854 F.2d 1483 (3rd Cir. 1988), 87-5096, United States v. Asher

Docket Nº:87-5096, 87-5213.
Citation:854 F.2d 1483
Party Name:UNITED STATES of America v. ASHER, Robert B., Appellant.
Case Date:July 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1483

854 F.2d 1483 (3rd Cir. 1988)

UNITED STATES of America

v.

ASHER, Robert B., Appellant.

Nos. 87-5096, 87-5213.

United States Court of Appeals, Third Circuit

July 20, 1988

Argued Oct. 20, 1987.

Reargued April 11, 1988.

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William G. Hundley (argued), Larry S. Gondelman (argued), Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for appellant.

James J. West (argued), U.S. Atty., Harrisburg, Pa., for appellee.

Before HIGGINBOTHAM, SLOVITER and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge.

This appeal is from a conviction that arose out of events transpiring in the context of contract negotiations between officials of the Commonwealth of Pennsylvania and CTA, Limited ("CTA"), a California corporation that specialized in recovering overpaid Social Security taxes ("FICA") for

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businesses and their employees. 1 Appellant Robert B. Asher ("Asher"), former Chairman of the State Republican Committee, R. Budd Dwyer ("Dwyer"), former Treasurer of the Commonwealth, and William T. Smith, Jr. ("Smith"), an attorney in private practice and the former Republican Party Chairman of Dauphin County, Pennsylvania, were involved in a scheme to accept bribes from John R. Torquato, Jr. ("Torquato"), a CTA official, in exchange for awarding a FICA recovery contract to CTA.

As a result of the scheme, Asher was convicted by a jury of one count of conspiracy to violate the federal mail fraud and interstate transportation in aid of racketeering ("ITAR") statutes, in contravention of 18 U.S.C. Sec. 371 (1982); on five counts of mail fraud, in contravention of 18 U.S.C. Sec. 1341 (1982); on three ITAR counts, in contravention of 18 U.S.C. Sec. 1952 (1982); and on one perjury count, in contravention of 18 U.S.C. Sec. 1623 (1982). He was sentenced to concurrent one year and one day prison terms on each count and was ordered to pay fines and special assessments amounting to $205,050.

On appeal, Asher argues that his mail fraud, conspiracy and perjury convictions must be overturned in light of the Supreme Court's recent decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). 2 He also claims that the district court's instructions to the jury constituted an impermissible amendment of the government's indictment. Asher's final claim is that the district court abused its discretion in allowing a prosecution witness, Smith, whose credibility had not been attacked by Asher, to read into evidence a written statement that Smith made in 1984 for purposes of negotiating immunity.

We are not persuaded by either of the first two of Asher's arguments and thus will not vacate his conviction on these grounds. Moreover, while we find merit in Asher's final argument, we are satisfied that the district court's ruling to admit Smith's prior consistent statement amounts to harmless error when viewed in conjunction with the remaining evidence adduced by the government. Accordingly, we will affirm the district court's order of March 20, 1987, which denied Asher's motion for judgment of acquittal or, in the alternative, for a new trial.

I.

Robert B. Asher was elected Chairman of the Republican Party of the Commonwealth of Pennsylvania in 1983. Soon thereafter, he received a telephone call from William T. Smith, who was calling on behalf of his client John Torquato. Smith was seeking Asher's assistance in arranging a meeting between Torquato and Robin Ross, a representative of Richard Thornburgh, who at the time was Governor of the Commonwealth of Pennsylvania. When Asher learned that Ross was not available, he set up a meeting between Torquato and John Pierce, who also worked for the Governor.

On the day of the meeting with Pierce, Smith and Torquato first stopped at Asher's office in Harrisburg. They explained to Asher that FICA recovery provided an easy--and, to the Governor, a beneficial--way for Pennsylvania to recover a significant amount of money for itself and its state employees. 3 Smith and Torquato expressed

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to Asher their hope that the Governor's office would award CTA the contract to perform such recovery. At Asher's trial, Torquato testified that, during this meeting with Asher, Smith had specifically mentioned that CTA would make a $300,000 campaign contribution, to be divided equally among the Treasurer, the Treasurer's re-election campaign, and the Republican State Committee, if CTA was awarded the contract.

The Governor's office failed to award the FICA recovery contract for state employees to CTA. Thereafter, in a sequence of events that is not directly related to this appeal, the Pennsylvania state legislature enacted legislation that removed authority to award FICA recovery contracts from the Governor and granted that authority to the state Treasurer, who, at the relevant time, was Dwyer. That legislation was subsequently signed into law by Governor Thornburgh. 4

Smith and Torquato next met with Asher to discuss FICA recovery in March 1984. At that time, CTA was pursuing a FICA recovery contract for teachers and other school district employees. Smith and Torquato explained to Asher that, due to the new legislation, any state checks representing FICA refunds would be signed by Dwyer. They also explained the obvious political benefits to the Republican party.

Torquato testified that, at this March 1984 meeting, he and Smith informed Asher that Smith and Dwyer had previously agreed that CTA, in order to secure the FICA recovery contract, would make "campaign contributions" of $300,000. Smith, on the other hand, testified that Asher had learned before this meeting of Smith's offer to Dwyer, and that Asher was the one who brought it up at the meeting.

After this meeting, Smith called Asher on numerous occasions, seeking his aid in getting Dwyer to meet with CTA to negotiate a contract. Ultimately, CTA was officially awarded the FICA recovery contract for approximately $5,000,000 on May 10, 1984, despite a significantly lower bid from Arthur Young, Inc. (a nationally recognized accounting firm) to perform the same services. Throughout this period, Torquato was sending Asher carbon copies or blind copies of Torquato's CTA-related correspondence.

In July 1984, the FBI began to investigate CTA and the circumstances under which the FICA recovery contract was awarded. 5 Thereafter, Torquato decided to cooperate with the government and pleaded guilty to one count of conspiracy. Smith, who had been indicted in the meantime, attempted to negotiate immunity from prosecution in exchange for his cooperation. The government refused to grant Smith immunity. Smith proceeded to trial. In his testimony, he denied offering campaign contributions to Dwyer or to Asher. Asher and Dwyer testified for the defense

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at Smith's trial. 6 Smith ultimately was convicted and sentenced to twelve years in prison. Thereafter, the government threatened to indict Smith's wife and law partner, Judy Smith. At that point, Smith agreed to cooperate with the government in exchange for its promise not to prosecute his wife and in the hope of reducing his own sentence. 7

Asher and Dwyer were indicted on May 13, 1986. They were tried together in Williamsport, Pennsylvania. On December 18, 1986, the jury returned guilty verdicts against each defendant on the conspiracy, mail fraud, ITAR, and perjury counts. On January 27, 1987, as previously noted, the district court sentenced Asher 8 to concurrent prison sentences of one year and one day on each count, and imposed fines totalling $205,000 plus a mandatory special assessment of $50. App. at 1562-63. The district court subsequently granted Asher's motion for release on bail pending appeal, United States v. Asher, Crim. No. 86-00088-02 (M.D. Pa. February 6, 1987), but denied Asher's motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) or, in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33.

II.

Asher's first, and most troubling, claim on appeal is that the Supreme Court's recent decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which was filed after Asher had been convicted, requires that we vacate his convictions on all counts. Although McNally dealt solely with the proper scope of the mail fraud statute, 9 and thus would directly affect only the mail fraud and conspiracy to commit mail fraud counts of Asher's conviction, Asher claims that his ITAR and perjury convictions were prejudicially tainted by his wrongful mail fraud and conspiracy convictions.

In reviewing the district court's order, we are bound by McNally, despite the fact that it was decided after Asher's trial had been completed and was therefore unavailable to the district court. See Ashcraft v. Tennessee, 322 U.S. 143, 156, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 170 (3d Cir.1982); Zichy v. City of Philadelphia, 590 F.2d 503, 508 (3d Cir.1979). See also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past.").

As this court has recently stated, "if ... jury instructions [in a pre-McNally case] allowed conviction for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and a defect affecting [the defendant's] due process rights." United States v. Piccolo, 835 F.2d 517, 519 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). However, "when determining the effect of a...

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