The opinion of the court was delivered by: DITTER
Three defendants, Michael Morrone, Ronald Turchi, and Moderwell Kester were convicted by a jury of nine counts of mail fraud, a violation of 18 U.S.C. § 1341. Morrone, Turchi, and Gaeton Cassello were convicted of racketeering, a violation of 18 U.S.C. §§ 1961-63, and of conspiracy to engage in racketeering, a violation of 18 U.S.C. § 1962(d). Their two co-defendants, William Fox and David DiStasio, were acquitted. Another co-defendant, Nicholas Spadea, was found to be incompetent to stand trial and the indictment against him was ultimately dismissed. Defendants have filed post-trial motions contending that they were prejudiced by pre-trial rulings, rulings during the trial, and errors in the charge to the jury. For the reasons which follow, their motions must be refused.
The evidence, which because of the verdict must be viewed in the light most favorable to the Government, showed that in 1975 Michael Morrone operated a diner in Philadelphia, employing Ronald Turchi, Gaeton Cassello, and Richard Coppola. Coppola was to become the chief Government witness at trial. In November, 1975, Morrone directed Coppola to assist Turchi and Cassello in the setting of a fire at the Archway Tavern, Front and Arch Streets, Philadelphia. Pursuant to these instructions, Coppola bought naphiho, a flammable liquid, and helped Cassello prepare paper fuses to spread the flames. The next day he drove Turchi and Cassello to the bar and carried the incendiary materials in through the rear entrance. He then left. Acting again on Morrone's instructions, Coppola picked up Turchi and Cassello later that evening. They told him they had set the fire. Coppola drove near the bar and could see the flames shooting out into the street. The next day, the three reported to Morrone the events of the night before. When Morrone directed Coppola to return and examine the building, Coppola saw that it had been heavily damaged by fire.
Several months later, Turchi and Coppola obtained work at Schmidt's Brewery where Morrone was employed in a supervisory capacity. One day, Coppola observed that Morrone and Turchi met with a man whose name Coppola later learned was Harry Bassion. Immediately after the meeting, Morrone told Coppola they had a big "score" coming up. Coppola interpreted this expression to mean that they would be involved in some significant criminal activity. Following another meeting between Turchi and Harry Bassion, which Coppola also observed, Turchi told Coppola they were planning the arson of a bar as soon as the occupants of rooms upstairs vacated the premises. Several days later, Bassion met Coppola and handed him the keys to the Blue Bell Bar, which was owned by the wife of William Fox. Coppola then delivered the keys to Turchi. In March, 1976, at Morrone's instructions, Coppola, Turchi, and Cassello drove to the bar and set it on fire. Coppola received $ 250. from Turchi for his participation in this crime. After the fire, and again at Morrone's direction, Coppola and Turchi met with Harry Bassion at the Continental Bank to obtain a loan. After Bassion co-signed the obligation, the bank issued a check to Coppola for $ 5,000. He cashed the check and together with Turchi gave the money to Morrone. Coppola did not repay the loan but from the bank's records, it could be inferred that Bassion did.
In January, 1977, the Commercial Office Supply Co., the sole occupant of Moderwell Kester's warehouse at 1150 East Orthodox Street, Philadelphia, told him of its intention to terminate its lease. Although he had hoped to sell the property for $ 125,000, Kester eventually accepted an offer of $ 65,000 with settlement scheduled for May 6, 1977. The original printed agreement of sale form provided that the parties' respective obligations would not be affected in the event of loss by fire. However, as a result of negotiations between Kester and the purchaser, it was agreed that in the event of fire or casualty loss, the contract would be considered automatically terminated.
A few weeks later, in April, 1977, Morrone told Turchi and Coppola that a big "score" was coming up. On April 28, 1977, Morrone, Turchi, and Coppola drove to one of the parking lots of the Philadelphia Zoo where, according to Morrone, they were to meet with the owner of the building which they were going to burn. After they had waited for about 45 minutes, Coppola got out of the car and remained at that parking lot while Morrone and Turchi drove to the Zoo's other parking lot. When they returned, Morrone said the "score" would be worth a quarter of a million dollars.
On Monday, May 2, 1977, acting upon Morrone's instructions, Turchi and Coppola went to the warehouse on Orthodox Street. They were to pick up a down payment from the owner and get the keys to the building. On the second floor of the building, Turchi and Coppola met a man, identified at trial by Coppola as Kester, who handed $ 5,000 to Turchi and also gave him the keys to the building. Later that day, Turchi and Coppola delivered the money to Morrone. On Wednesday, May 4, 1977, Morrone met with Turchi and Coppola at Schmidt's and told them to get the necessary materials and start the fire before Friday. Coppola and Turchi then got five large plastic containers of gasoline, and on Thursday, May 5, drove to the warehouse using a car Coppola borrowed from his girl friend, Pat Bressi. They hid the gasoline inside the building, but decided not to start the fire then because there were too many children playing nearby.
Late that afternoon, Turchi and Coppola returned to the warehouse with Nicholas Spadea, who also worked at Schmidt's. However, they decided there were still too many children near the warehouse to permit them to start the fire. Accordingly, the three men returned to Schmidt's and called Morrone. He came to the brewery and instructed a fourth man, David DiStasio, to go with the other three and to use a second car. The four paired up and set off in Coppola's and Turchi's cars. Spadea waited in Turchi's car several blocks from the warehouse, while the other three drove to the building in Coppola's car. While DiStasio remained in the car, Turchi and Coppola went into the building and poured gasoline on the floors. Coppola lit a match, but as the fire started, he was engulfed in flames. He was badly injured, but with Turchi's help got to the car after discarding much of his clothing. The four men returned to Schmidt's and Morrone was informed of what had occurred. At Morrone's direction, Coppola was taken to the home of Morrone's sister where he was treated by a doctor. Turchi and DiStasio then took Coppola to the home of Pat Bressi where he stayed during his period of recuperation.
The warehouse was not destroyed, but it suffered damage of about $ 20,000. Thereafter, Kester filed insurance claims which resulted in certain matters going through the mails. It was these mailings which formed the basis for the mail fraud charges on which Morrone, Turchi, and Kester were convicted. On December 13, 1977, two agents from the Bureau of Alcohol, Tobacco and Firearms (ATF), Harold C. Perlick and Robert Piccirilli, went to Kester's place of business and served a Grand Jury subpoena upon him. In addition, they talked with him about the fire. Kester admitted he had planned the fire with a stranger he met in a bar. Kester then told the agents he wanted to say nothing further prior to his talking with his lawyer. When the agents started to leave, Kester asked what he could do to help himself. The agents stated that if he decided to cooperate with the authorities, they would recommend that the court be made aware of that fact. Although Kester said he had been drinking, his demeanor and speech appeared to be normal to the agents.
I. All Defendants' Contentions
A. Coppola's "Recantation"
All defendants first contend that they should be granted a new trial because the principal witness against them, Richard Coppola, recanted. There is no merit in their position.
Like the defendants in this case, Coppola was indicted for mail fraud, racketeering, and conspiracy. He entered a plea of guilty to certain of these charges before the Honorable Joseph L. McGlynn, Jr., on December 1, 1978, Crim. No. 78-295-2. Sentence was imposed by Judge McGlynn on September 6, 1979. Thereafter, Coppola petitioned for leave to withdraw his plea of guilty, contending that he had been coerced by the Government into testifying falsely in the proceedings before me. Judge McGlynn conducted evidentiary hearings and after they were concluded on November 16, 1979, stated:
Well, I don't have any difficulty with this petition.
In this proceeding to withdraw his guilty plea, I think Mr. Coppola is lying in his teeth. His testimony is completely incredible. It's refuted by his statements before me at the change of his plea, by his statements given to the agents, by the agents themselves, and by Mr. Cole, by his testimony before Judge Ditter; all of these things convince me that this man is now lying. And, Counsel for Mr. Coppola asked me why he would do this? And, I have a pretty good idea why he would do this. I think he has been reached between the time that he testified before Judge Ditter in that other case, and now. And, I think that perhaps the Justice Department ought to look into it, and see if there has been any obstruction of justice or subornation of perjury.
In this instance, I have no difficulty in concluding that Mr. Coppola was not coerced, or forced, or in any way denied any of his rights in connection with his entering a guilty plea. He was fully advised of his rights by me, he acknowledged he understood them. He acknowledged the fact that his plea had to be free and voluntary. All of these factors were gone into at the time he changed his plea.
On April 22, 1980, Coppola pleaded guilty to conspiracy to obstruct justice, Crim. No. 80-144, before the Honorable Louis C. Bechtle. He admitted receiving $ 10,000. from a relative of one of the arson defendants. He used $ 5,000 to pay the attorney who represented him when he petitioned to withdraw his plea of guilty and retained $ 5,000 himself. See In re: Grand Jury Investigation (Subpoena to Nino V. Tinari), 631 F.2d 17 (3d Cir. 1980). He was then sentenced for this offense.
Both Judge McGlynn's findings and the subsequent events show that Coppola's recantation was procured and should not be credited. It cannot serve as the basis for post-trial relief for these defendants.
B. The Cautionary Instruction Concerning Turchi's Testimony
All defendants assign as prejudicial error my instructions that the testimony of Ronald Turchi should be received with caution and viewed with great care. Turchi's own contentions in this regard are the most detailed. In summary he argues that although he was not an accomplice, I gave the jury an accomplice instruction. He maintains that the policy reasons which require a cautionary charge as to accomplice witnesses who testify for the prosecution are inapplicable to witnesses who testify for the defense. Moreover he contends I implied to the jury that he was an accomplice and thus reduced the Government's burden to establish guilt beyond a reasonable doubt.
As is always the case, a portion of the charge about which complaint is made must be viewed in light of what took place at trial and in connection with the rest of the instructions. Turchi's challenge is to four paragraphs which dealt specifically with his credibility. It was prompted not only by Turchi's testimony, but also by counsels' summations.
Of the six defendants, only Kester and Turchi took the stand. Turchi said he first met Coppola in 1975. About a week prior to the fire he agreed to participate with Coppola in the burning of the Orthodox Street warehouse. He knew it would be criminal to do so, but wanted the money he said Coppola offered. On May 4, 1977, he and Coppola drove to the Orthodox Street property. On the way, Coppola explained what was going to happen. When they arrived, they took certain plastic containers of gasoline and trash bags with rolled up paper in them from Coppola's car and hid them in the warehouse.
Turchi said that he had not been involved with Coppola in any acts of arson prior to that time nor since then. He specifically denied having anything to do with the fire at the Archway Tavern or the fire at the Blue Bell Bar.
Turchi denied seeing Kester or Fox prior to the trial, but testified he knew the other defendants. In the summer of 1975, he and Cassello rented a diner from Morrone and employed Coppola to run it. That arrangement continued until mid-1976 when Turchi went to work at Schmidt's brewery where Cassello and DiStasio also worked, Morrone was general manager, and Spadea dock supervisor. Later Coppola also came to work at Schmidt's, and at one time, Morrone fired them both, but then rehired them. Turchi said he had never engaged in any racketeering enterprises, mail fraud, or conspiracy with the other defendants. Morrone never gave him any order regarding any fire or arson, nor did he ever hear Morrone tell Coppola, DiStasio, or Cassello anything about a fire. He also denied seeing Kester at the warehouse, and receiving from Kester any money or the keys to the building.
Thus, Turchi denied the salient features of Coppola's testimony about the involvement of Morrone and Cassello in activities from which the jury could find them guilty of mail fraud and racketeering. His testimony absolved DiStasio and contradicted Coppola as to Kester. Turchi did, however, admit helping commit arson at the Orthodox Street warehouse. Of course, he was not charged with arson and his being involved with only one fire would not make him guilty of engaging in racketeering activities or conspiracy to do so. In short, Turchi not only denied his own guilt, but exculpated Morrone, Cassello, and DiStasio.
During his summation, counsel for each defendant attacked Coppola's credibility. In addition, DiStasio's lawyer argued that Turchi was to be believed because he had incriminated himself. Counsel for Morrone also contended that Turchi, who had exonerated Morrone, should be believed because his testimony had been corroborated and because he had subjected himself to the serious charge of arson.
Counsel for Turchi claimed that Turchi had no motivation to lie. He went on to say,
Ladies and Gentlemen of the jury, in the Commonwealth a felony in the first degree is punishable by a period of imprisonment for twenty years. In the Commonwealth of Pennsylvania starting a fire deliberately with the result of endangering human life by statutes of this State, Section 3301 of the Pennsylvania Criminal Code, is a felony of the first degree.
Mr. Turchi at great jeopardy to his own freedom and to his own future took the stand here to be vindicated by this jury for that which he did not do and in so protecting himself he admitted that which he has done.
I think that is a case of a man with every motivation to lie who has still told the truth. I submit to you that for that reason alone you should believe Ronald Tuchi, and you should believe that the fraud perpetrated on this jury has been Richard Coppola and you should, as Mr. Cole suggested if you believe Ronald Turchi, you should find him not guilty of all the charges. (emphasis added) (N.T. 14-180-81)
There was therefore presented to the jury the proposition that Turchi's credibility was established by his admitting he was an arsonist and thus that he and the other defendants should be found not guilty of the charges in this case.
A defendant is competent to testify, and if he does so, his credibility is to be judged in the same way as that of any other witness.
A jury's privilege to take into consideration significant criminal activity in assessing credibility has long been accepted and is specifically recognized by Federal Rules of Evidence 609(a) and 608(b).
It follows that some instruction as to the possible effect of Turchi's criminality on his credibility was in order. The question then becomes whether these particular instructions were erroneous. Analysis and precedent show they were not.
In the first place, large discretion is vested in the trial judge as to the language to be used in an instruction. In forming a charge on the elements bearing on credibility, the judge is not to be bound to a hard and fast formula as to each phase of his charge, but it is proper to instruct the jury as to the matters which they may or should consider in determining the questions involved. United States v. Rajewski, 526 F.2d 149, 160 (7th Cir. 1975), cert. denied, 426 U.S. 908, 96 S. Ct. 2231, 48 L. Ed. 2d 833 (1976).
Secondly, as was said in the charge approved by the Supreme Court in Hoffa v. United States, 385 U.S. 293, 312 n. 14, 87 S. Ct. 408, 418 n. 14, 17 L. Ed. 2d 374 (1966),
All evidence of a witness whose self-interest is shown from either benefits received, detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.
Turchi was plainly motivated by self-interest. Had his testimony been accepted, it would have exonerated him and three of his co-defendants. It was no slip of the tongue or editorial nicety when his counsel announced, "Your Honor, we call the defendant Ronald Turchi." (emphasis added, N.T. 13-210).
In view of Mr. Turchi's claim to have been Coppola's accomplice to the state crime of arson, those opinions which deal with an accomplice who testifies for the defense are instructive. The leading case is United States v. Nolte, 440 F.2d 1124 (5th Cir.), cert. denied, 404 U.S. 862, 92 S. Ct. 49, 30 L. Ed. 2d 106 (1971). There it is said,
Nolte insists, however, that the instruction may only be given when an accomplice testifies for the prosecution, and not when he testifies in behalf of the defendant. We disagree. It is clear that an accomplice's credibility may be suspect, regardless of whether he testifies for the prosecution or the defense. Moreover, the trial judge's decision whether to give the instruction is not a matter requiring constitutional scrutiny. At most, it is "merely a part of the general conduct of the trial, over which the judge's powers are discretionary like his control over cross-examination, or his comments on the evidence." United States v. Becker, 2 Cir. 1933, 62 F.2d 1007, 1009; accord, Lyles v. United States, 5 Cir. 1957, 249 F.2d 744, 746, cert. denied, 1958, 356 U.S. 931, 78 S. Ct. 773, 2 L. Ed. 2d 761. Whether an accomplice testifies for the prosecution or, as here, for the defense, it is within the trial judge's discretion to instruct the jury to accept an accomplice's testimony with caution. (emphasis added) 440 F.2d at 1126-27.
United States v. Urdiales, 523 F.2d 1245, 1248 (5th Cir. 1976), cert. denied, 434 U.S. 1071, 98 S. Ct. 1253, 55 L. Ed. 2d 774 (1978) and United States v. Simmons, 503 F.2d 831, 837 (5th Cir. 1974), are to the same effect. In United States v. Mitchell, 385 F. Supp. 1190, 1193 (D.D.C.1974), aff'd, 181 U.S. App. D.C. 254, 559 F.2d 31 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977), Judge Sirica ruled that if an unindicted co-conspirator had been called as a witness for the defendant, the testimony of that witness would be subject to the instruction that it should be received with caution and scrutinized with care. The accomplice instruction in E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 17.06 (3d Ed. 1977), includes the suggestion that a jury be told that the testimony of an accomplice "is always to be received with caution and considered with great care." As the authors point out in section 17.06, page 533, this instruction can be used whether the accomplice testifies for the prosecution or for the defense.