# Petition — Homer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1342%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 954 ## Text * ‘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 PAGE r AAA 2 r TATA 2 DD ᷑ rer.... 3 D ̃ —T—ꝛ—ꝛ—y—ppp ß c ———pp 1 Reasons for Granting the Writ 7 Dr ... —- ON Maen Fr 16 ,, dd 17 / TTT T— —— 1a e a asnemsennenimamoneconniats la Order Denying Petition for Rehearing, II...... snsesceseneses 4a Opinion of the Third Circuit Court of Appeals, Filed November 18, 1976 5a Memorandum Opinion and Order of the United States District Court for the Western District of Pennsylvania, Denying Motion for New Trial, I... ... . 17a 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 STATUTES FEDERAL r, DN Srna oR CUD TN INNS SURO 10 ß, a aisadenianeceminiaiaion 4 , . . 2 STATE r T 10 RULES FEDERAL RULES EVIDENCE — ala — a a a 9 %%% 1 14 Sa AED RD UNE MOE NE WEN ORSON 14 r / / sa ae 3, 9, 12, 13 D n... kame diaabadenae 13 F !A 3, 9, 11, 12, 13 D RERRTRSTRE SER Mon Drm LOTR MANE ULE Ai aap 3, 9, 12 MISCELLANEOUS AUTHORITIES Weinstein & Berger, Weinstein's Evidence, (1975) %%% aE NDR EONS CIO E CN rae AE 9 RIESE —TTTT—————ꝓ—jçCw＋⸗Lÿ58ĩ78k ok 13 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1342%3A1. Public record. Not legal advice.