APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Adams, Weis, Circuit Judges, and VanArtsdalen, District Judge.
Defendants in these consolidated appeals were found guilty of violating the Racketeer Influenced and Corrupt Organizations Act. They contend there was discrimination in the selection of grand jury forepersons and a variance between the conspiracy charged and the evidence at trial. They also challenge the verdict because the trial judge interviewed a juror during deliberations at the suggestion of counsel, and another juror reaffirmed her agreement with the verdict following a recantation shortly after a spectator's emotional outburst in the courtroom. Having considered these and the defendants' other contentions, we find no reversible error and affirm.
After a twenty-one week jury trial, the seven defendants who are appellants in this case were convicted of RICO violations, conspiracy, mail fraud, and wire fraud. Four of the defendants were found guilty of income tax fraud as well. The jury also returned verdicts of not guilty on nine of the forty-six counts in the indictment. All of the appellant's post-trial motions were denied.
The evidence at trial established to the jury's satisfaction the existence of an enterprise consisting of defendants Lawrence Dentico, Dominick D'Agostino, and Thomas Principe,*fn1 together with the Orlando Construction Company and Rudolph Orlandini. Dentico and D'Agostino supervised and promoted the affairs of the enterprise through their control of the Orlando Construction Company and other entities formed to develop and manage construction projects in Union City and North Bergen, New Jersey. Defendant Genovese assisted the enterprise in his capacity as an architect for the Orlando Company and the related entities.
The other defendants were all public officials. Defendant William Musto was the mayor of Union City and a state senator. Frank Scarafile was the deputy chief of police in Union City and a member of the Board of Education. John Powers was the president of the Union City Board of Education. Gildo Aimone was executive director of the Union City Housing Authority, and John Bertoli*fn2 held a similar position in North Bergen. These public officials accepted bribes to use their offices and influence in furtherance of the enterprise's affairs. Through their assistance, the enterprise received city construction contracts, tax abatements, and payments on fraudulent work orders. The city officials also cooperated with the enterprise in its attempt to have Union City purchase an office building at a grossly inflated price.
In 1974, the Orlando Limited Partnership, one of the related entities, began development of the Bella Vista senior citizen housing project in Union City. The enterprise agreed to a $50,000 bribe and actually paid $12,000 to Scarafile so that Musto would arrange for a tax abatement and intercede with the state housing authority. Bribes were also paid to obtain similar treatment for other projects undertaken by the enterprise's related entities.
A $40,000 bribe was paid to Musto, Scarafile and Powers when the Orlando Construction Company was awarded contracts to renovate two Union City high schools in 1977. For these projects, Musto instructed the school board attorney to "bend the law a little" because some items were missing on an Orlando Company bid.
In addition, Aimone allowed the company to file a performance bond after the time originally set and arranged to have all payroll records for the project directed to him. Genovese submitted change orders for work not specified in the contracts and checks were then issued by Aimone. Aimone and Powers also authorized payments for work that was never performed and in some instances double payments were made.
Between 1974 and 1978, the enterprise group participated in a number of other public projects, for which bribes were paid to Musto, Scarafile and Powers. Perhaps because of the size of the bribes, the enterprise was financially unable to complete some of the work. To secure additional funds, Dentico directed Orlandini to invest $300,000 in an office building. The plan was that $200,000 would then be paid to Musto, Scarafile and Powers to arrange a purchase of the building by Union City at the inflated price of $3.1 million. Public opposition to the sale, however, caused the purchase price and bribe to be reduced. Although Scarafile received a $75,000 "advance" on the bribe, the sale of the building never took place because of an adverse vote in a referendum. After the election, Orlandini, D'Agostino, Powers and Scarafile agreed that $50,000 of the advance would be returned.
In July 1980, Orlandini agreed to cooperate with the government and surreptitiously tape-recorded a number of conversations with defendants as he tried to recover the $50,000. At the trial, Orlandini spent twenty-six days on the witness stand and was extensively cross-examined by defense counsel. The government also introduced the tape recordings made by Orlandini, as well as a significant amount of documentary evidence, including fraudulent change orders, checks, and correspondence among defendants. Five defendants took the stand and presented testimony that lasted more than fourteen days. An expert on linguistics also testified for the defense in support of the defendants' theory that Orlandini had orchestrated the taped conversations so that neutral responses would appear inculpatory.
On appeal, defendants raise a variety of issues. Only three merit discussion: the selection of grand jury forepersons, the evidence of a single conspiracy, and the actions of the trial court during jury deliberations and announcement of the verdict. The defendants' other contentions are listed in the appendix.
In the district court, defendants challenged the process for selecting grand and petit jurors and grand jury forepersons as being discriminatory on a variety of grounds, including race, nationality and sex. On appeal, defendants have reduced their contentions to one -- the indictment should be dismissed because women were not properly represented as grand jury forepersons in the District of New Jersey.
In addressing this contention, the district court accepted the defendants' allegation that a proportionate number of women had not been appointed as forepersons over a five-year period.*fn3 The court concluded, however, that defendants had not established a violation because the foreperson "does not have disproportionate influence in the deliberative process," and therefore the position is constitutionally insignificant. United States v. Musto, 540 F. Supp. 346, 362 (D. N.J. 1982).
Fed.R.Crim.P. 6(c) provides that the court shall appoint one of the impaneled grand jurors to act as foreman and one as deputy foreman to act in his absence. The foreman administers oaths, keeps a record of the number of jurors concurring in the finding of an indictment, and signs all indictments. It has been held, however, that the absence of the foreman's endorsement is only a technical irregularity and not fatal to the indictment. Frisbie v. United States, 157 U.S. 160, 163-65, 39 L. Ed. 657, 15 S. Ct. 586 (1895).
The district court concluded that these duties are "purely ministerial" and that defendants failed to show that a foreperson "has the power to alter the 'unique qualities and characters of the jury's individual members. '" 540 F. Supp. at 362 (citation omitted). The court also observed that each grand jury was selected by a process providing for fair representation of the community.
The Supreme Court has not decided whether grand jury forepersons have such a significant impact on the criminal justice system that discrimination in their selection amounts to a constitutional violation. In Rose v. Mitchell, 443 U.S. 545, 551-52 n.4, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979), the Court "assume[d] without deciding that discrimination with regard to the selection of only the foreman" requires that a conviction be set aside. It found, however, that discrimination had not been established.
Rose was a state conviction case. Under Tennessee law, the trial court chose a foreman from the general population to serve as the thirteenth juror in a body otherwise composed of persons selected by a random process. A foreman served for two years and could be, and often was, reappointed. He was expected to assist the district attorney in investigating crimes, could conduct the questioning of witnesses, and had to sign an indictment for it to be valid. See id. at 548 n.2 It is clear that the Tennessee grand jury foreman was in a position to guide the decision-making process of the grand jury and had substantially greater power than his federal counterpart.
In Rose the Supreme Court assumed only for purposes of that case that the Tennessee foreman had a significant role. In Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981), the Court of Appeals for the Fifth Circuit found, however, that a Louisiana state foreman with less power did occupy a controlling position, and in United States v. Cross, 708 F.2d 631 (11th Cir. 1983), the Court of Appeals for the Eleventh Circuit reached the same conclusion with respect to federal grand jury forepersons in the Middle District of Georgia, see also United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir. 1982).
A contrary view on the role of the federal foreperson was expressed in United States v. Hobby, 702 F.2d 466, 470-71 (4th Cir. 1983) and United States v. Coletta, 682 F.2d 820, 822-24 (9th Cir. 1982), cert. denied, 459 U.S. 1202, 103 S. Ct. 1187, 75 L. Ed. 2d 433, 51 U.S.L.W. 3611 (1983). See also United States v. Holman, 680 F.2d 1340, 1356 n.12 (11th Cir. 1982); United States v. Perez-Hernandez, 672 F.2d at 1388-89 (Morgan, J., concurring). In Hobby, the court noted the substantial differences between grand jury forepersons in Tennessee and the federal system, and concluded that the federal foreperson's "role is so little different from that of any other grand juror that the rights of the defendants are adequately protected by assurance that the composition of the grand jury as a whole cannot be the product of discriminatory selection." 702 F.2d at 471.
We find that the district court here made a realistic assessment of the role of the federal grand jury foreperson. In our view, the duties of the federal foreperson are only ministerial. We acknowledge the contrary conclusion in United States v. Cross, but point out that forepersons in the Middle District of Georgia were found to perform certain functions not exercised by forepersons in the District of New Jersey. Compare Cross, 708 F.2d 631, slip op. at 3778, with United States v. Musto, 540 F. Supp. at 359. The differences may be attributable to custom and practice that have developed in the respective districts. In any event, we are not persuaded that the duties performed by a federal foreperson confer the power to control the decision-making process of the grand jury.
Moreover, we regard it as extremely significant that the Tennessee foreman considered in Rose v. Mitchell was selected from the public at large, whereas the federal foreperson is chosen from among a randomly selected grand jury, and cannot agree with the conclusion in Cross that "this difference is irrelevant." Cross, 708 F.2d 631, slip op. at 3778.*fn4 We conclude that the selection of one member of a properly constituted grand jury to carry out the ministerial duties of foreperson does not, in the context of this case, ...