D.C. Criminal No. 70-314 APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Hunter and Garth, Circuit Judges.
Frank X. Gaca and Michael E. Newman were indicted for wilfully intercepting, endeavoring to intercept and procuring another to intercept a wire or oral communication in violation of 18 U.S.C. § 2511(1)(a)*fn1 and 18 U.S.C. § 2,*fn2 and for disclosure of the contents of said communication in violation of 18 U.S.C. § 2511(1)(c). A third defendant, Thomas Nee, indicted for his participation in the illegal wiretap, pleaded guilty and testified for the government.
The government's case against Gaca and Newman was severed, and Michael Newman proceeded to trial first. Newman's conviction was recently affirmed by this Court in United States v. Newman, 476 F.2d 733 (3d Cir. 1973). After the trial court dismissed the disclosure count (18 U.S.C. § 2511(1)(c)) against Gaca, the jury found Gaca guilty on the first count (violation of 18 U.S.C. §§ 2 and 2511(1)(a)). Gaca was subsequently sentenced.
In his appeal Gaca has advanced a number of alleged errors which he claims require a reversal of his conviction. We find merit in several of his contentions, and accordingly we reverse.
On appeal from a verdict of guilty, this Court must view the testimony, and the inferences drawn therefrom, in the light most favorable to the government. United States v. McLain, 469 F.2d 68, 69 (3d Cir. 1972). The testimony at trial indicated that Thomas Nee and Frank X. Gaca were partners in a general wiretap business. They owned wiretap equipment valued at approximately $800. The government demonstrated that Thomas Nee, acting pursuant to a conversation with Michael Newman, placed a recording device on the telephone wire of one Eugene O'Neill on March 3, 1970. That evening, Nee informed Gaca that their equipment had been put to use "for Mike Newman". Nee gave Gaca the precise location of the recording device and received no objection from Gaca. On each of the following three days, Nee obtained tapes from the recording device and played them for Newman. Nee apparently kept Gaca informed of the progress of the O'Neil wiretaps through nightly telephone conversations.
On March 8, 1970, Nee and Gaca played the wiretap tapes in Newman's presence. After leaving Newman, Gaca drove Nee back to the telephone pole to which the O'Neil tap had been affixed, and prepared the equipment for placement back on the pole. Nee put the recorder on the pole, in position for further wire interceptions. Later that evening, the device was discovered by passers-by, Nee having inadvertently left the device on "broadcast."
A. Instructions on Wilfulness
Count I of the indictment charges that Gaca violated 18 U.S.C. § 2511(1)(a) and 18 U.S.C. § 2 by wilfully procuring "another person" to intercept wire communications. Apparently conceding that the district court properly instructed the jury with regard to the element of wilfulness in 18 U.S.C. § 2511(1)(a), Gaca argues that the court erred in failing to charge the jury that aiding and abetting is actionable only if done wilfully.*fn3 As appellant correctly notes, the aiding and abetting statute, 18 U.S.C. § 2, has been construed to require a specific intent to bring about a criminal act. See United States v. Barfield, 447 F.2d 85, 88 (5th Cir. 1971); United States v. Barber, 429 F.2d 1394, 1397 (3d Cir. 1970).
The trial judge's instructions on the element of wilfulness are set forth in the Appendix to this opinion. It is apparent that while the court specifically directed the jury to consider wilfulness as an element of an offense under 18 U.S.C. § 2511 (1)(a), no such instruction was offered with regard to the aiding and abetting statute. The government, admitting that specific intent is required under 18 U.S.C. § 2, contends that the instructions' focus on "participation" satisfies the mens rea element. We do not agree.
Consistent with the court's instructions, the jury might have convicted Gaca on the basis of a conclusion that the defendant participated in the activities charged without knowing of their criminal objective. Unknowing participation is not sufficient to constitute an offense under the aiding and abetting statute. Rather, the government must prove beyond a reasonable doubt that the defendant participated in a substantive crime with the desire that the crime be accomplished. See United States v. Barfield, supra, 447 F.2d at 88.
The failure of the district court to instruct that Gaca could be convicted of aiding and abetting only if the jury found wilful participation constitutes error.
B. Evidence of the Newman Conviction
Before Gaca's trial began, the witness Thomas Nee was instructed not to mention the fact that Michael Newman, a co-defendant, had already been convicted on the wiretapping charge. Nevertheless, on cross-examination, Nee referred to the Newman conviction.*fn4 Gaca's counsel made no motion to strike but rather confined his objection to the suggestion that the court instruct the jury that it should disregard Newman's conviction in determining Gaca's guilt. On appeal, Gaca challenges the sufficiency of the instructions eventually given.
Unquestionably, Gaca has a right "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else." United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949). Thus, guilty pleas and convictions of co-defendants are not admissible to demonstrate the guilt of defendants yet to be convicted. United States v. Restaino, 369 F.2d 544, 545 (3d Cir. 1966). However, unless undue emphasis is placed upon such evidence, the admission of such evidence is not reversible error, provided that cautionary instructions are given. United States v. Restaino, 369 F.2d at 545.
Appellant argues that the court did not render the cautionary instructions required by Restaino. The government responds by citing the following instruction, offered by the District Judge:
"Now, it is also very important, and I wish to emphasize this very earnestly, that your task here is confined to passing upon the guilt or innocence of this defendant for the charge with which he is here standing trial. In other words, there has crept into the case a lot of collateral matters about other legal proceedings against other defendants such as Nee and Newman as to desertion and non-support cases or similar family troubles of the witness and supposed other offenses of which the witness has supposedly been perhaps guilty or with respect to which he has claimed the protection of the Fifth Amendment, and all of these matters are side issues not to confuse you when you come to your actual main task here of passing upon the guilt or innocence of the defendant Frank Gaca concerning the offense with which he is here and now on trial. You are not to speculate about any other matters and any evidence that has come in about such matters is collateral material that was received as being perhaps helpful in some respect in helping you to evaluate the weight to be given to the testimony that you have heard here concerning the pertinent question which is here for your decision." (Tr. 574-575)
This charge, which the government would have us view as curative, is imprecise on the issue of the Newman conviction. The charge dealt neither with the specific language nor with the jury's duty to disregard the testimony. The judge should have been more explicit in repudiating the testimony given. At the very least, the district court should have instructed that the testimony regarding Newman was no proof whatsoever of Gaca's guilt and that the testimony proferred should be disregarded ...