The opinion of the court was delivered by: BRODERICK
The defendant, Rudolph Feliziani, was found guilty by a jury on two counts of a three-count 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), and conspiracy to obstruct law enforcement with the intent to facilitate an illegal gambling business in violation of 18 U.S.C. § 1511. This, the second trial of the defendant, consumed eight days before a sequestered jury. The first trial, wherein the defendant was tried together with Mayor Nacrelli, ended in a hung jury after twenty-two days before a sequestered jury. When the second trial of both defendants commenced, the defendant, Feliziani, became ill; a severance was granted and the trial of Mayor Nacrelli proceeded without the defendant, Feliziani. 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, these 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:
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.
In 1968 and 1969, the Miller-Fontaine operation was experiencing a number of arrests by the Chester city police. John Nacrelli, a close associate of both Fontaine and the defendant, was appointed Mayor of the City of Chester in 1968 and elected to that position in 1969. Through the Mayor, Miller and Fontaine arranged to meet with Joseph Eyre, the former Mayor and Republican City Chairman of the City of Chester. Through Eyre, Miller and Fontaine arranged for police protection of their numbers racket. In return for a payment of $ 1,600 per month, which Eyre split with Mayor Nacrelli, the Mayor arranged for the Chester police to protect Miller and Fontaine's operation while arresting their opposition. In 1971 the payments were increased to $ 4,000 per month which Eyre said would include protection from state and county arrests. On December 28, 1976, Joseph Eyre died. Shortly thereafter, Mayor Nacrelli met with Miller and Fontaine and arranged to receive a payment of $ 2,000 per month, in return for which he would provide police protection for the Miller-Fontaine operation in the City of Chester. Mayor Nacrelli also agreed that the Chester police would arrest numbers writers who were in competition with Miller and Fontaine.
Fontaine delivered the $ 2,000 monthly payments directly to the Mayor in December, 1976 and January, 1977. Then, because Fontaine was reluctant to deliver money directly to the Mayor, and because the FBI investigation was becoming more intense, the Mayor arranged for payments to be delivered to him through the defendant, Feliziani. Feliziani, who was a city employee with an office directly adjacent to the Mayor, also wrote numbers for Frank Miller. From February through July, 1977, Miller and Fontaine delivered the money to the defendant at a store he operated in Chester township. They gave the defendant $ 2,000 in large bills, and he counted it each time. When Miller delivered money to the defendant, he invariably asked him why the opposition was not being arrested, asking the defendant to convey this message to the Mayor.
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 and Fontaine met with the Mayor; the Mayor agreed that the $ 2,000 per month payments could be stopped temporarily because he could not control Hoopes and the vice squad.
On January 11, 1978, Frank Miller agreed to wear a body recorder during a conversation with the defendant, Feliziani. The FBI equipped Miller with the recorder and kept him under surveillance during the conversation. They were able to observe the conversation through the window of the defendant's store. At the FBI's suggestion, Miller asked the defendant to check with the Mayor to see whether money that Miller was giving Fontaine to be delivered to the Mayor was actually received by him. The defendant agreed to speak with the Mayor about it. Miller and the defendant also discussed Miller's chief opposition, Leroy Miah. Miller told the defendant that he wanted a meeting with the Mayor; the defendant agreed to try to arrange a meeting.
The following day, January 12, 1978, Miller again met with the defendant in his store. The conversation was again recorded, under FBI surveillance. The defendant reported that he had seen the Mayor and asked if he had received money from Miller. According to the defendant, the Mayor said that he had asked Miller for money at election time, but had not received any money from Miller since then. The defendant told Miller that the Mayor had said that ". . . he's (the Mayor) got nothing to do with nothing now because that's the worst thing to get back involved that strong." The defendant told Miller that he had conveyed Miller's request for a meeting with the Mayor and the Mayor said he would try to work something out.
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 two counts of the indictment, upon which the defendant was convicted. The evidence amply supports a finding that the defendant conspired to participate in the conduct of the affairs of the Chester Police Department through a pattern of racketeering activity and 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. 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 twenty-eight separate allegations of error in support of his motion for a new trial:
1. The Court erred by denying the defendant's pretrial motion to dismiss the indictment on the grounds of excessive pretrial publicity.
2. The Court erred by denying defendant's pretrial motion for discovery.
3. The Court erred by denying the defendant's pretrial motion for bill of particulars.
4. The Court erred by denying the defendant's pretrial motion to suppress electronically obtained conversations.
5. The Court erred in granting the government's motion to use electronically obtained conversations at the trial, including a Starks' motion.
6. The Court erred in concluding that the voir dire process has resulted in the obtaining of a jury free of the taint of the improper pretrial publicity.
7. The Court erred in failing to fix for this trial an order of proof requiring the government before introducing into evidence out-of-court declarations of alleged co-conspirators to first establish by a fair preponderance of the evidence that (a) the conspiracy existed, (b) the declarant and the defendant were members thereof, and (c) the declarations were made in the course of, and in furtherance of, the conspiracy.
8. The Court erred in allowing hearsay testimony under the guise of a "state of mind" exception to the hearsay rule, as to Government witnesses Hoopes and Pokoy.
9. The Court erred in allowing Government witness Hoopes to testify as to the "state of mind" of others in the Police Department of the City of Chester.