Certiorari Dismissed April 12, 1973. See 93 S.Ct. 1561.
HAYS, Circuit Judge:
This is an appeal from a judgment of conviction for conspiracy to violate § 1954 by accepting a bribe for influencing the operations of an employee pension plan, and § 1343 by using interstate wire facilities for the purpose of fraud, and on five substantive counts of violation of § 1343, entered in the United States District Court for the Southern District of New York on a verdict of a jury after a two week trial. We affirm.
Appellant was special consultant to the Central States, Southeast and Southwest Areas, Pension Fund of the International
Appellant contends that the testimony of Samuel Rubin, a Government witness, with respect to two conversations he had with Horvath in the summer of 1967 should have been excluded as hearsay. The first conversation occurred in June when Horvath asked Rubin to sign a check drawn on the account of Mt. Clemens Industries Inc., of which Rubin was vice-president, stating that the money was to be used to purchase a certain Swiss corporation. Rubin asked Horvath if the Swiss transaction was connected with the Neisco Pension Fund Loan request and whether it was to help get the loan approved by "greasing the skids." Rubin testified that Horvath replied in the affirmative. The second conversation occurred in July when Horvath told Rubin that $55,000 out of the Swiss transaction had been used to pay the appellant.
The defense had attempted to show that Horvath had motives of personal revenge for falsely implicating Dorfman. These alleged motives were based upon events which occurred after Horvath's statements to Rubin. Rubin's testimony was therefore admissible to show that Horvath had implicated Dorfman before the time of the events providing the basis for the alleged motives for falsification. This exception to the hearsay rule for "prior consistent statements" is well established. See United States v. DiLorenzo, 429 F.2d 216, 220 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); United States v. Grunewald, 233 F.2d 556, 566 (2d Cir. 1956), rev'd on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Proposed Federal Rules of Evidence, 801(d)(1) (B) (adopted on November 20, 1972).
Rubin's testimony as to Horvath's statements to him was also admissible because the statements were made in furtherance of the conspiracy. United States v. Sansone, 231 F.2d 887, 892-893 (2d Cir.), cert. denied, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). Since Rubin's cooperation as an officer and particularly as the officer in charge of the Mt. Clemens books was important for the purpose of concealing the conspiracy and for effectuating the "permissive" attitude of the Pension Fund toward the loan, Horvath's statements to Rubin were clearly made with the purpose of furthering the conspiracy.
We have considered appellant's contention that he was unduly limited in his attempt on cross-examination to impeach Rubin's credibility by introducing extrinsic evidence showing Rubin had made inconsistent statements, and find no error in the exclusion of this collateral issue. Appellant makes a similar complaint with respect to the limits imposed by the court on his cross-examination of Horvath and on the presentation of extrinsic evidence in an attempt to establish that Horvath was motivated to implicate Dorfman by his hope of securing lenient treatment with respect to certain tax violations with which the Government had charged him. In cases in which the alleged motive of a government witness is hope for prosecutorial leniency there will always be conflict between the need to keep the trial from being sidetracked on collateral issues and the right of the defendant to establish a witness' bias or motive to lie. We think the trial court successfully accommodated these competing considerations in this case.
Defendant contends that the Government was improperly allowed to establish that Dorfman had an interest
Appellant complains that the name of James R. Hoffa was introduced unnecessarily and prejudicially. But Hoffa who admittedly had a dispositive influence with respect to loans, was Dorfman's predecessor on the all-powerful screening committee. By its references to Hoffa the Government sought to show that, as Hoffa's successor, Dorfman had the ability to influence the Fund's decision to grant or deny the loan.