police as a result of payments to the Mayor. The testimony of police officers as to their fear of punishment should they arrest numbers writers was a small portion of the overwhelming evidence presented by the government showing that the Mayor was receiving payments to protect the gambling operations of Miller and Fontaine.
16. Defendant's Personal Knowledge.
The defendant, in his sixteenth allegation of error, contends that it was improper to permit testimony concerning payoffs to police officers by Miller and Fontaine without evidence that the Mayor was directly involved with the payment. The government did produce evidence that the Mayor, who had full responsibility for the Police Department in this third class city, had knowledge that Miller and Fontaine, who were admitted members of the conspiracy, were making illegal payments to the police and took no action to stop them. Such evidence included the testimony of Fontaine that payments were discussed with the Mayor, and the Mayor's own statements in the January 10, 1978 tape recorded conversation with Fontaine concerning the payments which Miller was making to Detective Pokoy. We, therefore, find no error in our rulings concerning the admission of such evidence.
18, 19. Cross-Examination of Chief Hoopes.
The defendant, in his eighteenth and nineteenth allegations of error, contends that the cross-examination of Chief Hoopes was unduly restricted in that he was not permitted to question the Chief about official police reports, nor was he permitted to question him about an FBI investigation concerning the Chief's father. The court permitted a lengthy cross-examination of Chief Hoopes as to whether his own reasons for cooperating with the FBI had anything to do with a potential FBI investigation of the Chief's father.
The court did refuse to permit the introduction of a police report of an investigation conducted by Inspector Timothy Gill concerning a search warrant sworn out by Detective Pokoy. The court's ruling at trial, which we reaffirm here, was that this police report was inadmissible because it was extrinsic evidence sought to be introduced for the purpose of impeaching Detective Pokoy as to a collateral matter. Such extrinsic evidence is clearly inadmissible. United States v. Simmons, 444 F. Supp. 500, 506-07 (E.D.Pa.1978), Aff'd, 591 F.2d 206 (3d Cir. 1979).
20. Impeachment Through FBI Reports.
In his twentieth allegation of error, the defendant contends that it was error for the court to permit cross-examination of defense witnesses through the use of FBI 302 reports, which were reports, prepared by FBI agents, setting forth their recollection of interviews with the witnesses. These reports were not statements signed by the witnesses.
We ruled at trial that these 302 reports could be used as a basis for impeachment pursuant to Federal Rule of Evidence 613,
provided that a proper foundation was established. Prior statements need not be in writing; a witness may be impeached by prior oral statements.
However, before a witness may be impeached by a prior inconsistent statement, a proper foundation must be laid to establish that it is in fact his statement. To satisfy this requirement, the cross-examiner must ask the witness whether he made the alleged statement, giving its substance and naming the time, place and person to whom made. McCormick, Evidence, at 72; Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 247 (1967). The court here required that the government lay such a foundation in every case where an FBI 302 report was used for the purpose of impeachment pursuant to Rule 613. In each instance, copies of the 302 reports, when so used, were in the hands of defense counsel and were shown to the witness and the witness was afforded an opportunity to explain or deny the statement.
The Eighth Circuit examined the issue of admissibility of prior inconsistent statements for impeachment purposes, United States v. Rogers, 549 F.2d 490 (8th Cir. 1976), concluding that four requirements must be met before such statements may be introduced:
(1) Inconsistency (the trial judge has "considerable discretion to determine whether evasive answers are inconsistent with positive assertions of an extrajudicial nature." Id. at 496);
(2) Relevancy ("the inconsistency (must) relate to a matter of sufficient relevancy that the prosecution's case will be adversely affected if inconsistent testimony is allowed to stand." Id.);
3. Compliance with Rule 613;
4. Limiting jury instructions (the jury should be instructed that the testimony was only to impeach the credibility of the witness).
These requirements were met in connection with the cross-examination of witnesses concerning prior inconsistent statements in FBI 302 reports, and we find no error in our rulings at trial.
21. Threats Against Defendant.
The defendant, in his twenty-first allegation of error, contends that the court unduly restricted the defense in attempting to establish that Herman Fontaine threatened to kill the defendant. The court permitted extensive cross-examination of both Fontaine and Chief Hoopes together with the direct examination of the Mayor concerning the matter, an incident in a bar where Fontaine waved a gun about and shouted that he would shoot the Mayor if he were present. The only item rule inadmissible, in connection with this matter, was a newspaper account of the incident, which was clearly inadmissible as hearsay.
22, 23, 24. Scope of Cross-Examination.
The defendant, in his twenty-second, twenty-third and twenty-fourth allegations of error, contends that the court permitted cross-examination of defense witnesses beyond the scope of direct examination. The defendant points out, however, only two instances where such error is alleged to have occurred, i. e., in the cross-examination of defense witnesses Sharp and Osowski. It is not the examiner's questions which define the scope of cross-examination, but the answers he receives. See McCormick, Evidence, at 47-48. Cross-examination of defense witness James Sharp concerning special counsel to the Chester City Council was permitted on the ground that he had given testimony on the matter on direct examination. Similarly, defense witness Osowski was cross-examined as to inconsistencies in his direct examination concerning his recollection of the date of a conversation which he had with the Mayor. We find no error in so ruling.
25. Letter from Defense Counsel Concerning the Safe Deposit Box.
The defendant, in his twenty-fifth allegation of error, contends that "the Court erred by refusing to allow the defense to show a letter from defense counsel to the prosecutor concerning the Defendant's visit to his safe deposit box in December of 1978." The reference to "showing" the letter is not clear. The court did, however, permit defense counsel to question the defendant concerning the letter which invited the government attorneys to be present at a visit to one of his safe deposit boxes in December 1978, shortly before his second trial began. We find no error here.
27. Cross-Examination of Defendant Concerning Business Dealings with Charles Carr.
The defendant, in his twenty-seventh allegation of error, contends that it was error to permit the government to cross-examine the defendant concerning his business dealings with Charles Carr. Mr. Carr was an associate and business partner of the defendant. The defendant testified on direct examination concerning his business dealings with Carr, including the contract which Carr's construction company, ESCO, had received for flood clean-up work in Chester. The defendant testified that a federal investigation of the flood contract had revealed that everything was proper. Cross-examination as to defendant's dealings with Carr, and the federal investigation of those dealings, was, therefore, relevant and within the scope of direct examination.
28, 29, 31. Testimony Concerning Events After the Period of the Indictment.
The defendant, in his twenty-eighth, twenty-ninth and thirty-first allegations of error, contends that it was error to exclude evidence of the activities of the vice squad of the Chester Police Department during the course of the trial. We believe we correctly excluded this evidence as irrelevant to the crimes charged in the indictment.
30. Alleged Threat Against Witness.
The defendant contends in his thirtieth allegation of error that defense Witness Conway was "threatened" by Captain Lastowska. When this matter was raised at a side bar conference during trial, it was clear that the witness had not been threatened nor intimidated; it was merely alleged that Lastowska told Conway that, if Conway testified, he (Lastowska) would testify in rebuttal. The defendant, in his motion, provides no factual basis for a charge that the witness had been threatened.
35, 36. Points for Charge.
The defendant, in his thirty-fifth and thirty-sixth allegations of error, contends that the court erred in denying his requested points for charge. In fact, each and every one of defendant's requested points for charge was adopted and incorporated into the court's charge to the jury.
Other Alleged Errors.
While we have not herein discussed all the other contentions of alleged error raised by the defendant, we have considered each and every allegation of error and hold that none of them, singly or collectively, is of sufficient substance to merit any further discussion as a basis for granting a new trial in this case.
Accordingly, an Order will be entered denying the defendant's motions for arrest of judgment, judgment of acquittal, and a new trial.