APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Van Dusen and Rosenn, Circuit Judges.
Four defendants in these consolidated appeals, Robert E. Forsythe, John J. Blaskovich, Edward J. France and Edward T. Snee, appeal from judgments of sentence imposed following their conviction of conspiracy to conduct the affairs of the Levitt Agency through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), and of the underlying substantive offense, a violation of 18 U.S.C. § 1962(c). Because the court erred in admitting evidence of uncharged crimes, we reverse the convictions and remand for a new trial.
The conspiracy in issue is the same one which we considered in United States v. Herman (United States v. McCann), 589 F.2d 1191 (3d Cir. 1978). Although those defendants were tried separately after the trial of the four defendants now before us had concluded, the government's case in chief and on rebuttal was virtually identical in both trials. In United States v. McCann, supra, we held that it was error to admit against McCann the testimony of Jacob Winner as to crimes committed by McCann unrelated to the bribery scheme in which the Levitt Agency was involved. The panel which decided the McCann appeal was aware when it did so that the district court, in its ruling admitting Winner's testimony against McCann, had relied on its prior ruling in the instant case admitting the same testimony against Forsythe, Blaskovich, France and Snee. Reviewing the record in their trials, this panel now finds that the error which required a new trial for McCann infected the earlier trials as well.
Steven C. Levitt, who had pled guilty to a violation of 18 U.S.C. § 1962(d), was the government's principal witness. The nature of his testimony is set forth in detail in the McCann opinion. For present purposes it suffices to note that he established that all four defendants here were magistrates responsible for fixing bail; that he operated a bail bond agency; that his agency had an arrangement with these magistrates to kick back to them one half of the premium on each bail bond placed in their offices; and that the four defendants received kickbacks in instances where they fixed bail. Victor Kozlowski and Mary Hupert, both former employees of the Levitt Agency, confirmed Levitt's account in substantial part.
During its case in chief the government also proffered the testimony of Jacob Winner, who operated a bail bond agency in Pittsburgh known as the American Bonding Company. The government offered to show that American Bonding Company regularly received referrals from and split premiums with the magistrates on trial. The government's theory of admissibility of this evidence of uncharged crimes was that it tended to establish a common scheme or plan in that the crimes were carried out in the same manner as those that had been charged. Fed.R.Evid. 404(b).*fn1 The district court, recognizing that the indictments charged a common plan with the Levitt Agency only, held that the evidence was inadmissible to prove the offenses charged on the prosecutor's theory. The court ruled that the existence of a common scheme or plan including the American Bonding Company was not at issue in the case, and that the prejudicial effect of the testimony outweighed its probative value. (App. 698-700). Thus the testimony was excluded in the government's affirmative case.
In rebuttal, however, after the completion of the defense cases, the court admitted the Winner testimony against all four defendants as rebuttal to character evidence. In the McCann trial the court admitted the Winner testimony in rebuttal on a similar rationale. Our task in this case is to determine whether any testimony presented in defense by any of the present defendants so distinguishes this case from McCann as to justify a different ruling on the admissibility of Winner's testimony in rebuttal.
Magistrate France refrained from testifying. Regis Welsh, the Coordinator for the Allegheny County Minor Judiciary, testified about the number of bailable cases handled by France during the period of the indictment. France also presented reputation testimony from seven character witnesses. The district court, relying on dicta in United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974), ruled that because France had offered reputation evidence, Winner's evidence of uncharged bribes was admissible to rebut it. The record in France's case is, for all relevant purposes, indistinguishable from that in McCann, and the holding in that case that use of other crimes evidence to rebut evidence of good character was error is controlling here. Admission of the testimony violated Fed.R.Evid. 608(b), went beyond what is permitted by Rule 405(a), (b), and cannot be justified under Rule 404(b). We refer to the more detailed interpretation of those rules set out in the McCann opinion.
In McCann we noted that had the defendant in his own case made a general denial of the receipt of bribes from Any source, the Winner testimony might have been proper rebuttal. See Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954). The government contends that the evidence presented by Magistrates Forsythe, Blaskovich and Snee came close enough to a general denial to open the door to Winner's rebuttal. We have examined that testimony carefully, and we reject that contention.
Magistrate Forsythe did not testify. He offered a number of character witnesses, who testified that he had an excellent reputation as a truthful, honest and law abiding citizen. In addition, Mrs. Forsythe, his wife, testified that her husband had once asked her to pick up a power of attorney at the Levitt Agency office because "he didn't think it was appropriate" for magistrates to be seen in a bondsman's office. (App. 811). Forsythe's secretary Mrs. Blumer, testified that he had instructed her not to recommend any bail bond agency, but rather to hand the defendants a telephone book and let them make their own selection (App. 822). She denied having seen envelopes from the Levitt Agency in the magistrate's office, and denied having seen Forsythe receive any payment envelopes or gifts from that agency. (App. 825). At the close of defendants' cases, the district judge held an initial side bar at which he ruled that the testimony of Mrs. Blumer amounted to a general denial of referrals to any bailbondsman, and that, therefore, Winner's testimony that he had received such referrals from Forsythe could properly be admitted in rebuttal. (App. 1325, 1327). He also ruled that Forsythe's evidence did not amount to a general denial of all kickbacks sufficient to justify the admission of Winner's testimony regarding uncharged bribe transactions. (App. 1332).
Magistrates Blaskovich and Snee both took the stand in their own defense. Their defense counsel were well aware of Winner, and in their direct examination of those defendants they carefully limited the denial of payoffs to transactions with the Levitt Agency. The government urges that Blaskovich's attorney in fact overstepped the bounds in a question and answer transcribed as follows:
Q. Did you were you ever a party to such an ...