(D.C. Criminal No. 70-314). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Gibbons and Hunter, Circuit Judges. Gibbons, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
This appeal by Michael Newman challenges his June 22, 1972, sentence and judgment.*fn1 Newman, who was at the time a City Councilman in McKeesport, Pennsylvania, had been convicted by a jury on Count I of a two-count indictment,*fn2 which charged him with willfully procuring another person to intercept telephone conversations in violation of 18 U.S.C. §§ 2511(1) (a) and 2.*fn3 We affirm.
The evidence adduced at Newman's trial revealed that on March 3, 1970, Thomas Nee, a former Bell Telephone employee and a political associate of Newman, installed a tape recorder and activator on the telephone line of Mr. and Mrs. Eugene O'Neill. Nee, the chief Government witness, testified that Newman directed him to undertake the interceptions in order to collect politically useful information of the plans of Newman's opponents (N.T. 93-94).
The interceptions continued for approximately one week. Each day Nee would service the recording device by removing the tape recorder from the telephone line and later playing the contents of the tape for Newman (N.T. 108-121). The tape recorder was discovered when Nee apparently inadvertently set it on broadcast, rather than record (N.T. 124). Nee was indicted for his participation and subsequently entered a plea of guilty.
The defendant urges each of three contentions as a basis for reversal:
I. The trial court erred when it denied him the opportunity to call the United States Attorney as a witness to impeach Nee's credibility.
II. The trial court erred when it refused his request, made in the midst of the trial, to hear the contents of the tape found on the tape recorder. Neither the tape nor its contents were received in evidence.
III. The trial court committed plain error in its charge to the jury.
We shall consider these contentions in the above order.
Newman contends that he has been denied his Sixth Amendment right to compulsory process. Specifically, he argues that the refusal by the trial court to allow him the opportunity to call the United States Attorney thwarted his efforts to impeach the credibility of Nee by showing a bargain had been reached between the Government and Nee concerning the sentence for Nee's admitted participation in illegal electronic surveillance and his possible prosecution for perjury before the grand jury.
Newman claims Nee's explicit denial of a bargain on cross-examination*fn4 was inconsistent with the following statement made by the United States Attorney during a conference outside of the presence of the jury ("he" refers to Nee):
"He indicated if we indicate our good faith as best we can that he will disclose these facts at that time and we will then proceed to prosecute those persons who are responsible, but he has a Fifth Amendment right to I think avoid getting into those other offenses." (N.T. 146)
Newman reads that statement to suggest that Nee had agreed to testify about previous wiretaps he had under-taken involving persons not connected with the trial in return for preferential treatment. However, the record, as a whole, makes clear that the United States Attorney's statement does not support that contention. Nee, instead of agreeing to testify in future trials, "steadfastly refused to tell. . . about them because he [was] in genuine fear of physical harm" (N.T. 145). The reason behind the out-of-court discussion, as the prosecutor made clear, was a concern that the court, by one of its questions, had opened the door to cross-examination concerning the details of the previous wiretaps. The United States Attorney felt that if Nee refused to answer the questions and relied on his Fifth Amendment right to remain silent, his credibility would be damaged.*fn5
In the alternative, Newman suggests the United States Attorney's statement may be read as a suggestion that Nee had agreed to disclose other facts in prosecutions against other persons in return for an indication of "good faith" by the prosecutor not to prosecute him for his possible previous perjury before the Grand Jury. This suggestion is equally misplaced. The court conducted a lengthy discussion out of the hearing of the jury, where the prosecutor denied the existence of any bargains, and he emphasized that his office had not reached a decision on whether to prosecute Nee for perjury.*fn6
Although this court has consistently held that defense counsel has available the right to show that the testimony of a Government witness was given in reliance on a promise of a lighter sentence, or other preferential treatment, United States v. Murray, 445 F.2d 1171, 1174 (3d Cir. 1971); e.g., United States v. Migliorino, 238 F.2d 7 (3d Cir. 1956), the district court has wide discretion with respect to the examination of witnesses. Hayes v. United States, 329 F.2d 209, 218 (8th Cir. 1964). It may properly refuse to allow the defense to call the prosecutor if it does not believe that "he possesses information vital to the defense." Gajewski v. United States, 321 F.2d 261, 268-69 (8th Cir. 1963); cf. Fisher v. United States, 231 F.2d 99 (9th Cir. 1956); see also United States v. Maloney, 241 F. Supp. 49 (W.D. Pa. 1965).
The decision in Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), does not aid Newman's claim that the district court's refusal to allow him to call the United States Attorney mandates a new trial. The rationale underlying the Court's determination in Giglio is inapplicable to the facts presented in this record. Giglio dealt with evidence of a promise of freedom from prosecution for a key government witness, discovered after the trial, which was inconsistent with explicit denials of leniency made both by that witness and the prosecutor during the trial. In that situation, the Court felt, the suppression by the prosecutor's office of what was material evidence deprived the defendant of his due process rights as guaranteed in Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). See Giglio, supra at 154-55.
Here, however, there is no evidence that the prosecutor suppressed evidence. The prosecutor explicitly denied to the court, on the record, both as a member of the bar and as an officer of the court, making any bargains or agreements with Nee. In United States v. Hykel, 461 F.2d 721 (3d Cir. 1972), the defendant contended that he had been prevented from showing that the testimony of a witness was prompted by her desire to avoid prosecution. Judge Hunter explained:
"The present case is not like Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). The opinion in that case makes clear that where a key Government witness has been promised that he will not be prosecuted if he testifies, a failure to disclose the promise may deny a defendant due process of law. In the present case, however, there is no evidence that the Government made any such promise to Mrs. Lawson."
461 F.2d at 727; cf. United States ex rel. Dale v. Williams, 459 F.2d 763, 765 (3d Cir. 1972).
We believe that on these facts the court properly concluded that Newman's request was "irrelevant to this case. . . ." (N.T. 647).
Newman next contends that the failure by the trial court to grant his request for the examination and use, if relevant, of a tape of the private phone conversations of the O'Neill family that had been made available to Nee prior to the trial, precluded him from developing his defense. This motion for discovery was made on the morning of the fourth day of the trial.*fn7 Defense counsel did not seek to examine this tape even though Nee had concluded his testimony, including his cross-examination, and the prosecution had rested at the end of the third day of trial. The tape could have been requested and examined the previous evening without causing a trial delay.
An application for discovery under Rule 16 of the Federal Rules of Criminal Procedure is addressed to the sound discretion of the trial court, "and its ruling will be disturbed only for an abuse of discretion." United States v. Fioravanti, 412 F.2d 407, 410 (3d Cir.), cert. denied, Panaccione v. United States, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969); United States v. Randolph, 456 F.2d 132 (3d Cir. 1972). As Judge Aldisert has noted:
"Appellate courts have been increasingly reluctant to find that the denial of a particular discovery motion was an abuse of discretion in the absence of a showing that the defendant was prejudiced by such denial." Fioravanti, supra at 410.
In addition, Rule 16(f) of the Federal Rules of Criminal Procedure provides that the trial court may deny an untimely motion for discovery where the defendant has failed to show cause "why such motion would be in the interest of justice." Cf. United States v. Conder, 423 F.2d 904 (6th Cir. 1970). The 1966 Advisory Committee Note to Rule 16 makes clear that one of the purposes behind Rule 16(f) is "to give the court sufficient control to prevent unnecessary delay and court time consequent upon a multiplication of discovery motions." 8 MOORE'S, FEDERAL PRACTICE, para. 16.01, at 16-8 (2d ed. 1953).
After a careful examination of the record, we are unable to say that Newman was prejudiced by the court's denial of his request. As stated above, Nee had completed his testimony, including his cross-examination, on the previous day. The tape was not introduced into evidence and the prosecutor never listened to it (N.T. 398).*fn8 Moreover, the notes taken by Nee after he listened to the tape were provided to the defense for cross-examination.
Since the defendant has failed to demonstrate why the grant of his motion, which was made in the middle of the trial, would be in the interest of justice, the court properly denied it.
The defendant's final contention that the trial court's facetious comments made during its charge constituted plain error is also without merit. See United States v. Newman, supra at note 1. Although the alleged "witty diversities" may have been unwise, we cannot say ...