U.S. v. Shoup, 79-1391

• Decision Date: 26 October 1979
• Docket Number: No. 79-1391,79-1391
• Citation: 608 F.2d 950
• Parties: UNITED STATES of America v. Ransom F. SHOUP, II, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 950

608 F.2d 950

UNITED STATES of America v. Ransom F. SHOUP, II, Appellant.

No. 79-1391.

United States Court of Appeals Third Circuit.

Argued Sept. 6, 1979.

Decided Oct. 26, 1979.

Stephen R. Bolden (argued), Fell, Spalding, Goff & Rubin, Kirk T. Karaszkiewicz, Broderick & Karaszkiewicz, Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Div., Philadelphia, Pa., Robert L. Herbst, Asst. U. S. Atty., Deputy Chief, Sp. Prosecutions Div., Chicago, Ill., William E. Ball (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Ransom F. Shoup II was convicted by a federal jury on one count of conspiring with Edward Goldsmith ¹ to defraud the United States and to obstruct justice, 18 U.S.C. § 371 (1976), and on one count of willfully attempting to obstruct justice, 18 U.S.C. § 1503 (1976). The district court sentenced Shoup to three years probation on each count, to be served concurrently, and also imposed a $5,000 fine on each count. Shoup filed a timely appeal.

I.

This case arises out of a federal investigation of possible voting fraud in the November 7, 1978 Philadelphia general election. Considerable controversy and public interest accompanied the election, largely because of a proposal on the ballot that would have amended the Philadelphia Home Rule Charter to permit the mayor to remain in office for more than two terms. The election was marred by widespread malfunctioning of voting machines, the breakdowns occurring primarily in wards where sentiment was running against the proposed charter change. Immediately after the election, the United States Attorney for the Eastern District of Pennsylvania and a federal grand jury began to investigate whether there had been deliberate attempts to tamper with the voting machines, and thereby to deprive citizens of their constitutionally protected right to vote. The next day, the United States Attorney hired Shoup, the owner of a voting machine manufacturing and repair company, to aid in the investigation. Shoup, in turn, employed eleven experts to assist him. Edward S. G. Dennis, the Assistant United States Attorney in charge of the investigation, instructed Shoup to inspect the machines in question and to prepare a written report containing his findings and conclusions.

Shoup had completed and typed a draft of his report by November 20, 1978. On November 21, he took a copy to Goldsmith, a former chairman of the Camden County Board of Elections. Goldsmith testified that, at their meeting, Shoup explained the nature of the report and told him that "Commissioner Marge" was under investigation. "Commissioner Marge" is Margaret M. Tartaglione, chairwoman of the Philadelphia City Commissioners. The City Commissioners are responsible for overseeing elections in Philadelphia, monitoring the polling places, and purchasing and repairing voting machines.

According to Goldsmith, Shoup asked him whether he knew Tartaglione and whether he would take a copy of the report to her so that she could review it and recommend changes to Shoup. Shoup then asked Goldsmith if he thought Shoup could obtain Philadelphia voting machine business by permitting Tartaglione to review and change the tone of the report; Goldsmith replied that he thought Shoup could obtain such business. ²

Goldsmith agreed to arrange a meeting between Tartaglione and Shoup, and thereafter delivered a copy of the report to Tartaglione. Goldsmith told Tartaglione to review the report and to advise Shoup if she had any changes. He told Tartaglione that Shoup would make any additions or deletions that she requested, and added that Shoup would be very good to her. ³ On November 27, Tartaglione's lawyer notified the United States Attorney of Goldsmith's actions. With Tartaglione's consent, the F.B.I. attached a recording device to her telephone. On November 29, Tartaglione called Goldsmith to ask whether Shoup had submitted the report to the United States Attorney. Goldsmith called Shoup who stated that he had not yet submitted the report, but was going to do so that afternoon. Goldsmith then informed Tartaglione of this, and Tartaglione quickly set up a luncheon meeting with Shoup for that day.

Prior to her meeting with Shoup, and again with her consent, the government equipped Tartaglione with a recording device. At the meeting, Shoup told Tartaglione that he had not yet submitted his report. When Tartaglione replied that there were portions that could hurt her, Shoup offered to reword the report "to soften it up some." ⁴ The two then agreed to several language changes. Tartaglione asked Shoup why he had given her a copy of the report; Shoup replied that Goldsmith was close to Mayor Errichetti of Camden, and that Goldsmith and Errichetti wanted Tartaglione to see it. Shoup explained:

Well, I, I think what their feeling is that you're close with Rizzo therefore and the mayor over there is close with Rizzo therefore if there was anything that could be detrimental, they would rather it be stricken before it got released, I guess. ⁵

At the close of their meeting, Shoup told Tartaglione: "So what I'd like is, you know, I never saw you and I'd rather that just disappear as far as the copy is concerned." ⁶

Two days after the luncheon meeting with Tartaglione, Shoup submitted his final report to the United States Attorney. Three sections were changed as follows:

(1) Draft Report page 1: "A Complete lack of maintenance was evident on all machines."

Final Report page 1: "A lack of maintenance was evident on all machines."

(2) Draft Report page 2: "Excessive delay in the response of the mechanics to the polling place in answer to a service call (As long as six hours )."

Final Report page 2: "Excessive delay in the response of the mechanics to the polling place in answer to a service call."

(3) Draft Report page 2: "The mechanics which answered the service calls could not properly diagnose the problem. A back-up mechanic would then be called; however, as many as four back-up mechanics had to be called before the problem could be resolved. It is obvious that mechanics were not qualified to resolve the service calls. A qualified mechanic should have corrected most of the problems within a few minutes after his arrival."

Final Report page 2: "The mechanics which answered the service calls, In some cases, could not properly diagnose the problem. A back-up mechanic would then be called; however, as many as four back-up mechanics had to be called before the problem could be solved."

(4) Draft Report page 2: "A Complete Lack of maintenance was evident on all voting machines."

Final Report page 2: "A lack of maintenance was evident on all voting machines." ⁷

Shoup never informed the United States Attorney of his meetings with Goldsmith or Tartaglione. The government claims that, in light of Shoup's conduct, it was forced to hire another voting machine expert to complete its investigation.

Shoup raises a number of contentions on appeal: (1) The evidence adduced at trial was insufficient to establish a conspiracy to defraud the United States. (2) There was insufficient evidence to prove an obstruction of justice or a conspiracy to obstruct justice. (3) It was legally impossible for Shoup to commit the offenses of which he was convicted. (4) In its charge to the jury, the district court failed to define correctly the elements of a conspiracy to defraud the United States. (5) The district court erred in its entrapment instruction, because the charge might have caused the jurors to believe that Shoup's defense was based exclusively on entrapment. (6) It was error for the district court to permit the prosecution to introduce testimony by an assistant United States Attorney that the government was forced to hire a new voting machine expert as evidence that the government was harmed by Shoup's actions.

When, on appellate review, there is a charge that the evidence is insufficient to support a verdict, the verdict "must be sustained if there is substantial evidence, taking the view most favorably to the government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). After considering Shoup's contentions under this standard, as well as assessing his charges that the district court committed various legal errors, we affirm.

II.

In considering a conspiracy under § 371, a court must be mindful that the statute is a broad one, and that there is a danger that prosecutors may use it arbitrarily to punish activity not properly within the ambit of the federal criminal sanction. ⁸ Thus, indictments brought under § 371 must be carefully scrutinized. Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). With this admonition in mind, we approach Shoup's first contention namely, that there was no proof of a conspiracy because there was inadequate evidence of an agreement to defraud the United States.

To establish a conspiracy under § 371, the prosecution must prove three elements: (1) the existence of an agreement, (2) an overt act by one of the conspirators in furtherance of the objectives, and (3) an intent on the part of the conspirators to agree, as well as to defraud the United States. ⁹

In United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), the Supreme Court declared that "the law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon is actually committed." ¹⁰

The indictment here alleged that Shoup and Goldsmith conspired to defraud the United States by agreeing to deprive the government of the benefits to which it was entitled under the...