ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Adams, Van Dusen and Gibbons, Circuit Judges.
Six appellants in this case appeal from the judgments of sentence imposed following their conviction by a jury of conspiracy to conduct the affairs of the Levitt bonding agency through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), and of the underlying substantive offense, a violation of 18 U.S.C. § 1962(c). The seventh appellant, Frank Bruno, entered a conditional plea of guilty to one count of conspiracy under the RICO statute at the close of the government's direct case. Appeals by other defendants tried separately on the same indictments were before us in United States v. McCann, 589 F.2d 1191 (3d Cir. 1978), and in United States v. Forsythe, 594 F.2d 947 (3d Cir. 1979). These appeals present the same issues which we considered in the McCann And Forsythe opinions, and those decisions are to a large extent dispositive. We affirm the convictions of Frank Bruno (No. 78-1124), John Chapas (No. 78-1125) and William C. Downey (No. 78-1127). We reverse and remand for a new trial in the appeals of Albert C. Pantone (No. 78-1123), Al Chesnos (No. 78-1126), Dominick Romano (No. 78-1128) and John Kumer (No. 78-1170).
The government's case against these appellants was substantially identical to that presented in McCann and Forsythe. Steven C. Levitt, who had pled guilty to a violation of 18 U.S.C. § 1962(d), was the government's principal witness. The nature of his evidence is set forth in detail in the McCann opinion. His testimony established that all seven defendants here were magistrates or justices of the peace responsible for fixing bail; that he operated a bail bond agency; that his agency had an arrangement with these magistrates to kick back to them one half of the premium on each bail bond placed in their offices; and that the seven defendants received kickbacks in instances where they fixed bail. Victor Kozlowski, a former bondsman at the Levitt Agency, confirmed Levitt's account in substantial part as to all defendants. Mary Hupert, formerly a secretary at the Agency, provided further corroboration as to Pantone, Bruno, Downey, Kumer and Chapas. Constable Eugene Benedik and FBI Special Agent Robert Hood presented further damaging testimony against Chesnos.
During its case in chief the government also proffered the testimony of Jacob Winner, who operated a bail bond agency in Pittsburgh known as the American Bonding Company. The government offered to show that American Bonding Company regularly received referrals from and split premiums with all the magistrates on trial except for Chapas. The government's theory of admissibility of this evidence of uncharged crimes was that it tended to establish a "common scheme and design" in that the crimes were carried out in the same manner as those that had been charged. Fed.R.Evid. 404(b).
The district court refused to admit the testimony on that ground, but indicated that it might become admissible in rebuttal. After the defendants had presented their cases, the court admitted the Winner testimony on two theories: as rebuttal to the defendants' character evidence, and as rebuttal to testimony presented by each defendant tending to show that he had not referred defendants to bailbondsmen. 2546a. Winner then testified that he had received referrals from and paid bribes to defendants Kumer, Downey, Pantone, Romano, and Chesnos. The jury was instructed that it could consider the Winner testimony only insofar as it was relevant to the two issues identified by the judge.
On this appeal, each defendant raises legal objections (1) to the sufficiency of the state's evidence and the conduct of the trial generally and (2) to the admission of particular items of testimony, including the Winner testimony, against them. To avoid repetition, we first consider the issues common to all appellants. We then consider each appellant's evidentiary objections individually.
All of the defendants contend: (1) that § 1962 is unconstitutionally vague; (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 that therefore the offense of conspiracy was committed before the effective date of the statute; (3) that the government's proof at trial established a multiple rather than a single conspiracy; (4) that a judgment of acquittal was required, since the government established neither a Prima facie case of a § 1962(d) conspiracy, nor the commission of the felony of bribery under Pennsylvania law which was the predicate for conviction under § 1962(c); and (5) that the court erred in failing to instruct the jury regarding the elements of a lesser included misdemeanor offense under Pa.Stat.Ann. tit. 19, § 90.10(c), (e) (Purdon 1978).
The first four of these contentions were pressed in both the McCann and Forsythe appeals. In both those cases, reviewing the same indictment and a legally indistinguishable evidentiary record, this court rejected those arguments, and we therefore reject them here. The "lesser included offense" claim was raised in Forsythe, and was rejected there. See 594 F.2d at 952. That holding is controlling here.
The defendants also argue that the district judge should have granted a mistrial because of juror misconduct. During a Voir dire respecting potentially prejudicial publicity which circulated during the trial juror number 11 testified that she had heard another juror remark, "Well, it sounds like everybody is guilty, or something like that." Another juror testified to a "humorous" comment regarding the defendants' guilt. The judge immediately held a corrective Voir dire during which all jurors stated that nothing had occurred which would influence the verdict or their impartiality. The trial court is obviously in a better position to observe the impact of premature jury discussions of guilt, and to make a considered judgment as to the effectiveness of a cautionary instruction. Our consideration of the entire Voir dire, which suggests that the impact of the two remarks was rather inconsequential, and of the promptness and care with which the trial judge conducted the inquiry, convinces us that his refusal to grant a mistrial was not an abuse of discretion. Certainly the occurrence of the conversations referred to is not ground for an automatic mistrial, and no showing of any likelihood of actual prejudice has been made on this record. See United States v. Klee, 494 F.2d 394 (9th Cir.), Cert. denied, 419 U.S. 835, 95 S. Ct. 62, 42 L. Ed. 2d 61 (1974).
We now turn to the Winner testimony. We consider the defendants' claims in two groups.
Bruno entered a conditional guilty plea to one count of conspiracy in violation of the RICO statute at the close of the government case. The plea came before the Winner testimony was admitted, and Bruno was therefore not prejudiced by that testimony. Since we have found Bruno's other claims of legal error to be without merit, his conviction must be affirmed.
Unlike Bruno, Chapas was found guilty by the jury of violations of both 18 U.S.C. § 1962(c) and § 1962(d). But he was not mentioned in the Winner testimony and that testimony was not admitted against him for any purpose. Although Chapas argues that he was prejudiced by the spillover effect of Winner's testimony, our review of the record discloses no instance where such a spillover occurred.
Chapas also contends that the court erroneously allowed Levitt to testify concerning bribe taking by other court personnel in the City Police Court where Chapas served as magistrate. At trial, the government conceded that it could not show that Chapas knew of the bribes paid to other court officials, and for that reason the court initially ruled the testimony inadmissible. But later in direct examination of Levitt, while Levitt was explaining his method of payment to Chapas, Chapas' attorney interrupted the questioning to demand an explanation of the payment code which Levitt had used on his files. Explanation of that code required Levitt to reveal that other personnel in the Police Court were taking bribes, and the court permitted Levitt to testify to that effect. In view of the ...