Appeals by defendant from convictions and sentences in two separate trials in the United States District Court for the Western District of New York for violation of 18 U.S.C. §§ 1962(c) and (d) and 371, Harold P. Burke, Judge, and for violation of 18 U.S.C. §§ 1361, 842(j) and 371, George C. Pratt, Judge, and appeal by the United States from sentence imposed under 18 U.S.C. § 3575. Appeal by United States dismissed. Affirmed on defendant's appeals.
Before Smith and Meskill, Circuit Judges, and Haight,*fn* District Judge.
These are appeals by a defendant from judgments of conviction entered after two separate jury trials in the United States District Court for the Western District of New York, and by the government from a sentence imposed under the "dangerous special offender" provisions of 18 U.S.C. § 3575. In the first trial, Harold P. Burke, Judge, presiding, the appellant, Eugene DiFrancesco, was convicted of conspiring to participate in and conduct the affairs of an enterprise through a pattern of racketeering activity, which included multiple acts of arson and use of the mails to defraud insurance companies, in violation of 18 U.S.C. § 1962(c) and (d). In the second trial, George C. Pratt, Judge, presiding by designation, DiFrancesco was convicted on three counts which alleged that he willfully caused damage in excess of $100 to federal property, 18 U.S.C. § 1361, unlawfully stored explosive materials, 18 U.S.C. § 842(j), and conspired to commit these acts, 18 U.S.C. § 371. We affirm the convictions and dismiss the government's appeal.
On July 24, 1975, DiFrancesco, together with seven co-defendants, was indicted on charges arising out of a series of bombings that occurred in the Rochester area on Columbus Day in 1970. A second indictment, filed on April 7, 1976, named DiFrancesco and seven others, two of whom were also defendants in the bombing indictment, as defendants in two counts of racketeering involving an "arson-for-hire" ring operating in the Rochester area. Since this second indictment was the first to come to trial, we shall begin by discussing DiFrancesco's appeal from the resulting conviction on the racketeering charges.
DiFrancesco and five of the seven co-defendants in the racketeering indictment were tried jointly, in September and October of 1977. Of the two remaining defendants, Joseph LaNovara pleaded guilty before trial and testified as a witness for the government, while Frank Valenti, the alleged leader of the conspiracy, was severed upon the government's motion because he was ill.
The government presented evidence by which it sought to prove that an arson-for-hire team, which operated as part of a larger organization engaged in illicit activities in the Rochester area, had been responsible for at least eight fires that occurred there between 1970 and 1973. The arson ring allegedly agreed with the property owners to destroy their buildings in return for a share of the insurance proceeds. The government charged that insurance companies had been defrauded of about $480,000 as a result of the eight fires. The jury acquitted four of the six defendants, but convicted DiFrancesco and Vincent Rallo on both counts. DiFrancesco's appeal alleges several errors in the district court.
The most substantial issue raised by DiFrancesco is whether certain statements made by government witnesses to the FBI should have been turned over to the defendants under the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Shortly before this trial began, it was disclosed that allegations of wrongdoing had been lodged against some members of the Monroe County Sheriff's Office. These allegations arose in connection with the Sheriff's Office's investigation of a number of crimes in which the defendants in this case allegedly had been involved, including a murder for which DiFrancesco had been convicted in state court. The FBI, as part of a federal civil rights investigation of the Sheriff's Office's activities, conducted a number of interviews and compiled interview reports.*fn1 The subject matter of some of these interviews included alleged instances of perjury by witnesses in state court proceedings. Some of these witnesses were expected to be called by the United States to testify in the case against DiFrancesco and his co-defendants.
When this matter arose, Judge Burke granted a continuance for one week during which the government represented that it would seek to learn more about the allegations and would then "turn over all materials that is (sic) favorable to the defense that result from the investigation." The government reviewed approximately thirty to thirty-five FBI reports and determined that only one was Brady material. The government then submitted the reports to the trial judge to allow him to decide whether he thought any of the remaining material fell within Brady. The judge picked out about fifteen other reports which he ruled were Brady material, but the government refused to turn over these additional reports to the defendants. It argued that exposure of the reports could endanger the ongoing civil rights investigation. Thus, the government stated that it was "willing to stand or fall on that decision (that the reports were not Brady material) made by itself." The court denied a motion that it order the government to turn over the reports. Instead, those reports which the court believed were Brady material were sealed as Court Exhibit A, and those which the court and government agreed were not within Brady were sealed as Court Exhibit B. At some later time, the government gave defense counsel the reports of interviews of LaNovara and of Angelo Monachino, an unindicted co-conspirator, who was to testify for the government. Both of these reports were part of Court Exhibit A, as was a third report which the government eventually turned over as Jencks Act material.
Our examination of the court exhibits convinces us that the reports included no Brady material. None of the reports exculpated DiFrancesco, nor did any demonstrate that the government's case included perjured testimony. Furthermore, nothing in the reports that the government refused to turn over constituted "material evidence that would impeach a Government witness whose "reliability . . . may well (have been) determinative of guilt or innocence.' " Ostrer v. United States, 577 F.2d 782, 785 (2d Cir. 1978), Cert. denied, 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d 73 (1979), Quoting Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), Quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). One report (Part A of Court Exhibit A) contains two comments attributed to Monachino. Neither of these comments, however, could have been used to impeach Monachino in any way that might have affected the outcome of the trial, which is the standard by which we measure the materiality of undisclosed information for which the defendant makes a specific request. United States v. Agurs, 427 U.S. 97, 104-06, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Ostrer, supra, 577 F.2d at 786. In short, the FBI reports would have added nothing to the vigorous attacks which DiFrancesco and his co-defendants made upon the credibility of a number of the government's witnesses through use of the substantial public information relating to the investigation.
DiFrancesco also raised several arguments involving evidentiary questions and portions of the court's instructions to the jury. The first concerns the introduction into evidence of a state court indictment that charged DiFrancesco and others with an act of arson, a fire at Select Tire Company, that also constituted part of a specific act of racketeering alleged in the federal indictment. The government offered the indictment and had a portion of it read to the jury as part of its rebuttal case, for the stated purpose of making the jury aware of the final disposition of the state court case against one of the persons named in the state indictment.
It is difficult to perceive how the indictment was relevant for the purpose stated by the government. In fact, its relevance and materiality to any issue in the case was, at best, minimal. Counsel for the various defendants, including DiFrancesco, opened up the subject of the state court proceedings in their cross-examination of government witnesses. Introduction of the indictment, however, was not, as the government now contends, necessary to clarify the "meaning" of the outcome of the state trial.*fn2 But admission of the indictment, even if erroneous, did not prejudice DiFrancesco. The jury already knew, from the defendants' cross-examination of government witnesses, that the state grand jury had received testimony implicating DiFrancesco in the Select Tire fire, that some persons had been tried in state court in connection with that fire, that testimony alleging DiFrancesco's participation had been offered at the state court trial, and that DiFrancesco had been named as a co-conspirator in yet another federal indictment alleging mail fraud arising from a separate act of arson. Under these circumstances, admission of the indictment, even if erroneous, was harmless.
DiFrancesco also disputes the admissibility of certain testimony by LaNovara and Monachino, who described the initiation ritual*fn3 followed by the organization of which the arson-for-hire ring was a part. Admission of this testimony was not erroneous. The evidence was probative of the existence of an "enterprise," the affairs of which were conducted through a pattern of racketeering activity, which was a matter on which the court correctly charged that the government had the burden of proof. The evidence was sufficiently probative to outweigh any possible prejudice.
DiFrancesco next contends that the testimony that LaNovara and Monachino were participants in the Federal Witness Protection Program, as authorized by the Organized Crime Control Act of 1970, P.L. No. 91-452, Title V, 84 Stat. 933, should not have been allowed. Since a defendant often will seek to impeach a participating witness by showing that he has received significant benefits while in the program, the government may desire to bring out the witness' participation during direct examination in order to avoid an inference that the government was attempting to hide the witness' possible bias. Although disclosure of such participation "must be handled delicately," United States v. Partin, 552 F.2d 621, 644-45 (5th Cir.), Cert. denied, 425 U.S. 903, 96 S. Ct. 1493, 47 L. Ed. 2d 753 (1977), so as to minimize the possibility that the jury will infer that the defendant was the source of danger to the witness, such testimony is permissible so long as the prosecutor does not attempt to exploit it. No exploitation occurred here, and the defendants cross-examined the witnesses at length to develop the full extent of the benefits received by them. Thus there was no error in allowing the testimony. Nor was the court's instruction to the jury on this subject erroneous or insufficient.*fn4 The instruction did not suggest, as DiFrancesco argues, that the Attorney General was vouching for the credibility of the witnesses. Instead, it simply explained the purpose of the program and dispelled any implication that the benefits received by LaNovara and Monachino were bestowed improperly. No additional instruction was necessary. Id.
Lastly, DiFrancesco argues that the court removed an element of the crime from the jury's consideration by instructing that, if the jury believed the evidence that about $480,000 in claims was paid by insurance companies in New York and other states as a result of the arsons and mail fraud, then the enterprise did affect interstate commerce as required by 18 U.S.C. § 1962(c). This instruction was proper. The court left to the jury the question of fact, whether the claims had been paid as a result of arson engaged in by the defendants. The trial judge correctly determined, however, that if the defendants' alleged actions were proven, the effect of those actions on interstate commerce was a question of law. Cf. United States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), Cert. denied, 384 U.S. 942, 86 S. Ct. 1464, 16 L. Ed. 2d 540 (1966) (whether activities constitute an "industry affecting commerce" under 29 U.S.C. § 186 is a question of law); United States v. Varlack, 225 F.2d 665, 670-72 (2d Cir. 1955) (judge instructed that, if jury believed testimony of government witnesses, defendant's acts affected commerce as defined in Hobbs Act, 18 U.S.C. § 1951).
THE COLUMBUS DAY BOMBINGS
DiFrancesco's attack on his conviction arising from the bombing and explosives charges focuses on the delay between his indictment and the commencement of trial. He contends that the indictment should have been dismissed because this delay violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74 ("the Act"), the Western District's Transitional Plan for Achieving the Prompt Disposition of Criminal Cases ("the Plan"), and the sixth amendment's guarantee of a speedy trial.
DiFrancesco was indicted on July 24, 1975 and arraigned on September 8, 1975. The relevant provisions of the Act, 18 U.S.C. §§ 3161(g) and 3163(b)(2), and of the Plan, § 5(a)(1), did not take effect until July 1, 1976. They require that trial of a defendant arraigned before the effective date shall commence within 180 days of that date. Both the Act and the Plan (§ 10(a)) provide, however, for the exclusion of certain periods of delay set forth in 18 U.S.C. § 3161(h) in computing the 180-day period. DiFrancesco contends that the non-excludable delay in this case amounted to 309 days. The government, which conceded in the district court that the 180-day period had expired, now argues that the non-excludable delay totaled either 283, 273, 177 or 145 days, or perhaps no time at all. We need not choose, however, from among these various calculations, because 18 U.S.C. § 3163(c) delays the effective date of the sanctions provided in § 3162 for violations of the Act until July 1, 1979, United States v. New Buffalo Amusement Corp., 600 F.2d 368 at 376-377 (2d Cir. 1979); United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977), and § 11(e) of the Plan provides that failure to comply with its provisions shall not require dismissal. New Buffalo Amusement Corp., supra, at 376 n.13.
Although the district court retains discretionary power under Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss an indictment because of excessive delay, United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), DiFrancesco did not invoke that discretion and thus cannot complain of the court's failure to exercise it. New Buffalo Amusement Corp., supra, at 376 n.13.
We turn therefore to DiFrancesco's claim that the pretrial delay violated his sixth amendment right to a speedy trial. We shall assume for this purpose that the delay exceeded that allowed under the Act and the Plan, since such a violation may be considered in assessing the merit of a constitutional speedy trial claim. Id. at 2758; Carini, supra, 562 F.2d at 148, 151-52. Nonetheless, we agree with the district judge's thorough and well-reasoned opinion in which he concluded that DiFrancesco's claim lacks merit. United States v. DiFrancesco, Cr. 75-165 (W.D.N.Y. April 3, 1978).
The controlling authority is of course Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), in which the Court enunciated four factors to be considered in evaluating a claim of a denial of the right to a speedy trial. These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the existence of prejudice to the defendant from the delay. Id. at 530, 92 S. Ct. 2182. Other relevant circumstances also may be considered in conducting a "difficult and sensitive balancing ...