purchased out of state. As was stated above in this Opinion, evidence of the purchasing of such materials was a proper means of establishing the interstate commerce element of Section 1951. The evidence was relevant and properly admitted. It was, therefore, a proper subject for comment in the government's opening statement.
3. The defendant asserts that, in his closing argument, the Assistant United States Attorney characterized defense arguments as spurious. An examination of the transcript of the arguments, however, fails to reveal the use of the word "spurious" or any other derogatory adjective. While a prosecuting attorney should not ridicule his opponent, Carter v. United States, 141 U.S. App. D.C. 259, 437 F.2d 692 (D.C.Cir.1970), there was no ridicule here. Counsel for the government merely suggested reasons why anticipated defense arguments were without merit, and in so doing, was merely fulfilling his responsibilities as an advocate for the government in connection with closing argument.
While a prosecuting attorney may not strike "foul" blows, he may and indeed should strike "hard" ones. Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). The blows struck in this case may have been hard, but they were in no sense foul.
4. The defendant argues that he was prejudiced by a reference, in the government's closing, to his conduct as an abuse of public office. This characterization of the defendant's conduct was entirely proper because it was supported by the evidence. E. g., United States v. Malatesta, 583 F.2d 748, 759 (5th Cir. 1978) (description of defendant as "con man" and "hoodlum" proper where supported by the evidence).
It has been held in mail fraud cases that, where the victim of a scheme to defraud is an insurance company, the prosecuting attorney may point out to the jury that the ultimate victims are insurance customers. United States v. Medansky, 486 F.2d 807, 815 (7th Cir. 1773), cert. denied, 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 886 (1974). It is likewise proper in an extortion prosecution under Section 1951 for the prosecuting attorney to state that, when a public official abuses his office, the ultimate victim is the public.
In this case, the prosecuting attorney did not suggest that the jurors themselves were victims or that any of them would suffer from the defendant's conduct. His characterization of the nature and effect of the defendant's conduct was entirely proper.
5. In addressing the factors bearing on the credibility of the witnesses, including the defendant, the Assistant United States Attorney pointed out that the defendant had a strong interest in the outcome of the trial. Government counsel stated in reference to the defendant: "He's on trial and a verdict of guilty means some type of criminal sanction. Even if it would be a suspended sentence, it says that you did something wrong and violated the law." (Tr. closing argument 10). Subsequently, the Court instructed the jury it should not consider the penalty that would be imposed if the defendant were convicted (Tr. 452).
The defendant contends that the reference to a suspended sentence constituted grounds for a mistrial. The reference, however, was made in the context of an entirely proper comment on the defendant's interest in the outcome of the trial. There was no suggestion that the defendant would receive a suspended sentence or that, for that reason, the jury should give the case less than the most serious consideration. In any event, the court's instruction removed any possibility that the jury would take possible penalties into account in its deliberation.
Did this Court err in admitting testimony of Roy Bergman concerning evidence of other similar criminal misconduct of the defendant.
It is the opinion of this Court that the admission of the testimony of Roy Bergman was proper and was not legally remote or prejudicial.
At trial, Roy Bergman testified that his conduct to supply milk to the Derry Area School District had been reduced after he had refused to make payments to the defendant. The defendant contends that Bergman's testimony should not have been admitted largely because school district records showed that the cut in Bergman's contract occurred in the 1970-1971 school year, and not in 1973 as he had testified. (See Tr. 2/7/80, 146-147).
Bergman's testimony was properly admitted. Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
As the Third Circuit observed in United States v. Long, 574 F.2d 761, 765-766 (3d Cir. 1978), Rule 404(b) is a rule of inclusion, not exclusion. That is to say, evidence of other crimes is admissible "unless it could be said that it was being offered solely to show that a defendant had criminal propensities." Id., 574 F.2d at 766.
Bergman's testimony tended to show that the defendant had the power to carry out his extortionate threats. The existence of that power in turn tended to increase the likelihood that the threats had been made. One with the power to carry out a threat is more likely to make the threat than is one who has no such power. Thus, Bergman's testimony tended to show that Lena had in fact made threats against Williams and Desmone.
The fact that Bergman may have been mistaken as to exactly when Lena made and carried out his threat is neither surprising, given the passing of several years, nor grounds for excluding Bergman's testimony. The fact that a witness may not have a perfect recall about an event is no reason to exclude his testimony. Defects in his recollection are of course proper subjects for cross-examination and impeachment, but such defects do not render his testimony inadmissible. United States v. Snead, 447 F. Supp. 1321, 1324 (E.D.Pa.1978), affirmed, 577 F.2d 730 (3d Cir.), cert. denied, 436 U.S. 930, 98 S. Ct. 2829, 56 L. Ed. 2d 775 (1978). The defendant was given a full and fair opportunity to attempt to show that Bergman was unreliable. He was entitled to no more.
Was the rebuttal testimony of C. J. Earl Tarr and William Oleszewski properly admitted in evidence in this case?
The rebuttal evidence of these two men was properly admitted in this case.
In rebuttal, the government called witnesses, C. J. Tarr and William Oleszewski. Tarr, a long-time member of the Derry School Board, and Oleszewski, guidance counselor and former football coach at Derry High School, each testified that appellant exercised some control over other school board members and that he had a poor reputation for honesty (Tr. 486-489, 498, 500-502). This testimony was entirely proper rebuttal in that it contradicted two principle elements of Lena's defense; testimony that he exercised no control over the school board, and a long line of witnesses who attested to his good character. See F.R.Evid. 404(a)(1).
The defendant's statement that Oleszewski could not testify on the question of school board control because he had attended only school board meetings occurring before Lena was on the board is untrue. Oleszewski testified that he had attended school board meetings for the first year or two that Lena was present (Tr. 502). The defendant's suggesting that Oleszewski may have had a personal motive for testifying against Lena, i. e., his having been relieved of his coaching position, is a matter going only to Oleszewski's credibility. It had nothing to do with the admissibility of his testimony.
Did this Court err in refusing to strike Jurors who had served as Jurors in another case tried by the same prosecutor; Did this Court err in allowing the Jury to continue to deliberate after it indicated that it might be deadlocked ?
The defendant makes two claims of error that concern the jury and its deliberations. First, he contends that certain prospective jurors should have been struck for cause because they had served on a jury in another public corruption case prosecuted by Mr. Lindsay, one of the two prosecuting attorneys in this case. In the earlier trial, three of four defendants were convicted; one defendant was acquitted on the ground that his prosecution was barred by the statute of limitations.
Prospective jurors are not automatically disqualified by virtue of their service on a jury in a similar case or their familiarity with the prosecuting attorney. United States v. Drake, 494 F.2d 648 (5th Cir. 1963); United States v. Daniels, 64 F.R.D. 397 (E.D.Pa.1974). The trial judge should of course question prospective jurors as to whether their prior service or their familiarity with the attorney would affect their ability to render a fair and impartial verdict. Lane v. United States, supra. The court did exactly that in this case, and excused one juror who may not have been able to be impartial (Tr. 14-30). The court's decision to accept the representations of the other jurors that they could be impartial was entirely proper.
Second, the defendant contends that the court erred in sending the jury back to deliberate after it had asked whether it could render a verdict as to only one of the two counts. He argues that the action of the court amounted to a coercive "Allen" charge. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). But, the traditional "Allen" charge emphasizes the jury's duty to reach a verdict if it can, and each juror's responsibility to give careful consideration to the views of his colleagues, even to the extent of re-examining his own attitudes and opinions. In certain circumstances, particularly where it appears that there are one or two "hold-outs" among the jurors, such a charge may be coercive. See Jenkins v. United States, 380 U.S. 445, 85 S. Ct. 1059, 13 L. Ed. 2d 957 (1965).
In this case, there was no "Allen" charge. The court did not instruct the jurors to reconsider their own opinions in light of the views expressed by their colleagues, but merely said that the jury "should continue your deliberation making some reasonable effort to reach a unanimous verdict." (Tr. 517). The court emphasized that, by sending the jury back for further deliberations, it was not suggesting that any juror should change his mind (id.).
Where, as in this case, a court responds to the first sign of a deadlock merely by suggesting continued deliberation and does not "refer to the expense of a second trial or the need for the minority to reconsider its votes, (impose) (any) coercive deadline, (make) ... threats of marathon deliberations, (or) (exert) ( ) ... pressure for the surrendering of conscientiously held minority views," there has been no coercion of the jury. United States v. Warren, 594 F.2d 1046, 1050 (5th Cir. 1979), quoting United States v. Solomon, 565 F.2d 364, 366 (5th Cir. 1978).
As the Third Circuit said in Government of the Virgin Islands v. Gereau, 502 F.2d 914, 935-936 (3d Cir. 1974): "How long jury deliberations should continue is a matter entrusted to the discretion of the trial judge. ... Absent peculiar evidence indicative of coercion, it is proper for a judge to instruct a deadlocked jury to continue deliberations and attempt to arrive at a verdict." See United States v. Grosso, 358 F.2d 154, 159 (3d Cir. 1966), reversed on other grounds, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968). In this case, the jury did not indicate that it was hopelessly deadlocked, it merely alluded to the possibility that a deadlock may occur. The Court, which had no reason to believe that further deliberations would be fruitless, committed no abuse of discretion in indicating that the jury should continue its deliberations.
Did this Court err in denying a number of the Defendant's Points for Charge?
It is the opinion of this Court that it properly denied a number of the Defendant's requested points for charge, and it is the further opinion of this Court that it properly granted the government's requests for instructions to the jury.
The defendant argues that the Court erred in refusing to give eight of his requested instructions. Six of these instructions, Nos. 2, 3, 4, 5, 6 and 7, concern Pennsylvania law with respect to political contributions by corporations and the Standards of Ethical Practice for architects. In cross-examining the principal government witnesses in this case, architects Williams and Desmone, the defendant fully explored the impropriety of their conduct in this and other cases. The jury was thus well aware that the witnesses had acted contrary to the law and to the ethical standards of their own profession.
There was no reason for the Court to give lengthy and confusing instructions on Pennsylvania law or ethical standards. The architects were not on trial. Detailed instructions on laws or standards not applicable to the charges against the defendant would have injected a potentially distracting and confusing collateral issue into the jury's deliberations.
The defendant was given ample opportunity to impeach the credibility of Williams and Desmone and to argue their credibility to the jury. That is all he was entitled to do. The Court properly refused to allow the defendant to transform the trial into a state law prosecution or a professional disciplinary proceeding against government witnesses.
The remaining two instructions, 14A and 16, were a detailed listing of factors that, under the defendant's view of the case, had a bearing on the credibility of Williams and Desmone. A trial judge should not, however, give a closing argument for the defense submitted in the form of a request for instructions. United States v. Heath, 580 F.2d 1011, 1025 (10th Cir. 1978).
In this case, the Court gave a complete instruction on general considerations bearing on witness credibility (Tr. 462-465).
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