There is no evidence of any threat of violence for non-payment of the bribe. Moreover, there is sufficient evidence in this record to support a finding beyond a reasonable doubt that Dr. Bazilian had volunteered and was willing to pay a bribe prior to the time that any of these threatening remarks were made.
Defendant submits no other argument in support of his motion for judgment of acquittal. Viewed in a light most favorable to the Government, there is abundant evidence upon which the jury could find beyond a reasonable doubt that Johnson conspired to and did attempt to bribe a Blue Shield utilization representative acting on behalf of the United States Department of Health, Education and Welfare in the administration of the Medicare program.
Motion for a New Trial
Defendant alleges four (4) errors as having the cumulative effect of denying him a fair trial: (1) improperly admitted co-conspirator declarations; (2) a superseding indictment handed down two weeks prior to the trial; (3) the prosecutor's exhibiting to the jury typewritten transcripts of recorded telephone conversations while the tapes were being played in the courtroom; and (4) the failure of the government to prove beyond a reasonable doubt that defendant was not entrapped. These arguments are without merit.
1. Co-conspirator declarations. Defendant alleges that it was error to permit testimony to be given as to out-of-court declarations made by defendant's co-conspirators. However, it is well established that if two or more people conspire with each other to commit an unlawful act, the statement of one conspirator to a third person in furtherance of and during the continuance of the common design is admissible in evidence against all the conspirators as an exception to the hearsay rule. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). United States v. Addonizio, 451 F.2d 49 (3rd Cir. 1972). The requisite foundation for the application of the rule requires that a prima facie case of conspiracy be established independent of the declaration itself. This Court made a determination at trial that such a prima facie case had been established by the Government absent any statements of the co-conspirators. As such, the out-of-court declarations were properly admitted.
2. Superseding indictment. Defendant makes the argument that he was unduly prejudiced by a superseding indictment handed down two weeks prior to the trial characterizing James Hartman as the recipient of a bribe, whereas the original indictment named him as an "unindicted co-conspirator." Defendant argues that this changed the number of conspirators and his planned defense. But defendant fails to set forth in his brief just how he was prejudiced. The record clearly shows that Hartman was working as an undercover agent for the government. He was not a co-conspirator. The language of the indictment was simply revised to reflect an accurate description of Hartman's role in the case. This change in the language of the indictment in no way changed the evidence which was presented to the jury.
3. Transcripts of tape recordings. Defendant argues that the trial judge erred in permitting the jurors to read a government prepared transcript of recorded telephone conversations while the taped conversations were played in the courtroom. Relying upon the authority set forth in the well-reasoned Opinion of Judge Huyett of this district in the case of United States v. Eugene Lawson, 347 F. Supp. 144 (E.D. Pa.), we permitted the use of the transcripts as an aid to the jury's understanding of the taped conversations. As in Lawson, supra, the transcripts were not admitted into evidence but were taken from the jury immediately after the playing of the tapes. As stated by Judge Huyett, "[The] procedure followed provided the most reasonable means of presenting telephonic interceptions to the jury." Id. at 150.
4. Entrapment. Defendant contends that the government failed to prove beyond a reasonable doubt that defendant was not entrapped. The jury was properly instructed that the burden was on the Government to prove beyond a reasonable doubt that there was no entrapment. The Court charged:
The burden is on the defendant to bring forth some evidence that the Government induced him, the defendant, to enter into an illegal agreement. This burden must be established only by a preponderance or by a fair weight of the evidence. The burden of proof of showing that there was no entrapment then shifts to the Government and the Government must then prove beyond a reasonable doubt that there was no entrapment and that the defendant was ready and willing to break the law.
There is ample evidence to support the finding by the jury that the government had proven beyond a reasonable doubt that Johnson was not entrapped.
Defendant's motion for a new trial is therefore denied.
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