Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 86-00450-01.
Before SEITZ, MANSMANN, Circuit Judges, and DEBEVOISE, District Judge.*fn*
The United States appeals form an order of the district court suppressing certain evidence prior to the trial of appellee Mario Driggs on a single count of violating the Hobbs Act, 18 U.S.C. § 1951 (1982). We have jurisdiction under 18 U.S.C. § 3731 (1982).
Mario Driggs was indicted for extortion in receiving a $300 cash gift from Stephen Traitz, Jr., business manager of the Roofers' Union in Philadelphia. At the time of the alleged offense, Driggs had been elected but not yet sworn in as a Judge of the Philadelphia Municipal Court. Driggs allegedly received the cash gift in return for future judicial favors.
The government filed a pre-trial motion seeking a ruling that 39 tape-recorded conversations would be admissible at trial. These conversations were intercepted pursuant to a court-authorized electronic surveillance of the Roofers' Union local headquarters.
At the conclusion of the hearing on the Government's motion, the district court excluded 28 of the 39 taped conversations, and permitted only four of the remaining 11 to be admitted in their entirety. Essentially the court only admitted those conversations that made direct references to Driggs or indicated the source of the money to establish the interstate commerce element of the offense. The court also excluded any witness testimony relating to the excluded portions of the tape-recorded conversations.
In deciding the question of admissibility of the government's offer of the tape-recorded conversations, the district court found each of the recordings at issue in this appeal to be relevant and admissible under Federal Rules of Evidence 406, 803(1) and 803(3). However, the district court excluded such conversations after finding the probative value to be substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403. The government appealed.*fn1
Federal Rule of Evidence 403 provides:
Although relevant, evidence maybe excluded if its probative value is substantially outweigh by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .
Since the district court is called upon to exercise its discretion in ruling on the exclusion of evidence under Federal Rule of Evidence 403, it follows that on review we apply an abuse of discretion standard. See United States v. Long, 574 F.2d 761 (3rd Cir.), ...