United States v. Furey

Decision Date14 May 1980
Docket NumberCrim. No. 79-268.
Citation491 F. Supp. 1048
PartiesUNITED STATES of America v. Ronald FUREY, Joseph DiLuzio.
CourtU.S. District Court — Eastern District of Pennsylvania

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COPYRIGHT MATERIAL OMITTED

Peter F. Vaira, U. S. Atty., Luther E. Weaver, III, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Steven Morley, Defender Ass'n of Philadelphia, Philadelphia Pa., for Furey.

Edward A. Savastio, Upper Darby, Pa., for DiLuzio.

MEMORANDUM OPINION AND ORDER

BECHTLE, District Judge.

Presently before the Court are the motions of the defendants Ronald Furey ("Furey") and Joseph DiLuzio ("DiLuzio") for a new trial and/or judgment of acquittal, pursuant to Fed.R.Crim.P. 33 and 29(c). After careful review of the arguments of counsel, the factual record of this case and the applicable judicial authority, the Court will deny the defendants' motions.

This case focused on a residential development project commonly known as "Ravenscliff," which is composed of approximately 126 acres of property located in Radnor and Newtown Townships in Delaware County, Pennsylvania. Three companies were involved in the development project, including Ravenscliff Land Company (the land holder), Ravenscliff Development Company (the builder) and Roach Brothers, Inc. (the real estate agency selling the residential dwellings). All three companies are Pennsylvania corporations doing business in interstate commerce. Robert Roach is the president and majority stockholder in the companies and Lawrence Flick ("Flick") is the vice-president.

On July 21, 1978, Ravenscliff filed a subdivision plan for approval with Radnor Township. The plan provided for the immediate sale of a mansion house located on the tract and the subsequent construction and sale of single-family residences on the surrounding acreage.

The tax assessments on the Ravenscliff property that was to be subdivided was approximately $155,000, which was spread over five separate parcels. Due to the new subdivision plan, it became necessary to have a new assessment to reflect individual assessments for the new 100 lots on which the homes would be built.

In Delaware County, as in many other counties in Pennsylvania, the Tax Assessment Office establishes the assessments on properties located in the county. These assessments, established on a county basis, are then used by the various municipalities and school districts within the county to determine the actual tax by multiplying the assessment by the millage rate adopted by the local taxing authority. Needless to say, because the tax to be paid on a property by the landowner is a serious consideration for both the buyer and the seller, the assessment, resting at the core of that factor, looms large in the decision-making process as a real estate development progresses from raw ground to the settlement date with the buyer.

Furey was the sole tax assessor for Radnor Township during the period from October, 1978, until February 2, 1979, when he was terminated. From May 29, 1979, when he was reappointed, until the present, Furey was a tax assessor in the county office but he was assigned to another township located in Delaware County. When he was discharged from his position as tax assessor for Radnor Township in February of 1979, Furey was replaced by Thomas Thornton. DiLuzio was a real estate salesman in Delaware County and was a personal friend and business associate of Furey at all relevant times.

The details of the extortion scheme charged in the indictment, as outlined by the Government's evidence, were as follows: There were a series of meetings and telephone conversations between Furey and DiLuzio with Flick concerning what the tax assessment was to be for the developing Ravenscliff project. These meetings and conversations took place between October of 1978 and August of 1979. The evidence at trial revealed that at these meetings, and during various telephone conversations, Furey attempted to extort monies from Flick by reason of his official position as tax assessor assigned to Radnor Township and through the use of threats of adverse economic consequences to the development of Ravenscliff. Furey said that, unless certain money was paid to him by Flick, he would, by reason of his official position as tax assessor, cause a higher tax assessment to be placed on the Ravenscliff development than would be set if the money was paid. The great majority of the telephone conversations and meetings, excluding the initial October 17, 1978, meeting, were recorded by agents of the Federal Bureau of Investigation ("FBI") at the request of Flick but without the knowledge of the defendants. Flick had notified the FBI soon after the initial extortion attempt took place during an October 17, 1978, meeting between Flick, Furey and DiLuzio which had not been recorded. These tape recordings were offered at trial by the Government and played to the jury.

DiLuzio, according to the Government's evidence, was to act as an intermediary between Furey and Flick, passing the monies being extorted. DiLuzio was to be paid for his services.

The three-count indictment charged both Furey and DiLuzio in count one with attempted extortion of $10,000 from the Ravenscliff companies, Lawrence Flick and Robert Roach, in violation of 18 U.S.C. § 1951,1 often referred to as the Hobbs Act. Count one charged the defendants with attempting to extort monies on or about October 17, 1978, through the wrongful use of color of official right and fear of economic loss. Count two of the indictment charged Furey alone with attempting to extort approximately $200 from the same victims on or about March 1, 1979, under color of official right and through fear of economic loss, in violation of 18 U.S.C. § 1951. Finally, count three of the indictment charged both defendants with conspiracy to commit extortion under color of official right and through fear of economic loss, in violation of 18 U.S.C. § 1951. After a 10-day trial, involving some 28 witnesses, the jury found both defendants guilty on all counts.

The post-trial motions of the defendants raise several separate issues, which will be addressed by the Court individually.

I. Voir Dire Questions to the Jury Panel

The first ground raised by Furey concerns the Court's refusal to ask certain of Furey's proposed voir dire questions:

13. Does the fact that this case involves the alleged extortion by a tax assessor offend your sensibilities in such a way that it would prevent you from rendering a fair verdict based solely upon the evidence presented at trial?
14. Does the fact that this case involves misconduct by a public official render you unable to give a fair verdict based solely on the evidence at trial and not on any preconceived notions?

Furey contends that the Court's refusal to ask these questions of the jury panel constituted a violation of his due process right to a fair and impartial jury. Furey claims that, because the instant action is based on the Hobbs Act, 18 U.S.C. § 1951, which can involve the prosecution of public officials for the wrongful performance of their official duties, it was essential to secure an impartial jury devoid of any bias against political figures or public officials. Furthermore, Furey alleges that an inquiry into any hidden prejudices and biases was necessary in the instant action because the basis of his defense was that "while he was a public official he performed work which might have had an impact on his job, but for which he felt that he was entitled to outside compensation." Furey's Motion for New Trial and/or Judgment of Acquittal, at 2. This position, Furey argues, may have led to the appearance of a conflict of interest, causing some jurors to view his activities with a jaundiced eye due to what he calls the "post-Watergate mentality." The Court fully agrees with the defendant's contention that prejudices and biases, possibly as to political figures in general, is a permissible area for voir dire examination. However, the Court disputes the manner in which the defendant suggests this inquiry should have been undertaken. The question is whether the Court's questions sufficiently "probed the hidden prejudices of the jurors," U.S. v. Wooton, 518 F.2d 943, 945 (3d Cir. 1975), or whether the proposed questions were further needed to ferret out the hidden biases of panel members.

Under Fed.R.Crim.P. 24(a),2 the trial court may, in its own discretion, conduct the voir dire of the jury panel. The form and manner of questioning of the panel are matters within the court's sound discretion, with the "widest discretion" necessary reposed in the trial judge. Kiernan v. Van Schaik, 347 F.2d 775, 778 (3d Cir. 1965). This discretion is necessary because, "the determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting). See also U.S. v. Segal, 534 F.2d 578, 581 (3d Cir. 1976); U.S. v. Starks, 515 F.2d 112, 124-125 (3d Cir. 1975). The exercise of these broad discretionary powers of the trial judge is a ground for error only when basic notions of fairness have been violated on a constitutional scale. Hamling v. U.S., 418 U.S. 87, 140, 94 S.Ct. 2887, 2918, 41 L.Ed.2d 590 (1974); Ham v. South Carolina, 409 U.S. 524, 527-528, 93 S.Ct. 848, 850-851, 35 L.Ed.2d 46 (1973). For example, such rare violations have been found by the United States Supreme Court in the area of racial bias. The Court held in Ham, supra, and Aldridge v. U.S., 283 U.S. 308, 311, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931), that racial issues were so intertwined with the factual and legal underpinnings of a case involving allegations of racial discrimination that specific inquiry as to possible racial bias among jurors was constitutionally required. See also U.S. v. Williams, 612 F.2d 735, at 736 (3d Cir. 1979).

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