United States v. Simmons

• Decision Date: 20 January 1978
• Docket Number: Crim. No. 77-355.
• Parties: UNITED STATES of America v. Barry SIMMONS.
• Court: U.S. District Court — Eastern District of Pennsylvania

444 F. Supp. 500

UNITED STATES of America v. Barry SIMMONS.

Crim. No. 77-355.

United States District Court, E. D. Pennsylvania.

January 20, 1978.

David W. Marston, U. S. Atty., Alan M. Lieberman, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Stanford Shmukler, James C. Schwartzman, Philadelphia, Pa., for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Defendant, Barry Simmons, was found guilty by a jury of a two count indictment, charging him in each count with obstruction of justice in violation of 18 U.S.C. § 1503.¹ Defendant has filed a motion renewing his motion for judgment of acquittal which he made at the time of trial. In the alternative he has moved for arrest of judgment² or for a new trial. Oral argument was had on the motions. For the reasons hereinafter set forth, defendant's motions will be denied.

I. Motion for Judgment of Acquittal.

In his motion for judgment of acquittal, defendant contends that the evidence was insufficient to support a jury verdict of guilty in connection with Counts I and II. The evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Armocida, 515 F.2d 29, 46 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975), is more than sufficient to support the verdict. We summarize it as follows:

The defendant was a writ server for the Philadelphia Traffic Court. On July 20, 1977, two of his employees, Barney J. Cummins and William Engle, met with F.B.I. Special Agent Cyril Gamber to report their suspicions that illegal activity was taking place in the defendant's office at 4937 Old York Road, Philadelphia, Pennsylvania. The scheme allegedly involved the mailing of priority scofflaw notices to persons who had violated the Pennsylvania Vehicle Code. All the priority scofflaw notices in the mailings involved violations which were more than two years old and concerning which there had been some administrative decision at the Traffic Court that no further action should be taken. The dates of the violations on the mailed notices were changed to indicate that the violations had taken place within two years of the mailings.

On July 28, 1977, grand jury subpoenas were served on E. W. Turner, Jr. of the Bell Telephone Company compelling him to bring before the grand jury toll call records of the defendant's business and private telephones.³

On August 4, 1977, a grand jury subpoena duces tecum was served on the defendant at his office at 4937 Old York Road, Philadelphia, Pennsylvania. It required him to appear before the grand jury on August 12, 1977 and directed him to bring

any and all records, documents, files, computer printouts, computer tapes, computer programs, account books, ledgers, returned priority scofflaw notices, unmailed priority scofflaw notices, alphabetized computer lists of traffic violators and any other papers, documents and material relating to priority scofflaw notifications.

At the same time, subpoenas were served on several of the defendant's employees directing them to appear before the grand jury on August 12, 1977. The defendant was aware that these employees had been ordered to appear before the grand jury.⁴

It was during the period following the service of these subpoenas that the obstruction of justice occurred. The Government established its case through the testimony of three of the defendant's employees, a tape recording of happenings in the defendant's office subsequent to the service of the subpoenas, and documents retrieved from two trash bags seized at the defendant's office by the F.B.I. pursuant to a warrant.

Barney Cummins was in the defendant's office on August 4, 1977, wearing a body recorder and transmitter supplied to him by the F.B.I. Cummins testified that as soon as the F.B.I. served the subpoenas and left the office, the defendant began questioning his employees about what they had said to the agents. Defendant went on to instruct various employees as to how to testify before the grand jury. The defendant stated to Cummins and Joseph Korup, another deputy writ server employed by the defendant:

Let's get it down pat. You are street men. You are deputies. You work on the street. You make arrests. What do you have to do with the office? You come in here and you pick up your work. What work? Warrants and commitments. Who do you pick them up from? Me. What do you do with them? You go out on the street and serve them. Do you ever do anything in the office? No. Did you work here when the priorities? You worked for me at that time. What did you do in the office at that time? Nothing. We work on the street. We go out and serve warrants, make collections and the whole bit. Understood? And that's the story. It's going to probably stay that way. We'll go over it that with the attorneys to.

(Recording at 34).

Cummins testified that the defendant's instructions to him were not an accurate reflection of his work. He had been hired to work on the streets serving warrants, but since July 1, 1977, both he and Korup had worked primarily in the office on priorities.

Cummins further testified that the defendant then began directing those in the office to destroy evidence which had been subpoenaed by the grand jury. The defendant pointed to the computer lists of the priority scofflaw notices and asked Cummins "How many flushes does it take to get rid of those books?" Cummins testified that the defendant took papers out of the office safe, tore them up and gave them to Joseph Korup to flush down the toilet. He gave Cummins a pile of torn priority scofflaw notice copies and told him to put them in the trash, which Cummins did. He then handed Cummins a pile of wet traffic notices, stating that they would not fit in the toilet. He instructed Cummins to tear them into small pieces and to throw them away. Cummins put them in the trash without tearing them. Cummins also testified to observing the defendant tearing up priority scofflaw notices and flushing some notices down the toilet.

Joseph Korup, a deputy writ server employed by the defendant, testified and corroborated Barney Cummins' testimony. He testified that the defendant instructed him and Barney Cummins on how to testify before the grand jury, and that the defendant's instructions were inaccurate. In fact, during July 1977, the defendant had told him "I need your help in the office, to hell with the street." Korup testified that as soon as the F.B.I. left the office at 4937 Old York Road on August 4, 1977, the defendant became very agitated. He handed Korup small shredded papers and Korup flushed them in the toilet. The defendant handed Korup a stack of wet papers and said, "Get rid of these, they won't go down."

Darleen Korup, Joseph's wife and an employee of the defendant, also testified for the Government. She had been in the office on August 4, 1977 and told the defendant what she had just told the F.B.I. She stated:

I told him, he asked me when I came, I said, like the fourth week in July. And I said I came in exclusively for L.U.V. Lock Your (Cor)Vette.

The defendant replied:

Right. And you stick to that. And we'll go over that with the attorneys.

Mrs. Korup testified that she had lied when she told the F.B.I. that she worked exclusively for L.U.V. She testified that the defendant had previously told her that if anyone asked she was to say that she worked for L.U.V. and that she did not work on priorities or on the computer books. In fact, she had worked on priorities and on the computer books. She testified that after lunch on the 4th, she noticed shredded paper in the hall, in the bathroom and the toilet which had not been there before lunch; that Barney Cummins, Joseph Korup and the defendant were running around the office and that the defendant made a couple trips to the bathroom with papers in his hands. She further testified that the defendant told Dawn Specht, a twelve-year-old who worked part-time in his office, to tell the grand jury that she had not been in the office when the priorities were being worked on. Darleen Korup stated that this instruction was inaccurate, inasmuch as Dawn did stuff priority scofflaw notices into envelopes.

Finally, the Government introduced the material which they had seized from the defendant's office on August 4, 1977, pursuant to a search warrant. This material consisted of the contents of two garbage bags and twenty-nine computer printout books. Within the garbage bags were torn paper which the F.B.I. had repieced and identified as six priority scofflaw notification letters; packets of traffic violation warrants; and other torn priority scofflaw notices.⁵

The Government's case was strong, and there can be no doubt that the evidence was sufficient to support the jury's verdict as to each of the two counts of the indictment which charged him in each count with obstruction of justice in violation of 18 U.S.C. § 1503.

Defendant also argues that an essential element of the offense was missing in that "there was no evidence that a federal Grand Jury had an on-going investigation of the defendant or his activities as charged in the indictment . . .." In fact, there was more than sufficient evidence to establish the pendency of a judicial proceeding within the meaning of the statute. A federal grand jury was duly empaneled on June 18, 1976 by the Honorable Daniel H. Huyett III of this Court. On July 28, 1977, the grand jury issued subpoenas to Mr. E. W. Turner, Jr. of Bell Telephone of Pennsylvania to produce toll call records charged to the defendant's phones before the grand jury on August 5, 1977. On August 4, 1977, it issued subpoenas to compel Joseph Korup, Darleen Korup, Dawn Specht and the defendant to testify on August 12, and for the defendant to bring with him certain documents. Each of these subpoenas was issued on application of Alan M. Lieberman, Assistant United States...