ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Crim. No. 78-00387-01
Before Adams, Hunter and Higginbotham, Circuit Judges.
Ransom F. Shoup II was convicted by a federal jury on one count of conspiring with Edward Goldsmith*fn1 to defraud the United States and to obstruct justice, 18 U.S.C. § 371 (1976), and on one count of willfully attempting to obstruct justice, 18 U.S.C. § 1503 (1976). The district court sentenced Shoup to three years probation on each count, to be served concurrently, and also imposed a $5,000 fine on each count. Shoup filed a timely appeal.
This case arises out of a federal investigation of possible voting fraud in the November 7, 1978 Philadelphia general election. Considerable controversy and public interest accompanied the election, largely because of a proposal on the ballot that would have amended the Philadelphia Home Rule Charter to permit the mayor to remain in office for more than two terms. The election was marred by widespread malfunctioning of voting machines, the breakdowns occurring primarily in wards where sentiment was running against the proposed charter change. Immediately after the election, the United States Attorney for the Eastern District of Pennsylvania and a federal grand jury began to investigate whether there had been deliberate attempts to tamper with the voting machines, and thereby to deprive citizens of their constitutionally protected right to vote. The next day, the United States Attorney hired Shoup, the owner of a voting machine manufacturing and repair company, to aid in the investigation. Shoup, in turn, employed eleven experts to assist him. Edward S. G. Dennis, the Assistant United States Attorney in charge of the investigation, instructed Shoup to inspect the machines in question and to prepare a written report containing his findings and conclusions.
Shoup had completed and typed a draft of his report by November 20, 1978. On November 21, he took a copy to Goldsmith, a former chairman of the Camden County Board of Elections. Goldsmith testified that, at their meeting, Shoup explained the nature of the report and told him that "Commissioner Marge" was under investigation. "Commissioner Marge" is Margaret M. Tartaglione, chairwoman of the Philadelphia City Commissioners. The City Commissioners are responsible for overseeing elections in Philadelphia, monitoring the polling places, and purchasing and repairing voting machines.
According to Goldsmith, Shoup asked him whether he knew Tartaglione and whether he would take a copy of the report to her so that she could review it and recommend changes to Shoup. Shoup then asked Goldsmith if he thought Shoup could obtain Philadelphia voting machine business by permitting Tartaglione to review and change the tone of the report; Goldsmith replied that he thought Shoup could obtain such business.*fn2
Goldsmith agreed to arrange a meeting between Tartaglione and Shoup, and thereafter delivered a copy of the report to Tartaglione. Goldsmith told Tartaglione to review the report and to advise Shoup if she had any changes. He told Tartaglione that Shoup would make any additions or deletions that she requested, and added that Shoup would be very good to her.*fn3 On November 27, Tartaglione's lawyer notified the United States Attorney of Goldsmith's actions. With Tartaglione's consent, the F.B.I. attached a recording device to her telephone. On November 29, Tartaglione called Goldsmith to ask whether Shoup had submitted the report to the United States Attorney. Goldsmith called Shoup who stated that he had not yet submitted the report, but was going to do so that afternoon. Goldsmith then informed Tartaglione of this, and Tartaglione quickly set up a luncheon meeting with Shoup for that day.
Prior to her meeting with Shoup, and again with her consent, the government equipped Tartaglione with a recording device. At the meeting, Shoup told Tartaglione that he had not yet submitted his report. When Tartaglione replied that there were portions that could hurt her, Shoup offered to reword the report "to soften it up some."*fn4 The two then agreed to several language changes. Tartaglione asked Shoup why he had given her a copy of the report; Shoup replied that Goldsmith was close to Mayor Errichetti of Camden, and that Goldsmith and Errichetti wanted Tartaglione to see it. Shoup explained:
Well, I, I think what their feeling is that you're close with Rizzo therefore and the mayor over there is close with Rizzo therefore if there was anything that could be detrimental, they would rather it be stricken before it got released, I guess.*fn5
At the close of their meeting, Shoup told Tartaglione: "So what I'd like is, you know, I never saw you and I'd rather that just disappear as far as the copy is concerned."*fn6
Two days after the luncheon meeting with Tartaglione, Shoup submitted his final report to the United States Attorney. Three sections were changed as follows:
(1) Draft Report page 1: "A Complete lack of maintenance was evident on all machines."
Final Report page 1: "A lack of maintenance was evident on all machines."
(2) Draft Report page 2: "Excessive delay in the response of the mechanics to the polling place in answer to a service call (As long as six hours )."
Final Report page 2: "Excessive delay in the response of the mechanics to the polling place in answer to a service call."
(3) Draft Report page 2: "The mechanics which answered the service calls could not properly diagnose the problem. A back-up mechanic would then be called; however, as many as four back-up mechanics had to be called before the problem could be resolved. It is obvious that mechanics were not qualified to resolve the service calls. A qualified mechanic should have corrected most of the problems within a few minutes after his arrival."
Final Report page 2: "The mechanics which answered the service calls, In some cases, could not properly diagnose the problem. A back-up mechanic would then be called; however, as many as four back-up mechanics ...