(3d Cir. 1971), the court reviewed a charge containing the moral certainty concept and found it adequate. In neither case did the Court have before it the question of whether omitting the "moral certainty" charge was error. I have concluded that where, as here, the remainder of the charge adequately and properly defines the term "reasonable doubt," it was not error to refuse to give an instruction on "moral certainty."
5. DID THE COURT ERR IN REFUSING TO ALLOW FULL EXAMINATION OF WITNESSES ON THE ISSUE OF MINIMIZATION OF THE INTERCEPTION OF TELEPHONE CONVERSATIONS AND IN REFUSING TO SUBMIT THE MINIMIZATION ISSUE TO THE JURY?
On December 15, 1972, the Honorable R. Dixon Herman of this Court signed an order authorizing the interception of telephone communications, the recordings of which ultimately made up the bulk of the evidence presented by the Government in the trial of this case. Pursuant to the mandate of 18 U.S.C. § 2518(5), the authorization order provided, inter alia, that the intercept "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." Following arraignment, the Defendants filed several motions including various motions to suppress the wiretap evidence. The suppression motions, which raised the minimization issue, were referred by this Court to Judge Herman because he granted the authorization order. On June 22, 1973, Judge Herman conducted a hearing on the motions to suppress. Much of the evidence and arguments presented at that hearing went to the question of whether the wiretaps in question were conducted in such a way as to minimize the interception of communications not otherwise subject to interception. On July 27, 1973, Judge Herman entered an order denying all of the suppression motions.
At the trial in this case, the issue of minimization was raised repeatedly, particularly during the examination of the F.B.I. agents who made and supervised the wiretaps. Because of the possibility that new evidence on the minimization issue might be uncovered, and in order to provide Defendants with a complete record on which to base any future appeal of the order denying the suppression motions, the Court permitted a liberal inquiry on matters relating to minimization. But when it appeared that matters presented at the hearing before Judge Herman were merely being rehashed, the Court cut off examination of the witnesses on this issue because of the time factor in an already lengthy trial. In view of the fact that Judge Herman had already decided the minimization question adverse to Defendants, the Court refused to review that decision or to submit the issue to the jury.
There are two reasons why it was proper not to submit the minimization issue to the jury. First the suppression of wiretap evidence is a matter for the court to decide. F.R. Crim. P. 41(e) provides a procedure whereby the Court decides, before trial, motions to suppress evidence allegedly seized by an unlawful search. United States v. Wheeler, 172 F. Supp. 278 (W.D. Pa. 1959), aff'd 275 F.2d 94 (3d Cir. 1960), cert. denied, 363 U.S. 828, 80 S. Ct. 1597, 4 L. Ed. 2d 1523. See Steele v. United States, 267 U.S. 505, 45 S. Ct. 417, 69 L. Ed. 761 (1925). In language very similar to Rule 41(e), 18 U.S.C. § 2518(10) (a) provides the same pre-trial procedure for motions seeking to suppress wiretap evidence. It can only be concluded that issues concerning the validity of wiretap evidence, like issues concerning the legality of searches and seizures, are matters for the court to decide, not the jury.
Second, it would have been improper for this Court to reopen the issue of minimization in light of Judge Herman's order denying the suppression motion, since judges should not put themselves in a position where they might be required to overrule the decision of a judge of the same court in the same case. United States v. Wheeler, 256 F.2d 745 (3d Cir. 1958), cert. denied, 358 U.S. 873, 79 S. Ct. 111, 3 L. Ed. 2d 103, rehearing denied 358 U.S. 913, 79 S. Ct. 229, 3 L. Ed. 2d 234. Defendants contend that new evidence on the minimization issue was presented at the trial which would allow this Court to reopen the issue. See United States v. Wheeler, supra. However, any difference in the evidence presented at trial and that presented to Judge Herman would seemingly go against Defendants' position that suppression was improperly denied. At both the July 22, 1973 hearing and at the trial, F.B.I. Agent Rogers testified that the agents intercepting the telephone calls stopped recording upon determining that the phone calls were personal in nature and not gambling calls. At the hearing Rogers testified that the agents continued to listen to the unrecorded calls to determine when a call was completed, whereas at the trial evidence indicated that the agents not only stopped recording when a call was determined to be personal, but that they also removed their earphones until a device on the machines indicated that the call was over. The Court gave Defendants ample opportunity at trial to elicit new evidence, and only when it became clear that no new and material evidence was forthcoming did the Court terminate inquiry on this issue.
6. SHOULD THE GOVERNMENT HAVE BEEN PERMITTED TO CALL JULIA BUTCHKO AS A WITNESS?
Voice identification was made of Defendant Pancerella on recorded phone conversations to and from telephone number 339-5981, listed in the name of John Turo, 301 South Peach Street, Mt. Carmel, Pennsylvania. Over Defendants' objections, the Government was permitted to call Julia Butchko who resided at the above address and at whose apartment Pancerella allegedly engaged in the recorded gambling related telephone conversations. Defendants feared that the jury might reasonably infer that Pancerella was a married man, that Miss Butchko was his mistress, and that the resultant prejudice to Pancerella and the other Defendants outweighed the value of Miss Butchko's testimony. Besides objecting to the calling of Miss Butchko, all Defendants except Pancerella made motions that their trial be severed from Pancerella's.
Having been granted immunity by the Government, Miss Butchko testified that Pancerella used the name John Turo, and that on the days on which the phone calls were being intercepted and recorded, Pancerella was using the telephone. Miss Butchko also testified that Pancerella's nickname was McGee, a name that was used in several of the recorded conversations. She also confirmed that she and Pancerella bought a couch in Shamokin, a fact which also came up during one of the recorded phone calls.
Although this testimony was not absolutely vital to the prosecution, it certainly was highly relevant in identifying Defendant Pancerella as one of the participants in several telephone conversations played during the trial. No mention was made during Miss Butchko's testimony that she and Pancerella enjoyed any special relationship, although I suppose the jury might infer that the Defendant was more than a casual visitor. There was no evidence at trial that Pancerella was a married man. In my view, the relevant and probative value of Miss Butchko's testimony outweighed any prejudice to Pancerella and the other Defendants. The witness was properly allowed to testify, and the motions of all Defendants except Pancerella for severance were properly denied.
7. WERE THE DEFENDANTS ENTITLED TO A MISTRIAL BECAUSE OF COMMENTS MADE BY THE PROSECUTOR IN HIS CLOSING ARGUMENT?
After the Assistant U.S. Attorney's closing argument, Defendants made triple-grounded motions for mistrial which were denied by the Court. Two of the grounds concerned comments by the Assistant U.S. Attorney in his closing argument and will be covered in this discussion. The other ground will be covered in the following section of this Opinion.
Defendants first contend that the prosecutor's reference to "setting up camp at Julia Butchko's house" was a needless and prejudicial remark in that it suggested an illicit sexual relationship between Defendant Pancerella and Miss Butchko. The full context of the remark was as follows:
"Do we rely purely on voice identification? No. That is not necessary at all. Just go right to the telephone records of the alias John Turo at 301 South Peach Street, setting up camp at Julia Butchko's house, setting up this business, and we turn to the telephone records and we look at this particular date . . . ."
Transcript Vol. X, p. 34. In light of the explanatory phrase "setting up this business" which follows the "setting up camp" remark, it is clear, at least to this Court, that the Assistant U.S. Attorney was merely stressing the evidence which tended to show that Defendant Pancerella conducted the gambling operation from Miss Butchko's apartment. Admittedly, this was a poor choice of words, but the comments were not so gross as to constitute prejudicial error. United States v. Benson, 487 F.2d 978, (3d Cir., filed November 26, 1973).
Defendants also objected to the comments of the Assistant U.S. Attorney concerning the voice identification testimony and Defendants' failure to produce any contrary evidence:
"Defense? A tremendous defense. We have attorneys get on this and they battered every point we brought up, everything they could get out of it, but a little thing like bringing in an independent tape in here from five friends from Shenandoah saying you can't pick out Pancerella's voice, can you? Any of that? No. They knew it was John Pancerella and I respectfully submit that you knew, too."