The opinion of the court was delivered by: SNYDER
The Defendants were charged in a six count indictment with violations of Title 18 of the United States Code, Section 371 (conspiracy), Section 1502 (obstruction of justice), and Section 1623 (making a false material declaration to a grand jury, and/or perjury). After conviction by a jury, Defendants now contend the evidence was insufficient to support such convictions and that errors were committed by the Trial Judge requiring a new trial. The Motions will be denied.
The investigation began when Norman Irvin, a Councilman for the Borough of North Braddock, related to Special Agent Edward L. Stewart of the Federal Bureau of Investigation that payoffs were being made to members of the North Braddock Borough Council by Long Hauling Company, a garbage removal company which had a contract with the Borough. Investigation focused on whether there were violations of the Hobbs Act as an extortion (18 U.S.C. § 1951) or of the Organized Crime Control Act of 1970 as bribery (18 U.S.C. § 1961, et seq.). Stewart interviewed the nine Councilmen and several other officials of the Borough during the summer of 1974 without success. On October 9, 1974, Stewart also interviewed Francis P. Long, the principal owner and operator of Long Hauling Company, who denied any kickbacks, payoffs, or bribes involving the garbage contract.
On October 15, 1974, Irvin informed Stewart that he and Councilman John Hackett had gone that day to see Francis P. Long and that a payoff was to be made the following day. On October 16th, Stewart provided Irvin with a body tape recorder and procured a search warrant for Irvin's vehicle. Stewart also supervised a physical surveillance of the Long Hauling Company premises. Photographs taken that date revealed the presence of Hackett at the Long Hauling Company with Irvin. After Hackett and Irvin left the Long Hauling Company premises, Stewart and other Agents stopped the vehicle, executed the search warrant and seized nine envelopes each containing $240 in United States currency.
On several occasions after the seizure, Stewart attempted to reinterview Long and Hackett, and finally subpoenaed them for appearance before the Federal Grand Jury in Pittsburgh on November 1, 1974. He again provided Irvin with the body tape recorder to record conversations between Irvin and the Defendants prior to and after their grand jury appearances.
In interviews with Stewart, Irvin further related that as early as January of 1974, Hackett had explained to him that each Council Member got $50 a month for the garbage contract, and that he, Hackett, had previously received $100 a month on the garbage contract, but this amount had been reduced because of the lower value of the new contract. Irvin further claimed he had received $250 between March and May of 1974 from two North Braddock Council Members.
According to Irvin, on October 14, 1974, Hackett asked Irvin to drive him to Long Hauling Company in Duquesne to pick up money from Long which was to be distributed to the Council Members. On October 15, 1974, he and Hackett went to the premises of the Long Hauling Company and discussed the payment of the money with Defendant Long and after this first meeting they were to return the next day to collect the money from Long. The tape recordings reflect that upon the arrival of Irvin and Hackett at Long Hauling Company on October 16, 1974, Long stated "just open up the envelope. There is $200 and two twenties, just check it there". Later, Long said "that straightens you up to October, see and then every two months you know . . . that's only 120 dollars" (the jury could well infer from this that the $240 in the envelopes were payments to date). Tape recordings of conversations later that day further indicated that after the money had been seized, Hackett stated he would call Red Long to see if Red Long would go along with the story of the raffle tickets, and that Irvin and Hackett agreed to see Long the next day about it.
Irvin testified that when he and Hackett went to Long Hauling Company on the following day and explained that the FBI Agents had seized the nine envelopes, Long said "We are sunk. We are beat. We are finished." Hackett then explained to Long that the Democratic organization of the Borough of North Braddock was holding a raffle to raise money for the November elections and that there were tickets available which would cover the $240 in each envelope. Irvin testified that Long asked if they thought it would work and further stated that he, Long, would have to check with his attorney to see "if it was legal and if it would work". Irvin testified that at that time he took two thousand raffle tickets
from his truck and gave them to Long stating that the additional one hundred and sixty tickets would be delivered the following day. True to his word, on October 18, Hackett delivered the one hundred and sixty raffle tickets
to Irvin's place of business and Irvin took them to Long. Irvin testified that Long again asked if he (Irvin) thought the raffle ticket story would work and Long stated "that if we all stick together and stick to the story, it will work."
The tapes and Irvin's testimony showed that on November 1, 1974, he and Hackett drove to Pittsburgh to appear and testify before the Federal Grand Jury. The conversation, as recorded, indicated that Hackett, in discussing the October 16 seizure, said "I just thought real quick, you know, I said that's for raffle tickets, Stewart. . . ." The tape of that conversation also revealed that Hackett said the Federal Bureau of Investigation could not break the $240 in each envelope into monthly payments because "we wasn't getting $60 a month, we were only getting $50 . . . 'cause Drabik was cutting himself in." (In his testimony, Irvin explained the discrepancy. Drabik, a former Councilman, was cutting himself in on the payments, unknown to Long. So Long was paying $60 a month for each Councilman, but they were only getting $50.)
Defendant Hackett presented no evidence at the trial and Defendant Long presented character witnesses as to his good reputation in the community for truthfulness and being a law abiding citizen.
I. VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND NOT CONTRARY TO THE WEIGHT OF EVIDENCE.
Defendants contend that the verdict rendered is contrary to the weight of the evidence and not supported by substantial evidence. The tests for legal sufficiency of evidence is whether the Government produced substantial evidence, taking the view most favorable to the Government. United States v. Armocida, 515 F.2d 29 (3d Cir. 1975); United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). Our review of the evidence above indicates that there was sufficient evidence to support the jury verdict of guilty. In part, the jury had before it the physical evidence of the payoffs in the form of the nine envelopes each containing the $240, the surprise expressed by Hackett upon being caught with the money in the nine envelopes, the attempts to invent the raffle ticket explanation, including even consultation with their attorneys on the matter and the failure to explain the odd number of 2160 tickets, delivered after payment was made and in two different trips. All of this evidence formed a sufficient factual backdrop from which the jury could well find the guilt of both Defendants on each charge. The foregoing discussion also applies so this Court cannot say the jury verdict was contrary to the weight of the evidence.
Defendants contend that this Court erred in admitting into evidence Government's Exhibits 1, 2 and 3, and Government Exhibits 1(a), 2(a) and 3(a). These exhibits were envelopes, the former having typewritten versions of Irvin's handwritten notations which appeared on the latter. The notation on the envelopes read as follows:
Exhibit 1A (Handwritten]
Jan. Long Hauling Monday
Received $50.00 ...