from the representatives of Gordon Oil for the purpose of securing a permit to occupy a new building erected by them and then ready for occupancy subject to the approval of the Pennsylvania Department of Labor and Industry. Bulgarelli was an inspector for this department for whom the defendant had secured his job. The government's evidence also indicated the plaintiff also extorted the sum of $3,010 from one Laux, representative of Ruthrauff, who also had a need to occupy a new building and as to which the occupancy was questioned by Bulgarelli.
Following the jury's verdict which was rendered on August 21, 1975, the defendant filed a motion for judgment of acquittal or in the alternative for a new trial on August 29, 1975, which alleges various errors made during the trial and also claims judgment of acquittal should be granted because the evidence did not show that defendant was acting under color of official right as required by the provisions of 18 U.S.C. § 1951.
Under Rules 29, 33 and 34 of the Federal Rules of Criminal Procedure, motions for judgment of acquittal, for a new trial and in arrest of judgment must be made within seven days after verdict or "within such further time as the court may fix during the seven-day period."
Under Rule 45(a), it is clear that the last day for filing such a motion was Thursday, August 28, 1975, and under Rule 45(b) the court has no power to extend the time for filing such motions. The court is therefore without authority to consider the original motion for judgment of acquittal or for new trial. See United States v. Johnson, 487 F.2d 1318 (5th Cir. 1974); Rowlette v. United States, 392 F.2d 437 (10th Cir. 1968); United States v. Mathews, 335 F. Supp. 157 (W.D.Pa.1971).
Defendant cites Hauger v. Hauger, 376 Pa. 216, 101 A.2d 632 (1954) as standing for the proposition that procedural defects can be waived. Basically, that case holds that it is too late to raise procedural defects unobjected to after a sale in partition where a party does not find the result to his liking. It was not a criminal case and being a state case, this court is not bound by it in construing federal criminal rules which in no uncertain terms deny the court power to consider these motions or to extend the time after the lapse of seven days.
In any event, the court has examined the record and has found no substantial error to the prejudice of the legal rights of the defendant in the matters complained of in the original motion for new trial. With respect to the motions for judgment of acquittal the court finds that there was ample evidence to justify the jury in determining that the defendant was acting under color of official right in receiving these payments from Gordon Oil and from Ruthrauff. Under United States v. Mazzei, supra, it was not necessary to determine that the defendant as a state legislator had the de jure power to dictate the holding up of occupancy permits for the new buildings which these business concerns had urgent need to occupy or to issue permits waiving certain alleged defects in the construction of the building. It was only necessary for the jury to determine that the businessmen in question had a reasonable belief that the state system so operated in the light of Bulgarelli's suggestion to them to see Homer and get the matter straightened out plus the fact that Homer had secured Bulgarelli's appointment as State Building Inspector. We therefore have a reasonable belief that the power in fact of defendant's office included effective authority to determine these matters and that exploitation of such a belief amounted to extortion under color of public office. That the defendant may have treated the sums received as political contributions or used them for other purposes is no defense and beside the point. See United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975).
This disposition of the original motion for new trial and for judgment of acquittal does not, however, solve the matters covered in the supplemental motion for judgment of acquittal or in the alternative for a new trial filed November 14, 1975. This motion raises the question of the effect of certain matters upon the jury's verdict and requires the court to determine whether or not such matters as are raised in the motion and the affidavits filed in this court raise circumstances under which impeachment of a jury verdict is allowed. These items are covered in paragraphs 1, 2 and 3 of the supplemental motion. Paragraph 4 covers the question of severance of Counts 1 and 2 from Count 5 which is again a matter which should have been raised in the untimely motion for new trial and hence cannot be considered. United States v. Mathews, supra. In any event the court's memorandum and order of June 9, 1975, denying motion for severance except as to Counts 6 and 8 pertaining to unrelated income tax charges sufficiently covers this question.
Paragraph 5 of the supplemental motion relates to a lately discovered witness. It therefore appears that the matters raised in paragraphs 1, 2, 3 and 5 of the supplemental motion come within the "ground of newly discovered evidence" as a reason for new trial under Rule 33 which reasons can be raised at any time within two years. We will therefore now address ourselves to these matters, together with a motion still pending to quash a subpoena duces tecum against Roger Stuart, a newspaper reporter.
I. Impeachment of Verdict.
The supplemental motion in paragraphs 1, 2 and 3 allege that the deliberations of the jury were affected by the introduction of extraneous and impermissible matter prejudicial to the defendant, that certain jurors believed the defendant to be innocent but were told that the majority would prevail and that the majority believed the defendant guilty. For this reason, it is alleged that the jurors in question signed the verdict slip, that the verdict as signed by them and returned was not their verdict and that when they were polled these two jurors did not understand the questions being asked and thought they were only being asked whether they were present. When they were sequestered for the night during deliberations, it is alleged that various jurors watched and heard news broadcasts concerning the trial of the defendant in violation of the court's instruction and that at least one juror was able to utilize the telephone in his room to communicate with his wife.
Fortunately, we have very clear guidelines recently established by the court of appeals for our circuit to deal with attempts to overturn a verdict on such grounds. In Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), the court said:
"Any attempt to impeach a jury verdict initially encounters two evidentiary obstacles: (1) producing evidence competent to attack the verdict, and (2) establishing the existence of grounds recognized as adequate to overturn the verdict. And even where both obstacles are cleared, there must be a finding that the party seeking to impeach the verdict has suffered prejudice from the misconduct of the jury.