U.S. v. Russo

• Citation: 104 F.3d 431
• Decision Date: 14 January 1997
• Docket Number: No. 96-3031,96-3031
• Parties: , 46 Fed. R. Evid. Serv. 456 UNITED STATES of America, Appellee, v. Robert L. RUSSO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 431

104 F.3d 431

322 U.S.App.D.C. 388, 46 Fed. R. Evid. Serv. 456

UNITED STATES of America, Appellee, v. Robert L. RUSSO, Appellant.

No. 96-3031.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 1996.

Decided Jan. 14, 1997.

Appeal from the United States District Court for the District of Columbia (95cr00097-01).

Robert L. Tucker, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

William D. Weinreb, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese, III, and Thomas J. Motley, Assistant U.S. Attorneys.

Before: WILLIAMS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Illinois congressman Daniel D. Rostenkowski allegedly placed people on the congressional payroll who did no official work, or very little. In 1993, a grand jury investigating the congressman subpoenaed Robert L. Russo, a congressional employee who worked part-time for Rostenkowski from 1976 to 1987. During those 11 years Russo received federal wages totaling $90,000. Asked about the nature of his work, Russo--testifying under a grant of immunity--said he spent several hours cleaning the congressman's Chicago district office five days a week, every other week. Russo denied that anyone else cleaned the Chicago office in those years. Both statements, an indictment later charged, were false. A jury convicted Russo of perjury (18 U.S.C. § 1623(a)), and obstruction of justice (18 U.S.C. § 1503), and the district court sentenced him to ten months' imprisonment and a fine.

Of the three issues Russo raises in this appeal from his conviction, two relate to the district court's rulings excluding defense evidence. We will begin with them.

I

The evidence at trial directly contradicted Russo's grand jury testimony. The government called Rostenkowski's "regular" office cleaners to the stand. From them, the jury learned that Russo cleaned the Chicago district office--or "ward office," as it was known--only on alternate Tuesday evenings, or perhaps another evening or two, but not every day every other week. These workers knew Russo and he knew them. They worked together occasionally and they discussed matters relating to the cleaning of the ward office. The Chicago office manager was unsure how often Russo cleaned the congressman's office, but she knew that others made up the regular daily cleaning crew.

The government sought to establish that the $90,000 paid to Russo in the 11 years was more for the work of his wife Irene as the Rostenkowski housekeeper, than for Russo's work at the congressman's office. The prosecutor, in his opening statement, promised that the jury would "hear evidence that Mrs. Russo was the cleaning person for the family." Some of the evidence consisted of the testimony of Rostenkowski's former son-in-law, who said he saw Irene cleaning the congressman's house on a regular basis from 1979 to 1988. The government also sought to counter Russo's explanation to the grand jury that his wife worked for free at the Rostenkowki home because she liked to help people. In his opening statement, the prosecutor referred to Irene's bronchial asthma condition, which caused her to quit her employment several years earlier, and questioned whether someone in that condition would have cleaned the congressman's house because "she enjoys doing it." The prosecutor then connected her alleged housekeeping to Russo's congressional salary, and asked the jury the "$90,000 question": "Why are you really getting the $90,000 here, Mr. Russo?" In his closing argument the prosecutor returned to the same theme:

Another thing he said is that Irene Russo cleaned for free. Step back for a moment 10 to 15 years. Someone cleaning for free, does that comport with your common experiences, that someone would clean someone else's house for that long a period of time, never get any money, never getting paid? He said that's the way his wife was.

The first ruling to which Russo objects relates to Rita Kusek, Irene Russo's friend for 25 years. The defense called Kusek to testify about Irene's "penchant for cleaning over the years," and about her observations of Irene doing this without charge. When the district court barred the testimony on the ground that it was "totally irrelevant," defense counsel made a proffer. Kusek would describe Irene's spending several days helping put up the wallpaper in Kusek's house; and would say, based on her experience, that "Irene is sort of a cleaning freak. She kind of likes to do that." Defense counsel added that although Irene's propensity to clean may not initially have been relevant to Russo's indictment for perjury (he was charged only with lying about his own work), the matter became significant in light of the prosecutor's mocking Russo's grand jury testimony that his wife "liked to clean, she just likes it, she enjoys it, she likes helping people." The court reiterated its decision that the testimony was irrelevant.

Relevant evidence is "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." Federal Rule of Evidence 401. The Advisory Committee's Note to Rule 401 tells us that relevancy "exists only as a relation between an item of evidence and a matter properly provable in the case." The first step in determining relevancy, therefore, is "to identify the 'matter properly provable.' " United States v. Foster, 986 F.2d 541, 545 (D.C.Cir.1993). In performing this task, the judge must take account of the relationship of the evidence offered to the evidence already admitted. Some matters are properly provable only because the opposing party has made them such.

If, for instance, the prosecution had presented nothing about Irene Russo's serving for free as Rostenkowski's housekeeper, Kusek's testimony would have been of no consequence. But it became of consequence when the prosecution sought to bolster its case by offering the jury a reason why the congressman would have paid Russo more than he actually earned. The government's desired inference--that the $90,000 represented, in large measure, compensation for Irene's services--also impugned Russo's credibility in the grand jury. There he had testified, as the trial jury knew, that his wife helped Mrs. Rostenkowski clean, and that she did so without compensation because she is "a very helpful individual" who "just likes to help people."

It was therefore proper for Russo to put on evidence contrary to the government's suggested inference. As in Foster, 986 F.2d at 545, the Kusek evidence fell within Wigmore's principle of "explanation": "every evidentiary fact or class of facts may call for two processes and raise two sets of questions: (1) the admissibility of the original fact from the proponent, and (2) the admissibility of explanatory facts from the opponent." 1A JOHN H. WIGMORE, EVIDENCE § 36, at 1004 (Tillers rev.1983). In the words of Rule 401 the "fact that [became] of consequence to the determination of the action" was Irene's expectation of compensation for cleaning the Rostenkowski home. The prosecutor tried to convince the jury that Irene would not have worked for nothing. Rita Kusek would have given evidence that Irene sometimes did just that. In the words of Rule 401, Kusek's testimony would have made it "more probable" than without evidence that Irene cleaned for free. And if the jury found that she worked all those years without expecting compensation, this would have tended to undercut the government's theory about why the congressman paid Russo so much.

Trial judges, of course, are not expected to provide detailed explanations for each of their evidentiary rulings. The judge must decide, often in a flash, if the answer to a question, or a document, or some other kind of exhibit, would make something in the case more probable or less probable than it would otherwise be. Precedent, logic, experience and just plain "feel" may play a role in the decision. This is not to suggest that there are degrees of relevancy. An item sought to be introduced may have little probative value or it may have a great deal. But as Rule 401 defines it, the item is either relevant or it is not; there is no in-between. Foster, 986 F.2d at 545. Nonetheless, Federal Rule of Evidence 103(a) instructs us that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ....", and Federal Rule of Criminal Procedure 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." See also 28 U.S.C. § 2111.

Here the district court stated one ground, and one ground only, for refusing to admit Kusek's testimony--it was irrelevant. Rather than trying to defend the court's ruling on that basis, the government invokes another ground for exclusion. The argument is that admitting Kusek's testimony would have violated Federal Rule of Evidence 404(a). With exceptions not pertinent here, "[e]vidence of a person's character is not admissible for the purpose of proving action in conformity therewith on a particular occasion...." F ED R. E VID. 404(a). This opens up another set of questions. Rather than offer answers, we shall give Russo the benefit of all legal doubts. We will, in other words, assume that the testimony about Irene's penchant for cleaning was offered for "a consequential, material proposition, rather than to prove an act," and therefore did not come "within the prohibition of [Rule 404(a) ]." J ACK B. W EINSTEIN & M ARGARET A. B ERGER, W EINSTEIN'S E VIDENCE § 404, at 404-18 (1996). We will also assume...