APPEALS FROM JUDGMENT OF CONVICTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Hastie, Hunter and Garth, Circuit Judges.
Opinion OF THE COURT GARTH, Circuit Judge
On May 14, 1972, a federal grand jury returned a twenty-six count indictment against William T. Somers, Richard S. Jackson, Arthur W. Ponzio, Karlos LaSane, Robert Glass, Germaine Fisher and Florence Clark. Count 1 of the indictment charged the seven defendants with conspiring to violate the Hobbs Act, 18 U.S.C. § 1951,*fn1 by obtaining through extortion the property of contractors, engineers, suppliers, property owners and licensees who dealt with the City of Atlantic City, New Jersey. Count 2 charged the seven defendants with conspiring to violate the Travel Act, 18 U.S.C. § 1952,*fn2 by utilizing the facilities of interstate commerce to cause the commission of bribery and extortion in violation of New Jersey law. Counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 20, 21, 22, 23, 24, 25, and 26 charged that the seven defendants, in furtherance of the conspiracy alleged in Count 1, obtained sums of money by extortion from designated businesses engaged in interstate commerce. Counts 4, 6, 8, 10, 12, 14, 16, and 18 charged that the seven defendants, in furtherance of the Travel Act conspiracy, obtained by extortion sums of money delivered to Atlantic City firms from states other than New Jersey.
Trial commenced on January 15, 1973 before Judge Cohen. During the trial, defendants Jackson and Glass pleaded guilty to Count 1 and defendant Clark entered a plea of nolo contendere to Count 1. On motion of the Government, Counts 4, 5, 23 and 24 were dismissed at the close of the prosecution's case. Finally, on March 8, 1973, the jury returned its verdict, finding defendant Somers guilty on Count 26, defendant Ponzio guilty on Counts 1, 2, and 5-18, defendant LaSane guilty on Counts 1, 2, 21 and 22, and defendant Fisher guilty on Counts 1, 2, 5-8, 17 and 18. Sentences were imposed on May 21, 1973,*fn3 and defendants Somers, Ponzio, LaSane and Fisher appealed.
At trial, the Government sought to demonstrate a criminal conspiracy in which Atlantic City public officials exacted tribute from businessmen who were anxious to receive favorable treatment from purchasing and licensing departments of the local government. The conspirators held high offices in Atlantic City Government: two Mayors (defendants Jackson and Somers), two Commissioners of Parks and Public Property (defendant LaSane and unindicted co-conspirator Albert Shahadi), a Superintendent of Airports, Parks and Recreation Areas (defendant Glass), an Executive Secretary to the Director of Public Works (defendant Fisher) and an Assistant Purchasing Agent (defendant Clark) were allegedly involved in the conspiracy. It was the Government's theory that the alliance of these officers created an atmosphere in Atlantic City whereby local businessmen knew that kickbacks were required in order to secure favorable treatment from the city government.
To substantiate its theory, as well as to prove the substantive counts of the indictment, the Government adduced testimony from a number of witnesses who admitted paying kickbacks upon the demand of one or more of the defendants. In general,*fn4 the evidence tended to show that payoffs were accomplished in several different ways. A few witnesses testified that certain of the defendants demanded annual payments in return for a promise of continued business from the City. Other witnesses described a more elaborate scheme in which certain defendants would ascertain the price of equipment and then suggest that the price be inflated so as to include the amount of a kickback. Upon receipt of payment, the seller would pay back a portion of the total price (normally 10%), in cash, to the official involved. In order to preserve the outward manifestations of a rational and legitimate municipal bidding structure, the seller would be instructed to draw up the specifications (subsequently published by the City) in such a way that only its own equipment would qualify. This tactic normally served to screen out competitors who would not pay kickbacks to the defendants. The testimony indicated that in certain rare instances when "non-complying" bids were initially submitted along with "complying" bids, all bids were rejected. Thereafter, the "complying" bids alone were resubmitted and were accepted. Still another witness testified that in one instance, a substantial payoff was demanded in return for favorable treatment on a license application.
Three of the appellants (Somers, Ponzio and Fisher) testified in their own defense. In addition to the three defendants' denials of any extortion conspiracy, numerous defense witnesses explained that they (the witnesses) had done business with Atlantic City without ever being required to make a kickback and denied that it was common knowledge that payoffs were required in order to secure favorable treatment from the City.*fn5
As might be expected after a trial of almost three months duration, appellants allege a number of trial errors. We find it necessary to comment upon the contentions that the District Court erred: (a) in refusing to sever the case either prior to or during trial; (b) in refusing to permit the defense to recall a Government witness for further cross-examination; (c) in refusing to permit the defense to call Frank Nugent as a witness; (d) in refusing to require a new trial on the basis of prejudicial remarks made by the Assistant United States Attorney; and (e) in failing to strike the testimony of witness Herbert Wernikove or, alternatively, to grant a mistrial on the basis of a time variance between the indictment and the evidence adduced at trial. After a careful review of the record and briefs, we hold that reversible error was not committed and, accordingly, we affirm.*fn6
Appellants Somers and Fisher*fn7 contend that it was error for the District Court to reject their pretrial motions for severance of their individual cases and for severance of particular counts pursuant to Fed. R. Crim. P. 8(b).*fn8 In the alternative, even if joinder were initially proper, the appellants contend that the Court should have severed their individual cases when, during trial, alleged prejudice became apparent. See Fed. R. Crim. P. 14.*fn9
In deciding whether there has been a misjoinder under Rule 8(b), this Court must make an independent determination as to whether or not the Rule's mandate has been followed. Wright and Miller, 1 Federal Practice and Procedure, § 144; see also Ingram v. United States, 272 F.2d 567, 569 (4th Cir. 1959).
Appellants Somers and Fisher base their Rule 8(b) argument upon the suggestion that the substantive counts in the indictment were not part of the same series of transactions. We find little merit in this argument. A Rule 8(b) motion is addressed to the pleadings, and not to the proof subsequently adduced. Provided that the indictment charges that the offenses joined constitute a single series of acts or transactions, severance will not be required. The allegation of a conspiracy in the instant case satisfies this mandate. As Professor Wright explains:
Joinder is permitted of a conspiracy count and substantive counts arising out of the conspiracy, since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan. (emphasis added).
Wright and Miller, 1 Federal Practice and Procedure, § 144. See also Gordon v. United States, 438 F.2d 858, 878 (5th Cir.), cert. denied, Crandall v. United States, 404 U.S. 828, 30 L. Ed. 2d 56, 92 S. Ct. 63 (1971); United States v. Bryant, 364 F.2d 598, 603 (4th Cir. 1966). Thus, provided that the conspiracy charge is put forward in good faith, the combination of a conspiracy count with counts charging acts in furtherance of the conspiracy will survive attack under Rule 8(b). See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). Appellants neither demonstrate nor allude to bad faith in the inclusion of the conspiracy counts herein. Accordingly, we conclude that the District Judge did not err in denying appellants' 8(b) motions.
The disposition of Rule 14 matters is normally within the discretion of the District Court. See United States v. Barber, 442 F.2d 517, 529 (3d Cir. 1971), cert. denied, 404 U.S. 958, 30 L. Ed. 2d 275, 92 S. Ct. 327 (1971); United States v. Lipowitz, 407 F.2d 597, 599 (3d Cir. 1969), cert. denied, 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466 (1969). In the absence of an affirmative showing of an abuse of discretion, this Court will not interfere with the Rule 14 determinations made by the District Court. United States v. Barrow, 363 F.2d 62, 67 (3d Cir. 1966), cert. denied, 385 U.S. 1001, 17 L. Ed. 2d 541, 87 S. Ct. 703 (1967); United States v. Kenny, 462 F.2d 1205, 1217 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972). The burden of demonstrating such abuse is a heavy one. United States v. Ford, 451 F.2d 1163, 1166 (5th Cir. 1971). Indeed, the Supreme Court has indicated that it will not intervene in such matters unless the District Court's ruling is clearly erroneous. See Schaffer v. United States, 362 U.S. 511, 513, 4 L. Ed. 2d 921, 80 S. Ct. 945 (1960); cf. United States v. Barber, supra, 442 F.2d at 529 ("clear" prejudice must be shown).
Under Rule 14, the District Court had "a continuous duty at all stages of the trial to grant a severance if prejudice [did] appear." Schaffer v. United States, 362 U.S. 511, 516, 4 L. Ed. 2d 921, 80 S. Ct. 945 (1960). Appellants Somers and Fisher contend that in numerous ways the failure to sever the defendants' cases produced prejudice and hence constituted an abuse of discretion.
Both appellants claim that little of the evidence presented at trial related to their participation in the alleged offenses. They suggest that they were prejudiced by the fact that the Government's evidence against other defendants was much more substantial than the evidence introduced against them. We find this contention to be without legal significance. In this Circuit, a defendant is not entitled to a severance merely because evidence against a co-defendant is more damaging than the evidence against the moving party. See United States v. De Larosa, 450 F.2d 1057, 1065 (3d Cir. 1971), cert. denied, Baskin v. United States, 405 U.S. 927, 92 S. Ct. 978, 30 L. Ed. 2d 800 (1972). In the context of a Rule 14 application, we have declared that a ". . . primary consideration is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in view of its volume and limited admissibility." Id. Although the instant case may well have been more complex than De Larosa, we nevertheless are convinced from our review of the record that the jury could have reasonably been expected*fn10 to compartmentalize the evidence as it related to the defendants herein. We therefore find no abuse of discretion.
Appellant Fisher also claims that his joinder with other defendants prejudiced his case; (1) by preventing him from compelling testimony of the co-defendant LaSane; and (2) by precluding him from commenting on LaSane's failure to take the witness stand. This Court rejected a contention similar to the first of these claims in United States v. Barber, 442 F.2d 517, 529 (3d Cir.), cert. denied, 404 U.S. 958, 30 L. Ed. 2d 275, 92 S. Ct. 327 (1971), our rejection being based on the conclusion that a defendant would be unable to compel testimony from a co-defendant even if their cases were severed. ". . . The constitutional right of a defendant not to testify at the behest of a co-defendant remains his right despite the severance of their trials." Id. at n. 22. Cf. United States v. Carella, 411 F.2d 729, 731 (2d Cir. 1969), cert. denied, Erhart v. United States, 396 U.S. 860, 90 S. Ct. 131, 24 L. Ed. 2d 112 (1969). Fisher has made no showing that LaSane would have testified voluntarily in Fisher's case had the defendants been severed. Absent such a demonstration, appellant has neither proven the prejudice which is the basis of a Rule 14 motion nor the abuse of discretion which would require action by this Court. See United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967), cert. denied 389 U.S. 1015, 19 L. Ed. 2d 661, 88 S. Ct. 591 (1967) (the unsupported possibility that a co-defendant would testify in a severed case does not render the refusal to sever erroneous).
Nor do we feel that Fisher has made a sufficient demonstration with respect to his (Fisher's) inability to comment upon his co-defendant's silence. We have heretofore concluded that "there must be a showing that real prejudice will result from the defendant's inability to comment" before joinder will be deemed erroneous. United States v. Addonizio, 451 F.2d 49, 62-63 (3d Cir.), cert. den., 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972); See also United States v. Kahn, supra, 381 F.2d at 840; cf. Hayes v. United States, 329 F.2d 209, 221 (8th Cir.), cert. denied, Bennett v. United States, 377 U.S. 980, 84 S. Ct. 1883, 12 L. Ed. 2d 748 (1964). In administering this standard, we, like the Seventh Circuit,*fn11 focus inter alia upon whether or not the defenses asserted (by Fisher and LaSane) are mutually exclusive. Id. at 63. Where there is mutual exclusivity among the defenses (i.e., where acceptance of one defense requires rejection of the others), the ability to comment on the failure to testify is significant, for such comment may well influence which of the defenses will be believed by the jury. Appellant Fisher has neither alleged such exclusivity nor demonstrated any other real prejudice flowing from his inability to comment upon LaSane's failure to testify. Accordingly, we find no abuse of discretion in refusing to sever Fisher's case.
Finally, appellant Somers contends that "specific acts of prejudice" resulted from the refusal of the District Court to sever his case. The most significant of these acts occurred during the cross-examination of Herbert Wernikove. On direct examination, Wernikove testified that he had witnessed a series of negotiations resulting in the payment of $5000 to Somers to influence the granting of a municipal license. On cross-examination, Somers' counsel utilized an FBI report in an attempt to demonstrate that Wernikove had made prior inconsistent statements. During this colloquy, defendant Ponzio's counsel sought a preliminary ruling precluding the revelation of his client's name in the course of examining Wernikove with regard to the FBI report.*fn12 The Court granted Ponzio's application, thereby precluding Somers' counsel from demonstrating that the statement referred to Somers' co-defendant. On appeal, Somers suggests that this ruling prevented him from establishing the defense that it was Ponzio who was "the true culprit." Appellant's Brief at 98. The prejudicial impact of this ruling was slight. Inasmuch as both Somers and Ponzio took the stand and testified, and inasmuch as Ponzio was subjected to cross-examination by Somers, we fail to appreciate any lack of opportunity on the part of Somers to establish his co-defendant's involvement.*fn13 Given these circumstances, we hold that Somers was not prejudiced either by the Court's protective order or by the refusal to sever. We also conclude that the other "specific acts of prejudice" alleged by Somers fail to demonstrate reversible error.
II. REFUSAL TO RECALL A WITNESS
In the midst of the presentation of Somers' defense, Somers' counsel moved to recall Government witness Herbert Wernikove for further cross-examination. Appellant Somers contends that the District Court's denial of this application constitutes reversible error.
On direct examination, Wernikove testified that he was sent to Atlantic City by Maurice Salvia and Daniel Marino to obtain a license for a boardwalk "jam joint."*fn14 Wernikove claimed that defendant Somers told him (as well as Marino) that the license would cost $10,000, thereby discouraging any plans for an immediate opening of a jam joint. A few months later, unindicted co-conspirator Angelo Cibbotti informed Wernikove that the license was obtainable. Wernikove testified that in the early months of 1969, he, Marino, and Salvia met Cibbotti in the lobby of a Holiday Inn in Atlantic City. In response to Cibbotti's inquiry as to whether "the money was brought down," Salvia displayed an envelope filled with $100 bills. Wernikove stated that he saw the $100 bills in the envelope and estimated the total value at $5000. After Cibbotti returned from a telephone call, defendant Somers arrived at the Holiday Inn and joined the others in the coffee shop. According to Wernikove, the envelope was then passed to Cibbotti, who in turn handed it to Somers. One year later, Marino and Salvia obtained a boardwalk license for a jam joint.
Appellant Somers' counsel had a full and complete opportunity to cross-examine Mr. Wernikove. The cross-examination touched upon practically all of the points raised in the direct testimony. In addition, Somers' counsel attempted to impeach Wernikove by means of a report filed by an FBI agent after a pretrial interview with Wernikove.*fn15
Despite this opportunity to question Wernikove, Somers claims that he was prejudiced by the Court's refusal to recall the witness. The appellant urges that recall was necessary on three separate grounds. First, during the initial cross-examination, Somers' counsel had inadvertently failed to confront Wernikove with the contents of the final paragraph of the FBI report (see n. 15, supra). This paragraph, indicating that the witness had heard that a payoff was made to Somers, might be deemed to contradict rather than supplement Wernikove's testimony on direct examination that he had seen the money pass hands.*fn16 Appellant Somers alleges that had the Court allowed recall, his counsel would have been able to correct this inadvertency and impeach the witness on a point characterized by Somers as crucial to the Government's case. Secondly, Somers' counsel requested recall in order to examine Wernikove upon his criminal record. According to appellant, his counsel learned after Wernikove had left the witness stand that: (1) the witness was arrested in 1969 for passing bad checks, (2) the "bankruptcy" offenses which the witness mentioned in his testimony on direct examination may have involved perjury, and (3) the witness was on federal probation during the trial in the instant case. Somers suggests that had recall been permitted, his counsel would have been able to impeach Wernikove's credibility by showing prior bad acts and an incentive to color testimony in favor of the Government.*fn17 Thirdly, recall was requested to impeach Wernikove with regard to the witness' relationship to Daniel Marino and Maurice Salvia. On direct examination, Wernikove portrayed that relationship as being amicable: the witness testified that he was Marino's and Salvia's employee and agent.*fn18 According to appellant Somers, his counsel learned after Wernikove had testified that both Marino and Salvia had been indicted for making extortionate loans to Wernikove between February 1969 and October 1971. Somers suggests that as a victim in a separate case, Wernikove would be biased in favor of the Government in the instant case. Had recall been granted, appellant contends that his counsel could have utilized the Marino-Salvia indictment to establish bias and to contradict the portrayal of the Marino-Salvia-Wernikove relationship suggested by the witness.
A determination as to whether or not a witness should be recalled for further cross-examination is a matter for the discretion of the District Court, reviewable only upon a demonstration of an abuse of that discretion. Faust v. United States, 163 U.S. 452, 455, 41 L. Ed. 224, 16 S. Ct. 1112 (1896); United States v. Kenny, supra, 462 F.2d at 1226; United States v. Soares, 456 F.2d 431, 434 (10th Cir. 1972); Belanger v. Alton Box Board Co., 180 F.2d 87, 94 (7th Cir. 1950). In Kenny, this Court upheld a refusal to recall a witness when it was shown that (a) the purpose of the recall was not to introduce substantive evidence, but rather was to further impeach the credibility of an already impeached witness, and (b) the documents upon which the requested examination would have been based were available at the time of the original cross-examination.*fn19 We find that both of these factors exist in the instant case as well.
Analysis of the purposes alleged by Somers for the recall indicates that the primary goal of the recall was to impair the credibility of Wernikove, a self-admitted "conartist."*fn20 Appellants concede that they would have utilized the full FBI summary for the purpose of impeaching Wernikove's credibility. Appellant Somers' Brief at 67. Similarly, the exploration of prior convictions was apparently aimed at diminishing credibility by identifying the witness as a felon and by suggesting a bias if in fact the witness was still on probation. Finally, in cross-examining Wernikove on his relationship with Salvia and Marino, Somers hoped to contradict an earlier suggestion of an amicable relationship and to establish a bias in favor of the Government.
Furthermore, it is apparent that Somers' counsel had adequate information to make many of the above inquiries during the original cross-examination. The "prior inconsistent statement" (arguably indicating that Wernikove may not have seen the transfer of the $5000 payoff) was part of an FBI summary transmitted to defendant at the close of the Government's case pursuant to the Jencks Act, 18 U.S.C. § 3500. Similarly, defense counsel had ample opportunity to explore Wernikove's bankruptcy fraud conviction on cross-examination.*fn21
There is some dispute with regard to the prior availability of documents necessary for cross-examination on the relationship of Wernikove to Salvia and Marino. Somers claims that it was only after the close of the Wernikove cross-examination that his counsel first learned of an indictment charging Salvia and Marino with conspiring to make extortionate extensions of credit. The District Court disagreed. In announcing its refusal to recall Wernikove, the Court indicated its belief that Somers' counsel was aware of the indictment at the time of the original cross-examination. On the basis of the record before us, we cannot quarrel with this finding of prior availability.*fn22
Given the admitted purposes for recalling Wernikove and the full opportunity of Somers' counsel to inquire into these matters during his original cross-examination, we find that the District Court ...