

Questions Presented.

QUESTIONS PRESENTED

Was Petitioner denied due process by the Trial

Court’s refusal to permit him to call nine (9) wit-

nesses, each of whom would have testified that the

witness was told in 1971 by the Party Treasurer

that the victim of an alleged extortion by Petitioner

had made a political contribution through Petitioner

to the Democratic Party?

A. Was the testimony admissible under Rule

804(b) (3) as a declaration against penal

interest?

B. Was the testimony admissible under Rule

804 (b) (3) as a declaration against pe-

cuniary or proprietary interest within the

meaning of Rule 804 (b) (3)?

C. Was the testimony admissible under Rule

803 (24) and Rule 804 (b) (5) of the Fed-

eral Rules of Evidence?

Was Petitioner denied due process by the Trial

Court's refusal to permit Petitioner to call two (2)

witnesses, each of whom would have testified that

the witness had been told by political opponents of

Petitioner that arrangements had been made to

frame him through the use of an oil company man

and a heating and air conditioning man, the identi-

ties of the alleged victims of the extortion counts of

which Petitioner had been convicted?

Did the Trial Court err in permitting the case to be

submitted to the jury on the theory of Petitioner’s

conduct while acting under color of official right?

Statement.

STATEMENT

This matter is before the Court on appeal from the

judgment and sentence of the District Court for the

Western District of Pennsylvania and the affirmance by

the Third Circuit Court of Appeals.

Petitioner was indicted in nine counts for three

Hobbs Act, four income tax, one perjury, and one ob-

struction violations. Two income tax counts were sev-

ered before trial. Petitioner was acquitted of four

counts and convicted of three.!

During the time spanned by the scope of the indict-

ment against him, Petitioner was a State Legislator for

the Stowe Rox area near Pittsburgh, Pennsylvania. Be-

fore leaving the Legislature he had served for ten years,

part of that time as Chairman of the Education Commit-

tee (N.T. 1070 et seq). He had a doctorate in education

and was a Superintendent of Schools for Stowe Rox by

the time of trial (N.T. 1073).

Petitioner’s conviction for violation of the Hobbs

Act, 18 U.S.C. 1951 was predicated on evidence showing

that he received six thousand five hundred ($6,500.00)

dollars in money from the Gordon Oi! Company while

acting under color of official right in connection with

Gordon’s obtaining an occupancy permit for a new ware-

house it had constructed in the Pittsburgh area.

Petitioner readily admitted accepting five thousand

($5,000.00) dollars as a campaign contribution uncon-

ditioned on his providing assistance in obtaining the

permit (N.T. 1111). The additional one thousand five

hundred ($1,500.00) dollars was undisputedly paid to

1. Petitioner was convicted of two counts of Hobbs

and one count of false declaration.

Statement.

an architectural firm as fees and so recorded in Gordon’s

corporate books. The five thousand ($5,000.00) dollars

was recorded as a contribution on the County Election

Report filed in 1971. Petitioner’s Trial Exhibit 3.

Petitioner’s then personal attorney, Peter King, of

Pittsburgh, Pennsylvania, testified at trial that he ad-

vised Petitioner to accept the five thousand ($5,000.00)

dollars because it was a political contribution not con-

ditioned on Petitioner’s obtaining any occupancy permit

(N.T. 985).

Petitioner was also convicted of a second Hobbs

violation for obtaining three thousand ten and 92/100

($3,010.92) dollars from another company doing busi-

ness in the Stowe Rox area which had occupied a build-

ing without a proper occupancy permit (Ruthrauff, Inc. ).

(Ct. II) The sums alleged were never in dispute but their

purpose was. Petitioner testified that he received monies

from the Company President for application to the bene-

fit of a black athletic club for uniforms and a liquor

license.

Count V. related to the Gordon Oil contribution

(Count I.), and charged Petitioner with making a false

declaration to the grand jury in testifying he had re-

quested the State Inspector to furnish plans to the archi-

tect in connection with an inspection of the Gordon

Terminal Service Building.

The case was a cause celebre in the Pittsburgh area

for months prior to indictment and through trial, as

Petitioner was also Superintendent of Education for the

Stowe Rox area having been defeated for State Legis-

lator during the pendency of his federal trial. His tenure

as Superintendent came under separate attack from

Statement.

political opponents and together with his trial, served as

the basis for continuing newspaper coverage of him.

Prior to his indictment, Petitioner voluntarily ap-

peared before two Federal Grand Juries and testified

at length with respect to the matters eventually cov-

ered in the indictment, even at a time when he knew

that he was the subject of the federal investigation

likely to result in the indictment of him. He took the

stand at trial and as before the grand jury, insisted

that he accepted monies from the companies as po-

litical contributions for having done a favor for con-

stituents in obtaining of occupancy permits. He denied

extortion by any standard and otherwise explicitly re-

sponded to the government charges. The indictment

carefully charged that Petitioner acted under color of

official right when accepting these monies. Petitioner’s

defense sought to develop through testimony that it

was known that he had received a $5,000.00 contribu-

tion from the alleged victim of the Count I. extortion

for use in the campaign; that the Democratic Party

therefore did not have its usual fund raising affairs

in 1971; and was able to run write-in candidates in

the general election (N.T. 1115, 1122, 1293). (Ct. I)

Petitioner contended that the monies received from

the other alleged victim were for expenditures on ath-

letic teams in the Stowe Rox area (N.T. 1129, 1135).

(Ct. II) The jury apparently accepted the fact that

Petitioner had not utilized these monies for personal

gain and acquitted him of the income tax charges based

on receiving them.

Upon Petitioner’s conviction and denial of his Mo-

tion for a New Trial, he was sentenced to pay total

fines amounting to nine thousand ($9,000.00) dollars

Reasons for Granting the Writ.

and imprisoned for a period of four (4) years, con-

currently on Counts I. and II. For conviction of Count

V., he was imprisoned for a consecutive two (2) years

to the four (4) years already imposed. His bond was

continued pending his appeals.

REASONS FOR GRANTING THE WRIT

The Trial Court denied Petitioner due process by re-

fusing to permit the defense to call nine (9) witnesses,

each of whom would testified that the witness was told

by Patsy Bruno, the Party Treasurer, in 1971 that

Gordon Oil (victim of Count I.) had made a political

contribution through Petitioner to the Democratic

Party. Petitioner offered to present these nine (9) wit-

nesses who were prepared to testify that in 1971 at the

time the offenses charged in Count I., and three years be-

fore any government investigation, Bruno, the Demo-

cratic Campaign Chairman in Stowe where Petitioner

was the State Legislator, told each of them that he

had learned that Petitioner had received a political con-

tribution from Gordon Oil. The telling importance of

this testimony, if believed, would seem apparent. An

open and well known disclosure of the receipt of monies

was the core of Petitioner’s defense and highly proba-

tive to his contention that such notoriety is at once

utterly inconsistent with the conduct of one who is al-

leged to be an extorter or an income tax evader.?

At the time that counsel argued for the admissi-

bility of the testimony of these witnesses (N.T. 704-

2. Counts I. and II. charged attempted extortion.

Counts VII. and IX. charged income tax evasion in fail-

ing to report these same monies as personal income.

Reasons for Granting the Writ.

718), the Trial Court ruled that it would permit these

witnesses to be called in the event the government were

to challenge the records of the County Election Bureau

(N.T. 752, 1346) which showed that the five thousand

($5,000.00) dollars from Gordon Oil was reported as

campaign income.* The government did in fact chal-

lenge this record in at least three ways.

First, in government cross-examination of Mrs.

Patsy Bruno, the wife of the Party Treasurer, the

prosecutor focused on the alleged normal completeness

of Patsy Bruno’s records (N.T. 768). He then asked

a series of nage clearly implying that the election

record in question was incomplete as there were no

other corroborating documents and that in fact the

five thousand ($5,000.00) dollars contribution listed in

the County Election Report was never received by the

Democratic Party (N.T. 794 et seq).4

Secondly, the government attacked the complete-

ness of the party records by inference throughout the

trial. This was evident not only with Mrs. Bruno (N.T.

768-799) but with Petitioner’s cross-examination.

Finally, the prosecutor challenged the County Rec-

ord a third time in his closing argument. His state-

ment that Bruno’s personal records showed no receipt

3. “... maybe at the end if there is an attack on

that we will let you bring it in.” (N.T. 1346). See also

N.T. 711-713. This document showed that five thousand

($5,000.00) dollars was reported as a political contri-

bution from Gordon Oil in the 1971 election. Petitioner’s

Exhibit 3. The Court felt this document alone precluded

presenting other evidence (N.T. 713).

4. The government specifically expressed misgiv-

ings about the authenticity of the document to the

Court during oral argument. See N.T. 752.

Reasons for Granting the Writ.

of five thousand ($5,000.00) dollars from Petitioner or

anyone else was a direct attack of the County Record

(N.T. 1609-1610). Thus, the conditon precedent estab-

lished by the Court for the admission of the testimony

was in fact met.®

In any event, the Court itself conceded that the

legislative history of the new Federal Rules of Evidence

suggested that Congress expected to develop further

exceptions to the Hearsay Rule (N.T. 709), and that

there should be some relaxation of this Rule in a crim-

inal case in the interest of justice (N.T. 813). WEIN-

STEIN ON EVIDENCE, Volume 1, Rule 102. Rule 102 pro-

vides that rulings should be made for among other

reasons

“the promotion of growth and development of the

law of evidence to the end that the truth may be

ascertained and proceedings justly determined”.

Under the circumstances it can hardly be gainsaid that

inhibiting Petitioner from corroborating a critical con-

tention of his defense, particularly where attacked by

the prosecution, was infinitely crippling to his defense

and violative of his due process rights since the tes-

timony of these nine witnesses would have properly

been admissible under Rules 804(b) (3), 804(b) (5), or

803 (24) of the Federal Rules of Evidence.

5. See N.T. 1337—where counsel for the third time

before resting asked for the right to call the nine wit-

nesses.

10

Reasons for Granting the Writ.

A.

The Testimony Was Admissible Under Rule 804(b) (3)

as a Declaration Against Penal Interest.

It is a violation of 25 P.S. §3542 (State) and 18

U.S.C. 8610 (Federal) of Election Codes, and therefore

a criminal offense, for a corporation to make campaign

contributions to a political party or committee. The

declarant here, could be charged as an aider and abettor,

or accessory to the crime committed by Gordon Oil

(the victim in Count I.) in giving the five thousand

($5,000.00) dollars to a political campaign. His state-

ments to the nine witnesses with respect to his having

received the five thousand ($5,000.00) dollars would

have been against his penal interest and thus admissible.

If believed by the jury, it would obviously be offered to

exculpate the accused, as we have already pointed out

elsewhere, as it would show that he, the Petitioner, had

not committed any tax or Hobbs violations as the

money was immediately turned over to the Party as a

political contribution.

11

Reasons for Granting the Writ.

The Testimony Was Admissible Under Rule 804(b) (3)

as a Declaration Against Pecuniary or Proprietary In-

terest Within the Meaning of Rule 804(b)(3).

Furthermore, the declarations were against the

declarant’s pecuniary or proprietary interest. In his

individual capacity, the statement was, of course, not

against that interest. But to the extent that he repre-

sented the political party, as Treasurer, his declarations

that he had received five thousand ($5,000.00) dollars

from a corporation and as a consequence the Party did

not need to raffle or make other normally heroic fund

raising efforts, necessarily served to reduce the Party’s

potential for acquiring additional campaign funds.

Hence, it would be unlikely for him to declare the

existence of a significant corporate contribution which

would deter other contributions and efforts to raise

funds, unless such a contribution had, in fact, been

made by the corporation to the Party Campaign.

12

Reasons for Granting the Writ.

C.

The Testimony Was Admissible Under Rule 803(24)

and Rule 804(b)(5) of the Federal Rules of Evidence.

The testimony could alternatively had been ad-

mitted under the provisions of Rule 803(24) or Rule

804 (b) (5) as a declaration having equivalent circum-

stantial guarantees of trustworthiness, particularly

considering the liberality with which the Federal Rules

of Evidence are to be construed.

II.

The Court denied Petitioner due process by refusing

to permit the defense to call two witnesses, each of

whom would have testified that he had been advised by

one or more of Petitioner's specifically named political

enemies that arrangements had been made by them to

frame Petitioner through the use of an oil company man

(Gordon — County I. and V.), and a heating and air con-

ditioning man (Laux — Count II.). The Trial Court ruled

that in order to lay a foundation for the testimony of

these two witnesses, it was necessary to call the political

enemies (the Ciamaccos) and inquire as to whether or

not they had in fact made such arrangements. Three of

the Ciamaccos were called; the questions were put and

each refused to answer any questions, claiming his Fifth

Amendment constitutional privilege. The Trial Court

then refused to allow Petitioner’s two witnesses to

testify with respect to what the Ciamaccos had related

to them (N.T. 928, 1067).

This testimony we contend was admissible as a

declaration against interest under Rule 804(b) (3) of

the Federal Rules of Evidence. The Ciamaccos were un-

13

Reasons for Granting the Writ.

available under the exception of Rule 804(a)(1) pro-

viding:

“Unavailability as a witness includes situations in

which the declarant is exempted by ruling of the

Court on grounds of privilege from testifying con-

cerning the subject matter of his statement“.

As the Tenth Circuit held in Mason v. United States,

408 F.2d 903 (10th Cir. 1969):

“The requirement of unavailability is satisfied

when the witness is physically present but the testi-

mony is unavailable because of the invocation of

the Fifth Amendment Privilege“.

See also United States v. Elmore, 423 F.2d 775, 778 (4th

Cir. 1970).

The Ciamaccos’ statements if true clearly suggest

criminal culpability for obstruction of justice, suborna-

tion of perjury and other possible criminal acts, and are

therefore manifestly against penal interest, as pro-

vided in Rule 804(b) (3).

Moreover, this Court in Chambers v. State of Mis-

sissippi 410 U.S. 284 (1973), suggests that the burden

placed on an accused to corroborate testimony as may

be contemplated by a rule of court not be too high. See

also J. WEINSTEIN & M. BERGER WEINSTEIN’S EVIDENCE,

§804(b) (3) [03] at p. 804-91 (1975); and US. v.

Jaconetti, 18 CR 2419 (1976), where Judge Weinstein

himself analyzed Rule 803(24) in support of admis-

sibility of hearsay witnesses. The case sub judice is

remarkably similar to Jaconetti.

14

Reasons for Granting the Writ.

There, as here, the testimony, if true, was certainly

relevant and offered as evidence of a material fact Rule

401.6

There, as here, the alleged statement was made

close on the heels of the criminal event and to persons

with whom it was appropriate and even necessary to

communicate, factors which Judge Weinstein found to

mitigate the risks of insincerity and faulty memory.

Moreover, the quality of these facts were thought by

him to be the equivalent in reliability to those of many

of the other exceptions and superior to some in the

Federal Rules permitting hearsay.

Finally there, as here, the statements of these wit-

nesses was more probative on the point than any other

evidence which the Petitioner could procure through

reasonable efforts.

Indeed, Weinstein, the author, believes that the

test of Rule 403 is applicable, and that the Court should

only ask for sufficient corroboration to “clearly” permit

a reasonable man to believe that statement might have

been made in good faith and that it could be true. WEIN-

STEIN’S EVIDENCE, supra, at p. 804-91.

6. Gordon’s testimony that he paid Petitioner to

permit his Company to open a warehouse already ad-

mittedly opened in violation of state law was the grava-

men of Count I. Discrediting this testimony was of

obvious importance.

15

Reasons for Granting the Writ.

III.

The Trial Court erred in permitting the case to be

submitted to the jury on the theory of Petitioner's con-

duct while acting under color of official right. Petitioner

is, of course, aware of this Court's refusal to grant cer-

tiorari in United States v. Mazzei, 521 F.2d 639 (3rd

Cir. 1975), cert. den. 423 U.S. 1014, 96 S.Ct. 446 (1975).

Nevertheless, this Court is invited to reconsider that

decision where as here the Petitioner was charged with

violation of Hobbs while acting under color of official

right as a State Legislator. 8

8. Count I. charges inter alia “said consent being

induced and to be induced under the color of official

right“.

Count II. is couched in identical language.

16

Conclusion.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

GREENFIELD & MINSKY

STANLEY W. GREENFIELD,

Attorney for Petitioner

17

Certificate of Service.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the within Petition

For A Writ Of Certiorari To The United States Court Of

Appeals For The Third Circuit was mailed by United

States Mail, Postage Prepaid, on the 25th day of Feb-

ruary, 1977, to the Solicitor General of the United

States, Department of Justice, Tenth and Constitution

Avenues, Washington, D.C. 20530.

GREENFIELD & MINSKY

STANLEY W. GREENFIELD

Attorney for Petitioner

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 76-1395

(D.C. Criminal No. 75-227)

UNITED STATES OF AMERICA

v.

MAX H. HOMER, a/k/a MAX H. HOMER, JR.

Max H. Homer, Appellant

Petition for Rehearing

by the Original Panel

Petitioner, MAX H. HOMER, respectfully repre-

sents:

1. The Court’s Opinion incorrectly concludes that

Appellant’s offer to have nine (9) witnesses testify

at trial was solely for the purpose of defending himself

on income tax counts of which he was acquitted. Opin-

ion, page 5. Thus, the Court reasoned it need not decide

Appellant’s proffered grounds for the admissibility of

this evidence under the Federal Rules of Evidence, as

this testimony might relate to his conviction on the

charge of extortion. Id., page 5.

2. A plain and fair reading of the record indicates

that said testimony of nine (9) witnesses was patently

offered for the twin purposes of meeting both the extor-

tion charge and the income tax charges against the

Appellant and not only the income tax charges of which

he was acquitted.

3. This Court itself observed that Appellant’s Brief

argues:

“the ‘open and well known disclosure of the receipt

of monies was the core of appellant’s defense and

2a

Appendix.

highly probative [of] his contention that such noto-

riety is at once utterly inconsistent with the con-

duct of one who is alleged to be an extorter or an

income tax evader.’ Brief for Appellant at 9.” Opin-

ion, page 4.

4. Furthermore, government counsel, the Court and

defense counsel throughout argument on admissibility

of this testimony made no distinctions as fashioned by

this Court. Rather, disagreement between the parties

and the Trial Court turned on the substantive issues of

trustworthiness, and not on relevancy to a particular

charge or count.

5. Moreover, the record shows that:

(a) at 523, Appellant’s initial offer of proof

was made without distinction as to which charge

(i.e. extortion or income tax) it related.

(b) at 706, a reading of the complete para-

graph of counsel’s comments in argument for ad-

missibility reflects that both the extortion and in-

come tax counts were being considered. Counsel’s

contention that the evidence was a defense to the

income tax count was merely an illustration, when

fairly considered in the context of the argument

on the issue.

(e) at 1540 et seq, defense counsel in closing

argued without objection by the government:

“Does it make sense, or does it boggle the mind to

think that anybody would extort $5,000.00 or five

cents and then report it on a campaign contribution

form where all concede it is recorded on a public

record, or is it consistent with Dr. Homer’s con-

tention that he accepted it as a campaign contri-

3a

Appendix.

bution and did so because of a voluntary giving of

it by the Gordon Service people?”

(d) at 1624, where the defense continues in

argument that the nine (9) witnesses should have

been called, no distinction between offenses (i.e.

extortion or bribery) is made, nor do the govern-

ment or the Court make any, all we contend be-

cause the evidence was indeed intended to be appli-

cable to both charges, as all so understood it.

WHEREFORE, your Petitioner requests reconsider-

ation of the judgment entered on November 18, 1976

so that the Court can reach the substantive issues raised

in the appeal.

Respectfully submitted,

GREENFIELD & MINSKY

Stanley W. Greenfield

Attorney for Appellant/

Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on the 2nd day of December,

1976, two (2) true and correct copies of the foregoing

Petition were served upon the United States of America,

by mailing said copies through the United States Mail,

postage prepaid, to Appellee Attorney of Record,

ROBERT PLAXICO, ESQUIRE, Government Attorney, United

States Department of Justice, Appellate Section—Crim-

inal Division, Post Office Box 899, Washington, D.C. 20044.

GREENFIELD & MINSKY

Stanley W. Greenfield

Attorney for Appellant

4a

Appendix.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1395

UNITED STATES OF AMERICA

v.

MAX H. HOMER a/k/a Max H. Homer, Jr.

Max H. Homer, Appellant

Sur Petition for Rehearing

Present: VAN DUSEN, ROSENN, Circuit Judges and CAHN,

District Judge

The petition for rehearing filed by Max H. Homer,

Appellant, in the above entitled case having been sub-

mitted to the judges who participated in the decision

of this court and no judge who concurred in the de-

cision having asked for rehearing, the petition for re-

hearing is denied.

By THE CouRT,

‚— y! ͤèʒtMMlꝓ9ꝓ„—»— — „

Dated: December 28, 1976

Appendiæ.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1395

UNITED STATES OF AMERICA

v.

MAX H. HOMER

a/k/a Max H. Homer, Jr.

MAX H. HOMER, Appellant

Appeal from the United States District Court for the

Western District of Pennsylvania

Crim. No. 75-227

6a

Appendix.

Argued October 7, 1976

Before VAN DUSEN and ROSENN, Circuit Judges, and

CAN,“ District Judge

STANLEY W. GREENFIELD, ESQUIRE

GREENFIELD & MINSKY

412 Carlton House

Pittsburgh, Pa. 15219

Attorney for Appellant

BLAIR A. GRIFFITH

United States Attorney

Western District of Pennsylvania

MILTON J. CARP

CARL L. LOPRESTI

Special Attorneys

Pittsburgh Strike Force

JEROME M. FEIT

ROBERT H. PLAXICO

Attorneys

U.S. Department of Justice

Washington, D.C. 20530

Edward N. Cahn of the United States District

Court for the Eastern District of Pennsylvania sitting

by designation.

7a

Opinion of the Court.

Opinion of the Court

(Filed Nov. 18, 1976)

PER CURIAM

The appellant, Max H. Homer, was tried by a jury in

the United States District Court for the Western Dis-

trict of Pennsylvania and convicted on two counts of

extortion in violation of the Hobbs Act, 18 U.S.C. 81951

(1970) (counts I and II of the indictment), and on one

count of perjury in violation of 18 U.S.C. $1623 (1970)

(count V of the indictment).! He appealed to this court

assigning a number of errors committed by the district

court during the course of the trial. We affirm the judg-

ment of the district court.

Appellant, who during the time covered by the

indictment against him represented the Stowe Rox area

near Pittsburgh in the Pennsylvania House of Repre-

sentatives, was charged in count I of the indictment?

1. Appellant was acquitted on four other counts

charging attempted extortion, obstruction of justice,

evasion of income tax, and false filing of an income tax

return. The two remaining counts of the nine-count

indictment were severed before trial.

2. Count I charged the defendant-appellant with

extortion, in violation of 18 U.S.C. §1951 (1970), by

using his official position as a member of the Pennsyl-

vania House of Representatives “to wrongfully and un-

lawfully obtain and attempt to obtain property of the

value of $6,500, . . . in the form of money and checks,

from Thomas Gordon and Ralph Castellucci as agents

and representatives of the... Gordon Terminal Service,

Inc. with the consent of the said Thomas Gordon and

Ralph Castellucci, said consent being induced . . . under

the color of official right, and by the wrongful use of

fear, in that the defendant did threaten the said Gor-

don Terminal Service, Inc., its agents and representa-

8a

Opinion of the Court.

with extorting property “in the form of money or

checks” from Gordon Terminal Service, Inc., (“Gor-

don“) in violation of 18 U.S.C. §1951 (1970). Count II

similarly charged appellant with extorting money under

color of official right from Ruthrauff, Inc., in violation of

18 U.S.C. $1951.3

Count V of the indictment charged the appellant,

who had appeared before a grand jury investigating

alleged violations of section 1951, with testifying false-

ly concerning the Gordon transaction. Specifically, the

indictment charged that appellant made a false material

declaration to the grand jury when he testified on Aug-

ust 29, 1974, that he had requested Ernest Bulgarelli,

a Safety Inspector for the Commonwealth of Pennsyl-

vania, to furnish construction plans to J. J. Balobeck,

the architect for the Gordon warehouse.

Inasmuch as the appellant challenges evidentiary

rulings of the trial judge rather than the sufficiency

of the evidence against him, we need not summarize

the testimony adduced by the Government in support

tives, with delay and denial of the right to occupy a

new warehouse which was important to the continu-

ation of the said corporation’s business.”

3. Count II charged the defendant-appellant with

unlawfully obtaining and attempting to obtain, under

color of official right as a member of the Pennsylvania

House of Representatives, “property of the value of

$3,010.92 . . from Ignatius Laux, as an agent and

representative of.. Ruthrauff, Inc., with the consent

of the said Ignatius Laux, said consent being induced

.. . by the wrongful use of fear, in that the said de-

fendant did threaten the said Ruthrauff, Inc. its agents

and representatives, with delay and denial of the right

to occupy a building which was important to the con-

tinuation of the business of the said Ruthrauff, Inc.,“ in

violation of 18 U.S.C. 81951 (1970).

9a

Opinion of the Court.

of the indictment. Appellant’s principal contentions, both

of which were briefed and argued orally on appeal, are

that the district court erred: (1) in refusing the de-

fense to call nine witnesses, each of whom would have

testified that in 1971 he or she was told by Patsy Bruno,

Treasurer of the Local Democratic Party Campaign

Committee, that Gordon Terminal Service, Inc., had

made a political contribution through the appellant,

Max Homer, to the Democratic Party; and (2) in re-

fusing to grant the appellant’s motion for a mistrial

because of the prosecution’s improper closing argu-

ment to the jury.

I.

Appellant asserts that he had nine witnesses who

were prepared to testify at trial that in 1971, when

the offenses of extortion charged in count I of the in-

dictment were alleged to have occurred, Patsy Bruno,

the treasurer of the Stowe Rox Demorcatic Party or-

ganization for the 1971 general election, told each of

them that Gordon had made a $5,000 political contribu-

tion to the Democratic Party through Homer. Ap-

pellant contends this testimony, if beleived, would sup-

port his contention that he was not an extorter or

income tax evader; the “open and well known disclosure

of the receipt of monies was the core of appellant’s

defense and highly probative [of] his contention that

such notoriety is at once utterly inconsistent with the

conduct of one who is alleged to be an extorter or an

income tax evader.” Brief for Appellant at 9.

4. Bruno died on July 2, 1973, more than two

years before Homer’s trial.

10a

Opinion of the Court.

The trial judge ruled that he “might” permit the

nine witnesses to be called in the event that the Gov-

ernment challenged a record of the Allegheny County

Department of Elections which the defense had in-

troduced into evidence and which listed the $5,000 con-

tribution from Gordon as campaign income. Homer

insists that the Government did in fact challenge this

record at least three times. The appellant contends

that during the cross-examination of Mrs. Patsy Bruno,

widow of the party treasurer, the prosecutor asked

a series of questions implying that the election record

was incomplete and that the $5,000 contribution re-

corded in the county election report was never received

by the Democratic Party. Homer alleges that another

inferential attack on the completeness of the record

occurred when he himself was cross-examined by the

prosecutor. Finally, asserts the appellant, the Govern-

ment challenged the election record in its closing to

the jury, when the prosecutor argued that Patsy Bru-

no’s personal records showed no receipt of $5,000 from

Homer or from anyone else. Homer therefore concludes

that the condition set by the trial judge for the ad-

mission of the testimony of the nine witnesses was

met and that the judge erred in excluding it. In addi-

tion, the appellant maintains that the testimony of

those witnesses was admissible under Rules 804(b) (3),

804(b) (5), and 803(24) of the Federal Rules of Evi-

dence.

The trial judge excluded the testimony of the nine

witnesses for two reasons. First, he had already al-

lowed the defense to introduce a photocopy of the of-

ficial election record, signed by Bruno, which reflected

the information to which the nine witnesses would

purportedly have testified. Second, he found that the

lla

Opinion of the Court.

testimony lacked the circumstantial guarantees of trust-

worthiness required by the Federal Rules of Evidence

for the admissibility of such hearsay. Fed. R. Evid.

803 (24), 804(b) (3), 804(b) (5).

We need not decide whether the hearsay testimony

of the nine witnesses was admissible under Rules

803 (24), 804(b) (3), or 804(b) (5). That testimony was

offered not as a defense to the extortion counts on

which the appellant was convicted, but solely as a de-

fense to the income tax evasion charges of which he

was acquitted. In arguing for the admissibility of the

testimony, defense counsel described the specific pur-

poses for which it was offered:

This is the defense to the income tax count. If he

[Homer] did not use, and if he took the money

by extortion under the most gross circumstances

and gave it to the nunnery, he wouldn’t be guilty

of income tax evasion but might be guilty of ex-

tortion.

Inasmuch as the appellant was acquitted of the income

tax evasion counts, we find no reversible error in the

exclusion of testimony offered as a defense to those

charges.5 Mc~veover, evidence that Homer received the

$5,000 from Gordon and delivered it to the local party

treasurer is not probative of the charge that Homer

exacted the money by extortion.

5. Cf. McCormick’s Handbook of the Law of Evi-

dence §52, at 112 n.15 (2d ed. E. Cleary 1972) (“[I] f a

specific ground for admission is claimed in the offer of

proof but is not applicable and the judge excludes the

evidence, the proponent cannot complain if there was

another ground for admission.“); cases cited in J. Wig-

more, Evidence §17 at 81 (W. Reiser ed. Supp. 1975).

12a

Opinion of the Court.

II.

The appellant's contention that the trial judge

erred in refusing to grant the defense motion for a

mistrial is based on the following comment in the prose-

cutor’s closing argument:

Now this is a sensitive and important case,

as Mr. Greenfield [defense counsel] told you, in

more than one way. It is an important case because

people are watching. There is a precedent going

to be set here. People will want to know if they are

going to be free from these oppressive tactics we

have seen.

We ask you to find the defendant guilty on

all counts in the indictment, and by doing that,

you will get a message across to all other people

who would seek to use the power of their office

to abuse it, if you will, under color of official

right in instilling fear in business, that we are

not going to stand for it, that the citizens and

taxpayers are not going to stand for it, it has to

stop now.

Citing the American Bar Association Standards

Relating to the Prosecution Function® and cases con-

6. Standards 5.8(c) and (d) of the American Bar

Association Standards Relating to the Prosecution

Function provide:

5.8(c) The prosecutor should not use arguments

calculated to inflame the passions or prejudices of

the jury.

5.8 (d) The prosecutor should refrain from argu-

ment which would divert the jury from its duty to

decide the case on the evidence, by injecting issues

broader than the guilt or innocence of the accused

under the controlling law, or by making predictions

of the consequences of the jury’s verdict.

13a

Opinion of the Court.

struing language allegedly similar to that used by the

prosecutor in the instant case, appellant argues that

the foregoing comment introduced “facts beyond the

record, and [tended] to cajole or coerce [the] jury

merely for the sake of public approval.”

In the recent years we have had the occasion to

admonish counsel for thoughtless and inappropriate

remarks made in the course of heated and vigorously

contested trials. At times, extemporaneous comments

in a closing argument may exceed the bounds of good

taste or propriety without necessarily rising to the

level of reversible error. At other times, the comments

are so grossly improper as to prejudice a defendant

and deny him a fair trial. We have held remarks re-

flecting the prosecutor’s personal opinion on the guilt

of a defendant based on evidence not in the record to

be per se reversible error. United States v. Schartner,

426 F.2d 470, 478 (3rd Cir. 1970); see United States v.

Benson, 487 F.2d 978, 981 (3rd Cir. 1973). This, how-

ever, is not such a case.

We acknowledge that the prosecutor’s remarks

were rash and inappropriate. As we have previously

stated, however,

[t]rials are rarely, if ever, perfect and improperi-

eties of argument by counsel to the jury do not

call for a new trial unless they are so gross as

probably to prejudice the defendant and the preju-

dice has not en neutralized by the trial judge

before submission of the case to the jury.

United States v. Leftwich, 461, F.2d 586, 590 (3rd Cir.),

cert. denied, 409 U.S. 915 (1972). Accord, United States

v. Somers, 496 F.2d 723, 737 (3rd Cir.), cert. denied,

14a

Opinion of the Court.

419 U.S. 832 (1974): [Wie will reverse upon demon-

stations of prosecutorial misconduct only in those situa-

tions in which prejudice inures to the defendant from

the challenged improprieties.” Our awareness of the

nature of opening and closing arguments in an ad-

versary proceeding and our concern for judicial ad-

ministration precludes us from setting aside a verdict

and ordering a new trial every time an advocate is

verbally indiscreet unless his remarks are obviously

prejudicial. In recent years this court has found prose-

cutorial conduct improper but not prejudicial in a num-

ber of cases. See cases cited in United States v. Somers,

496 F.2d at 736 n.24.

The prosecutor’s questionable comment constituted

two small paragraphs in the sixty pages of his closing

argument. He had previously cautioned the jury not

to consider his remarks as evidence. The remarks were

not so shocking as to suggest to the defense that it

seek curative instructions immediately. Moreover, in

response to defendant’s subsequent complaint, the trial

judge admonished the jury that they should determine

the issues of fact “without bias or perjudice or sym-

pathy as to any party.” He further informed them

that our legal system “does not permit jurors to be

governed by sympathy, bias, or prejudice, or even pub-

lic opinion.” Finally, after admonishing the jury not to

convict the defendant unless his guilt was proven beyond

a reasonable doubt, the trial judge told the jury, “Keep

constantly in mind you may not find the defendant

guilty upon anything other than the evidence in this

case.“

We conclude that under these circumstances, the

remarks of the prosecutor were not so pervasive, gross,

or inflammatory as to constitute prejudicial error.

15a

Opinion of the Court.

III.

We have also carefully considered each of the re-

maining contentions urged by the appellant and find

them without merit, to-wit:

(1) that the court erred in refusing to permit the

defense to call two witnesses, each of whom would

have testified that he had been advised by one or

more of the Ciamaccos that arrangements had been

made to frame the appellant through the use of an oil

company man and a heating and air conditioning man;7

(2) that the court erred in admitting the evidence

of a One Thousand Five Hundred Dollar ($1,500) check

made payable to Dr. Homer by J. J. Balobeck Associ-

ates, Government Exhibit 19;8

(3) that the court erred in refusing appellant’s

motion for mistrial when Government counsel cross-

examined the appellant’s witness, Beaver Parillo, on

whether he and his brother were in debt for gambling;®

(4) that the court erred in permitting the case to

be submitted to the jury on the theory of appellant’s

conduct while acting under color of official right; 10

(5) that the court erred in failing to grant a sev-

erance of the extortion and false declaration counts. 11

The judgment of the district court will be affirmed.

7. See Donnelly v. United States, 228 U.S. 243,

273-77 (1913); United States v. Pena, 527 F.2d 1356,

1362 (5th Cir.), cert. denied, 44 U.S.L.W. 3738 (U.S.

June 21, 1976) (discussing the requirements set out in

Chambers v. Mississippi, 410 U.S. 284 (1973) ).

— United States v. Bloom, 482 F. 2d 1162 (Sth Cir.

9. Fed. R. Crim. P. 52 (a).

10. United States v. Mazzei, 521 F.2d 639, 643 (3d

Cir.), cert. denied US. , 96 S.Ct. 446 (1975).

11. United States v. Pacente, 403 F.2d 543 (7th

Cir.), cert. denied, 419 U.S. 1048 (1974); United States

v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409

U.S. 949 (1972).

16a

Judgment.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1395

UNITED STATES OF AMERICA

v.

MAX H. HOMER

a/k/a Max H. Homer, Jr.

MAX H. HOMER, Appellant

(D. C. Criminal No. 75-227)

On Appeal from the United States District Court

for the Western District of Pennsylvania

Present: VAN DuUsEN and ROSENN, Circuit Judges and

CAHN,” District Judge

Judgment

This cause came on to be heard on the record from

the United States District Court for the Western Dis-

trict of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court, filed on March 12, 1976, be, and the

same is hereby affirmed.

ATTEST:

THOMAS P. QUINN

Clerk

November 18, 1976

*Edward N. Cahn of the United States District

Court for the Eastern District of Pennsylvania sitting

by designation.

17a

Memorandum Opinion.

IN THE

UNITED STATES DISTRICT COURT

FoR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Criminal

v.

Max H. HoMER | No. 15-227

Memorandum Opinion

The above-named defendant was convicted of three

counts of a nine-count indictment by a verdict of a jury

after a twelve day trial. The counts on which he was

found guilty involved two charges of violation of the

Hobbs Act (18 U.S.C. 1951) by extorting money in such

a way as to obstruct, delay or affect interstate com-

merce and one count of a false declaration to a Grand

Jury (18 U.S.C. 1623).

The indictment originally contained nine counts.

Count one concerned extortion from Gordon Terminal

Services, Inc. Count two covered extortion from Ruth-

rauff, Inc., both business concerns located in McKees

Rocks, Allegheny County, Pennsylvania. County three

covered attempted extortion from a business concern

operated by Frank Roman doing business as Rocks

Plumbing and Heating Company. Count four covered

obstruction of justice with respect to the testimony of

one Ernest Bulgarelli an inspector for the Pennsylvania

Department of Labor and Industry. Count five covered

a false declaration to the Grand Jury relative to a re-

quest to Bulgarelli to furnish plans to one Joseph J.

Balobeck in connection with the construction of a build-

ing for Gordon Terminal Service, Inc. Counts 7 and 9

18a

Memorandum Opinion.

covered evasion of income tax and filing a false income

tax return for the year 1971. The original indictment

also contains Counts 6 and 8 relative to income tax vio-

lation for the year 1968. By order dated June 9, 1975,

Counts 6 and 8 were ordered severed, because in the

opinion of the court they were not related to the extor-

tion and other counts in the indictment, whereas Counts

7 and 9 were related to the obtaining of extortion money

during the year 1971. There has as yet been no trial with

respect to the charges contained in Counts 6 and 8. To

avoid confusing the jury, Counts 7 and 9 were renum-

bered as Counts 6 and 7 for the purpose of this trial.

The jury, after lengthy deliberations, convicted the

defendant on Counts 1, 2 and 5, but acquitted him on

Counts 3, 4, 6 and 7.

The defendant has filed a motion for new trial or for

judgment of acquittal with respect to this conviction on

the three counts, 1, 2 and 5. The defendant did not argue

that there was insufficient evidence to convict him of

extorting money from the two firms named (hereinafter

referred to as Gordon Oil, mentioned in Count 1 and

Ruthrauff, referred to in Count 2), if the court’s inter-

pretation of the Hobbs Act 18 U.S.C. 1951 applying the

decision of the Court of Appeals for the Third Circuit

in United States v. Mazzei, 521 F 2d 639 (3d cir July

29, 1975) is correct. There was ample evidence from

which the jury would have been justified in finding that

both of these firms had sufficient nexus with interstate

commerce to meet the test in Mazzei, supra. United

States v. Addonizio, 451 F 2d 49 and United States v.

Staszcuk, 517 F 2d 53 (7th cir 1975). The evidence, if

believed by the jury, as it obviously was, indicated that

with respect to Gordon Oil the defendant at the time

19a

Memorandum Opinion.

in question, viz: April through July, 1971, being a mem-

ber of the House of Representatives of Pennsylvania,

did extort the sum of $6500 from the representatives of

Gordon Oil for the purpose of securing a permit to

occupy a new building erected by them and then ready

for occupancy subject to the approval of the Pennsyl-

vania Department of Labor and Industry. Bulgarelli was

an inspector for this department for whom the de-

fendant had secured his job. The government’s evidence

also indicted the plaintiff also extorted the sum of $3,010

from one Laux, representative of Ruthrauff, who also

had a need to occupy a new building and as to which

the occupancy was questioned by Bulgarelli.

Following the jury’s verdict which was rendered on

August 21, 1975, the defendant filed a motion for judg-

ment of acquittal or in the alternative for a new trial

on August 29, 1975, which alleges various errors made

during the trial and also claims judgment of acquittal

should be granted because the evidence did not show

that defendant was acting under color of official right

as required by the provisions of 18 U.S.C. 1951.1

Under Rules 29, 33 and 34 of the Federal Rules of

Criminal Procedure, motions for judgment of acquittal,

1. “Interference with commerce by threats or

violence.

(a) Whoever in any way or degree obstructs,

delays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or ex-

tortion or attempts or conspires so to do, or commits

or threatens physical violence to any person or prop-

erty in furtherance of a plan or purpose to do any-

thing in violation of this section shall be fined not more

— 2 810,000 or imprisoned not more than twenty years,

or both.

(b) As used in this section —

20a

Memorandum Opinion.

for a new trial and in arrest of judgment must be made

within seven days after verdict or “within such further

time as the court may fix during the seven-day period.”

Under Rule 45(a), it is clear that the last day for

filing such a motion was Thursday, August 28, 1975, and

under Rule 45(b) the court has no power to extend the

time for filing such motions. The court is therefore

without authority to consider the original motion for

judgment of acquittal or for new trial. See United States

v. Johnson, 487 F 2d 318 (5th cir 1974); Rowlette v.

United States, 392 F 2d 437 (10th cir 1968); United

States v. Matthews, 335 FS 157 (W.D.Pa. 1971).

Defendant cites Hauger v. Hauger, 376 Pa 216, 101

A 2d 632 (1954) as standing for the proposition that

procedural defects can be waived. Basically, that case

holds that it is too late to raise procedural defects unob-

jected to after a sale in partition where a party does

not find the result to his liking. It was not a criminal

case and being a state case, this court is not bound by

it in construing federal federal criminal rules which in

no uncertain terms deny the court power to consider

these motions or to extend the time after the lapse of

seven days.

In any event, the court has examined the record

and has found no substantial error to the prejudice of

the legal rights of the defendant in the matters com-

plained of in the original motion for new trial. With

respect to the motions for judgment of acquittal the

court finds that there was ample evidence to justify the

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.”

—— lla

21a

Memorandum Opinion.

jury in determining that the defendant was acting under

color of official right in receiving these payments from

Gordon Oil and from Ruthrauff. Under United States v.

Mazzei, supra, it was not necessary to determine that

the defendant as a state legislator had the de jure power

to dictate the holding up of occupancy permits for the

new buildings which these business concerns had ur-

gent need to occupy or to issue permits waiving certain

alleged defects in the construction of the building. It

was only necessary for the jury to determine that the

businessmen in question had a reasonable belief that the

state system so operated in the light of Bulgarelli’s

suggestion to them to see Homer and get the matter

straightened out plus the fact that Homer had secured

Bulgarelli’s appointment as State Building Inspector.

We therefore have a reasonable belief that the power

in fact of defendant’s office included effective authority

to determine these matters and that exploitation of such

a belief amounted to extortion under color of public of-

fice. That the defendant may have treated the sums re-

ceived as political contributions or used them for other

purposes is no defense and beside the point. See United

States v. Trotta, 525 F 2d 1096 (2nd cir 1975).

This disposition of the original motion for new

trial and for judgment of acquittal does not, however,

solve the matters covered in the supplemental motion

for judgment of acquittal or in the alternative for a

new trial filed November 14, 1975. This motion raises

the question of the effect of certain matters upon the

jury’s verdict and requires the court to determine

whether or not such matters as are raised in the motion

and the affidavits filed in this court raise circumstances

under which impeachment of a jury verdict is allowed.

22a _

Memorandum Opinion.

These items are covered in paragraphs 1, 2 and 3 of the

supplemental motion. Paragraph 4 covers the question

of severance of Counts 1 and 2 from Count 5 which

is again a matter which should have been raised in the

untimely motion for new trial and hence cannot be

considered. United States v. Matthews, supra. In any

event the court’s memorandum and order of June 9,

1975, denying motion for severance except as to Counts

6 and 8 pertaining to unrelated income tax charges suf-

ficiently covers this question.

Paragraph 5 of the supplemental motion relates to

a lately discovered witness. It therefore appears that

the matters raised in paragraphs 1, 2, 3 and 5 of the

supplemental motion come within the “ground of newly

discovered evidence” as a reason for new trial under

Rule 33 which reasons can be raised at any time within

two years. We will therefore now address ourselves to

these matters, together with a motion still pending to

quash a subpoena duces tecum against Roger Stuart, a

newspaper reporter.

I. Impeachment of Verdict.

The supplemental motion in paragraphs 1, 2 and

3 allege that the deliberations of the jury were affected

by the introduction of extraneous and impermissible

matter prejudicial to the defendant, that certain jurors

believed the defendant to be innocent but were told

that the majority would prevail and that the majority

believed the defendant guilty. For this reason, it is al-

leged that the jurors in question signed the verdict

slip, that the verdict as signed by them and returned

was not their verdict and that when they were polled

these two jurors did not understand the questions being

Memorandum Opinion.

23a

asked and thought they were only being asked whether

they were present. When they were sequestered for the

night during deliberations, it is alleged that various

jurors watched and heard news broadcasts concerning

the trial of the defendant in violation of the court’s in-

struction and that at least one juror was able to utilize

the telephone in his room to communicate with his wife.

Fortunately, we have very clear guidelines recently

established by the court of appeals for our circuit to

deal with attempts to overturn a verdict on such

grounds. In Government of the Virgin Islands v. Gerau,

523 F 2d 141 (3d cir Sept. 3, 1975) the court said:

“Any attempt to impeach a jury verdict ini-

tially encounters two evidentiary obstacles: (1)

producing evidence competent to attack the verdict,

and (2) establishing the existence of grounds

recognized as adequate to overturn the verdict. And

even where both obstacles are cleared, there must

be a finding that the party seeking to impeach the

verdict has suffered prejudice from the misconduct

of the jury.

“It is frequently said to be the rule that a

juror may not impeach his own verdict once the

jury has been discharged. McDonald v. Pless, 238 US

264 (1915). The rule was formulated to foster

several public policies: (1) discouraging harass-

ment of jurors by losing parties eager to have the

verdict set aside; (2) encouraging free and open

discussion among jurors; (3) reducing incentives

for jury tampering; (4) promoting verdict finality;

(5) maintaining the viability of the jury as a ju-

dicial decision-making body . . The same accommo-

Memorandum Opinion.

dation of policies produced the general rule’s major

exception, which provides that [la] juryman may

testify to any facts bearing upon the question of the

existence of any extraneous influence, although not

as to how far that influence operated upon his mind.’

Mattox v. United States, 146 US 149 (1892), quot-

ing Woodward v. Leavitt, 107 Mass 453. ‘Extran-

eous influence’ has been construed to cover publicity

received and discussed in the jury room, considera-

tion by the jury of evidence not admitted in court,

and communications or other contact between

jurors and third persons, including contacts with

the trial judge outside the presence of the defend-

ant and his counsel. By contrast, evidence of dis-

cussions among jurors, intimidation or harassment

of one juror by another, and other intrajury in-

fluences on the verdict is within the rule, rather

than the exception, and is not competent to im-

peach a verdict.

* * a

“Other than incompetency of a juror during

jury service, see United States v. Dioguardi, supra

at 79, and Jorgensen v. York Ice Machinery Corp.,

160 F 2d 432 (2d cir 1947), these are all incidents

of ‘extraneous influence:’ (1) exposure of jury to

news items ‘about the matter pending before the

jury,’ Remmer v. United States, 347 US 227 (1954);

(2) consideration by the jury of extra-record facts

about the case; (3) communications between third

parties and jurors where relevant to the case to be

decided; (4) pressures or partiality cn the part of

the court.

a Stee eee ane 2

25a

Memorandum Opinion.

“As normal jury pressures and intra-jury in-

fluences may not be impeached by juror evidence,

so also they constitute no grounds for overturning

a verdict. See cases cited at notes 24 and 25, supra;

United States v. Grieco, 261 F 2d 414 (2d cir 1958),

cert. denied, 359 US 907 (1959). Nor, indeed, is a

verdict invalid merely because the jurors’ general-

ized knowledge about the parties, or some other as-

pect of the case, is an ingredient of the decision.

Though ‘the specific guarantees of an impartial

jury and of confrontation,’ as well as ‘the more

general one of due process,’ proscribe consideration

of specific extra-record facts about the case on trial,

it is not necessary that the jurors be ‘totally ig-

norant about a’ case. United States ex rel Owen v.

McMann, 435 F 2d 813 (2d cir 1970) cert. denied,

402 US 906 (1971).

“We cannot expunge from jury deliberations

the subjective opinions of jurors, their attitudinal

expositions, or their philosophies. These involve

the very human elements that constitute one of the

strengths of our jury system, and we cannot and

should not excommunicate them from jury de-

liberations.

“The third-party communication cases break

down, factually, into three major subclasses: (1)

cases where jurors glean from non-jurors facts or

opinions concerning the liability or guilt of a de-

fendant; (2) cases involving attempts by outsiders

to influence the verdict through intimidation or

bribery of jurors; (3) cases where jurors come into

personal contact with persons related to one side or

Memorandum Opinion.

another of the controversy before the jury. See

generally Comment, supra, at 366-69.

“Finally, were we to set aside the jury verdicts

because of these rumors, we would be defeating the

purposes served by the competency-sufficiency

rules in this area of the law. See II-A, supra. If

rumors such as these, filtering into the jury from

no known source, were held sufficient to impeach

these verdicts, jury tampering and harassment

would be encouraged and we ‘would add unduly to

the already fragile state of criminal convictions.’

McMann, supra, at 817.

“Even though a party establishes, by compe-

tent evidence, an act of jury misconduct sufficient

to set aside a verdict, the verdict will stand unless

the party has been prejudiced by the misconduct.”

The Federal Rules of Evidence (effective July 1,

1975, and applicable here) also have very clear and

succinct guidance of this kind. Rule 606(b) provides:

“Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to any

matter or statement occuring during the course of

the jury’s deliberations or to the effect of anything

upon his or any other juror’s mind or emotions as

influencing him to assent to or dissent from the

verdict or indictment or concerning his mental

processes in connection therewith, except that a

juror may testify on the question whether extran-

eous prejudicial information was improperly

brought to the jury’s attention or whether any out-

27a

Memorandum Opinion.

side influence was improperly brought to bear upon

any juror. Nor may his affidavit or evidence of any

statement by him concerning a matter about what

he would be precluded from testifying be received

for these purposes.“

The circumstances sought to be used by the de-

fendant to impeach the jury verdict fall into three gen-

eral categories:

(1) failure of jurors to understand that the jury

verdict had to be unanimous and failure to understand

questions asked at the time of the poll,

(2) exposure to publicity, and

(3) extraneous remarks by certain of the jurors.

With respect to item (1), two of the jurors have

made answers under oath to questions propounded by

the attorney for the defendant and these have been

filed as exhibits in this case. In general, they allege that

the jurors did not hear the instructions that the verdict

had to be unanimous, secondly, they did not agree with

the verdict and thirdly, they did not understand what

they were doing when they answered the questions on

the poll. It is clear that these contentions fall within

the category of impermissible impeachment of a ver-

dict by a juror after the verdict has been rendered. If

jurors were permitted to impeach their own verdict by

statements such as these no criminal case would ever

be ended, and the inducement would be great for de-

fendants to engage in private interviews of jurors in an

endeavor to get them to say that they did not under-

stand the court’s instructions which were clear and

thus upset every verdict which was rendered. As a

matter of fact, in the instant case the record indicates

28a

Memorandum Opinion.

that the defendant personally went to interview two

jurors and thereafter his counsel and a court reporter

put these jurors, Zacur and Wolf under oath and asked

them questions which were later filed in court as ex-

hibits. Such harrassment of the jurors after their ver-

dict should not be tolerated. Such procedures can very

easily degenerate into a situation with all kinds of

subtle pressures being exerted. The court certainly

would not tolerate the jurors being besieged by sup-

porters of either side as they left the courtroom with

harangues and threats. We recognize that jurors after

completing their duties do have the right of free speech.

We cannot muzzle them to prevent them from talking

to whom they please. Here, however, the jurors were

approached by persons who have lost the verdict in an

endeavor to quiz them about their deliberations and

whether or not they understood the court’s instruc-

tions and the questions asked of them in the poll. It is

apparent that if this continues in other cases par-

ticularly after the publicity received in this case with

respect to this matter, it will have a chilling effect upon

persons called to serve on juries if they are to be sub-

jected to harassment of this kind. In the instant case,

the court has received concerned inquiries from jurors

other than the two involved inquiring why the court

permits such questioning.

(1) Failure to understand instructions.

For the present, all we can say is that it is clear

that the jurors’ attempts to impeach their verdict in

this case do not rise to the levels required for such pur-

poses. As far as the jurors understanding the court’s

instructions, the court’s instructions were clear. The

court not only once but twice referred to the fact that

— t.ho

ee aes

2

Memorandum Opinion. *

the verdict had to be unanimous.2 The further state-

ment that the jurors did not understand the questions

asked at the time of the poll is also incredible. The

transcript shows as follows with respect to juror Zacur.

“Mr. Greenfield: May we poll the jury, Your

Honor? <

“The Court: Yes. Mr. Finberg.

“Mr. Finberg: I will read the verdict again. As

to Count 1, Gordon, guilty; as to Count two, Ruth-

rauff, Guilty; as to Count 3, Roman, not guilty; as

to Count 4, Bulgarelli, not guilty; as to Count 5,

false declaration, guilty; as to Count 6, evasion of

tax, not guilty; as to Count 7, false return, not

guilty.

2. “You will have the verdict sli with you. Th

is space for twelve signatures on it. And as — —

the verdict of the jury is the unanimous agreement of

all twelve jurors. All twelve of you must sign the slip.

“You will fill in the date, and if you find the -

ment has failed to establish the —— — 22

any particular count, you will find the defendant not

guilty on that count. If, however, you find the Govern-

ment has proved its case against the defendant beyond

a reasonable doubt on certain counts, then you will

find the defendant guilty as charged on those counts.

“The verdict does not require any explanation of

any kind by the jury. And you will ~ — the way

we have set up the verdict slip that we instruet you to

give a separate consideration to each of these counts

and the testimony bearing upon it in arriving at your

determination, and make a finding specifically as to

each count as you may agree by the unanimous finding

ande) members of the jury.“ (T. 1689) (Emphasis

30a -

Memorandum Opinion.

“Juror No. 1, John Zacur, please rise. Is the

verdict as read your verdict?

“John Zacur, Juror No. 1: Yes.

“Mr. Finberg: Bruce Wolf, Juror No. 9, is the

verdict as read your verdict?

“Bruce Wolf, Juror No. 9: Yes.”

(2) Exposure to Publicity.

The court, from the beginning of this case, repeat-

edly cautioned the jury not to listen to, read or watch

anything appearing in the news media with respect to

this case. It was not deemed necessary to sequester

jurors in order to insure compliance with this instruc-

tion during the trial. The jury was, however, sequest-

ered during deliberations when they had not reached a

verdict at approximately 10:00 p.m. and were sent to a

hotel for the night again with the caution not to observe

the news media with respect to this case. Juror Wolf

says in his answers:

“Q. To your knowledge did the jurors in any

way look at newspaper accounts or see television on

the trial as it was ongoing?

“A. Not to my knowledge. I will say that I

watched television the night we were at Chatham

Center (the hotel where the jury was sequestered).

“Q. Do you know whether any other watched

it that night?

“A. I really couldn't say. John and I—we were

in the same room. We laughed about it.”

Juror Zacur says nothing about it. There is nothing in

this to indicate that anything prejudicial was communi-

ee — —

31a

Memorandum Opinion.

cated to these two jurors if they did violate the court’s

instruction and watch television. There is nothing to

indicate that anything they heard was anything more

than a factual statement that the jury had retired for

the night and would resume deliberations in the morn-

ing. Nor is there any showing that anything these

jurors may have heard on television was communicated

to the others. The same is true of the allegation that

one juror called his wife.

(3) Eætraneous Matters Considered By the Jury.

Juror Zacur says that when returning from lunch

one prospective juror said he had a friend or relative

who knew a state policeman in “Washington, Pennsyl-

vania, or somewhere down there who said he heard that

McKees Rocks were just a lot of racketeers.” This per-

son is identified as Allen Kiers, one of the jurymen

selected. Zacur says that at no time was it indicated

that Kiers had that view and the matter was dropped

after that. He further states, however, during jury de-

liberations one girl said “Well, if does not get a guilty,

he’ll be out at the country club playing golf,” and dis-

paraging references were made as to other politicians.

Juror Wolf says a couple of ladies said all politicians

were crooks.

It should be noted that before trial the court con-

ducted an individual voir dire of all the jurymen before

the empanelling began. Each of the prospective jurors

including Zacur, Wolf and Kiers was interrogated as to

his knowledge of the case or anything he had heard

about it, whether he had unfavorable opinions of those

in political life or whether he knew of anything which

32a

Memorandum Opinion.

would prevent him or her from bringing in a fair and

impartial verdict under the evidence and instructions

of the court. Each answered, No.“

It is certainly the law that evidence from a juror

cannot be received when it is offered to show matters

which essentially inhere in the verdict itself. Domeracki

v. Humble Oil and Refinery Co., 443 F 2d 1245 (3d cir

1970). We do not expect our jurors to be automatic

robots with sterilized minds. They bring to the jury box

a cross section of their experiences in life as experienced

by any member of society. We cannot expunge from jury

deliberations subjective opinions of jurors, their atti-

tudinal mental processes or their philosophies. These

involve the very human element that constitute one of

the strengths of our jury system as a cross section of

the community and we cannot and should not banish

them from jury deliberations. D.V.I. v. Gereau, supra.

With respect to remarks of jurors in the jury

room these matters inhere in a jury’s verdict and a veil

of secrecy and confidentiality must descend over them.

“The jury’s verdict of guilty cannot be impeached by the

fect that a juror may have been influenced by the im-

proper remark of a fellow juror. United States v. Black-

burn, 446 F 2d 1089 (5th cir 1971). There is no showing

that any jurors were improperly influenced by such

remarks. Much of this would appear to be the ordinary

give and take in discussions and arguments among

jurors in the course of their deliberations.3

3. The judicial rule against interrogating jurors

as to their verdict except in cases of extraneous in-

fluences probably traces back to the landmark Bushel’s

Case, 6 Howell’s State Trial 999 (1670). There it was

held that a juror could not be fined for bringing in what

appeared to the Crown to be a perverse verdict, in the

trial of William Penn.

33a

Memorandum Opinion.

With respect to the remark made by Juror Kiers

to Juror Zacur, there is no indication that Kiers har-

bored this view himself. There is no evidence that he or

any other prospective juror said that the defendant

Homer was a racketeer or that any of them replied un-

truthfully to the court’s inquiry as to whether there

was any reason why they could not bring in a fair and

impartial verdict based upon the evidence and the

instructions by the court. As a matter of fact, Zacur

says that the matter was dropped after the original

occurrence. (Zacur Affidavit, pg. 2).

The court further determines that there was no

improper extraneous influence in watching a television

newscast by two jurors contrary to the court’s instruc-

tions and in a call, if made by one of the jurors to his

wife to explain why he did not come home. There is no

evidence that any such influence operated to bring

about the verdict.

II. Subpoena to Newsman, Roger Stuart.

What the court has previously said concerning im-

peachment of the jury verdict clearly indicates the dis-

position to be made of the motion to quash the sub-

poena to Stuart, the writer for the Pittsburgh Press.

The articles written by Stuart in the newspaper are

before the court and also the questions and answers

given by the jurors Zacur and Wolf to questions pro-

pounded by defense counsel at which Stuart was pres-

ent. It does not appear that Stuart can add anything

with respect to these matters. There is nothing in all

the material submitted indicating that Stuart’s infor-

mation contains anything not heretofore discussed

which if received would amount to a permissible im-

peachment of a verdict.

34a 1

Memorandum Opinion.

Stuart asked that the subpoena be quashed because

in violation of the Pennsylvania Newspapers Reporters

Privilege Act, 28 Purdon's PS 330 giving a reporter the

privilege to refuse to disclose the sources of his in-

formation. We need not determine the extent to which

the pleading of the so called Pennsylvania shield statute

should be permitted in a criminal proceeding in federal

court under Branzburg v. Hays, 408 US 665, 33 L. Ed

2d 626, 92 S Ct 2646 (1972). This court has previously

ruled in United States v. Grosso, 72-102 Criminal (W.D.

Pa 1973) that the shield statute should not be permitted

to stand in the way where the inquiry goes to the heart

of the matter in a criminal case in federal court, but

the newsman should not be required to make disclosure

where it appears that the subject to be disclosed is

irrelevant or immaterial to the matter before the court.

This it appears is true in this case.

Defendant argues that we cannot know what Stuart

will say until he is put on the stand and under oath. To

the extent, however, that the defendant seeks further

information as to what Stuart may have elicited from

inquiries among other jurors or unreported comments

from jurors Zacur and Wolf this is tantamount to a

mere fiishing expedition which the court should not

permit since this only leads to further harassment of

jurors after they have rendered their verdict. This the

court considers potentially a danger to the due adminis-

tration of justice and should only be permitted in case

of clear evidence of misconduct. For the same reason,

the court considers that nothing has been shown which

would justify the court in requiring the jurors severally

to appear to inquire into extraneous influences for other

matters which adhere in their verdict. The motion to

quash will be granted. See Cooper v. United States, ........

(D.C. Cir 10/31/75).

|

1

i

i

4

Memorandum Opinion.

III. After Discovered Evidence.

In the supplemental motion for judgment of acquit-

tal or in the alternative for new trial filed November 14,

1975, the defendant in paragraph 5 asks for a new trial

because of after acquired evidence set forth in an affi-

davit attached thereto.

The affidavit is made by one Barbara Serretti. The

affiant states that she resided in McKees Rocks from

1964 until January 1972, across from the parking lot of

the McKees Rocks plant of Ruthrauff, Inc., one of the

two business entities from which extortion was claimed

by the government. She says that she had become

friendly with Mr. Laux, President of Ruptrauff, and Mr.

Guthrie his Administrative Assistant. Laux was an

important witness at the trial with respect to Count 2 of

the indictment. She observed defendant Homer entering

the main entrance to the Ruthrauff facility and that

Guthrie explained that he was assisting Ruthrauff to

obtain a permit so that Ruthrauff could commence its

business operation. It was later stated that a permit had

been obtained and that Homer was there attempting to

persuade Ruthrauff to employ members of the McKees

Rocks black community. She says that in April or May,

1971, she was visited by Guthrie and Laux who com-

plained about Homer’s attempts to persuade them to

hire members of the black community, that they planned

to make a financial contribution to be used for the bene-

fit of the local black community and that this was the

purpose of the contribution made to Homer. She further

says that she moved to Fairmont, West Virginia, in

January, 1972, and was not aware of the criminal pro-

ceedings against the defendant until she heard a news-

cast on August 21, 1975.

36a

Memorandum Opinion.

This type o evidence to contradict and impeach

the testimony of witnesses Laux and Westman was al-

ready presented at the trial of this case by the defendant

in the testimony of various other witnesses, to wit:

Jones, Parilla and also the defendant himself. The jury

to the contrary was convinced that this was not the

purpose of the contribution and in any event this would

not justify extortion.

It is apparent that if a new trial was awarded the

effect of the Serretti testimony would only be further

to contradict Laux and Westman and therefore would

be cumulative only as to Count II of the indictment.

The general test to be applied in determining

whether to grant a new trial on the basis of newly dis-

covered evidence is that it must be of such a nature

that it will probably produce an acquittal in the event

of re-trial. See Moore Fed. Practice Rules of Criminal

Procedure 33.04. Tests are set forth in Moore 33.03(1),

namely, (1) the evidence must have been discovered

since the trial, (2) failure to learn of the evidence at

the time of trial was not due to defendant’s lack of dili-

gence, (3) it must be material to the issues of trial,

(4) it must be of such a nature it would probably pro-

duce an acquittal in the event of re-trial. We assume

that the evidence in question could not have been dis-

covered with due diligence by the defendant at or be-

fore the time of trial. We hold, however, that the prof-

fered Serretti testimony fails because it is merely cumu-

lative or impeaching which is insufficient. See Messarosh

v. United States, 352 US 1,1 L Ed 2d 1, 77 S Ct1, (1956)

at page 9, citing United States v. Rutkin, 208 F 2d 647

(3d cir 1953). The court further holds that evidence of

this nature since it has already been covered by at least

three witnesses at the trial could not be said probably

a 37a

Order.

to produce an acquittal in the event of new trial. In any

event, it obviously has nothing to do with defendant’s

guilt under Count I. See also Giordano v. McCartney,

385 F 2d 154 (3d cir 1967).

For all of the above reasons, we will deny the mo-

tions for new trial or in the alternative for judgment of

acquittal as filed by the defendant.

Order

AND Now, to wit, February 26, 1976, for reasons set

forth in the foregoing memorandum.

IT IS ORDERED that defendant’s motions for judg-

ment of acquittal or in the alternative for a new trial

as filed August 29, 1975 and November 14, 1975 be and

the same hereby are denied.

IT Is FURTHER ORDERED that the defendant appear

for sentence before this court on Friday, March 12, 1976,

at 9:15 a.m. A presentence report has already been

received, but not yet examined, by the court.

United States District Judge

WILLIAM W. KNOx

CC:

Carl LoPresti, Esq.

816 Chatham Center 15219

Stanley Greenfield, Esq.

412 Carlton House 15219

John Bingler, Esq.

2900 Grant Bldg. 15219

U. S. Probation Office

U.S. Courthouse 15219