The opinion of the court was delivered by: WEBER
Defendants, husband and wife, were found guilty after trial by jury of violating the provisions of 18 U.S.C. § 1503 by corruptly endeavoring to influence a petit juror who was then sitting in the trial of a civil action in this court. The civil case was an F.E.L.A. action of Pryor v. Monongahela Connecting Railroad. The jury was selected on Tuesday, October 10, 1967. On October 18, 1967, Mrs. Janoss, a juror, reported to the trial judge that her husband's employer, Rev. Msgr. Bassompierre, had called her during the trial and told her that the plaintiff in the pending action was a good man and needed help. Thereupon a mistrial was declared and an investigation begun. Rev. Msgr. Bassompierre readily admitted the communication to Mrs. Janoss (as a result of which he was indicted, entered a plea and was sentenced). He testified that he knew nothing about Pryor or the pending case but had acted solely at the request of a friend, Rev. Kobylarz, who had telephoned to inform him that Mrs. Janoss was serving on the Pryor jury and to ask him to inform Mrs. Janoss that Pryor was a good man who needed help. He agreed to do this and reported back to Rev. Kobylarz that he had done so.
Rev. Kobylarz readily admitted making the request to Rev. Msgr. Bassompierre. He denied any knowledge of Pryor or his case except that he was requested to convey the message to Rev. Msgr. Bassompierre for transmittal to Mrs. Janoss, the juror. For a long time he refused to divulge the source of the request to him by falsely stating that he did not know or couldn't remember the person who called him, but upon being indicted and informed by his own counsel that he had no privilege against such disclosure, he named the defendants, Mr. Robert Torquato and Mrs. Constance Torquato, whom he knew well and with whom he had frequent contacts, as the source of the requests. He named both defendants as having contacted him on the matter to pose the request, to remind him of it, and to learn if the message had been conveyed.
Pryor, the plaintiff in the pending action, lived in a different locality and did not know Rev. Msgr. Bassompierre, Rev. Kobylarz, or the Torquatos. Pryor's legal counsel in the F.E.L.A. action was the law firm of Evans, Ivory and Evans.
The Torquatos were found guilty on the direct testimony of Rev. Kobylarz and the corroborating circumstantial evidence of connection between them and Rev. Kobylarz and between them and the law firm representing the plaintiff Pryor. Defense evidence consisted of an attack on the credibility of Rev. Kobylarz, alibi evidence, reputation evidence, and evidence that a telephone call from Mrs. Torquato to Rev. Kobylarz during the trial of the case was for the purpose of securing background information on the juror, Mrs. Janoss, rather than for transmitting the message which Rev. Kobylarz and Rev. Msgr. Bassompierre testified to receiving and transmitting in the same form as ultimately received by Mrs. Janoss. Defendants did not take the stand in their own defense.
Many grounds have been advanced in support of the motion of each defendant for a new trial. They are largely identical although some are directed to the problems arising from a joint trial. Unnecessary complications arose from the presence of Attorney Robert Ivory as defense counsel for defendant Constance Torquato, but this was a choice freely made by that defendant, concurred in by her husband and co-defendant and reaffirmed by them after the court advised them of its ruling on Mr. Ivory's belated motion to withdraw, its possible consequences, and of the court's willingness to continue the trial if they wished to secure new counsel.
The most strongly contested feature of the trial was the admission into evidence of records of telephone calls between certain phone numbers listed in the names of parties having connection with this case. The early attack on this evidence was a pretrial attack based on alleged statutory prohibitions on obtaining this type of evidence. This member of the Court held an evidentiary hearing and found that the telephone company records were properly produced before the grand jury by subpoena. With that established the long argument about the exclusion of records of phone calls ended, and we faced the objection of relevancy and materiality.
(1) Rev. Robert Kobylarz No. to Msgr. Bassompierre No. 4 calls October 16 to 18, 1967
(2) Rev. Robert Kobylarz No. to Robert Torquato No. 9 calls October 16 to November 7, 1967
(3) Robert Torquato No. to Rev. Kobylarz No. A large number of calls between September 10, 1967 to November 14, 1967
(4) Robert Torquato phone No. to Evans, Ivory and Evans Law Office Phone No. 8 calls September 23, 1967 to October 20, 1967
(5) Evans, Ivory and Evans Law Office phone No. to Robert Torquato phone No. 1 call September 13, 1967
(6) Robert Torquato phone No. to Attorney Ivory residence phone No. 9 calls September 20, ...