UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 27, 1974.
UNITED STATES OF AMERICA, APPELLEE,
WILLIAM T. SOMERS, ET AL., WILLIAM T. SOMMERS-NO. 73-1523 KARLOS R. LASANE-NO. 73-1524 ARTHUR W. PONZIO-NO. 73-1525 GERMAINE E. FISCHER-NO. 73-1526 APPELLANTS
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
A. Rule 8 Motions
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.
B. Rule 14 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 did not abuse its discretion in refusing the recall.
III. REFUSAL TO COMPEL A PROSPECTIVE WITNESS TO TAKE THE WITNESS STAND
As part of his client's defense, Commissioner Ponzio's counsel had hoped to call one Frank Nugent -- allegedly "the biggest single contractor doing business with [Atlantic City] --as a witness. Counsel planned to elicit from Nugent testimony which would contradict the Government's theory that it was common knowledge in Atlantic City that kickbacks were necessary if one wished to do business with the municipal government.
Prior to calling Nugent to the witness stand, Ponzio's counsel discussed possible lines of inquiry with the prospective witness. On the basis of this conversation, the witness' counsel (Charles Nugent, Frank Nugent's brother) advised the Court that his client would plead the Fifth Amendment if called to testify. The Court accepted this representation and accordingly did not require Frank Nugent to take the witness stand.
Appellant Ponzio contends that it was error for the Court to excuse the potential witness without first permitting counsel to propound questions to him on the witness stand. Both Ponzio and the Government have addressed themselves to this issue strictly in terms of the exercise of the Fifth Amendment privilege against self-incrimination. We adopt a different approach.
District judges have wide discretion in limiting the number of defense witnesses called to the stand. In United States v. Baysek, 212 F.2d 446 (3d Cir. 1954), this Court declared that:
The limitations of witnesses whose testimony will be cumulative of that already received is a matter within the sound discretion of the trial judge.
212 F.2d at 447. Accord : Fast v. Wainwright, 439 F.2d 1162, 1165 (5th Cir. 1971); Loux v. United States, 389 F.2d 911, 917 (9th Cir. 1968), cert. denied, 393 U.S. 867, 21 L. Ed. 2d 135, 89 S. Ct. 151 (1968); Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959). Admittedly, the situation in Baysek was somewhat different than the situation in the instant case. In Baysek, the defendant had already called seven character witnesses by the time that the district judge exercised his discretion to limit such testimony. Here, defendant Ponzio had not yet called the host of witnesses lined up to contradict the Government's theory of "common knowledge" when the Nugent matter surfaced. However, the District Court was well aware of the nature of the testimony which Ponzio expected to elicit. In response to the protestation that the inability to call Frank Nugent deprived Commissioner Ponzio of a fair trial, the Court fittingly remarked:
"I can perceive no possible prejudice by the failure to produce Mr. Nugent. Admittedly, you got a roomfull of suppliers and dealers with Atlantic City who are going to disprove the theory of the Government's case that everybody in Atlantic City has to pay off in order to do business. We are only dealing with one witness now, one supplier out of what you termed on several occasions 'a roomfull of them.'"*fn23
The Court's predictions were subsequently borne out. Twelve witnesses called by Ponzio testified that the Commissioner had not demanded kickbacks in return for business. These witnesses also denied that kickback requirements were a matter of common knowledge in Atlantic City.
Viewing the record in retrospect, it is clear that the testimony expected from Frank Nugent would have added little to that adduced from the dozen other witnesses called by Ponzio. We are thus convinced that Ponzio was not prejudiced by the refusal to compel Mr. Nugent to take the witness stand. Inasmuch as the Court had a firm basis for assuming that the testimony would be cumulative, and given the actual cumulative nature of the evidence, we find no abuse of discretion in the District Court's not requiring Frank Nugent to testify.
IV. PROSECUTORIAL MISCONDUCT
Each of the appellants complain that they were denied a fair trial as a result of prejudicial comments made by the prosecutor during the course of the trial. We have faced this question all to frequently in recent years.*fn24 In this case, the allegations of misconduct are based in large part upon conduct which we find difficult to countenance. We are called upon to determine whether these improprieties are of such a dimension as to require a new trial.
We of course reiterate that:
A United States Attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for.
United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960), cert. denied, 364 U.S. 941, 5 L. Ed. 2d 372, 81 S. Ct. 459 (1961). Were we sitting as purely a disciplinary body, we might well consider reversing any conviction in which prosecutorial misconduct was evident. Considerations of judicial administration, however, preclude us from reversing every time that we find adversarial improprieties. As this Court has recognized, trials are "rarely, if ever, perfect." United States v. Leftwich, 461 F.2d 586, 590 (3d Cir.), cert denied, 409 U.S. 915, 93 S. Ct. 247, 34 L. Ed. 2d 178 (1972). Given our primary concern with the fairness of the procedure, we will reverse upon demonstrations of prosecutorial misconduct only in those situations in which prejudice inures to the defendant from the challenged improprieties. See Frazier v. Cupp, 394 U.S. 731, 736, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969).
We shall consider the appellants' claims seriatim.
1. OPENING ARGUMENT
In Government of Virgin Islands v. Turner, 409 F.2d 102 (3d Cir. 1969), this Court analyzed the legitimate functions of an opening statement. We stated that:
The purpose of an opening is to give the broad outlines of the case to enable the jury to comprehend it. It is not to poison the jury's mind against the defendant. . . .
409 F.2d at 103. Analysis of the record indicates to us that although the Assistant United States Attorney paid lip service to the legitimate purpose of an opening, *fn25 he nevertheless departed from that objective by studding his opening with overly-dramatic, unnecessary characterizations.*fn26
We fail to see how the characterizations contained in the opening added to the outline of the Government's case. The appellee contends that the offending statements were substantiated by evidence adduced at trial and accordingly, that their inclusion in the opening was justified. Whether or not proofs were ultimately adduced warranting such characterizations is irrelevant. Such characterizations add nothing to the legitimate education of the jury which is not afforded by the proper presentation of facts to be proved.*fn27 We categorically disapprove of remarks which serve only to color subjectively the minds of the jury at the outset of the trial.
We must determine whether the defendants were prejudiced by the characterizations. In United States v. Leftwich, supra, we declared that:
461 F.2d at 590. In the instant case, the District Court did attempt to neutralize the effect of the offending statements. At the outset of the trial, the Court instructed the jury that statements of counsel did not constitute evidence. Similarly, after defendants objected to the prosecutor's opening remarks, *fn28 the Court stated:
"Here, once more, as I also instructed you yesterday, and as I will instruct you in my charge at the end of the entire case, whatever counsel for the Government has said and whatever counsel for the defendants may say is not evidence. The evidence that you will consider in reaching your verdict is what you hear from the witnesses who will be presented to you."
Again, at the close of the case, the Court reminded the jury to treat the arguments of counsel as devoid of evidentiary content.
Our review of the record convinces us that whatever prejudicial effect there may have been was neutralized. In addition to the curative statements made by the District Judge, the jury was also instructed by the prosecutor that his comments were not to be considered as evidence (see n. 25, supra). Furthermore, the length of the trial (almost three months) serves to minimize the effect of comments made at the very beginning of the proceedings. See Frazier v. Cupp, 394 U.S. 731, 736, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969); cf. United States v. Kravitz, 281 F.2d 581 (3d Cir. 1960), cert denied, 364 U.S. 941, 5 L. Ed. 2d 372, 81 S. Ct. 459 (1961); United States v. White, 486 F.2d 204 (2d Cir. 1973); see also Singer, Forensic Misconduct by Federal Prosecutors -- and How it Grew, 20 Ala. L. Rev. 227, 239-242 (1968). Though the remarks were improper, we do not believe that the characterizations in the Government's opening played any real part in convicting the defendants. Accordingly, we reject this ground for a new trial.
Alluding to the fact that the jury eventually acquitted him on the conspiracy counts, appellant Somers charged that references in the opening statement to his complicity in the conspiracies*fn29 deprived him of a fair trial. We disagree. We know of no rule of law that requires a mistrial merely because the jury does not believe that a prosecutor's outline (presented in an opening statement) is true beyond a reasonable doubt.*fn30 Provided that the outline is an objective summary of evidence which the Government reasonably expects to produce, a subsequent failure in proof will not lead to an automatic finding of misconduct. Cf. Frazier v. Cupp, 394 U.S. 731, 736, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969). Inasmuch as there is no indication in the record herein that the prosecutor outlined facts concerning Somers that he did not believe he could substantiate, we find no impropriety in the remarks suggesting that Somers played a role in the conspiracies.
Appellant Fisher's challenge to a "variance" between the opening outline and the subsequent proofs is similarly rejected.
2. STATEMENTS MADE DURING TRIAL
Appellants complain of various comments made by the prosecutor during the taking of evidence. Of these complaints, only one is of real significance. At the close of its case, the Government moved to dismiss four Counts of the indictment. In so moving, the prosecutor stated (before the jury):
"Your Honor, after the close of Court on Tuesday when the United States rested its case I made a motion on the government's behalf. The United States moved to dismiss counts 3 and 4 and counts . . . 23 and 24, on the basis that they did not wish to prolong the trial any further." (emphasis added)
Appellants contend that this statement prejudiced their cases by implying that the Government could have gained convictions on the four counts if it so desired.
We agree that the above statement improperly suggests that the evidence other than that presented could be submitted to support a conviction on counts 3, 4, 23 and 24. The technical nature of the remark, however, as well as its subtle overtones, minimizes its prejudicial impact. Given the immediate curative steps taken by the District Court,*fn31 we conclude that this minimal impact was successfully neutralized. Accordingly, we reject the contention that the above statement justifies a remand for a new trial.
3. REMARKS MADE DURING THE DEFENSE'S CLOSING ARGUMENT
The most serious of appellants' complaints relates to a remark made by the Assistant United States Attorney during the closing argument of Ponzio's counsel.*fn32 The record discloses the following colloquy:
Counsel for Ponzio : "That case probably would have taken a week, possibly two, to try and it would have been strictly a one on one situation. Ask yourselves why did the Government, I won't say spin or concoct, why did they choose this theory of a conspiracy that goes back to a dead man, it goes back to 1960, and introduce evidence that takes us back to 1950 and require Arthur Ponzio to defend against that?
"And [the prosecutor] knows, or at least by this time should know, that a large part of that testimony is not true. He knows and the evidence shows it, Mr. Ponzio had no connection whatsoever with Albert Shahadi. He knows that he had nothing to do with Bob Glass. He knows that he had nothing to do with Florence Clark, other than the fact that that nice lady was the purchasing agent. He knows that Ponzio is independent of Somers and vice versa. He knows that Ponzio and LaSane are independent of each other and he knows now that poor Gerry Fisher shouldn't have ever been here.
"And whatever the political overtones were in Atlantic County that tried to creep in here from time to time, he knows that the number one man in the Democratic party at that time, Arthur Ponzio, had no connection with the number two man in the Republican party, Jimmy Boyd. His name was mentioned."
Assistant U.S. Attorney : "Your Honor, I don't like to interrupt, but if you're going to put my knowledge of what I know about this case not in evidence, I will speak on my summation what I know more about that is not evidence that will really fill out this whole void." (emphasis added)
The prosecutor's remark can easily be construed as a suggestion that the Government is aware of evidence, beyond that introduced at trial, implicating Ponzio. Such a suggestion is clearly improper. United States v. Scalia, 464 F.2d 1301, 1303 (3d Cir. 1972) (per curiam), cert. denied, 410 U.S. 933, 35 L. Ed. 2d 596, 93 S. Ct. 1384 (1973); Kitchell v. United States, 354 F.2d 715, 719 (1st Cir. 1966), cert. denied, 384 U.S. 1011, 16 L. Ed. 2d 1032, 86 S. Ct. 1970 (1966); McMillian v. United States, 363 F.2d 165, 169 (5th Cir. 1966); United States v. Lefkowitz, 284 F.2d 310, 314 (2d Cir. 1960).
Ponzio suggests that United States v. Schartner, 426 F.2d 470 (3d Cir. 1970), requires a reversal on the basis of the above remark. In Schartner, this Court found the following remark to be per se reversible error:
I have a duty to protect the innocent and to see that the guilty do not escape. I say to you with all the sincerity I can muster if you do not convict the defendant, the guilty will escape.
We have since limited Schartner to its facts; Schartner requires a per se reversal only when the prosecutor expresses an opinion on the guilt of a defendant based on evidence not in the record. United States v. Benson, 487 F.2d 978, 981 (3d Cir. 1973); United States v. LeFevre, 483 F.2d 477, 479 n.1 (3d Cir. 1973). Although the remark at issue does represent a comment on evidence outside of the record, it does not constitute an opinion on the guilt of Commissioner Ponzio.
We do not hasten to extend Schartner to cover the instant case. While per se rules perform a valuable function in many areas of the law, such a short-hand approach is largely inappropriate to the evaluation of prosecutorial misconduct. Except where a type of comment is inherently prejudicial (as in Schartner), prosecutorial misconduct should be evaluated on a case-by-case approach. See United States v. White, 486 F.2d 204, 207 (2d Cir. 1973). The remark at issue, while clearly improper, is not so inherently prejudicial as to justify a per se rule. Accordingly, we must determine whether Ponzio was actually prejudiced by the statement.
It is well settled that a prosecutorial misstatement made in response to, and in rebuttal of, an improper inference suggested by defense counsel will not result in reversible error. See, e.g. United States v. Panepinto, 430 F.2d 613, 616 (3d Cir.), cert. denied sub nom., Orangio v. United States, 400 U.S. 949, 27 L. Ed. 2d 256, 91 S. Ct. 258 (1970); United States v. Schartner, 426 F.2d 470, 477 (3d Cir. 1970); see also United States v. Casteel, 476 F.2d 152, 155 (10th Cir. 1973); United States v. Guajardo-Melendez, 401 F.2d 35, 39-40 (7th Cir. 1968). Asserting this "reply" doctrine, the Government argues that the improper suggestions made by Ponzio's counsel (i.e. suggesting that the Assistant U.S. Attorney knew that Ponzio was not involved in the conspiracy) provoked the prosecutor's reply. We agree with the Government that defense counsel's statements were improper. Moreover, we recognize that the prosecutor's remark was causally related to defense counsel's statement. However, we do not believe that the reply doctrine protects the remark made by the Assistant U.S. Attorney. The doctrine serves to permit neutralization of improper defense arguments; it does not operate as a license for improper affirmative attacks upon defendants. Having heard defense counsel's statements, it would have been proper for the Assistant U.S. Attorney to have objected and to have requested an appropriate instruction. It was not proper, however, for the Assistant U.S. Attorney to launch an affirmative charge against Ponzio, especially when the charge inferred matters outside of the record.
Factors do exist, however, to mitigate the prejudice emanating from the record. The District Court instructed the jury (almost immediately after the remark was made) in the following terms:
"Members of the jury, once again an objection has been made by counsel and I instruct you that you are to completely disregard what [the prosecutor] stated, eliminate it from your minds. You are not to take it into consideration at all during the course of your deliberations on this case."
The immediacy and stern nature of this curative instruction serves to neutralize the prejudice somewhat.
Furthermore, we regard the prosecutor's statement as being rather ambiguous. The prosecutor did not identify the "void" which he was willing to fill. Did it relate to the previous comment about "Jimmy Boyd" and the Republican Party? Or did it refer more generally to Ponzio's relationship with the other defendants? While the ambiguity of the prosecutor's remark does not transform an improper remark into a proper one, it does diminish the prejudicial impact upon the jury.
Finally, we note that the evidence against Ponzio was quite strong. Inasmuch as Commissioner Ponzio's guilt was clearly established by competent evidence, we are confident that the ambiguous remark, cured as it was by the Court's instructions, did not prejudice the defendant. Cf. United States v. LeFevre, 483 F.2d 477 (3d Cir. 1973); Government of the Virgin Islands v. Turner, 409 F.2d 102, 104 (3d Cir. 1969).
4. CLOSING ARGUMENT
Finally, appellant Somers objects to a portion of the Government's closing in which the prosecutor attempted to induce the jury to infer special treatment for Salvia's and Marino's "jam joint" (East Coast Sales Demonstration, Inc.) from the fact that its license was never suspended. Specifically, the Assistant U.S. Attorney declared:
"Yet, you will recall that Mayor Somers told us he suspended the license of another firm. Why wasn't the East Coast license ever suspended? Why wasn't there a Court case? Why wasn't [sic] injunctive proceedings taken if they wanted to stop and close up these firms?"
We do not decide whether this comment was improper. Fatal to Somers' contention is the fact that his counsel did not object to the above remarks at trial. In United States v. Lawson, 337 F.2d 800, 807 (3d Cir. 1964), cert. denied, 380 U.S. 919, 13 L. Ed. 2d 804, 85 S. Ct. 913 (1965), this Court held that a failure to object to improprieties in a closing argument precluded appellate review in all cases except where "plain error" is established. The impressive burden placed upon appellant is justified by the recognition that had a timely objection been made, remedial action, if appropriate, could have been taken, thereby avoiding a new trial. The error, if any, in this case was not "plain error," and hence, cannot serve as grounds for reversal.
While we do not condone the prosecutorial improprieties evident in this case, we conclude that the instances of such conduct, considered both individually and in their combined effect, did not prejudice the defendants. Reversal, therefore, is not warranted.
As we indicated earlier, our Court has too frequently been required to review the issue of prosecutorial misconduct. We feel quite strongly that we should not have to deal so constantly with such a recurring issue when it can so readily be avoided. We cannot leave this discussion, therefore, without some further observations pertaining to this general subject.
We do not suggest that a prosecutor abandon eloquence or advocacy.
"A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to allow bias or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows."
Viereck v. United States, 318 U.S. 236, 253, 87 L. Ed. 734, 63 S. Ct. 561 (1943) (Black, J., dissenting). Nor do we suggest that a prosecutor is precluded from "hitting hard." Berger v. United States, infra, 295 U.S. at 88. Nevertheless, preparation, discipline, knowledge, restraint and responsibility should dictate the manner by and the area in which the blows should be struck.
Our society and our Courts cannot afford the luxury in terms of time and money of permitting federal prosecutors, even during lengthy trials, to abandon prosecutorial disciplines. "A few injudicious words uttered in the heat of battle by an Assistant United States Attorney may undo months of preparation by police, prosecutorial and judicial officers." United States v. White, supra, 486 F.2d at 204.
The remedy rests with and in the office of each federal prosecutor. We suggest that this remedy be applied liberally and often. Absent such discipline, we can foresee that our approach to this problem may require more drastic and prophylactic rules.
V. TIME VARIANCE
Count 26 of the indictment charges that the seven defendants extorted money from East Coast Sales Demonstration, Inc.*fn33 (Salvia's and Marino's "jam joint"). Paragraph 5 of this Count, reprinted in the margin below,*fn34 alleges that the extortion occurred "between on or about January 1, 1970 and July 31, 1970." In a letter dated December 27, 1972, the prosecutor basically reaffirmed these dates, informing defense counsel that the Government would prove at trial that the Count 26 acts occurred "between on or about January 1, 1970 and on or about July 3, 1970."*fn35 Nevertheless, at trial the Government's proof varied from the above dates. Witness Herbert Wernikove testified that in late 1968 Somers told him that it would cost $10,000 to obtain a boardwalk license for Marino's jam joint. Early in 1969, Angello Cibbotti (as previously noted, an unindicted co-conspirator) informed Wernikove that there would be no problem in obtaining the license. Wernikove explained that the subsequent meeting at the Holiday Inn, at which the payoff was made, was held early in 1969. Due to problems encountered in renting building space, East Coast was not opened until April of 1970.
At the close of the direct examination of Wernikove, Somers' counsel moved to strike his testimony on the grounds that the proof adduced was inconsistent with the dates stated in the indictment and in the December 27, 1972 letter. Pressed to explain this variance, the prosecutor stated that he had not learned until immediately before trial*fn36 that the payment occurred in the early part of 1969. The prosecutor explained that he had assumed that the payoffs had occurred just prior to the opening of the jam joint in 1970. The District Court denied Somers' motion to strike*fn37 on the ground that no prejudice was shown. On appeal, Somers -- the only defendant convicted on Count 26 -- asserts that the time variance constitutes reversible error.
To evaluate the legal significance of Somers' contention, it is first necessary to trace the decisional law relevant to disparities between proof and indictment.
In Ex Parte Bain, 121 U.S. 1, 30 L. Ed. 849, 7 S. Ct. 781 (1886), the Supreme Court held that the striking of terms in an indictment by a trial court denied defendants (felons) their constitutionally protected right to be tried only upon charges returned by a grand jury. Since a grand jury might base its indictment upon terms stricken by a trial judge, the Supreme Court established a per se rule against judicial amendments to the terms of an indictment.
A less rigid stand has been taken with respect to variances between the terms in an indictment and the evidence established at trial.*fn38 Rather than adopt a per se rule, the Supreme Court has developed a case-by-case approach for analysis of variances. In both Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), and Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946), the Supreme Court announced that variances would constitute reversible error only in those cases in which variances actually prejudice the defendant. Berger and Kotteakos suggest that the focus for variances is on the fairness of the trial, as opposed to the emphasis on pleading requirements suggested by Ex Parte Bain.
This dichotomy between the treatment of variances and amendments was clouded somewhat by Stirone v. United States, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). In Stirone, the indictment charged a Hobbs Act offense relating to interference with the interstate transportation of sand. Both the proofs at trial and the jury instructions permitted conviction on an alternate theory (namely, interference with shipments of concrete to a mill that would eventually produce steel which would move in interstate commerce). In finding this variance to be reversible error, the Court's analysis more closely paralleled the per se test of Bain than the Berger-Kotteakos focus upon trial prejudice.*fn39 The Court emphasized that the variance related to one of the essential elements in a Hobbs Act offense, the relationship to interstate commerce. Rather than speculate on the intent of the grand jury with regard to such an important factor, the Court vacated the conviction.
We do not read Stirone as mandating the Bain per se test for all variances. Rather, Stirone merely identifies one type of variance as constituting a "constructive amendment" and then applies the stricter per se approach, applicable to amendments since Ex Parte Bain. The variance in Stirone was substantial: while the indictment specified one offense (interference with the interstate transportation of sand), the evidence demonstrated a completely different offense (interference with the interstate transportation of steel). The modification in the elements of the crime presented a substantial likelihood that Stirone may have been convicted of an offense other than that charged by the grand jury. The per se approach utilized in both Bain and Stirone is designed to protect against this possibility.
Thus, in evaluating variances, we must first determine whether there has been a modification in the elements of the crime charged. See United States v. De Cavalcante, 440 F.2d 1264, 1272 (3d Cir. 1971); United States v. Smith, 474 F.2d 844, 846 (3d Cir.), cert. denied, 411 U.S. 970, 93 S. Ct. 2162, 36 L. Ed. 2d 692 (1973); cf. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973). If such a modification exists, we will apply the per se rule of Stirone so as to preserve the shielding function of the grand jury. If, on the other hand, the variance does not alter the elements of the offense charged, we will focus upon whether or not there has been prejudice to the defendant, as in Berger and Kotteakos. See United States v. Bryan, supra, 483 F.2d at 96; cf. United States v. Dreer, 457 F.2d 31, 33-34 (3d Cir. 1972); United States v. Petti, 459 F.2d 294, 296-97 (3d Cir. 1972).
Appellant Somers contends that we are bound by United States v. Critchley, 353 F.2d 358 (3d Cir. 1965) to apply the per se approach in the instant case. In Critchley, a Hobbs Act indictment charged defendants with committing extortive acts "on October 7 and 8, 1962." The proof at trial disclosed no such activity on the dates specified, but did disclose that extortive threats were made on August 10 and October 5, 1962. On the basis of Stirone, this Court held that the threats proven could not be used to support the jury verdict of guilty. We declared:
The Supreme Court has indicated that indictments charging violation of the Hobbs Act must be narrowly construed. . . . This Court cannot allow the Government to prove interference with interstate commerce by threats made on October 5, 1962, and approximately one week earlier, when the indictment charged interference with interstate commerce by actions of the defendant on October 7 and 8, 1962.
353 F.2d at 362.
Critchley, however, may be distinguished from the instant case. Unlike the general language in the indictment before us (charging that the extortion occurred between on or about January 1 and July 31, 1970), the Critchley indictment restricted the relevant time frame to two specific dates. To the extent that Critchley adopted a per se rule, we limit it to situations in which the grand jury identifies specific dates for an offense. In such situations, it is reasonable to assume that the grand jury was indicting the defendant for acts occurring on the specific dates charged. Where, however, the grand jury speaks in more general terms, this assumption fails. By the use of the qualifying phrase "on or about", the grand jury indicates its unwillingness to pinpoint the date of the offense charged. We will not particularize by a per se rule what the grand jury leaves vague. Accordingly, we reject the contention that our precedent binds us to a per se approach.
Congress has not identified time as an essential element of either a Hobbs Act or Travel Act offense.*fn40 In the absence of such an identification, proof of the acts charged on any date within the statute of limitations and before the return date of the indictment is sufficient to support a conviction. See Ledbetter v. United States, 170 U.S. 606, 612, 42 L. Ed. 1162, 18 S. Ct. 774 (1898); see also United States v. Kerr, 439 F.2d 689, 690 (9th Cir. 1971); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970); United States v. Covington, 411 F.2d 1087, 1088-1089 (4th Cir. 1969); Jacobs v. United States, 395 F.2d 469, 474 (8th Cir. 1968). We conclude, therefore, that the time variance alleged by Somers does not constitute a modification of the elements of the crime charged. Unlike the situation in Stirone, the variance herein does not undermine our confidence in the belief that the defendant was convicted of the crime charged by the grand jury. A per se approach to the variance is therefore precluded.
We must, instead, determine whether the time variance prejudiced Somers.*fn41 In making such a determination, we normally focus upon two issues:
a. Is there a danger that as a result of the variance, Somers may be prosecuted a second time for the same offense?
b. Was Somers so surprised by the proof adduced that he was unable to prepare his defense adequately?
See Berger v. United States, 295 U.S. 78, 82, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). We find nothing in the record or in Somers' brief on appeal to suggest that the time variance will cause double jeopardy problems for the appellant. Accordingly, we restrict our inquiry to the second of the issues posed above.
Herbert Wernikove testified on February 7, 1973. Somers' defense was not presented until thirteen days thereafter. Our review of the record indicates to us that this thirteen day period enabled Somers to become familiar with Wernikove's testimony and prepare a reasonable response. We base this conclusion upon two factors, Somers' testimony and the conduct of his counsel.
When Somers took the witness stand, he categorically denied: (1) meeting Wernikove; (2) demanding $10,000; and (3) receiving money as a result of a meeting at the Holiday Inn. Had Somers been given greater advance notice of the proper time frame, there would have been no change in these repudiations. He would have made the same categorical denials that were both offered and apparently discredited herein.
Given the thirteen day period between Wernikove's testimony and the presentation of Somers' defense, we believe that defense counsel had ample time to react to Wernikove's testimony. Our conclusion might well be different had Somers been attempting to develop an alibi defense during this period. Although Somers' counsel intimated that he had been preparing an alibi defense for the dates stated in the indictment, there was no suggestion that such a defense was considered for the dates to which Wernikove testified, nor offer of proof in that regard. Our conclusion that counsel had sufficient time is fortified by the fact that Somers' counsel did not request a continuance after Wernikove completed his testimony. We are confident that had counsel felt more time was required to analyze or deal with Wernikove's "time" testimony, an application would have been made to the Court. While we do not suggest that such an application would necessarily have been granted, we treat the absence of such an application as an indication that the time interval was adequate for preparation.*fn42