OPINION OF THE COURT
GIBBONS, Circuit Judge.
Following an investigation by the Philadelphia Office of the Justice Department's Special Strike Force, a grand jury named five men as defendants in a single count indictment charging them with violating the Hobbs Act, 18 U.S.C. § 1951.
The indictment charges that the five defendants "did unlawfully and willfully conspire and attempt to obstruct, delay and affect commerce" by extorting money from the proprietor of Nookie's Tavern, "in order to continue in the business of selling alcoholic beverages contracted for and obtained in interstate commerce."
The Hobbs Act proscribes a number of separate offenses: (1) robbery; (2) extortion; (3) attempted robbery or extortion; and (4) conspiracy to commit robbery or extortion.
Duplicity is the joining in a single count of two or more distinct and separate offenses.
The district court instead of dismissing the indictment or ordering the government to elect between the conspiracy charge and an attempt charge, directed the government to file a bill of particulars setting forth:
Had the words "or both" been omitted the order would have been appropriate, since requiring an election is an appropriate remedy for duplicitousness.
Throughout the case it was perfectly clear to the district court (though it is still not clear to the government)
The court then charged at length the elements of the crime of conspiracy, the evidentiary rules applicable to that crime, that there could be separate conspiracies, or an overall conspiracy, and that there must be proof of the commission of an overt act. Then the court charged:
The charge continued with a definition of the elements of attempt to commit extortion, and of extortion. The court also charged that intended or attempted extortion must be one which had it succeeded would have obstructed, delayed or affected interstate commerce. Finally, toward the end, and separated in time from the definitions of conspiracy and of attempt, the court charged:
The government has never abandoned its contention that the indictment charges only a single offense. Its brief on appeal equivocates, however, as to which offense that is. Finally it urges:
The duplicitousness was corrected, it is urged, by the charge, which required that the jury find each defendant guilty of both offenses in order to convict. It is argued that the error of not requiring an election, in other words, was harmless.
We have recently held that a misjoinder in violation of the statutory mandate of Rule 8(a) cannot be treated as harmless error under Rule 52(a). United States v. Graci, 504 F.2d 411, 414 (3d Cir. 1974). We need not, however, rule in this case whether the Graci holding would apply to a duplicitousness violation of the same rule, because at least one other error appears which requires a new trial. However, before that new trial the district court should require the government to make an election between the conspiracy and attempt charges.
ADMISSION OF EXHIBIT G-3, A TAPE RECORDING
The error in this case which requires a new trial arises out of the admission into evidence of a tape recording of an alleged conversation between the victim of the supposed extortion and some of the defendants. Some factual background is necessary to put the issue of admissibility of that tape recording in context.
There is no corroboration of Rice's testimony with respect to anything which occurred prior to February 21st which we have just related above. There are moreover, several factors which reflect upon his credibility. Among these are the suggestion in the record that while Rice was in federal protective custody pending trial, he was to be brought before a state court for trial on a charge of assaulting a police officer. However, on the day before his subpoena date in the state court, he was placed in a nonreporting pre-indictment probation program when the arresting officer failed to appear. In addition the record discloses a close proximity in time between the execution of a state warrant to search for narcotics in "Nookie's Tavern" by city police on January 20, 1974 and his interview with an F.B.I. agent concerning his dealings with appellants the next day. From the evidence the jury could have found that Rice had unusually strong motivations to shade his testimony in the government's favor. Thus, corroboration of Rice's testimony was important to the government's case.
The vital element in the government's case was Rice's recitation of the conversation between himself and Larry Starks on the evening of February 21, 1974 when the marked, government-furnished money was turned over to Starks. Starks was immediately arrested, but since the defendants contended that the solicitation was a voluntary contribution for Muslim religious causes, any evidence corroborating Rice's version was extremely important to the government's case. Therefore the government sought to corroborate Rice's testimony by the use of a tape recording of what purported to be the conversation.
The fact that Rice had been equipped with a tape recorder in anticipation of the February 21, 1974 meeting was disclosed during pre-trial proceedings to defense counsel. A tape recording was heard by them on three occasions between March 21, 1974 and May 3, 1974, and by the court at a pre-trial conference in chambers on May 3, 1974. Counsel were also furnished with a copy purportedly made from the original tape.
At the May 3rd conference the government revealed for the first time to the court and defense counsel that the "original" tape recording had been made in stereophonic sound, and that on all prior occasions the recording had been played in monaural sound. The copy supplied
Rice testified at the trial on June 19, 1974 that on February 21, 1974 he had concealed on his person a tape recorder furnished by the F.B.I., and that when Larry and Clarence Starks came into Nookie's Place he turned it on and kept it on during the whole conversation. He recounted conversations with Larry Starks, which supported the government's theory of extortion, the fact that he delivered $500.00 in marked bills, and the immediate arrest of the Starks brothers by the F.B.I. At that point Mr. Bravo, the government attorney, asked for leave to play the tape recording while Rice was on the stand. This colloquy followed:
The trial then recessed for the evening. The next morning Rice returned to the stand and further testified under direct examination:
The government then produced a small yellow envelope (G-2) which Rice identified as the envelope in which, on the previous evening, he had sealed the tape. Rice then broke the seal on the envelope and produced a tape cartridge, marked "G-3" for identification. The court stated:
Rice's examination then continued:
The government then moved to introduce G-3 into evidence and play it for the jury. Defense counsel objected and the court sustained the objection on the ground that the government had failed to prove its chain of custody over the tape between February 21st and June 20th, or of the identity of the February 21st tape with that version played to Rice on June 19th. The government took the position that such proof was unnecessary; that Rice's testimony sufficed. The court then ruled that it would permit cross-examination of Rice concerning his authentication of G-3. Without conceding that Rice could authenticate G-3, counsel cross-examined Rice and established that on the evening of June 19th Rice had listened to two tape recordings, G-3, and another which Rice called a "duplicate," that the tape marked as "G-3" was much clearer than the "duplicate," and that he sealed the duplicate in a different envelope. (Tr., Third Day, at 101-03). Rice could not identify G-3 as the tape he turned over to the F.B.I. on February 21st, or establish chain of custody from the date to June 19. The only reason why he identified G-3 as the "original" was that it was "much clearer". (Tr., Third Day, at 103, 109). He was then asked by defense counsel:
At that point the court ruled:
While proof of facts creating a sufficient foundation for the admission of a tape recording is a matter to be decided by the trial court, it does not have unbridled discretion to disregard the problems inherent in use of such evidence. Tape recordings are not readily identifiable as the original version. They are peculiarly susceptible of alteration, tampering, and selective editing. Because proffer of such evidence may, in the particularized circumstances of a given case, involve one or more of these problems in varying degrees it is difficult to lay down a uniform standard equally applicable to all cases. However, a useful exposition which commends itself to us is that in Judge Herland's opinion quoted in the margin.
Immediately following its admission by the court G-3 was played for the jury and for counsel. At that point all defense counsel categorically represented to the court that G-3 did not sound like the stereophonic tape which was played for them at the pre-trial conference in chambers on May 3rd. They represented, as well, that G-3 sounded different from the duplicate stereophonic copy which the government furnished to them on June 11th. The court ruled:
This ruling compounded the error of admitting G-3 without a proper foundation, by shifting to the defendants the burden of establishing that it was not the same recording which was made on February 21st.
The defense counsel then asked to have the stereophonic tape which had been furnished to them on June 11th played for the jury so that the jury could better judge whether G-3 was authentic. The government objected. After a lengthy colloquy, the court ruled:
Defense counsel preserved their position by appropriate motions.
Defense counsels' position was that Rice's voice had been the only identifiable or audible voice on all of the versions of the tape they had heard during pretrial, whereas on G-3, for the first time, a voice which Rice identified as that of Larry Starks was also audible. It is significant that of the two alleged participants in the February 21st meeting with Rice, Larry Starks and Clarence Starks, only Larry Starks was convicted, although Rice attempted to implicate both brothers in the extortion attempt. Obviously the tape was a significant piece of evidence.
Defense counsel then represented to the court that over the previous weekend a request was made for the names of government employees who had custody of the tape between February 21st, and June 19th, and that the government attorneys declined to furnish such a list. They requested the court to direct that the government furnish such a list so that they could do what the court said they must do, that is, offer evidence suggesting the lack of authenticity of G-3. The court ruled:
Thus, the court having in the midst of trial, shifted the burden to the defendants to unauthenticate G-3, it deprived them of the opportunity to meet that burden by denying them discovery of the names of the only witnesses who might have enlightened the subject. We recognize that motions for discovery made pursuant to Rule 16(b), Fed.R.Crim.P. are addressed to the sound discretion of the trial court. However, where as here, injustice will clearly result from the denial of a discovery motion, an abuse of discretion has been shown. Therefore, we find that it was error for the trial court to have refused the defendants' request for discovery under these circumstances.
In its final charge, the court instructed the jury with respect to the tape:
Thus the court repeated essentially the same confusing instruction which was given at the time G-3 was admitted in evidence. In both versions the jury was told in essence "you may find Rice's testimony about a conversation credible if the tape contains that conversation." The logical fallacy in the court's analysis is that on this record the tape is credible only if Rice himself is credible.
The government throughout the trial maintained, and maintains still, that Rice's testimony sufficed to make the tape admissible for all purposes. In argument to the jury, the government made use of the tape not merely corroboratively in accordance with the court's instructions but substantively as well. The government attorney argued to the jury that they heard on the tape Larry Starks tell Rice "I ain't jiving" and translated that into some sinister meaning bearing on the "putting in fear" element of the offense, even though Rice had never testified as to the "I ain't jiving" remark. Despite defense objections, the court did not caution the jury to disregard this argument. We have already concluded that it was error to have admitted G-3 into evidence. We also find that the court's charge as to its
THE DEFENDANTS' MOTION FOR JUDGMENT OF ACQUITTAL
The defendants urge that there should simply be a reversal because there is no evidentiary support for a finding that there was in fact any likelihood of an effect upon interstate commerce. The government's theory was that extortion from Rice would have had the natural effect, had the scheme been successful (as it was in one instance) of diminishing Rice's ability to purchase for resale, liquor originating in interstate commerce. There was evidence of a decline in resales during the period of the alleged conspiracy, but no evidence of declines in purchases. We conclude, however, that although this part of the government's case was extremely thin, it met the federal jurisdictional test for a Hobbs Act violation.
In addition, the defendants urge that they are entitled to a reversal since the case was submitted to the jury on a conspiracy theory as well as an attempt theory, and because the government did not demonstrate that they had knowledge of the minimal effects on interstate commerce which were proved. The record does not show such personal knowledge. Defendants' contentions are based upon United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941) and cases which followed it such as United States v. Alsondo, 486 F.2d 1339, 1343 (2d Cir. 1973). Those cases adopted the view that for conviction of conspiracy to violate a federal statute involving effects upon interstate commerce, which effects are the basis for federal jurisdiction, the conspirators must be shown to have knowledge of such federal jurisdictional facts as well as knowledge of the wrongdoing proscribed. In United States v. Pepe, 512 F.2d 1129 (3d Cir. 1975) (appeal of DiGiacomo) and 512 F.2d 1135 (3d Cir. 1975) (appeal of Carucci), this court suggested that we would follow Alsondo. But on March 19, 1975, the Supreme Court reversed Alsondo, sub nom. United States v. Feola, ___ U.S. ___, 95 S.Ct. 1255, 43 L.Ed.2d 541 (March 19, 1975). It expressly rejected the Crimmins line of cases, and thus overruled the dictum in United States v. Pepe. ___ U.S. at ___, 95 S.Ct. at 1265-1269. Therefore a new trial is appropriate rather than a reversal with a judgment of acquittal.
OTHER GROUNDS FOR APPEAL
Since we are ordering a new trial it is appropriate to comment upon certain issues raised on this appeal which may recur in that trial:
We recognize that Rule 24, Fed.R. Crim.P. gives the trial court considerable leeway as to the manner of examination of prospective jurors. At the same time this court has said:
In a case with serious racial and religious undertones and where the court is facing a ten-day trial, good sense would seem to suggest that the court adopt the practice of individual examination so that defense counsel may be in a position to make individualized judgments with respect to peremptory challenges. A small amount of time would be involved, when compared with the possibility of a new trial. While on this record we do not hold that the trial court abused its discretion, we are able to perceive of situations in which we might so decide. Total judicial resources will more likely be preserved by a cautious deference to the interest of the defendants in an unbiased jury.
The judgment of the district court will be reversed and the case remanded for a new trial after the government has elected whether to proceed on either the Hobbs Act charge of conspiracy or attempt to extort.
"(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 attempts 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 —
"That from on or about the 8th day of December, 1973, to on or about the 21st day of February, 1974, inclusive, at Nookie's Tavern, located at 6301 Wister Street, Philadelphia, Pennsylvania, and the area adjacent to said tavern, in the Eastern District of Pennsylvania, and within the jurisdiction of this Court, Larry Starks, Clarence Louis Starks, Alonzo Robinson, Donald Everett Abney, and Merrill Albert Ferguson, did unlawfully and willfully conspire and attempt to obstruct, delay and affect commerce, as that term is defined in and by Section 1951, Title 18, United States Code, to wit, interstate commerce, and the movement of articles and commodities in such commerce by extortion, as that term is defined in and by Section 1951, Title 18, United States Code, that is to say, by then and there attempting to obtain from another, to wit, one Ulysses J. Rice, then doing business under the name, style and description of Nookie's Tavern, and then engaged in the sale of alcoholic beverages contracted for and obtained in interstate commerce, certain property of the said Ulysses J. Rice, to wit, his money in amounts varying fron One Hundred Fifty Dollars ($150.00) to Five Hundred Dollars ($500.00) to be paid in order to continue in the business of selling alcoholic beverages contracted for and obtained in interstate commerce, the attempted obtaining of said property from said Ulysses J. Rice as aforesaid being then intended to be accomplished with the consent of said Ulysses J. Rice, induced and obtained by the wrongful use, to wit, the use for the purpose aforesaid, of actual and threatened force, violence and fear made to said Ulysses J. Rice.
In violation of Section 1951 of Title 18, United States Code."
The Government's Supplemental Brief Following Oral Argument at 4, continues to confound the issue.
This argument suggests that when a statute denounces several acts as a crime an indictment or information drawn in the language of the statute is not duplicitous if all the acts are pleaded conjunctively in one count. See, e.g., Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097 (1896); Cordova v. United States, 303 F.2d 454 (10th Cir. 1962). However that rule has no application here since the Hobbs Act denounces a number of acts as separate offenses. In Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961), the Supreme Court expressly concluded that it was Congress' intent to maintain in the Hobbs Act the long-established distinction between the commission of a substantive offense and of a conspiracy as separately defined crimes even though both are contained in the same provision. The trial court thought so too, reading the indictment as charging two separate offenses, and so instructed the jury.
United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y.1958).