United States v. Hively

• Decision Date: 09 June 1982
• Docket Number: Crim. No. 81-165-1.
• Citation: 547 F. Supp. 318
• Parties: UNITED STATES of America v. Paul W. HIVELY.
• Court: U.S. District Court — Middle District of Pennsylvania

547 F. Supp. 318

UNITED STATES of America v. Paul W. HIVELY.

Crim. No. 81-165-1.

United States District Court, M. D. Pennsylvania.

June 9, 1982.

David Shipman, Asst. U. S. Atty., Harrisburg, Pa., for U. S.

William C. Costopoulos, York, Pa., for Hively.

MEMORANDUM

INTRODUCTION

HERMAN, District Judge.

On September 24, 1981, an indictment was filed charging Paul W. Hively with six counts of causing the transportation in interstate commerce of stolen refrigerated trailers in violation of 18 U.S.C. §§ 2 & 2314, and with one count of conspiracy to commit these crimes in violation of 18 U.S.C. § 371. A jury trial commenced January 27, 1982. On February 4, 1982, the Defendant was convicted of the offenses charged. Defendant has filed a timely motion seeking a new trial, on the grounds, inter alia,¹ that the court erred in refusing to allow defense witness Stanley R. Gochenour to testify, and in permitting the government to cross-examine the Defendant's character witnesses as to whether they had heard certain rumors in the community. For the reasons set forth in the discussion that follows, we do not think that a new trial is warranted.

DISCUSSION

I. Defense Witness Gochenour

Defendant complains that the court committed reversible error, requiring a new trial, by refusing to allow defense witness Stanley R. Gochenour to testify. Counsel for Defendant offered to call Mr. Gochenour, an investigator for the defense, to relate that on July 31, 1981, Gochenour attended a meeting with government witness Vincent DeMarco and defense counsel William Costopoulos, at which DeMarco allegedly said he would alter his testimony and "say whatever had to be said" for $1,500.00. DeMarco had previously denied making this statement on cross-examination. DeMarco explained that the figure $1,500.00 was mentioned, but it was done so in the course of a casual conversation about the fee an attorney wanted in order to represent DeMarco in his divorce.

Impeachment of a witness by means of extrinsic evidence of prior inconsistent statements is permissible only as to those matters that are not collateral, i.e., matters which are relevant to issues in the case and which could be independently proven. United States v. Blackwood, 456 F.2d 526, 531 (2d Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972); 3A Wigmore on Evidence §§ 1020-23 (Chadbourn rev. 1970). Without question, the bias, corruption or interest of a witness is not a collateral matter, and extrinsic evidence is admissible to prove that a witness has a motive to testify falsely. United States v. James, 609 F.2d 36, 46 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir. 1978); United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976).

Special treatment is accorded evidence which is probative of a motive to lie because "if believed it colors every bit of testimony given by the witness." United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976); United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972). The opportunity to "place the witness in his proper setting and put the weight of his testimony and his credibility to a test" is an essential safeguard to a fair trial. Harvey, 547 F.2d at 723, quoting, Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931). The Supreme Court has held that the exposure of a witness' motivation in testifying is so significant that in a criminal case curtailment of effective cross-examination for bias may be a violation of the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Nevertheless, a defendant's right to elicit such evidence is not boundless, but is subject to reasonable limitations imposed by the trial judge in the exercise of sound discretion. United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972). Accord, United States v. Mc Cann, 465 F.2d 147, 163 (5th Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973). See also 3 Weinstein's Evidence ¶ 60703 and cases collected at note 10 (1981). The trial court may properly exclude evidence of bias or corruption

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed.R.Evid. 403. See United States v. Renfro, 620 F.2d 497, 500-501 (5th Cir. 1980), cert. denied, 449 U.S. 921, 101 S.Ct. 321, 66 L.Ed.2d 149 (1981). Cf. United States v. Uramoto, 638 F.2d 84, 86 n.2 (9th Cir. 1980); United States v. James, 609 F.2d 36, 46 n.11 (2nd Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980).

The Defendant urges that extrinsic evidence should have been admitted in this case to demonstrate the corruption of a key government witness, Vincent DeMarco. Wigmore defines corruption as "the conscious false intent which is inferrible from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand." 3A Wigmore on Evidence § 945 (Chadbourn rev. 1970) (emphasis added). The evidence shows,² however, that the meeting on July 31, 1981 was arranged so that defense counsel William Costopoulos could interview DeMarco about his testimony in the upcoming trial of Mr. Hively for another, unrelated offense, scheduled for August of 1981. See United States v. Hively, Cr. No. 81-107 (M.D.Pa. Aug. 27, 1981) (verdict of acquittal). Mr. Gochenour testified at that first trial that DeMarco offered to "give us intelligence information about the government's case" and to "alter his story for whatever we cared it to be in a chance to assist Paul Hively." (Gochenour transcript at 11). On July 31, 1981, the instant indictment had not yet been returned by the grand jury. Clearly, then, the alleged bribe attempt related to the first trial, and not to "the case in hand." Although this evidence would have revealed the possibility of a bias against Mr. Hively because he did not accept the alleged offer,³ the incident was not relevant as proof of corruption in this proceeding. Certainly, confusion of the issues was likely when the primary relevance of the evidence was to another proceeding.

More significantly, Gochenour's testimony about the alleged extortion attempt could not have been placed in its proper context without revealing the highly prejudicial fact of Mr. Hively's earlier trial for mail fraud. To permit Gochenour to testify without admitting evidence of the circumstances surrounding the alleged bribe would have misled the jury, we think, as to its true import. See United States v. Smolar, 557 F.2d 13, 21 (1st Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977) (not error to exclude cross-examination into witness' grant of immunity with regard to another securities fraud prosecution when defendants had objected to this evidence on direct, on theory that evidence would be prejudicial to defendants since witness had been involved with them in securities firm).

In addition, the probative value of the proffered testimony was slight. An offer to testify falsely which was not accepted would have tended to support the conclusion that the witness' trial testimony was the correct version. The government would certainly have been entitled to rehabilitate DeMarco by the introduction of taped statements made at an interview with Mr. Gochenour four days before the July 31 meeting that were substantially consistent with DeMarco's testimony at trial. Furthermore, government attacks on the credibility of Gochenour would have added to the confusion, and presented the danger of a lengthy "mini-trial" on the question of whether the attempted bribe actually occurred. See United States v. Renfro, 620 F.2d 497, 501 (5th Cir. 1980), cert. denied, 449 U.S. 921, 101 S.Ct. 921, 66 L.Ed.2d 149 (1981); United States v. James, 609 F.2d 36, 46 n.2 (2nd Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980).

Weighing the factors outlined in the foregoing discussion, therefore, we do not think it was error to prevent Mr. Gochenour from testifying. This was not a case of the complete preclusion or undue restriction of cross-examination as to a witness' motive for testifying. A denial of cross-examination would have implicated the Defendant's Sixth Amendment right of confrontation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States v. Uramoto, 638 F.2d 84 (9th Cir. 1980); Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978). Cf. United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972). The defense counsel in this case, however, had ample opportunity to conduct a vigorous and searching cross-examination of DeMarco about the alleged bribe. Cf. Beaudine v. United States, 368 F.2d 417, 422-24 (5th Cir. 1966). The jury also received considerable evidence regarding other motives DeMarco might have had to falsify his testimony. His plea agreement, unsentenced status, and hopes for leniency in return for his cooperation in the investigation and trial were brought out on direct examination. On cross-examination, defense counsel elicited the fact that in April of 1981 Hively had refused to provide DeMarco with money or an attorney. Thus, the jury in this case was presented with "sufficient information to make a discriminating appraisal of the witness' possible motives for testifying in favor of the government." United States v. James, 609 F.2d 36, 47 (2nd Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980). See also United...