Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 76-256-1).
Gibbons and Weis, Circuit Judges, and Wright,*fn* District Judge.
This is an appeal from a judgment of sentence following a conviction on one count of a two-count indictment for knowingly making false declarations before a grand jury in violation of 18 U.S.C. § 1623. Appellant Frankie Crocker asserts several grounds for reversing the lower court's judgment. First, he contends that the indictment must be dismissed because the prosecutor failed to warn him that he was a target of the grand jury investigation, because his allegedly perjurious answers were not material as a matter of law, or because the indictment did not sufficiently allege the materiality of the untruthful answers. Second, the appellant contends that he is entitled to a new trial because the admission of evidence of other crimes amounted to a constructive amendment of the indictment. Third, he argues that his sixth amendment right of confrontation was violated by the district court's order precluding the use of a tape recorded interview of one of the government's witnesses. Finally, he contends that the evidence was insufficient to support the conviction. Although we reject appellant's other contentions, we agree that the district court's admission of evidence of other crimes amounted to a constructive amendment of the indictment. Consequently, we hold that there must be a new trial.
I. FACTS AND PROCEEDINGS BELOW
In 1973 several federal grand juries in Newark, New Jersey, began investigating alleged criminal wrongdoing in the music recording industry. The investigations concerned reports that illicit cash payments were being made to radio program directors, announcers, and others from a fund created through the use of fictitious companies padding of convention expenses, and the use of independent record promotion men as conduits for payments. Such activities could involve violations of the tax laws, 26 U.S.C. § 7201 et seq., the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, the anti-racketeering statute, 18 U.S.C. § 1952, the conspiracy law, 18 U.S.C. § 371, and the Communications Act, 47 U.S.C. § 508. Crocker was at the time the program director and a featured disc jockey of radio station WBLS-FM in New York City. As program director he was responsible for the station's musical format. Each week he reviewed single records and record albums released by record manufacturers and drew up the station's playlist.*fn1 Crocker was subpoenaed to appear before one of the Newark grand juries on August 16, 1974, and was examined by an Assistant United States Attorney. In the course of that interrogation he was asked if he had ever received cash or merchandise from a record company or its representative to influence his decisions on what records would be played on the radio stations with which he had been affiliated. Crocker answered this question in the negative.
In August, 1975, Ellsworth Groce, owner of Rocky G. Promotions, Inc., of Teaneck, New Jersey, was subpoenaed to testify before the Newark grand jury. Groce was an independent record promotion man hired from time to time by about twenty record companies to secure air play for their new releases at various East Coast radio stations, including WBLS. In lieu of a grand jury appearance, Groce appeared with counsel at the United States Attorney's office in Newark, where under questioning he admitted making cash payments to Crocker and to others. Meanwhile the investigations had uncovered evidence that Harry Coombs, the Executive Vice-President of Philadelphia International Records, had been promoting that company's records and those of Gamble-Huff Records, Inc., and Assorted Music, Inc., by paying cash to radio program directors. Coombs was indicted in Philadelphia and later pleaded guilty to conspiracy and substantive violations of the Communications Act.
On September 15, 1975, Crocker was subpoenaed to appear before a Newark grand jury for a second time. The instant indictment, returned on May 13, 1976, is a result of that appearance. After describing Crocker's position at WBLS, both counts of the indictment allege the following:
3. The aforesaid Grand Jury was then concluding an investigation into allegations of criminal wrongdoing within the recording industry including allegations that various record companies had engaged in the practice of providing United States currency, merchandise, or other goods and services to employees of radio stations licensed by the Federal Communications Commission in order to influence the selection of records to be broadcast to the listening public by the aforesaid station.
4. It was material to the aforesaid investigation to ascertain whether the defendant FRANKIE CROCKER had received any money, directly or indirectly, from a record company or a representative thereof.
The first count then described Ellsworth Groce's position as an independent record promoter. It set forth the relevant parts of Crocker's testimony at his second appearance before the grand jury. The testimony is quoted in full in the margin.*fn2 Referring to the quoted testimony, Count I then alleged:
8. The declarations of the defendant FRANKIE CROCKER, as set forth in paragraph 7 of this Count, were false in that, during the years 1974 and 1975, Ellsworth Groce, also known as Rocky G, gave in excess of $10,000 in cash to the defendant FRANKIE CROCKER to promote the musical records of the companies referred to in paragraph 6 of this Count.
The second count described the position of Harry J. Coombs as an employee of Gamble-Huff Records and Assorted Music, Inc., who was responsible for the promotion of their records. It again set forth Crocker's grand jury testimony, which is quoted in full in the margin.*fn3 Referring to this testimony, Count II then alleged:
5. The declaration of the defendant FRANKIE CROCKER, as set forth in paragraph 4 of this Count, was false in that on or about December 12, 1973, Harry J. Coombs gave $400 in cash to said defendant.
On the trial of the indictment, the jury acquitted Crocker on the second count, but found him guilty on Count One. The court had instructed the jury to determine, separately with respect to each answer, whether Crocker had testified falsely. The jury found that twelve of fourteen answers were false. The answers found by the jury to have been false are italicized in the testimony quoted in footnote 2. Crocker was sentenced on Count One and this appeal followed.
II. CROCKER'S CHALLENGE TO THE INDICTMENT
Crocker mounts two attacks on the indictment. The first - the failure to warn him that he was a target defendant - deals with the manner in which the indictment was procured. The second - the materiality contention - deals with its legal sufficiency. We will deal with these contentions separately.
A. Failure to Warn a Target Defendant
When Crocker was first subpoenaed to appear before the grand jury on August 16, 1974, his then attorney, Thomas Nerangis, first met with Robert Romano, an Assistant United States Attorney in Newark. Nerangis told Romano that he did not practice criminal law and that if Crocker was a target of the grand jury's inquiry, he wished to be so advised so that he could arrange for the retention of a criminal lawyer for him. Romano advised Nerangis and Crocker that the latter was not a target, although the investigation had disclosed that Crocker had received record company promotional monies. Crocker was given a Miranda warning and was questioned for about an hour by Romano. Crocker then appeared before the grand jury, where the Miranda warning was repeated and where he was specifically warned that he was under oath and that he could be prosecuted for perjury. At this grand jury session he made the general denial of having received money for playing records referred to in Part I.
When Crocker was recalled before the grand jury in September, 1975, the government had in its possession statements by Groce and Coombs that Crocker had received such payments. Mr. Nerangis, who, so far as the record discloses, did not know of the Groce and Coombs allegations, asked Mr. Romano if Crocker's status as a nontarget had changed. Romano answered that Crocker's status had not changed. When Crocker appeared before the grand jury, he was ...