United States v. Charles T. McMahon

938 F.2d 1501, 34 Fed. R. Serv. 516, 1991 U.S. App. LEXIS 16742, 1991 WL 137807
CourtCourt of Appeals for the First Circuit
DecidedJuly 29, 1991
Docket90-1427
StatusPublished
Cited by56 cases

This text of 938 F.2d 1501 (United States v. Charles T. McMahon) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles T. McMahon, 938 F.2d 1501, 34 Fed. R. Serv. 516, 1991 U.S. App. LEXIS 16742, 1991 WL 137807 (1st Cir. 1991).

Opinion

COFFIN, Senior Circuit Judge.

Appellant, Charles McMahon, was convicted of conspiracy to commit extortion, attempt to commit extortion, several counts of using a facility in interstate commerce (the telephone) to promote unlawful activity, and making false material declarations before a grand jury. He asserts a variety of errors at his trial. We affirm.

I. Background

In 1985, James Proko sought approval of his proposed Honda dealership from the *1503 Salem, New Hampshire planning board. Prior to the meeting at which the plan was to be discussed, Proko was contacted by William Hicks, a wealthy retired car dealer. Hicks claimed to control the votes of the planning board and demanded $10,000 from Proko to assure approval of the site. Pro-ko called the FBI.

Under FBI supervision, Proko continued to engage in negotiations with Hicks and attempted to get Hicks to reveal the identities of those board members whose votes he allegedly controlled. Hicks never singled out any person. He eventually was tried and convicted of extortion, and his conviction was affirmed on appeal. At the time of his incarceration, Hicks finally implicated McMahon, a member of the planning board who used to work for Hicks, alleging that McMahon had needed money and had planned the whole affair. The grand jury returned a seventeen-count indictment against McMahon.

Hicks claimed that McMahon had asked him to approach Proko and had consulted with Hicks on the ensuing negotiations. Telephone toll records reflected multiple telephone calls between Hicks and McMahon during the two weeks between May 28 and June 12, 1985. On June 11, during the meeting to approve the plan, McMahon raised multiple objections to the proposed plan. At the last minute, after a motion to approve the plan had been made, he suddenly claimed to remember the potential applicability of a Salem ordinance requiring that sellers of used cars not be located within 2,000 feet of one another. McMahon noted that Rogers’ service station, which was principally located in the next township of Windham but straddled the Windham/Salem town line, sold some used cars. McMahon questioned whether the ordinance would be applicable if the cars were sold from that portion of the land located in Salem. He ultimately proposed approving the plan, contingent on the outcome of the township attorney’s review. Ten days later, the township attorney issued his opinion that the ordinance was inapplicable.

Although McMahon claimed to have remembered the ordinance only at the end of the meeting, the government introduced testimony from the planning director, Ross Moldoff, that immediately before the meeting he had overheard McMahon attempt to recruit another board member, George Salisbury, to help him block the plan. Another board member also testified to the content of a note he observed McMahon pass to Salisbury at the beginning of the meeting that referred to blocking the plan based on the 2,000-foot ordinance.

McMahon eventually was convicted on all but one count of the indictment. On appeal, he raises four preserved errors. First, he argues that the district court erred when it refused to allow the defense access to Salisbury’s grand jury testimony. Second, he complains that evidence of his financial condition was improperly admitted. Third, he suggests that evidence of the contents of the note that he allegedly passed at the planning board meeting was improperly admitted. Fourth, he asserts that the evidence was insufficient as a matter of law to support conviction. McMahon also raises a number of unpreserved claims and suggests that he was denied the effective assistance of counsel.

II. Preserved Errors

A. Witness Grand Jury Testimony

McMahon argues that he was deprived of his Sixth Amendment right to a fair trial and his Due Process right when he was denied access to the grand jury testimony of his key witness, George Salisbury. During cross-examination, the government referred to Salisbury’s grand jury testimony and attempted to impeach Salisbury by using a copy of the transcript. At several points, Salisbury was asked to read from his testimony. During this cross-examination, the defendant renewed his pretrial request for a copy of Salisbury’s grand jury testimony. The district court denied the motion, relying on United States v. Hicks, 848 F.2d 1, 4 (1st Cir.1988).

In Hicks, this court held that a defendant is not entitled to examine the grand jury testimony of potential witnesses who are *1504 not called to testify. The court held that if the defense has the ability to interview the witness and discover exculpatory information, the government is not meaningfully suppressing that information. The court specifically observed in dicta, however, that “if the defendant does call the witness at trial, and the witness’ trial testimony could be refreshed or impeached by the grand jury testimony, the defendant should have access to the earlier statements.” Id. at 4 (emphasis added) (citing United States v. Ruggiero, 472 F.2d 599, 605 (2d Cir.1973)). In this case, not only could the witness be impeached and have his recollection refreshed, the government actually showed the grand jury transcript to the witness during cross-examination. The language from Hicks, therefore, suggests that McMahon should have been entitled to review Salisbury’s grand jury testimony once the government had used it to cross-examine.

The Supreme Court repeatedly has recognized the importance of secrecy in grand jury proceedings, even after, as in this case, the grand jury has concluded its function. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). The Court has identified several factors underlying the tradition of secrecy:

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Id. at 219, 99 S.Ct. at 1673. In determining whether to break that traditional secrecy, parties seeking disclosure must show “that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Id. at 222, 99 S.Ct. at 1674.

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Bluebook (online)
938 F.2d 1501, 34 Fed. R. Serv. 516, 1991 U.S. App. LEXIS 16742, 1991 WL 137807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-t-mcmahon-ca1-1991.