which time Parlopiano agreed to report back to the FBI on conversations he had with defendant Osticco and with Charles Cortese. Commencing in April of 1980, after he had been subjected to a body search by Osticco at Medico Industries, Parr agreed to help record these conversations and actually began to participate in such taping on May 13, 1980. During the course of his contacts, both recorded and unrecorded, Parlopiano was able to learn about jury tampering in a 1977 federal criminal trial in which Cortese's ex-wife was the lone holdout juror for acquittal, and for whose actions as a juror Cortese received both money and property.
In about December of 1979, Parlopiano learned that Cortese had been subpoenaed to testify before a federal grand jury that was investigating the jury tampering. Upon Parr's informing Osticco, Osticco said he would pay Cortese's legal expenses. Subsequently, Osticco told Parlopiano that Cortese must lie to keep himself and others out of trouble but later told Parlopiano to tell Cortese to take the fifth amendment and "keep his mouth shut." (N.T., vol. I, 26). According to Parlopiano, Cortese's invocation of the fifth amendment before the grand jury on January 3, 1980, came at Osticco's direction and Osticco reimbursed Parlopiano on each of the six or eight different times that Parlopiano gave money to Cortese.
Cortese was again subpoenaed to appear before a federal grand jury on March 7, 1980, and prior to that appearance Parlopiano and Osticco met. According to Parlopiano, he was told by Osticco that Cortese had to lie and watch what he said to avoid being prosecuted for perjury. Parlopiano relayed these admonitions to Cortese prior to his second appearance before the grand jury. Following his grand jury appearance Cortese met with Parlopiano and stated he had lied even though he had been granted immunity. At the same meeting, Cortese provided Parlopiano with a list of the questions he was asked before the grand jury. These questions were subsequently passed to Osticco.
Evidence in support of every allegation in the indictment was presented to the jury and Parlopiano was fully cross-examined by defense counsel. The court is aware that inconsistencies at times existed in Parlopiano's testimony and these have been painstakingly pointed out in detail by defense counsel. However, the government's questions to Parlopiano, even on direct examination, were geared toward giving Parlopiano the opportunity to explain any contradictions and inconsistencies, particularly as adduced from the tapes he made. In essence, this case turned around the jury assessment of Parlopiano's credibility and it is hornbook law that determinations on credibility are within the province of the fact finder. Rather than attempting to isolate portions of the record we have reviewed the testimony and recordings as a whole. Having accomplished this, we believe that the jury could conclude beyond a reasonable doubt that a conspiracy existed and that defendant, by his influence over Cortese, obstructed the proceedings of the federal grand jury. Defendant's position regarding sufficiency of the evidence is therefore denied.
III. The Jury Charge
One of the issues raised by defendant arose in conjunction with the jury charge given with respect to 18 U.S.C. § 1503, the obstruction of justice statute. Defendant has argued that the court's references to whether Cortese remained a "potential" grand jury witness were improper. What defendant has overlooked, however, as the government has pointed out, is that defendant was charged under the omnibus clause of the statute, which criminalizes the activity of one who "corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice." Therefore, any reference by the court to Cortese's likelihood of being called as a grand jury witness actually worked to defendant Osticco's benefit. In reality, whether Cortese was still a witness was somewhat irrelevant as to whether Osticco could be convicted under the omnibus clause of 18 U.S.C. § 1503. It appears that one of the problems in the case was that the word "witness" was eliminated from the first section of the statute on October 12, 1982, just one week before the indictment was returned against defendant Osticco. However, Cortese's potentiality as a witness remained an issue under the omnibus clause because one of the ways in which he could obstruct justice would be to go before the grand jury investigating the alleged jury tampering in the 1977 flood fraud trial and testify untruthfully about his knowledge thereof. A case particularly on point with regard to the present issue is United States v. Friedland, 660 F.2d 919 (3d Cir.1981), in which appellant raised an argument that an individual was not a "witness" for purposes of 18 U.S.C. § 1503. The Friedland court reasoned as follows:
Rejecting a claim identical to that advanced by appellants, the court in Falk v. United States, 370 F.2d 472 (9th Cir.1966), cert. denied, 387 U.S. 926, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967), stated: