United States v. Somers

• Decision Date: 27 March 1974
• Docket Number: No. 73-1523 to 73-1526.,73-1523 to 73-1526.
• Parties: UNITED STATES of America, Appellee, v. William T. SOMERS et al., Appellant in No. 73-1523. Appeal of Karlos R. LaSANE in No. 73-1524. Appeal of Arthur W. PONZIO in No. 73-1525. Appeal of Germaine E. FISHER in No. 73-1526.
• Court: U.S. Court of Appeals — Third Circuit

496 F.2d 723 (1974)

UNITED STATES of America, Appellee, v. William T. SOMERS et al., Appellant in No. 73-1523 Appeal of Karlos R. LaSANE in No. 73-1524 Appeal of Arthur W. PONZIO in No. 73-1525 Appeal of Germaine E. FISHER in No. 73-1526.

Nos. 73-1523 to 73-1526.

United States Court of Appeals, Third Circuit.

Argued December 10, 1973.

Decided March 27, 1974.

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John G. Graham, McGlynn, Ruprecht & Graham, Newark, N. J., for appellant in No. 73-1523.

William Goddard Lashman, Atlantic City, N. J., for appellant in No. 73-1524.

Burton A. Rose, A. Charles Peruto, Philadelphia, Pa., for appellant in No. 73-1525.

John W. Noonan, Noonan & Flynn, Newark, N. J., for appellant in No. 73-1526.

Jonathan L. Goldstein, U. S. Atty., Newark, N. J., for appellee in all cases.

Herbert J. Stern, Former U. S. Atty., John J. Barry, Richard S. Zackin, Richard D. Shapiro, Asst. U. S. Attys., Newark, New Jersey, attorneys for appellee.

Before HASTIE, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

On May 14, 1972, a federal grand jury returned a twenty-six count indictment against William T. Somers, Richard S. Jackson, Arthur W. Ponzio, Karlos LaSane, Robert Glass, Germaine Fisher and Florence Clark. Count 1 of the indictment charged the seven defendants with conspiring to violate the Hobbs Act, 18 U.S.C. § 1951¹ by obtaining through extortion the property of contractors, engineers, suppliers, property owners and licensees who dealt with the City of Atlantic City, New Jersey. Count 2 charged the seven defendants with conspiring to violate the Travel Act, 18 U.S.C. § 1952,² by utilizing the facilities of interstate commerce to cause the commission of bribery and extortion in violation of New Jersey law. Counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 20, 21, 22, 23, 24, 25, and 26 charged that the seven defendants, in furtherance of the conspiracy alleged in Count 1, obtained sums of money by extortion from designated businesses engaged in interstate commerce. Counts 4, 6, 8, 10, 12, 14, 16, and 18 charged that the seven defendants, in furtherance of the Travel Act conspiracy, obtained by extortion sums of money delivered to Atlantic City firms from states other than New Jersey.

Trial commenced on January 15, 1973 before Judge Cohen. During the trial, defendants Jackson and Glass pleaded guilty to Count 1 and defendant Clark entered a plea of nolo contendere to Count 1. On motion of the Government, Counts 4, 5, 23 and 24 were dismissed at the close of the prosecution's case. Finally, on March 8, 1973, the jury returned its verdict, finding defendant Somers guilty on Count 26, defendant Ponzio guilty on Counts 1, 2, and 5-18, defendant LaSane guilty on Counts 1, 2, 21 and 22, and defendant Fisher guilty on Counts 1, 2, 5-8, 17 and 18. Sentences were imposed on May 21, 1973,³ and defendants Somers, Ponzio, LaSane and Fisher appealed.

At trial, the Government sought to demonstrate a criminal conspiracy in which Atlantic City public officials exacted tribute from businessmen who were anxious to receive favorable treatment from purchasing and licensing departments of the local government. The conspirators held high offices in Atlantic City Government: two Mayors (defendants Jackson and Somers), two Commissioners of Parks and Public Property (defendant LaSane and unindicted co-conspirator Albert Shahadi), a Superintendent of Airports, Parks and Recreation Areas (defendant Glass), an Executive Secretary to the Director of Public Works (defendant Fisher) and an Assistant Purchasing Agent (defendant Clark) were allegedly involved in the conspiracy. It was the Government's theory that the alliance of these officers created an atmosphere in Atlantic City whereby local businessmen knew that kickbacks were required in order to secure favorable treatment from the city government.

To substantiate its theory, as well as to prove the substantive counts of the indictment, the Government adduced testimony from a number of witnesses who admitted paying kickbacks upon the demand of one or more of the defendants. In general,⁴ the evidence tended to show that payoffs were accomplished in several different ways. A few witnesses testified that certain of the defendants demanded annual payments in return for a promise of continued business from the City. Other witnesses described a more elaborate scheme in which certain defendants would ascertain the price of equipment and then suggest that the price be inflated so as to include the amount of a kickback. Upon receipt of payment, the seller would pay back a portion of the total price (normally 10%), in cash, to the official involved. In order to preserve the outward manifestations of a rational and legitimate municipal bidding structure, the seller would be instructed to draw up the specifications (subsequently published by the City) in such a way that only its own equipment would qualify. This tactic normally served to screen out competitors who would not pay kickbacks to the defendants. The testimony indicated that in certain rare instances when "non-complying" bids were initially submitted along with "complying" bids, all bids were rejected. Thereafter, the "complying" bids alone were resubmitted and were accepted. Still another witness testified that in one instance, a substantial payoff was demanded in return for favorable treatment on a license application.

Three of the appellants (Somers, Ponzio and Fisher) testified in their own defense. In addition to the three defendants' denials of any extortion conspiracy, numerous defense witnesses explained that they (the witnesses) had done business with Atlantic City without ever being required to make a kickback and denied that it was common knowledge that payoffs were required in order to secure favorable treatment from the City.⁵

As might be expected after a trial of almost three months duration, appellants allege a number of trial errors. We find it necessary to comment upon the contentions that the District Court erred: (a) in refusing to sever the case either prior to or during trial; (b) in refusing to permit the defense to recall a Government witness for further cross-examination; (c) in refusing to permit the defense to call Frank Nugent as a witness; (d) in refusing to require a new trial on the basis of prejudicial remarks made by the Assistant United States Attorney; and (e) in failing to strike the testimony of witness Herbert Wernikove or, alternatively, to grant a mistrial on the basis of a time variance between the indictment and the evidence adduced at trial. After a careful review of the record and briefs, we hold that reversible error was not committed and, accordingly, we affirm.⁶

I. SEVERANCE

Appellants Somers and Fisher⁷ contend that it was error for the District Court to reject their pretrial motions for severance of their individual cases and for severance of particular counts pursuant to Fed.R.Crim.P. 8(b).⁸ In the alternative, even if joinder were initially proper, the appellants contend that the Court should have severed their individual cases when, during trial, alleged prejudice became apparent. See Fed.R.Crim.P. 14.⁹

A. Rule 8 Motions

In deciding whether there has been a misjoinder under Rule 8(b), this Court must make an independent determination as to whether or not the Rule's mandate has been followed. Wright and Miller, 1 Federal Practice and Procedure, § 144; see also Ingram v. United States, 272 F.2d 567, 569 (4th Cir. 1959).

Appellants Somers and Fisher base their Rule 8(b) argument upon the suggestion that the substantive counts in the indictment were not part of the same series of transactions. We find little merit in this argument. A Rule 8(b) motion is addressed to the pleadings, and not to the proof subsequently adduced. Provided that the indictment charges that the offenses joined constitute a single series of acts or transactions, severance will not be required. The allegation of a conspiracy in the instant case satisfies this mandate. As Professor Wright explains:

Joinder is permitted of a conspiracy count and substantive counts arising out of the conspiracy, since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan. (emphasis added).

Wright and Miller, 1 Federal Practice and Procedure, § 144. See also Gordon v. United States, 438 F.2d 858, 878 (5th Cir.), cert. denied, Crandall v. United States, 404 U.S. 828, 92 S.Ct. 63, 30 L. Ed.2d 56 (1971); United States v. Bryant, 364 F.2d 598, 603 (4th Cir. 1966). Thus, provided that the conspiracy charge is put forward in good faith, the combination of a conspiracy count with counts charging acts in furtherance of the conspiracy will survive attack under Rule 8(b). See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). Appellants neither demonstrate nor allude to bad faith in the inclusion of the conspiracy counts herein. Accordingly, we conclude that the District Judge did not err in denying appellants' 8(b) motions.

B. Rule 14 Motions

The disposition of Rule 14 matters is normally within the discretion of the District Court. See United States v. Barber, 442 F.2d 517, 529 (3d Cir. 1971), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); United States v. Lipowitz, 407 F.2d 597, 599 (3d Cir. 1969), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). In the absence of an affirmative showing of an abuse of discretion, this Court will not interfere with the Rule 14 determinations made by the District Court. United States v. Barrow, 363 F.2d 62, 67 (3d Cir. 1966), cert denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L. Ed.2d 541 (1967); United States v. Kenny, 462 F.2d 1205, 1217 (3d Cir.), cert. denied, Murphy v. United States, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). The burden of demonstrating such abuse is a heavy one. United States v. Ford, 451 F.2d 1163, 1166 (5th Cir. 1971). I...