In the case at bar, Joseph argues that the government's proofs failed to establish that his activities had the requisite impact on interstate commerce and, therefore, that the Court was without jurisdiction to hear the matter. We disagree.
The government's proof included a series of "GI" exhibits, each of which showed that the enterprise affected interstate commerce. GI 1, 2, 3 and 4 are requisition slips prepared by defendant and sent to the county purchasing agent who then procured supplies in interstate commerce. Joseph argues that since he neither directly purchased nor requested that the goods be obtained in interstate commerce, that he did not have any effect thereon. This argument misconstrues the interstate aspect of the RICO statute which requires that the enterprise, rather than defendant's enterprise activities, affect interstate commerce. As we previously observed, a defendant's racketeering activity "need not affect interstate commerce; rather, the named enterprise, not the individual defendant, must be engaged in or affecting interstate commerce." United States v. Joseph, 510 F. Supp. 1001, 1003 (E.D.Pa.1981) (emphasis in original). Cf. United States v. Rone, 598 F.2d 564, 573 (9th Cir. 1979) (the government must show a "nexus of the enterprise to interstate or foreign commerce, albeit minimal", to satisfy the requirement). Requisitions by the Clerk's office for supplies subsequently purchased in interstate commerce suffices to meet the alleged jurisdictional defect. United States v. Altomare, 625 F.2d 5, 8 (4th Cir. 1980).
Additionally, GI 5 is a qualified power of attorney from International Fidelity Company, an out-of-state insurance company, dated October 18, 1977, and filed six weeks thereafter in the Clerk's office. The document appoints Speetles as Lehigh County agent and evidences an interest on behalf of that company to be liable for bonds written by its agent.
GI 6 is a revocation of Allied Fidelity Corporation's power of attorney previously executed on behalf of Speetles. Importantly, this document was mailed from, and notarized in, Indiana.
Joseph argues that these powers of attorney are incompetent to prove the enterprise's impact on interstate commerce since the out-of-state insurance companies registered with the Pennsylvania Insurance Commissioner and because collections made from such companies were taken out of intrastate "build up" funds which bondsmen maintain. The attempt to metamorphosize an out-of-state company into a wholly intrastate operation, based solely upon its registration with the Commonwealth, is a feat of legal alchemy unsupported by the record. Likewise, defendant's argument regarding the intrastate "build up" fund is misplaced. True, when successful collection actions were taken against bonds, the insurance company paid its debt from the agent's in-state fund. However, the out-of-state company stood behind that fund and was liable for debts which exceeded the fund's assets. Hence, both GI 5 and 6 satisfy the interstate jurisdictional requirement and we will deny defendant's motion for arrest of judgment.
Defendant's final motion, requesting a new trial, argues that a plethora of pre-trial and trial errors compel the relief which he seeks.
Initially, Joseph argues that statements made prior to his arrest and pursuant to FBI questioning were "confessions" or "self-incriminating" remarks, 18 U.S.C. § 3501(e), triggering the full panoply of rights delineated by 18 U.S.C. § 3501. Those rights include a hearing outside of the presence of the jury to determine whether the confession was voluntary; where a court finding of voluntariness is made, the jury must then be instructed on that issue. These protections apply only to confessions made while under arrest or subject to "other detention". 18 U.S.C. § 3501(d). The defendant did not allege at trial, and does not now charge, that he made incriminating statements under arrest or subject to detention.
The evidence reveals that defendant had numerous pre-indictment contacts with the FBI. Some of these occurred in his own office while others were at the FBI offices in Allentown, Pennsylvania. Each meeting was arranged in advance. The FBI told Joseph that he could have an attorney present when they spoke and that he could conclude any conversation with them by simply walking away. Hence, Joseph was not "under detention" when he made incriminating statements and rights protected by § 3501 were not offended.
Moreover, although we do not have the benefit of a transcript to guide us and, notwithstanding our hesitation to rely on judicial memory which may be "unclear" at times, United States v. Williams, No. 81-154 (E.D.Pa. September 28, 1981), slip op. at 2, our notes reflect argument in chambers regarding the voluntary nature of Joseph's statements. Further, that portion of the charge which instructed the jury that they are the sole judges of the facts, that they alone must judge the credibility of the witnesses and determine the weight to be given to testimony, satisfies the duty to charge on the issue of voluntariness. United States v. Panepinto, 430 F.2d 613, 618 n. 15 (3d Cir. 1970), cert. denied, Orangio v. United States, 400 U.S. 949, 91 S. Ct. 258, 27 L. Ed. 2d 256 (1971); see also United States v. Williams, 484 F.2d 176, 178 (8th Cir.), cert. denied, 414 U.S. 1070, 94 S. Ct. 581, 38 L. Ed. 2d 475 (1973). We also note that defendant failed to object to the charge as it related to the voluntariness of any confession. Fed.R.Crim.P. 30. Hence, even if § 3501 applies, the Court properly discharged its statutory obligation to determine the issue of voluntariness outside the presence of the jury and to properly instruct them on that issue.
Defendant also assigns as error our refusal to charge the jury on points 1-6 which consisted of handwritten points submitted after the government closed and based upon state law. For the reasons discussed infra, namely, that state law does not control a RICO case, we properly denied the points. An additional reason which we gave was that Fed.R.Crim.P. 30 requires that points be submitted "at the close of evidence or at such earlier time ... as the court ... directs". Failure to observe the rule makes it difficult for opposing counsel to "intelligently argue his case to the jury (since he does not know) what the court's instructions will be". United States v. Gallagher, 576 F.2d 1028, 1043 (3d Cir.), cert. denied, 444 U.S. 1040, 100 S. Ct. 713, 62 L. Ed. 2d 675 (1978). Since the points were untimely submitted, we affirm our trial ruling that they were properly denied.
Defendant also challenges the admission of various bribes consisting of undisclosed amounts of money and on dates unspecified in the indictment. Specifically, Joseph complains that Speetles' direct testimony of 30 or 40 payments to defendant violated a prior court order requiring the government to re-allege paragraph 5(d) of the indictment with the same degree of particularity as contained in paragraphs 5(a) and (b). We further ordered that failure to do so would bar proof thereof at trial. United States v. Joseph, 510 F. Supp. at 1006. Our prior order, however, was in the context of a motion for a bill of particulars filed by defendant in an effort to "flesh out" paragraph 5(d) of the indictment which broadly alleged bribe receipts from 1977 to 1979. Our order effectively prohibited the government from introducing substantive proof of those payments absent particularization. Prior to trial the government filed a bill of particulars which it subsequently amended. Testimony regarding the particularized allegations was properly introduced as substantive proof. Testimony of the unparticularized bribes placed the particularized bribes into a general context, plan or scheme and were admissible. Fed.R.Ev. 404(b). Had the government been unable to particularize paragraph 5(d) we would have barred the admission of testimony on that count if offered as substantive proof since it would have been of insufficient quality upon which to predicate a conviction.
Additionally, our notes reveal that all counsel agreed to the following cautionary instruction to the jury:
in connection with the evidence, you will recall that Robert Speetles testified that he paid sums of money to the defendant on 30 or 40 occasions and thus went beyond the specific charges for which the defendant has been indicted. Such evidence was admitted solely for the purpose of establishing motive, intent, plan or scheme and not for the purpose of proving the specific charges in the indictment. Therefore, you shall not consider that evidence in determining guilt or innocence of the specific crimes charged in the indictment. As we previously charged, the defendant is not on trial for any act or conduct not alleged and charged in the indictment.
Given this limiting instruction, we believe that the challenged portion of Speetles' testimony was properly admitted. United States v. Pantone, 609 F.2d 675, 682 (3d Cir. 1979); United States v. Goichman, 547 F.2d 778, 782 (3d Cir. 1976).
We now turn to defendant's next contention, that government counsel conducted themselves improperly during the trial. This argument is based upon an allegation that the government's closing contained improper remarks and that their rebuttal went beyond the scope of defendant's closing. Considering the first allegation, the government, in closing, properly commented upon the evidence. At one point, however, the government rhetorically asked the jury why was it that the defendant had not brought in others to corroborate his testimony. Immediately, upon motion for a mistrial, the Court instructed the jury that a defendant is never required to produce any evidence and that the burden of proof is always on the government. As to the charge that the government's rebuttal went beyond the scope of defendant's five-hour closing, our notes reveal to the contrary.
Finally, we have reviewed the remainder of defendant's points raised in support of his motion for a new trial and find them lacking in merit.
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