Appeal from Judgment of Conviction and sentence of the United States District Court for the Western District of Pennsylvania Criminal No. 75-82.
Adams and Garth, Circuit Judges, and Lacey,*fn* District Judge.
Appellant Long was convicted by a jury in the District Court for the Western District of Pennsylvania of conspiracy, obstruction of justice, and making a false material declaration to a grand jury (perjury), in violation of 18 U.S.C. §§ 371, 1502-1503 and 1623, respectively. Long was sentenced to thirty days imprisonment on the conspiracy count and received a suspended sentence and three years probation on the remaining counts. Additionally, he was fined $25,000 and costs.
On appeal, Long makes three contentions.*fn1 Two of his arguments, that probable cause to issue a search warrant was lacking and that certain envelopes which contained written notations were improperly admitted into evidence at trial (Arguments II & III), we find to be totally without merit, and require no discussion. Long's other contention is that evidence of other crimes, i.e., payoffs, was improperly admitted into evidence at trial because its probative value, if any, was substantially outweighed by its prejudicial effect. See Fed.R.Evid. 403.*fn2 This claim too we find without merit; however, given the concurring opinion's analysis of the issues involved, a review of the evidence and of Rules 103, 403 and 404(b) of the Federal Rules of Evidence is appropriate.
On this appeal, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942).
The evidence of Long's guilt was overwhelming. Thus the jury heard evidence to the following effect: on October 16, 1974 Long, a garbage contractor, met with two North Braddock, Pennsylvania, councilmen, Irvin (who had been recently elected) and Hackett (a veteran of the political wars in the North Braddock area). Long and Hackett were unaware that Irvin had become an F.B.I. informant, that he had advised Special Agent Stewart of the F.B.I. that he and Hackett would receive a bribe from Long at this meeting, and that he, Irvin, had been furnished and was wearing at this meeting a concealed tape recorder which recorded the entire conversation.*fn3
That the pay-off was made, just as Irvin had predicted, is reflected by the recording of the October 16 conference, played for the jury without objection.*fn4
The cash was divided into nine envelopes (one for each councilman), and Long was heard to suggest that a "sticker" be put on them "so we'll know that nobody touched it . . . ." App. 227a-228a. Long, obviously referring to the cash he had delivered to Irvin and Hackett, then implicates himself in the pay-off scheme when he is recorded as saying: "So that straightens you up to October, see and then every two months you know . . . . It's only $120."*fn5 App. 229a.
Since Irvin and Hackett were stopped and searched, pursuant to a search warrant, by the F.B.I. immediately after leaving Long, and relieved of the nine envelopes and the cash he had given them, the defendants had to and did admit that on October 16 Long had given Hackett and Irvin a total of $2,160.*fn6
Hackett, so the events (and the tapes) reveal, was a quick thinker.*fn7 He immediately formed the "cover" story that Long had agreed to buy a total of 2,160 raffle tickets, evenly divided, from the nine councilmen. Unfortunately for him (and Long), their scheme was being memorialized on Irvin's body tape recorder.
Thus the jury heard Hackett tell Irvin that the "cover" story was weakened by the "odd" figure, $2,160, and the "9 envelopes," but "Red" (i.e., Long) "would say that he always gives us money . . . . for each election." App. 241a. Hackett then tells Irvin that he will speak to Long. App. 244a. The jury also hears Hackett state to Irvin (App. 246a): "I had a feeling not to take that money . . . ."
Within two days after the F.B.I. search, and in two separate deliveries, 2,160 raffle tickets were delivered to Long. The first delivery of 2,000 was by Hackett and Irvin. The following day Hackett's son delivered 160 tickets to Irvin who in turn delivered them to Long. According to Irvin's testimony, Long agreed to go along with the contrived tale.*fn8
The defendants and Irvin, who was still secretly cooperating with the F.B.I., went before a federal grand jury on November 1, 1974.
The body recorder, which had not functioned on October 17 and thereafter, was once again concealed on Irvin's person and was recording as he and Hackett drove to the federal courthouse for their grand jury appearances. The recording of this conversation was played for the jury, again without objection.
Thus the jury heard Hackett relate to Irvin that the day before (October 31) he, Hackett, had met with Long and counsel "from 12 o'clock till about a quarter after one." One of the participants was described by Hackett as "one of the best criminal attorneys."*fn8a App. 258a. The jury then heard Hackett describing what had occurred at the meeting as he and Long were being prepared for their grand jury appearances, with Hackett quoting Long (App. 260a) as the latter reviewed the raffle ticket story at this meeting.
Hackett then states to Irvin (App. 260a): "We're fortunate Roman had those 2,000 tickets."
The recording thereafter reflects Hackett advising Irvin how to handle before the grand jury his own part in the plot. App. 260a-265a. In what was obviously an attempt to keep Irvin "in line," Hackett warns him (App. 265a): ". . . . If they've been getting it for fifteen years and you've been getting it for one month, you're just as guilty as they are."
Hackett's callousness is exemplified by his stating to Irvin (App. 270a): "Wish we was [sic] in criminal court, we'd have the fix in already."
By his own words, as replayed for the jurors, Hackett stood before them guilty as charged. His grand jury testimony was read to them (App. 395a-448a) after they had heard the recordings and Irvin's testimony, which reinforced and supplemented the recorded material. Hackett's grand jury testimony faithfully follows the scenario he had unwittingly placed on Irvin's tape recorder, on November 1, preceding the grand jury appearance.
Once Hackett's defense crumbled, Long too was doomed in view of the interlocking of their "raffle ticket" explanations. This point is eloquently made by the fact that, while the recording of the October 16, 1974 meeting demonstrated that the subject of raffle tickets was never mentioned or discussed, the jury heard Long, in his grand jury testimony, state that it was. App. 371a-394a. Added to the jury impact of this bald inconsistency is the description of the October 31 meeting, as embodied in Hackett's recorded conversation with Irvin on November 1, implicating Long in the cover-up. Thus Long, like Hackett, could have escaped a guilty verdict only through a gross miscarriage of justice.
The testimony which is the subject of the claim of trial error was given ...