U.S. v. Iaconetti, 974
| Decision Date | 04 August 1976 |
| Docket Number | D,No. 974,974 |
| Citation | 36 A.L.R.Fed. 734,540 F.2d 574 |
| Parties | , 1 Fed. R. Evid. Serv. 301 UNITED STATES of America, Plaintiff-Appellee, v. Harry D. IACONETTI, Defendant-Appellant. ocket 76-1034. |
| Court | U.S. Court of Appeals — Second Circuit |
David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn (Raymond J. Dearie, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff-appellee.
Leon Dicker, New York City, for defendant-appellant.
Before LUMBARD, WATERMAN and FEINBERG, Circuit Judges.
This is an appeal from a judgment of conviction entered in the Eastern District of New York after a jury trial before Judge Jack B. Weinstein. Appellant was convicted of having solicited and received a bribe in violation of 18 U.S.C. § 201(c). 1
The indictment comprised five counts, charging Iaconetti with bribe solicitation and receipt, and with attempted extortion under color of official right and by fear of economic loss, in connection with his duties as Quality Assurance Specialist for the General Services Administration ("GSA"). In this position, appellant acted primarily as an inspector, supervising the preparation and administration of contracts between GSA and private contractors who were to provide various goods and services to the federal government. The jury returned guilty verdicts on all five counts, but prior to the imposition of sentence the trial judge, for reasons set out below, dismissed the extortion counts without prejudice.
The Government proved to the satisfaction of the jury that one such private contractor, Lightalarms Electronics Corporation of Brooklyn, New York, was awarded a government contract in October, 1974, and Iaconetti was assigned to supervise that contract. There was evidence that appellant, during contract discussions with a Lou Sonner of Lightalarms, warned him that he would need a payment from Sonner of 1% of the estimated value of the contract price in order to insure that no problems would develop during the life of the contract. Sonner, fearful that failure to pay the requested sum, particularly in view of Iaconetti's statement that he would be sharing the payment with a superior in the GSA, would jeopardize all of Lightalarms' government work, discussed the matter with his partners. Iaconetti repeated these overtures several times, but no payment was ever made by Lightalarms, Iaconetti having been reassigned to a plant in New Jersey and having had no further contact with Lightalarms.
In February, 1975, Iaconetti was assigned to conduct a pre-award survey of Champion Envelope Manufacturing Company so as to assess whether Champion was capable of performing a contract which the company had successfully bid upon. Iaconetti met with Michael Lioi, President of Champion, and after indicating to him during two preliminary meetings that he had some doubt about Champion's ability fully to perform the contract, Iaconetti intimated that if Lioi would be willing to pay 1% of the contract price to him, he would assure favorable treatment for Champion by the upper echelon of GSA. This February 10 meeting ended with Lioi stating that he would have to speak with his associates.
Lioi did immediately contact his business partners Babiuk and Goldman, and later that evening, his attorney, Stern. The following morning, February 11, Lioi telephoned the FBI. On an agent's advice Lioi recorded on his own equipment his conversion with Iaconetti later that day. During that session, Lioi agreed to pay a total of $9800 to Iaconetti and to make an advance payment of $1000. Several days later, arrangements were made for Lioi and Iaconetti to meet for the payment. By this time, FBI agents had equipped Lioi with a miniature recorder and transmitter. On the afternoon of February 24, 1975, Lioi met Iaconetti as previously arranged. Appellant directed Lioi to place the $1000 in the trunk of the government vehicle Iaconetti was driving. As he closed the trunk, appellant was arrested by FBI agents. The tapes of the recorded conversations of February 11 and 24 were introduced at trial.
Iaconetti took the stand and attempted to rebut the Government's allegations and proof by contending that in fact it was Lioi who had told Iaconetti that he wished to pay him $1000 to insure Champion's receiving the GSA contract. Appellant admitted at trial, however, that after his arrest he had told FBI agents an entirely different story that in fact the entire matter with Lioi was merely a practical joke.
After conviction, Iaconetti moved for a new trial on the ground that certain of the testimony of Lioi's associate Goldman and of attorney Stern was prejudicial hearsay and thus was improperly admitted into evidence. The Government's chief witness at trial was Lioi. On cross-examination, defense counsel sought to impeach his credibility by suggesting that he in fact had initiated the scheme to pay the bribe. Iaconetti took the stand and attempted to discredit Lioi's testimony further. He testified that he scheduled the meetings after February 10 with Lioi so that he might trap Lioi, the real villain, into incriminating himself. The Government then put Stern and Goldman on the stand in rebuttal to corroborate Lioi's account of the transactions. They related Lioi's reports to them on February 10 of the statements Lioi said Iaconetti had made earlier that day; and specifically, they recounted Lioi's report to them of the money Iaconetti had requested.
Judge Weinstein denied the post-trial motion. He held that the statements either were not hearsay under Rule 801(d)(1)(B) 2 and Rule 801(d)(2)(C) 3 of the new Federal Rules of Evidence, or were properly admissible under an exception 4 to the hearsay rule embodied in Rule 803(24), F.R. of Evid. 5
Appellant now reasserts this claim of error in support of his argument for reversal and a new trial. We agree with Judge Weinstein that Stern's testimony was properly admitted under Rule 803(24), the residual hearsay exception, and that Goldman's testimony was admissible under Rule 803(24) and Rule 801(d)(2) (C). Thus concluding that the statements were properly admissible into evidence under recognized exceptions to the hearsay rule, we need not reach the additional question of whether the testimony might correctly be characterized as non-hearsay under Rule 801(d)(1)(B), the alternate basis for admissibility advanced below.
Rule 801(d)(2)(C) provides that a statement is not hearsay when it is offered against a party and was made by someone authorized by that party to make a statement concerning the subject involved. Judge Weinstein held that the statements made by Lioi to Stern and Goldman could be considered admissions by Iaconetti under this exception on the theory that by requesting a bribe from Lioi, appellant impliedly authorized Lioi to confer with his associates in order to get their permission to pay the bribe. The court below explained that by demanding the bribe Iaconetti necessarily authorized the persons who ran the business to discuss his demand among themselves. While this theory of an implied authorization might justify the admission of Goldman's statements as he was Lioi's business partner and thus would necessarily be consulted prior to Champion's payment of the requested sum to Iaconetti, the same cannot be said of Stern, Lioi's attorney. His approval would presumably not be necessary, and thus it cannot be reasonably assumed that Iaconetti would have impliedly authorized Lioi's speaking to counsel regarding the bribe.
The second basis for admissibility, Rule 803(24), provides that hearsay statements not otherwise included within any specific exception may be admitted if they have equivalent circumstantial guarantees of trustworthiness and if, in addition, they meet four specified criteria. If "(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of (the) rules and the interests of justice will best be served by admission of the statement into evidence," the hearsay may be admitted provided that...
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