Biggs, Seitz and Adams, Circuit Judges. Seitz, C. J., concurring.
After a trial in the District Court for the District of New Jersey, appellant Peter Weber was convicted on six counts of an eight-count indictment which charged him with violations of the Taft-Hartley Act, 29 U.S.C. § 186(b),*fn1 and of the Hobbs Act, 18 U.S.C. § 1951.*fn2 Counts one, two, three and four charged Weber accepted cash payments from the H.C. Price Company (Price Company), which employed members of Weber's union; Count five charged Weber used his powers as a union business manager to force Colonial Pipeline Company to withdraw a contract from the Osage Construction Company and to award it to Napp-Greco Corporation; Count six charged Weber entered into a conspiracy to force Bechtel Corporation to award a subcontract to Joyce Construction Company; Count seven charged Weber created unwarranted labor difficulties in order to force Bechtel to award a subcontract to Joyce; and Count eight charged Weber conspired with employees of Joyce to violate the Taft-Hartley Act.
Weber was convicted on Counts one, two, three, six, seven and eight and acquitted on Counts four and five.
This appeal raises two important issues. First, Weber argues that the District Court should not have granted the Government's pre-trial motion, pursuant to Rule 13, Federal Rules Criminal Procedure, to consolidate two separate indictments because (a) the amount of prejudice resulting from the consolidation was so great the court abused its discretion by granting the motion, and (b) consolidation violated appellant's Fifth Amendment right not to be compelled to be a witness against himself. Second, Weber urges that hearsay testimony was improperly admitted at trial, because (a) the facts of this case do not warrant application of the co-conspirator hearsay exception, and (b) admission of extra-judicial statements of a witness deceased before trial violates the Sixth Amendment's guarantee of confrontation.
Weber was Business Manager of New Jersey Local Union 825, Operating Engineers. In 1963, the Price Company, an Oklahoma firm engaged in pipeline construction, opened an office in New Jersey to gain the advantages enjoyed by local companies when bidding on New Jersey contracts. The Price Price Company was particularly desirous to win a lucrative contract to construct a 90-mile New Jersey pipeline for Colonial. Prior to bidding on the Colonial contract, the Price Company established itself in New Jersey by constructing pipelines for the Algonquin Gas Company and Texas Eastern Transmission Company. While erecting these pipelines, Price Company officials noticed that competing construction companies operated under favorable labor conditions unavailable to Price Company.
The president of Price Company, Harold Price, directed his assistant, Roy Burgess, to travel from Oklahoma to New Jersey to meet with Weber in order to enlist Weber's aid in Price Company's dealings with Local 825. Price testified that Burgess reported to him that Weber wanted "tax-free cash." Price also testified that he decided to pay Weber money in order to induce Weber to use his union position to secure a lenient labor arrangement with Local 825. There was evidence that subsequent to Price's decision, Burgess traveled to New Jersey on at least three separate occasions. There was also evidence -- which is questioned in this appeal -- that Burgess paid Weber $3,500 on each of the three occasions. At the time the payments in question were made to Weber, the Price Company made a firm decision to bid on the Colonial Pipeline contract. Burgess was once again dispatched to New Jersey to learn the amount demanded by Weber for cooperation should Price Company win the Colonial contract. During the period in which Colonial was accepting bids for the New Jersey segment of the pipeline, Weber called Harold Price and told him that he (Weber) wanted Price Company to win the contract. Weber also called Glen Giles, General Manager of Construction for Colonial, to ask Giles to award the contract to the Price Company. Despite the telephone conversation, Giles awarded the contract to Bechtel, which had underbid the Price Company.
James Joyce testified that after Bechtel was awarded the New Jersey contract, Joyce entered into an arrangement with Weber: Weber would force Bechtel to subcontract to Joyce Construction Company the river crossings required by Bechtel's contract with Colonial, and in return, Joyce agreed to pay Weber $30,000. Bechtel at first intended to construct the river crossings itself, and refused to subcontract the work to Joyce Company. Thereafter, Bechtel experienced labor difficulties, which culminated in a strike of the entire Colonial project in New Jersey. After a week, Bechtel subcontracted the river crossings to Joyce, and the strike terminated.
After a jury trial, lasting twenty-four days, Weber was convicted on six, and acquitted on two, counts of the indictment. The Honorable Reynier Wortendyke fined Weber $10,000 on each of counts one, two, and three and sentenced him to two concurrent terms of ten years imprisonment on each of counts six and seven. Sentence was suspended on count eight.
I. A. The pre-trial consolidation was not error.
Weber argues that the District Court abused its discretion when prior to trial it consolidated the two indictments pursuant to the government's motion under Rule 13, Federal Rules of Criminal Procedure. The first indictment 321-67 included five counts. The first four charged that Weber accepted cash payments from the Price Company on four separate occasions in violation of the Taft-Hartley Act. The fifth count charged that Weber had induced Colonial to cancel its contract with Osage Construction Company and to award it to the Napp-Greco Corporation in violation of the Hobbs Act. Weber was acquitted on counts four and five. The second indictment, 322-67, contained three counts. Count one charged a conspiracy to violate the Hobbs Act; count two charged that Weber, by creating labor strife, forced Bechtel to give a subcontract to Joyce Company in violation of the Hobbs Act; count three charged Weber conspired to accept $30,000 from Joyce in violation of the Taft-Hartley Act.
Rule 13, Federal Rules of Criminal Procedure,*fn3 grants the trial court wide discretion to consolidate indictments, provided that all the counts could have been joined in a single indictment under Rule 8, Federal Rules of Criminal Procedure.*fn4 The District Court's decision to consolidate under Rules 8 and 13 was a proper exercise of its discretion. The allegations of the indictment revealed a series of separate "transactions connected together," as well as "a common scheme," the results of which were the several crimes charged. Common to all the counts of the consolidated indictment was Weber's alleged scheme to accept monies from contractors working in New Jersey and employing members of Weber's union.
However, the fact that the consolidation was within the scope of Rules 8 and 13 does not dispose of Weber's objections, because Weber claims that consolidation created prejudice within the meaning of Rule 14.*fn5 Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85, 87 (1964); cf. Brown v. United States, 126 U.S. App. D.C. 134, 375 F.2d 310, 315 (1966), cert. denied, 388 U.S. 915, 18 L. Ed. 2d 1359, 87 S. Ct. 2133.
In order to prevail on this argument, Weber, of course, must make an affirmative showing that the District Court abused its discretion when it refused to sever the two indictments. United States v. Barrow, 363 F.2d 62, 67 (3rd Cir. 1966), cert. denied 385 U.S. 1001, 17 L. Ed. 2d 541, 87 S. Ct. 703 (1967). United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970).
Although it is unclear whether Weber raised the following points in the District Court, he now asserts that joinder was prejudicial because (1) the existence of separate counts and the resulting extensive testimony confused the jury (2) the charging of several crimes made the jury hostile (3) the jury was unable to segregate the evidence as to each count, and considered one crime as corroboration of the others.
Such allegations, if true and if timely made, would raise the questions to which Rule 14 addresses itself. Drew v. United States, supra, 331 F.2d at 88. However, the application of Rule 14 is best controlled by the District Court. We find no affirmative evidence showing that prejudice existed and, therefore, we do not find that the District Court abused its discretion. The consolidated indictment contained only eight counts, unlike Castellini v. United States, 64 F.2d 636 (6th Cir. 1933), a case cited by Weber, in which 26 counts were charged. Furthermore, here none of the counts charged Weber with crimes apt to arouse irrational hostility. Unlike Drew v. United States, supra, a case cited by Weber, in which the defendant was charged with two confusingly similar robberies, both involving High's Dairy Stores, the counts of the consolidated indictment did not charge crimes so similar that the jury was unable to segregate the evidence as to each count. Although all the counts in the consolidated indictment related to Weber's alleged misuse of his union office, the jury was not likely to confuse one alleged transaction with another, because the various construction companies involved had separate and distinct names. In Drew both robberies charged were of two separate High's Dairy Stores and consequently, the record revealed "that witnesses' responses at times indicated confusion as to which crime counsel were referring in their questions; the two crimes were repeatedly referred to as of the same order; and the prosecutor in his summation not unnaturally lumped the two together on occasion in his discussion of the evidence." Drew v. United States, supra, 331 F.2d at 93. We have examined the record here and have found no indication that witnesses, Weber's counsel, the prosecution, the Court, or the jury were unable to distinguish between evidence of separate events. Also, there is nothing in the record to indicate that the jury considered one count as corroboration for the others.
Whether the two indictments were consolidated or severed, it is possible that Weber would have been confronted with substantially the same evidence, because "evidence of each of the joined offenses would be admissible in a separate trial for the other." Baker v. United States, 131 U.S. App. D.C. 7, 401 F.2d 958, 974 (1968); see Drew v. United States, supra, 331 F.2d at 90.*fn5a The test for the admission of evidence of other offenses is articulated in United States v. Stirone, 262 F.2d 571, 576 (3rd Cir. 1958), reversed on other grounds, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960): "Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit a crime." It is interesting to note that the facts in Stirone were similar to those presented here. Stirone was a union official charged under the Hobbs Act with extorting money from a contractor employing members of Stirone's union. The district court admitted evidence relating to a labor extortion committed by Stirone subsequent to the crimes with which he was charged. Evidence of other wrongdoing was admitted to show Stirone's "determined plan for the levying of tribute." United States v. Stirone, 168 F. Supp. 490, 499 (W.D. Pa. 1957).
Hence, evidence of each of Weber's alleged crimes was relevant to prove the other since each tended to demonstrate Weber's plan to control pipeline construction in New Jersey for his own pecuniary benefit, his motive, and the history of the transaction. See, United States v. Carter, 401 F.2d 748, 749 (3rd Cir. 1968), cert. denied, 393 U.S. 1103, 21 L. Ed. 2d 797, 89 S. Ct. 905 (1969); Robinson v. United States, 366 F.2d 575, 578 (10th Cir. 1966); United States v. Laurelli, 293 F.2d 830, 832 (3rd Cir. 1961), cert. denied, 368 U.S. 961, 7 L. Ed. 2d 392, 82 S. Ct. 406 (1952); 2 Wigmore § 304 (3rd ed. 1940); McCormick, Evidence (1954) at 328; Note, Other Crimes Evidence at trial; Of Balancing and Other Matters, 70 Yale L. J. 763, 767 (1961). It follows, when all the factors are considered, that the District Court's decision to consolidate was within the spirit of Rules 5, 13, and 14 -- to relieve the government and the courts of the burden of repetitious trials. United States v. Nadler, 353 F.2d 570, 572 (2nd Cir. 1965); 8 J. Moore, Federal Practice § 8.02 (1967).
Weber argues, without citing any cases, that since some of the counts may be characterized as malum in se and others as malum prohibitum, they may not be joined. In the absence of an affirmative showing of impermissible harm, the mere fact that the crimes carry different labels is not determinative. The jury acquitted Weber of one malum in se count and one malum prohibitum count. While the jury's acquittal of Weber on these two counts may not be dispositive of the question of prejudice, such action buttresses ...