The opinion of the court was delivered by: BRODERICK
Defendant, John H. Nacrelli, was found guilty by a jury on all five counts of an indictment charging him with participating in the conduct of the affairs of the Chester Police Department through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c), conspiracy to participate in the conduct of the affairs of the Chester Police Department through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d), conspiracy to obstruct law enforcement with the intent to facilitate an illegal gambling business in violation of 18 U.S.C. § 1511, and filing a false income tax return in violation of 26 U.S.C. § 7206(1). This, the second trial of the defendant, the Mayor of Chester, Pennsylvania, consumed twenty-five days before a sequestered jury. The first trial, which ended with a hung jury, was of twenty-two days duration before a sequestered jury. The defendant has filed motions, in the alternative, for arrest of judgment, judgment of acquittal, and a new trial. The court has considered these motions without the benefit of a transcript.
For the reasons hereinafter set forth, defendant's motions will be denied.
I. MOTION FOR ARREST OF JUDGMENT.
In his motion for arrest of judgment, defendant merely paraphrases the language of Rule 34, that "the indictment does not charge an offense or the Court was without jurisdiction of any offense so charged." The defendant has provided nothing further in support of these contentions, and the court finds them to be without merit. Therefore, the defendant's motion for arrest of judgment is denied.
II. MOTION FOR JUDGMENT OF ACQUITTAL.
In support of his motion for judgment of acquittal, the defendant contends that the evidence was insufficient to support a guilty verdict as to any count. We find that the evidence produced at trial, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Armocida, 515 F.2d 29, 46 (3d Cir.), Cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is more than sufficient to support the verdict. The evidence presented at trial, viewed in the light most favorable to the government, may be summarized as follows:
In 1968, the Mayor was appointed to fill the remainder of the unexpired term of the previous Mayor of the City of Chester, Pennsylvania. In November 1969, he was elected Mayor, and continues to hold that office today. Chester is a third-class city; under Pennsylvania's Third Class City Code, the Mayor is directly responsible for the supervision and control of the Police Department.
Herman Hunt Fontaine and Frank Howard Miller operated an illegal gambling business, a numbers game, in Chester for a period of ten years or more. Their operation had in excess of sixty writers and a gross take of $ 25,000 per day at its peak. Fontaine was also a Republican committeeman in Chester, and a close associate of the Mayor, visiting with him in the Mayor's office several times each week.
In 1968 and 1969, Miller was experiencing the arrest of a number of his writers; he requested that Fontaine arrange, through the Mayor, a meeting with Joseph Eyre, the former Mayor and Republican City Chairman of Chester, to seek protection for his numbers business. Miller and Fontaine met with Eyre, and agreed to pay him $ 1200 per month, which Eyre split with the Mayor, in return for which the Mayor arranged for the Chester police to protect Miller-Fontaine numbers writers while arresting numbers writers working for their opposition. After approximately one year, Miller and Fontaine wanted to add a crap game to their operation, and Eyre agreed to protect it for an additional $ 400 per month, which was also split with the Mayor. The payments continued at the level of $ 1600 per month until 1971, when Miller's gambling operation at the Paradise Lounge was raided by the State Police. The payments were then increased to $ 4,000 per month, which Eyre said would be split equally among himself, the Mayor, Sam Dickey and Rocco Urella; the latter two were to provide protection from arrests by county and state police.
These arrangements were corroborated by tape recordings of conversations which took place on May 22, 1976 and June 17, 1976, among Eyre, Miller and Fontaine, during which payments were made and protection was discussed. These $ 4,000 per month payments to Eyre continued until about the time of Eyre's death in December 1976.
The Miller-Fontaine operation received the protection it bargained for during the period that payments were being made to Eyre. In 1974, a crap game operated by Miller and Fontaine at 813 Morton Street in Chester was raided by two city patrolmen who did not first seek authorization for the raid from their superior officers. These two patrolmen, Bright and Stepke, were transferred by the Mayor to turnkey duty as punishment for having made the raid. One of them remained a turnkey for two years. Another officer, Bondrowski, reported the location of another Miller-Fontaine crap game to the Mayor; by the time then Captain Hoopes investigated the report, the game had been moved. Lists of numbers writers in competition with Miller and Fontaine were given to Chester police officers for the purpose of arresting the competition. Among the officers given such lists with instructions to arrest the competition were Commodore Harris and Grady Berrien. Miller and Fontaine met with Harris and Berrien and provided further information concerning their competitors named on the list. In the fall of 1975, when an attempt was made on Herman Fontaine's life, the Mayor approved the assignment of these same two officers, Harris and Berrien, to act as Fontaine's bodyguards. Shortly thereafter, the Mayor promoted them to the rank of sergeant.
On December 28, 1976, Joseph Eyre died. Shortly thereafter, the Mayor met with Miller and Fontaine at McCloskey's, a bar partly owned by the Mayor's wife. At that meeting, it was agreed that Miller and Fontaine would pay the Mayor $ 2,000 per month for protection from arrests by the Chester police. Miller and Fontaine paid the $ 2,000 directly to the Mayor in December 1976 and January 1977. However, from February through June 1977, payments were delivered to the Mayor by Rudolph "Sonny" Feliziani, a close associate of the Mayor who was timekeeper for the Chester police department and who also wrote numbers for the Miller and Fontaine operation.
In March 1977, Chief of Police Wright died suddenly. William Hoopes was temporarily appointed by the Mayor to take his place. Hoopes and the other two highest ranking officers who were under consideration for the Chief's position were reluctant to accept the position without an assurance from the Mayor that he would give them a free hand to run the police department. Hoopes took the position with such assurance from the Mayor.
After becoming Chief, Hoopes formed a vice squad headed by Detective Theodore Pokoy, with Officers Wyatt and Worrilow serving with him on the three-man squad. This squad arrested four Miller-Fontaine numbers writers in a period of a few months. In July 1977, Miller, Fontaine and the Mayor met at McCloskey's; the Mayor agreed that the $ 2,000 per month payments could be stopped temporarily because he could not control Hoopes and the vice squad.
In August 1977, Miller and Fontaine approached Pokoy in an attempt to bribe him directly to protect their numbers writers and arrest their opposition. Detective Pokoy reported this to the FBI, and under FBI direction, began to wear a body recorder, and authorized recordings of his telephone conversations with Miller and Fontaine. Miller and Fontaine agreed to pay Detective Pokoy $ 200 per month for protecting their writers, and $ 100 for each arrest he made of an opposition writer. Detective Pokoy was paid $ 200 per month for five months, plus a total of $ 500 for the arrests of five numbers writers who worked for the opposition. These arrangements were corroborated by eleven tape recordings of conversations that Pokoy had with Miller and Fontaine.
As part of the FBI undercover operation in which Detective Pokoy participated, several tests of the Mayor's participation in the Miller-Fontaine operation were set up. One of these tests was that Pokoy would advise Miller and Fontaine that he was unable to stop Wyatt from arresting Miller and Fontaine writers, and request that they should get the Mayor to remove him from the vice squad. On September 1, 1977, Miller and Fontaine told Detective Pokoy that they would have the Mayor remove Wyatt from the vice squad. Fontaine went to the Mayor and asked that Wyatt be removed. The Mayor and Chief Hoopes met on September 9, 1977 and the Mayor suggested that, as part of the formation of a "fifth platoon" which Chief Hoopes had requested, Wyatt would be transferred from the vice squad. On September 13, 1977, the Mayor told Chief Hoopes that Wyatt would definitely be moved. The events of September 1, 9 and 13 were corroborated by tape recordings.
A second test set up by the FBI to determine the Mayor's participation in the Miller-Fontaine operation was having Officer Wyatt go to the Mayor on September 16, 1977 and report to the Mayor that he believed Detective Pokoy was "on the take". The Mayor warned Fontaine that he had received such a report. On September 23, Fontaine told Detective Pokoy to be careful because the Mayor had heard from policemen that they thought Pokoy was taking money from Miller. The conversations of September 16 and 23 were recorded.
The third test set up by the FBI to determine the Mayor's participation with the Miller-Fontaine operation concerned a report of the activities of a Miller-Fontaine numbers writers, Buddy Green. Officer Joseph Bail, Jr. prepared a report detailing the numbers writing activities of Green and delivered this report to the Mayor on October 12. The Mayor showed the report to Fontaine and on October 12, at 12:07 p.m., Fontaine called Detective Pokoy to discuss the details of the report. Fontaine suggested to Pokoy that he should arrest Green, so as not to arouse suspicion, and that Fontaine would make certain that Green was "clean" at the time of arrest. The Mayor did not give the Green report to the Chief of Police until later that same day.
In November 1977, Miller and Fontaine paid the Mayor a total of $ 1,900; $ 1,500 of which was delivered by Fontaine to the Mayor on November 1, and the remaining $ 400 was delivered by Fontaine to the Mayor on November 4. In December 1977, Miller and Fontaine were informed by the government that Detective Pokoy had been working with the FBI and that their conversations with Pokoy were taped and that they would be indicted on racketeering charges. Miller and Fontaine agreed to cooperate with the FBI. On December 23, 1977, Fontaine wore a body recorder when he went to make a payment of $ 1,100 to the Mayor. Fontaine and his car were searched by the FBI both before and after his visit to the Mayor. In addition, Fontaine was surveilled by the FBI while driving to and from the Mayor's office. Fontaine carried with him $ 1,100 when he want to the Mayor's office. On the tape recording of the meeting between the Mayor and Fontaine, Fontaine said to the Mayor as he handed him the $ 1,100, "Here, that's that one, and that's the other", referring to payments of $ 100 remaining due from the previous month, and $ 1,000 for the current month.
On January 10, 1978, Fontaine again wore a body recorder when he went to make a $ 1,000 payment to the Mayor. Once again, he was searched and surveilled by the FBI. Fontaine said on the tape, at the time he handed the Mayor $ 1,000, " . . . here, here's a thousand, and don't, and I can't give you no more until, ah somewhere before the primary. What do you think?" The Mayor's response was "That's ok. Before the primary. Yea."
The Mayor did not report any of the payments received from Miller and Fontaine as income on his federal tax returns for 1976 and 1977.
At various times since November, 1971 the Mayor had access to three safe deposit boxes, two in his own name and one in the name of the Chester Republican Party. The records of his visits to these boxes show that, on ten occasions, within the same five or ten minute period, the Mayor visited the box in his name and the box in the name of the Republican party, both being in the Southeast National Bank. On one occasion, the Mayor went directly from Southeast National Bank to visit the third safe deposit maintained in his name at a bank across the Pennsylvania state line in Delaware.
The government's case was strong, and there can be no doubt that the evidence was sufficient to support the jury's verdict as to each of the five counts of the indictment. The evidence amply supports a finding that the defendant participated in the conduct of the affairs of the Chester Police Department through a pattern of racketeering activity, that he conspired to participate in the conduct of the affairs of the Chester Police Department through a pattern of racketeering activity, that he conspired to obstruct the enforcement of state and local laws with the intent to facilitate the illegal gambling business of Miller and Fontaine, and that he filed false income tax returns for the years 1976 and 1977. We, therefore, reject the defendant's contention that the evidence produced at trial was insufficient to support the verdict of the jury.
III. MOTION FOR A NEW TRIAL.
The defendant makes the following thirty-eight separate allegations of error in support of his motion for a new trial:
2. The court erred by denying the defendant's pre-trial motion to grant a change of venue due to excessive pre-trial publicity.
3. The court erred by denying the defendant's pre-trial motion to continue the case due to excessive pre-trial publicity.
4. The court erred by denying the defendant's pre-trial motion to dismiss because of alleged prosecutorial misconduct in connection with pre-trial publicity, in which no hearing was provided.
5. The court erred by denying the defendant's pre-trial motion to immunize defense witnesses.
6. The court erred by denying the defendant's pre-trial motion for discovery.
7. The court erred by denying the defendant's pre-trial motion for bill of particulars.
8. The court erred by denying the defendant's pre-trial motion to suppress electronically obtained conversations.
9. The court erred in granting the government's motion to use electronically obtained conversations at the trial, including a Starks motion.
10. The court erred in restricting the voir dire examination of prospective jurors.
11. The court erred in denying certain challenges for cause made by the defense and also in granting challenges for cause made by the government during the voir dire process.
12. The court erred in concluding that the voir dire process had resulted in the obtaining of a jury free of the taint of ...