U.S. v. Tracey

• Decision Date: 15 April 1982
• Docket Number: Nos. 81-1367,82-1086,s. 81-1367
• Citation: 675 F.2d 433
• Parties: 82-1 USTC P 9325, 10 Fed. R. Evid. Serv. 677 UNITED STATES of America, Appellee, v. Francis P. TRACEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 433

675 F.2d 433

82-1 USTC P 9325, 10 Fed. R. Evid. Serv. 677

UNITED STATES of America, Appellee, v. Francis P. TRACEY, Defendant-Appellant.

Nos. 81-1367, 82-1086.

United States Court of Appeals,

First Circuit.

Argued Jan. 5, 1982.

Decided April 15, 1982.

Francis J. DiMento, Boston, Mass., with whom James J. Sullivan, Jr., Constance A. Fitzgerald, and DiMento & Sullivan, Boston, Mass., were on brief, for defendant-appellant.

Amos Hugh Scott, Asst. U. S. Atty., Boston, Mass., with whom William Weld, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, BOWNES and TIMBERS, ^* Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant Francis P. Tracey was convicted by a jury of three counts of income tax evasion in violation of 26 U.S.C. § 7201 and three counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). Defendant appeals his conviction and the district court's denial of his post-trial motion for a new trial based on allegedly newly discovered evidence. We granted the government's motion to consolidate the appeals.

Tracey was deputy commissioner of the City of Boston Real Property Department from 1970 to 1978. The Real Property Department, under the control and management of the Real Property Board, was in charge of City-owned public parking lots and garages, which were leased to private companies. As deputy commissioner, Tracey supervised agents of the Department who conducted inspections of the parking facilities and generally was the overseer of the facilities, collecting rents, investigating repair requests, and checking to see that there was compliance with the terms of the leases.

The six counts against defendant related to the years 1975, 1976, and 1977. Using the "net worth and expenditures" method, see McGarry v. United States, 388 F.2d 862 (1st Cir. 1967), cert. denied, 394 U.S. 921, 89 S.Ct. 1178, 22 L.Ed.2d 455 (1969), the government showed that Tracey had a total unreported taxable income of $39,983.48 for the years in question. The additional tax due was $15,951.74. Under the "net worth and expenditures" method, the government has to prove a likely source of taxable income or negate all nontaxable sources; it may, of course, introduce evidence of each. In this case, the prosecution proceeded along both lines of proof.

For evidence that would negate possible sources of nontaxable income, the government called all of Tracey's close living relatives and a number of his friends and associates as witnesses. Each testified that he or she had no knowledge of any loans, gifts inheritances, court judgments or cash hoards that would explain appellant's unreported gain in wealth. In addition there was evidence of a wide-ranging investigation conducted by a special agent of the Internal Revenue Service (IRS) which uncovered no nontaxable sources.

The government's proof of a likely source of taxable income consisted of the testimony of one witness, Francis X. Green. Green testified that he had paid bribes to appellant during the time that he, Green, leased parking facilities from the City.

In the summer of 1974 Green was awarded two leases for City-owned parking facilities on which he had bid. That autumn he won another lease and in early 1975 another. The leases ran for a period of a year with rent payable monthly. At the outset of one of his first leases, Green was approached by Tracey and told to continue the former tenant's practice of allowing certain individuals to park for free. Green agreed because, as he testified, he wanted to be on good terms with Tracey, who stood in the shoes of his landlord.

Three of the garages leased by Green were multi-storied and elevator-operated. According to Green, the elevators broke down frequently and were a constant problem. In the spring of 1975 he requested from the Real Property Board a rent abatement of approximately $125,000 to cover the cost of repairs to the elevators.

While the abatement request was pending, Green was told by a parking lot inspector that Tracey wished to meet with him. The meeting was arranged and, in a parking lot under City Hall, Tracey asked Green to contribute $10,000 to Boston Mayor Kevin White's campaign for reelection, telling him that such a contribution would be advantageous to Green. At the time Green said he thought the amount was excessive and later, in another subterranean meeting in Green's car, he handed over $6,000 in cash to Tracey. Green testified that he gave Tracey the money in hopes of a favorable decision on his pending abatement request. He received no receipt for the contribution, nor did the White campaign records reflect a contribution by him or his parking company.

In October 1975 the Real Property Board, after an investigation and recommendation by appellant, granted Green a rent abatement of approximately one-half the amount he had requested.

During the autumn of 1975, when one of Green's leases was scheduled to expire, he asked appellant if there were any way he could continue to operate the garage in order to recoup some of his losses on it. Tracey told him he could stay in business if he made weekly payments of $500 to Tracey. Understanding this arrangement to be in lieu of rent payment to the City, Green made eight or ten payments to Tracey into early 1976, until he received notice from the City that he was in arrears in his rent. In July 1976 the City forbade Green and his various companies from bidding on any more leases for parking facilities and subsequently sued him for back rent owed.

Appellant's first claim is that the trial court committed reversible error in excluding certain evidence relating to bias during the cross-examination of Green. Over a period of almost four hours defense counsel cross-examined Green in an effort to discredit him. Toward the close of his cross-examination, defense counsel attempted to question Green about an incident in which he had been picked up by the local police for drunkenness and taken to the Dedham, Massachusetts, Jail. The purpose of this line of inquiry was to show that Green had telephoned the then-United States Attorney, Edward F. Harrington, who came to the jail and bailed him out. The prosecutor's objection was sustained before any mention was made of Harrington's participation:

Q. (by defense counsel). On October 12, 1979, you were in the Holiday Inn in Dedham, were you not?

A. I could have been.

Q. And from the Holiday Inn, you went to the Dedham Jail, didn't you?

Mr. Scott: Objection.

The Court: I'm going to sustain this and call for an offer of proof at the side bar.

Defense counsel made the offer of proof and the prosecutor responded by arguing that Harrington had gone to the jail in a personal capacity as Green's friend and that there had been no resultant obligation on Green's part to testify favorably for the government. The trial judge, concerned about having to permit the United States Attorney to testify in rebuttal and the time involved on a matter directed solely to the witness' credibility, ruled the evidence inadmissible.

The Sixth Amendment right of a criminal defendant "to be confronted with the witnesses against him" includes the right to impeach credibility through cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974). Because a witness' bias is " 'always relevant as discrediting the witness and affecting the weight of his testimony,' " the Supreme Court has "recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316-17, 94 S.Ct. at 1110 (citations and footnote omitted). Although the trial judge retains the traditional discretion to limit the scope of cross-examination, discretion in the area of bias evidence becomes operative only after the constitutionally required threshold level of inquiry has been afforded the defendant. Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir. 1980); United States v. Mayer, 556 F.2d 245, 250 (5th Cir. 1977); United States v. Bass, 490 F.2d 846, 857-58 n.12 (5th Cir. 1974); Wheeler v. United States, 351 F.2d 946, 947 (1st Cir. 1965). Moreover, the judge's discretionary limitation of cross-examination must be done "with the utmost caution and solicitude for the defendant's Sixth Amendment rights." United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). See United States v. Crumley, 565 F.2d 945, 949 (5th Cir. 1978).

In Davis v. Alaska the Supreme Court held that the defendant's constitutional right had been violated where the trial judge prohibited inquiry into a key prosecution witness' status as a probationer, thus completely foreclosing the subject of the witness' potential bias in favor of the state. The case before us, on the other hand, presents a situation in which appellant, although precluded from asking about a specific incident, was permitted to cross-examine the witness extensively regarding his possible motives to testify favorably for the government. The question before us, then, is whether the trial judge abused his discretion in excluding this evidence.

The test for abuse of discretion adopted by some courts where the trial judge limited cross-examination on bias is whether the jury had sufficient other information before it, without the excluded evidence, to make a discriminating appraisal of the possible biases and motivations of the witness. United States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979); United States v. Baker, 494 F.2d 1262, 1267 (6th Cir. 1974); United States v. Blackwood, 456 F.2d 526, 530 (2d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972); Flemmi v. Gunter, 410 F.Supp. 1361, 1371 (D.Mass.1976). We consider this to be essentially the same standard as we recently applied in a case involving cross-examination in the general area of a witness'...