The opinion of the court was delivered by: MOTLEY
Memorandum Opinion on Defendants' Post-Trial Motions
Defendants Irving Kahn and Teleprompter Corporation, having been found guilty by a jury on October 20, 1971 of five and four counts respectively of a five-count indictment, move for judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure and, in the alternative, for an order granting a new trial under Rule 33 of the Federal Rules of Criminal Procedure.
They raise six points in their motion and supporting memorandum which will be dealt with in sequence below.
The motion for judgment of acquittal is denied on the ground that as to each count in the indictment the evidence was not only sufficient to sustain a conviction of the offense charged but was overwhelming.
Both defendants were charged in count 1 with conspiring to violate 18 U.S.C. § 1952 (18 U.S.C. § 371). They were also charged in counts 2, 3, and 4 with three separate substantive violations of § 1952. Defendant Kahn was charged in count 5 with perjury before the grand jury when questioned about his involvement in the foregoing crimes (18 U.S.C. § 1621). Two codefendants who had pleaded guilty testified for the government. One was the Mayor of Johnstown, Pennsylvania. The other was a city councilman, J. Howard Deardorff. Both testified that they had requested and had received payments from Kahn in connection with their vote favoring Teleprompter with respect to a cable television franchise. The Mayor's son, to whom one of the payments had been made in New York by defendants, testified that he mailed the payment to his father in Johnstown. The comptroller of Teleprompter testified that two other checks were mailed from New York to Johnstown. The Mayor testified that he had travelled to New York as alleged and Kahn had travelled to Pennsylvania.
Defendants did not deny that payments had been made to Johnstown officials or that interstate commerce was involved. The defense was that the money had been paid not as a bribe but had been paid as a result of extortion of defendants by the Johnstown officials, who had threatened to deny Teleprompter the right to continue to operate in Johnstown.
The case for the jury was thus simply one of whether it believed the officials who testified for the government or whether it believed the defense version of why the money was paid.
Defendant Kahn appeared before the grand jury on December 17, 1970 and denied that money had been improperly paid, or claimed that he could not recall the facts. He reappeared on January 27, 1971 and read a prepared, detailed statement admitting that money had been paid but setting forth for the first time the claim of extortion.
The motion for a new trial is denied on the ground that a new trial is not required in the interest of justice.
The jury was instructed that it could consider defendant Kahn's testimony before the grand jury of January 27, 1971 to the effect that the money had been paid as a result of extortion in determining the crucial question whether defendants had the requisite intent to influence public officials, an essential element of bribery under Pennsylvania law, and on the issue of knowledge and wilfulness. (Tr. pp. 1167-71, 1193-94) Mr. Kahn's statement was the prime, if not the only, evidence in the case on the defense theory.
Defendants' first claim is that the court failed to instruct the jury, as requested by defendants, that extortion is a complete defense under Pennsylvania law or under federal law to a charge of bribery. This contention, a mere quibble in the light of the instructions that were given, relating to counts 1-4, has previously been ruled on in an opinion filed by this court on October 27, 1971.
Defendants' second, third, and fourth points concern the perjury count of the indictment, count five, which charged defendant Kahn only. With respect to this count, Kahn's first claim is that the government proceeded under the wrong perjury statute, indicting Kahn under 18 U.S.C. § 1621, instead of under 18 U.S.C. § 1623, thereby depriving him of a defense to this count. This argument was ruled on by the court from the bench, adversely to Kahn, during trial, when the objection was made for the first time.
Defendant's contention here is that the government used his allegedly truthful statements before the grand jury on January 27, 1971 to convict him of perjury before the grand jury on December 17, 1970. The chain of inferences suggested by the government, according to Kahn, is that his grand jury testimony of December 17, and that of January 27, were mutually contradictory; ...