Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is an appeal from judgments of conviction rendered in the Middle District of Pennsylvania. The defendant was indicted and convicted on two counts. One of them charges perjury in the testimony given by the defendant before the Grand Jury for the Middle District of Pennsylvania. 18 U.S.C. § 1621. The other count charges an offer to bribe alleging that the defendant offered to pay to one Paul M. Judge, a Government inspector, $20.00 every Friday if he would not insist upon performance by the defendant and the workmen under him of their obligations upon a contract having to do with the construction of the United States Signal Depot at Tobyhanna, Pennsylvania. 18 U.S.C. § 201. The defendant was found guilty on both counts and sentenced to imprisonment for a year and a day in both, the sentences to run concurrently.
The defendant was very ably represented both at the trial and upon appeal by the same counsel. The suggestion that a fair trial was not given the accused was pressed with vigor. The result of the argument has been a careful examination of the entire transcript, not limited to the appendices supplied by the parties. The conclusion is that the defendant had a completely fair trial and that no reversible error was committed.
The chief law point urged in this appeal is that testimony was presented of subsequent attempts by the defendant to bribe one O'Donnell who was also connected with work on the same project. There is a suggestion that O'Donnell was a surprise witness. This is not the fact, however. Prior to his opening address to the jury, Government counsel informed defendant's counsel that he intended to call O'Donnell as a witness and to mention that fact in his opening address. Defendant's counsel notified the trial judge that he was going to object to the testimony and did so but not on the grounds of surprise. O'Donnell testified that several months after the alleged attempted bribery by the defendant he, the defendant, on at least two occasions endeavored to offer a substantial bribe if O'Donnell would not insist upon compliance with the contract.
It is to be noted that the alleged subsequent offenses were the very same type of thing for which the defendant was accused in the bribery charge. The testimony was admissible, especially under these circumstances. The alleged offense was the same; the project was the same. We have held in a number of cases that evidence of similar acts subsequent to the offense for which one is being tried is admissible, "if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime."*fn1
The evidence tended to show defendant's intent. It also tended to show a pattern of a type familiar in some decisions involving adultery.*fn2
The course of the trial showed very careful conduct on the part of the trial judge to preserve a complete air of fairness throughout. The testimony of the principal witness, Judge, to whom the alleged bribe was offered, was corroborated by another witness who was a clerk in the same office and who overheard the conversation between the defendant and Judge. There was testimony to the effect that Judge reported the matter to a man named Carman who was his superior on the job. Carman was called as a witness. The prosecuting attorney had not taken the pains to talk to him prior to the trial to learn what his testimony would be. The witness presented a very halting story. The judge asked counsel and Carman to meet with him in chambers and excused the jury for a few minutes. There is a stenographic record of what was said there. The judge simply told the witness if he remembered something he was to say it; if he did not remember it, he was to say so. There is nothing improper in this and the suggestion that the jury must have looked askance at this consultation between lawyers, judge and witness is, we think, purely fanciful.
Criticism is also made to the effect that the court's charge spent 30 minutes reviewing the Government's testimony and three minutes reviewing that of the defendant. This statement is not fair to the charge. The court did explain carefully what the problems were which the jury had to face. He outlined the charges on both counts and read to the jury the statutes applicable thereto. He set out the story of the chief Government witnesses and pointed out that the defendant's witnesses had denied what the Government's witnesses said. At the request of defendant's counsel he elaborated the position of the defense after he had finished his main charge. We have no doubt that this jury knew just exactly what it had to decide.
The suggestion is made that the perijury charge is not substantiated. It is, of course, hornbook law that a charge of perjury must be corroborated either by an individual witness or surrounding circumstances. But the story which the defendant told in court and before the Grand Jury was completely contrary to what the Government's witnesses had said. Somebody must have told an untruth. The attempt to distinguish in nomenclature between T beams, bulb tees, subpurlins, tees, tee rails, tee irons, tee bars and tee steels suggests confusion which does not appear as one reads the testimony of the witnesses at the trial.*fn3 There was a conflict in testimony. The jury resolved it by its verdict. The defendant had a fair trial.
It is unfortunate that this case has dragged so long. The alleged bribery offense took place in March of 1953. Testimony before the Grand Jury was in May of 1956. The perjury indictment was returned a few days later. The bribery indictment came in December of that year. The next March (1957) motions to dismiss the indictments were filed.
The case came to trial on September 17, 1957. There were motions for judgments of acquittal or, in the alternative, for a new trial. These motions were not argued until December 15, 1958. The opinion of the court denying the motions bears date of August 19, 1960. Sentences were imposed January 12, 1961, and notice of appeal was filed on January 19, 1961.
The judgment of the district court will ...