APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 74-133).
Van Dusen, Gibbons and Hunter, Circuit Judges.
Following an investigation by the Philadelphia Office of the Justice Department's Special Strike Force, a grand jury named five men as defendants in a single count indictment charging them with violating the Hobbs Act, 18 U.S.C. § 1951.*fn1 In a ten-day jury trial which ended on July 1, 1974, two of the five defendants were acquitted. The other three, appellants Alonzo Robinson, Larry Starks, and Donald Abney, were found guilty and received custodial sentences. They appeal, alleging numerous deficiencies in the indictment, errors in the court's pre-trial rulings, in its conduct of the trial, and in its disposition of their post-trial motions. We reverse and remand for a new trial. We will discuss only those grounds on which our reversal is predicated, and in addition, those which may arise in the context of the new trial.
The indictment charges that the five defendants "did unlawfully and willfully conspire and attempt to obstruct, delay and affect commerce" by extorting money from the proprietor of Nookie's Tavern, "in order to continue in the business of selling alcoholic beverages contracted for and obtained in interstate commerce."*fn2 By appropriate pre-trial motions the defendants attacked this singularly inartistic indictment both on the ground that it did not sufficiently charge any crime, and on the ground that if it charged any crime it charged several, and was therefore duplicitous. Rule 8(a), Fed. R. Crim. P. provides that two or more offenses may be charged in the same indictment in a separate count for each offense.*fn3 Here, however, the indictment contained only a single count.
The Hobbs Act proscribes a number of separate offenses: (1) robbery; (2) extortion; (3) attempted robbery or extortion; and (4) conspiracy to commit robbery or extortion.*fn4 Each such offense also requires the federal jurisdictional element of obstruction, delay, or effect on interstate commerce. The indictment charged two such offenses; conspiracy to extort and attempt to extort. Since both were improperly charged in a single count, the defendants' pre-trial motions that the indictment be dismissed, or that the government be required to elect, should have been granted.
Duplicity is the joining in a single count of two or more distinct and separate offenses.*fn5 One vice of duplicity is that a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both. Conceivably this could prejudice the defendant in protecting himself against double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other.*fn6 Joining conspiracy and substantive offenses in the same count present this vice in a particularly aggravated form, because of the admissibility of declarations made by coconspirators. Assuming such a joinder, and a general guilty verdict, there would ordinarily be no way of discerning whether the jury found the defendant guilty of the offense in proof of which such coconspirator's admissions were properly admitted. Finally, there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.
The district court instead of dismissing the indictment or ordering the government to elect between the conspiracy charge and the attempt charge, directed the government to file a bill of particulars setting forth:
"(1) A statement as to whether the government intends to proceed to prove either a conspiracy, or an attempt to obstruct, delay and affect commerce and the movement of articles and commodities therein by extortion, or both." (emphasis supplied)*fn7
Had the words "or both" been omitted the order would have been appropriate, since requiring an election is an appropriate remedy for duplicitousness.*fn8 The government responded to the order by advising that it intended to proceed to prove both offenses. At the beginning of the trial defense counsel moved to require an election, but the motion was denied. At the close of the government's case the motion to require election was renewed, and once again denied. At the end of the entire case the matter of election was renewed in a request to charge which was refused.
Throughout the case it was perfectly clear to the district court (though it is still not clear to the government)*fn9 that the indictment was duplicitous. The charge unambiguously states the court's understanding:
"Obviously, it becomes necessary for me to define both 'conspiracy' and 'attempt,' since the defendants are charged not with the substantive offense itself of obstructing, delaying, or adversely affecting interstate commerce by extortion but rather a conspiracy and attempt so to do.
Therefore, I shall define to you all of the requisites of both a conspiracy and an attempt, because all of these requisites must be found before the jury could find any defendant guilty."
(Tr., Tenth Day, at 25-26)
The court then charged at length the elements of the crime of conspiracy, the evidentiary rules applicable to that crime, that there could be separate conspiracies, or an overall conspiracy, and that there must be proof of the commission of an overt act. Then the court charged:
"In this case the defendants are charged with a conspiracy and attempt, both as integral and essential parts of a single charge." (Tr., Tenth Day, at 35).
The charge continued with a definition of the elements of attempt to commit extortion, and of extortion. The court also charged that intended or attempted extortion must be one which had it succeeded would have obstructed, delayed or affected interstate commerce. Finally, toward the end, and separated in time from the definitions of conspiracy and of attempt, the court charged:
"I would also point out that in the indictment it is charged that the defendants were guilty of both conspiracy and an attempt and the essential elements of both of these offenses must be proved before any defendant could be found guilty." (Tr., Tenth Day, at 60).
The government has never abandoned its contention that the indictment charges only a single offense. Its brief on appeal equivocates, however, as to which offense that is. Finally it urges:
"In any event, the issue is academic. It is not a duplicitous count alone, but rather a failure to correct the duplicitousness 'in some manner' which constitutes error." (Government Brief at 13).
The duplicitousness was corrected, it is urged, by the charge, which required that the jury find each defendant guilty of both offenses in order to convict. It is argued that the error of not requiring an election, in other words, was harmless.
We have recently held that a misjoinder in violation of the statutory mandate of Rule 8(a) cannot be treated as harmless error under Rule 52(a). United States v. Graci, 504 F.2d 411, 414 (3d Cir. 1974). We need not, however, rule in this case whether the Graci holding would apply to a duplicitousness violation of the same rule, because at least one other error appears which requires a new trial. However, before that new trial the district court should require the government to make an election between the conspiracy and attempt charges.
ADMISSION OF EXHIBIT G-3, A TAPE RECORDING
The error in this case which requires a new trial arises out of the admission into evidence of a tape recording of an alleged conversation between the victim of the supposed extortion and some of the defendants. Some factual background is necessary to put the issue of admissibility of that tape recording in context.
The government's principal witness was Ulysses Rice, who owned "Nookie's Tavern," a bar in Philadelphia. According to Rice, in December, 1973, Alonzo Robinson, a Black Muslim, whom he knew as "Alfonzo" visited the tavern on several occasions offering to sell him the Muslim newspaper, pies, orange juice and fish. On Saturday, December 8, 1973 Robinson and Ferguson, the latter one of the defendants whom the jury acquitted, came to "Nookie's Tavern" and told Rice to have $200.00 for them later that day for "Founder's Day," a Muslim holiday. Robinson and Ferguson came to "Nookie's Tavern" on December 11th in the company of defendant Abney. Rice gave them $150.00. Robinson and Abney then returned on December 18th. Abney told Rice that he was to make payments of $200.00 a week, because if he could pay "taxes to the white man and the government," he could pay taxes to them. On December 19th, Rice was approached by defendant Starks in a movie theater. He told Rice the defendants had a meeting about him, that Rice was supposed to give $1,500.00, but that he, Starks, had got it down to $500.00. Between December 19, 1973 and February 19, 1974 Rice was in hiding in his apartment and did not talk to any of the defendants. On Tuesday, February 19th he was at "Nookie's Tavern" when Starks came to the tavern and asked him for $500.00 "to get the Black Mafia brothers out of jail." Starks told him to have the money by Thursday night, February 21st. After the February 19th conversation Rice approached the F.B.I. He was equipped with a tape recorder which was placed on his body, and given $500 in marked money in anticipation of the February 21st meeting.
There is no corroboration of Rice's testimony with respect to anything which occurred prior to February 21st which we have just related above. There are moreover, several factors which reflect upon his credibility. Among these are the suggestion in the record that while Rice was in federal protective custody pending trial, he was to be brought before a state court for trial on a charge of assaulting a police officer. However, on the day before his subpoena date in the state court, he was placed in a nonreporting pre-indictment probation program when the arresting officer failed to appear. In addition the record discloses a close proximity in time between the execution of a state warrant to search for narcotics in "Nookie's Tavern" by city police on January 20, 1974 and his interview with an F.B.I. agent concerning his dealings with appellants the next day. From the evidence the jury could have found that Rice had unusually strong motivations to shade his testimony in the government's favor. Thus, corroboration of Rice's testimony was important to the government's case.
The vital element in the government's case was Rice's recitation of the conversation between himself and Larry Starks on the evening of February 21, 1974 when the marked, government-furnished money was turned over to Starks. Starks was immediately arrested, but since the defendants contended that the solicitation was a voluntary contribution for Muslim religious causes, any evidence corroborating Rice's version was extremely important to the government's case. Therefore the ...