U.S. v. Casoni

• Decision Date: 09 January 1992
• Docket Number: No. 90-5631,90-5631
• Citation: 950 F.2d 893
• Parties: 35 Fed. R. Evid. Serv. 1335 UNITED STATES of America, Appellee, v. Harry P. CASONI, a/k/a Pete Casoni, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 893

950 F.2d 893

35 Fed. R. Evid. Serv. 1335

UNITED STATES of America, Appellee, v. Harry P. CASONI, a/k/a Pete Casoni, Appellant.

No. 90-5631.

United States Court of Appeals, Third Circuit.

Argued Jan. 24, 1991.

Decided Dec. 12, 1991.

Rehearing and Rehearing In Banc Denied Jan. 9, 1992.

Hamilton P. Fox, III (argued), Sutherland, Asbill & Brennan, Washington, D.C., for appellant.

James J. West (argued), U.S. Atty., Martin C. Carlson, Sally A. Lied, Asst. U.S. Attys., Office of U.S. Atty., Harrisburg, Pa., for appellee.

Before BECKER and HUTCHINSON, Circuit Judges, and ATKINS, District Judge ^*.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

I.

Harry Casoni (Casoni) appeals his convictions on one count of conspiracy to commit a crime against the United States, two counts of interstate travel in aid of racketeering, one count of bribery and four counts of mail fraud. We will affirm. Casoni's convictions followed a jury trial in the United States District Court for the Middle District of Pennsylvania. Casoni argues that various evidentiary rulings the district court made were wrong, that they were prejudicial and that therefore the district court erred in denying his motion for a new trial. In making these arguments, Casoni challenges the district court's admission of testimony by Richard Guida (Guida), attorney for James Gabler (Gabler), and documents Guida had prepared that corroborated Guida's testimony.

More specifically, after Gabler had testified against Casoni under a grant of immunity, Guida's testimony about what Gabler told Guida about Casoni and co-defendant Kenneth Reeher (Reeher) was admitted under Federal Rule of Evidence 801(d)(1)(B) as evidence of a prior consistent statement by Gabler. Guida's written proffer of what Gabler proposed to say, as Guida prepared and submitted it to the United States Attorney in pursuit of Gabler's successful bid for immunity from prosecution, and Guida's notes of a meeting with Gabler were also admitted as evidence of Gabler's prior consistent statement under the "records of regularly conducted activity" exception to the hearsay rule set forth in Federal Rule of Evidence 803(6). Gabler's disclosures to Guida and Guida's notes about them formed much of the basis, but not all the details, of the proffer Guida prepared and presented to the government in Gabler's successful bid for immunity.

While Gabler's prior consistent statement would not be hearsay under Rule 801(d)(1)(B), Guida's written out-of-court declarations about Gabler's prior consistent statement, when offered as evidence of Gabler's prior consistent statement, are hearsay subject to the prohibition found in Federal Rule of Evidence 802 unless they fall within one of the exceptions to the hearsay rule.

At trial and here, Casoni contends that Guida's testimony about what Gabler told Guida, as well as the notes and the proffer, are not admissible under Rule 801(d)(1)(B) as prior consistent statements. Casoni maintains that the statements are not entirely consistent with Gabler's testimony at trial and argues that all three statements were made after Gabler's recognition of his own potential criminal liability gave him a motive to falsify that should have led to the statements' exclusion. ¹ With respect to the proffer itself, Casoni attacks not just the admission of the document under Rule 803(6) as Guida's business record but argues that the district court compounded the error when it permitted the jury, during deliberations, to examine the document that Guida had shaped into narrative form from his notes of conference with Gabler. Finally, Casoni attacks a district court ruling that he says improperly prevented him from fully cross-examining Guida about an unrelated government criminal investigation concerning Guida.

For the reasons set forth below, we reject Casoni's argument that Gabler's declarations to his attorney, Guida, were not prior consistent statements within the meaning of Rule 801(d)(1)(B). We hold that Gabler's statements to Guida fall within Rule 801(d)(1)(B)'s definition of prior consistent statements because the rule does not require them to be consistent in every detail with Gabler's testimony at trial. We also hold that they were not inadmissible for the limited rehabilitative purpose the government offered them in this case even though they were made after Gabler's knowledge of the personal risk of criminal liability gave him motive to falsify. ² Gabler's statements to Guida were also relevant within Federal Rule of Evidence 401's broad rule of relevancy, and they were not so unfairly prejudicial as to warrant their exclusion under Federal Rule of Evidence 403. Therefore, we hold that the district court did not abuse its discretion or otherwise err in permitting Guida to testify about Gabler's statements to him. With respect to the notes and the proffer, we hold that the district court abused its discretion in ruling that the hearsay declarations Guida set out in his notes and proffer fall under Rule 803(6)'s business records exception to the hearsay rule. The proffer did not meet Rule 803(6)'s requirement of trustworthiness. Since Guida was present and testified about Gabler's prior statement based on Guida's own recollection, as refreshed by the notes, and the notes were prepared with litigation implicating Gabler in criminal conduct in mind, we also believe the district court abused its discretion in admitting the notes.

If the district court had simply permitted the jury to hear what was in the notes and proffer, however, its error in admitting them would have been unquestionably harmless. The availability to the jury of the exhibits that embodied the notes and proffer during its deliberations, particularly the jury's possession of the proffer, is more troubling. We are nevertheless satisfied that the other evidence against Casoni is so strong that it is highly probable that the jury would have convicted him even if the exhibits containing the notes and the proffer had not been available to it. Accordingly, we hold that this error too is harmless. Finally we hold that the district court did not err in limiting Casoni's cross-examination of Guida about the criminal investigation involving Guida's violations of the federal drug laws that began after Guida interviewed Gabler and prepared the notes and proffer.

II.

Casoni and Reeher were indicted by a federal grand jury on April 14, 1989, for their roles in the award of a Pennsylvania state contract to Gabler's company, Gabler Educational Management Services, Incorporated (GEM). Reeher was the director of the Pennsylvania Higher Education Assistance Agency (Agency), a state agency charged with granting and administering federally guaranteed student loans. Casoni was his deputy. The indictments charged one count of conspiracy to commit an offense against the United States, 18 U.S.C.A. § 371 (West 1966); three counts of interstate travel in aid of racketeering, 18 U.S.C.A. § 1952(a)(3) (West Supp.1991) and 18 U.S.C.A. § 2 (West 1969); one count of bribery, 18 U.S.C.A. § 666 (West Supp.1991) and 18 U.S.C.A. § 2; one count of extortion, 18 U.S.C.A. § 1951 (West 1984) and 18 U.S.C.A. § 2; and six counts of mail fraud, 18 U.S.C.A. § 1341 (West Supp.1991) and 18 U.S.C.A. § 2.

The trial began just over four months later. Among those who testified were Gabler and Loren Carlson (Carlson). Carlson and Gabler were the co-founders of GEM. Their testimony described Casoni's role in a scheme to obtain a valuable state contract for GEM from the Agency. Other witnesses testified about the steps Casoni took to see that the Agency's contract with GEM came to fruition. Yet others testified to Casoni's transferring cash and other gifts to Reeher through third persons. GEM's corporate counsel, Andrew Semmelman (Semmelman), testified about statements Gabler made to him of a plan to secure the contract for GEM by offering valuable but unlawful personal benefits to Casoni and Reeher in exchange for official action favorable to GEM. Semmelman also described certain incriminating representations that Casoni made to him when GEM was about to enter into the contract with Reeher's state agency. ³

Gabler appeared at trial pursuant to an agreement that he would be immune from prosecution if he testified against Casoni and Reeher along the lines set forth in the proffer that Guida had prepared. On cross-examination, Casoni sought to impeach Gabler by suggesting that he had fabricated his testimony to implicate Casoni and Reeher in order to gain immunity for himself. Casoni pointed to various differences in detail between Gabler's testimony at trial and the information he had given the Federal Bureau of Investigation (FBI) during the eight times the Bureau interviewed him in preparation for indictment and trial. For example, Gabler told the FBI that Reeher's demand for a share of the GEM/Agency contract was made at a meeting at Reeher's house. Gabler testified at trial that Reeher's demand was made in a phone call to Carlson before Casoni, Carlson, Gabler and Reeher first met in Chicago, where GEM had its principal office. Gabler had also told the FBI that he could not remember who said that a discussion in a meeting in Reeher's basement should be kept secret. At trial he testified that he remembered it was Reeher who urged they keep the discussion a secret.

In the fall of 1987, Gabler had written a chronology of events surrounding his efforts to land the contract at issue for GEM. He presented this chronology to his first attorney, Scott Adams (Adams). It was inconsistent with his trial testimony. Perhaps, most significantly, Gabler's early chronology lacked any mention of the Chicago meeting that loomed large in his trial testimony. At trial, Gabler said that the written chronology and the story that he told Adams were both lies.

To rehabilitate Gabler the government called Guida, an experienced criminal lawyer to whom Adams had referred...