Khan v. United States of America Petition for Writ of Certiorari

    IN THE

Ihtprem? ( ta r t of tin' Ittttrfc States
OCTOBER TERM, 1972

No. 72-

IRVING B. KAHN,

v.
Petitioner,

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Ralph  W ien shienk , E sq. 
Attorney for Petitioner 
Irving B. Kahn 

10 East 40th Street 
New York, New York 

212-679-3260
P hilip  Mandel 
Bernard Rothman 

and
P eter F leming J r.
J ohn E. Sprizzo 

100 Wall Street 
New York, New York

Of Counsel



I N D E X

PAGE

Opinion Below...........................................................  2

Jurisdiction ...............................................................  2

Questions Presented.................      2

Statutory and Constitutional Provisions Involved 4

Statement of the C ase...............................................  4

Reasons for Granting a W ri t .................................... 6

I. The writ should be granted to settle important 
questions—including constitutional questions 
—arising out of the new perjury statute, 18 
U.S.C. 1623. The first three cases to reach 
the Circuit Courts have produced a conflict on 
the question of whether 1623 is now the ex­
clusive vehicle for prosecuting perjury before 
a grand jury, or whether the prosecutor has 
a right of election to proceed under either 
the new statute or under the old statute, 18 
U.S.C. 1621 .................................................  6

II. The Circuit Court decision represents a 
double attack upon the right of trial by jury, 
which should not be allowed to stand un­
answered by this Court. First, the Circuit 
Court assumed that Congress has the right to 
allocate to the trial judge, rather than the 
jury, determinations of fact in criminal cases.
Second, the decision holds that the failure of 
the trial court to submit a material issue of 
fact for jury determination can be regarded 
as non-prejudicial under the harmless error 
rule 9



XI

III. The prosecution of isolated conduct on the 
part of a legitimate businessman unconnected 
with racketeering represents a dangerous 
expansion of the Travel Act and offends basic 
concepts of federal-state relations. .. More­
over, in determining that petitioner was not 
entitled to acquittal even if the jury found 
the payment in fact were extorted by the 
public officer, the lower courts violated long­
standing federal rules for the determination 
of applicable state law and erroneously ap­
plied as “preferable” federal policy a rule 
enunciated by a single circuit in connection 
with a federal statute having no anti­
racketeering purpose ...................................  13

Conclusion .................................................   24

Table of Authorities

Bruton v. United States, 391 U.S. 123 (1968) ___ 12
Chapman v. United States, 386 U.S. 18 (1967) ___ 12
Commonwealth v. Bausewine, 156 Pa. Super. 535

(1945) ...........................    18
Commonwealth v. Exler, 243 Pa. 155 (1914) ........ 17
Commonwealth v. Francis, 201 Pa. Super. 313, cert.

denied, 375 U.S. 985 (1964) ................................ 17
Commonwealth v. Glover, 397 Pa. 543 (1959) . . . .  17
Commonwealth v. Hopkins, 165 Pa. Super. 561

(1949) ...................................................................  17
Commonwealth v. Kilgalien, 379 Pa. 313 (1954) . . 17
Commonwealth v. Masters of Lancaster, Inc., 199

Pa. Super. 36 (1962) ...........................................  17
Commonwealth v. Shook, 211 Pa. Super. 413 (1967) 17
Commonwealth v. Wilson, 30 Pa. Super. 26 (1906) 18
Edwards V. United States, 330 U.S. 395 (1947) . . .  11

PAGE



Ill

Hornstein v. Paramount Pictures, 292 N.Y. 468
PAGE

(1944) ...................................................................  18
McNeese v. Board of Education, 373 U.S. 668 (1963) 16,18 
Mims v. United States, 375 F.2d 135 (5th Cir. 1967) 11
Nardello v. United States, 393 U.S. 286 (1969) . . .  14
Osborne v. United States, 385 U.S. 323 (1966) . . . .  11
People v. Dioguardi, 8 N.Y. 2d 260 (1960).............. 18
Rewisv. United States, 401 U.S. 808 (1971) ........  14,20
Sherman United States, 356 U.S. 369 (1958)___ 11
United States v. Addonizio, 451 F.2d 49 (3d Cir.

1971) .....................................................................  20
United States v. Barash, 412 F.2d 26 (2d Cir. 1969),

cert, denied, 396 U.S. 872 (1969) .......................  16,21
United States V. Bass, 404 U.S. 336 (1972)............  14
United States v. Clizer, 464 F.2d 121 (9th Cir. 1972) 7
United States v. Enmons, — U.S. —, 41 LW 4301,

February 22, 1973 .................................................  14, 20
United States v. Kubacki, 237 F. Supp. 638 (E.D.

Pa. 1965) ...............................................................  21
United States v. Ruggiero, — F.2d — (2d Cir., Jan­

uary 23, 1973) .......................................................  7

Village of Brooten v. Cudahy Packing Co., 291 F.2d 
284 (8th Cir. 1961) .................................    18,19

West v. American Telephone and Telegraph, 311 
U.S. 233 (1946) ...................................................  16,18

Yodel v. Nu-Enamel, 117 F.2d 488 (8th Cir. 1941) 17

Statutes
N.Y. Penal Law 200.05
18 U.S.C. 2 0 1 ..............
18 U.S.C. 1621............
18 U.S.C. 1623 ............
18 U.S.C. 1951............
18 U.S.C. 1952 ............

.............. 18

............3,16,21
-.2, 5, 6, 7, 8,12 
2, 5, 6, 7, 8, 9,12
...............  20,21
......... 1, 20,21



IN THE

iuipmuT tourt uf tltr lutttib Hiatts
O ctober Term, 1972

No. 72-
------------+-----------

Irving B. Kahn ,

v.
Petitioner,

United States of America,
Respondent.

--------------- +---------------

PETITION FOR W RIT OF CERTIORARI TO THE  
UNITED STATES COURT OF APPEALS  

FOR THE SECOND CIRCUIT

Petitioner Irving B. Kahn, a defendant below, respect­
fully prays that a writ of certiorari issue to review the de­
cision rendered by the United States Court of Appeals for 
the Second Circuit (Waterman, Smith and Kaufman, J.J.) 
on January 9, 1973, which affirmed a judgment of convic­
tion entered after a trial before Motley, ./., and a jury in 
the United States District Court for the Southern District 
of New York for conspiracy and violation of the Travel 
Act, 18 U.S.C. 1952, and for perjury. Teleprompter Cor­
poration, a defendant below, also has filed a petition with 
this Court.



2

Opinions Below

The opinion delivered in the Court of Appeals is not yet 
officially reported and is set forth in Appendix A (la-34a). 
The opinions of the District Court are reported at 343 
F.Supp. 1033 and 343 F.Supp. 1047 and are set forth in 
Appendices B and C (35a-64a).

Jurisdiction

The judgment of the Court of Appeals, dated and en­
tered January 10, 1973, is set forth in Appendix D (65a).

The jurisdiction of this Court to review the judgment of 
the Court of Appeals is conferred by 28 U.S.C. § 1254 (1).

Questions Presented

I. Perjury

1. Did and could Congress intend that the prosecutor 
could pick and choose between 18 U.S.C. 1621 and 18 U.S.C. 
1623 in prosecuting perjury before a federal court or grand 
jury?

2. Did and could Congress intend that the factual issues 
of the recantation defense newly provided by 18 U.S.C. 1623 
be determined by the trial court rather than the jury?

3. Under Chapman v. California 386 U.S. 18 (1967), 
can an appellate court’s “finding” as to the lack of factual 
merit in that defense be used under the Harmless Error 
Rule to cure violation of the defendant’s constitutional 
right to trial by jury?



3

4. Was the refusal of the Trial Judge to instruct the 
jury that no perjury could be found in literally truthful 
answers a reversible error?

II. Travel A ct

5. Does the Travel Act, a federal anti-racketeering 
statute, reach isolated conduct by an admittedly legitimate 
businessman on behalf of a public corporation which has 
no racketeering connection?

6. Does the Travel Act sanction the conviction of a 
businessman for bribery if a payment is extorted from the 
businessman by a public official’s repeated threats to 
destroy his business?

7. Where a determination of state law is essential to 
whether a federal criminal statute such as the Travel Act 
has been violated, must a federal district court exhaust 
all available state law data, as is required in federal civil 
diversity cases, before turning to federal law?

8. Where the nexus of the acts alleged in a Travel Act 
prosecution involves two states-—here Pennsylvania and 
New York—in substantially equal degree, and where the 
law of one state (Pennsylvania) is found to be unclear as 
to whether the conduct in question is criminal, are the 
lower courts bound by an express provision of the law of the 
other state (New York) that the conduct is not criminal?

9. Where the prosecution is for violation of the Travel 
Act, an anti-racketeering statute, is “preferable” federal 
policy to be determined by analysis of the Travel Act itself, 
and of other federal anti-racketeering statutes, or by refer­
ence to the more general federal bribery statute, 18 U.S.C. 
201.



4

S ta tu to ry  and  C onstitu tional Provisions Involved

The following statutory and constitutional provisions are 
involved:—18 U.S.C. 1621, 18 U.S.C. 1628, 18 U.S.C. 1951, 
18 U.S.C. 1952, N.Y. Penal Law 200.05, Article 3, § 2, 
Cl. 3, Amendment V, Amendment VI, Fed. R. Crim. P. 
52(a) (66a-72a).

Statement of the  Case

Petitioner Irving B. Kahn, a New York businessman and 
President of Teleprompter Corporation, caused $15,000 to 
be paid to the Mayor of Johnstown, Pennsylvania in 1966. 
Mr. Kahn’s defense was that he paid the money not to 
secure any special advantage but only as a result of the 
Mayor’s extortive threats to destroy Teleprompter’s cable 
television franchise in Johnstown unless he did so.

Petitioner and Teleprompter in fact did not pay to 
get a new franchise. They already had invested more than 
$1,000,000 in the only franchise in Johnstown, which they 
had purchased in 1961 and which by late 1965 was generat­
ing almost 30% of Teleprompter’s revenue.

In January 1966 however—as the Mayor confessed for 
the first time at the trial—a Johnstown crony offered the 
Mayor $20,000 of a $50,000 bribe if he could deliver Tele­
prompter’s franchise to a local business group. The Mayor 
almost immediately ordered a public auction of Tele­
prompter’s franchise. Petitioner fought against the public 
sale of his franchise and, failing in that, saved the franchise 
by offering the city $474,000, the highest bid. Although 
the Mayor, who had received no money at this time, still 
opposed Teleprompter, the City Council reawarded the 
franchise to Teleprompter.



5

The Mayor continued to fight Teleprompter and said 
publicly that its franchise still was in jeopardy despite the 
City Council’s action. He summoned petitioner to Johns­
town and, according to petitioner, threatened to “destroy 
Teleprompter in Johnstown” unless petitioner matched the 
bribe money which had been offered by the local business 
group in January. Petitioner said he therefore agreed to 
pay the Mayor $15,000. All of the money subsequently was 
paid in New York to either the Mayor’s son or the Mayor, 
who traveled to New York to receive payment.

All of these facts were undisputed except that the Mayor 
denied any threats and said it was Mr. Kahn who originated 
the idea of a payment.

Mr. Kahn also was indicted for perjury during his 
original grand jury appearance, even though he later volun­
tarily recanted and made a second statement to the grand 
jury correcting the statements alleged to be perjurious. 
A new perjury statute, 18 U.S.C. 1623, became effective 
shortly before Mr. Kahn’s first grand jury testimony and 
specifically makes recantation a defense. The perjury 
charge however was brought under the old perjury statute, 
18 U.S.C. 1621, which does not recognize recantation as a 
defense.



6

Reasons for G ran ting  a  W rit 

I. Perjury

I. The writ should be granted  to settle im portant questions-— 
including constitutional questions— arising out o f the  
n ew  perjury statute, 18 U.S.C. 1623. T he first three cases 
to reach th e Circuit Courts have produced a conflict on  
the question o f w hether 1623 is now  the exclusive veh icle  
for prosecuting perjury before a grand jury, or w hether  
the prosecutor has a right o f election  to proceed under  
either the new  statute or under the old statute, 18 U.S.C. 
1621.

18 U.S.C. 1623 changes the rules of perjury prosecution 
in two basic respects. The government’s burden of proof is 
eased by elimination of the historic two-witness require­
ment. See 18 U.S.C. 1623(e). And, as specifically relevant 
to Mr. Kahn’s case, recantation is established as a complete 
defense . . . “if, at the time the admission is made, the 
declaration has not substantially affected the proceeding, 
or it has not become manifest that such falsity has been or 
will be exposed.” 18 U.S.C. 1623(d).

The rules of perjury prosecution are markedly dif­
ferent depending upon which statute is applicable. Where 
18 U.S.C. 1621 is the proper statute, two witnesses are re­
quired to convict but recantation is not a defense. Where 
1623 is the proper statute, only one witness is required to 
convict, but recantation is a defense.

In the instant case the prosecution chose 1621 as the 
vehicle of prosecution and thereby avoided Mr. Kahn’s re­
cantation defense. We argued below that 1623 is now the 
only applicable statute. The Trial Court rejected this con­
tention by ruling that the prosecution had the right to elect 
to proceed under either the old statute or the new statute.



7

There already exists a conflict in the Circuits on this 
point which this Court should resolve.

In United States v. Clizer, 464 F. 2d 121 (9th Cir. 1972) 
the Ninth Circuit held that 1623 is now the exclusive vehicle 
for prosecution of perjury before a grand jury. In Clizer, 
even though the government had elected to proceed under 
1621, and the jury had been charged under the provisions 
of 1621, and had returned a verdict of guilty under 1621, 
the Circuit Court held on appeal that satisfaction of the 
two-witness rule under 1621 was unnecessary because 1623 
is the only applicable statute.

In United States v. Ruggiero, ----- F .2 d ------- (2d Cir.
January 23, 1973), however, the Second Circuit held that 
the prosecution is entitled to choose between 1621 and 1623.

The legislative history supports our contention that Con­
gress intended 1623 to supplant 1621 with regard to per­
jury before the courts or grand juries (73a-74a).

We believe that a contrary construction would be un­
constitutional. To make the identical offense punishable 
under two separate statutes containing inconsistent stand­
ards of proof, different punishments, and different defenses, 
is so inherently unreasonable as to violate the requirement 
of due process. This is not a question of the same act con­
stituting two different offenses, but a question of the iden­
tical offense being governed by two inconsistent statutes.

To allow the prosecutor to pick and choose between 
statutes governing the identical offense would allow him 
in many cases to predetermine guilt or innocence and would 
violate the requirements of equal protection of the laws.



8

Finally it must be recognized that the recantation de­
fense was provided in 1623 in order to encourage truth 
telling and the correction of false testimony. It is repug­
nant to suppose that Congress intended to encourage truth 
telling by a promise of immunity under 1623, but intended 
to allow prosecutors to renege upon that promise by pro­
ceeding under 1621 and using the recantation as evidence 
of prior falsity. Even if one could believe that Congress 
might have had such a crafty intention, would it be consti­
tutional to employ such tactics to induce admissions of 
criminal liability?

The choice of statute is critical in the instant case be­
cause Mr. Kahn gave a second statement to the grand jury 
which corrected the allegedly perjurious content of his 
earlier grand jury testimony and thus provided a basis for 
the defense of recantation recognized under the new statute. 
The Trial Court rejected defense motions based on the 
claim of the wrong statute, and also rejected a request 
made by defendant’s attorneys for a jury instruction on 
the defense of recantation under the provisions of the new 
statute. This request was made to protect the record, even 
though the prosecution of the case under the old statute 
placed the issue of recantation outside the bounds of the 
pleadings and evidence, and thus prevented a complete de­
velopment of the evidence surrounding the recantation. 
(Mr. Kahn’s second grand jury statement was put into evi­
dence by the prosecution as proof of perjury in the earlier 
statement.)

While Second Circuit expressed skepticism regarding 
the prosecution’s claim that it could elect to proceed 
under either statute, it avoided a decision as to which



9

statute applied by “finding” that in any event Mr. Kahn’s 
recantation defense had no factual merit. That “finding” 
must be rejected for constitutional reasons set forth in 
Point II, and thus the question of which statute applies 
cannot be avoided in this case.

II. T he Circuit Court decision represents a double attack  
upon the right o f trial by jury, w hich  should not be 
allow ed  to stand unansw ered by this Court. First, the  
Circuit Court assum ed that Congress has the right to 
allocate to the trial judge, rather than  the jury, d eter­
m inations o f fact in crim inal cases. Second, the decision  
holds that the failure o f the trial court to subm it a 
m aterial issue o f fact for jury determ ination can be 
regarded as non-prejudicial under the harm less error 
rule.

The Second Circuit decision avoids a direct finding as to 
which statute applies by holding that in any event Mr. 
Kahn’s recantation defense had no merit, because the re­
cantation was made when “ fit had already become manifest 
that said falsity had or will become exposed.’ ” This 
decision necessarily assumes that under 1623 it is for the 
court to decide whether at the time of recantation it is mani­
fest that the falsity has been or will be discovered—or, al­
ternatively, that in this particular case, the facts were so 
clear that the Court had the right to summarily reject the 
defense. We respectfully submit that on either basis the 
decision contravenes the constitutional right to trial by 
jury.

Whether it is manifest that false swearing has been or 
will be exposed is a question of fact which must be de­
termined upon the circumstances of each individual case. 
The Circuit Court sought to draw a conclusive inference 
from the fact that Mr. Kahn’s recantation was made to the 
grand jury after the date on which other defendants had



10

accused Kahn of bribery. In reaching its conclusion the 
Court inferred, sub silentio, that the secret grand jury testi­
mony somehow became known to Mr. Kahn. The Court 
also inferred that the date on which Kahn’s statement was 
made to the grand jury was the date on which he made his 
admission of falsity. The Circuit Court failed to recognize 
that the defendant does not control the date on which he can 
appear before the grand jury, and that in the normal course 
he must first make his admissions to the U. S. Attorney.1 
The Circuit Court also failed to recognize that trial of the 
case under the old statute had prevented development of 
evidence surrounding the circumstances and timing of Mr. 
Kahn’s recantation, and that it could not be proper to make 
findings of fact upon issues as to which the defendant had 
no trial or hearing. Thus the factual conclusion which the 
Circuit Court regarded as unavoidable was based on in­
ferences and a priori assumptions of fact, bottomed on an 
erroneously restricted record.

But in a fundamental sense it does not matter whether 
the Circuit Court’s findings are accepted as persuasive, or 
even if they are accepted as based on conclusive evidence. 
The heart of the matter is that there is no constitutional 
warrant for the Court to decide issues of fact in criminal 
cases no matter how conclusive the evidence may be re­
garded. The Court may never direct a verdict of guilty in 
a criminal case, and the failure to submit a material issue 
to the jury—no matter how conclusive the Court may 
deem the evidence—-is regarded, pro tanto, as the direction 
of the verdict: United Brotherhood of Carpenters & Joiners 
of America v. United States, 330 U.S. 395, 408, 67 S. Ct. 1

1 These considerations are not hypothetical (76a-78a).



11

775, 91 L. Ed. 973 (1947); Edwards v. United States, 286 
F.2d 681 (5th Cir. 1960); Mims v. United States, 375 F.2d 
135, 147-148 (5th Cir. 1967).

The Circuit Court believed that Congress intended that 
the court and not the jury should determine a recantation 
defense. It drew this conclusion from the statutory lan­
guage providing that recantation shall be a “bar to prose­
cution.” We respectfully disagree with the Court’s conclu­
sion as to congressional intent, but in any event we believe 
that no federal criminal statute can allocate to the court 
determinations of fact going to the general issue. It makes 
no difference whether the fact arises in the nexus of the 
prima facie case, or whether, as here, it arises out of a de­
fense in the nature of confession and avoidance—fact 
issues must be determined by the jury. There is no doubt 
that the jury must determine such affirmative defenses as 
self defense and entrapment, Sherman v. United States, 
356 U.S. 369 (1958); Osborne v. United States, 385 U.S. 
323 (1966), and the defense of recantation is in the same 
category.

Superficially it might seem that if Congress could with­
hold the defense of recantation entirely, it could couple the 
grant of the defense with a condition that it be tried to the 
court, but this view cannot withstand analysis. Congress 
has broad discretion in defining crimes and defenses, but 
within the boundary of any such definition all facts must 
be triable by the jury, and Congress cannot legislate other­
wise.

The Circuit Court’s decision also relies upon a line of 
cases under the “Harmless Error Rule” to the effect that no 
prejudice results to the defendant merely from the fact that



12

he is prosecuted under the wrong statute. But in the instant 
case the Trial Court’s reliance on the wrong statute pre­
vented submission of the recantation defense to the jury, 
causing a prejudice which cannot be cured by any appel­
late finding as to the factual merits of the recantation 
defense. The Circuit Court’s finding in the instant case that 
the defense of recantation was not “available” to Mr. Kahn 
is no more than a left handed finding of fact and thus is an 
usurpation of the province of the jury.

We believe that the right to trial by jury on factual 
issues in criminal cases is a fundamental constitutional 
right, denial of which can never be cured under the Harm­
less Error Rule. The precise point made by us has not been 
specifically decided by the Supreme Court, but we believe 
that the issue and the answer are implicit in the Court’s 
following decisions. Chapman V. California, 386 U.S. 18 
(1967) ; Bruton V. United States, 391 U.S. 123 (1968); 
Harrington v. California, 395 U.S. 250 (1969).

We think there is no doubt that the trial court would 
have submitted the defense of recantation to the jury if the 
prosecutor had selected 1623 as the vehicle of prosecution. 
This would have allowed the jury to decide the factual 
merit of the defense. This was denied Mr. Kahn when the 
trial court accepted the prosecution’s argument that it had 
the right to pick 1621 in its discretion and conducted the 
trial on that basis.

Unless the prosecution actually has such a choice of 
statute, the trial court committed error which the Circuit 
Court stretched too far in an attempt to cure. As the 
Circuit Court’s opinion now stands it represents a danger­
ous erosion of the right of trial by jury. The suggestion



13

that Congress could legislate away the right of trial by jury 
of a recantation defense is possibly even more dangerous 
than the idea that an Appellate Court can cure a failure to 
submit a defense to the jury by finding that the defense 
had insufficient factual merit, and thus was “unavailable 
to the defendant”. Surprisingly little has been written by 
this Court, or even the lower courts, concerning the peri­
pheral limits of the right to trial by jury: See dissenting 
opinion of Justice Black in United States v. Gainey, 380 
U.S. 63, 77-78 (1965). We think these are compelling 
reasons to issue the Writ.

*  *  *  *  *

In light of Bronston v. United States, ------ U.S. ------
(1972), petitioner wishes to reserve Question 4, supra, 
p. 3, in the event the Writ is granted. III.

III. T he prosecution o f iso lated  conduct on the part o f a  
leg itim ate businessm an unconnected w ith  racketeering  
represents a  dangerous expansion  o f the Travel A ct and  
offends basic concepts o f federal-state relations. M ore­
over, in determ ining that petitioner w as not entitled  to 
acquittal even if  the jury found the paym ent in fact 
w ere extorted by the public officer, the low er courts 
violated  long-standing federal rules for the determ ina­
tion o f applicab le state law  and erroneously applied  as 
“p referab le” federal policy a rule enunciated  by a single  
circuit in connection w ith  a federal statute having no  
anti-racketeering purpose.

1. This Court has never determined whether the Travel 
Act, which was specifically intended to deter racketeering 
activity only, may be employed to prosecute isolated conduct 
by a legitimate businessman having no connection with any 
racketeering enterprise or activity.

The need for such a determination is essential in view of 
the proliferating use of the Travel Act to reach and punish



14

non-racketeering conduct. If this conviction stands then 
any bribe of a state or local official is punishable under the 
Travel Act if phones or mail or any interstate facility is 
used. This raises questions basic to the concept of federal­
ism, as this Court recognized in Rewis v. United States, 401 
U.S. 808, 812 (1971) :

“In such a context, Congress would certainly 
recognize that an expansive Travel Act would alter 
sensitive federal-state relationships, could over-ex- 
tend limited federal police resources, and might well 
produce situations in which the geographic origin 
of customers, a matter of happenstance, would 
transform relatively minor state offenses into fed­
eral felonies.”

See also United States v. Enmons, ------ U.S. ------, 41
LW 4301, February 22, 1973; United States v. Bass, 404 
U.S. 336, 349 (1972).

In this very case, one of the Pennsylvania statutes which 
petitioner allegedly violated was a misdemeanor. See 18 
Pa. Stat. § 4304.

After reviewing the legislative history, this Court twice 
has recognized that the Travel Act is aimed “at organized 
crime and, more specifically, at persons who reside in one 
State while operating or managing illegal activities located 
in another.” Rewis V. United States, supra, 401 U.S. at 
811; Navdello v. United States, 393 U. S. 286 (1969).

Attorney General Kennedy, who sponsored the statute, 
described the statute’s narrow purpose and scope as fol­
lows:

“The target clearly is organized crime. . . . Obvi­
ously, we are not trying to curtail the sporadic,



15

casual involvement in these offenses but rather a 
continuous course of conduct sufficient for it to be 
termed a business enterprise.” Hearings before 
Senate Committee on the Judiciary, 87th Cong. 1st 
Sess. p. 16 (1961).

Assistant Attorney General Miller before the House Ju­
diciary Committee:

“H.R. 6572 bans unlawful businesses—not inci­
dental illegal acts done in the course of lawful busi­
nesses. Since the bill in addition would require proof 
of the requisite intent before a violation could be 
made out, I believe that the scope of H.R. 5672 in 
no way threatens the activities or rights of any per­
sons other than the organized criminals at whom it 
is aimed.” (Hearings before House Committee on 
the Judiciary, 87th Cong. 1st Sess., 1961, p. 836.)

The Travel Act was not intended to substitute Federal 
authority for that of the state absent that type of sprawl­
ing organized crime activity which the states lack adequate 
resources to fight. Sound policy reasons suggest that isola­
ted transactions like petitioner’s should be left to state and 
local officials who are in the best position to determine what 
happened and who should be punished in the interest of 
the community most affected, and to the state courts which 
are in the best position to decide the legal merits of issues 
which, in a Travel Act prosecution, require an analysis and 
understanding of state law. In this very case, the local 
official received a suspended sentence and the business­
man five years in jail, and the lower federal courts were 
unable to decide whether petitioner’s conduct violated the 
law of Pennsylvania.



16

2. The basic legal question in this Travel Act case 
was whether a payment made as the result of extortion by 
a public official is a kind of conduct which is prohibited by 
the Travel Act. If not, the petitioner was entitled to a 
jury instruction that he should be acquitted of that charge 
if the jury believed him. This instruction was requested 
and refused (75a-76a). This error stemmed from the 
lower courts’ confusion and uncertainty as to choice-of-law 
in a Travel Act case, which should be cleared up by this 
Court.

First of all, the lower courts turned away too soon from 
an examination of state law on the question. They looked 
first to the law of Pennsylvania, but ended that inquiry 
when it developed that “there [were] no Pennsylvania 
cases on point” (8a-9a). Instead of analyzing rather 
substantial Pennsylvania authority which bore on the issue, 
the lower courts made an ad hoc decision that the Second 
Circuit’s decision in United States v. Barash, 412 F. 2d 
26 (2nd Cir.), cert, denied, 396 U.S. 872 (1969), which 
interpreted the essentially unrelated federal bribery stat­
ute, 18 U.S.C. 201, represented “preferable” federal policy.

The approach of the lower courts violated their duty as 
federal courts, faced with a question of state law, to “as­
certain from all the available data which the state law has 
and apply it * * * *. West v. American Telephone and Tele­
graph, 311 U.S. 233, 236-237 (1946). It is no matter that 
the Pennsylvania courts have never been faced with the 
precise issue and therefore have never decided it. Mere 
difficulty in predicting what a state court would do does not 
relieve a federal court of that burden. McNeese v. Board 
of Education, 373 U.S. 668, 673 n. 5 (1963). They must



17

make the prediction and, to do so, must examine and weigh 
“any convincing manifestations of local law, having a clear 
root in judicial conscience and responsibility whether rest­
ing in direct expressions or obvious implication and refer­
ence . . Yodel v. Nu-Enamel, 117 F. 2d 488, 489 (8th Cir. 
1941).

The lower court ignored this obligation and gave no 
weight to substantial authority which compels the conclu­
sion that a Pennsylvania court would recognize extortion 
as a defense to bribery in that state, especially under the 
constructional mandate of Commonwealth v. Exler, 243 
Pa. 155, 162, 89 A. 968, 971 (1914):

“ [W]hen a criminal statute calls for construc­
tion, it is not the construction that is supported by 
the greater reason that is to prevail but that which, 
if reasonable, operates in favor of life and liberty.”

See also 118 Pa. Stat. § 5104: Commonwealth v. Shook, 211 
Pa. Super. 413, 235 A. 2d 559, (1968) : Commonwealth v. 
Masters of Lancaster, Inc., 199 Pa. Super. 36; 184 A. 2d 
347 (1962); Commonwealth v. Glover, 397 Pa. 543, 156 
A. 2d 114 (1959).

The Pennsylvania courts have said that bribery 
and extortion are mutually exclusive crimes. Common- 
lOealth v. Francis, 201 Pa. Super. 313, 191 A. 2d 884 
(1963). They have reasoned that a victim of a public 
official’s extortion cannot be his accomplice. Commonwealth 
v. Hopkins, 165 Pa. Super. 183, 171 A. 2d 561 (1961), 
rev’d on other grounds, 407 Pa. 1: 79 A. 2d 360 (1962). 
They also have held that bribery requires both a giver and a 
taker and that “ [e]ach is the accomplice of the other.” 
Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d 708



18

(1954). Certainly if an extortion victim cannot be the 
accomplice of the extortioner and if bribery requires a 
giver and a taker, both of whom are accomplices, it follows 
logically that the victim of an extortion cannot be con­
victed of bribery. See e.g., Commonwealth v. Wilson, 30 Pa. 
Super. 26 (1906). Finally, the Pennsylvania courts have 
insisted that Pennsylvania bribery statutes are to be 
strictly construed. Commonwealth v. Bausewine, 156 Pa. 
Super. 535, 40 A. 2d 919 (1945), rev’d on other grounds, 
345 Pa. 35, 46 A 2d 491.

For these reasons it is predictable that a Pennsylvania 
court, faced with the precise issue, would decide it in 
petitioner’s favor. By refusing to go further than a deter­
mination that there was no precise determination under 
existing Pennsylvania law, the lower courts committed 
fundamental error. McNeese v. Board of Education, 373 
U.S. 668, 673, n. 5 (1963); West v. American Telephone 
and Telegraph Co., 311 U.S. 223, 236-237 (1946); Village 
of Brooten v. Cudahy Packing Co., 291 F. 2d 284 (8th Cir. 
1961) (Blackmun, J.).

3. Any doubt as to the law of Pennsylvania should have 
been resolved in petitioner’s favor in any event by reference 
to the law of New York which clearly exempts an extortion 
victim from the charge of bribery. N.Y. Penal Law 
200.05; Hornstein v. Paramount Pictures, 292 N.Y. 468 
(1944); People v. Dioguardi, 8 N.Y. 2d 260 (1960).

Under the Travel Act no behavior is punishable unless 
it is “in violation of the laws of the state in which com­
mitted”. In the instant case the state “in which committed” 
was clearly—if ungrammatically—Pennsylvania and New 
York. Most of the money was paid in New York. The



19

Mayor of Johnstown travelled to New York, just as Mr. 
Kahn travelled to Pennsylvania. Interstate telephone con­
versations ran both ways. Teleprompter’s main office was 
in New York and Mr. Kahn is a New York citizen. Thus 
the nexus of the instant case involves the State of New 
York to the same extent as the State of Pennsylvania.

If the policy of Pennsylvania is unclear, that of New 
York is crystal clear. Under New York law a citizen who 
yields to extortion of public officials cannot be convicted 
of bribery. In New York this is not merely judge made law, 
but an express statutory provision designed to recognize 
the realities of life. New York State as a matter of public 
policy seeks to avoid any possibility that a citizen shaken 
down by officials who misuse governmental powers shall 
be further injured by government through a bribery prose­
cution as a result of being so victimized.

In reaching this policy the legislators of New York 
decided that the need to protect the citizen was more 
important than the deterrent effect of a rule that would 
leave an extorted business man open to a bribery charge. In 
the instant case, the District Court and the Circuit Court 
adopted precisely the opposite policy.

We suggest that the legislative intent of the Travel Act— 
namely to respect the policies of the respective states— 
requires that if the law of one state is unclear, and the 
law of the other state involved in the act is absolutely 
clear, the law of the second state must be binding in the 
case. See Village of Brooten v. Cudahy Packing Co., 291 
F. 2d 284 (8th Cir. 1961) (Blackmun, J.). We believe this



20

to be a question of first impression which should be settled 
by this Court. This conclusion is especially valid in Travel 
Act prosecutions where, almost by definition, the allegedly 
criminal conduct invariably takes place in more than one 
state.

This approach to the question of applicable state law 
also would give genuine substance to the principle referred 
to in Rewis v. United States, supra, 401 U.S. at 812, where 
this Court said, in reversing another Travel Act conviction 
because the conduct involved was not within its statutory 
reach:

“In short, neither statutory language nor legislative 
history supports such a broad-ranging interpreta­
tion of Section 1952. And even if this lack of sup­
port were less apparent ambiguity concerning the 
ambit of criminal statutes should be resolved in 
favor of lenity. . . . ” (Emphasis added)

See also United States v. Enmons, supra, 41 LW at 4306.

4. Denial below of Kahn’s contention that extortion is 
a defense to a charge of bribery under Section 1952 was 
also inconsistent with those cases which have interpreted 
and administered its sister federal statute, 18 U.S.C. 1951, 
which also was intended to deter racketeering. The cases 
decided under that statute make it clear that even lesser 
economic threats (existing property rights not involved) 
constitute extortion on the part of the public official and 
that the businessman payor in such circumstances is a 
victim and not a criminal. See e.g., United States v. 
Addonizio, 451 F, 2d (3rd Cir. 1971). The application of 
the Travel Act to a case like petitioner’s therefore results 
in the prosecution of the very class of persons which its 
sister statute, 18 U.S.C. 1951, was intended to protect.



21

In this respect it is clear also that a defendant charged 
with extortion in violation of 18 U.S.C. 1951 is allowed to 
defend on the ground that the payment was voluntary and 
therefore was a bribe and not extorted. See e,g., United 
States v. Kubacki, 237 F. Sup. 638 (E.D. Pa. 1965). See 
also Advisory Committee’s Notes, 18 U.S.C. 1951. It would 
be most incongruous to allow bribery as a defense to extor­
tion under 18 U.S.C. 1951 while rejecting extortion as a 
defense to bribery under the Travel Act.

5. Thus the Courts below by-passed the proper sources 
of law on the question of extortion as a defense under 18 
U.S.C. 1952. They failed to determine Pennsylvania law; 
they refused to follow New York law; and they overlooked 
analogous cases under 18 U.S.C. 1951, a sister statute of 
the Racketeering Chapter of the Criminal Code. Instead, 
they choose the least appropriate source of law, namely 
the rule in United States v. Barash, 412 F. 2d 25 (2nd Cir. 
1969), which arose under 18 U.S.C. 201, the statute appli­
cable to bribery of federal officials and employees, a con­
text having no connection with racketeering or federal- 
state relations.

Further the Circuit Court overlooked that the instruction 
given in this case went beyond the Barash instruction, Id., 
412 F.2d at 30, and went beyond the instruction in any case 
we know of, in telling the jury that if it finds that there 
was extortionate pressure, and even if it finds that Kahn 
paid the money because of such pressure, then the jury 
could still convict Kahn. The precise language of the in­
struction given by the Trial Court was as follows (75a) 
(emphasis added):

“Tompkins and Deardorff denied having conducted 
themselves in this fashion. Whether they did or



22

did not so conduct themselves is an issue of fact 
for you, the jury. But if you find that there was 
such pressure by Tompkins and Deardorff, and if 
you find that thereafter Kahn paid money because 
of such pressure, then you may consider the conduct 
of Tompkins and Deardorff as bearing on the issue 
whether Kahn, in making such payment or pay­
ments, had the requisite intent to influence action 
of a public official, which is an essential element of 
the offense of bribery under Pennsylvania law, as 
I have already described to you.”

We believe that no prior case, including Barash, con­
tained an instruction that the defendant could be found 
guilty even though the jury found that he paid because of 
extortionate pressure. Under the Barash instruction the 
jury was told that if it found that extortionate pressure 
was put on the defendant it could take that fact into ac­
count in considering whether he made that payment with 
the requisite criminal intent. A fair reading of the Barash 
instruction is this:—If the jury finds extortionate conduct 
then it should consider whether in fact that conduct caused 
the payment to be made. The implication of the Barash 
charge was that a finding of such causality would exon­
erate the defendant.

The defendant is charged right into jail by an instruction 
that a payment made because of extortionate pressure is 
still corrupt if made to affect official action. By definition, 
the victim of extortion pays the official to avoid official 
action which will unlawfully injure him. Why else would a 
citizen make such a payment, unless the official happens to 
be his nephew or son-in-law?



We believe that if a jury finds the defendant paid because 
of extortionate official pressure, the defendant must be 
found to be not guilty of bribery. The proerustean policy 
adopted by the Circuit Court—let him call the police—is 
harsh, and unrealistic. Corroborative proof of the shake 
down is not usually available to the victim. It is his word 
against the official’s. The police may be deaf, or worse. 
Often the official malefactors have strong and secret allies. 
It is bad enough that we cannot always protect our citizens 
from corrupt officials—certainly the law should not make 
them criminals because they have been victimized. We have 
never said that a jury was obliged to acquit Mr. Kahn, but 
only that the jury should not have been deprived of that 
opportunity by an instruction that said Mr. Kahn was 
guilty if he paid the money, regardless of why he paid the 
money.

-X- * «• ' *

Petitioner respectfully adopts Teleprompter’s question 
with regard to the grand jury selection. See Teleprompter’s 
Petition.



24

CONCLUSION

F or these  reasons, a  w rit of certio rari should issue to 
review  th e  judgm en t and  opin ion  of th e  Second Circuit.

Dated: New York, New York 
March 1, 1973

Respectfully submitted,

Ralph W ienshienk  
10 East 40th Street 

New York, New York 
212-679-3260

P hilip  Mandel,
P eter E. F leming, J r. 
J ohn E. Sprizzo 
Bernard Rothman 

Of Counsel



A PPEN D ICES



l a

A PPEN D IX  A

O pinion in  th e  C ourt of A ppeals

UNITED STATES COURT OF APPEALS 

F or the Second Circuit

Nos. 119, 120—September Term, 1972.

(Argued October 18, 1972 Decided January 9, 1973.) 

Docket Nos. 71-2205-6, 72-1776-7

-------------- f-------- -----
United States of America,

v.
Appellee,

Irving B. Kahn  and Teleprompter Corporation,

Appellants.
------------- f--------- -----

B e f o r e  :
Waterman, Smith  and Kaufman,

Circuit Judges.

Appeals from judgments of conviction and sentences 
entered after a jury trial in the United States District 
Court for the Southern District of New York, Constance 
Baker Motley, Judge, of Irving B. Kahn and Teleprompter 
Corporation for conspiracy and violation of the Travel Act, 
18 U.S.C. §1952, of Kahn also for perjury, and from denial 
of motion for a new trial.

Affirmed.



2 a

P eter F leming, J r., New York, N.Y. (Curtis, 
Mallet-Prevost, Colt & Mosle, New York, 
N.Y., John E. Sprizzo and Martin J. Pros- 
cia) and Philip Mandel, New York, N.Y., 
of counsel, for Appellant Kahn.

Robert B. F iske , J r., New York, N.Y. (Davis, 
Polk & Wardwell, New York, N.Y., Dale 
L. Matschullat and Alan M. Dershowitz, 
of counsel), for Appellant Teleprompter 
Corp.

J ohn W. N ields, Asst. U.S. Attorney, (Silvio 
J. Mallo, Acting U.S. Attorney for the 
Southern District of New York, John D. 
Gordan, III, Asst. U.S. Attorney, of coun­
sel), for Appellee.

Sm ith , Circuit Judge:

This case takes us into the corrupt municipal politics of 
Johnstown, Pennsylvania, where local franchises were ap­
parently granted to the highest bidder—of the biggest bribe 
to local officials. In 1966, Irving B. Kahn, on behalf of 
Teleprompter Corporation, made such a payment to three 
Johnstown officials to insure the retention of a local cable 
television franchise. The plot was later uncovered, and 
prosecution ensued. After a jury trial in the Southern 
District of New York, Constance Baker Motley, Judgei 
Kahn and Teleprompter were convicted of conspiracy and 
violation of the Travel Act, 18 U.S.C. §1952; Kahn was also 
convicted of perjury arising out of related grand jury pro­

Appendix A— Opinion in the Court of Appeals



ceedings. A motion for new trial was denied. Aided by 
able counsel, both appellants have now launched massive 
appeals. Nonetheless, we find no error and affirm.

I. The  F acts

The background facts are not seriously in dispute. Ap­
pellants admit that the payment, totaling $15,000, was 
made to the three Johnstown officials, and that they paid 
the money to retain the TV franchise. In defense, they 
claim that the payment was the result of extortion, threats 
by the local politicians to destroy Teleprompter’s valuable 
franchise.

The key characters to the drama can be quickly identified. 
Kahn was the president, founder, and chairman of the 
board of Teleprompter, which had operated a cable TV 
franchise in Johnstown since 1961. Kenneth 0. Tompkins 
was the mayor of Johnstown; J. Howard Deardorff and 
Robert McKee were members of the City Council, who 
together with Tompkins, comprised a majority of that 
body.

Tompkins was elected in 1963, on a platform that in­
cluded promises to increase local revenues from cable 
TV. In April, 1965, the City Council passed an ordinance, 
authorizing the granting of “non-exclusive licenses” for 
the operation of cable television franchises in return for 
payments to the city of about $12,000 a year. Teleprompter, 
which until then had been paying $600 annually for what 
to all intents and purposes was an exclusive license, be­
came understandably upset, and initiated court action to 
void the ordinance as unconstitutional. Negotiations fol-

Appendix A— Opinion in the Court of Appeals



4a

lowed, and the parties apparently settled upon an ar­
rangement that would require Teleprompter to make an­
nual payments to the city, beginning at $7500 and increas­
ing to $12,000, in return for an exclusive franchise. This 
agreement was submitted to the City Council on December 
14, 1965, and set down for consideration at the next weekly 
meeting.

A vote on the Teleprompter agreement never came. On 
December 21, representatives of four companies appeared 
at the meeting, and offered to bid on the TV franchise. 
On December 28, the representative of a fifth firm did like­
wise. At least two of the companies publicized their offers, 
which were on the surface considerably more generous 
than the proposed Teleprompter agreement.1 On January 
18, 1966, the Council announced that bids would be taken 
for the franchise, which would then be awarded at the 
February 1 meeting.

Kahn came quickly to Johnstown to fight the proposed 
bidding. On January 24, he met in his room at the Holiday 
Inn with Tompkins, Deardorff and McKee. According to 
Tompkins and Deardorff’s trial testimony, Kahn orig­
inally tried to argue the three out of going through with 
the proposed bidding, but finally offered each a $5000 bribe 
if they would vote for Teleprompter on February 1. All 
agreed.

On the following day, Kahn appeared before the Council, 
and maintaining his previous public posture, argued stren­

Appendix A— Opinion in the Court of Appeals

1 Trans Video Company of Barnesboro, Pa., offered $421,620 over 
twenty years, and the Johnstown Traction Company offered $450,000 
over twenty years or 4% of gross receipts, whichever was higher.



5a

uously against the proposed bidding. He spent several 
more days in Johnstown, continuing his public lobbying 
efforts.

Nevertheless, the bidding went forward. Teleprompter 
did not formally “bid”, but did make an “offer” of $474,000 
for a twenty-year exclusive franchise.2 That bid was ac­
cepted by the Council on February 1, subject to further 
negotiations about specific conditions. Other bids were 
formally rejected on February 8; after intermediate nego­
tiations between Teleprompter and the city, the franchise 
was finally awarded on March 2.

In the meantime, on February 26, Kenneth 0. Tompkins 
II, the mayor’s son, went to New York City and picked up 
a $7500 check from Teleprompter’s public relations firm. 
He deposited the check, installment number one of the 
bribe, in a New York bank, drew two checks, and mailed 
them to his father, who distributed the proceeds. The 
next installment came in August, 1966, when the mayor 
himself went to New York, and collected $6000 from Tele­
prompter for a fictitious office machine that had allegedly 
been sold to the local TV franchise by Tompkins’ office 
supply company. The same ploy was used to mask the 
final $1500 payment, in October, 1966, which was mailed 
directly to Tompkins’ office.

On October 28, 1970, the younger Tompkins received a 
subpoena to testify before a grand jury in the Southern 
District. On November 6, he appeared, and falsely tes­
tified that the first $7500 check was in return for survey 
work he had done for Teleprompter. On November 25,

Appendix A— Opinion in the Court of Appeals

2 This stance was apparently taken to protect Teleprompter’s litiga­
tion posture that the bidding procedure was unconstitutional.



6a

the mayor appeared before the grand jury, and invoked 
the Fifth Amendment. Deardorff followed suit on De­
cember 16. On December 17, Kahn appeared for the first 
time and testified. He denied the payment of any bribes, 
and described the survey work allegedly done by the 
younger Tompkins.

In the next several weeks, the city officials apparently 
decided to make a clean breast of things. The mayor re­
appeared on December 22 and Deardorff on December 29, 
and both testified about the bribes. McKee again declined 
to testify on December 22, but on December 29 relented 
and also testified about the bribes. Finally, on January 
27, Kahn reappeared, and read a prepared statement, ad­
mitting the payments but claiming that they were extorted.

Indictments followed, charging Kahn, Tompkins, Dear­
dorff, McKee and Teleprompter with conspiracy and vio­
lation of the Travel Act, and charging Kahn with perjury. 
Tompkins and Deardorff pleaded guilty to conspiracy and 
testified for the government at the ensuing trials. McKee’s 
case was severed, and he was convicted3 after a trial be­
fore Judge Motley subsequent to that of Kahn and Tele­
prompter. The conviction was affirmed here. United States 
v. McKee, 462 F.2d 275 (2d Cir. 1972).

II. T h e  E xtortion  D e f e n s e

As noted above, while admitting the $15,000 payments, 
Kahn and Teleprompter claimed that the money had been 
extorted from them. The factual outlines of the defense, 
presented chiefly through Kahn’s grand jury testimony,

Appendix A— Opinion in the Court of Appeals

3 McKee was acquitted with regard to one Travel Act count.



7a

were as follows. The January 24 meeting at the Holiday 
Inn was a wholly innocent one, devoted wholly to legitimate 
lobbying against the proposed bidding. Realizing the ap­
parent futility of its lobbying efforts, Teleprompter de­
cided to make an offer the Council couldn’t refuse, and the 
$474,000 bid followed. The size of the bid caught the 
mayor and Council off guard, and they were forced to 
accept it. But this angered the corrupt officials, who had 
planned to award the franchise to another bidder. Thus, 
the officials took advantage of the time period after Feb­
ruary 1, ostensibly devoted to detailed negotiations, to 
threaten withdrawal of Council approval unless Tele­
prompter agreed to a “payoff.” These threats, which 
went to the very economic survival of Teleprompter in 
the cable TV line, finally overwhelmed Kahn on February 
10, and he reluctantly succumbed to the nefarious scheme.

Since appellants fully presented this defense to the jury 
below, which through its verdict of guilty rejected it, our 
obligation to view the evidence in the light most favorable 
to the government, Glasser v. United States, 315 U.S. 60, 
80 (1942), would ordinarily require us to do the same. But, 
Kahn and Teleprompter claim that Judge Motley’s instruc­
tions on the extortion defense prevented the jury from 
fairly considering the issue. It is to those contentions we 
now turn.

The Travel Act, 18 U.S.C. §1952, makes it a crime to use 
an interstate facility with intent to “promote, manage, es­
tablish, carry on, or facilitate the promotion, management, 
establishment, or carrying on, of any unlawful activity,” 
including bribery in violation of state law. Just as the ini­
tial inquiry in a Travel Act case is whether the underlying

Appendix A— Opinion in the Court of Appeals



8a

activity violates a state law, see United States v. Nardello, 
393 U.S. 286 (1969), the assertion of a particular state law 
defense in such a case requires a determination of whether 
the relevant state recognizes the defense. United States v. 
D’Amato, 436 F.2d 52, 53 (3rd Cir. 1970).

In the case at hand, appellants claim that Judge Motley 
erred by not instructing the jury that the defendants should 
be acquitted if it were found that they paid the money in 
response to extortion, or put briefly, that proof of extortion 
was a complete defense to bribery. Instead, the trial court 
told the jury that extortionate conduct by the public 
officials, if proved, could be considered by them in connec­
tion with the issue of whether the defendants had the 
requisite criminal intent and willfulness to violate the law. 
Since the Travel Act counts here were premised on a viola­
tion of several Pennsylvania bribery statutes,4 the relevant

Appendix A— Opinion in the Court of Appeals

4 The Pennsylvania statutes which Kahn and Teleprompter were 
charged with violating were as follows:

18 Pa. Stat. §4303:
“Whoever shall . . . give or make any promise for the pay­
ment . . .  of any money . . .  in order to obtain or influence the 
vote, opinion, verdict, award, judgment, decree, or behavior 
of . . . any officer . . .  of this Commonwealth or of any political 
subdivision thereof . . .  in any . . . matter or thing whatsoever, 
depending or which shall depend before him or them, is guilty 
of bribery.”

18 Pa. Stat. §4304:
“Whoever . . .  by offer or promise of money . . . endeavors to 
influence any . . . municipal or other public officer in the 
discharge, performance or non-performance of any act, duty 
or obligation pertaining to such office, is guilty of corrupt 
solicitation.”

53 Pa. Stat. § 35911:
“Any person who shall . . . give or promise . . . any money . . . 
to any member of council or other city officer . . .  to in­
fluence him in the performance or nonperformance of any of 
his public or official duties shall be guilty of bribery.”



9a,

question is whether Pennsylvania law recognizes extortion 
as a complete defense to bribery, or whether such a defense 
is relevant only on the issues of intent and willfulness.

Unfortunately, there are no Pennsylvania cases on point, 
and such dicta as exist are inconclusive.5 6 Appellants admit 
this absence of state law, but rely heavily on United States 
v. Corallo, 413 F.2d 1306 (2d Cir.), cert, denied, 396 U.S. 
958 (1969), where this Court held “wholly unexceptionable” 
jury instructions which characterized extortion as a com­
plete defense to bribery. Id. at 1323. However, the Corallo 
Travel Act prosecution was premised on an underlying 
violation of New York law, and New York Penal Law 
§200.05 (McKinney 1967) explicitly makes proof of extor­
tion a complete defense to bribery. The Pennsylvania brib­
ery statutes contain no such provision, and we think it 
would be anomalous to read into the Pennsylvania code a

Appendix A— Opinion in the Court of Appeals

5 Appellants cite such cases as C om m onw ealth  v. Francis, 201 
Pa. Super. 313, 191 A.2d 884 (1963), cert, denied, 375 U.S. 985, 
(1964), where it was stated that “it is generally held that” bribery 
and extortion are “mutually exclusive crimes.” 191 A.2d at 889. 
In return, the goverenment cites C om m onw ealth  v. Bardascino, 210 
Pa. Super. 202, 232 A.2d 236 (1967), where a magistrate and court 
clerk were convicted of both bribery and extortion in connection with 
demanding and receiving $100 in setting a low bail for a defendant. 
In Bardascino, the appellants were held entitled to an accomplice 
charge with respect to the testimony of the payor, since, but for im­
munity, he could have been convicted of bribery. 232 A.2d at 242. 
The government argues, rather convincingly, that if extortion were 
a_ complete defense, the payor could not be convicted of bribery, in 
view of the previsous extortion convictions of the magistrate and 
clerk.

While the government thus probably has the better of the dicta, we 
are reluctant to rely heavily upon these cases, where the basic issue 
was not even raised, and where the statements were made in contexts 
far different from the one at hand.



10a

provision that the New York legislature thought required 
a separate and explicit section in its state law.

At least two other considerations support this conclu­
sion. In federal prosecutions under 18 U.S.C. §201, this 
court has refused to follow the New York rule of calling 
extortion a complete defense to bribery, but has instead 
held that such proof is relevant as bearing on the issue of 
intent. United States v. Barash, 365 F.2d 395 (2d Cir. 
1966) (Barash I). There appears no reason to reach a 
different result with respect to Pennsylvania law, which, 
like §201, is conspicuously silent on the subject.

Finally, as a policy matter, we think that the Barash I  
rule is the preferable one. Almost every bribery case in­
volves at least some coercion by the public official; the in­
stances of honest men being corrupted by “dirty money,” 
if not nonexistent, are at least exceedingly rare. The proper 
response to coercion by corrupt public officials should be to 
go to the authorities, not to make the payoff. Thus, unless 
the extortion is so overpowering as to negate criminal in­
tent or willfulness, we would be loath to allow those who 
give in to the illegal coercion to claim it as a total defense 
to bribery charges.

For all these reasons, we agree with Judge Motley that 
the Pennsylvania courts would not recognize proof of ex­
tortion as a complete defense to bribery charges, but 
would find the defense relevant only on the issues of intent 
and willfulness. Perhaps foreseeing this result, appellants 
claim that, even recognizing the validity of the general 
Barash 1 principle, Judge Motley’s instructions on the ex­
tortion defense were erroneous.

Appendix A— Opinion in the Court of Appeals



11a

At the outset, it is clear that Judge Motley’s instructions 
virtually mirrored those approved by this court in United 
States v. Barash, 412 F.2d 26 (2d Cir.), cert, denied, 396 
U.S, 832 (1969) (Barash II).  Kahn and Teleprompter, 
however, point to two instances where the charge deviated, 
albeit slightly, from Barash II, and claim prejudicial error.

First, appellants object to that portion of the charge 
where Judge Motley told the jury that bribery is com­
mitted where “the paying party intended that the official 
be influenced in some way.” They claim that the correct 
instruction would be that the defendant must have in­
tended to influence the official in public actions, and since 
a bribe by definition is designed to influence “in some 
way,” this charge amounted to a directed verdict of con­
viction.

Whatever the technical merits of appellants’ reasoning, 
it is inapplicable here. The objected language here oc­
curred but two sentences after the point where the jury 
was told that bribery required the intent to influence a 
“public officer with respect to any official act.” (Emphasis 
added). Following so closely on such an instruction, the 
objected language hardly constituted prejudicial error. In­
deed, on the facts of this case, it is difficult to see how the 
jury could have been affected at all by the challenged in­
struction. It was undisputed that the money was paid to 
secure the franchise, and awarding of the franchise was 
surely an official act.

Appellants’ second objection to the charge is similarly 
meritless. In explaining the extortion defense, Judge Mot­
ley told the jury that economic coercion was relevant to 
the issue of whether the defendants “had the requisite in­

Appendix A— Opinion in the Court of Appeals



12a

tent to influence action of a public official.” Again, the 
claim is that the correct charge should have been “official 
action.” But in the factual context of this case, where 
nothing but official action was at issue, and given the earlier 
instruction about bribery requiring the intent to influence 
an officer “with respect to any official act,” there was clearly 
no error. Looking at the charge as a whole, Barash II, 
supra, 412 F.2d at 30, we find that Judge Motley fairly 
and completely presented the extortion defense to the jury, 
which clearly rejected it.

III. Rulings on the E vidence

Kahn (but not Teleprompter) has attacked five specific 
evidentiary rulings by Judge Motley. In each instance, he 
claims that the ruling unfairly restricted him in present­
ing his basic extortion defense. We find no error in the 
rulings, either individually or collectively.

A. Evidence that Tompkins was corrupt.

Judge Motley excluded an offer of proof that Kahn 
claims would have established Tompkins’ “habitual cor­
ruption.” The proof would have shown that one Cornelius, 
now deceased, had made collections from billiard parlors, 
card games, and local clubs, in order that these activities 
might remain in business. The proof would have shown 
that Cornelius’ driver picked him up at City Hall daily, 
drove him on his rounds, and always dropped him off at 
City Hall. Kahn claims that this conduct is traceable to 
the mayor, and buttresses his extortion defense.

Appendix A— Opinion in the Court of Appeals



13a

Judge Motley’s exclusion of the proof was an appropri­
ate exercise of her discretion. First of all, there was no 
clear link between Cornelius’ alleged conduct and Tomp­
kins. Moreover, the olfer presented the very real danger 
of degenerating into a side trial, both to determine whether 
the “collections” actually occurred, and to determine 
whether the mayor was behind this activity. Much as 
Kahn would have preferred that this trial be one of Tomp­
kins, not himself, the proffered evidence seems clearly col­
lateral and of doubtful probative value.

Recognizing the dangers of confusing the jury with col­
lateral issues, we have recently emphasized the general 
rule that prior misconduct of a witness not resulting in 
a conviction is inadmissible as direct proof. United States 
v. DeSapio, 456 F.2d 644, 648 n. 1 (2d Cir. 1972); United 
States v. Glosser, 443 F.2d 994,1003 (2d Cir.), cert, denied, 
404 U.S. 854 (1971). That rule has particular relevance 
here, where the misconduct is not clearly linked to the 
relevant witness. Under the circumstances of this case, 
Judge Motley did not err in excluding this evidence.6

Appendix A— Opinion in the Court of Appeals

8 U nited S ta te s  v. B ow e, 360 F.2d 1 (2d Cir.), cert, denied, 385 
U.S. 961 (1966), upon which Kahn heavily relies, is not to the 
contrary. It is true that Judge Moore in B ow e  recognized that 
evidence of a police agent’s past entrapment activities was relevant to 
a defendant’s claim that the officer caused him to commit a crime he 
otherwise would not have. But Judge Moore went on to note that 
exclusion of the evidence in that particular case was not error, in 
view of the limited probative value of the evidence and the very real 
danger that the jury would be misled into a “trial within a trial.” 
360 F.2d at 15-16. Thus, the B ow e  court recognized that a trial 
judge has broad discretion in deciding whether to admit such 
evidence, after balancing the damages of its introduction against its 
probative value. Cf. U nited S ta te s  v. Costello, 221 F.2d 668, 674 
(2d Cir. 1955), aff’d, 350 U.S. 359 (1956). Judge Motley correctly 
exercised such discretion in the case at hand.



14a

B. Evidence Relating to Trans Video Company and 
All State Systems.

At the December 21 and 28, 1965 meetings of the Johns­
town City Council, representatives of five concerns an­
nounced that they were interested in bidding. Two of these 
prospective bidders were not named at the meetings; the 
other three were Trans Video Company of Barnesboro, Pa., 
All State Cable Company of Ridgeway and Doylestown, 
Pa., and Johnstown Traction Company.

At trial, Kahn offered to show that neither All State 
nor Trans Video had a telephone listed under those names 
during 1965-67; and that All State did not operate a cable 
system in Doylestown.7 Judge Motley excluded the evi­
dence. Kahn now argues that the proof would have dem­
onstrated that these two bidders did not exist, and that 
they were part of Tompkins’ plot to extort money from 
Teleprompter.

We find no error in Judge Motley’s ruling. Even assum­
ing arguendo that failure of a company to have a phone 
number under its precise corporate name is probative of 
nonexistence, the other premises do not follow. First of 
all, there was no evidence to link this alleged sham up to 
Tompkins, who stated on the stand that he knew nothing 
of these two firms before the date of the bidding. Second, 
when the time for actual bidding, February 1, 1966, did 
arrive, each of the three companies made formal bids— 
Johnstown Traction’s accompanied by a bid bond and All 
State’s by a $10,000 check. In addition, C.A.T.V. Corpora­

Appendix A■—Opinion in the Court of Appeals

7 The offer did not indicate that All State did not operate a system 
in Ridgeway.



15a

tion of Pittsburgh submitted a formal bid. Finally, Kahn 
makes no claim that Johnstown Traction or the Pittsburgh 
firm did not exist. The possibility of the mayor’s use of 
phony firms to blackmail Teleprompter is greatly lessened, 
if not negated, by the actual submission of bids by these 
firms and by the involvement of admittedly genuine cor­
porations in the entire process.

In short, the evidence was not truly probative on the 
extortion issue, and even if probative, was clearly collateral. 
The trial court quite properly exercised its discretion in 
excluding it. See generally C. McCormick, Evidence §152 
at 319-20 (1954); United States v. Bowe, 360 F.2d 1, 15 
(2d Cir.), cert, denied, 385 U.S. 961 (1966).

C. Limiting Cross-examination of Deardorff.

On direct examination and on cross-examination by 
Kahn, Deardorff testified about the January 24, 1966 meet­
ing at the Holiday Inn. During further cross-examination 
by Teleprompter, Deardorff said that he could not recall 
whether any bids were in before that January 24 meeting. 
Counsel for Teleprompter attempted to pursue the issue, 
but Judge Motley cut him off: “He says he doesn’t  recall. 
. . . Proceed.”

Kahn then attempted to pursue this line on recross. 
Judge Motley, consistent with her previous ruling, refused 
to allow the questioning. Kahn now claims that had he been 
allowed to proceed, Deardorff would have admitted that the 
bids were in fact in at the time of the meeting, which would 
have shown that the rendezvous took place after February
1. This, in turn, would have buttressed Kahn’s claim that 
the payments were not promised until February 10.

Appendix A-—Opinion in the Court of Appeals



16a

It is a basic principle that a trial judge has extensive 
discretion in controlling the scope and length of cross- 
examination. See, e.g., Alford v. United States, 282 U.S.
687, 694 (1931); United States v. Dorfman,------F.2d ------
(2d Cir., Nov. 29, 1972). The basic rule would seem to ap­
ply with special force to recross, especially after a full and 
searching cross-examination. Cf. Turner v. United States, 
441 F.2d 736 (5th Cir. 1971). Here, there was clearly no 
abuse of Judge Motley’s discretion. Kahn’s argument is 
based on the sheer conjecture that, given recross, Deardorff 
would have broken down and changed his story. While we 
doubt that such speculation can ever justify extended re­
cross, the evidence in this case makes such a course par­
ticularly inappropriate. Deardorff testified that the meet­
ing took place at the Holiday Inn, and both Tompkins and 
Kahn, not to mention the motel records, put the date of 
this encounter at January 24. Moreover, Deardorff testi­
fied that he promised Kahn his vote at the meeting, and 
that Kahn had tried to “cancel the bidding.” Neither of 
those statements is consistent with a meeting after Feb­
ruary 1, when the bidding had occurred and the votes were 
in.

Appendix A— Opinion in the Court of Appeals

D. Exclusion of a Statement Claimed to Have Been 
Made by Tompkins.

As part of the defense, Paul Malinowsky, a Johnstown 
City Councilman, testified. Part of his testimony would 
have been that the mayor had said several weeks earlier, 
“I’ll tell you one thing, if I am going to go down, every­
body is going to go down with me.” Judge Motley excluded 
that statement as an attempt to impeach a witness through 
collateral matters.



17a

Kahn, citing cases that hold that bias is never a collateral 
matter, e.g., United States v. Haggett, 438 F.2d 396 (2d 
Cir.), cert, denied, 402 U.S. 946 (1971), claims that the 
statement exposed Tompkins as vindictive, and showed his 
clear motive to lie on the stand. But, at least on its face, 
the excluded statement is not convincing evidence of bias. 
The more likely reading of the words, as the government 
suggests, is simply that Tompkins, once exposed, was going 
to make a full disclosure and make sure that his co-con­
spirators did not escape their just desserts. Given the 
ambiguous nature of the proffered statement, its exclusion 
was not error.

Moreover, we note that Tompkins was never confronted 
with the statement on cross-examination. Professor Wig- 
more has suggested that the same reasons of fairness that 
require that a witness be given an opportunity to explain 
away a prior inconsistent statement also apply when the 
utterance is claimed to show bias, Wigmore, Evidence §953 
(Chadbourne rev. 1970), and a number of courts have 
agreed. Smithy. United States, 283 F.2d 16,20-21 (6th Cir. 
1960), cert, denied, 365 U.S. 847; United States v. White, 
225 F. Supp. 514, 519-21 (D.D.C. 1963), rev’d on other 
grounds, 349 F.2d 965 (D.C. Cir. 1965). We noted our ap­
proval of this rule in United States v. Hayutin, 398 F.2d 
944, 953 (2d Cir.), cert, denied, 393 U.S. 961 (1968), and 
we reiterate that approval today. While we hold that ex­
clusion of the statement under any event was not reversible 
error, the proper course should have been to confront 
Tompkins with it on cross-examination, to allow him to ex­
plain or deny it. Such a procedure is especially desirable 
in a case like this, where the utterance is ambiguous on its 
face, and where confrontation may aid in interpretation.

Appendix A— Opinion in the Court of Appeals



18a

E. Judge Motley’s Refusal to Give an Advisory Ruling 
On the Scope of the Government’s Cross-examina­
tion of Kahn.

Prior to the beginning of the trial, the government indi­
cated that it hoped to offer evidence with respect to a pay­
ment of $50,000 in 1968 by Teleprompter to city officials in 
Trenton, New Jersey. Judge Motley ruled that the preju­
dicial effect of such evidence would outweigh its probative 
value, and she excluded it. She refused, however, to give 
an advance ruling about whether this evidence could be 
used in cross-examination if Kahn took the stand, saying 
that in some cases it might be proper.

Kahn never took the stand. He now claims that Judge 
Motley’s refusal to rule out cross-examination on the point 
was error, and that it was this ruling that prevented him 
from testifying in his own defense.

While we have made it clear that a trial judge has the 
power to give an advance ruling on the permissible scope 
of cross-examination, United States v. Palumbo, 401 F.2d 
270 (2d Cir. 1968), cert, denied, 394 U.S. 947 (1969), it is 
also clear that such “highly discretionary adjudications” 
will not be reversed “unless the wisdom of so doing is very 
clear.” Id. at 274; Brooke v. United States, 385 F.2d 279, 
286 (D.C. Cir. 1967). We have explicitly refused to turn 
the Palumbo rule of discretion into one of compulsion, and 
have indeed emphasized that the trial court’s power to 
limit cross-examination is often best exercised after hear­
ing the direct testimony of the witnesses. United States v. 
Evanchik, 413 F.2d 950, 953 (2d Cir. 1969); United States 
v. Crisona, 416 F.2d 107, 117 (2d Cir. 1969), cert, denied,

Appendix A— Opinion in the Court of Appeals



19a

397 U.S. 961 (1970); United States v. Cacchillo, 416 F,2d 
231, 234 (2d Cir. 1969). Judge Motley’s actions here clear­
ly fall far short of constituting an abuse of discretion.

III. T he P erjury Count

Kahn has mounted a four-pronged attack against his 
perjury conviction. He claims (1) that he was prosecuted 
under the wrong statute; (2) that without regard to the 
proper statute, Judge Motley erred in her jury instructions 
concerning recantation; (3) that the trial court erred in 
allowing the jury to consider his January 27, 1971 grand 
jury testimony as evidence of the falsity of his original 
December 17, 1970 testimony; and (4) that Judge Motley 
erred in instructing the jury about what constitutes 
perjury.

Kahn was indicted under 18 U.S.C. §1621, the general 
perjury statute. However, on October 15, 1970, Congress 
enacted Pub. L. 91-452, the Organized Crime Control Act 
of 1970. Inter alia, that Act added §1623 to Title 18. That 
section, applicable only to false declarations made in court 
proceedings or before grand juries, does away with the 
ancient “two-witness” evidentiary rule in perjury cases, 
and provides:

“ (d) Where, in the same continuous court or grand jury 
proceeding in which a declaration is made, the per­
son making the declaration admits such declaration 
to be false, such admission shall bar prosecution 
under this section if, at the time the admission was 
made, the declaration has not substantially affected 
the proceeding, or it has not become manifest that 
such falsity has or will be exposed.”

Appendix A— Opinion in the Court of Appeals



20a

Kahn now cites cases such as Kepner v. United States, 
195 U.S. 100, 125 (1904) ; Shelton v. United States, 165
F.2d 241, 244 (D.C. Cir. 1947); and United States v. Wech- 
sler, 158 F. 579, 581 (2d Cir. 1907), for the proposition that 
a statute aimed at specific conduct prevails over an other­
wise applicable general statute. Just as Shelton and Wech- 
sler found perjury prosecutions improperly brought under 
the general statute when special perjury statutes were 
available, Kahn would have us find that he should have been 
prosecuted under §1623, not §1621. And, he claims, had 
the prosecution been under §1623, his January 27 “recanta­
tion” would have barred perjury prosecution.

In response, the government claims that §1623 did not 
repeal §1621, and that the prosecutor has the absolute dis­
cretion to choose which section an alleged perjurer will be 
tried under, and consequently, what evidentiary rules will 
apply to his trial. While it is clear that §1623, which applies 
only to grand jury and court proceedings, did not wholly 
replace §1621, which covers oaths before any “competent 
tribunal, officer, or person,” we admit great skepticism 
about the second half of the government’s argument. While 
perhaps Congress constitutionally could have placed such 
wide discretion in the prosecutor, we find no clear indica­
tion that it meant to do so here.8 And, we find not a little

Appendix A— Opinion in the Court of Appeals

8 The legislative history cited by both sides is inconclusive. The 
government refers to comments by the Justice Department, in­
corporated in S. Rep. 91-617, 91st Cong., 2d Sess. 109 (1969), that 
§1623 is “an additional felony provision” which is intended to 
“supplement, not supplant existing perjury provisions” ; and to com­
ments by an A.B.A. representative that §1623 “is not an amendment 
of the present perjury statute but . . .  a new addition.” Hearings on 
S. 30 before Subcommittee on Criminal Laws and Procedures of 
the Senate Committee on the Judiciary, 91st Cong., 1st Sess. 264



21a

disturbing the prospect of the government employing §1621 
whenever a recantation exists, and §1623 when one does not, 
simply to place perjury defendants in the most disadvan­
tageous trial position.

However, we need not reach the merits of the govern­
ment’s position in the case before us. Even assuming argu­
endo that the indictment named the wrong statute, there 
was no prejudice to Kahn. The substantive elements of 
perjury are the same under either statute, and since the 
trial court applied the “two-witness” rule, Kahn got at 
least his due, if not more, on the evidence. Kahn’s only 
serious claim is that §1623 (d) entitled him to a complete 
recantation defense. But at the time of Kahn’s January 27 
grand jury testimony, Tompkins, Deardorff, and McKee 
had all testified to the bribes that Kahn had falsely denied 
on December 17. We find, as did Judge Motley, that on 
January 27 it had already “become manifest that such 
falsity has or will become exposed,” so that, by its own

Appendix A— Opinion in the Court of Appeals

(1969). But such comments can be explained by the fact of §1623’s 
limited reach; even if §1623 were the exclusive vehicle for prosecu­
tions of perjury before courts and grand juries, §1621 would still be 
needed to reach false declarations before administrative tribunals and 
others, and hence would not be supplanted or amended by the new 
section.

Conversely, Kahn’s reliance upon a statement by a Justice De­
partment representative that §1621 covers proceedings that §1623' 
does not, Hearings on S. 30 before Subcommittee No. 5 of the House 
Committee on the Judiciary, 91st Cong., 2d Sess. 637 (1970), hardly 
shows that §1623 is the sole vehicle for prosecuting perjury com­
mitted before courts and grand juries. Even if the government’s 
argument about both sections being available here were correct, 
§1621 would extend to administrative proceedings, which §1623 
clearly does not.



22a

terms, a §1623 (d) defense was not available to Kahn.9 And, 
absent the availability of such a defense, there was no 
prejudice here even if the government named the wrong 
statute. United States v. Clizer, 464 F.2d 121, 124-25 (9th 
Cir. 1972). See also, United States v. Hutcheson, 312 U.S. 
219, 229 (1941); United States v. Nixon, 235 U.S. 231, 235 
(1914); Williams v. United States, 168 U.S. 382, 389 
(1897); United States v. Calabro, 467 F.2d 973, 981 (2d 
Cir. 1972); United States v. Galgano, 281 F.2d 908, 910-11 
(2d Cir. 1960), cert, denied, 366 U.S. 960 (1961); United 
States v. McKnight, 253 F.2d 817, 820 (2d Cir. 1958); Fed. 
R. Crim. P. 7(c).

Kahn next claims that Judge Motley erred in instructing 
the jury about his January 27 “recantation.” He re­
quested a charge that recantation is “potent evidence to 
negative a wilful intent to swear falsely,” citing Beckan- 
stin v. United States, 232 F.2d 1, 4 (5th Cir. 1956). In­
stead Judge Motley told the jury that “recantation or re­
traction is relevant only in showing an absence of intent 
to commit perjury. It does not excuse the initial perjury.”

Beckanstin, upon which Kahn relies, is readily distin­
guishable from the case at hand. In Beckanstin, the de­
fendant, when asked what school he had graduated from, 
responded, “Massachusetts Institute of Technology.” In 
fact, he had merely attended the school, and corrected his 
testimony as soon as he realized the mistake. In revers­

Appendix A— Opinion in the Court of Appeals

9 Moreover, since §1623(d) says that an admission of the falsity of 
the prior declaration “shall bar p r o s e c u t i o n (emphasis added) it 
would seem that the defense should be raised prior to trial, and 
disposed of then by the judge. Here, the issue was not raised until 
just before the charge to the jury, in a motion for a judgment of 
acquittal.



23a

ing a perjury conviction, the Fifth Circuit not only felt 
that the misstatement was not material, but that all the 
circumstances showed no intent to deceive. I t was within 
this context, where the appellate court ruled that the 
perjury indictment never should have gone to the jury, 
that the “potent” language appears.

There were no such exigent circumstances here, and there 
was ample evidence to go to the jury on perjury. Judge 
Motley’s instructions represented an accurate characteri­
zation of the law, and we find no error in her giving them. 
See United States v. Norris, 300 U.S. 564, 576 (1937); 
United States v. Lococo, 450 F.2d 1196, 1198 n. 2 (9th Cir. 
1971). Cf. United States v. Hirsch, 136 F.2d 976, 977 n. 1 
(2d Cir.), cert, denied, 320 U.S. 759 (1943).

Kahn next contends that his January 27 grand jury 
testimony could not have been used by the jury to decide 
the falsity of his December 17 testimony, and that Judge 
Motley erred by instructing to the contrary. But in United 
States v. Goldberg, 290 F.2d 729, 733-35 (2d Cir.), cert, 
denied, 368 U.S. 899 (1961) and United States v. Mar- 
chisio, 344 F.2d 653, 665 (2d Cir. 1965), we held that extra- 
judicial statements which contradict a defendant’s sworn 
testimony were admissible to prove perjury.10 The same 
result would seem to apply a fortiori to prior judicial tes-

Appendix A— Opinion in the Court of Appeals

10 The narrow question in Goldberg and M archisio  was whether the 
statement could be used, in addition to independent corroborative evi­
dence of perjury, to satisfy the “two-witness” rule, which had been 
designed to prevent convictions based upon an “oath against an oath.” 
We held in both cases that the independent evidence in effect served 
as the first witness, so that prior statements might take the role of 
the second one. In the case at hand, there is no claim that, apart from 
the January 27 testimony, there was not sufficient independent proof 
of perjury to satisfy the two-witness rule.



24a

timony, which is certainly no less of an admission than 
extra-judicial utterances and can invariably be put in evi­
dence through the use of certified transcripts, thus avoid­
ing difficulties inherent in witnesses’ recollection. The use 
of the January 27 testimony here was proper.11

Finally, Kahn claims that Judge Motley erred in failing 
to instruct the jury that a “literally truthful” answer could 
not constitute perjury. Instead, she merely told the jury 
that to constitute perjury, a statement had to be false.

We find no error in those instructions. Neither the ma­
jority opinion nor the dissent in United States v. Bronston, 
453 F.2d 555 (2d Cir. 1971), cert, granted, 405 U.S. 1064 
(1972), suggests a different result. Both Judge Oakes’ 
panel opinion and Judge Lumbard’s dissent recognized in 
Bronston that the defendant’s actual response to the ques­
tion put was indisputably true.11 12 The opinions part com­
pany on the issue of whether an acquittal should have been 
granted as a matter of law, or whether the false implica­
tion and evasiveness in the answer justified leaving the 
issue of perjury to the jury. Here, Kahn’s answers them­
selves surely could have been found false by the jury; in­
deed, it would have been surprising if they had not so

Appendix A— Opinion in the Court of Appeals

11 Indeed, if we accept Kahn’s view and characterize this prosecu­
tion as one under the new perjury statute, §.1623(c) explicitly makes 
the prior inconsistent testimony admissible.

12 The defendant in B ronston  responded to a question about whether 
he had a Swiss bank account with the answer “The Company had an 
account there for about six months, in Zurich.” It was undisputed 
that the company did have such an account; the majority and the dis­
sent take issue on whether a perjury conviction would be sustained on 
the ground that the answer constituted a lie by negative implication, 
i.e., that Bronston himself did not have such an account.



25a

found.13 There was overwhelming evidence of perjury in 
the record, and the jury would have been remiss in reach­
ing any other conclusion.

IV. The Applicability of the Travel Act

Kahn next claims that since the transactions in question 
here were “isolated” and had no connection with a compre­
hensive scheme of interstate racketeering, application of 
the Travel Act, 18 U.S.C. §1952, was improper. He relies 
chiefly upon Rewis v. United States, 401 U.S. 808 (1971), 
and two of its progeny, United States v. Altobella, 442 F.2d 
310 (7th Cir. 1971), and United States v. McCormick, 442 
F.2d 316 (7th Cir. 1971).

None of those cases calls for reversal of the Travel Act 
convictions here. In Rewis, the Supreme Court held that 
neither the language nor the legislative history of the 
Travel Act showed that Congress intended the statute to 
apply to a purely local gambling operation just because 
some of its customers crossed state lines. Altobella reached 
a similar result in a case where the only use of interstate

Appendix A— Opinion in the Court of Appeals

13 For example, the indictment includes this colloquy among its as­
signments of perjury:

“Q. Isn’t it a fact that really what happened here is, you 
agreed to give Mayor Tompkins, $7500, and the best way it 
could be disguised was camouflage this fee by the payment to 
George Daley and Kenneth Tompkins, Jr., which went back to 
his father?

A. It’s not a fact, absolutely not.
Q. Would it surprise you to learn that the $7500 that you 

paid Kenneth Tompkins, Jr., went to his father?
A. It would.”

While Kahn was surely entitled to argue to the jury that he was in 
fact surprised, w e  would have been surprised had they agreed.



26a

facilities resulted from the fact that an extortion victim 
cashed a check on an out-of-state bank to pay off the de­
fendants, Similarly, in McCormick the only ostensible in­
terstate facet of the crime, running an illegal Indiana lot­
tery, occurred when a local newspaper in which the defen­
dant had advertised for some salesmen mailed some of its 
copies out of state.

The common thread through each of these decisions is 
that the defendants themselves engaged in no interstate 
activities, and that the total interstate travel aspect of the 
enterprises was either marginal or unforeseen. Indeed, the 
Rewis court left open the question of whether proof of 
active solicitation of an interstate clientele might come 
within the Act, and cited with explicit approval cases 
where the statute was applied to individuals whose agents 
or employees crossed state lines in furtherance of an illegal 
activity. 401 U.S. at 813, 814. And, in United States v. Lee, 
448 F.2d 604, 606-7 (7th Cir.), cert, denied, 404 U.S. 858 
(1971), the Seventh Circuit found Rewis and Altobella 
inapplicable where the interstate travel was that of a 
member, rather than a victim, of the illegal enterprise.

The case at hand shows a knowing and intentional use 
of interstate commerce not only by various members of 
the conspiracy, but also by Kahn himself. Kahn went 
from New York to Johnstown and agreed upon the illegal 
payments; Kahn arranged for one check to be mailed from 
New York to Pennsylvania; the mayor and his son came 
up from Johnstown to New York on two separate occasions 
to collect payoff checks from Kahn and Teleprompter. 
Such activities, far from representing the unforeseen and 
marginal use of interstate facilities present in Rewis and 
its progeny, constituted conduct central to the illegal enter­

Appendix A— Opinion in the Court of Appeals



27a

prise performed by partners to the crime. The Travel Act 
was correctly applied. Cf. United States v. Levine, 457 
F.2d 1186, 1188-89 (10th Cir. 1972).

V. The Composition of the Grand J ury

Both at the trial court and on appeal, Teleprompter 
and Kahn have mounted a massive attack upon the com­
position of the grand jury that returned the indictment. 
The challenge is basically three-pronged: (1) that the
Southern District Plan for Random Jury Selection, which 
mandates the use of voter registration lists as the source 
of names of those who sit on grand juries, is unconstitu­
tional because it results in underrepresentation of those 
between the ages of about 24 and 80 because they tend to 
register in fewer numbers than older voters; (2) that since 
the grand jury plan at the time of the indictment excluded 
all 18-20 year olds, they were denied equal protection;14 
and (3) that the refilling of the grand jury master wheel 
every four years conflicts with the Federal Jury Selection 
and Service Act, 28 U.S.C. §1861 et seq.

The first two contentions are foreclosed by the thought­
ful opinion of Judge Hays in United States v. Guzman,-----
F.2d -----  (2d Cir., Nov. 8, 1972), which carefully con­
sidered and rejected identical claims. We see no reason to 
add to what was said in that decision here.

As to the third claim,15 it finds its basis in the language 
of 28 U.S.C. 11869(c), which defines “voter lists” as those

14 By an amendment on April 6, 1972, 28 U.S.C. § 1865(g), (1) 
now provides that 18 years of age is the minimum age for grand and 
petit jury service. Pub. L. 92-269 ; 86 Stat. 117.

15 This contention was considered, and rejected, by the district court
in Guzman, 337 F. Supp. 140, 145 (S.D.N.Y. 1972), but was not 
raised on appeal.------F.2d at — — n. 4.

Appendix A— Opinion in the Court of Appeals



28a

from “either the most recent State or the most recent Fed­
eral general election.” Teleprompter and Kahn contend 
that this provision reflects a requirement by Congress that 
the master jury wheel be refilled every two years. They 
point to a passage in H.R. Rep. No. 1076, 90th Cong., 2d 
Sess. (1968), 1968 U.S. Code Cong. & Adm. News 1792, 
1806-7, stating that the statute insures “that the list used 
will in any event not be more than 2 years old,” as sup­
porting this view.

At the time of the indictment here, 18 U.S.C. 11863(b) 
(4) only required that a jury selection plan “provide for 
periodic emptying and refilling of the master jury wheel at 
specified times.” Surely if Congress intended that the 
wheel be refilled every two years, it could have found a 
more direct way of saying so.16 Indeed, H.R. Rep. No. 
1076 makes it clear that this provision was adopted to 
avoid court clerks’ objections to previous drafts, which had 
required refilling of the master wheel at “specific times.” 
1968 U.S. Code Cong. & Adm. News at 1800.

We find that the Southern District Plan’s requirement 
of refilling every four years did not conflict with the Act. 
Accord, United States v. Kuhn, 441 F.2d 179 (5th Cir. 
1971). Such an interpretation is wholly consistent with 
the language relied upon by appellants in the House Re­
port. The entire sentence in which the “two year” lan­
guage appears reads as follows: “Accordingly, while the 
two subsections [1869(c) and (d)] permit the plan to 
choose between State and Federal lists, they also insure

Appendix A— Opinion in the Court of Appeals

16 In fact, Congress on April 6, 1972 amended §1863 (b )(4 ) to 
provide for refilling every four years. Pub. L. 92-269; 86 Stat. 117.



29a

that the list used will in any event be not more than 2 
years old.” This passage, when read in conjunction with 
the other provisions of the statute, appears to say that 
when a new list is chosen, that new list itself must be less 
than 2 years old. Thus, while the time of refilling is left 
to the districts, the maximum permissible age of the list 
used is not.

Appendix A— Opinion in the Court of Appeals

VI. The New  Trial, Motions

As noted previously, McKee was tried subsequently to 
Kahn and Teleprompter. Relying on several pieces of tes­
timony from that trial, appellants made a motion for a 
new trial based on newly discovered evidence to Judge 
Motley. She denied the motion; Kahn and Teleprompter 
assign that denial as error.

The general standard governing motions for a new trial 
on the grounds of newly discovered evidence is familiar. 
The evidence must have been discovered after trial, must 
be material to the factual issues at the trial and not 
merely cumulative and impeaching, and of such a char­
acter that it would probably produce a different verdict 
in the event of a retrial. United States v. DeSapio, 456 
F.2d 644, 647 (2d Cir. 1972) ; United States v. Polisi, 416 
F.2d 573, 576-77 (2d Cir. 1969). The function of a court 
of appeals in reviewing a denial of an ordinary new trial 
motion is a limited one; the motion is directed to the trial 
court’s discretion and factual determinations may not be 
set aside on review unless “wholly unsupported by evi­
dence.” United States v. Johnson, 327 U.S. 106, 111-12 
(1946); United States v. Silverman, 430 F.2d 106, 119-20 
(2d Cir. 1970), cert, denied, 402 U.S. 953 (1971).



30a

However, the strict standards of the general rule are 
relaxed where the newly discovered evidence was known to 
the government at the time of trial, but not disclosed. If 
it can be shown that the government deliberately sup­
pressed the evidence, a new trial is warranted if the ev­
idence is merely material or favorable to the defense. 
Giglio v. United States, 405 U.S. 150,153-54 (1972); Brady 
v. Maryland, 373 U.S. 83 (1963). The same rule applies, 
even in the absence of intentional suppression, if it ap­
pears that the high value of the undisclosed evidence could 
not have escaped the prosecutor’s attention. Polisi, supra, 
416 F.2d at 577; United States v. Keogh, 391 F.2d 138, 
146-47 (2d Cir. 1968). In each of these instances, the 
materiality of the evidence to the defendant is measured by 
the effect of its suppression upon preparation for trial, 
rather than its predicted effect on the jury’s verdict. Polisi, 
supra; United States v. Bonanno, 430 F.2d 1060, 1063 
(2d Cir.), cert, denied, 400 U.S. 964 (1970); Note, The 
Prosecutor’s Constitutional Duty to Reveal Evidence to 
the Defendant, 74 Yale L.J. 136, 145-47 (1964).

If the government’s nondisclosure is merely inadvertent, 
and does not involve evidence whose high value to the 
defense could not have escaped notice, however, a some­
what stronger burden is put on the defendant. While the 
movant is still not required to show the probability of a 
different verdict upon retrial, setting aside a conviction 
is only called for when there is “a significant chance that 
this added item, developed by skilled counsel as it would 
have been could have induced a reasonable doubt in the 
minds of enough jurors to avoid a conviction.” United 
States v. Miller, 411 F.2d 825, 832 (2d Cir. 1969); United 
Sta,tes v. Majyersohn, 452 F.2d 521, 526 (2d Cir. 1971).

Appendix A— Opinion in the Court of Appeals



31a

Appellants here cite two pieces of evidence presented at 
the McKee trial that were admittedly known to the govern­
ment at the time of their trial. As to each of these, they 
claim that the high value to the defense could not have 
escaped the prosecutor’s notice, and thus that a new trial 
is warranted because of materiality.

The first piece of testimony cited is that of Warren 
Reitz, one of the principals in the Johnstown Traction 
Company. He testified at McKee’s trial that on February 
1, 1966, just before the bids were opened, McKee told him, 
“Warren, this isn’t  the way to do this, you should have 
seen me before.” Kahn and Teleprompter now claim that 
this shows that the bribe had not yet been made, and 
buttresses their claim that it was not until February 10, 
following Tompkins’ extortion, that they caved in.

The claim is frivolous. The remark would seem to prove 
just the opposite—that submitting a bid on February 1 
was useless, since Teleprompter had already assured it­
self of the contract with its January 24 bribe. Not only 
is it impossible for us to conclude that the value of this 
evidence could not have escaped the government’s notice, 
we doubt whether it is at all material or favorable to the 
defense. And it goes virtually without saying that we 
see no significant chance, under the more demanding Miller 
standard, that development of this item would have avoided 
a conviction.

The second piece of newly discovered evidence was based 
upon a memorandum of an interview by the government 
with McKee in June, 1971. That memorandum, used by 
the government in cross-examining McKee at his trial,

Appendix A— Opinion in the Court of Appeals



32a

apparently disclosed17 that McKee had large amounts of 
cash in his possession; $10,000 in a safe deposit box and 
$5000 at home.

Appellants argue that this evidence would have estab­
lished McKee’s corruption, and that its value as part of 
the extortion defense could not have escaped the govern­
ment. Again, we disagree and see no error in the denial 
of the new trial motion. First, it requires several giant 
steps of conjecture to get from the existence of these 
cash hoards to McKee’s participation in systematic extor­
tion.18 Second, even if the evidence is assumed arguendo 
to be probative of McKee’s corruption, it is difficult to see 
what use the defense could have made of it here. Only 
Tompkins and Deardorff testified for the government at 
the Teleprompter-Kahn trial; this evidence could hardly 
have been used to impeach them, since it involves McKee 
and does not amount to a conviction. And, even leaving 
aside the doubtful proposition of whether such evidence 
could be used to impeach McKee himself,19 it is simply 
fanciful on appellants’ part to suggest that McKee would 
have been called to testify had they known about the cash 
hoards. McKee was, at the time of the Teleprompter-Kahn 
proceedings, awaiting his own trial; there is not a shred 
of evidence to suggest that he would have waived the 
Fifth Amendment to take the stand here. Indeed, appel­

Appendix A— Opinion in the Court of Appeals

17 Appellants have apparently never seen the memorandum; they 
base their claims as to its contents upon the substance of McKee’s 
cross-examination.

18 Indeed, since the cash was in McKee’s possession as late as 1971, 
at least $5000 of it may have come from the episode in question here.

19 Since the evidence does not amount to a criminal conviction, it 
would ordinarily be inadmissible tO! impeach the credibility of a wit­
ness. See  the discussion in Part IIIA, supra.



33a

lants offer only conjecture as to how this evidence could 
have been used at all, even in trial preparation. Under 
any standard of review, Kahn and Teleprompter were not 
entitled to a new trial on this ground.

The final three pieces of newly discovered evidence in­
volve alleged inconsistencies between the testimony of the 
city officials at the two trials. No claim is made that these 
“inconsistencies” were known to the government at the 
time of the first trial,20 so the strictest standard of review 
applies—would the evidence probably produce a different 
verdict upon retrial?

The first of these claims is based upon Tompkins’ testi­
mony at the McKee trial, where he testified that he had 
asked Kahn to make the payment in cash or stock. At the 
Kahn-Teleprompter trial, the mayor had denied asking 
for cash. As Judge Motley found, this evidence at most 
is impeaching; it seems only to raise a minor question 
about how the bribe was requested to be paid. There is 
clearly no real probability that use of this inconsistent 
statement on cross-examination of Tompkins would have 
led to a different result in the Kahn-Teleprompter trial, 
and there was no abuse of discretion in denying the new 
trial motion on this ground.

Next, appellants claim that Deardorff changed his testi­
mony about what occurred at the Holiday Inn. They claim 
that while Deardorff testified at the first trial that Kahn 
had gone into the bathroom with all three officials and

Appendix A— Opinion in the Court of Appeals

20 Appellants do suggest that since they have no proof that the 
government knew of this evidence at the time of the first trial, the 
proper course would be to remand for an evidentiary hearing where 
they might be able to establish the point. “We see no reason to 
provide this relief and no precedent for it.” D eSapio , supra, 456 
F.2d at 652.



34a

made the offer, he testified at McKee’s trial that the sub­
ject was broached with him first, and then taken up with 
the group. Judge Motley doubted that there was any real 
inconsistency between the two pieces of testimony at all, 
and we see no reason to quarrel with that conclusion. In­
deed, even if Deardorff did change his story on this ground 
at the McKee trial, the “newly discovered evidence” here 
hardly meets the strict standard necessary to set aside a 
jury verdict.

Finally, appellants claim that Deardorff changed his 
testimony at the McKee trial about whether he talked about 
the case with other city officials before the trial. Again, 
even assuming that inconsistencies in the testimony do 
exist, the evidence would hardly have changed the verdict 
at the first trial. Considered collectively or individually, 
the pieces of newly discovered evidence did not warrant a 
new trial, and Judge Motley did not err in so ruling.

VII. Conclusion

We have carefully considered appellants’ other claims, 
including Kahn’s contentions of prosecutorial misconduct 
and Teleprompter’s argument that the admission of the 
December 17 grand jury testimony against the corporation 
was error, and we find no merit in them.21 The judgments 
of conviction are affirmed.

Appendix A— Opinion in the Court of Appeals

21 Citing N o rth ern  O il Co. v. Socony  M obil O il Co., 347 F.2d 81 
(2d Cir. 1965), Teleprompter claims that before an employee’s testi­
mony can be attributed to the corporation, there must be a strict show­
ing of specific authorization. However, N o rth ern  O il is clearly dis­
tinguishable from the case at hand. There, the contested testimony 
was that of a temporary assistant to a district sales manager; here, 
Kahn was president, founder, chairman of the board, and a major 
stockholder of Teleprompter. In this context, the claim that his testi­
mony was not admissible against the corporation is absurd.



35a

APPENDIX B

Opinion of the District Court

United States of America,

Plaintiff,

v.

J. Howard Deardorff, et al.,

Defendants.

----------------- +-----------------

No. 71 Cr. 111.

UNITED STATES DISTRICT COURT, 
S. D. New  York.

Oct. 27, 1971.

W hitney North Seymour, J r., U. S. Atty., by 
Andrew Maloney and John D. Gordon, III, 
Asst. U. S. Attys., New York City, for 
plaintiff.

Davis, P olk & Wardwehl by Robert B. Fiske, 
Jr., Curtis, Mallet-Prevost, Colt & Mosle 
by Peter Fleming, Jr., New York City, for 
defendants.

Motley, District Judge.



36a

Memorandum Opinion on Defense of 
Extortion and Discovery of FBI 

Files

I .

Defendants are charged in Counts One through Four of 
a five-count indictment with violating 18 U.S.C. § 1952, 
the Travel Act, by using the facilities of interstate com­
merce with intent to promote the commission of the offense 
of bribery, in violation of the laws of Pennsylvania, and 
thereafter carrying out that intent, and with conspiring 
to do the same.1

Defendant Kahn, as President and Chairman of the 
Board of Teleprompter Corporation, is alleged to have 
traveled to Johnstown, Pennsylvania, with the intent to 
offer a bribe to his codefendants, the Mayor of Johnstown 
and two city councilmen, and to have paid the bribe through 
the mails, in order to induce the Mayor and councilmen to 
grant a Johnstown cable television franchise to Telepromp­
ter. The defense of defendants Kahn and Teleprompter is 
that the money in question was extorted from them by the 
Mayor and councilmen.

1 18 U.S.C. § 1952 provides, in part:
(a) Whoever travels in interstate or foreign commerce or 

uses any facility in interstate or foreign commerce, including the 
mail, with intent to— . . . (3) . . . promote, manage, establish, 
carry on, or facilitate the promotion, management, establishment, 
or carrying on, of any unlawful activity,
and thereafter performs . . . any of the acts specified in [sub- 
paragraph] . . . (3), shall be fined not more than $10,000 or 
imprisoned for not more than five years, or both.

(b) As used in this section “unlawful activity” means . . . 
(2) . . . bribery . . .  in violation of the laws of the State in 
which committed. . . .

Appendix B— Opinion of the District Court



37a

Defendants’ theory is as follows. Where an offense is 
charged under 18 U.S.C. § 1952, under the subdivision 
making it a federal crime to use interstate facilities with 
intent to promote the commission of bribery in violation of 
state law,2 the laws of that state determine what defenses 
defendants may raise to the “state offense element” of the 
federal crime. That is, if defendants have a defense under 
the laws of Pennsylvania to the “bribery under state law” 
element of the federal offense they cannot be held to have 
violated the Travel Act. Defendants contend that according 
to the laws of Pennsylvania extortion is a complete defense 
to bribery.

In pursuing their theory, Kahn and Teleprompter caused 
a subpoena duces tecum to be issued for all material in the 
files of the Pittsburgh, Pennsylvania office of the Federal 
Bureau of Investigation (which includes Johnstown within 
its jurisdiction) pertaining to all defendants. Their aim 
was to obtain evidence of a pattern of “shakedown” activity 
on the part of Tompkins from which it could be inferred 
that Tompkins had shaken down Kahn and Teleprompter. 
This evidence is said to be a key element in defendants Kahn 
and Teleprompter’s defense that Mayor Tompkins and the 
city councilmen extorted the money in question.3 They 
claim that under state law their codefendants alleged ex­
tortion of funds from them negates any intent to bribe in 
violation of state law on the part of Kahn and Teleprompter.

Appendix B■—Opinion of the District Court

2 See 18 U.S.C. § 1952(b) (2) quoted in fn. 1.
3 Despite the admitted importance of the questions raised by the 

subpoena duces tecum to defendants’ defense they have submitted no 
memorandum on the issues involved.



38a

The government opposed the discovery of any of the FBI 
material by defendants. It contended that, to its knowledge, 
the files contain no information relating to “shakedown” 
activity by Tompkins. Even if the files were found to con­
tain such material, the government stated that it would 
oppose allowing defendants to inspect and use it on “policy 
grounds.”4 Also, it was the government’s belief that evi­
dence of “shakedown” activity by Tompkins in other con­
texts than the one in issue in this case would be inadmissible 
because such evidence would introduce too many collateral 
issues into the trial. The government maintained further 
that even if extortion could be proved in the situation in­
volved in this case, it would not be a complete defense to 
bribery but would only go to the issue of Kahn and Tele­
prompter’s wilfulness and intent.

The court ruled from the bench on the underlying 
question of the relevance of extortion by the alleged recip­
ient of a bribe to a charge under subdivision (b) (2) of the 
Travel Act,5 6 and on what evidence relating to extortionate 
activity by Tompkins and Deardorff would be admissible. 
The court stated that defendants had made no showing that 
extortion is a complete defense to bribery under Pennsyl­
vania law,8 but that whether defendants were victims of 
a shakedown would be relevant to the issue of defendants 
Kahn and Teleprompter’s wilfulness and intent in paying 
the $15,000, these being elements of the crime of bribery 
that must be established by the government beyond a rea­

Appendix B— Opinion of the District Court

4 The government elaborated on the reason for this, saying that if 
FBI files could be obtained by the defense for any prospective gov­
ernment witness, witnesses would be inhibited from testifying.

5 See fn. 1.
6 Defendants cite no Pennsylvania cases directly on this point.



sonable doubt. Thus, evidence of “shakedown” activity by 
Tompkins in the specific situation in issue in this case would 
be admissible on the elements of wilfulness and intent.

After an in camera inspection of the FBI material, the 
court ruled that under the above analysis none of it was 
relevant to any issue in the present case.7

II.

The subdivision of the Travel Act whose violation is 
charged in the instant indictment makes the violation of 
state law an element of the federal offense. It has been held 
that state rules of practice and procedure are not binding 
on federal courts when applying this subdivision of the 
Travel Act, United States v. Corallo, 413 F.2d 1306, 1323 
(2d Cir. 1969), and that state labels for particular offenses, 
or narrow interpretations of state statutes, will not restrict 
federal courts in applying it, United States v. Nardello, 393 
U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) ;8 see United 
States v. Kubacki, 237 F.Supp. 638, 643 (E.D.Pa.1965). 
However, United States v. D’Amato, 436 F.2d 52 (3d Cir. 
1970), the case on the Travel Act most closely in point,

Appendix B— Opinion of the District Court

7 The court further ruled that there was no material obtainable by 
the defense under the rule of Brady v. Maryland, 373 U.S. 83, 83 
S.Ct. 1194, 10 L.Ed.2d 215 (1963), in the FBI files produced. _ The 
material was sealed by the court for transmittal to the Second Circuit 
Court of Appeals in the event of an appeal by defendants.

8 In N ardello , extortion was the state offense charged under the 
Travel Act. According to the laws of Pennsylvania, the state in issue, 
extortion could only be committed by a public official, whereas the 
same act committed by a private individual was a violation of the state 
blackmail statute. The Travel Act refers to extortion and bribery as 
the only state offenses whose commission is within its purview. The 
■Supreme Court held that the federal courts need not be bound by 
“peculiar versions of state terminology,” 393 U.S. at 293-295, 89 S.Ct. 
534, so long as state law prohibited the type of conduct in question.



40a

hold that state defenses are available to a defendant 
charged with violation of the Travel Act, through violation 
of a state statute, on the state law elements of the federal 
offense.

Where state law is uncertain on a particular ques­
tion, federal courts have the right to interpret state law in 
applying the Travel Act.

. . .  [I] t  has from the first been deemed to be the 
duty of the federal courts, if their jurisdiction is 
properly invoked, to decide questions of state law 
whenever necessary to the rendition of a judgment. 
Meredith v. Winter Haven, 320 U.S. 228, 234, 64 
S.Ct. 7, 11, 88 L.Ed. 9 (1943).

In Winter Haven the Supreme Court stated that it had 
never hesitated:

. . .  to decide questions of state law when necessary 
for disposition of a case brought to it for decision, 
although the highest court of the state had not 
answered them, the answers were difficult, and the 
character of the answers which the highest state 
courts might give remained uncertain. 320 U.S. at 
237, 64 S.Ct. at 12.

D’Amato held that:
This power to decide state-law questions is not 
limited to cases brought under the Federal court’s 
diversity jurisdiction. In cases brought by virtue of 
their involvement with Federal questions, the court 
is not limited to the Federal questions but will decide 
all of the issues in the case including state-law ques­
tions. (citation omitted) 436 F.2d at 54.

See also United States v. Wechsler, 392 F.2d 344 (4th 
Cir. 1968), 408 F.2d 1184 (4th Cir. 1969) (en banc, per 
curiam), cert, denied, 392 U.S. 932, 88 S.Ct. 2283, 20

Appendix B— Opinion of the District Court



41a

L.Ed.2d 1389 (1969) ;9 United States v. Keresty, 323 
F.Supp. 230 (W.D.Pa.1971).

Pennsylvania law is, at best, vague on the question of 
whether extortion is a complete defense to bribery. There 
are no cases directly on that point, although several cases 
indicate that the circumstances surrounding the giving of 
a bribe are considered to be relevant on the issue of the 
intent of the person giving the bribe. Commonwealth v. 
Francis, 201 Pa.Super. 313, 191 A.2d 884, 890 (1963); 
Commonwealth v. Friedman, 193 Pa.Super. 640, 165 A.2d 
678, 681 (1960); Commonwealth v. Wilson, 30 Pa.Super. 
26, 29-30 (1909).

This court finds that, under Pennsylvania law, extor­
tionate activity on the part of the recipient of a bribe, in 
connection with the particular bribe charged, is revelant 
and admissible on the issue of the intent of the person 
offering the bribe, but is not a complete defense as insanity 
or duress would be. This would appear to be the rule under 
federal law as well. See United States v. Barash, 365 F.2d 
395, 401-402, 403 (2d Cir. 1966), and cases cited therein.

Appendix B— Opinion of the District Court

9 In W echsler, the Court interpreted the Virginia bribery statute to 
determine when the act of bribery could be considered to be completed 
under state law.



42a

APPENDIX C

Opinion of the District Court

-------------------------------------------+— .— -------------------------

United States of America,
Plaintiff,

v.

J. Howard Deardorff, et al.,
Defendants.

-------------------f ------------------

No. 71 Cr. 111.
UNITED STATES DISTRICT COURT, 

S. D. New  York.
Oct. 5, 1971.

W hitney North Seymour, J r., U. S. Atty., by 
Robert G. Morvillo and D. Gordon III, New 
York City, for plaintiff.

Davis, P olk & Ward well by Robt. Fiske, Jr., 
Curtis, Mallet-Prevost, Colt & Mosle, by 
Peter Fleming, Jr., Shea, Gallop, Climenko 
& Gould, New York City, Alan M. Der- 
showitz, Cambridge, Mass., for defendants 
Kahn and Teleprompter.

Motley, District Judge.



43a

Appendix C—Opinion of the District Court 

I. Statement of F acts

A two count indictment was filed against defendants on 
January 28, 1971. The first count charges defendants with 
conspiring to violate 18 U.S.C. § 1952 (the Travel Act) by 
agreeing to use an interstate facility to intentionally pro­
mote, manage, establish or carry on or facilitate the promo­
tion, management, establishment or carrying on of the un­
lawful activity of bribery. The second count alleges, as a 
substantive violation of 18 U.S.C. § 1952, that the defend­
ants used interstate facilities to intentionally promote, 
manage, establish or carry on, the unlawful activity of 
bribery in violation of the Penal Code of the State of 
Pennsylvania, or facilitate the promotion, management, es­
tablishment or carrying on of such activities.

The Government alleges the following account. On Janu­
ary 18, 1966 defendant Kenneth 0. Tompkins, then the 
mayor of Johnstown, Pennsylvania, and defendants Kobert 
McKee and J. Howard Deardorff, then city councilmen of 
Johnstown, caused the approval of an ordinance to permit 
sealed competitive bidding for a cable television franchise 
in Johnstown. Six days later, on January 24, Irving Kahn, 
president of Teleprompter, travelled from New York to 
Johnstown to meet with those three city officials. At the 
meeting Kahn, Tompkins, McKee and Deardorff agreed 
that Teleprompter would pay the three Johnstown officials 
a $15,000 bribe if they would vote in favor of awarding the 
cable television franchise to Johnstown Cable TV, a sub­
sidiary of Teleprompter.

At the February 1, 1966 meeting of the committee of 
the whole of the Johnstown City Council, Tompkins, McKee



44a

and Deardorff voted to reject all bids on cable television 
submitted by Teleprompter’s competitors.

At a general session of the City Council on February 8, 
Tompkins made a motion to arrange a meeting with officers 
of Teleprompter to discuss terms for a cable television 
franchise. Deardorff seconded the motion, and all three 
defendant officials voted for it.

Finally, at the March 2 general session of the Johnstown 
City Council, these three defendants voted for Ordinance 
No. 3678, which granted Johnstown Cable TV a ten-year 
exclusive cable television franchise with an option to renew 
for ten years.

Meanwhile, on February 25, 1966 Kahn and Tele­
prompter transmitted $7,000 to defendant Tompkins in 
Johnstown. Tompkins, in turn, gave McKee and Deardorff 
each $2,000 sometime in March. On August 26, 1966 Kahn 
and Teleprompter sent Tompkins another payment, this 
time of $6,035.61. A third payment of $1,464.39 was made 
to Tompkins by Kahn and Teleprompter on October 20. 
Tompkins again gave McKee and Deardorff $2,000 each 
soon after receiving the last installment from Kahn and 
Teleprompter.

The Government alleges, in sum, that Kahn sent Tomp­
kins a total of $14,500.00, of which Tompkins gave McKee 
and Deardorff $4,000 apiece. In return, it is charged, the 
three defendants used their official positions to provide 
Teleprompter’s subsidiary with the exclusive Johnstown 
cable television franchise.

Defendants have made a variety of pre-trial motions. 
They move to dismiss the indictment on the ground that 
their alleged conduct does not violate federal law, and on

Appendix C— Opinion of the District Court



45a

the ground that the grand jury was improperly selected. 
They also move to dismiss the conspiracy count. They fur­
ther move for a bill of particulars and for discovery and 
inspection. There is also a motion for an order directing the 
government to ascertain and disclose the fruit of any moni­
toring it has conducted.

Appendix C—Opinion of the District Court

II. Motion to Dismiss the Indictment 
Because the Alleged Conduct Does 
Not Violate Federal Law

There can be no doubt that the alleged activities of de­
fendants fall within the literal terms of the statute. The 
relevant part of 18 U.S.C. § 1952, including its title, reads 
as follows:

“Interstate and foreign travel or transportation 
in aid of racketeering enterprises.
(a) Whoever travels in interstate or foreign com­

merce or uses any facility in interstate or foreign com­
merce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful ac­
tivity; or

(2) commit any crime of violence to further any 
unlawful activity; or

(3) otherwise promote, manage, establish, carry 
on, or facilitate the promotion, management, estab­
lishment, or carrying on, of any unlawful activity.

and thereafter performs or attempts to perform any 
of the acts specified in subparagraphs (1), (2), and 
(3), shall be fined not more than $10,000 or imprisoned 
for not more than five years, or both.



46a

(b) As used in this section ‘unlawful activity’ 
means (1) any business enterprise involving gambling, 
liquor on which the Federal excise tax has not been 
paid, narcotics, or prostitution offenses in violation of 
the laws of the State in which they are committed or 
of the United States, or (2) extortion, bribery, or 
arson in violation of the laws of the State in which 
committed or of the United States.”

Defendants are charged with carrying on unlawful 
activity in violation of Section 1952 (a) (3). The unlawful 
activity with which they are charged is defined in subsec­
tion (b) (2) a s “ . . . bribery . . . in violation of the laws 
of the State in which committed or of the United States.” 
The phrase “business enterprise” used in defining unlawful 
activity in subsection (1) of § 1952(b) is not used in sub­
section (2) delineating bribery as an unlawful activity. 
Read literally, therefore, the statute does not require that 
bribery in violation of § 1952 be connected with a criminal 
business enterprise. The indictment thus clearly alleges 
facts bringing defendants within the terms of the statute.

Defendants contend, however, that bribery must be con­
nected with, or in aid of, a racketeering enterprise to vio­
late § 1952. In support of this interpretation they point to 
the language of the title of § 1952, the section’s legislative 
history, and its recent interpretation in Rewis v. United 
States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). 
For the reasons which follow, the court rejects defendants’ 
interpretation of § 1952 and finds their alleged conduct 
within its terms.

The title of § 1952, as reproduced above, refers to 
“interstate or foreign travel or transportation in aid of 
racketeering enterprises.” Defendants feel that this title,

Appendix C— Opinion of the District Court



47a

in conjunction with legislative history, requires that con­
nection with racketeering enterprises be considered an 
element of the offense. However, the title of a statute 
cannot limit the plain meaning of the text, and is resorted 
to only where ambiguity already exists. Brotherhood of 
R. R. Trainmen v. Baltimore & 0. R. Co., 331 U.S. 519, 
67 S.Ct. 1387, 91 L.Ed. 1646 (1946); United States v. 
Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185 (1956); 
Tibke v. Immigration and Naturalization Service, 335 F.2d 
42 (2 Cir., 1964). See also Sutherland, Statutory Con­
struction § 4802 (3d ed. Horack 1943). As we have seen 
above, the body of Section 1952 is clear. There is thus no 
need to look to the title, an endeavor that in this case would 
produce, rather than ameliorate, ambiguity.

Were we to seek guidance from the title, however, we 
would find that it adds nothing to the meaning of the text. 
The term “racketeering enterprise” is not specifically de­
fined in Title 18, but the terms “racketeering activity” and 
“enterprise” are defined in 18 U.S.C. § 1961. “Racketeer­
ing activity” is defined as “any act which is indictable 
under any of the following sections of Title 18, United 
States Code: . . . Section 1952. . . . ” Section 1961 (1) 
(B). “Enterprise” is defined as “any partnership, corpor­
ation, association, or other legal entity, and any union or 
group of individuals associated in fact although not a legal 
entity.” Section 1961(4). Combining the two definitions 
a “racketeering enterprise” becomes an individual or group 
of individuals engaging in acts indictable under § 1952. 
This definition certainly does not elucidate the elements of 
a violation of § 1952 itself.

Defendants stress that the legislative history of § 1952 
demonstrates that the section can be applied only where

Appendix C—Opinion of the District Court



48a

organized crime and racketeering are involved. It is a 
common rule of statutory interpretation that legislative 
history not be used to interpret a statute that is clear 
and unambiguous on its face. Caminetti v. United States, 
242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1916); Ex parte 
Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). 
See also Sutherland, supra, § 4502; United States v. Great 
Northern Ry. Co., 343 U.S. 562, 72 S.Ct. 985, 96 L.Ed. 1142 
(1952).

This canon of interpretation is particularly apposite 
where the legislative history is itself somewhat ambi­
guous. For example, defendants cite passages in the hear­
ings that indicate that § 1952 was aimed at organized 
crime.1 On the other hand, the Ninth Circuit Court of 
Appeals has found that subsection (b) (2) sought to pre­
vent and punish single criminal acts, not necessarily a con­
tinued course of conduct. Marshall v. United States, 355 
F.2d 999, 1003 (9th Cir., 1966). Reconciliation of conflict­
ing legislative history, however, is a latter stage of statu­
tory interpretation, not the first step.

Defendants place great reliance on the Supreme Court’s 
decision in Rewis v. United States, supra. The convictions 
in that case centered around an illegal lottery, or numbers 
operation, in northern Florida. There were essentially two 1

Appendix C—Opinion of the District Court

1 For example, the following testimony of Attorney General Robert 
F. Kennedy appears in the Senate Report (Report No. 644, 87th 
Cong., 1st Sess., pp. 15-16):

“The target clearly is organized crime. The travel that would 
be banned is travel ‘in furtherance of a business enterprise’ which 
involves gambling, liquor, narcotics and prostitution offenses or 
extortion or bribery. Obviously, we are not trying to curtail the 
sporadic, casual involvement in these offenses, but rather a con­
tinuous course of conduct sufficient for it to be termed a business 
enterprise.”



49a

groups of defendants: 1) a group of customers of the lot­
tery who resided in Georgia and crossed into Florida to 
place bets, and 2) a group which conducted the gambling 
operation but never crossed state lines as part of their gam­
bling activities.

As to the first group, the customers, the Court of Appeals 
held that “the patronizing by interstate gamblers of a 
gambling establishment” does not fit within the statutory 
terminology of “promote, manage, establish, carry on or 
facilitate the promotion, management, establishment or 
carrying on of any unlawful activity.” Rewis v. United 
States, 418 F.2d 1218, 1221 (5th Cir. 1969). The Supreme 
Court affirmed. 401 U.S. at 810, 91 S.Ct. at 1058.

The second group of defendants, those who operated the 
numbers operation, were found by the Supreme Court to 
have been insufficiently related to interstate travel to fall 
within the Travel Act. That Act, it was held, does not 
apply to criminal activity “solely because that activity is at 
times patronized by persons from another State.” Rewis 
v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 
L.Ed.2d 493 (1971).

Measured by the facts alleged in the indictment, defend­
ants’ actions differ from those of both groups of defendants 
in Rewis. Defendants Kahn and Teleprompter are charged 
with being the perpetrators of the bribery scheme. Unlike 
the customers of the numbers operation, their acts, if 
proved, amount to the promotion, management, establish­
ment or carrying on, or the facilitation thereof, of the un­
lawful activity of bribery.

Defendant Kahn allegedly travelled in interstate com­
merce to Johnstown to offer the bribe. He also allegedly 
sent a number of the payments interstate from defendant

Appendix C— Opinion of the District Court



50a

Teleprompter to other defendants. The intimate connection 
between the use of interstate facilities and the crimes 
charged differentiates these defendants from the second 
group of defendants involved in Rewis. Here, there is no 
question that the alleged crime of Kahn and Teleprompter 
is substantially interstate in nature.

Finally, in sustaining the indictment against defendants, 
the court notes that all other courts that have ruled on this 
question have upheld the application of § 1952 to isolated 
instances of extortion and bribery. See Marshall v. United 
States, 355 F.2d 999 (9th Cir. 1966), cert, denied, 385 
U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966); McIntosh v. 
United States, 385 F.2d 274 (8th Cir. 1967); United States 
v. Zirpolo, 288 F.Supp. 993 (D.N.J. 1968); rev’d on other 
grounds, 450 F.2d 424 (3rd Cir. 1971); United States v. 
Feudale, 271 F.Supp. 115 (D.Conn. 1967). III.

III. Motion to Dismiss Conspiracy Count

Defendants Kahn and Teleprompter move to dismiss 
count one of the indictment on the ground that there can 
be no conspiracy to commit a crime which can only be com­
mitted by the concerted action of the parties to the agree­
ment.

Defendants’ discussion of the law in this area mis­
takenly relies on cases concerning conspiracy to commit the 
substantive crime of bribery. The substantive crime 
charged in this indictment is not bribery but use of inter­
state facilities to commit an unlawful act. No concerted 
action is required to violate § 1952, regardless of whether 
the underlying unlawful act usually requires joint action,

Appendix C— Opinion of the District Court



51a

like bribery, or does not, as with arson. United States v. 
Parzow, 391 F.2d 240 (4th Cir. 1968); United States v. 
Zirpolo, supra.

IV. Challenge to Grand J ury

Defendants Irving Kahn and Teleprompter Corporation 
have moved to dismiss the indictment in this ease on the 
grounds that: 1) the grand jury which indicted defendants 
was constituted in contravention of the standards set forth 
in the Jury Selection and Service Act of 1968, 28 U.S.C. 
§ 1861 et seq.; and 2) the master jury wheel and the jury 
venire from which defendants’ grand jury was chosen did 
not include, or had an underrepresentation of, the young, 
the poor, blacks, the poorly educated, and the unskilled, 
with the result that defendants were denied their constitu­
tional rights under the Fifth and Sixth Amendments.

In conjunction with this motion, defendants Kahn and 
Teleprompter Corporation have moved on the authority 
of 28 U.S.C. § 1867(f) to discover a random sampling of 
the questionnaires completed by prospective jurors In the 
Southern District of New York; specifically, one quarter of 
the questionnaires mailed by the Clerk in November, 1969, 
and returned prior to May 10, 1970, as well as all of the 
questionnaires completed by members of the grand jury 
panel from which the grand jury which indicted defendants 
was selected.2 Defendants have also moved, pursuant to

Appendix C—Opinion of the District Court

2 According to the affidavit of Michael D. Schmitz, one of the at­
torneys for defendants Kahn and Teleprompter Corporation, Mr. 
Schmitz asked former Chief Judge Sugarman of this Court to supply 
him with the names and juror questionnaires of the jury venire from 
which defendants’ grand jury was selected. The affidavit states that 
the desired names were given, but that the questionnaires were with­
held. The affidavit does not indicate whether a demand was made 
for every fourth questionnaire mailed in November, 1969, and re­
turned prior to May 10, 1971.



52a

28 U.S.C. § 1867 (d), for a hearing on their statutory and 
constitutional challenges to the grand jury in order to pre­
sent to the court the questionnaire data sought to be dis­
covered here.

Appendix C— Opinion of the District Court

A.

The grand jury in question was selected in accordance 
with procedures set forth in the “Plan for Random Selec­
tion of Grand and Petit Jurors in the United States District 
Court for the Southern District of New York.”3 This 
plan was formulated under the authority of 28 U.S.C. 
§ 1863(a) which provides, in part:

Each United States district court shall devise and 
place into operation a written plan for random 
selection of grand and petit jurors that shall be 
designed to achieve the objectives of sections 1861 
and 1862 of this title, and that shall otherwise com­
ply with the provisions of this title . . .

As the first branch of their argument defendants contend 
that the Southern District Plan substantially fails to com­
ply with the statutory mandate for the jury selection pro­
cedure set forth in § 1863(a) and related sections.

The Southern District procedure for selecting jurors, 
which first went into effect on December 22, 1968, is basi­
cally as follows. The source of names for the master jury 
wheel is the voter registration lists of the various counties 
comprising the Southern District of New York, the age of

8 As amended March 6, 1969, approved by the Reviewing Panel of 
the Second Circuit, March 6, 1969. The Plan first went into effect on 
December 22, 1968.



53a

twenty-one being fixed as the minimum age for jury service. 
Plan, Art. I ll (A ); Art. VI. (1). Names are selected for 
the master jury wheel at random from each county’s regis­
tration lists in a proportion equal to the ratio that the num­
ber of names on the particular county’s lists bears to the 
total number of names on all of the counties’ lists. Ques­
tionnaires are then mailed to a certain number of persons 
randomly chosen from the master jury wheel. Those jurors 
who qualify on the basis of their completed questionnaires, 
and are not otherwise excused, are placed on the qualified 
jury wheel—the source of the grand jury venires and the 
individual grand juries. The Plan provides that the master 
wheel be completely emptied and refilled every four years. 
Art. III. (B).

Defendants challenge several aspects of the Plan as not 
complying with the Jury Selection and Service Act of 1968. 
First, they point to the objective of 28 U.S.C. § 1861:

It is the policy of the United States that all liti­
gants in Federal courts entitled to trial by jury shall 
have the right to grand and petit juries selected at 
random from a fair cross section of the community 
in the district or division wherein the court con­
venes . . . (Emphasis added)

While the statute provides for the use of voter registra­
tion lists, or lists of actual voters, as the main source for 
juror lists, it states that: “The [district court] plan shall 
prescribe some other source or sources of names in addition 
to voter lists where necessary to foster the policy and pro­
tect the rights secured by sections 1861 and 1862 of this 
title.” 28 U.S.C. § 1863 (b) (2). Defendants contend that 
the Southern District procedure of relying on voter regis­

Appendix C— Opinion of the District Court



54a

tration lists exclusively, leads to the selection of grand 
juries that do not represent a fair cross section of the com­
munity, because certain groups such as the young, the poor, 
blacks, the poorly educated, and the unskilled do not register 
to vote in such great numbers as other groups. Thus, de­
fendants maintain that the voter registration lists of the 
various counties must be supplemented by other lists, such 
as unemployment rosters or welfare roles.

Another way in which defendants claim the Southern 
District Plan fails to produce a cross section is by its pro­
vision that the master jury wheel be completely emptied 
and refilled only once every four years. Defendants point 
out that if the youngest persons on the grand jury wheel 
are twenty-one when the wheel is first made up from the 
voter registration lists (these persons having just become 
eligible to register to vote), these same youngest persons 
will have almost reached the age of twenty-four before the 
grand jury wheel is refilled again. Thus, juries constituted 
towards the end of the four-year period will have no per­
sons of the ages of twenty-one to almost twenty-four on 
them.

Defendants’ third contention relating to the policy of 28 
U.S.C. § 1861 is that the requirement that jurors be twenty- 
one years of age excludes eighteen to twenty year olds in 
contravention of the cross section requirement. The iden­
tical minimum age requirement found in 28 U.S.C. 
§ 1865(b) (1) is interpreted by defendants not to be an 
absolute requirement, but to indicate merely that the 
minimum age for jury service is tied to the minimum age 
for voting. Since the minimum voting age is now eighteen, 
the minimum age for jury duty must also be set at eighteen.

Appendix C—Opinion of the District Court



55a

Before addressing each of the specific claims of de­
fendants it must be made clear that, “While the cross- 
sectional concept is firmly imbedded in the law, the con­
stitution does not require that the jury or jury venire be 
a statistical mirror of the community [citations omitted].” 
United States v. Di Tommaso, 405 F.2d 385, 389 (4th Cir. 
1968). See also H.R. #  1076, 1968 U.S.Code Cong. & 
Adm.News, Yol. 2, pp. 1792, 1794. Not all groups need be 
represented on the grand jury wheel, nor must the cogniz­
able groups be represented in the same proportions as their 
proportions in the community.

To prevail on their contentions, defendants must show: 
first, that the groups in question were cognizable for 
purposes of defining a fair cross section of the com­
munity; and, second, assuming without deciding that it is 
enough to show that a cognizable group was severely 
underrepresented, as opposed to systematically excluded, 
that the groups in issue here were, in fact, underrepresented 
on the grand jury wheel and in the jury venire.4

Turning now to defendants’ first claim, defendants 
have made no showing that indicates that unsupplemented 
voter registration lists cannot yield a cross section of the 
community in the Southern District of New York. The 
Southern District Plan contains an explicit finding by the 
judges of this Court that,

“The persons whose names appear on the voter 
registration lists of the aforesaid eleven counties

4 Defendants Irving Kahn and Teleprompter Corporation are not 
members of any of the groups claimed to be excluded or underrepre­
sented here. However, we agree with defendants’ contention that one 
need not be a member of the underrepresented group to challenge a 
grand jury on cross sectional grounds. Thiel v. Southern Pacific Co., 
328 U.S. 217, 223, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).

Appendix C— Opinion of the District Court



56a

[comprising the Southern District] used for the 
last Federal or State general election represent a 
fair cross section of the community in the District.” 
Art. III. (A ).

Mere conclusory allegations and nationwide statistics 
regarding the propensity of the young, the poor, blacks, 
the poorly educated, and the unskilled to register to vote 
have limited relevance for a challenge to a plan in a 
particular geographic district. Lower registration of such 
groups in the South or West may skew nationwide figures 
so as to make them inapplicable to this District. If de­
fendants’ statistics are given weight here, then these very 
same figures might be used to overthrow juror selction 
plans relying on voter registration lists, or actual voter 
lists, anywhere in the country. Had Congress felt that 
voter lists were inadequate to produce a cross section 
anywhere in the United States, it would not have selected 
them as the primary source for jury lists. See 28 U.S.C. 
§ 1863(b) (2), infra.5 Moreover, the case law has consis­
tently held that the exclusion of non voters from juries does 
not impair the cross sectional aspect of such juries. Camp 
v. United States, 413 F.2d 419, 421 (5th Cir. 1969) and 
cases cited therein; United States v. Butera, 420 F.2d 564, 
573 (1st Cir. 1970) and cases cited therein at n. 21.

Defendants’ second contention relates to the provision in 
the Southern District Plan for completely emptying and 
refilling the master jury wheel every four years. De­
fendants maintain that this is in contravention of the def­

5 See H.R. #1076, supra, at p. 1794:
“The bill [the Jury Selection and Service Act of 1968]as 

amended, provides that sources of names other than voter lists 
may be used to supplement, but not to supplant, voter lists.”

Appendix C— Opinion of the District Court



57a

initional section of the Jury Selection and Service Act 
which provides, in § 1869 (c), that: “ ‘voter registration 
lists’ shall mean the official records maintained by State or 
local officials on persons registered to vote in either the 
most recent State or the most recent Federal general elec­
tion. . . (Emphasis added).6 Defendants read this 
provision to mean that the master jury wheel must be re­
filled at least every two years. They rely for this interpre­
tation on a statement in the House Report on the Jury 
Selection and Service Act which reads: “. . . while the two 
subsections permit the plan to choose between State and 
Federal lists, they also insure that the list used will in 
any event not be more than 2 years old.” H.R. #  1076, 
supra, at pp. 1806-07. However, § 1869(c), as well as the 
above commentary, can be read to mean that at any time 
the master jury wheel is to be completely refilled, the most 
recent voter registeration, or actual voter lists must be 
used. Such an interpretation is supported by 28 U.S.C. 
§ 1863 (b) (4) which states that, “The plan shall provide 
for periodic emptying and refilling of the master jury wheel 
at specified times.” See also H.R. #  1076, supra, at p. 
1800. Surely if Congress had meant to require refilling 
every two years it would have explicitly so stated.

A four-year period was selected by the Judicial Con­
ference of the United States, by a Special Resolution, 
and subsequently adopted by the Southern District, because 
it was thought that there would be a significant change 
in the registration rolls only at the time of presidential 
elections. Such a determination carries presumptive

6 This definition is substantially the same as the definition of the 
term in the Southern District Plan. See Art. 1.(4).

Appendix C— Opinion of the District Court



58a

validity.7 See Thiel v. Southern Pacific Co., 328 U.S. at 
220, 66 S.Ct. 984.

The simple answer to defendants’ third contention is 
that if Congress wishes to set the minimum age for jury 
service at eighteen, rather than at twenty-one, to make the 
minimum age for jury service and for voting identical, it 
may do so. In the meanwhile, the Jury Selection and 
Service Act of 1968 is clear on its face as setting the 
minimum age at twenty-one.

Defendants cannot have it both ways. They cannot argue 
here that Congress believed the requirements for voting to 
be so intimately connected with those for jury service that 
it set the same minimum age for both, and argue, in support 
of their first contention, that Congress thought so little of 
the similarity of qualifications for voting and for jury 
service that it provided, by 28 U.S.C. § 1863 (b) (2), supra, 
for large numbers of nonvoters to serve on juries.

Moreover, it must be noted that the grand jury which 
indicted defendants was empaneled on July 28, 1970. The 
Voting Rights Act amendments of 1970 which enfran­
chised 18 year olds, had not withstood constitutional chal­
lenge until December 21, 1970. Oregon v. Michell, 400 
U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272. The Twenty-Sixth 
Amendment to the Constitution which likewise permitted 
18 year olds to vote was not passed and submitted to the 
States for ratification until March 23, 1971.

Title 28 U.S.C. § 1867 provides the exclusive procedure 
for challenging a jury on the grounds that it was not chosen

7 See letter of Judge Irving Kaufman of the U. S. Court of Appeals, 
Second Circuit, dated January 20, 1970.

Appendix C— Opinion of the District Court



59a

in compliance with the Jury Selection and Service Act of 
1968. 28 U.S.C. § 1867 (e). The section provides that:

In criminal cases . . . the defendant may move 
to dismiss the indictment or stay the proceedings 
against him on the ground of substantial failure to 
comply with the provisions of this title in selecting 
the grand or petit jury. 28 U.S.C. § 1867 (a).

Subsection (d) provides that:

Upon motion filed under subsection (a), (b), or
(c) of this section, containing a sworn statement of 
facts which, If true, would constitute substantial 
failure to comply with the provisions of this title, 
the moving party shall be entitled to present in sup­
port of such motion the testimony of the jury com­
mission or clerk, if available, any relevant records 
and papers not public or otherwise available used by 
the jury commission or clerk, or any other relevant 
evidence. . . .

Defendants here have not met the requirement of sub­
section (d) regarding a sworn statement of facts. They 
have proffered nothing but conclusory allegations and non­
specific national statistics in support of their grand jury 
challenge. Nor would the discovery of the data defendants 
seek materially aid their case.

As to some groups, defendants have failed to show 
that they are cognizable groups for purposes of a cross sec- 
tionally valid jury. They have submitted affidavits that are 
intended to prove that the views of eighteen to twenty-one 
year olds are significantly different from those of other 
age groups in the population. Assuming the truth of this 
allegation for purposes of deciding this motion, defendants 
have nonetheless failed to show that the attitudes of this

Appendix C— Opinion of the District Court



60a

group are inadequately represented by those several years 
older than they, that is, that eighteen to twenty-one year 
olds are a distinct, cognizable group. See United States v. 
Di Tommaso, supra, 405 F.2d at 391, citing King v. United 
States, 346 F.2d 123 (1st Cir. 1965). As to the group of 
blacks, which is presumptively cognizable because it is a 
racial group, they have not indicated the actual proportion 
of this group in the population of the Southern District. 
Defendants have not defined a specific statistical commu­
nity in terms of which the racial cross section can be 
measured.

Though the age group of twenty-one through twenty-five 
may be a cognizable group for purposes of a cross section, 
defendants have not shown that this group is statistically 
severely underrepresented on Southern District voter regis­
tration lists.

Defendants also maintain that the poor, the poorly edu­
cated, and the unskilled, either as a single group, or as 
three distinct groups, are underrepresented. They have 
made no showing statistically, merely asking the court to 
take judicial notice of the fact that such groups tend to 
register to vote less, and are thus underrepresented on 
voter registration lists.

Appendix C— Opinion of the District Court

B.

The second branch of defendants’ motion is a constitu­
tional challenge to the jury selection procedure employed 
here, grounded on the due process clause of the Fifth 
Amendment, as it makes applicable to the federal govern­
ment the equal protection clause of the Fourteenth Amend­
ment, and on the Sixth Amendment.



61a

Defendants consistently confuse the issue of the per­
sonal right to serve on a grand jury with the issue of the 
right to have a particular group represented on one’s 
grand jury. The first issue, which pertains to the right of 
equal protection, is not before the court in this case. Nor 
can defendants claim that they have been denied a jury of 
their peers, since defendants are not members of any of the 
allegedly underrepresented groups.

It is important to note that defendants seem to mistake 
the standard to be applied for determining whether there 
is a cross section.

“It is true that Rabinowitz [v. United States, 366 
F.2d 34 (5th Cir. 1966) ] stated that ‘if a fair cross 
section is consistently lacking, then, without more, 
it is established that the commissioners have failed 
in their duty.’ 366 F.2d, at 58. But the issue which 
then emerges is what constitutes a ‘fair cross-sec­
tion.’ The district court in the Instant case took the 
position that, absent intentional exclusion, repre­
sentation of the various relevant elements in the 
community was enough. We agree. Under the au­
thorities we have cited, we reject defendants’ appar­
ent argument that approximately proportional rep­
resentation of the various identifiable groups in the 
community is required. If it can be obtained by 
random selection, proportional representation may 
be the ideal—because it is the ultimate opposite to 
intentional exclusion—but it can be achieved only 
rarely, and then only in regard to some but not all, 
of relevant criteria. Substantial representation is 
all that is required.” United States v. Di Tommaso, 
405 F.2d 385, 390 (4th Cir. 1968). See also, United 
States v. Butera, 420 F.2d 564, 567 (1st Cir. 1970) ; 
United States v. McYean, 436 F.2d 1120, 1122 (5th 
Cir. 1971).

Appendix C— Opinion of the District Court



“It should be remembered at the outset that, while 
a true cross-section is the ultimate ideal, it is by no 
means the Constitutional mandate. What is required 
is a jury selection system free of discrimination 
against properly cognizable groups.” United States 
v. Butera, supra, 420 F.2d at 572.

As illustrated in Section I above, defendants have made 
no showing that they have been denied a cross section of 
the community in their grand jury venire, in violation of 
their right to equal protection.

Defendants’ request for discovery of every fourth 
questionnaire mailed by the Clerk in November, 1969, and 
returned prior to May 10, 1970, and for a hearing on the 
questionnaire data, is denied for the reasons stated in 
Section A above. Defendants’ motion to dismiss the indict­
ment on the grounds that the grand jury was improperly 
constituted is also denied.

V. Motion for Discovery

Defendants Kahn and Teleprompter move for discovery 
and inspection pursuant to Rule 16, Fed.R.Crim.P.

1. The Government has consented to requests (a),8
(b),9 and (e).10

8 The transcripts of the testimony of defendant Irving Kahn before 
the grand jury.

9 Any other relevant written or recorded statements by defendant 
Kahn within the possession, custody or control of the government, 
the existence of which is known, or by the exercise of due_ diligence 
may become known, to the attorneys for the government, including, 
but not limited to, typewritten or handwritten statements, reports of 
interviews, notes of interviews, (whether signed or unsigned) and 
tape or wire recordings, whether made by an attorney for the govern­
ment or by any other government employee.

10 Any relevant results or reports of scientific tests or experiments 
made in connection with this case, and with the investigation leading 
to the indictment, or copies thereof, as are within the possession, cus­
tody or control of the government, the existence of which is known, 
or by the exercise of due diligence may become known, to the attor­
neys for the government, including, but not limited to, fingerprint re­
ports, voice analysis reports and handwriting analysis reports.

Appendix C— Opinion of the District Court



63a

2. Requests (d)11 and (f)11 12 are granted.13 Defendant 
Teleprompter is entitled to the grand jury testimony of 
its officers, directors, agents and employees requested in
(d). United States v. United Concrete Pipe Corp., 41 
F.R.D. 538 (N.D. Tex. 1966). The court also grants 
request (f) as authorized by Rule 16(b), since it is rea­
sonable and material. The grant, however, is only as to 
the prior criminal records of each person named in the 
indictment as a defendant or co-conspirator. Investiga­
tions made by the Government as to these persons are 
denied.

3. Requests (c)14 and (g)15 are denied. The Govern­
ment is ordered to permit defendants Kahn and Tele­
prompter to inspect and copy transcripts of the grand 
jury testimony of any persons listed in request (c) who 
were employees, officers, agents, directors or attorneys of 
Teleprompter at the time they so testified. In all other re­
spects request (c) is denied. The court is advised that 
defendants Tompkins, Deardorff and McKee may testify 
for the Government at trial. Their statements requested in

11 The transcripts of the testimony of any other officers, attorneys, 
agents, directors, or employees of defendant relepromptei Corpora­
tion or its Johnstown subsidiary, Johnstown Cable T.V. before the
grand jury. .

12 Any and all reports in the custody or possession of the govern­
ment which set forth the prior criminal records or investigations with 
respect to each person named in the indictment as a defendant or 
co-conspirator. . .

13 They are granted only to the extent noted in the opinion, of 
course.

14 The transcripts of the testimony of Eugene Weinrich, Caywood 
Cooley, Walter Kinash, Samuel R. Di Francesco, Jr. and Walter 
Schier before the grand jury.

15 Any and all written or recorded statements or confessions made 
by any of the other persons in the indictment named as defendants 
or as co-conspirators.

Appendix C— Opinion of the District Court



Appendix C— Opinion of the District Court

(f) are therefore statements by prospective Government 
witnesses, specifically exempt from discovery under Rule 
16(b).

VI. Motion for a Bill of Particulars

Defendants Kahn and Teleprompter have moved for a 
bill of particulars.

1. The Government has consented to request num­
ber l .16 17 18

2. Requests number 2 17 and 5 18 are granted.
3. Requests number 3,19 4,20 and 621 are denied. 

These requests are inquiries into the legal theory of the 
Government’s case, and hence not a proper aspect of a bill 
of particulars. See United States v. Schillaci, 166 F. Supp. 
303, 307 (S.D.N.Y. 1958).

16 With respect to paragraph “1” of Count One of the indictment 
the names of the “other persons whose names are to the grand jury 
known” who the government will contend conspired with defendants 
to commit offenses in violation of 18 U.S.C. § 1952 and the names of 
such alleged co-conspirators who were unknown to the grand jury, 
but who have since become known to the government.

17 With respect to paragraph “2” of Count One of the indictment, 
whether the government will contend that the “unlawful activity” re­
ferred to therein was bribery in violation of Title 18 §§ 4303 and 4304 
of the Penal Code of the State of Pennsylvania and, if not, which 
Pennsylvania statutes were allegedly violated.

18 With respect to Count Two of the indictment, the acts which 
constitute the alleged criminal activity, specifying the time and loca­
tion of the acts.

19 With respect to the entire indictment, whether the government 
will contend that the bribery alleged therein was part of an unlawful 
course of interstate racketeering.

20 With respect to the entire indictment, whether the government 
will contend that any of the defendants were racketeers and, if so, the 
identity of such defendants.

21 With respect to the entire indictment, on what legal basis the 
government contends that Teleprompter has committed a crime.



65a

A PPEN D IX  D

Ju d g m en t of the  U nited S tates C ourt of A ppeals

UNITED STATES COURT OF APPEALS 
F or the Second Circuit

At a stated Term of the United States Court of Appeals 
for the Second Circuit, held at the United States Court­
house in the City of New York, on the ninth day of January 
one thousand nine hundred and seventy-three.

Present:
Hon. Sterry R. Waterman,
Hon. J. J oseph Smith ,
Hon. Irving R. Kaufman,

Circuit Judges,
----------------- 1-----------------

United States of America
Plaintiff-Appellee,

v.
J. Howard Deardorff, Irving Kahn , Robert 
McKee, Kenneth  Tompkins, Teleprompter 
Corporation,

Defendants,
Irving Kahn  and Teleprompter Corporation,

Defendants-Appellants.
--------------------------------------------1 - ------------------ --------------------

Appeal from the United States District Court for the 
Southern District of New York

This cause came on to be heard on the transcript of record 
from the United States District Court for the Southern 
District of New York, and was argued by counsel.

On Consideration Whereof, it is now hereby ordered, 
adjudged, and decreed that the judgments of said District 
Court be and they hereby are affirmed.

A. Daniel F usaro 
Clerk



66a

A PPEN D IX  E

18 U.S.C. 1621. P erjury generally

Whoever, having taken an oath before a competent 
tribunal, officer, or person, in any case in which a law of 
the United States authorizes an oath to be administered, 
that he will testify, declare, depose, or certify truly, or that 
any written testimony, declaration, deposition, or certifi­
cate by him subscribed, is true, willfully and contrary to 
such oath states or subscribes any material matter which 
he does not believe to be true, is guilty of perjury, and shall, 
except as otherwise expressly provided by law, be fined 
not more than $2,000 or imprisoned not more than five 
years, or both. This section is applicable whether the state­
ment or subscription is made within or without the United 
States.

R elev a n t S tatu tes, C onstitu tion al P rovisions,
and R ules

18 U.S.C. 1623. F alse declarations before grand
JURY OR COURT

(a) Whoever under oath in any proceeding before or 
ancillary to any court or grand jury of the United States 
knowingly makes any false material declaration or makes 
or uses any other information, including any book, paper, 
document, record, recording, or other material, knowing 
the same to contain any false material declaration, shall be 
fined not more than $10,000 or imprisoned not more than 
five years, or both.

(b) This section is applicable whether the conduct oc­
curred within or without the United States.

(c) An indictment or information for violation of this 
section alleging that, in any proceedings before or ancillary



67a

to any court or grand jury of the United States, the de­
fendant under oath has knowingly made two or more 
declarations, which are inconsistent to the degree that one 
of them is necessarily false, need not specify which declara­
tion is false if—

(1) each declaration was material to the point in 
question, and

(2) each declaration was made within the period 
of the statute of limitations for the offense charged 
under this section.

In any prosecution under this section, the falsity of a dec­
laration set forth in the indictment or information shall be 
established sufficient for conviction by proof that the de­
fendant while under oath made irreconcilably contradictory 
declarations material to the point in question in any pro­
ceeding before or ancillary to any court or grand jury. It 
shall be a defense to an indictment or information made 
pursuant to the first sentence of this subsection that the 
defendant at the time he made each declaration believed 
the declaration was true.

(d) Where, in the same continuous court or grand jury 
proceeding in which a declaration is made, the person mak­
ing the declaration admits such declaration to be false, 
such admission shall bar prosecution under this section if, 
at the time the admission is made, the declaration has not 
substantially affected the proceeding, or it has not become 
manifest that such falsity has been or will be exposed.

(e) Proof beyond a reasonable doubt under this section 
is sufficient for conviction. It shall not be necessary that 
such proof be made by any particular number of witnesses 
or by documentary or other type of evidence.

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



68a

18 U.S.C. 1951. Interference w ith  commerce by threats
OR VIOLENCE.

(a) Whoever in any way or degree obstructs, delays, 
or affects commerce or the movement of any article or 
commodity in commerce, by robbery or extortion or at­
tempts or conspires so to do, or commits or threatens 
physical violence to any person or property in furtherance 
of a plan or purpose to do anything in violation of this 
section shall be fined not more than $10,000 or imprisoned 
not more than twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful tak­
ing or obtaining of personal property from the person 
or in the presence of another, against his will, by 
means of actual or threatened force, or violence, or 
fear of injury, immediate or future, to his person or 
property, or property in his custody or possession, or 
the person or property of a relative or member of his 
family or of anyone in his company at the time of the 
taking or obtaining.

(2) The term “extortion” means the obtaining of 
property from another, with his consent, induced by 
wrongful use of actual or threatened force, violence, 
or fear, or under color of official right.

(3) The term “commerce” means commerce within 
the District of Columbia, or any Territory or Posses­
sion of the United States; all commerce between any 
point in a State, Territory, Possession, or the District 
of Columbia and any point outside thereof; all com­
merce between points within the same State through 
any place outside such State; and all other commerce 
over which the United States has jurisdiction.

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



69a

(c) This section shall not be construed to repeal, modify 
or affect section 17 of Title 15, sections 52, 101—115, 151— 
166 of Title 29 or sections 151—188 of Title 45.

18 U.S.C. § 1952 “Interstate and foreign travel or

TRANSPORTATION IN AID OF RACKETEERING ENTERPRISES

(a) Whoever travels in interstate or foreign commerce 
or uses any facility in interstate or foreign commerce, 
including the mail, with intent to—

(1) distribute the proceeds of any unlawful activ­
ity; or

(2) commit any crime of violence to further any 
unlawful activity; or

(3) otherwise promote, manage, establish, carry 
on, or facilitate the promotion, management, estab­
lishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any 
of the acts specified in subparagraphs (1), (2), and (3), 
shall be fined not more than $10,000 or imprisoned for not 
more than five years, or both.

(b) As used in this section ‘unlawful activity’ means 
(1) any business enterprise involving gambling, liquor 
on which the Federal excise tax has not been paid, narcotics 
or controlled substances (as defined in section 102 ( 6) of 
the Controlled Substances Act), or prostitution offenses 
in violation of the laws of the State in which they are 
committed or of the United States, or (2) extortion, bribery, 
or arson in violation of the laws of the State in which com­
mitted or of the United States.”

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



70a

N. Y. P enal Law 200.05 Bribery; defense.

In any prosecution for bribery, it is a defense that the 
defendant conferred or agreed to confer the benefit in­
volved upon the public servant involved as a result of 
conduct of the latter constituting larceny committed by 
means of extortion, of an attempt to commit the same, or 
coercion, or an attempt to commit coercion.

F ed. R. Crim. P. 52 Harmless error and plain error.

(a) Harmless Error. Any error, defect, irregularity or 
variance which does not affect substantial rights shall be 
disregarded.

(b) Plain Error. Plain errors or defects affecting sub­
stantial rights may be noticed although they were not 
brought to the attention of the court.

Article 3, Section 2, Clause 3. Criminal Trial by J ury.

The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury; and such Trial shall be held in the State 
where the said Crimes shall have been committed; but when 
not committed within any State, the Trial shall be at such 
Place or Places as the Congress may by Law have directed.

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



71a

AMENDMENT V—CAPITAL CRIMES; DOUBLE 
JEOPARDY; SELF-INCRIMINATION; DUE 

PROCESS; JUST COMPENSATION 
FOR PROPERTY

No person shall be held to answer for a capital, or other­
wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or 
naval forces, or in the Militia, when in actual service in 
time of War or public clanger; nor shall any person be 
subject for the same offence to be twice put in jeopardy of 
life or limb; nor shall be compelled in any criminal case 
to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just 
compensation.

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



72a

AMENDMENT VI—JURY TRIAL FOR CRIMES, AND 
PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the State and district wherein the crime shall have been 
committed, which district shall have been previously ascer­
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining wit­
nesses in his favor, and to have the Assistance of Counsel 
for his defence.

Appendix E—Relevant Statutes, Constitutional
Provisions, and Rules



73a

APPENDIX F

Legislative History 18 U.S.C. 1623

Statement Senator John McClennan, introducing 18 
U.S.C. 1623 on floor of Senate:

“Mr. President, Title IV of S. 30 represents the 
best efforts of the committee to insure that truthful 
testimony will be given in our grand juries and 
courts.

-X- *  *

“The last impediment to the telling of truth is 
that under present Federal law one is not allowed 
to recant, correct untruthful statements, and escape 
prosecution. * * *

“Mr. President, Title IV encourages truth by 
facilitating the prosecution of those who have lied 
and by encouraging the correction of testimony 
without fear of prosecution. I am firm in my be­
lief that this body should do everything in its power 
to make certain that there are no impediments to 
truthful testimony in the administration of justice 
in the Federal courts in all cases as well as the 
more serious organized crime cases.” 116 Cong. 
Rec. 589 (1970)

Testimony of Ronald L. Gainer, Deputy Chief, Legisla­
tion and Special Projects, Criminal Division, Department 
of Justice, in support of 18 U.S.C. 1623:

“Mr. Zelenko: Should Section 1621 of existing law 
remain on the books?

“Mr. Gainer: Title IV is written to supplement 
the existing perjury provisions.

“Mr. Zelenko: Title IV provides a much more 
substantial penalty, does it not—$10,000 fine or 5



74a

years imprisonment, or both?
“Mr. Lynch: I believe that Section 1621 also has 

a 5-year penalty, but a lesser fine.
“Mr. Zelenko: How would the sections co-exist? 
“Mr. Gainer: Section 1621 would cover proceed­

ings that this does not.”
Hearings on S. 30 Before Subcommittee No. 5 of 

the House Comm, on the Judiciary, 91st Cong. 2d 
Session 637 (1970)

Appendix F— Legislative History 18 U.S.C. 1623



A PPEN D IX  G

Excerpts From  R ecord 

Trial Court’s Instructions

“The crime of bribery under Pennsylvania law is also
committed by anyone who gives or offers or causes to be
given or offered any money . . . with the intent to influence
that public officer with respect to any official act.”

*  *  *

. . It is sufficient if the paying party intended that the
official be influenced in some way . .

*  *  *

“Mr. Kahn testified before the grand jury on January 
27, 1971 that Mayor Tompkins used improper economic 
pressure to force Teleprompter Corporation into making 
a payment in order to secure a franchise to operate in 
Johnstown.

Tompkins and Deardorff denied having conducted them­
selves in this fashion. Whether they did or did not so con­
duct themselves is an issue of fact for you, the jury. But 
if you find that there was such pressure by Tompkins and 
Deardorff, and if you find that thereafter Kahn paid 
money because of such pressure, then you may consider 
the conduct of Tompkins and Deardorff as bearing on the 
issue whether Kahn, in making such payment or payments, 
had the requisite intent to influence action of a public 
official, which is an essential element of the offense of 
bribery under Pennsylvania law, as I have already described 
to you.”

D efendants’ Requested Instructions

“The defendants contend that the payments made to the 
Johnstown officials did not constitute a bribe, but were



76a

paid as a result of extortion, under fear of injury to their 
cable TV franchise.”

*  *  *

“You will recognize that whether the $15,000 payment 
was a bribe or an extorted payment presents an issue of 
fact.

“If you find that the money paid to the Johnstown public 
officials was paid as a result of extortion, you must find 
defendants TPT and Kahn not guilty on Counts 1-4. More­
over, if after evaluating all the evidence you have a reason­
able doubt as to whether the moneys were paid as a result 
of extortion, you must find the defendants not guilty on 
those counts.”

*  *  *

“If you find the evidence presented by the defendants 
raises a reasonable doubt in your mind as to whether the 
payments were made as a result of threats of injury to 
their franchise rather than with a specific criminal intent 
to bribe the officials in Johnstown in order to influence 
their official action you must find both defendants not guilty 
on Counts 1-4.”

Appendix G—Excerpts From Record

Colloquy

“Mr. Maloney: If your Honor please, that concludes the 
reading of the minutes of December 17th, 1970.

May the record reflect Exhibit 18 in evidence is the reap­
pearance of Mr. Kahn before the grand jury on January 
27th, 1971 after the appearance of the Mayor on December 
22nd, and after the appearance of Deardorff on December 
29th, I believe.



77a

Mr. Fleming: Your Honor, before Mr. Maloney begins 
to read Mr. Kahn’s testimony on the second occasion, might 
we approach the bench?

(653) The Court: Yes.
(At the side bar.)
Mr. Fleming: If your Honor please, Mr. Kahn read a 

statement in the grand jury which Mr. Maloney is about 
to read. That statement was submitted to Mr. Morvillo 
prior to Mr. Kahn’s appearance in the grand jury and Mr. 
Morvillo made certain deletions from the statements before, 
as I understand the situation, he would allow Mr. Kahn to 
read it into the grand jury.

I was wondering, if your Honor please, if you would 
consider allowing these statements which were deleted by 
Mr. Morvillo to be put into the record at this time with 
regard to this testimony.

Mr. Maloney: I object to it as being hearsay. If Mr. 
Kahn wants to testify about him let him do so. All I have 
here is the grand jury testimony of Mr. Kahn.

The Court: As he actually gave it?
Mr. Maloney: As he actually gave it.
The Court: And this is a statement he prepared?
Mr. Fleming: A statement was submitted to Mr. Mor­

villo, requesting permission to make the statement. This 
ran over a long period, it started December 18, but the 
result was this statement which Mr. Kahn wanted to read 
in the grand jury. It was presented to Mr. Morvillo.

(654) You can see certain deletions were made before 
Mr. Kahn was allowed to give it. For example, in the 
second full paragraph, the second sentence reads—you will 
remember that I told you—

Appendix G—Excerpts From Record,



78a

The Court: I understand it now.
Mr. Maloney says what he is about to read is the grand 

jury testimony, and you object to that?
Mr. Fleming: That’s right.
The Court: I can’t see any objection to his reading in 

the testimony as actually given. I don’t understand the 
objection.

Mr. Fleming: My difficulty is that the deletions which 
were made which were a condition of allowing him to reap­
pear and give a full statement on this matter—the deletions 
in fact change the substance—if your Honor would look at 
the two deletions at which I am pointing, the thrust of the 
statement, for example, here Mr. Kahn was prepared to 
say, and was not allowed to say by Mr. Morvillo: “Some of 
the facts I now discovered are inconsistent with what I 
said because I have now had a chance to refresh my recollec­
tion and review the records of Teleprompter.”

“He wasn’t allowed to say that.”

Appendix G—Excerpts From Record