United States v. Bazzano

570 F.2d 1120

• Court: Court of Appeals for the Third Circuit
• Decided: December 21, 1977
• Docket: Nos. 76-2584 to 76-2588 and 76-2628
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal from judgments of conviction of six defendants raises two principal issues: (1) whether the district court erred in failing to grant a new trial because of prosecutorial misconduct in allowing the grand jury testimony of Government witness Moody to be read to Government witness Stanizzo and the grand jury testimony of Stanizzo to be read to Moody prior to trial, and (2) whether defendant Bazzano was denied the right to effective assistance of counsel with regard to sentencing because the district court failed to disclose published sentencing guidelines. After careful consideration, we have concluded that the contentions raised by the defendants do not justify reversal of the convictions.

I.

The defendants were convicted of operating an illegal gambling business¹ or aiding and abetting the operation of an illegal gambling business,² and conspiring . 'to obstruct state law enforcement relating to gambling.³ The gambling business, a numbers game, was conducted in the towns of Clairton and Elizabeth, Pa. All the defendants who participated' in the illegal gambling business, except Bazzano, were public officials.

The evidence adduced by the Government was voluminous and a brief summary of it will suffice. Basically, the evidence was of two types: adding machine tapes proven to be business records of the gambling operation, and testimony by a number of witnesses who had been involved in the gambling operation. The evidence established that Bazzano had run the gambling operation and that the other defendants accepted payments from the gambling operation in exchange for letting the operation continue without interference.

Mrs. Elizabeth Stanizzo, a former employee of the gambling operation, extensively detailed the illegal gambling business. Mrs. Stanizzo had known defendant Bazzano for 20 years, and her late husband had been Bazzano’s partner in the business. She testified that Bazzano ran the gambling operation and that the other defendants received payments from the operation. Another witness, Moody, corroborated some of Mrs. Stanizzo’s testimony. Moody, who for a time was part owner of the operation, testified that he had worked for Mr. Staniz-zo in the business and that Mr. Stanizzo had dealt with Bazzano. A former Allegheny County detective, Hammer, testified that he had accepted protection payments from numbers writers in the Clairton area. His testimony also corroborated some of Mrs. Stanizzo’s testimony.

Defendant Matz was the Mayor of Clair-ton. Testimony indicated that Matz allowed Bazzano to operate the numbers business in Clairton and that Matz received payment from one of Bazzano’s employees. The adding machine tapes indicate that payments were made to “Mayor.”

There was sufficient testimony to support the jury’s verdicts convicting the other public official defendants as indicated in the footnote.⁴

II.

The charge of prosecutorial misconduct stems from a meeting between two witnesses, Moody and Stanizzo, and F.B.I. Agent Fitzpatrick, who had investigated the case.

When Moody, who was testifying under immunity, took the stand, he requested to speak with the judge in chambers. In chambers, with counsel present, Moody stated that a few days before he was to testify, Fitzpatrick read Moody’s grand jury testimony to Mrs. Stanizzo and read Mrs. Stanizzo’s grand jury testimony to Moody. Defense counsel immediately moved for a mistrial or, in the alternative, that both Moody and Mrs. Stanizzo “be dismissed as witnesses and not called by the government” (N.T. IX — 63). The court denied the motions after oral arguments and Moody was allowed to testify.

On cross-examination, defense counsel questioned Moody about the meeting with Fitzpatrick. He testified that Fitzpatrick read selected pages of each witness’ grand jury testimony in the presence of both witnesses (N.T. IX-133). He also testified that, in his opinion, Fitzpatrick “doctored” Moody’s testimony with Mrs. Stanizzo’s so that their stories would be the same (N.T. IX-133-34).

Mrs. Stanizzo was also cross-examined on this subject, and her account differed from Moody’s. She testified that Fitzpatrick did not read any of her grand jury testimony, but, rather, told her that he did not have to read it to her because she knew what she had said. She testified that he read from some papers to Moody in her presence.

After Mrs. Stanizzo’s testimony, the defendants moved that her testimony be stricken on the ground that the meeting with Fitzpatrick violated F.R.Crim.P. 6(e) and constituted prosecutorial misconduct. Defendants also moved for a dismissal of the indictment on the same grounds. The motions were denied. The defendants again press this argument in this court, claiming that the conduct in violation of Rule 6(e) denied them a fair trial.

We hold that at least some of the conduct testified to was prosecutorial misconduct violative of Rule 6(e), but that this conduct did not constitute reversible error.

F.R.Crim.P. 6(e) provides in part:

“Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule.”⁵

The language pertinent here is: “Disclosure . may be made to attorneys for the government for use in the performance of their duties” and an “attorney . may disclose matters . . . only when so directed by the court . . . Thus, we are faced with two questions: Did the Government attorney use the material in the performance of his duties? Did the Government attorney disclose matters without court direction?

In answering the first question, we need not decide the issue of whether it is proper for material to be disclosed to an F.B.I. agent working for the Government attorney. The 1977 amendment to Rule 6(e) was enacted to permit such disclosure.⁶ Assuming, arguendo, that such a disclosure was proper under the earlier version of Rule 6(e) applicable here,⁷ the F.B.I. agent cannot use the disclosed material in a manner which is not permissible for the Government attorney. The scope of authority of the F.B.I. agent, acting as an agent for the Government attorney, is limited to the scope of authority of the Government attorney. Cf. Restatement of Agency, 2d, § 20. Apparently, in this case, if Moody’s testimony was accurate, the Assistant United States Attorney, perhaps knowingly, used the F.B.I. agent as a conduit to disclose the grand jury testimony of two of the Government witnesses to each other prior to trial.

The defendants do not object to the disclosure by the agent to a grand jury witness of that witness’ testimony,⁸ but the objection is to the verbatim disclosure of Mrs. Stanizzo’s testimony to Moody, and vice versa, in an attempt to “shape” their trial testimony so that each witness’ testimony will corroborate the other’s. These facts are distinguishable from a pre-trial interview in which the prosecutor indicates to a witness in general terms the evidence which other witnesses may give. In this latter situation, the interview may be conducted without disclosure of specific statements made to the grand jury, and therefore Rule 6(e) would not be involved. Furthermore, when potential trial witnesses who testified before the grand jury are not identified by name, there is no violation of the purpose of Rule 6(e) to encourage witnesses to testify without fear of retaliation. See, e. g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). Finally, such a pre-trial interview may simply serve to refresh a witness’ memory rather than improperly to influence his testimony. As the Supreme Court has stated, “an attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3, 96 S.Ct. 1330, 1336, 47 L.Ed.2d 592 (1976). Of course, at times the line between refreshing a witness’ memory and seeking improperly to influence his testimony may be difficult to draw, and each case must be decided on its facts. We merely hold that on the particular facts of this case, if the agent read Moody’s testimony verbatim to Mrs. Stanizzo in an attempt to “shape” Mrs. Stanizzo’s trial testimony to coincide with Moody’s, the agent’s conduct fell on the impermissible side of the line. Therefore, on Moody’s account, the Government attorney’s use of grand jury material went beyond the proper use of that material in the performance of his duties.⁹

With regard to the second question (1127 above), through the F.B.I. agent, the Government attorney disclosed grand jury testimony without court direction, if Moody’s testimony was accurate. Therefore, the Government attorney, perhaps unknowingly, violated Rule 6(e). However, as noted below, there were credibility difficulties with Moody’s testimony. Although we find the violation of Rule 6(e) as testified to by Moody improper, we do not think the defendants were denied a fair trial under the facts presented by this record.

First, Moody’s and Mrs. Stanizzo’s accounts of what occurred at the meeting with Fitzpatrick differed: Moody claimed that Fitzpatrick attempted to “doctor” the testimony and read each witness’ testimony to the other witness. Mrs. Stanizzo testified that Fitzpatrick merely read from some papers, presumably a portion of Moody’s testimony,

9a to Moody in her presence, but made no attempt to coach her or to tell her what to say. Of course, even given Mrs. Stanizzo’s version of the conduct if the papers read were grand jury transcripts, the conduct violates Rule 6(e), but on this version the conduct is not as egregious as the misconduct alleged by Moody. The trial judge could have believed Mrs. Stanizzo’s account rather than Moody’s, and we cannot say his decision to believe her account was erroneous. There is evidence in the record that Moody, who was being forced to testify under immunity, did not want to testify and was using this incident as a convenient way to avoid testifying and to avoid implicating his friends. Throughout his testimony he exhibited a hostility toward the Government. N.T. IX-67, 109, 123. Consequently there is reason to be suspicious of the accuracy of Moody’s account of the meeting and to accept Mrs. Stanizzo’s account, as the fact finder could conclude that she was a more disinterested witness.

10

Secondly, the trial judge found that the witnesses’ testimony “varied in a number of respects, and all the circumstances militate against any inference that the testimony of Moody and Mrs. Stanizzo was ‘shaped’ . .” United States v. Bazzano, Crim.No. 75-192, slip op. at 8-9 (W.D.Pa., Nov. 9, 1976). Having carefully reviewed the record, we find ample support for this position. Thus, the trial judge was acting well within his discretion in allowing these witnesses to testify.

Third, because there is ample evidence to support the view that any attempt to shape the witnesses’ testimony was unsuccessful, we think the evidence of improper influence affects the credibility, not the admissibility, of the testimony, see Geders v. United States, 425 U.S. 80, 89-90, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974), and, of course, the credibility of witnesses is a question for the jury. See, e. g., United States v. Hill, 449 F.2d 743, 743 n.3 (3d Cir. 1971). Moody, Mrs. Stanizzo, and Fitzpatrick were cross-examined vigorously about the meeting at which the grand jury testimony was read by Fitzpatrick. Therefore, the jury was fully apprised of all three accounts and was able to weigh the credibility of Mrs. Stanizzo accordingly.¹¹ As the Supreme Court has stated: “The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966).¹²

Finally, even assuming that Mrs. Stanizzo’s testimony was tainted by improper influence, her testimony was still not sufficiently harmful to require reversal. The only defendant who attempts to show that he was prejudiced by Mrs. Stanizzo’s testimony is Matz, who claims that he was implicated by her trial testimony but was not implicated by her grand jury testimony. Even if Mrs. Stanizzo’s testimony regarding Matz had been stricken, there would have been sufficient evidence to convict Matz because the tapes indicated that he received bribes and there was ample evidence that whenever the tapes indicated that a person received bribes, that person did receive bribes. Therefore, even if it had been error to admit Mrs. Stanizzo’s testimony regarding Matz, it would have been harmless error beyond a reasonable doubt.¹³

We emphasize that our holding that the prosecutorial misconduct in violation of Rule 6(e) does not require a new trial is limited to the facts of this case. Under other circumstances, for example, when a witness appears to have changed his or her testimony as the result of some improper influence or when the evidence against the defendants is not as strong as it is here, a violation of Rule 6(e) may well require a new trial.

III.

Defendant Bazzano contends that the district court denied him effective assistance of counsel during sentencing because the trial judge referred to published sentencing guidelines but failed to provide those guidelines to defense counsel or to make them part of the record. We find this argument unpersuasive.

Counsel did not request to see the sentencing guidelines or to have them made part of the record at the time of sentencing. Nor did Bazzano raise the issue of ineffective assistance of counsel in his post-trial motions. This court will not pass on issues not raised in the district court “unless the error be so fundamental in nature as to deprive a party of fundamental justice.” United States v. Moore, 453 F.2d 601, 604 (3d Cir. 1971).¹⁴

We do not think failure to disclose the sentencing guidelines deprived Bazzano of fundamental justice. Bazzano was sen-fenced to seven years’ imprisonment and fined $40,000. The maximum sentence possible was 35 years’ imprisonment and $140,-000. in fines.¹⁵ Therefore, the sentence was well within the statutory maximum. See United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972). Moreover, the guidelines referred to by the trial judge, entitled Part 2 — Parole, Release, Supervision and Recom-mitment of Prisoners, Youth Offenders and Juvenile Delinquents, are published at 28 C.F.R. §§ 2.1-2.58, and often cited by this court. See, e. g., United States v. Somers, 552 F.2d 108 (3d Cir. 1977); United States v. Salerno (appeal of Silverman), 538 F.2d 1005 (3d Cir. 1976).¹⁶ Since the guidelines should be familiar to anyone practicing criminal law in this Circuit and since they have been published in the Code of Federal Regulations, they were readily available to defense counsel.

IV.

We have considered these other contentions of one or more defendants and reject them:

A. Where it is established that the prosecutor failed to furnish exculpatory statements of many witnesses who were called to testify, the district court should have conducted a hearing and required the production of statements and grand jury testimony of other witnesses whom the Government did not call to testify to determine whether additional exculpatory evidence or evidence which would tend to negate the guilt of defendant had been withheld from counsel for defendant as alleged in the motion for new trial.¹⁷

B. The district court erred in failing to instruct the jury that certain witnesses are available to the Government where the Government may grant them immunity but not available to the defendant and, therefore, the inference that their testimony would be adverse to the Government is a permissible one which the jury may draw.¹⁸

C. The district court erred in failing to grant a hearing at which the grand jury testimony of the F.B.I. agent would be introduced to show that the indictment was returned on hearsay rather than on substantive testimony of witnesses.¹⁹

D. The evidence is not sufficient to sustain the verdict and the court should have granted defendants’ motion for judgment of acquittal.²⁰

E. The court erred in admitting into evidence the adding machine tapes which (1) consisted of inadmissible hearsay statements, and (2) denied the defendant his constitutional right to confront and cross-examine witnesses against him.²¹

The defendants make several other contentions which, after consideration, we also reject.²²

The judgments of the district court will be affirmed.

1 . 18 U.S.C. § 1955 provides in pertinent part:

“Prohibition of illegal gambling businesses

“(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.

“(b) As used in this section—

(1) ‘illegal gambling business’ means a gambling business which—

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

“(2) ‘gambling’ includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.”

2 . 18 U.S.C. § 2(a) provides:

“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”

3 . 18 U.S.C. § 1511 provides in pertinent part:

“Obstruction of State or local law enforcement

“(a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement of the criminal laws of a State or political subdivision thereof, with the intent to facilitate an illegal gambling business if—

“(1) one or more of such persons does any act to effect the object of such a conspiracy;

“(2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and

“(3) one or more of such persons conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business.

“(b) As used in this section—

“(1) ‘illegal gambling business’ means a gambling business which—

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

“(2) ‘gambling’ includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels, or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.

.....

“(d) Whoever violates this section shall be punished by a fine of not more than $20,000 or imprisonment for not more than five years, or both.”

4 . Defendant Guffey was the Chief of Police of Clairton. While he held this office, no gambling arrests were made in Clairton. The tapes indicated that protection payments were made to “Chief Clairton.”

Defendant Poljak was the Chief of Police of Elizabeth. There was testimony that the people operating the gambling business made payments to Poljak. The tapes indicated that payments were made to “Elizabeth Chief” and “Elizabeth Constable.”

Defendant Ward was the Justice of the Peace of Clairton. The tapes indicated that payments were made to “Ward” and to “J. P.” Testimony established that “J. P.” referred to the Justice of the Peace of Clairton.

Defendant Peter Orsini was a Constable in Clairton. The tapes indicated that protection payments were made to “Pete,” “Pete Orsini,” and “Pete Orsi.” Testimony established that one of the operators of the gambling operation directed an assistant to give an envelope to Orsini. He accepted it without comment.

5 . Rule 6(e) was amended on July 30, 1977, to read, in part, as follows:

“Secrecy of Proceedings and Disclosure.—

“(1) General Rule. — A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph 2(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court.

“(2) Exceptions.—

“(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grant juror, may be made to—

(i) an attorney for the government for use in the performance of such attorney’s duty; and

(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law.

“(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.

“(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—

(i) When so directed by a court preliminarily to or in connection with a judicial proceeding; or

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.”

Pub.L.No.95-78, 91 Stat. 319 (1977).

Of course, for purposes of this appeal, we must apply the rule as it existed at the time of trial and at the time the misconduct occurred.

6 . See note 5, supra. See [1977] U.S.Code Cong. & Admin.News, pp. 527-536, for the legislative history of the amendment.

7 . Neither party cites, nor does our research disclose, any decision under the original version of Rule 6(e) directly addressing the question of the propriety of disclosure of grand jury material by a United States Attorney to personnel of another Government agency helping him prepare for trial. The courts, however, have generally permitted disclosure to such personnel when they are assisting the United States Attorney in conducting a grand jury investigation and working under his supervision. See, Coson v. United States, 533 F.2d 1119, 1120-21 (9th Cir. 1976); United States v. Evans, 526 F.2d 701, 707 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976); United States v. Hoffa, 349 F.2d 20, 43 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464, 475-77 (E.D.Pa.1971); United States v. Zirpolo, 288 F.Supp. 993, 1015 (D.N.J.1968), rev'd on other grounds, 450 F.2d 424 (3d Cir. 1970). The Eighth Circuit has required an order prior to disclosure even in these circumstances. United States v. Universal Mfg. Co., 525 F.2d 808, 812-13 (8th Cir. 1975). The Third Circuit has held that it is improper to disclose grand jury material to another federal agency for use by that agency in civil proceedings to enforce an administrative order. In re Grand Jury Proceedings, 309 F.2d 440, 444 (3d Cir. 1962).

8 . The decided cases which we have found on this point approve the disclosure, prior to trial, to a witness of his grand jury testimony. United States v. Heinze, 361 F.Supp. 46, 57 (D.Del.1973); King v. Jones, 319 F.Supp. 653, 657 (N.D.Ohio 1970); United States v. American Radiator & Standard Sanitary Corp., 45 F.R.D. 477 (W.D.Pa.1968). See Bursey v. United States, 466 F.2d 1059, 1081 (9th Cir, 1972); United States v. Rosen, 353 F.2d 523, 524 (2d Cir. 1965); In re Russo, 53 F.R.D. 564, 10 Crim.L.Rep. 2145, 2147 (C.D.Cal.1971).

9 . We think the Code of Professional Responsibility and the ABA Standards Relating to the Prosecution Function are relevant to a prosecutor’s duty in this context. Ethical Consideration 7-13 of the Code of Professional Responsibility states: “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” The commentary to the ABA Standards Relating to the Prosecution Function, Standard 1.1 at 45, states: “Although the prosecutor operates within the adversary system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.”

In United States v. Crutchley, 502 F.2d 1195 (3d Cir. 1974), which held that if the Government transcribes the grand jury testimony of any witness it must transcribe the testimony of all such witnesses, this court recognized the importance' of preventing the grand jury system from being used in a way that puts the defense in an unequal position at trial. See Crutchley, supra at 1200. However, no restraint was placed on the cross-examination of Moody, Mrs. Stanizzo and Fitzpatrick (see, for example, N.T. X-45, etc.). See page 1127, below.

. Fitzpatrick testified that he “went over” Moody’s testimony with him in Mrs. Stanizzo’s presence and “went over” Mrs. Stanizzo’s testimony with her in Moody’s presence. N.T. X-45.

10 . The following are excerpts from Moody’s discussion in chambers and testimony:

“Your Honor, I don’t want to get on the stand and testify.” N.T. IX-57.

“I didn’t want immunity.”

Question (by Assistant U.S. Attorney): “Were you granted immunity?”

A: “Yes, against my rights.”

Q: And you were ordered to testify?”

A: “Yes, I was ordered to, either that or go to jail for 18 months.” N.T. IX-66.

“I am not here of my own free will.” N.T. IX-68.

“I will go to jail before I put any of these guys [the defendants] in jail.” N.T. IX-141.

11 . Geders, supra, concerned the possibility of the “coaching” of a defendant by a defense counsel when the defendant testified in his own behalf. We think that the principles announced by the Court in that context are applicable here, where the issue concerns the possibility of improperly influencing a Government witness. The Court stated:

“The opposing counsel in the adversary system is not without weapons to cope with ‘coached’ witnesses. A prosecutor may cross-examine a defendant as to the extent of any ‘coaching’ during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant’s credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.”

Id. at 89-90, 96 S.Ct. at 1336.

In United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974), the court held that where there was evidence that police officers testifying for the Government had fabricated their testimony, it was a function of the trier of fact to determine the credibility of these witnesses.

12 . See also United States v. Henderson, 422 F.2d 454, 456 (9th Cir. 1970) (“Where . . . the trial court allows the defendant broad latitude to probe the informant’s background and motives by cross-examination, the question is one of credibility to be determined by the trier of fact.”); Bush v. United States, 126 U.S.App.D.C. 174, 176, 375 F.2d 602, 604 (1967).

13 . F.R.Crim.P. 52(a) provides: “Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” See United States v. Baily, 164 U.S.App.D.C. 310, 313, 505 F.2d 417, 420 (1974), cert. denied, 420 U.S. 961, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975) (no harm caused by court’s acceptance of evidence without preliminary ruling on admissibility when the evidence against the defendants was otherwise overwhelming).

14 . See also United States v. Dansker, 537 F.2d 40, 64 (3d Cir. 1976); United States v. Provenzano, 334 F.2d 678, 690 (3d Cir. 1964). F.R.Crim.P. 52(b) states: “Plain error or defects affecting substantial rights may be noted although they were not brought to the attention of the court.”

15 . Bazzano was convicted of one count of violating 18 U.S.C. § 1955, see note 1, supra, carrying a maximum sentence of five years’ imprisonment and a $20,000. fine, and six counts of violating 18 U.S.C. § 1511, see note 3, supra, also carrying a maximum sentence of five years’ imprisonment and a $20,000. fine for each count.

16 . The guidelines were adopted in 1973 and amended effective May 5, 1976. See 41 Federal Register 19326 (1976). Silverman, supra, contains an extensive discussion of the guidelines. The guidelines were also applied by this Circuit in Hill v. Attorney General of the United States, 550 F.2d 901 (3d Cir. 1977). Other circuit courts of appeals also have discussed the guidelines extensively. See, e. g., Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977); Kills Crow v. United States, 555 F.2d 183 (8th Cir. 1977); Kortness v. United States, 514 F.2d 167 (8th Cir. 1975).

17 . Brief for appellant Bazzano at 15.

18 . Id. at 24.

19 . Id. at 25.

20 . This contention is made by all defendants except Bazzano. Brief for appellant Guffey at 19-23; brief for appellants Ward and Orsini at 2-12; brief for appellant Poljak at 11-12; brief for appellant Matz at 19-20.

21 . This contention is raised by all the defendants except Bazzano and Poljak. Brief for appellant Guffey at 3-11; brief for appellants Ward and Orsini at 15-17; brief for appellant Matz at 9-10.

22 . Guffey and Matz contend that the court erred in denying their motion for severance from prejudicial joinder. Brief for appellant Guffey at 12-18; brief for appellant Matz at 14-16. Ward, Orsini and Matz contend that a violation of the order sequestering witnesses prevented a fair trial. Brief for appellants Ward and Orsini at 13-15; brief for appellant Matz at 7. Ward and Orsini contend that the Government failed to prove specific charges and that the district court erred in failing to require the Government to elect between 18 U.S.C. § 1511 (see note 3, supra) and 18 U.S.C. § 1955 (see note 1, supra). Brief for appellants Ward and Orsini at 17-20. Poljak and Matz contend that the district court erred in admitting the hearsay testimony of F.B.I. Agent Fitzpatrick of a statement made by Gary Pas-tore, a deceased, alleged co-conspirator. Brief for appellant Poljak at 27-29; brief for appellant Matz at 8, 11-14. Poljak contends that the district court erred in refusing to dismiss the indictment at the conclusion of the Government’s case, in failing to confer with defense counsel prior to answering the last question raised by the jury during its deliberations, and in refusing to grant the motion to suppress evidence obtained through an allegedly defective search warrant. Brief for appellant Poljak at 22-23. Matz contends that a new trial is required by prosecutorial misconduct before the jury, brief for appellant Matz at 8, that the court erred in failing to grant his motion for a continuance, id. at 4, and that “the cummulation of events” described below constitute unfairness requiring a new trial (id. at 17-18):

“1. He was required to stand trial in a complicated multi-defendant conspiracy case with counsel who had been appointed on the day that jury selection was to begin.

“2. He was prevented from securing the needed and desirable expert testimony because of the shortness of time.

“3. He was refused the right to be tried alone, despite the fact that most of the activities described by the prosecution testimony took place long after Matz could have been a part of the alleged conspiracy and after manifest prejudice in the joint trial became apparent.

“4. The witness who sponsored the tape exhibits and the witness who testified to an alleged payment were surreptitiously and unlawfully coached by the prosecution through the violation of the secrecy of the grand jury.

“5. The trial court admitted a hearsay declaration of the decedent Pastore which was made long after the time when Matz is accused of conspiring and in violation of the Bruton principle.

“6. The prosecutor intentionally abused the Bruton principle in the presence of the court and jury in attempting to place before the jury the Pastore statement concerning Matz.

“7. And the court failed or refused to recognize appellant’s rights through the grant of post trial motions.”