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UNITED STATES v. SIMMONS

January 20, 1978

UNITED STATES OF AMERICA
v.
BARRY SIMMONS



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 Defendant, Barry Simmons, was found guilty by a jury of a two count indictment, charging him in each count with obstruction of justice in violation of 18 U.S.C. § 1503. *fn1" Defendant has filed a motion renewing his motion for judgment of acquittal which he made at the time of trial. In the alternative he has moved for arrest of judgment *fn2" or for a new trial. Oral argument was had on the motions. For the reasons hereinafter set forth, defendant's motions will be denied.

 I. Motion for Judgment of Acquittal.

 In his motion for judgment of acquittal, defendant contends that the evidence was insufficient to support a jury verdict of guilty in connection with Counts I and II. The evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Armocida, 515 F.2d 29, 46 (3d Cir.), cert. denied, 423 U.S. 858, 46 L. Ed. 2d 84, 96 S. Ct. 111 (1975), is more than sufficient to support the verdict. We summarize it as follows:

 The defendant was a writ server for the Philadelphia Traffic Court. On July 20, 1977, two of his employees, Barney J. Cummins and William Engle, met with F.B.I. Special Agent Cyril Gamber to report their suspicions that illegal activity was taking place in the defendant's office at 4937 Old York Road, Philadelphia, Pennsylvania. The scheme allegedly involved the mailing of priority scofflaw notices to persons who had violated the Pennsylvania Vehicle Code. All the priority scofflaw notices in the mailings involved violations which were more than two years old and concerning which there had been some administrative decision at the Traffic Court that no further action should be taken. The dates of the violations on the mailed notices were changed to indicate that the violations had taken place within two years of the mailings.

 On July 28, 1977, grand jury subpoenas were served on E. W. Turner, Jr. of the Bell Telephone Company compelling him to bring before the grand jury toll call records of the defendant's business and private telephones. *fn3"

 On August 4, 1977, a grand jury subpoena duces tecum was served on the defendant at his office at 4937 Old York Road, Philadelphia, Pennsylvania. It required him to appear before the grand jury on August 12, 1977 and directed him to bring

 
any and all records, documents, files, computer printouts, computer tapes, computer programs, account books, ledgers, returned priority scofflaw notices, unmailed priority scofflaw notices, alphabetized computer lists of traffic violators and any other papers, documents and material relating to priority scofflaw notifications.

 At the same time, subpoenas were served on several of the defendant's employees directing them to appear before the grand jury on August 12, 1977. The defendant was aware that these employees had been ordered to appear before the grand jury. *fn4"

 It was during the period following the service of these subpoenas that the obstruction of justice occurred. The Government established its case through the testimony of three of the defendant's employees, a tape recording of happenings in the defendant's office subsequent to the service of the subpoenas, and documents retrieved from two trash bags seized at the defendant's office by the F.B.I. pursuant to a warrant.

 Barney Cummins was in the defendant's office on August 4, 1977, wearing a body recorder and transmitter supplied to him by the F.B.I. Cummins testified that as soon as the F.B.I. served the subpoenas and left the office, the defendant began questioning his employees about what they had said to the agents. Defendant went on to instruct various employees as to how to testify before the grand jury. The defendant stated to Cummins and Joseph Korup, another deputy writ server employed by the defendant:

 
Let's get it down pat. You are street men. You are deputies. You work on the street. You make arrests. What do you have to do with the office? You come in here and you pick up your work. What work? Warrants and commitments. Who do you pick them up from? Me. What do you do with them? You go out on the street and serve them. Do you ever do anything in the office? No. Did you work here when the priorities? You worked for me at that time. What did you do in the office at that time? Nothing. We work on the street. We go out and serve warrants, make collections and the whole bit. Understood? And that's the story. It's going to probably stay that way. We'll go over it that with the attorneys to.

 (Recording at 34).

 Cummins testified that the defendant's instructions to him were not an accurate reflection of his work. He had been hired to work on the streets serving warrants, but since July 1, 1977, both he and Korup had worked primarily in the office on priorities.

 Joseph Korup, a deputy writ server employed by the defendant, testified and corroborated Barney Cummins' testimony. He testified that the defendant instructed him and Barney Cummins on how to testify before the grand jury, and that the defendant's instructions were inaccurate. In fact, during July 1977, the defendant had told him "I need your help in the office, to hell with the street." Korup testified that as soon as the F.B.I. left the office at 4937 Old York Road on August 4, 1977, the defendant became very agitated. He handed Korup small shredded ...


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