Before MARIS, MCLAUGHLIN and GANEY, Circuit Judges.
MCLAUGHLIN, C. J.: Appellant was convicted upon an indictment charging a violation of the Hobbs Act, 18 U.S.C. § 1951, in that he, as a labor leader, extorted $31,274.13 from one William G. Rider by the use of threats of labor trouble which would obstruct and prevent Rider from performing a valuable contract. Appellant's previous conviction upon the same indictment had been reversed, Stirone v. United States, 361 U.S. 212 (1960) because an issue not charged in the indictment was submitted to the jury in that trial.
The first contention is that appellant was tried under a void indictment. The argument suggests that since the Supreme Court has held that the indictment on the first trial was, in effect, amended, it became invalid; therefore the second trial was a nullity in the absence of the return of a new indictment. Appellant cites no relevant case. He relies on Ex parte Bain, 121 U.S. 1 (1886). As stated by the Court in Stirone v. United States, supra at 216-17, the rule of Ex parte Bain is that "after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Changes other than by the grand jury defeat the great importance which was attached to an indictment by grand jury at common law and which has been carried into our Constitution as a primary element of our jurisprudence. Ex parte Bain, supra at 10-11; U.S. Const., Amend. 5. That much is crystal clear. The conclusion, however, which appellant would have us draw from this fundamental principle is a complete non sequitur.
In both Bain and Stirone the indictment was materially altered: in the former by deletion of a phrase, in the latter by admitting evidence which was beyond the scope of the indictment's charge. In each situation the basis for striking down the alteration on appeal was that the charging part of the indictment was changed and was no longer the indictment of the grand jury who presented it. The protection of the grand jury, to which the defendants were entitled had been denied at those trials.No such defect exists here. It is simply not the fact that appellant at this second trial has been deprived of his "substantial right to be tried only on charges in an indictment returned by a grand jury," Stirone v. United States, supra at 217, for he was tried solely upon the charges laid in the grand jury's indictment. Thus, the constitutional guarantee announced in the fifth amendment and further underscored by such opinions as Ex parte Bain, supra, and Stirone v. United States, supra, is left intact.
Nor is there any merit in the further argument that it was necessary to resubmit the issue to a new grand jury for a new indictment. Ex parte Bain, supra, under its facts rightly calls for this, when that court quotes with approval from the language of Chief Justice Shaw in Commonwealth v. Drew, 3 Cush. 279 (Mass. 1849), to the effect that where there is some defect in an indictment, as a wrong name or addition, "the proper course is for the grand jury to return a new indictment, avoiding the defects in the first." Since there are no defects in the present indictment to be corrected, there is no reason for resubmitting it. Cf. State v. Smith, 49 La. Ann. 1515, 22 So. 882(1897).
Appellant next assigns as error several matters relating to the conduct of the trial and the sufficiency of the evidence. There was trial testimony that in September, 1951 Rider was in the ready mixed concrete business with a batching plant at Belle Vernon, Pennsylvania, on the premises of the Duquesne Slag Products Company from whom he was obligated to buy his sand and slag.*fn1 Some time early in that month he read in the newspapers that the construction firm of Ragnor-Benson, Inc., had been awarded a contract by Pittsburgh Steel Company to act as principal contractor for the construction of a steel mill. In an attempt to secure the concrete supply contract in connection with this, Rider made an appointment with the vice president of Ragnor-Benson, Jacob G. Kassab, to discuss the bid he had submitted and his chances of obtaining the job. Rider, accompanied by his wife, met with Kassab that night in the latter's home, at which time Kassab told Rider that he "had nothing to worry about," and that he "had the contract." This agreement between Rider and Ragnor-Benson was formalized by written contract of September 25, 1951. Rider's first pour on the work was made on September 13.Shortly afterwards, but prior to September 25, appellant, accompanied by Dierker, the president of Duquesne Slag Products, visited Rider at his plant. Rider testified that on this occasion appellant demanded that Rider pay him 50 a cubic yard for the concrete that went into the Ragnor-Bension operation. These payments were necessary if Rider was to "hold onto the contract and also to keep me out of labor trouble." Because of his fear of economic loss Rider acquiesced and thereafter paid appellant the amounts demanded. The numerous checks which Rider gave appellant pursuant to that arrangement were recorded by his wife in a special separate account as commissions. Appellant's defense was that he was on the west coast at the time of the alleged extortion and further, the payments represented true consideration for his promise to use his influence with Ragnor-Benson to secure the concrete sub-contract for Rider.
Appellant now asserts that the trial judge's questioning of witnesses was objectionable in that he "improperly injected himself into the case in aid of the prosecution."
Preliminarily we need only repeat what has by now become axiomatic in our federal system of jurisprudence. It is the right and duty of the judge to act in the interrogation of witnesses to end that the truth emerge and be reflected in the judgment. Thus, if the issues are obscured or the testimony misunderstood, he is entitled to and should interrogate witnesses to help render understandable such matters. Glasser v. United States, 315 U.S. 60, 62 (1941); Quercia v. United States, 289 U.S. 466 (1932); United States v. Amorosa, 167 F.2d 596, 600 (3 Cir. 1948); Knapp v. Kinsey, 232 F.2d 458, 466 (6 Cir.), cert. denied, 352 U.S. 892 (1956); United States v. Aaron, 190 F.2d 144, 146 (2d Cir. 1951); Simon v. United States, 123 F.2d 80, 83 (4 Cir.), cert. denied, 314 U.S. 694 (1941); Fidelity & Deposit Co. of Maryland v. Bates, 76 F.2d 160, 170(8 Cir. 1935); United States v. Lee, 107 F.2d 522, 529 (7 Cir.), cert. denied, 309 U.S. 659 (1939); Kettenback v. United States, 202 Fed. 377, 385 (9 Cir.), cert. denied, 229 U.S. 613 (1913). There are instances where the bounds of judicial propriety have been overstepped, e.g., United States v. DeSisto, 289 F.2d 833 (2 Cir. 1961); United States v. Quercia, supra; Knapp v. Kinsey, supra, however, in each question on review the paramount consideration is whether the judge has seen to it that all admissible evidence helpful to an intelligent understanding of the issues is before the jury to aid it in its deliberations.
Judged by that standard we find no error in the five instances of trial court participation cited by appellant. We also note that these objections are being raised for the first time on appeal. Initially complaint is made of the court's questioning of Rider. Rider was being cross-examined as to the exchange which took place between himself and appellant at the time of the alleged extortion. In an attempt to clarify this line of inquiry the court asked: "What do I understand might happen to you, Mr. Rider with your contract, if you didn't pay the 50 cents?" Rider's response and further questions from the court elicited the fact that Rider was afraid that (1) he would lose his recently acquired contract with Ragnor-Benson and (2) he would not obtain any more contracts in the future. Appellant's objection to the admissibility of the latter statement is not well taken. It is well settled that testimony showing the state of mind of the victim is permitted in Hobbs Act cases. Bianchi v. United States, 219 F.2d 182, 192 (8 Cir.), cert. denied, 349 U.S. 915 (1955); United States v. Compagna, 146 F.2d 524, 529 (2d Cir.), cert. denied, 324 U.S. 867 (1945).
"The gist of the unlawful act is extortion. Extortion involves a state of mind as an element of an offense under the Act. Unless there is some form of compulsion (either physical or fear) there is no crime under this Act. * * * It was, therefore, essential to show that such payment was under such compulsion. The existence of this compulsion might be proved in several ways but one proper way is to show the state of mind under which the committee acted * * *."
Nick v. United States, 122 F.2d 669, 671 (8 Cir.), cert. denied, 314 U.S. 687 (1941). As to the first half of Rider's response appellant objects that the question, for the first time, brought into the trial the disputed fact that Rider already had a contract and that he was afraid of losing it. This is not supported by the record. On direct, Rider had answered the same question of why appellant wanted the payments by saying: "Well it's to hold onto the contract and also to keep me out of labor trouble." On cross-examination counsel himself recognized this fact by asking "Well, now, during the course of this conversation in the car with appellant, when was any mention made that you wouldn't be able to keep the contract with Ragnor-Benson," and again, "did he say that he would just tell Jake Kassab or Ragnor-Benson to take it away from you?" These queries produced additional evidence establishing the existence of the oral contract.
Appellant also objects to the court's interrogating him concerning his story regarding the method of payment. On direct, counsel specifically asked appellant whether any mention was made between Rider and himself as to payment procedure. Appellant said that in response to a question from Rider regarding that, he replied "'Why I don't know why you should ask me that. I think that, without reservation, you should pay me in a legitimate manner that you would normally pay anybody else,' because I intended to see to it that I reported it to the Internal Revenue and paid the taxes on it." This line of examination and the implications of appellant's statement that he intended to pay taxes on the money received was then dropped until the end of cross-examination, when the court tried to ascertain the meaning of appellant's statement. Appellant at this time claims that the court's questioning, pivoting on "Wasn't that a rather strange thing for you to say?", was highly prejudicial in that it "could well have" heavily weighted the jury's determination of whether this was a shake-down or sales commission arrangement. We cannot agree. Appellant's testimony on direct, which counsel brought out himself, was left in limbo so that the meaning and significance of the answer was doubtful and it was the court's right and duty to attempt to find out what appellant meant. The characterization which the court in passing gave to the answer would seem a normal reaction to the unusual response itself. In any event this minor incident did not result in substantial harm to appellant by itself or in combination with other alleged trial errors.
Appellant's third complaint relates to the direct examination of Mrs. Rider. We find no merit in his contention that the trial judge improperly admitted prejudicial hearsay by asking Mrs. Rider why her husband had said that he was making the payments to appellant. The record reveals that the court carefully instructed Mrs. Rider to what extent she could answer and expressly indicated to the jury that it could only consider this evidence as bearing on the state of mind of or the reason why Mr. Rider had said he was making the payments.
Appellant's two remaining objections on this phase of the appeal do not warrant discussion. On balance we find that "the questions of the trial judge above referred to were obviously for the purpose of developing facts helpful to an intelligent understanding of the matter not only by him but to the jury." United States v. Amorosa, supra at 600. The record as a whole reveals no improper participation or bias ...