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May 17, 1973


Before Friendly, Chief Judge, Lumbard, Circuit Judge, and Thomsen,*fn* District Judge.

Author: Friendly

FRIENDLY, Chief Judge:

Kirby Frazier and Louis Neville were convicted of knowingly using extortionate means to collect extensions of credit, and conspiring to do so, in violation of 18 U.S.C. § 894, after a jury trial before Jack B. Weinstein, Judge, in the Eastern District of New York. The day after receiving the verdict, the district judge sentenced Frazier to ten years imprisonment and a $10,000 fine, and Neville to five years imprisonment. They assert a variety of errors on appeal, relating to evidentiary rulings by the district judge, his revocation of Frazier's bail during trial, his handling of their request for the Government to turn over certain statements of a witness, the Government's temporary refusal to do so, allegedly improper statements by the Assistant United States Attorney, and, finally, as to Frazier, the procedure followed in his sentencing. Finding no merit in any of these contentions save the last, we affirm appellants' convictions but remand to the district court for resentencing of Frazier in the light of a pre-sentence report.

Appellant Frazier first complains of the district court's refusal to allow him to introduce into evidence a tape recording his counsel had made of a pre-trial interview with two of the alleged extortion victims, except subject to certain conditions. During this interview both women had apparently stated that the loans they had received from Frazier were made out of friendship and were interest-free, and that they had never been threatened by him. At trial they admitted making these statements, but testified that Frazier had asked them to meet with his attorney and told them what to say, and they had done so out of fear. Counsel for Frazier sought to introduce the tape recording to demonstrate that the women had not sounded frightened during their interview.

Judge Weinstein first had the tape played in the absence of the jury. Finding much of it unintelligible, he stated that it would not be admitted unless counsel secured a better tape recorder and prepared a transcript of the recording. On the last day of trial Frazier's counsel brought in better sound reproduction equipment, but not a transcript. Judge Weinstein listened to the tape again in the absence of the jury and still found 75% of it unintelligible. Although he first stated that he could not let it in with this degree of inaudibility, he finally relented to the extent of allowing the tape recording to be played before the jury if accompanied by an explanation by the judge that he considered most of it unintelligible and that counsel had failed to comply with the court's request to prepare a transcript of the recorded conversation. Counsel for Frazier then decided not to use the tape and instead took the witness stand himself to describe the interview.

We see no error in the district court's ruling. This court has held that a trial judge has wide discretion in determining whether to allow a recording to be played before the jury when there is a serious question of its audibility. United States v. Knohl, 379 F.2d 427, 439-441 (2 Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967); United States v. Kaufer, 387 F.2d 17, 19 (2 Cir. 1967). There is an obvious danger when a recording is substantially unintelligible that the part that can be heard may leave a misleading impression of the entire conversation. This is particularly true where, as here, the point counsel wanted to make depended on the demeanor of the two women throughout the interview rather than on demonstrating that any particular statement had been made. Moreover, the danger of unreliability of a partly inaudible recording is exacerbated by the substantial impact it may have on the jury. Thus, if, as seems to be agreed, only 25% of the recording involved here was intelligible, the district judge would have been acting well within his discretion if he had stood on his original position and refused to allow the recording to be admitted at all. We therefore see no reason why the court could not impose reasonable conditions upon the recording's admissibility, even if these led appellant's counsel to decide not to use it. Counsel claims that he was unfairly surprised by Judge Weinstein's request for a transcript of the recording on the last day of trial, by which time it was too late to prepare one, and that therefore a statement to the jury that he had not complied with the court's request would have been unreasonable and prejudicial to appellant. However, our reading of the record convinces us that Judge Weinstein made it clear enough from the outset that he wanted to see a transcript of the recorded interview before he would decide whether to allow the tape to be played before the jury.

Appellants also contend that they were prejudiced by the court's handling of their request for the Government to turn over to them, pursuant to the Jencks Act, 18 U.S.C. § 3500, certain pre-trial statements of Selma Harris, allegedly one of the victims of the defendants' extortion, who was called to testify by the defense as a hostile witness. When Harris testified that she had given a statement to an FBI agent, counsel for Frazier sought to approach the bench to request out of the hearing of the jury that the Government produce the statement. The district judge refused to allow this, and counsel was required to ask for production of the statement in open court. When the United States Attorney responded by asking for what purpose counsel wanted the statement, the court answered "He wants to look at it to see if there is an inconsistency between what she said in the statement and what she said on the witness stand," and directed the Government to produce the statement. After the United States Attorney continued to resist on the ground that the Jencks Act did not apply to pre-trial statements of witnesses called by the defense, a short recess was called and the jury was excused. During this recess counsel for Frazier was given the statement, looked it over, and decided not to use it. No further mention of this statement was made after the jury returned.

In United States v. Gardin, 382 F.2d 601, 604-606 (2 Cir. 1967), this court suggested that requests for Jencks Act material should be made and such material turned over out of the presence of the jury. The purpose of this procedure is to prevent the jury from observing defense counsel receive the statement, read it, and then not use it, and thus avoid the implication that the prior statement reinforced the testimony the witness had given on the stand. Even though the statement here was technically not within the coverage of the Jencks Act, we see no reason why the district judge did not allow counsel's request to be made at side-bar and still less for his remark, which would have reinforced the implication the Gardin rule seeks to avoid.

Nevertheless, Gardin does not call for reversal here because the statement was turned over to defense counsel out of the presence of the jury and was never mentioned again. The jury could well have believed that defense counsel had never received the statement. Indeed, this whole episode may have worked to the Government's disadvantage, since the jury could easily have suspected the United States Attorney of hiding from it, as well as from counsel, evidence favorable to the defense. Apart from all this, the case against the defendants was so overwhelming that any error in this respect would have been harmless beyond a reasonable doubt.

The other contentions relating to the convictions can be dealt with more briefly. Appellant Neville claims that part of the grand jury testimony of Selma Harris tended to exculpate him and that therefore the Government's refusal to turn this over to him before she left the stand violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We have the most serious doubt whether this testimony can fairly be called exculpatory but, even if it were, it was turned over to defense counsel on the next day of trial, with ample time for him to recall Harris and make use of it if it were truly helpful. Neville also claims that the court erred in allowing the Government's witnesses, the alleged victims of the extortionate collections of extensions of credit charged in the indictment, to testify about beatings they observed the defendants administer to others in order to collect their loans. This court has often held, however, that such evidence is admissible to show the witness' state of mind. See, e.g., United States v. Zito, 467 F.2d 1401, 1404 (2 Cir. 1972). We see no merit to the other contentions of appellants with respect to their convictions, and therefore these will be affirmed.

However, we must remand Frazier's case to the district court because of the procedure employed in sentencing appellants. Over objection of Frazier's counsel, Judge Weinstein sentenced appellants the day after conclusion of the trial, without awaiting the preparation of pre-sentence reports. At the time, he stated that he did not believe in delaying sentencing for the six weeks to two months required to prepare the reports, and that

My practice is therefore to sentence immediately after the trial allowing the Probation Department to proceed with its investigation while the appeal goes forward and then to permit a motion to resentence, to reduce sentence within 120 days.

For reasons stated in this court's recent opinion in United States v. Manuella, 478 F.2d 440 (2 Cir. 1973), it was erroneous to do this over objection.*fn1 Frazier's sentence must therefore be vacated and the case remanded for resentence in the light of the pre-sentence report. Since Neville appears to have acquiesced in the procedure followed by the judge ...

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