United States v. Michael Newman and Frank X. Gaca. Appeal of Michael Newman

476 F.2d 733
CourtCourt of Appeals for the Third Circuit
DecidedMarch 29, 1973
Docket72-1664
StatusPublished
Cited by22 cases

This text of 476 F.2d 733 (United States v. Michael Newman and Frank X. Gaca. Appeal of Michael Newman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Michael Newman and Frank X. Gaca. Appeal of Michael Newman, 476 F.2d 733 (3d Cir. 1973).

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal by Michael Newman challenges his June 22, 1972, sentence and judgment.1 Newman, who was at the [735]*735time a City Councilman in McKeesport, Pennsylvania, had been convicted by a jury on Count I of a two-count indictment,2 which charged him with willfully procuring another person to intercept telephone conversations in violation of 18 U.S.C. §§ 2511(1) (a) and 2.3 We affirm.

The evidence adduced at Newman’s trial revealed that on March 3, 1970, Thomas Nee, a former Bell Telephone employee and a political associate of Newman, installed a tape recorder and activator on the telephone line of Mr. and Mrs. Eugene O’Neill. Nee, the chief Government witness, testified that Newman directed him to undertake the interceptions in order to collect politically useful information of the plans of Newman’s opponents (N.T. 93-94).

The interceptions continued for approximately one week. Each day Nee would service the recording device by removing the tape recorder from the telephone line and later playing the contents of the tape for Newman (N.T. 108-121). The tape recorder was discovered when Nee apparently inadvertently set it on broadcast, rather than record (N.T. 124). Nee was indicted for his participation and subsequently entered a plea of guilty.

The defendant urges each of three contentions as a basis for reversal:

I. The trial court erred when it denied him the opportunity to call the United States Attorney as a witness to impeach Nee’s credibility.
II. The trial court erred when it refused his request, made in the midst of the trial, to hear the contents of the tape found on the tape recorder. Neither the tape nor its contents were received in evidence.
III. The trial court committed plain error in its charge to the jury.

We shall consider these contentions in the above order.

I.

Newman contends that he has been denied his Sixth Amendment right to compulsory process. Specifically, he argues that the refusal by the trial court to allow him the opportunity to call the United States Attorney thwarted his efforts to impeach the credibility of Nee by showing a bargain had been reached between the Government and Nee concerning the sentence for Nee’s admitted participation in illegal electronic surveillance and his possible prosecution for perjury before the grand jury.

Newman claims Nee’s explicit denial of a bargain on cross-examination4 was [736]*736inconsistent with the following statement made by the United States Attorney during a conference outside of the presence of the jury (“he” refers to Nee):

“He indicated if we indicate our good faith as best we can that he will disclose these facts at that time and we will then proceed to prosecute those persons who are responsible, but he has a Fifth Amendment right to I think avoid getting into those other offenses.” (N.T. 146)

Newman reads that statement to suggest that Nee had agreed to testify about previous wiretaps he had undertaken involving persons not connected with the trial in return for preferential treatment. However, the record, as a whole, makes clear that the United States Attorney’s statement does not support that contention. Nee, instead of agreeing to testify in future trials, “steadfastly refused to tell about them because he [was] in genuine fear of physical harm” (N.T. 145). The reason behind the out-of-court discussion, as the prosecutor made clear, was a concern that the court, by one of its questions, had opened the door to cross-examination concerning the details of the previous wiretaps. The United States Attorney felt that if Nee refused to answer the questions and relied on his Fifth Amendment right to remain silent, his credibility would be damaged.5

[737]*737In the alternative, Newman suggests the United States Attorney’s statement may be read as a suggestion that Nee had agreed to disclose other facts in prosecutions against other persons in return for an indication of good faith by the prosecutor not to prosecute him for his possible previous perjury before the Grand Jury. This suggestion is equally misplaced. The court conducted a lengthy discussion out of the hearing of the jury, where the prosecutor denied the existence of any bargains, and he emphasized that his office had not reached a decision on whether to prosecute Nee for perjury.6

Although this court has consistently held that defense counsel has available the right to show that the testimony of a Government witness was given in reliance on a promise of a lighter sentence, or other preferential treatment, United States v. Murray, 445 F.2d 1171, 1174 (3d Cir. 1971); e. g., [738]*738United States v. Migliorino, 238 F.2d 7 (3d Cir. 1956), the district court has wide discretion with respect to the examination of witnesses. Hayes v. United States, 329 F.2d 209, 218 (8th Cir. 1964). It may properly refuse to allow the defense to call the prosecutor if it does not believe that “he possesses information vital to the defense.” Gajewski v. United States, 321 F.2d 261, 268-269 (8th Cir. 1963); cf. Fisher v. United States, 231 F.2d 99 (9th Cir. 1956); see also United States v. Maloney, 241 F. Supp. 49 (W.D.Pa.1965).

The decision in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 765, 31 L.Ed.2d 104 (1972), does not aid Newman’s claim that the district court’s refusal to allow him to call the United States Attorney mandates a new trial. The rationale underlying the Court’s determination in Giglio is inapplicable to the facts presented in this record. Giglio dealt with evidence of a promise of freedom from prosecution for a key government witness, discovered after the trial, which was inconsistent with explicit denials of leniency made both by that witness and the prosecutor during the trial. In that situation, the Court felt, the suppression by the prosecutor’s office of what was material evidence deprived the defendant of his due process rights as guaranteed in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L. Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Giglio, supra, 405 U.S. at 154-155, 92 S.Ct. 765.

Here, however, there is no evidence that the prosecutor suppressed evidence.

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Bluebook (online)
476 F.2d 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-newman-and-frank-x-gaca-appeal-of-michael-newman-ca3-1973.