decided as amended december 27 1978.: November 17, 1978.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Hunter and Garth, Circuit Judges.
In these consolidated appeals Richard P. Herman (No. 78-1252) and James J. McCann (No. 78-1282), former state court magistrates in Allegheny County, Pennsylvania, appeal from judgments of sentence following their conviction for violating the Racketeer Influenced and Corrupt Organizations Act (RICO).*fn1 We affirm Herman's conviction but reverse and remand for a new trial in McCann's case.
The first count of the indictment charged Herman, McCann and others with conspiring to accept bribes offered by a bail bonding firm know as the Levitt Agency for the purpose of affecting their official behavior in fixing bail in criminal cases, in violation of 18 U.S.C. § 1962(d). In the second count, each man was charged with the substantive offense proscribed by § 1962(c) of associating with the Levitt Agency, an enterprise in commerce, and conducting its affairs through a pattern of racketeering activity. Before trial the defendants moved to dismiss the indictment and to suppress certain evidence. The district court granted these motions, the government appealed, and this court reversed.*fn2 When on remand the indictment was moved for trial Herman and McCann were severed from the remaining defendants because of ill health.*fn3 They were tried together with two constables, Zanello and Phillips, and found guilty.
The government's chief witness was Stephen C. Levitt, who had pled guilty to a violation of 18 U.S.C. § 1962(d). Levitt testified that from February of 1970 through May of 1975 he operated a bail bond agency in Pittsburgh, Pennsylvania, writing surety bonds for persons charged with crimes throughout Western Pennsylvania. The principal and qualified surety for the agency was Stuyvesant Insurance Company, to whom Levitt was required to pay 2% Of the face amount of each valid bond issued by the agency. Early in 1970 he made an arrangement with certain magistrates in Allegheny County to pay a kickback of 50% Of the surety bond premium to magistrates who referred bail bond business to his newly established agency. When a defendant was referred to him by one of these magistrates, Levitt would usually post an invalid bond with the court. In some cases, he would post a surety bond without including the power of attorney required to bind Stuyvesant as surety; in others, he would post a worthless property bond. Both devices avoided the necessity of making any premium payment to Stuyvesant. If the case was dismissed at the preliminary hearing he would split the gross premium with the magistrate. If the case was held for court he would deduct the cost of obtaining a valid power of attorney, and split the remainder of the premium. Often after a valid bond had been posted the magistrate would surreptitiously reduce the amount of the bond with no premium refund to the defendant, thereby lowering the required payment to the surety and increasing the sum which was split with the magistrate. Relying upon the Levitt Agency files,*fn4 which listed individual bond transactions by date and name of defendant, Levitt illustrated how he had calculated the specific sums paid to Herman and McCann on account of each bond. He further testified that on each such occasion he had placed the money in an envelope with the appropriate magistrate's name on it, and had either personally delivered the envelope to the magistrate or one of his employees, or directed that it be so delivered.
Victor Kozlowski, a former bailbondsman at the Levitt Agency, testified under a grant of immunity. He corroborated Levitt's testimony, and stated that at Levitt's direction he personally had delivered kickbacks to Herman and McCann for cases in which he had written the bail bonds at their office. Mary Hupert, formerly a secretary at the Agency, also testified under an immunity grant. She stated that she had observed, and later prepared, envelopes directed to Herman and McCann and that she had received phone calls from both magistrates and their staffs referring bail bond clients to the Levitt Agency. She further testified that she recalled an occasion on which Magistrate Herman's son had picked up a payment envelope at the Levitt Agency.
Eugene Benedik, a former constable in McCann's office, testified that McCann had personally instructed him to refer arrested persons in need of a bond to the Levitt Agency. He also stated that he had picked up kickbacks from the Levitt Agency and had divided those payments with McCann and with his co-constable, one Wagner. Special Agent Marinaro of the FBI testified that during a lengthy interview with the FBI on February 25, 1976, Herman had admitted that he had sent his son to pick up an envelope containing several hundred dollars from the Levitt Agency as kickback payments on bonds written in cases heard before him.
During its case in chief the government attempted to introduce the testimony of Jacob Winner, who operated a bail bond agency in Pittsburgh known as the American Bonding Company, to the effect that between 1970 and 1972 he paid to Herman and McCann 50% Of his premiums on all bonds which he posted in cases where they had fixed bail. The trial court ruled that the testimony was inadmissible. After the government rested its case McCann testified in his own defense. He denied having taken money or anything of value from the Levitt Agency. Neither in his direct testimony or on cross examination did he mention Winner or the American Bonding Company. He also presented the testimony of three constables who worked in his office, his secretary, and a local police chief, all of whom stated that they had no knowledge of a kickback or referral arrangement with McCann's office. Each of these witnesses testified only to his or her own lack of knowledge of any payoffs or referrals, not that no payoff from a bail bond agency ever occurred.*fn5 Since McCann's defense counsel was well aware of Winner's availability to the prosecution he quite carefully avoided any testimony which can fairly be construed as a denial of wrongdoing with respect to any bail bond agency other than the Levitt Agency. The defense did, however, present the testimony of seventeen character witnesses. Many of these testified, without objection, to specific acts of benevolence by McCann.
In rebuttal the government sought once again to introduce the Winner testimony.*fn6 McCann's counsel objected. He pointed out, and the court agreed,*fn7 that McCann's denial of receipt of kickbacks was limited solely to the Levitt Agency. The court, however, ruled that the Winner testimony was admissible solely as rebuttal to the character evidence offered by McCann.*fn8 Winner then testified substantially as set forth in the government's offer of proof. In its charge the trial court restated the limited purpose for which the Winner testimony had been admitted, admonishing the jury that it could not be considered for any purpose except to rebut the character testimony that was offered by McCann.*fn9 McCann contends that the court erred in admitting the testimony even for that purpose.
Neither in its ruling nor in the jury charge did the court make any reference to the federal rule of evidence relied upon for admission of the Winner testimony. Since McCann had testified, it is possible that the court had in mind rule 608, which governs the admission of evidence concerning the character and conduct of witnesses. If so, admission of the Winner testimony was error, for rule 608(b) expressly provides that "specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." E. g., United States v. Edwards, 549 F.2d 362, 367-68 (5th Cir.), Cert. denied, 434 U.S. 828, 98 S. Ct. 107, 54 L. Ed. 2d 87 (1977); United States v. Cluck, 544 F.2d 195, 196 (5th Cir. 1976); United States v. Blackshire, 538 F.2d 569 (4th Cir.), Cert. denied, 429 U.S. 840, 97 S. Ct. 113, 50 L. Ed. 2d 108 (1976).
The government urges that a judge-made exception to rule 608(b) permits contradiction by specific uncharged acts of misconduct when a defendant's own testimony places his conduct or character in a "false light." For this proposition it cites United States v. Batts, 558 F.2d 513 (9th Cir. 1977), Modified on rehearing, 573 F.2d 599 (1978). In Batts, the defendant was charged with smuggling hashish. When arrested he was wearing a "coke spoon." During questioning about the spoon during cross examination, he denied all knowledge of cocaine use. The court of appeals originally held that this general denial justified admission under rule 608(b) of rebuttal testimony that the defendant had recently sold a large quantity of cocaine to an undercover agent. Judge Kennedy's persuasive dissent in Batts, 558 F.2d at 519, to the effect that the majority misconstrued the intention of the draftsmen of rule 608(b), would make us hesitate to accept the "false light" rationale even if the record supported its application. See Weinstein's Evidence P 608(5) at 608-28 (1977); Note, 9 Rut.-Cam. J. L. 375 (1977). Moreover, we cannot help but think that the Batts court's subsequent modification of the opinion to eliminate all reliance upon rule 608(b) as a ground of admissibility at least implicitly acknowledges the force of Judge Kennedy's view of the matter. But Batts is distinguishable from this case. Here, as the trial judge acknowledged, McCann's testimony was limited to the Levitt Agency transactions. He made no assertion of his general probity and the Winner testimony rebutted no false light created by him. Moreover, none of the witnesses stated more than their lack of knowledge of the receipt of kickbacks or the making of referrals. Thus the Batts rationale would not on this record support admissibility of Winner's testimony.
Rule 405 governs use of specific evidence of conduct to prove good or bad character. It restricts such evidence to expressions of reputation or of opinion. It does not permit the affirmative use of specific instances of conduct except where "character or a trait of character of a person is an essential element of a charge, claim or defense." Fed.R.Evid. 405(b). That ground of admissibility is unavailable in this prosecution. The only other use of specific instances of conduct authorized by the rule is in cross examination of character witnesses. Fed.R.Evid. 405(a). No such cross examination took place. If it had, and a witness had denied knowledge of a specific instance of conduct called to his attention, an argument might be made that the Winner testimony was admissible to contradict the witness's denial. But on this record that argument was foreclosed.
Nevertheless the government relies on dictum in United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974), which states that prior crimes testimony is properly admissible "to rebut the testimony of the character witnesses by showing that the defendants had committed similar acts." But as Judge Hunter's concurring opinion makes clear, the character witnesses in Chrzanowski went beyond statements of reputation or opinion, and testified to specific events tending to show a legitimate modus operandi. 502 F.2d at 579. Thus the propriety of the use of specific events evidence in the Chrzanowski case turns on the defense's decision there to place modus operandi in issue in its own direct case. See Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976). If the Chrzanowski court intended that its dictum be given a broader reading, the text of rule 405 makes it clear that such a reading did not survive the subsequent adoption of the Federal Rules of Evidence.
The government also urges that because the character witnesses testified, improperly but without objection, to specific acts of beneficence on McCann's part, the defense opened the door to other crimes evidence. We fail to see why the government's failure to object to character testimony going beyond that permitted by rule 405(a) should be a ground for the admissibility of other crimes evidence otherwise inadmissible. The same contention was made and rejected in United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978).
Finally, the government argues that even if the court erred in admitting the Winner testimony as rebuttal of character testimony the error was harmless, because the court had erred in refusing to admit the testimony under rule 404(b) when it was offered as a part of the prosecution's direct case. Winner's testimony, it is said, was probative of McCann's participation in a common scheme or plan, and of the modus operandi of that plan. However the indictment charges a common plan with the Levitt Agency only. It is true that the modus operandi of the Winner offenses was in some respects similar to that of the Levitt offenses. But the evidence must still be evaluated, under rule 403, for undue prejudice, confusion of issues, and needless presentation of cumulative evidence. United States v. Long, 574 F.2d 761 (3d Cir. 1978); United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). While in most instances we would defer to the district judge's sound discretion concerning a rule 403 issue, See United States v. Long, 574 F.2d at 767, where, as here, the evidence was admitted under a different theory from that urged on appeal, and defense counsel strongly objected to its prejudicial effect, a more searching inquiry is required.
In determining the probative value of evidence under rule 403 we must consider not only the extent to which it tends to demonstrate the proposition which it has been admitted to prove, United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1959), Rev'd on other grounds, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), but also the extent to which that proposition was directly at issue in the case. United States v. Cook, supra, 538 F.2d at 1004. In this case, the fact that the means used to commit the charged and uncharged crimes were somewhat similar had little probative weight, particularly since the jury had already been informed by Levitt that the 50% Payment scheme, far from being unique, had been used with many other magistrates in Allegheny County. In view of that testimony, it cannot seriously be argued that the modus operandi described in Winner's testimony was so unusual and distinctive that its similarity to the modus operandi described by Levitt by itself justified an inference that McCann had participated in both transactions. Moreover, modus operandi was at best a collateral issue in the case. What was centrally in issue was whether McCann was the kind of person who would take a bribe. The Winner testimony, if believed, tended to show that McCann was just such a person. Its effect was thus highly prejudicial to his defense. Since the probative value of the evidence as modus operandi testimony was clearly outweighed by its prejudicial effect on McCann's character defense, we hold that it was proper to exclude the evidence when it was offered in the government's direct case, and that its admission on an impermissible theory in rebuttal was not harmless error.
Because the court erred in admitting evidence of other crimes committed by McCann his sentence must be vacated and the case remanded for a new trial.
Defendant McCann also contends:
(1) that the government's proof established multiple rather than a single conspiracy;
(2) that a violation of 18 U.S.C. § 1962(c) and (d) occurs upon the making of an agreement and is not a continuing offense, and thus that the offense took place prior to the effective date of the statute;
(3) that the government failed to prove the elements of a § 1962 offense;
(4) that his severance motions should have been granted;
(5) that § 1962(c) is unconstitutionally vague;
(6) that the court's charge impermissibly broadened the charge made by the grand jury; and
(7) that the court should reconsider the rulings it made in a prior appeal, United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977).
On the record before us we find no merit in these contentions. Thus we reject his contention that the indictment should be dismissed ...