On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
King, Brody and Landau. The opinion of the court was delivered by King, P.J.A.D.
Defendant Anthony Catanoso, a Cape May County freeholder, was convicted of conspiracy, official misconduct and bribery in connection with his solicitation and receipt of bribes. The bribes were solicited from contractors desirous of obtaining work on a county sewer installation project which began in Cape May County in the early 1970s. He received a three-year prison term.
On this appeal from the conviction and sentence, defendant raises eleven issues. They are: (1) the indictment should have been dismissed on the ground of double jeopardy since he was previously acquitted of similar charges also resulting from his alleged receipt of bribes related to the county sewer project; (2) the trial Judge erred in denying his motion for acquittal on counts two and three; (3) the trial Judge erred in his instructions to the jury; (4) the admission of "bad character" evidence adduced by the State in rebuttal to defendant's good character evidence was improper; (5) prosecutorial misconduct; (6) Evid.R. 55 was violated; (7) the admission of certain diaries of a witness for the State, joined with the lack of a limiting instruction was error; (8) the State's decision to prosecute defendant was made in "bad faith";
(9) expert evidence regarding the result of a polygraph examination administered to a witness for the State was improperly excluded; (10) the cumulative errors warrant reversal; and (11) the sentences on the three counts should have merged. We conclude that the appeal, except for the merger claim, is without merit and we affirm.
The principal claim on this appeal is double jeopardy because of acquittal in a prior trial. On September 10, 1986 defendant was charged, in State Grand Jury Indictment SGJ-168-86-9, with conspiracy, N.J.S.A. 2C:5-2 (count one); official misconduct, N.J.S.A. 2C:30-2 (count two); bribery, N.J.S.A. 2C:27-2 (count three); soliciting and accepting gifts to public servants, N.J.S.A. 2C:27-6 (count four); and theft by deception, N.J.S.A. 2C:20-4 (count five).
Most pertinent to the double jeopardy claim, defendant was charged, about eight months later, on May 19, 1987, in a second State Grand Jury Indictment SGJ-182-87-3, with conspiracy, N.J.S.A. 2C:5-2 (count one); soliciting and accepting gifts as a public servant, N.J.S.A. 2C:27-6 (count two); and perjury, N.J.S.A. 2C:28-1 (count four). Defendant first was tried and found not guilty on all counts of this second indictment. This first trial was conducted from January 26 to February 10, 1988 in Cape May County. Trial on the earlier indictment, which is the subject of this appeal, was held in March 1990 in Cumberland County. Both cases were prosecuted by the Division of Criminal Justice of the Attorney General's office.
On March 6, 1990, just before the second trial, defendant renewed his motion for dismissal of all charges on the ground of double jeopardy. A similar motion previously had been denied by Judge Serata on June 24, 1988. Defendant's renewed motion was denied by Judge Serata.
At the Conclusion of the State's case in the twelve-day trial conducted in March 1990, of the charges under the first indictment
defendant moved to dismiss all charges pursuant to R. 3:18 as unsupported by the evidence. Judge Serata granted the motion with respect to counts four (soliciting and accepting gifts) and five (theft) but denied the balance of the motion. After the prosecutor's summation, defendant moved for a mistrial due to prosecutorial misconduct. That motion was denied. On March 23, 1990, the jury found defendant guilty on the three remaining counts: conspiracy, bribery and official misconduct. Defendant's motion for a new trial was denied.
Judge Serata first reduced the grade of the offenses for which defendant was found guilty and then sentenced him on count one to a three-year prison term and required him to pay $50,000 in restitution. The same sentence was imposed on counts two and three, and these sentences were imposed concurrently to count one. Bail was posted at $50,000 pending this appeal.
The "overarching" conspiracy alleged by the State involved public works projects in Cape May County. This is the factual picture presented by the State at the trial resulting in defendant's conviction. In the early 1970s, Cape May County began a project to provide regionalized sewer services within the county (the CMC project). The CMC project involved upwards of $200,000,000 overall and contemplated work over several years. During the early years of the project, and at all times relevant to this matter, defendant Catanoso was the Mayor of North Wildwood, Cape May County, and served on the County's Board of Chosen Freeholders.
In order to pursue the sewer project, the Cape May County Municipal Utilities Authority was established (the MUA). John Vinci, a key witness for the State in this matter, was appointed to the MUA in 1972 and became chairman in 1977. The CMC project involved three major phases: facility planning, facility design, and facility construction. The facilities necessary for the CMC project included sewage treatment plants, sewer lines, pumping stations, force mains, and ocean outfalls. The MUA
decided to establish several regions in the County which would function semi-autonomously and would have their own treatment plants. One of these regions was the Ocean City region, the one most relevant to this prosecution.
There were four proposed elements to the Ocean City aspect of the CMC project: a treatment facility, a pumping station, force mains, and ocean outfalls. Only the first two of these elements are germane to the issues on appeal. The MUA originally intended that the site preparation and construction work for the treatment facility would be publicly bid as one contract, after which a separate contract for construction of the pumping station would be bid.
In the late 1960s, Frank Pandullo, a key witness for the State, was president of the engineering firm Pandullo, Chrisbacher and Associates. This firm was the predecessor to Pandullo Quirk Associates (PQA). This firm, which specialized in civil engineering and the design and construction of waste water treatment systems, became interested in obtaining work in Cape May County in the early 1970s. Pandullo learned that defendant Catanoso and Phillip Matalucci, a Republican leader and County Treasurer, were the key politicians in Cape May County. Through an acquaintance, Anthony Palladino, Pandullo made his interest in working on the CMC project known to these two individuals. Palladino arranged a meeting between himself, defendant, Matalucci and Pandullo in June 1972. During this meeting Pandullo sought the support of the two politicians for his firm's efforts to obtain work on the CMC project. During this meeting, Palladino informed Pandullo that it was customary that a 10% "kickback" be paid for any such political support. Defendant and Matalucci clearly heard this comment according to Pandullo. Pandullo said he could not afford such a payoff. He claimed that he previously had made similar payoffs to obtain work in Cumberland County. Pandullo was later advised that PQA had the support of defendant and Matalucci but would have to do "the best it could" to make payoffs to them. John Vinci, who would become the MUA's
second chairman in 1977, learned sometime in 1976 of Pandullo's alleged "obligation" to pay defendant and Matalucci money in return for their support.
In December 1972, PQA interviewed for the position of consulting engineer for the project in Ocean City. The consulting engineer would be responsible for performing studies, preparing the contract documents relating to the project, and working with the State and federal governments to obtain the necessary funding. During this interview, Pandullo first met Vinci.
In March 1973, PQA was awarded the consulting engineer contract for the project. Shortly thereafter, Pandullo met with defendant, Matalucci and Palladino at a golf course. When defendant and Pandullo were alone, Pandullo gave defendant $10,000 in cash, in return for defendant's support of PQA's bid to become consulting engineer on the project. Pandullo made further payments to defendant during 1974, totalling an additional $8,000.
In another payoff scheme, also in 1974, Vinci asked Pandullo to pay him $150,000 for Vinci's continuing support of PQA's involvement in the project. Since Pandullo was afraid of what would happen if he did not pay the money, he agreed. However, Pandullo did not pay Vinci entirely in cash; rather, he paid Vinci in certain services, and through the purchase of items such as Vinci's home in Burleigh, Cape May County, at an inflated price. Pandullo also paid Vinci $2,000 per month in cash for twenty-four months, ending in 1982 when Vinci was not reappointed to the MUA.
Vinci also testified that, in 1976, he had a Discussion with defendant during which he was informed that certain people required payoffs. Thus, for example, a landfill site owned by Foundations and Structures, Inc. (F & S) should be chosen for the location of the project's treatment plant. Vinci accepted these comments as instructions on how to make the payoffs.
As mentioned, the MUA originally intended that one contract would cover the site preparation and construction work related to
the treatment facility in Ocean City. In 1977 or 1978, this contract was split into two separate contracts: one for the site preparation work, and one for construction of the plant. Edward Altman, a PQA employee serving as project manager at that time, testified that this was more cost effective and done because the MUA wanted smaller firms to bid on the site preparation contract (smaller firms could not handle both the site preparation and construction of the treatment facility), and because it hoped that excavation work involved in the site preparation could begin in the winter. This was to minimize the negative impact on Ocean City tourism which might result from odors caused by excavation of the F & S landfill site in the summer.
In contrast to Altman, Vinci testified that he received a call from defendant, who said that use of a single contract would preclude defendant's favored firm, F & S, from bidding on the site preparation work, since F & S could not handle the construction 0 aspects of the job. As a result, Vinci testified, the decision was made to split the two aspects of the treatment facility's construction into two separate contracts.
Site preparation bids were opened in the fall of 1978, and the low bidder was Carl Widell & Son (Widell), a firm which specialized in waste plant and heavy construction. F & S was the next lowest bidder. A commotion ensued in the room after the bids were announced. Vinci received a call from defendant immediately after the bids were opened, instructing Vinci to delay the award of the bid to Widell so that action could be taken to insure that F & S was awarded the site preparation contract. Altman called Pandullo, and told him that the "wrong people" got the site preparation job, since F & S was expected to obtain that work. Finally, Nelson Widell, Vice President of Widell and the son of the firm's owner, Wilbert Widell, was also told that his firm was not supposed to get the site preparation job. However, there was no basis for the rejection of Widell's low bid.
Nelson Widell testified that he was told, after several delays in actually receiving the site preparation contract following Widell's
low bid, that this was 1 a political matter, and that it would be helpful if Widell used F & S as a subcontractor. Hence, a Widell employee, Warren Mason, set up a meeting in October 1978 between Nelson Widell, his father, Wilbert Widell, and two F & S representatives, Ted DeSantis and Bill Monaghan. At this meeting, the Widells were told that if they did not use F & S, the Widell firm would not get the site preparation job. Since F & S was apparently in a position to control award of the job, the Widells acceded and reached an agreement to use F & S as a subcontractor. Under this arrangement, a site controlled by F & S would be used to dump displaced material from the excavated landfill, and material from F & S would be used to re-fill a part of the excavated site. When the Widells stopped at PQA's office after meeting with F & S, they were informed by Altman that the site preparation contract could now be awarded. That night after the meeting, Wilbert Widell suffered a stroke. Clyde Lattimer was then brought in to take over Widell's operation.
Towards the end of 1978, after Widell had been formally awarded this site preparation contract and had begun work on it, the firm began to run "over estimate" on the 2 quantity of sand which would be needed to refill the landfill in preparation for construction of the treatment plant. This, in turn, led to a cost overrun of about $250,000. In order to avoid having to absorb this sum for cost overrun, Widell wanted to submit a change order to the MUA through PQA. If not, Widell would have to absorb the additional cost itself.
In December 1978, Nelson Widell (Nelson) and Lattimer were told by Warren Mason, their employee, that he met with Monaghan and DeSantis of F & S regarding the required change order. Mason told them that in order to obtain the change order, $10,000 would be needed by Monaghan to pay "the boys," whom Mason said were political people in the county. F & S, Gaskill Construction Co., another subcontractor Widell was using, and Widell would each pay one-third of the $10,000. After deciding to pay the money, a bonus salary check was written to Mason in January
1979, and Mason was told to do what was necessary. Nelson and Lattimer did not want to know the details. The change order was formally submitted in February 1979.
Daniel Kelly, a PQA employee working on the CMC project, was responsible for overseeing the change order submitted 3 by Widell. Although he was against issuing the change order, he wrote a letter to the MUA explaining why the change order was necessary. He would not have written that letter unless instructed to do so by Pandullo.
However, the change order still was not approved, and in March or April 1979, Mason informed Lattimer that Monaghan said another $10,000 was needed to obtain the change order. Nelson and Lattimer decided to make the payment themselves, since Lattimer was afraid Mason was "shaking down" the firm for his own profit. They obtained the money in late March or early April 1979, drove to Monaghan's house, and Nelson handed the cash to Monaghan personally. Monaghan told Nelson the money would get to the "right people." Within two weeks, the change order was executed.
Before the change order was approved, a meeting was conducted in January 1979 at Pandullo's PQA office to discuss it. Before the meeting began, Pandullo testified that he received a telephone call from Vinci. Pandullo testified that Vinci was aware, by this time, of his continuing obligation to pay "the boys" off for their cooperation, and that Pandullo had been unable to meet that obligation during 1977 and 1978. 4 Vinci told Pandullo to ask Lattimer what it would be worth to receive ongoing cooperation from the current MUA chairman, Vinci, particularly since Widell was planning on bidding on other aspects of the project. Pandullo felt that, due to his obligation to pay Vinci $150,000, and due to his continuing obligation to pay defendant, he should follow Vinci's instructions. Pandullo discussed this matter with Lattimer, who told him it would be worth $50,000 to Widell to insure Vinci's continuing cooperation.
Lattimer's testimony in this regard was somewhat different. He testified that after Pandullo received a call from Vinci, he and Pandullo met privately after the meeting had ended. Pandullo told him that he was carrying a message from "the boys"; specifically, if Widell wanted the construction contract, the firm would have to pay "the boys" $100,000. Lattimer rejected this proposal, even though the firm wanted the work, believing that if the firm was the low bidder on the contract, it would get the construction job anyway. Pandullo did not identify who "the boys" were. Nelson similarly testified that after the meeting concluded, Lattimer told him, on the way back to Widell's Haddonfield 5 office, that Pandullo wanted $100,000 for the political powers in the county if the firm wanted the pumping station and other construction jobs. Finally, regarding this incident, Vinci testified that Pandullo suggested to him that, in order to meet his continuing obligation to "the boys," he would use certain contractors, such as Widell, in order to raise money to pay defendant and Matalucci.
The pumping station contract was bid in January 1979, and the construction contract was bid in March 1979. Widell ...