The opinion of the court was delivered by: MUIR
I. Introduction and Procedural History.
Currently pending before this Court is William T. Smith's motion for judgment of acquittal and in the alternative for a new trial. On October 22, 1984, a sixteen count indictment was returned against two corporate and five individual Defendants including William T. Smith. Smith's trial began on March 26, 1985 and ended on June 24, 1985 when the jury returned a verdict of guilty on counts 1, 2, 3, 7, 9, and 12 through 15. Count 1 charged conspiracy; counts 2, 3, and 7 charged mail fraud under 18 U.S.C. § 1341; counts 9 and 12 through 15 charged interstate transportation in aid of racketeering under 18 U.S.C. § 1952(a)(3).
II. Evidence Regarding Multiple Conspiracies.
Smith argues that he is entitled to a judgment of acquittal or a new trial because the Government did not prove a single conspiracy as charged in count 1 of the indictment but instead it proved several smaller conspiracies. He also contends that there is a variance between the events charged in the indictment and the proof at trial which was prejudicial to him.
The Court must grant a motion for judgment of acquittal ". . . if the evidence is insufficient to sustain a conviction" of the offenses charged in the indictment, Rule 29(a) Fed.R.Crim.P. The standard of review is whether, viewing the evidence in the light most favorable to the Government, the jury's verdict is supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), United States v. Delerme, 457 F.2d 156, 160 (3d Cir. 1972). The issue on a motion for acquittal is whether this Court has reason to believe that there was sufficient evidence on which reasonable persons could find Smith guilty beyond a reasonable doubt; United States v. Pratt, 429 F.2d 690 (3d Cir. 1970), United States v. Leach, 427 F.2d 1107 (1st Cir. 1970).
In considering a motion for a new trial, "The Court . . . may grant a new trial . . . if required in the interest of justice." Rule 33 Fed.R.Crim.P. Unlike a motion for judgment of acquittal, the motion for new trial is based upon the weight of the evidence, and the Court may weigh evidence and consider the credibility of witnesses. United States v. Pepe, 209 F. Supp. 592, 595 (D. Del. 1962), aff'd per curiam, 339 F.2d 264 (3d Cir. 1964). The motion for new trial is addressed to the discretion of the Court and the power to grant a new trial on the ground that the verdict is against the weight of the evidence should only be invoked in exceptional cases. Wright, Federal Practice & Procedure: Criminal 2d § 553.
Smith contends that the evidence showed that there were three separate conspiracies embracing Allegheny County, the City of Pittsburgh, and the Commonwealth of Pennsylvania and that Smith was not a member of the two conspiracies involving Allegheny County and the City of Pittsburgh. Smith alleges that the evidence showed three separate mail fraud conspiracies rather than the one conspiracy described in Count 1 of the indictment and also showed three separate conspiracies to violate 18 U.S.C. § 1952 which prohibits interstate transportation in aid of racketeering, rather than the single conspiracy charged in count 1 of the indictment. The evidence was that Smith and others attempted as part of one overall scheme to influence state and local public officials to award FICA recovery contracts to a California corporation, XET, Ltd. d/b/a/ CTA Ltd., and that Smith was working for and on behalf of the corporation with John Torquato who was the moving force behind the scheme. Torquato testified that Smith knew about and assisted Torquato's activities in bribing public officials, that bribes were paid to and goods and services rendered to members of the Scanlon family, Robert Rade Stone, President of the Pittsburgh City Council, and other officials in connection with said scheme. Smith knew that stock in the corporation known as COM-MAX was being delivered to state, city, and county officials as bribes.
Torquato testified that he discussed with Smith that COM-MAX stock or stock options had been delivered to David Herbert, the above-mentioned State Director, Robert Rade Stone, President of the Pittsburgh City Council, Scott R. O'Donnell, Chief Clerk to the Commissioners of Allegheny County, and Ronald Schmeizer, Director of Finance of the City of Pittsburgh. It would appear that these public officials were told by Torquato that the money from the state, county, and city FICA recoveries would be used to fund and enhance the COM-MAX Corporation. When there were rumors of an investigation, Defendant Smith created yet another company known as Application Software Systems to conceal the prior delivery of COM-MAX stock to those public officials and to make it more difficult to establish a connection between COM-MAX and CTA. Smith formed this company with full knowledge of its purpose in furthering the single conspiracy. The evidence introduced during Smith's trial showed beyond a reasonable doubt that Smith was guilty of involvement in one conspiracy involving the awarding of FICA recovery contracts to CTA, Ltd.
Smith argues that there is a variance between the events as charged in the indictment and the proof offered at trial which prejudices a substantial right of Smith and cites United States v. Camiel, 689 F.2d 31 (3d Cir. 1982) as authority for this argument. Camiel is distinguishable from this case. In Camiel, the Court held that the evidence showed the existence of two or perhaps even four distinct schemes to defraud, that the evidence was insufficient to support a finding of one scheme and entered a directed verdict of acquittal. The Court applied the doctrine set forth in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946) which held that in order for a trial judge to reverse a jury conviction in a mail fraud scheme case, (1) there must be a variance between the indictment and the proof and (2) the variance must prejudice some substantial right of the Defendant. The evidence presented during the Smith trial does not support the argument that there was a variance between the indictment and the proof. The evidence showed beyond a reasonable doubt that there was a single conspiracy; thus, there was no prejudicial variance between the facts set forth in the indictment and the proof at trial.
III. The Court's Charge Regarding Single and Multiple Conspiracies.
Smith contends that he is entitled to a judgment of acquittal or a new trial because this Court's additional charge to the jury on June 14, 1985 violated Fed.R.Crim.P. 30 and was prejudicial to Smith.
On June 11 and 12, 1985, this Court ruled on counsels' requested points for charge. We informed counsel that we would cover Smith's point 30 and Smith's supplemental point 9 which involve single and separate conspiracies. Transcript, Volume 38, p. 5, and Volume 39, p. 3. Smith's point 30 is as follows:
If you find that John R. Torquato, Jr. and others were involved in a separate conspiracy or conspiracies regarding the Allegheny County and City of Pittsburgh FICA recovery contracts in which the defendant, William Smith, was not a participant, then your verdict as to William Smith on the entire indictment must be not guilty. (authorities omitted)
Defendant Smith's supplemental point 9 is as follows:
1. The indictment alleges the existence of a conspiracy to commit mail fraud and, additionally, charges mail fraud itself. An essential element of both charges is that government prove beyond a reasonable doubt the existence of a single scheme to defraud and that the single scheme to defraud not be substantially different from the scheme charged in the indictment.
2. To convict on this aspect of the charges, each of the jurors must find that the government has proved beyond a reasonable doubt that the defendant participated in the same single scheme to defraud and the scheme to defraud in which the defendant is found to have participated is the same scheme as the fraudulent scheme alleged in the indictment. The defendant may not be convicted unless he was a willing, knowing and active participant in the particular scheme to defraud alleged in this indictment.
3. Unless the jury finds beyond a reasonable doubt that the government has proved the existence of a single scheme to defraud, as charged in the indictment, the defendant must be acquitted of the pertinent counts. (authorities omitted)
Counsel gave their closing arguments on June 12 and 13, 1985 and during those closings, no counsel raised the issue of multiple and single conspiracies. On June 13, 1985, this Court instructed the jury that the indictment charges a single scheme to defraud and Smith must have participated in such a scheme or one not substantially different, and that unless the single scheme had been proven, Smith must be acquitted of the pertinent counts. We instructed the jury as follows:
The indictment alleges the existence of a conspiracy to commit mail fraud, and additionally, charges mail fraud itself. An essential element of both charges is that the Government must prove beyond a reasonable doubt the existence of a single scheme to defraud as charged in the indictment.
A Defendant may not be convicted unless he was a willing, knowing and active participant in the particular scheme to defraud alleged in this indictment.
Unless the jury finds beyond a reasonable doubt that the Government has proved the existence of a single scheme to defraud, as charged in the indictment, the Defendant must be acquitted of the pertinent counts. The single scheme charged includes the obtaining of FICA recovery contracts from Allegheny County, the City of Pittsburgh and also the Commonwealth of Pennsylvania.
If you find that Mr. Torquato and others were involved in separate conspiracies concerning or regarding Allegheny County or City of Pittsburgh, or Pennsylvania School District FICA recovery contracts, and that the Defendant was not a participant in one or more of these separate conspiracies, then your verdict as to the Defendant on the entire indictment must be not guilty.
By separate conspiracy, I mean a conspiracy that has no connection with another conspiracy except for the fact that John Torquato, Jr., or one or more other individuals, played a role in both conspiracies.
You may, however, find that the Defendant participated in the conspiracy charged in the indictment even if that conspiracy encompassed three related subconspiracies involving different groups of individuals.
Transcript Volume 40 pp. 153-154.
At the conclusion of the charge, counsel for Smith took exception to the portion of the charge that defined separate conspiracies. Transcript Volume 40, p. 188. Smith's counsel propounded an instruction which he desired directed towards defining separate conspiracies but which in our view was defective. Because it was late in the day and it was inappropriate for the jury to start its deliberations at that time, we directed counsel to confer and attempt to agree upon adequate definitions ...