United States v. Francis P. Long, A/K/A "Red", John Hackett, A/K/A "Jack"

574 F.2d 761, 1978 U.S. App. LEXIS 12292, 3 Fed. R. Serv. 1

• Court: Court of Appeals for the Third Circuit
• Decided: March 6, 1978
• Docket: 76-2508
• Status: Published

Opinions

OPINION OF THE COURT

LACEY, District Judge.

Appellant Long was convicted by a jury in the District Court for the Western District of Pennsylvania of conspiracy, obstruction of justice, and making a false material declaration to a grand jury (perjury), in violation of 18 U.S.C. §§ 371, 1502-1503 and 1623, respectively. Long was sentenced to thirty days’ imprisonment on the conspiracy count and received a suspended sentence and three years’ probation on the remaining counts. Additionally, he was fined $25,000 and costs.

On appeal, Long makes three contentions.¹ II.III.Two of his arguments, that probable cause to issue a search warrant was lacking and that certain envelopes which contained written notations were improperly admitted into evidence at trial (Arguments II & III), we find to be totally without merit, and require no discussion. Long’s other contention is that evidence of other crimes, i. e., payoffs, was improperly admitted into evidence at trial because its probative value, if any, was substantially outweighed by its prejudicial effect. See Fed.R.Evid. 403.² This claim too we find without merit; however, given the concurring opinion’s analysis of the issues involved, a review of the evidence and of Rules 103, 403 and 404(b) of the Federal Rules of Evidence is appropriate.

THE EVIDENCE

On this appeal, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The evidence of Long’s guilt was overwhelming. Thus the jury heard evidence to the following effect: on October 16, 1974 Long, a garbage contractor, met with two North Braddock, Pennsylvania, councilmen, Irvin (who had been recently elected) and Hackett (a veteran of the political wars in the North Braddock area). Long and Hack-ett were unaware that Irvin had become an F.B.I. informant, that he had advised Special Agent Stewart of the F.B.I. that he and Hackett would receive a bribe from Long at this meeting, and that he, Irvin, had been furnished and was wearing at this meeting a concealed tape recorder which recorded the entire conversation.³

That the pay-off was made, just as Irvin had predicted, is reflected by the recording of the October 16 conference, played for the jury without objection.⁴

The cash was divided into nine envelopes (one for each councilman), and Long was heard to suggest that a “sticker” be put on them “so we’ll know that nobody touched it . .” App. 227a-228a. Long, obviously referring to the cash he had delivered to Irvin and Hackett, then implicates himself in the pay-off scheme when he is recorded as saying: “So that straightens you up to October, see and then every two months you know. . . . It’s only $120.”⁵ App. 229a.

Since Irvin and Hackett were stopped and searched, pursuant to a search warrant, by the F.B.I. immediately after leaving Long, and relieved of the nine envelopes and the cash he had given them, the defendants had to and did admit that on October 16 Long had given Hackett and Irvin a total of $2,160.⁶

Hackett, so the events (and the tapes) reveal, was a quick thinker.⁷ He immediately formed the “cover” story that Long had agreed to buy a total of 2,160 raffle tickets, evenly divided, from the nine councilmen. Unfortunately for him (and Long), their scheme was being memorialized on Irvin’s body tape recorder.

Thus the jury heard Hackett tell Irvin that the “cover” story was weakened by the “odd” figure, $2,160, and the “9 envelopes,” but “Red” (i. e., Long) “would say that he always gives us money ... for each election.” App. 241a. Hackett then tells Irvin that he will speak to Long. App. 244a. The jury also hears Hackett state to Irvin (App. 246a): “I had a feeling not to take that money. . . . ”

Within two days after the F.B.I. search, and in two separate deliveries, 2,160 raffle tickets were delivered to Long. The first delivery of 2,000 was by Hackett and Irvin. The following day Hackett’s son delivered 160 tickets to Irvin who in turn delivered them to Long. According to Irvin’s testimony, Long agreed to go along with the contrived tale.⁸

The defendants and Irvin, who was still secretly cooperating with the F.B.I., went before a federal grand jury on November 1, 1974.

The body recorder, which had not functioned on October 17 and thereafter, was once again concealed on Irvin’s person and was recording as he and Hackett drove to the federal courthouse for their grand jury appearances. The recording of this conversation was played for the jury, again without objection.

Thus the jury heard Hackett relate to Irvin that the day before (October 31) he, Hackett, had met with Long and counsel “from 12 o’clock till about a quarter after one.” One of the participants was described by Hackett as “one of the best criminal attorneys.”

8a App. 258a. The jury then heard Hackett describing what had occurred at the meeting as he and Long were being prepared for their grand jury appearances, with Hackett quoting Long (App. 260a) as the latter reviewed the raffle ticket story at this meeting.

Hackett then states to Irvin (App. 260a): “We’re fortunate Roman had those 2,000 tickets.”

The recording thereafter reflects Hackett advising Irvin how to handle before the grand jury his own part in the plot. App. 260a-265a. In what was obviously an attempt to keep Irvin “in line,” Hackett warns him (App. 265a): “. . . If they’ve been getting it for fifteen years and you’ve been getting it for one month, you’re just as guilty as they are.”

Hackett’s callousness is exemplified by his stating to Irvin (App. 270a): “Wish we was [sic] in criminal court, we’d have the fix in already.”

By his own words, as replayed for the jurors, Hackett stood before them guilty as charged. His grand jury testimony was read to them (App. 395a-448a) after they had heard the recordings and Irvin’s testimony, which reinforced and supplemented the recorded material. Hackett’s grand jury testimony faithfully follows the scenario he had unwittingly placed on Irvin’s tape recorder, on November 1, preceding the grand jury appearance.

Once Hackett’s defense crumbled, Long too was doomed in view of the interlocking of their “raffle ticket” explanations. This point is eloquently made by the fact that, while the recording of the October 16, 1974 meeting demonstrated that the subject of raffle tickets was never mentioned or discussed, the jury heard Long, in his grand jury testimony, state that it was. App. 371a-394a. Added to the jury impact of this bald inconsistency is the description of the October 31 meeting, as embodied in Hackett’s recorded conversation with Irvin on November 1, implicating Long in the cover-up. Thus Long, like Hackett, could have escaped a guilty verdict only through a gross miscarriage of justice.

THE CHALLENGED TESTIMONY

The testimony which is the subject of the claim of trial error was given by Irvin, as follows:

Q. Now, on November 1,1974, did you have lunch while waiting to go to the Grand Jury?

A. Yes, I did.

Q. Who was present at that lunch?

A. Mr. Pruchnitzky and Mr. Long.

Q. During that lunch, what conversation if any, did you have with Mr. Long concerning garbage contracts?

A. He told me at lunch that day, that he was still paying off in Duquesne, Mun-hall, Homestead and Rankin.

MR. CINDRICH: This is objected to. That is not a proper place in this trial.

THE COURT: Objection overruled.

BY MR. ROARK:

Q. What was the conversation?

A. He said he was still paying off in the Boroughs of Duquesne, Munhall, Homestead and Rankin.

App. 278a-279a.

DISCUSSION

To ascertain whether the admission of this challenged testimony amounted to reversible error, our analysis begins with Rule 103(a) of the Federal Rules of Evidence:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . .

This Rule incorporates the concept of harmless error. Given the overwhelming evidence of Long’s guilt, we have no hesitancy in stating that, assuming arguendo that the trial judge improperly admitted the challenged evidence, no “substantial right” of Long was “affected” and reversal would thus be unwarranted.

Next, we consider whether the admission of the challenged matter was error. The Federal Rules of Evidence require objecting counsel to be “specific” in stating grounds for an objection. Rule 103(a)(1). The reason for this is obvious. The trial judge is thereby alerted to the issue raised by the objection.

Long’s lawyer made what was anything but a specific objection to the evidence in question.⁹ Charitably, it may be said that, as later supplemented by him (App. 280a), his objection added up to a claim that the testimony lacked relevancy under Fed.R.Evid. 404(b).¹⁰ The trial judge found it relevant. We do as well.¹¹

Rule 404(b) does nothing more than restate what has long been the law of this Circuit, as enunciated pre-Rule, for example, in United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), that “evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.” 262 F.2d at 576.

Thus it can be said that the law of this Circuit, pre-Rule 404(b), favored admissibility of “other crime” or “bad act” evidence unless it could be said that it was being offered solely to show that a defendant had criminal propensities. Our approach put us with those jurisdictions which favored admissibility of such evidence (the “inclusion-ary” approach). Other jurisdictions took the opposite position, that such evidence was inadmissible unless it bore indicia of relevance (the “exclusionary” approach). Thus, where one came out depended upon where one went in. See Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938).

This Circuit’s pre-404(b) approach to “other crime” evidence is seen not only in Stirone, supra, but also in United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); United States v. Chrzanowski, 502 F.2d 573 (3d Cir. 1974); and United States v. Todaro, 448 F.2d 64 (3d Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 724, 30 L.Ed.2d 732 (1972).

The draftsmen of Rule 404(b) intended it to be construed as one of “inclusion,” and not “exclusion.” They intended to emphasize admissibility of “other crime” evidence. This emerges from the legislative history which saw the “exclusionary” approach of the Supreme Court version of Rule 404(b) modified. Thus the Supreme Court’s final formulation, after prohibiting evidence of other crimes to prove the character of the defendant, had provided that “this subdivision does not exclude the evidence when offered for other purposes such as . .” The list of exceptions followed. 56 F.R.D. 183, 219 (1972).

As finally adopted by Congress, however, the words are: “It may, however, be admissible for other purposes such as . .” The House Committee on the Judiciary explained that this placed “greater emphasis on admissibility than did the final Court version.” H.R.Rep.No.650, 93d Cong., 1st Sess. (1973), reprinted in 4 U.S.Code Cong. & Ad.News, pp. 7075, 7081 (1974).

That the Senate Committee on the Judiciary felt the same is shown by its statement that, “with respect to permissible uses for such evidence [i. e., ‘other crimes,’ etc.], the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i. e. prejudice, confusion or waste of time.” S.Rep.No.1277, 93d Cong., 2d Sess. (1974), reprinted in 4 U.S.Code Cong. & Ad.News, pp. 7051, 7071 (1974).

Given this approach, we have no difficulty in finding the evidence in question of substantial relevance, see 765, n. 11, supra, under Rules 404(b) and 401.

The concurring opinion takes the trial judge to task for not engaging in a neat scholarly balancing as required by Fed.R. Evid. 403, and then, doing its own Rule 403 balancing, concludes the evidence should have been barred. As to this, two comments are in order. As the concurrence recognized, Long’s counsel never invoked Rule 403, that is, he never stated that, even if the material objected to had probative value, it was “substantially outweighed by the danger of unfair prejudice.” Since the “specific” objection requirement of Fed.R. Evid. 103(a) was not complied with, the trial judge was not required to deal with Rule 403. Moreover, the dynamics of trial do not always permit a Rule 403 analysis in the detail the concurrence suggests as appropriate. While a trial judge can be helpful to an appellate court if he spells out for it such an analysis, to require a detailed balancing statement in each and every case is unrealistic. Where an objection does invoke Rule 403, the trial judge should record his balancing analysis to the extent that his exercise of discretion may be fairly reviewed on appeal.¹² However, where Rule 403 is not invoked, the trial judge’s balancing will be subsumed in his ruling.

We turn now to the Rule 403 balancing of the concurrence. If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.

As Judge Weinstein pointed out (1 Wein-stein & Berger, Weinstein’s Evidence, at 1403[01], 403-4), Rule 403, as proposed by the Supreme Court read as follows:

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

(a) EXCLUSION MANDATORY. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

(b) EXCLUSION DISCRETIONARY. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The same treatise points out that under subdivision (a) of the original formulation, the judge, under certain conditions, had to exclude the evidence, whereas under subdivision (b) exclusion rested upon exercise of the court’s discretion. Id. at H 403[02], 403-12.

In view of the revision made by Congress, and the use of “may” in the final version of Rule 403, it is manifest that the draftsmen intended that the trial judge be given a very substantial discretion in “balancing” probative value on the one hand and “unfair prejudice” on the other, and that he should not be reversed simply because an appellate court believes that it would have decided the matter otherwise because of a differing view of the highly subjective factors of (a) the probative value, or (b) the prejudice presented by the evidence. This inference is strengthened by the fact that the Rule does not establish a mere imbalance as the standard, but rather requires that evidence “may” be barred only if its probative value is “substantially outweighed” by prejudice. The trial judge, not the appellate judge, is in the best position to assess the extent of the prejudice caused a party by a piece of evidence. The appellate judge works with a cold record, whereas the trial judge is there in the courtroom.

A reversal based upon appellate disagreement with the trial judge’s balancing under Rule 403 necessarily must be founded upon highly subjective reasons, which, experience teaches us, are not always readily recognizable or definable. The dangers inherent in not understanding this are exemplified in the recently decided United States v. Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc), affirming a conviction, and vacating the previous panel decision, 544 F.2d 611, which had reversed the conviction.

The en banc court discussed the question of “what standard of review is to be applied” to Rule 403 rulings of a trial judge. The vacated panel decision had found the admission of certain evidence to be error and grounds for reversal because its probative value was, in the words of Rule 403, “substantially outweighed by the danger of unfair prejudice.” The full court took a different view, aided in so doing by the standard of review it adopted, namely, that the trial judge will be upheld “unless he acts arbitrarily or irrationally.” 560 F.2d at 515. Cited in support of this view is Construction Ltd. v. Brooks-Skinner Building Co., 488 F.2d 427, 431 (3d Cir. 1973).¹³

Because the trial judge here did not abuse his discretion in admitting the evidence in question, and for the further reason that, even if he did, the evidence of appellant’s guilt is so overwhelming that the alleged error did not affect a “substantial right,” Long’s judgment of conviction will be affirmed.

ADAMS, Circuit Judge, concurs.

1 . Appellant formulated his arguments on appeal as follows:

I. The District Court erred in denying appellant’s motions for withdrawal of a juror based upon the introduction of evidence of other alleged criminal activity.

II. The District Court erred in admitting hearsay evidence in the form of documents and testimony.

III. This District Court erred in denying appellant’s motion to suppress illegally seized evidence because the facts set forth in the affidavit to the search warrant do not establish probable cause, in that those facts were based upon the uncorroborated statements of an unnamed informant whose reliability was not properly established.

2 . Fed.R.Evid. 403 reads as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

3 . Irvin, newly elected to the North Braddock Council (App. 197a), had learned as early as March 1974 that Long had been paying off North Braddock councilmen. App. 201a-204a. In May 1974 he reported this fact to the local police chief who referred him to Special Agent Stewart; thereafter, Irvin cooperated with Stewart because “he didn’t think it was right” (i. e., councilmen getting pay-offs). App. 279a.

Pretrial motions to suppress the tapes had been denied. App. 2a.

4 . Thus Long is heard to say (App. 227a): “Just opened [sic] up the envelope, there’s two $100 bills and two $20, just check it there. I told Malley I couldn’t get that when you first called.”

5 . Hackett and Long were tried together. As a part of its case the government read to the jury the November 1, 1974 grand jury testimony of each. In the grand jury proceeding, the prosecutor embodied in a question to Hackett the language used by Long (App. 408a):

Q. Now, isn’t it a fact that the $240 was a payment to the councilmen of North Braddock, nine envelopes, one for each councilman containing $240, which would bring them up to date for their payoffs from the hauling until October?

Hackett answered: “No.”

His response is contradicted by the recording.

6 . Hackett was obviously unaware of Irvin’s cooperation with the F.B.I. Thus, immediately after the search, as he wonders how the F.B.I. had been “tipped,” he opines that “[w]e shouldn’t a said anything to anybody last night, huh.” App. 240a-241a.

7 . Hackett, on November 1, 1974, was recorded by Irvin as stating (App. 257a): “. . . I had mentioned it to Stewart when he grabbed that money, I said that’s the ticket money, I just thought real quick, ya know . . . (emphasis supplied).

8 . On October 17, 1974 when Hackett and Irvin told Long of the F.B.I. seizure on the previous day, Long stated, according to Irvin (App. 251a): “. . . we were finished. We were beat. We were sunk and he never should have never [sic] given us the money in the beginning.”

. Long’s attorney at trial and on appeal was not counsel to Long at this pre-indictment stage.

9 . The objection, which came after the answer was in, was: “This is objected to. That is not a proper place in this trial.” (App. 279a). Long’s counsel referred to no federal rule of evidence, raised no hearsay objection, and did not claim that the evidence was unreliable.

10 . Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

11 . Fed.R.Evid. 401 provides what is a very low threshold of relevancy:

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Given the advantage an appraisal by hindsight affords, we would have found particular relevancy under Fed.R.Evid. 401 in the light this testimony cast upon Long’s state of mind (i. e., knowledge and wilfulness) when he went into the grand jury room and, when asked (App. 374a): “How long have you been making payoffs or bribes to councilmen of North Braddock in return for the garbage contract that you have?”, he responded: “I have never been paying off any bribes to any community that I am doing business with.” The Indictment embodies the specific question and answer in Count IV, charging Long with lying to the grand jury.

See United States v. Kopel, 552 F.2d 1265 (7th Cir. 1977), where, convicted of extortion and perjury, the appellant argued unsuccessfully to the Court of Appeals that the government improperly introduced transcripts of a grand jury proceeding showing that appellant consulted with his attorney prior to answering the crucial questions which were the subject of the perjury counts. The court concluded, over the dissent of one judge, that evidence showing the consultation tended to prove that Kopel’s statements were made in a deliberate fashion rather than as the result of inadvertence and mistake. Citing Rule 403, the court found the evidence to be far more probative than prejudicial.

12 . The concurrence thus misinterprets our holding. Contrary to the suggestion of the concurrence, we do not “maintain . that the trial judge need not set forth the reasons for his action so long as his ruling cannot be characterized as irrational or arbitrary . (see 768, infra); nor do we hold “that the trial judge need only state that the admitted material is ‘relevant’ in order to comply with Rules 403 and 404.” (See 772, infra.)

13 . Thus this Court in Construction, Ltd. stated:

The task of assessing potential prejudice is one for which the trial judge, considering his familiarity with the full array of evidence in a case, is particularly suited. . The practical problems inherent in this balancing of intangibles — of probative worth against the danger of prejudice or confusion — call for the vesting of a generous measure of discretion in the trial judge. Were we sitting as a trial judge in this case, we might well have concluded that the pótentially prejudicial nature of the evidence . . outweighed its probative worth. However, we cannot say that the trial judge abused his discretion in reaching the contrary conclusion.

This was, of course, a pre-Rules case. Rule 403 did not change the old and well-known “prejudice” rule under which Construction, Ltd. was decided, nor has it changed the standard we applied in Construction, Ltd.