The opinion of the court was delivered by: KNOX
The above-named defendant was convicted of three counts of a nine-count indictment by a verdict of a jury after a twelve day trial. The counts on which he was found guilty involved two charges of violation of the Hobbs Act (18 U.S.C. § 1951) by extorting money in such a way as to obstruct, delay or affect interstate commerce and one count of a false declaration to a Grand Jury (18 U.S.C. § 1623).
The indictment originally contained nine counts. Count one concerned extortion from Gordon Terminal Services, Inc. Count two covered extortion from Ruthrauff, Inc., both business concerns located in McKees Rocks, Allegheny County, Pennsylvania. Count three covered attempted extortion from a business concern operated by Frank Roman doing business as Rocks Plumbing and Heating Company. Count four covered obstruction of justice with respect to the testimony of one Ernest Bulgarelli an inspector for the Pennsylvania Department of Labor and Industry. Count five covered a false declaration to the Grand Jury relative to a request to Bulgarelli to furnish plans to one Joseph J. Balobeck in connection with the construction of a building for Gordon Terminal Service, Inc. Counts 7 and 9 covered evasion of income tax and filing a false income tax return for the year 1971. The original indictment also contains Counts 6 and 8 relative to income tax violation for the year 1968. By order dated June 9, 1975, Counts 6 and 8 were ordered severed, because in the opinion of the court they were not related to the extortion and other counts in the indictment, whereas Counts 7 and 9 were related to the obtaining of extortion money during the year 1971. There has as yet been no trial with respect to the charges contained in Counts 6 and 8. To avoid confusing the jury, Counts 7 and 9 were renumbered as Counts 6 and 7 for the purpose of this trial.
The jury, after lengthy deliberations, convicted the defendant on Counts 1, 2 and 5, but acquitted him on Counts 3, 4, 6 and 7.
The defendant has filed a motion for new trial or for judgment of acquittal with respect to this conviction on the three counts, 1, 2 and 5. The defendant did not argue that there was insufficient evidence to convict him of extorting money from the two firms named (hereinafter referred to as Gordon Oil, mentioned in Count 1 and Ruthrauff, referred to in Count 2), if the court's interpretation of the Hobbs Act 18 U.S.C. § 1951 applying the decision of the Court of Appeals for the Third Circuit in United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975) is correct. There was ample evidence from which the jury would have been justified in finding that both of these firms had sufficient nexus with interstate commerce to meet the test in Mazzei, supra. United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971) and United States v. Staszcuk, 517 F.2d 53 (7th Cir. 1975). The evidence, if believed by the jury, as it obviously was, indicated that with respect to Gordon Oil the defendant at the time in question, viz: April through July, 1971, being a member of the House of Representatives of Pennsylvania, did extort the sum of $6500 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.
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.
"It is frequently said to be the rule that a juror may not impeach his own verdict once the jury has been discharged. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915). The rule was formulated to foster several public policies: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body. . . . The same accommodation of policies produced the general rule's major exception, which provides that '"[a] juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind."' Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892), quoting Woodward v. Leavitt, 107 Mass. 453. 'Extraneous influence' has been construed to cover publicity received and discussed in the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of the defendant and his counsel. By contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict.
"Other than incompetency of a juror during jury service, see United States v. Dioguardi, supra, [492 F.2d 70 (2d Cir.)] at 79, and Jorgensen v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947), these are all incidents of 'extraneous influence:' (1) exposure of jury to news items 'about the matter pending before the jury,' Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954); (2) consideration by the jury of extra-record facts about the case; (3) communications ...