violated no federal law. Applying § 1952 to that conduct, defendants argue, operates to make illegal that which was (federally) innocent when defendants acted.
The fallacy of defendants' argument is that it places undue emphasis on the state crime of bribery. The prohibited conduct under § 1952 is interstate travel
or use of interstate facilities in aid of or to distribute the proceeds of unlawful activities. The state crimes of bribery and extortion
serve only as a background identification of the unlawful activities in aid of which the proscribed travel was undertaken. The interstate travel did not take place until December 1961, several months after the effective date of § 1952. It was undertaken for the purpose of making the payoff contemplated as the quid pro quo for the award of the contract. The plan to do all these things had its origin early in 1960. Upon the adoption of § 1952 on September 13, 1961, the plan, contemplating as it did use of interstate facilities and interstate travel, became an unlawful conspiracy under federal law. Membership of the defendants in the theretofore federally innocent plan was then converted to membership in an unlawful conspiracy. That conspiracy continued until the accomplishment of the last of its objects, delivery of the money and the clock. Without more, this might well have warranted conviction in the absence of proof of withdrawal, since membership, once established, is presumed to continue until an affirmative showing of termination by acts of disavowal or withdrawal. See United States v. Markman, 193 F.2d 574 (2d Cir. 1952), cert. den. sub nom., Livolsi v. United States, 343 U.S. 979, 72 S. Ct. 1079, 96 L. Ed. 1371 (1952); Nyquist v. United States, 2 F.2d 504 (6th Cir. 1924). But the matter was not submitted to the jury on that basis. The jury was instructed, instead, that it could only convict the defendants if it was satisfied beyond a reasonable doubt that, after September 13, 1961, acts in furtherance of the plan and in affirmance of it, with its then unlawful object, were committed by the defendants. There was evidence of such acts after that date, e.g. Kubacki forwarded installation information necessary for the manufacture of the meters; he signed the certification of receipt of the meters on the basis of which the payment on account was made (it was from that payment that Karpark realized the cash with which to make payment of the cash portion of the bribe); he received and accepted the clock at his home; Minker gave instructions to Hughes, the Karpark official, as to the place where and the person to whom to deliver the cash (from which the jury could infer that the cash was accepted and received on Minker's behalf for distribution in accordance with his directions). Under such instructions, defendants' argument as to the ex post facto application of § 1952 lacks substance. United States v. Perlstein, 126 F.2d 789 (3d Cir. 1942), cert. den., 316 U.S. 678, 62 S. Ct. 1106, 86 L. Ed. 1752 (1942); Bailey v. United States, 5 F.2d 437 (5th Cir. 1925). See also, United States v. Goldberger, 197 F.2d 330 (3d Cir. 1952), cert. den., 344 U.S. 833, 73 S. Ct. 40, 97 L. Ed. 648 (1952).
Competence of Wade
Defendants assert that the government's star witness, former Chief of Police Wade, should have been declared incompetent because he was an admitted perjurer, was testifying under a grant of immunity and was an unindicted accomplice. Such facts did not render him incompetent, they were all factors for the jury to consider, under appropriate cautionary instructions, in assessing his credibility. Rosen v. United States, 245 U.S. 467, 38 S. Ct. 148, 62 L. Ed. 406 (1918); United States v. Margolis, 138 F.2d 1002 (3d Cir. 1943); United States v. Segelman, 83 F.Supp. 890 (W.D.Pa.1949).
Charging Multiple Conspiracies as One
The complaint is that the 1962-63 Parking Authority transaction should not have been lumped as part of one conspiracy with the 1960 transaction between the City of Reading and Koontz Equipment Company. Since I have granted defendants' motions for acquittal on Count I in which this complained of conspiracy was charged, the question is really moot, but were it not, I would rule that it was not prejudicial to defendants since there was evidence from which the jury could have found both transactions were part of one conspiracy. Moreover, since both Minker and Kubacki were involved in all the transactions, the reason for the rule against charging multiple conspiracies as one, i.e. the danger of transference of guilt, is not applicable. Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).
Prejudicial Cross Examination of Kubacki
Kubacki testified on direct that he had never solicited or received anything of value as a condition or inducement for approving a contract on behalf of the City of Reading. On cross examination he was asked a series of questions relating to specific instances of alleged solicitation from persons doing business or seeking to do business with the City. To each he answered denying that he had done so. When government counsel disclosed, after several such questions and answers, that his purpose was to lay the groundwork for rebuttal testimony to refute the denials, the court ruled that he would not be permitted to go into such collateral matters on rebuttal, sustained objection to further questioning along that line, ordered the questions and answers already given stricken and instructed the jury to ignore them. In light of the ruling and the instructions, it is hard to see how defendants could have been prejudiced by the mere asking of such questions, particularly in light of Kubacki's denials which the government was not permitted (perhaps erroneously, see Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); White v. United States, 317 F.2d 231 (9th Cir. 1963)) to refute.
Defendants' motions for acquittal and for new trial on Counts III, IV and V will be denied.