ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Seitz, Chief Judge, and Aldisert and Rosenn, Circuit Judges.
Co-defendants David Wander and Edward Reddington appeal from their convictions of conspiracy in violation of 18 U.S.C. § 371 (1976), and on three counts of violating the Travel Act, 18 U.S.C. § 1952 (1976). Of the issues raised on this appeal, we are persuaded by the defendants' contentions that the indictments on the Travel Act counts are defective and that the district court erred by amending the jury instructions. We therefore reverse the convictions, dismiss the indictments on the Travel Act counts, and remand the case for a new trial on the conspiracy count. Wander and Reddington also appeal from a denial of their motion for a new trial. Our disposition of the appeal from the judgments of conviction, however, renders this issue moot.
In 1973, David Wander was operating as a bail bondsman in Allegheny County, Pennsylvania with Edward Reddington serving as his assistant. In the course of his business dealings, Wander often came into contact with Robert Peirce, an attorney and Clerk of Courts for the Criminal Division, Court of Common Pleas of Allegheny County. In his capacity as Clerk, Peirce initiated changes in the manner in which forfeitures of bail bonds were handled. These changes had a disagreeable impact on Wander and for a period of five months in 1972 he was forced to suspend operations for failure to satisfy a $100,000 collateral requirement.
In May 1972, Michael Currie, a female client of Peirce's, and her friend, Joseph Volpini, were arrested and charged with unlawful possession of drugs. Currie expressed her concerns to her acquaintance, Edward Reddington, that the charges might lead to a jail sentence and loss of custody of her daughter. Reddington had her meet Wander. Subsequent to the meeting, Reddington told Currie that if she could involve Peirce in an "embarrassing situation," she would be acquitted of the drug charges. Currie made no response at the time to this suggestion and in late February or early march of 1973 (the drug charges still pending), she went to Florida to live with her sister.
While in Florida, Currie received one long-distance call from Wander and one from Reddington. Wander's call involved a conference hookup with Peirce, during which Wander monitored Currie's conversation with Peirce without the latter's knowledge. Reddington requested Currie to return by plane to Pittsburgh, which she did on or about March 12, 1973. Although Currie had been told to return to Pittsburgh for disposition of her criminal case, upon her arrival, she learned that Reddington's purpose in having her make the trip was to have her fulfill the nefarious role he had previously plotted for her. On the morning of March 16, 1973, Reddington took Currie to a motel. After Currie called Peirce and invited him to her room, Reddington left. Peirce arrived and, while he and Currie were in bed together, a photographer entered the room, hurriedly snapped some pictures, and left.
Peirce returned to his office and immediately telephoned Agent John Portella of the FBI. Peirce recounted his humiliating experience at the motel and suggested Wander as a suspect. Portella began an investigation, during the course of which he enlisted the assistance of Robert Butzler, police chief for Ross Township.
Butzler was able to obtain some pictures allegedly of Peirce and Currie in bed and tape recordings of telephone conversations between the two from Wander, who did not disclose how he had obtained them. Butzler did not give these items to Portella, but instead turned them over to Elsie Hillman, a Republican National Committeewoman and Peirce's mentor. Hillman in turn delivered them to Peirce, who then contacted Portella. Shortly thereafter, Peirce met with Portella in a motel room. After insisting that there had been no attempt to extort him, Peirce destroyed the photographs and tapes. Portella filed a report with the FBI concluding the investigation, but without making reference to the destruction of the items.
The incident remained dormant until the summer of 1976 when it resurfaced during an extensive investigation of the bail bond practices in Allegheny County. Currie, Peirce, Butzler, Portella, and Hillman appeared before a grand jury, but no indictments were returned. In early 1978, the transcripts from the earlier session were read to a second grand jury which also heard "live" testimony from an investigating agent. This grand jury indicted Wander and Reddington on one count of conspiracy and on six substantive counts of violating the Travel Act.
Prior to trial, the Pittsburgh Post-Gazette published an article disclosing the existence of a memorandum prepared by Assistant United States Attorney James Roark, who had been involved in the Wander-Reddington investigation. The memorandum allegedly recommended the indictment of Peirce, Portella, Butzler, and Hillman for conspiracy to commit misprision of a felony, obstruction of justice and accessory after the fact of Interstate Transportation in Aid of Racketeering. The defendants moved for disclosure of any relevant material contained in the memorandum under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After an In camera examination of the document, the district court ruled that there was no Brady material contained in the report.
After a trial before a jury, the defendants were convicted on the conspiracy count and three substantive counts. Acquittals were returned on the three other counts. The three substantive counts which led to convictions were based on incidents prior to the motel episode; the acquitted counts related to subsequent events.
The defendants raise six issues on appeal contending: (1) the activities proven in this case were insufficient to establish a violation of the Travel Act; (2) Counts I through IV of the indictment were insufficient to charge defendants with conspiracy and violation of the Travel Act; (3) the district court erred in holding that there was no abuse of the grand jury process; (4) the Government violated the Brady doctrine by withholding certain evidence; (5) the district court erred in modifying a jury instruction; (6) the FBI agent's participation in the destruction of photographs and recordings violated the Due Process Clause and barred conviction in this case. We hold that Counts II through IV of the indictment were insufficient under Fed.R.Crim.P. 7(c) and must be dismissed. We hold further that the district court's modification of the jury instruction was a violation of Fed.R.Crim.P. 30 and requires that the conviction on Count I be reversed. Because of the possibility of a new trial, See United States v. Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), we believe that it is necessary to express our disagreement with the other contentions raised by the defendants.
Defendants also appeal from the denial of a new trial requested under Fed.R.Crim.P. 33. The motion was based on newly discovered evidence which indicated that a juror failed to respond accurately to a particular question posed on voir dire. Because all of the convictions are being reversed on other grounds, we dismiss the appeal from the denial of the motion for a new trial as moot.
A. Whether the activities proven in this case were sufficient to establish a violation of the Travel Act.
In this section, we will consider two separate contentions raised by the defendants. The first is whether the conduct of the defendants established the interstate nexus required by the Travel Act. The second is when extortion is charged under the Travel Act whether the Government must prove a "business enterprise."
1. Sufficiency of interstate activities.
A violation of the Travel Act occurs when a person travels in interstate commerce or uses any facility in interstate commerce to promote any unlawful activity as defined by the Act.*fn1 The convictions on the substantive counts in this case related to the two interstate telephone calls made by Wander and Reddington to Currie while she was in Florida and Currie's Florida to Pittsburgh plane ride. The defendants contend that the "minimal and fortuitous involvement in interstate commerce" is insufficient to satisfy the interstate nexus requirement of the Travel Act. Although conceding that the activities proven at the trial fall within one possible reading of the language of the Travel Act, they argue that principles of federalism and prior case law compel a stricter construction of the interstate nexus requirement than one that would reach the conduct in this case. We disagree.
The Supreme Court in Rewis v. United States, 401 U.S. 808, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971), held that where the defendants ran a gambling establishment, the attendance of out-of-state customers at the establishment was an insufficient nexus to interstate commerce to permit conviction under the Act. The Court believed that the Act was aimed primarily at organized crime and that Congress did not intend overly broad application of the Travel Act which "would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies." Id. at 812, 91 S. Ct. at 1059. Thus, in certain circumstances, "the use of interstate facilities (will be) so minimal, incidental, and fortuitous, and so peripheral to the activities" of the defendants, that conviction under this Act will be barred. United States v. Isaacs, 493 F.2d 1124, 1146 (7th Cir.), Cert. denied, 417 U.S. 976, 94 S. Ct. 3183, 41 L. Ed. 2d 146 (1974).
Even with these considerations in mind, we must not construe this Act too narrowly. There is "no requirement that the use of the interstate facilities be essential to the scheme: it is enough that the interstate travel or the use of interstate facilities makes easier or facilitates the unlawful activity." United States v. Perrin, 580 F.2d 730, 736 (5th Cir. 1978). Conversely, where the use of interstate facilities or interstate travel has been deemed an essential part of the scheme, such use or travel cannot be considered "minimal," "incidental," or "fortuitous." United States v. Craig, 573 F.2d 455, 489 (7th Cir. 1977), Cert. denied, 439 U.S. 820, 99 S. Ct. 82, 58 L. Ed. 2d 110 (1978). The interstate contacts in this case are not as fortuitous as they were in cases where an insufficient nexus was held to operate as a bar. See, e. g., United States v. Isaacs, supra (defendant accepted in-state check which cleared through out-of-state Federal Reserve Bank as bribe); United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) (victim cashed out-of-state check in order to pay cash to defendant in extortion scheme); United States v. McCormick, 442 F.2d 316 (7th Cir. 1971) (defendant advertised for illegal lottery ticket salesmen in newspaper with 2-3 percent of subscribers out of state). On the other hand, the interstate contacts here were more substantial, direct, and deliberate. See, e. g., United States v. Perrin, supra (defendant placed telephone calls to out-of-state map service in furtherance of a conspiracy); United States v. LeFaivre, 507 F.2d 1288 (4th Cir. 1974), Cert. denied, 420 U.S. 1004, 95 S. Ct. 1446, 43 L. Ed. 2d 762 (1975) (defendant accepted out-of-state checks in payment of gambling debts). See also, United States v. Herrera, 584 F.2d 1137, 1145-47 (2d Cir. 1978); United States v. Peskin, 527 F.2d 71, 75-78 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S. Ct. 63, 50 L. Ed. 2d 79 (1976).
It is true that Currie's decision to move to Florida was unrelated to the planned motel incident. The extortion scheme could have been carried out without any interstate involvement had Currie remained in Pittsburgh. However, once Currie moved to Florida it became essential to the implementation of the defendants' scheme that they use interstate facilities to secure her presence in Pittsburgh.*fn2 Moreover, the use of those facilities in this case was not only necessary to the completion of the planned extortion, it was also intentional and knowing. We hold that a knowing and intentional use of interstate facilities, even though of limited duration, to carry out an extortion scheme is within the reach of the Travel Act.
2. Definition of "unlawful activity."
As indicated earlier, a Travel Act violation occurs when interstate facilities are used to promote any "unlawful activity." "Unlawful activity" is defined in the Act as follows:
(b) As used in this section "unlawful activity" means (1) any business enterprise involving gambling, liquor . . ., narcotics, or controlled substances . . . or prostitution offenses . . ., or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
18 U.S.C. § 1952 (1976). When one parses this section, the plain meaning is evident. If the underlying offense involves gambling, liquor, narcotics, controlled substances, or prostitution, the Government must prove more than an isolated incident; it must prove a business enterprise. On the other hand, if the underlying offense involves extortion, bribery, or arson, then the business enterprise limitation does not apply.
In this case, the underlying offense involved extortion. Thus, the Government was not required to prove a business enterprise. The defendants contend that this was error. They argue that the legislative history of the Travel Act demonstrates that the business enterprise limitation in subdivision (1) was intended to apply as well to subdivision (2).*fn3
The defendants assert, and we agree, that a primary purpose of the Travel Act was to aid local law enforcement in combatting organized crime figures who could avoid apprehension by local officials by travelling interstate. See Rewis v. United States, 401 U.S. 808, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971); United States v. Nardello, 393 U.S. 286, 290-91, 89 S. Ct. 534, 21 L. Ed. 2d 487 (1969). Frequent references are made in the legislative history to "continuous course of conduct," "business enterprises," and "organized crime." Nonetheless, the Supreme Court has noted that "the reach of the statute clearly was not Limited to instances in which organized criminal activity in one State is managed from another State . . . ." Erlenbaugh v. United States, 409 U.S. 239, 247 n.21, 93 S. Ct. 477, 482 n.21, 34 L. Ed. 2d 446 (1972) (Court's emphasis).
The evidence most helpful to the defendants' contention can be found in testimony before the Senate Committee of the Judiciary, (reprinted in S.Rep.No. 644, 87th Cong. 1st Sess.1961). Attorney General ...