APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Crim. No. 75-227
Van Dusen and Rosenn, Circuit Judges, and Cahn,*fn* District Judge.
The appellant, Max H. Homer, was tried to a jury in the United States District Court for the Western District of Pennsylvania and convicted on two counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1970) (counts I and II of the indictment), and on one count of perjury in violation of 18 U.S.C. § 1623 (1970) (count V of the indictment).*fn1 He appealed to this court assigning a number of errors committed by the district court during the course of the trial. We affirm the judgment of the district court.
Appellant, who during the time covered by the indictment against him represented the Stowe Rox area near Pittsburgh in the Pennsylvania House of Representatives, was charged in count I of the indictment*fn2 with extorting property "in the form of money or checks" from Gordon Terminal Service, Inc., ("Gordon") in violation of 18 U.S.C. § 1951 (1970). Count II similarly charged appellant with extorting money under color of official right from Ruthrauff, Inc., in violation of 18 U.S.C. § 1951.*fn3
Count V of the indictment charged the appellant, who had appeared before a grand jury investigating alleged violations of section 1951, with testifying falsely concerning the Gordon transaction. Specifically, the indictment charged that appellant made a false material declaration to the grand jury when he testified on August 29, 1974, that he had requested Ernest Bulgarelli, a Safety Inspector for the Commonwealth of Pennsylvania, to furnish construction plans to J. J. Balobeck, the architect for the Gordon warehouse.
Inasmuch as the appellant challenges evidentiary rulings of the trial judge rather than the sufficiency of the evidence against him, we need not summarize the testimony adduced by the Government in support of the indictment. Appellant's principal contentions, both of which were briefed and argued orally on appeal, are that the district court erred: (1) in refusing to permit the defense to call nine witnesses, each of whom would have testified that in 1971 he or she was told by Patsy Bruno, Treasurer of the Local Democratic Party Campaign Committee, that Gordon Terminal Service, Inc., had made a political contribution through the appellant, Max Homer, to the Democratic Party; and (2) in refusing to grant the appellant's motion for a mistrial because of the prosecution's improper closing argument to the jury.
Appellant asserts that he had nine witnesses who were prepared to testify at trial that in 1971, when the offenses of extortion charged in count I of the indictment were alleged to have occurred, Patsy Bruno, the treasurer of the Stowe Rox Democratic Party organization for the 1971 general election, told each of them that Gordon had made a $5,000 political contribution to the Democratic Party through Homer.*fn4 Appellant contends this testimony, if believed, would support his contention that he was not an extorter or income tax evader; the "open and well known disclosure of the receipt of monies was the core of appellant's defense and highly probative [of] his contention that such notoriety is at once utterly inconsistent with the conduct of one who is alleged to be an extorter or an income tax evader." Brief for Appellant at 9.
The trial judge ruled that he "might" permit the nine witnesses to be called in the event that the Government challenged a record of the Allegheny County Department of Elections which the defense had introduced into evidence and which listed the $5,000 contribution from Gordon as campaign income. Homer insists that the Government did in fact challenge this record at least three times. The appellant contends that during the cross-examination of Mrs. Patsy Bruno, widow of the party treasurer, the prosecutor asked a series of questions implying that the election record was incomplete and that the $5,000 contribution recorded in the county election report was never received by the Democratic Party. Homer alleges that another inferential attack on the completeness of the record occurred when he himself was cross-examined by the prosecutor. Finally, asserts the appellant, the Government challenged the election record in its closing to the jury, when the prosecutor argued that Patsy Bruno's personal records showed no receipt of $5,000 from Homer or from anyone else. Homer therefore concludes that the condition set by the trial judge for the admission of the testimony of the nine witnesses was met and that the judge erred in excluding it. In addition, the appellant maintains that the testimony of those witnesses was admissible under Rules 804(b)(3), 804(b)(5), and 803(24) of the Federal Rules of Evidence.
The trial judge excluded the testimony of the nine witnesses for two reasons. First, he had already allowed the defense to introduce a photocopy of the official election record, signed by Bruno, which reflected the information to which the nine witnesses would purportedly have testified. Second, he found that the testimony lacked the circumstantial guarantees of trustworthiness required by the Federal Rules of Evidence for the admissibility of such hearsay. Fed. R. Evid. 803(24), 804(b)(3), 804(b)(5).
We need not decide whether the hearsay testimony of the nine witnesses was admissible under Rules 803(24), 804(b)(3), or 804(b)(5). That testimony was offered not as a defense to the extortion counts on which the appellant was convicted, but solely as a defense to the income tax evasion charges of which he was acquitted. In arguing for the admissibility of the testimony, defense counsel described the specific purposes for which it was offered:
This is the defense to the income tax count. If he [Homer] did not use, and if he took the money by extortion under the most gross circumstances and gave it to the nunnery, he wouldn't be guilty of income tax evasion but might be guilty of extortion.
Inasmuch as the appellant was acquitted of the income tax evasion counts, we find no reversible error in the exclusion of testimony offered as a defense to those charges.*fn5 Moreover, evidence that Homer received the $5,000 from Gordon and delivered it to the local party treasurer ...