decided: April 17, 1975; As Amended June 11, 1975.
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.
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 ...