UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 17, 1975; As Amended June 11, 1975.
UNITED STATES OF AMERICA, APPELLEE,
ELDEN TURCOTTE AND FORREST GERRY, JR., APPELLANTS
Appeal from judgment of Eastern District, Platt, J., entered after jury trial where defendants were found guilty of obstruction of justice and conspiracy to obstruct justice, and where defendant Turcotte was convicted of perjury, asserting that the evidence was insufficient to sustain the convictions and that the trial judge's charge and rulings on venue, severance, and the scope of cross-examination were erroneous. Affirmed.
Lumbard and Oakes, Circuit Judges, and Bartels,*fn* District Judge.
LUMBARD, Circuit Judge:
Elden Turcotte and Forrest Gerry, Jr., appeal from judgments of conviction entered October 11, and October 18, 1974, in the Eastern District (Platt, J.) following a jury trial at which they were convicted of obstruction of justice, 18 U.S.C. § 1503, and conspiracy to obstruct justice, 18 U.S.C. § 371, and at which Turcotte was convicted of making a false declaration to a grand jury, 18 U.S.C. § 1623.*fn1 Defendants argue that the evidence was insufficient to support their convictions, that the trial court made improper rulings on venue and severance, that the charge to the jury was erroneous, that the trial court improperly curtailed the cross-examination of the key government witness and that the United States Attorney improperly cross-examined Gerry. We affirm.
This case arose out of an investigation by a federal grand jury into possible violations of 18 U.S.C. § 224 (sports bribery) in the New York harness racing industry, with particular regard to the fixing of superfecta races at Yonkers and Roosevelt Raceways.*fn2 In connection with this investigation the grand jury tried to determine whether the registered owners of horses were the actual owners. As part of this phase of its inquiry, the grand jury investigated Gerry's relationship with drivers and trainers such as Turcotte.
Here we are concerned with the attempt allegedly made by Gerry and Turcotte to conceal Gerry's ownership of two horses -- Milty Hanover and Adios Misty -- from the grand jury. The government's principal witness was David Kraft, who was involved in the superfecta betting scheme and who cooperated with the government after his arrest for perjury following his first grand jury appearance.*fn3 As a result of Kraft's cooperation the FBI was able to record three conversations which were played for the jury -- two of the conversations were between Kraft and Gerry, one was among Kraft, Gerry and Turcotte.
The evidence at trial showed that although Gerry bought Milty Hanover and Adios Misty for cash, the registration form filed with the United States Trotting Association listed the owner of the horse as Kraft Hill Farms, Inc., a corporation owned by Kraft's sons. Kraft testified that Gerry asked him if he could register the horses in the corporation's name because Gerry was not licensed to own horses.*fn4 According to Kraft, Gerry told him he was going to resell the horses immediately and only wanted to use Kraft Hill Farms as a conduit for the transaction. The horses were not immediately resold; they were raced under the Kraft Hill Farms banner and won several purses. When Kraft began receiving the purse checks, he testified that he told Gerry that he wanted the horses taken out of the corporation's name because he was afraid that his sons would get in trouble with the New Jersey racing authorities if Gerry's activities became known. Gerry, on the other hand, claimed that he bought the two horses for Kraft and that he paid for them himself only as a favor to Kraft.
The recorded conversation of August 19, 1973, in which Kraft, Gerry and Turcotte participated was largely concerned with the two horses. When Gerry and Turcotte arrived together at Kraft's house in New Jersey, Gerry introduced Turcotte to Kraft and said, "I wanted you [Kraft] to meet him [Turcotte] just so you could straighten it out . . . so you guys would both have the same story." There followed a discussion of how Turcotte and Kraft would say they met each other and how they agreed on stabling and training arrangements for Milty Hanover and Adios Misty.
From the transcript of this conversation it appears that Kraft knew virtually nothing about the horses. For example, he did not know from whom or where Gerry bought the horses. Gerry's status as the real owner is also indicated by his desire to mask any connection he had with the horses. Most of the discussion at the August 19th meeting concerned how Turcotte and Kraft could fabricate consistent stories to explain their dealings without implicating Gerry in some crime.*fn5 Turcotte's later testimony before the grand jury on September 14, 1973, was amazingly similar*fn6 to the story that seemed to have been concocted at the August 19th meeting.*fn7
Gerry and Turcotte first challenge the sufficiency of the evidence against them. Turcotte claims that the government did not establish that his testimony before the grand jury was knowingly false as is required to sustain a conviction under 18 U.S.C. § 1623.*fn8
There was sufficient evidence from which the jury could infer that Turcotte knowingly testified falsely. Turcotte's claim that he was an innocent bystander at the August 19th meeting is not borne out by the transcript of that meeting. He actively participated in the fabrication of a story concerning the ownership of Milty Hanover and Adios Misty. The answers he gave the grand jury's question were quite similar to what he proposed to tell at the August 19th meeting. The evidence was sufficient to sustain Turcotte's conviction. United States v. Sweig, 441 F.2d 114, 117 (2d Cir.), cert. denied, 403 U.S. 932, 29 L. Ed. 2d 711, 91 S. Ct. 2256 (1971).
Both Gerry and Turcotte claim that their convictions for obstruction of justice should be reversed because they did not know that Kraft was going to be called before the grand jury, a fact they contend is an essential element of an obstruction of justice case. We find this argument to be unconvincing. Gerry and Turcotte knew that there was a pending federal grand jury investigation into race fixing and hidden ownership of horses. The transcript of the August 19th conversation establishes beyond any doubt that defendants were fabricating a story about Adios Misty and Milty Hanover to tell an inquiring authority. Defendant's suggestion that the story was to be presented to the New Jersey Racing Commission in the event it investigated Kraft's sons is unpersuasive. At the time of the August 19th meeting that body, so far as appears from the record, was not investigating Kraft Hill Farms, Kraft, Kraft's sons, Gerry, or Turcotte.*fn8a Indeed, the August 19th meeting appears to have been arranged by Gerry, not by Kraft, and the fabricated story came mainly from Turcotte's lips. Since neither Gerry nor Turcotte had anything to fear from (or even any interest in) a New Jersey investigation, it is difficult to believe that the object of the meeting was to prepare for a New Jersey investigation.*fn9 On the other hand, the ongoing federal investigation into race fixing which was known to and concerned both Gerry and Turcotte, gave them a motive for fabricating a story for the grand jury.
While it is true that no explicit reference to the pending grand jury investigation was made during the taped conversations,*fn10 we have previously held that circumstantial evidence is sufficient to uphold an obstruction of justice charge. United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960). Here the evidence showed that defendants arranged the meeting, took the active role in fabricating a story about the two horses, and knew that a federal grand jury was investigating the ownership of the horses. Since the evidence established motives for the defendants to concoct the cover story, the jury could properly infer that defendants' object was to obstruct the grand jury proceedings in violation of 18 U.S.C. § 1503.*fn11
Finally defendants suggest that there was no evidence establishing a conspiracy. It is well established that a jury can infer an agreement to violate a law from circumstantial evidence. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). Once the jury determined that Gerry and Turcotte were guilty of obstructing justice, they could infer that they had agreed to do so from the facts that they arrived together at Kraft's farm and both participated in the formulation of the cover story.
Turcotte also argues that the trial court erred in denying his motion to have his trial severed from that of Gerry. He suggests that Gerry's notoriety as a recently convicted race fixer would lead the jury to impute Gerry's wrongdoings to him.
Turcotte's claims of prejudice are unpersuasive. Any possible juror prejudice against Gerry or Turcotte as a result of publicity from the recent race-fixing trial could be (and presumably was) prevented by careful examination of prospective jurors by defense counsel prior to the impanelment of the jury to determine if they had been exposed to any publicity concerning the race-fixing trial. Moreover, this was a relatively simple case and Turcotte was significantly involved in each count of the indictment. While it is true that a limited overview of Gerry's role in a superfecta betting scheme came out at the trial, it was necessary in order to provide the jury with the background against which this case arose. Since the trial judge specifically instructed the jury that it was not to consider any evidence regarding the superfecta betting scheme when it deliberated on Turcotte's guilt or innocence, Turcotte was not prejudiced by this joint trial.
The trial judge is normally afforded wide discretion in deciding whether to order a severance. 1 C. Wright, Federal Practice & Procedure -- Criminal § 227 (1969). That discretion was not abused in this case. Compare United States v. Branker, 395 F.2d 881 (2d Cir. 1968), cert. denied, 393 U.S. 1029, 89 S. Ct. 639, 21 L. Ed. 2d 573 (1969); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966).*fn12
Turcotte and Gerry next argue that the trial court so abused its discretion in restricting their cross-examination of Kraft that their convictions should be reversed. Four instances are given of such alleged improper curtailment of cross-examination: First, they were not allowed to question Kraft about a 1960 felony conviction in New Jersey for atrocious assault and battery. Since the conviction was 14 years old and did not relate to Kraft's truthfulness, the trial court did not abuse its discretion when it did not allow cross-examination about that conviction. See United States v. Owens, 263 F.2d 720, 722 (2d Cir. 1959); Fed.R.Ev. 609 (effective July 1, 1975).
Second, the defendants argue that it was improper for the trial court to prohibit them from asking Kraft whether he had been denied his request for immunity and whether he had told Gerry that he had been denied immunity. The record discloses that the first question was asked and answered in the presence of the jury. While the second question was asked and answered outside the jury's presence, the trial court never ruled that it could not be asked in the jury's presence. What the trial court did not permit was a series of questions that assumed that Kraft had legal knowledge about immunity that he claimed he did not have.
Finally, defendants complain of two occasions when the trial judge limited the scope of their cross-examination of Kraft concerning his motives to testify falsely in favor of the government. Defendants are usually afforded considerable latitude in exploring such motives in their cross-examination of the principal government witnesses against them. Gordon v. United States, 344 U.S. 414, 97 L. Ed. 447, 73 S. Ct. 369 (1953); United States v. Miles, 480 F.2d 1215 (2d Cir. 1973).
Here defendants object to the trial court's refusal to allow them to question Kraft about a New Jersey criminal charge of receiving stolen property then pending against him and its refusal to allow them to examine Kraft on whether he had requested to be sentenced on his sports-bribery conviction prior to their trial. While Kraft was asked the latter question, he replied that he didn't know how to answer it and the trial court later refused to let the defendants inquire further into this matter unless they produced some record document that established that such a request had been made.
The trial court, of course, has discretion in deciding how far defendants can go with such cross-examination. If the jury is otherwise in possession of sufficient information concerning the witness' possible motives for testifying falsely in favor of the government, there is no abuse of discretion if a judge restricts the cross-examination of a government witness. United States v. Miles, supra ; United States v. Blackwood, 456 F.2d 526, 530-31 (2d Cir.), cert. denied, 409 U.S. 863, 34 L. Ed. 2d 110, 93 S. Ct. 154 (1972).
While we think that the trial court should have permitted further questioning about these matters, we do not see how the defendants could have been seriously prejudiced by the court's restrictions.
The trial court did permit defendants to ask Kraft if his testimony was motivated by any promises by the government (which would include a promise to intercede with the New Jersey authorities). In addition, the jury was well aware of the fact that Kraft had already pleaded guilty to a sports-bribery charge on which he had not been sentenced and it could infer from this that Kraft expected leniency because of his cooperation with the government. The trial judge also allowed extensive cross-examination of Kraft as to statements he made which indicated he expected leniency from the government. See Record at 589-610.
Lastly, Gerry argues that the trial court permitted too broad a cross-examination of him when he took the stand in his own defense. He points to three specific instances.
First, Gerry claims he was prejudiced by certain questions that the trial judge permitted the government to ask concerning Gerry's girl friend, Connie Rogers.*fn13 Gerry was asked if he knew that she had been called before the grand jury and that she had been subsequently arrested for cashing superfecta tickets under a false name. He was also asked whether that arrest had resulted in conviction, but an objection to that question was sustained. The first two questions were permissible -- they were asked in an effort to establish that Gerry knew of the grand jury's existence and that its investigation concerned betting on the superfectas. The last question was improper and the trial judge correctly sustained the objection. Gerry's knowledge of Ms. Roger's conviction was in no way related to whether he knew the grand jury was investigating the harness racing industry. If anything it can be viewed as an attempt by the government to suggest Gerry associated with law-breakers.
Second, Gerry claims that the trial judge gave the government too much freedom in cross-examining him concerning his superfecta betting. Since Gerry was accused of trying to influence Kraft's testimony with regard to superfecta betting, we think it was proper for the trial judge to allow the government briefly to question Gerry about the scope of his involvement and his betting, especially since the subject had been brought up during the direct examination by Turcotte's lawyer. It had also been discussed by Kraft in testimony elicited both by defendants and the government. The government's inquiries did not indicate that the betting scheme was illegal and the trial judge repeatedly stressed that neither defendant was accused of race-fixing. Thus, Gerry was not prejudiced by the cross-examination concerning the superfectas.
Finally, Gerry objects to having been asked if he had been accused of race-fixing in 1966. Although an objection was sustained by the trial judge, Gerry denied that he had been so accused. Government counsel should not have asked this obviously improper question. While the trial judge can, and did in this case, sustain objections to such improper questions, the jury is left with the impression that the answer to the questions must be yes. However, we do not feel that this conduct merits reversal here, especially in light of the substantial evidence against Gerry.