U.S. v. Swainson

• Citation: 548 F.2d 657
• Decision Date: 31 January 1977
• Docket Number: No. 76-1702,76-1702
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John B. SWAINSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 657

548 F.2d 657

UNITED STATES of America, Plaintiff-Appellee, v. John B. SWAINSON, Defendant-Appellant.

No. 76-1702.

United States Court of Appeals Sixth Circuit.

Argued Dec. 3, 1976.

Decided Jan. 31, 1977.

Konrad D. Kohl, Farmington Hills, Mich.; Bruce T. Leitman, Bloomfield Hills, Mich., for defendant-appellant.

Philip Van Dam, U. S. Atty., Robert C. Ozer, C. Stanley Hunterton, Detroit Strike Force, Detroit, Mich., for plaintiff-appellee.

Before WEICK, PECK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The appellant, a justice of the Supreme Court of Michigan, was indicted by a grand jury of the Eastern District of Michigan. He and one Harvey Wish were charged in three counts with furtherance of an illegal scheme involving bribery by use of the mails and interstate facilities of communication. The appellant was also charged under 18 U.S.C. § 1621 ¹ with perjury before The appellant and Harvey Wish were tried together. At the conclusion of all the evidence the district court granted appellant's motion for acquittal on the three charges involving use of the mails and interstate facilities, but submitted to the jury the conspiracy charge and the three perjury counts. The jury found Swainson not guilty of conspiracy and guilty on all three perjury counts. As to the co-defendant Wish, the court submitted one count related to use of mails and interstate facilities and the conspiracy charge. The jury found Wish guilty of conspiracy and not guilty of the substantive charge. Wish did not appeal.

the grand jury, based on his answers to questions concerning three occurrences involving him and Harvey Wish. In addition, Swainson, Wish and one Charles Goldfarb were charged with conspiring with each other and with an unindicted co-conspirator, John Joseph Whalen, to carry on the illegal activity of bribery.

This case is based on the allegation of the government that Harvey Wish, a professional bail bondsman, agreed with appellant for the payment of money in return for appellant's favorable action on behalf of Whalen, whose appeal of a larceny conviction was before the Supreme Court of Michigan. In the summer of 1972 Whalen reported to the FBI office in Detroit that Wish had proposed a bribery scheme involving appellant, and in subsequent meetings with Wish, Whalen carried a concealed microphone. It was testified at the trial that one or more FBI agents were stationed nearby when Wish and Whalen met, and that a number of their conversations were monitored and recorded on tapes. In addition, Swainson, Wish and Whalen were placed under FBI surveillance.

ISSUES RELATED TO THE TAPES

Appellant objected in the district court to use of the tapes on the ground that they contained prejudicial hearsay evidence. Judge Rubin pointed out that Wish, Whalen and appellant were all charged as co-conspirators and that Wish and appellant were charged with joint actions in furtherance of an illegal scheme. Relying on the "co-conspirator exception" to the hearsay rule, the court permitted the tapes to be introduced and played for the jury, subject to an ultimate determination of whether there was independent evidence of a conspiracy or criminal joint venture. At the conclusion of the government's case the district court ruled that a prima facie case of conspiracy had been made out by independent evidence.

A

On appeal it is argued that appellant's acquittal on the conspiracy charge requires reversal of his conviction for a new trial with the evidence contained on the tapes excluded. The appellant relies primarily on this court's decision in United States v. Lucido, 486 F.2d 868 (1973), to support his argument. In Lucido we held that where hearsay statements of an alleged co-conspirator are admitted ". . . acquittal on the conspiracy charge makes necessary inquiry into the possible prejudice that resulted from the introduction of this evidence." Id. at 869. In United States v. Suchy,540 F.2d 254, 257 (6th Cir. 1976), the court specifically declined to declare "a per se rule of prejudice, requiring that wherever the Government is able to put hearsay before a jury solely because of an unproven conspiracy count, any conviction on substantive counts must be set aside."

The conviction in Lucido was reversed upon a finding that the record contained no independent evidence of an illegal joint venture. An examination of the transcript of appellant's trial reveals testimony by officers who conducted the surveillance of the suspected conspirators concerning meetings between Wish and Whalen followed by meetings between Wish and appellant; records of telephone conversations between Wish and appellant at times when the appeal of Whalen was being considered and reconsidered by the Michigan Supreme

Court; and the direct testimony of Whalen that he gave Wish $20,000 to be paid to Swainson for his efforts on behalf of Whalen. Without reciting the evidence in detail the court is satisfied that it was sufficient to establish, without consideration of any hearsay, a prima facie case of the existence of a conspiracy involving Wish, Whalen and the appellant.

B

Appellant also argues that even if the independent evidence were otherwise sufficient to establish a prima facie case of conspiracy between Wish and Whalen, no conspiracy was legally possible because Whalen was working from the beginning as a government agent and, therefore, his activities were not illegal. The record does not support this argument. Whalen testified that he went to the FBI after Wish told him of the possibility of influencing appellant on behalf of Whalen. The government did not furnish the money which Whalen paid to Wish. Though he cooperated with the FBI as an informer, Whalen was not acting as a government agent in his dealings with Wish. By his testimony he agreed to the proposal that he give money to Wish for payment to appellant as an inducement to favorable consideration of his appeal. His role as an informer did not render his agreement with Wish something other than a criminal conspiracy. United States v. DeSapio, 435 F.2d 272, 282 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971). Moreover, if Swainson agreed to accept illegal payments from Wish in return for help in the Whalen appeal, an illegal conspiracy between Wish and Swainson would have existed, regardless of the true role of Whalen.

C

Appellant contends that his constitutional right of confrontation was violated by the fact that he could not require his co-defendant, Wish, to undergo cross-examination with respect to the statements recorded on the tapes. Appellant relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton the Supreme Court held that one defendant in a joint trial was denied his Sixth Amendment right of confrontation by the admission in evidence of a confession of his co-defendant implicating both defendants in the crime for which they were being tried. The present case did not involve a confession by Wish. The argument based on Bruton falls with our determination that the recorded statements of Wish and Whalen were admissible as declarations of co-conspirators, as appellant appears to recognize on page 39 of his brief.

D

More to the point is appellant's argument that he was entitled to be tried separately because of general prejudice. Though appellant knew of the contents of the tapes prior to trial, no motion for a severance was made pursuant to Rule 14, Fed.R.Crim.P. Such a motion must be made prior to trial. Rule 12(b) (5), Fed.R.Crim.P. The appellant argues that the effect of the recorded conversations was so overwhelmingly prejudicial as to require the district court to order a severance sua sponte. Appellant contended vigorously from the beginning of the trial that the tapes should have been excluded from evidence, but he never suggested to the district court that he should be granted a severance if they were admitted. In view of the basis on which the tapes were received in evidence and the fact that when the tapes were being played for the jury it was instructed ". . . that any conversations between Wish and Whalen at this point in the proceedings is not evidence against Defendant Swainson and is not to be considered by you as such . . . ," we find no prejudicial error in the failure of the district court to order a severance on its own motion.

E

Finally, it is established that even where a conspiracy is not charged, declarations of partners in a criminal joint venture are admissible to prove the guilt of another partner. United States v. Townes, 512 F.2d

1057 (6th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975); United States v. Talbot, 470 F.2d 158 (6th Cir. 1972); United States v. Perna, 491 F.2d 253 (6th Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974). As the court pointed out in Talbot, supra, 470 F.2d at 159, the required independent evidence of concerted action ". . . may be either direct or circumstantial." There was both direct and circumstantial evidence which was sufficient to make a prima facie case of joint illegal activity which would have made the tapes admissible if no conspiracy had been charged. The district court did not err in admitting the tapes.

THE PERJURY CHARGES

As has been noted, appellant was acquitted of conspiracy and of substantive charges related to the alleged bribery scheme, but was convicted of perjury. He raises two separate issues with respect to the perjury conviction.

A

Appellant contends there is not sufficient evidence in the record to sustain his conviction of perjury under counts 5 and 6 of the indictment. It is contended that the government did not satisfy the "two witness rule," which precludes perjury convictions based solely on one person's word against another's by requiring that charges of perjury under 18 U.S.C. § 1621 be established by the testimony of two witnesses or testimony of one witness...