Petition — Del Toro v. United States

74-135)» 8" |

IN THE

SUPREME COURT OF THE UNITED ‘STATES ~~

OCTOBER TERM, 1974

NO. A-786

WILLIAM DEL TORO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JACOB W. FRIEDMAN

Attorney for Petitioner

Office & P. 0. Address

111 Broadway

New York, New York 10006

Telephone: (212) CO 7-7850

PAUL J. CURRAN

United States Attorney

(Southern District)

United States Courthouse

Foley Square

New York, New York 10007

Telephone: (212) 264-6118

Appeal Reproductions Inc., 217 Broadway,

New York, N.Y. 10007

Tel: 233-6626

) INDEX

. Page

Opinion Below ..cccccccccecees eccccee ee 2

JUPLEGICTION cccccccccccccsccccccgeceses 2

Questions Presented for Review ....eee- 3

Statement of the Case ..ccccceccccseces 3

REASONS FOR ALLOWANC® OF wRIT:

I. Inasmuch as the conviction on the

bribery counts was reversed by

reason of the holding that the

potential recipient was not a

federal official, petitioner

could not properly be convicted

of conspiracy and perjury with

respect to dealings with that

DOGGER ccocccececceoseesecececcoes) 6G

II. The reception into evidence of

the admissions of the codefendant,

who did not testify, and of the

taped conversations with the

rotential bribe recipient, was

reversible error as to petitioner. 6

III. The evidence established

petitioner's defense of entrapment; &

IV. Ambiguous answers may not be made

the basis for a perjury prosecution. 1C

v. It was error for the instructions

not to include an adequate discussion

of the exculpatory statements and

circumstances affecting petitioner.. 11

NEO, nnnksdédies TTTTTTT beende secese AJ

APPENDIX - Opinion of the United States

Court of Appeals for the

BOGOMS CAPGUEAE ccccccccccéccce A-1l

ii

Cases Cited

Page

Brown v. United States, 245 F.2d 5Sl9.. 10

Bruton v. United States, 391 U.S.123.. 7

Commonwealth v. Giles, 353 Mass. l.... 11

Krulewitch v. United States, 336 U.S.LLO 7, ®

Sherman v. United States, 356 U.S.369.. )

Sorrells v. United States, 387 U.S.l35. 9

United States v. Diago, 32C F.2d 898... 11

United States v. Musgrave, Lil F.2d755. 12

United States v. Percivault,l90 F.2d126 7

United States v. Russell, li U.S.l23.. 9

United States v. Thayer, 21) F.S.929... 10

U.S.ex rel. Rice v. Vincent, L91 F.2d 1326 7

United States v. Watson, 89 F.2d 50L.. 10

Williams v. United States, 93 F.2d 685. 12

Statutes Cited

1° U. S. Code Sec. 201-b-2.......ee0ee: 253

12 U. S. Code Sec. 371 cccccccececesece 1,3

18 U. S. Code Sec. 1623 ..cccccceeseces 1,3

28 U. S. Code Sec. 125 sscccsecccevees 2

1

In the

SUPREME COURT OF TH® UNITED STATES

October Term 197):

wILLIAM DEL TORO,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR TH® SECOND CIRQIT

To the Honorable Chief Justice of the United

States and the Associate Justices of the

Supreme Court of the United States:

Your petitioner William Del Toro

respectfully prays that a writ of certiorari

issue to review a judgment of the United States

Court of Appeals for the Second Circuit,

renuered cn February 27, 1975, to the extent

that it affirmed a judgment of the United States

District Court for the Southern District of New

York, convicting petitioner of conspiracy (18

U. S. Code Sec. 371) and perjurv (1° U. S. Code

Sec. 1623). The same judement reversed a conviction

on two bribery counts (1% U. S. Code Sec. 201-b-2).

Petitioner was sentenced to concurrent terms of

& year and a day on each count. Enforcement

of the mandate was successively stayed bv the

United States Court of Appeals both during the

pendency of the appeal in that Court and pending

the outcome of the present application for a

writ of certiorari.

Opinion Below

An opinion, a copy of which is appended

hereto, was rendered by the Court of Appeals,

and has not yet been reported.

Jurisdiction

The judgment of the aforesaid Court of

Appeals was rendered and entered on Februarv

27, 1975. The time to file the present petition

was duly extended by Mr. Justice Marshall to and

including April 28, 1975.

The jurisdiction of this Court is invoked

under 28 U. S. Code Sec. 125k. The basis for

federal jurisdiction in the United States District

Court was the provisions of 18 U. S. Cade Secs.

371, 201-b-2 and 1623.

Questions Presented for Review

1. In view of the reversal of the bribery

counts bv reason of the holcing that the poten-

tial recipient was not a feceral official,

could petitioner properlv be convicted of con-

spiracy and perjury with respect to dealings

with that person?

2. Was the use of the admissions of the

codefendant, who did not testify on the trial,

and his taped conversations with the potential

bribe recipient, a prejudicial violation of

petitioner's rights?

3. Dic the evidence establish petitioner's

defense of entrapment?

lL. Mav ambiguous answers be made the basis

of a verjury conviction?

5. Was it error for the charge not to include

an adequate discussion of exculpatory statements

and circumstances affecting petitioner?

Statement of the Case

The petitioner and one Kaufman were convicted

of conspiracy, bribery and per‘ury after a two-

week trial before Knapp, D.J., and a jury. The

indictment charged the defendants (and a third

party, one Ruocco, who had pleaded guilty) with

conspiracy to defraud the United States by

bribing a public official, with bribery and with

perjury. Petitioner was found guilty of con-

Spiracy, bribery and five counts of perjury;

he was acquitted on a sixth count of perjury and

@ seventh was dismissed at the close of the case.

Various details of the evidence are discussed in

the appended opinion of the Court of Appeals,

and will not be repeated herein.

REASONS FOR ALLOWANCE OF WRIT

I

Inasmuch as the conviction on the bribery

counts was reversed by reason of the holding that

the potential recipient was not a federal official,

petitioner could not properly be convicted of

conspiracy and perjury with respect to dealings

with that person.

It is manifest thet the gravamen of the

the situation lacked the element of materiality

charges against petitioner and the other defend-

eusen ial to constitute perjury.

ants was the alleged bribery of a federal official.

It is theréfore submitted that the reversa,

The claimed conspiracy related to activities of

of the bribery conviction rendered it mandatory

that character, and the perjury sought to be

that the convictions of conspiracy and perjury

proved likewise dealt with testimonv as to those .

likewise fall. A ruling on this significant

transactions, actual or contemplated. It is a

point involves an important point of law vhich

fair inference that without the prosecution's

has not previously been the subject of authorita-

attack on the bribery element, there never would

tive appellate ruling.

have been any prosecution for conspiracy or per- ,

I

jury. The Solicitor General's consideration of

The reception into evidence of the admis-

applyine for certiorari supports this contention.

sions of the codefendant, who did not testify,

The alleged conspiracy had to be an improper

anc of his taped conversations with the potentia’

agreement to commit a crime against the United

bribe recipient, was reversible error as to

petitioner.

A portion of the government's case con-

States, while the alleged perjury had to be

predicated upon false statements with respect to

sucn a crime. Once the Court of Appeals concluded

Sisted of the reading of codefendant Kaufman's

that the status of the contemplated bribe receiver

grand jury testimony. This necessarily involved

was not that of a federal official within the scope

petitioner, especially in the recantation. Al-

of the statute, it became a legal impossibility to

though the Court of Appeals remarked that there

conspire to do things violative of no federal

was no transcript reference to petitioner herein,

Statute, and likewise any sworn testimony regarding

attention is directed specificallv to the three

tapes of conversations between Kaufman and

Morales of October 9, 26 and 30, 1972. Since

Kaufman did not testify on the trial, petitioner

was unable to cross-examine him; and it is obvious

that the trial jury could not avoid being influ-

enced by those statements in assessing the

possible guilt of petitioner.

The foregoing procedure was clearlv violative

of petitioner's rights to confrontation secured

by the Sixth Amendment. Krulevitch v. Unitec

States, 336 U. S. LhO; Bruton v. United States,

391 U. S. 123. Im the seven years since the

latter decision it has been cited in federal

reported cases more than three hundred times,

including recent holdings in the Second Circuit

(United States v. Percivault, L90 F. 2d 126,

and United States ex rel. Rice v. Vincent, 91

F. 2d 1326). In Bruton, supra, admissions of

a codefencant who did not testify implicated the

appellant and were held by this Court to constitute

reversible error. It was ruled that there «as

substantial risk that the jury, notwithstanding

instructions to the contrary, might on a joint

trial consider the incriminating statements of

the accomplice in determining the appellant's

guilt, and that this violated the right of con-

frontation, Mr. Justice Brennan declaring:

"The unreliability of such evidence

is compounded when the alleged accom-

plice, as here, does not testify, and

cannot be tested by cross-examination."

Furthermore, the courts have consistently

rejected "the naive assumption that prejudicial

effects can be overcome by instructions to the

jury." Krulewitch, supra.

III

The evidence established petitioner's

defense of entrapment.

Although the Court of Appeals (footnote

10) rejected the defense of entrapment as being

frivolous, it is submitted that elsewhere in

the opinion (p. 5, first paragraph) the facts

described show a clear procedure whereby Morales,

admittedly aiding the prosecution, sought to

induce the commission of crimes by petitioner.

The tapes in evidence are replete with instances

of such a course. we refer to Exhibits lL and 5

(pp. 27, 28, 30, 34, 36: and pp. 77-7%). Thus

Morales says to petitioner:

"Come on, man ... That's the reason

I'm coming to you... You know I'm

going to take care of you."

Petitioner's reaction is significant:

"No, mo, no, no. I don't vant to be

involved."

A colloquy like the following is a fair sample:

Morales: "And you don't want to

help me. You're a son of a bitch.

Damn it..."

Petitioner: "I understand, but it cannot

be done..."

Morales: "You're gonna get some piece

of the action."

Petitioner: "Not me, I don't have

nothing to do with nothing. You know

that."

Such a situation eminently calls for the

application of the rules on entrapment, as

recently considered by this Court in United

States v. Russell, 111 U. S. 423, following the

previous holdings in Sorrells v. United States,

27 U. S. L35, and Sherman v. United States, 356

U. S. 369. The basic inquiry continues to be

10

whether the criminal design was deliberately

implanted or promoted in the mind of an innocent

person in order that he might be prosecuted.

See United States v. Watson, L®9 F. 2d Sch.

The entrapment defense is equally applicable

to the conspiracy and to the substantive crimes

charged. Logically, it is especially germane

to the perjury. With the government having

possession of tapes of a person's conversations,

it is manifest that his use as a pretended wit-

ness before a grand jury is simply a device or

pretext to have him incriminate himself so as

to render him liable to prosecution for perjury.

See United States v. Thayer, 21 F. S. 929, and

Brown v. United States, 245 F. 2d SLO.

IV

Ambiguous answers may not be made the basis

for a perjury prosecution.

As appears from the record (p.153¢), the

trial court instructed the jurv that they could

convict of perjury if the answers given were

ambiguous or even true, so long as there was an

intent to deceive.

1l

However, the law will not sustain a perjury

conviction based on ambiguous testimony. Common-

wealth v. Giles, 353 Mass. 1, 228 N. E. 2d 70;

United States v. Diago, 320 F. 2d AOR, $07.

The very indictment herein, in charging

perjury, abounds in answers of an ambiguous charac-

ter, such as "I don't think so ... I don't remember

that kind of a conversation" (count lL); "I don't

recall it ... It may be possible that I had a

conversation something like that" (count 5‘--

and many others. Accordingly, it was of paramount

importance that the trial court should have excluded

ambiguous testimony as a possible foundation for

a@ perjury conviction.

v

It_was error for the instructions not to

include an adequate discussion of the exculpatory

Statements and circumstances affecting petitioner.

In the review of the evidence relating to

conspiracy and briberv (1515-1525), the references

to petitioner's alleged participation made only

casual mention of his claim "in essence that all he

intended to do was to get Morales off his dDack" (151°),

12

The tenor of the language in effect gives little

or no force to the tapes, in the course of which

petitioner, while obviously unaware of the

recording procedure, repeatedly negatived any

participation, whether in conspiracy or intent

to bribe. The error was compounded in the

asSumption of an alleged conspiracy in August,

i972, despite evidence dealing with events four

or five months later. Due exception was taken to

the foregoing (1533).

The law is well established that a trial

judge's summary of the evidence for the enlighten-

ment of the jury must be fair, adequate and not

one-sided. Williams v. United States, 93 F. 2d

685. The instructions must Sedulously maintain

a judicial attitude of complete impartiality.

United States v. Musgrave, lil F. 2d 755,

The charge's deficiency in the foregoing

regard becomes especially Significant when it is

noted that upon the motions for Sudgment of acquit-

tal the judge expressed his own doubts as to the

sufficiency of the evidence to establish the

guilt of petitioner.

13

Conclusion

The case is one wherein petitioner has

been unjustly convicted. The present aprlica-

tion presents meritorious and certainly areuable

questions on subjects likely to arise in other

cases and of a character calling for authoritative

disposition. The petition is filed in good faith

and not for purposes of delay.

For the foregoing reasons, your petitioner

respectfully prays that a writ of certiorari issue

to the United States Court of Appeals for the

Second Circuit, to the end that this cause may

be reviewed and determined by this Court: that

the determination, order and judgment of the said

Court of Appeals in so far as it affirms the judg-

ment of the United States District Court may be

reversed, and that petitioner be granted such

other, further and different relief as may seem

proper.

Dated: New York, N. Y., April 22, 1975.

JACOB *. IEDMAN,

Attérney for Petitioner

A-1

OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Cal. No. 395, 396 -- September Term 1974

Argued November 15, 1974

Decided February 27, 1975

Docket Nos. 74-2021, 74-2035

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

WILLIAM DEL TORO

and WILLIAM KAUFMAN,

Defendants-Appellants.

Appellants were convicted by a

jury before Hon. Whitman Knapp, United

States District Judge for the Southern

District of New York of the crimes of

bribing a federal public official in viola-

tion of 18 U.S.C. § 201, of conspiracy to

defraud the United States of its lawful

functions in violation of 18 U.S.C. § 371,

and of several counts respectively of

making false declarations in violation of

18 U.S.C. § 1623. The Court of Appeals

held, Gurfein, Circuit Judge, that the

person "bribed," an employee of New York

City, was not a federal “public official"

within the meaning of Section 201 and that

the conviction on the substantive counts

must be reversed. The Court held further

that a conspiracy to defraud the United

States was proved, and that the contention

of appellant Kaufman that he was improperly

convicted of the crime of making a false

declaration because of his alleged recan-

tation is rejected and the false declaration

convictions, as well as the conspiracy con-

viction, are affirmed.

JACOB W. FRIEDMAN, New York, N.Y.

(MARC HERMELIN, New York, N.Y., on

the brief), for Defendant-Appellant

DEL TORO.

HAROLD BAER, JR., New York, N.Y.

(GUGGENHEIMER & UNTERMYER, JAMES

V. MORGAN, and BRUCE J. BERMAN,

New York, N.Y., of counsel), for

Defendant-Appellant KAUFMAN.

EDWARD J. KURIANSKY, Assistant

United States Attorney, Southern

District of New York (PAUL J.

CURRAN, United States Attorney,

and JOHN P. FLANNERY, II,

LAWRENCE S. FELD, and JOHN D.

GORDAN III, Assistant United

States Attorneys, Southern District

of New York, of counsel), for

Appellee UNITED STATES OF

AMERICA

Before FRIENDLY, FEINBERG and

GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Appellants William Del Toro and

William Kaufman were convicted of conspiracy,

bribery and perjury after a two week trial

before Judge Knapp and a jury. They chal-

lenge their conviction on several grounds

in this appeal. We affirm in part and

reverse in part.

The indictment charged appellants

and a third defendant, Ralph Ruocco,2/with

conspiracy to defraud the United States,

in violation of 18 U.S.C. § 371, and with

bribing a public official, in violation of

18 U.S.C. §§ 201(b) and 2. In addition,

each individual defendant was charged with

several counts of perjury, in violation of

18 U.S.C. § 1623.

The jury found Kaufman guilty of

conspirary, bribery and on three counts of

perjury. Three other counts had been dis-

missed by the court before trial on the

ground that Kaufman had effectively re-

canted his false testimony within the terms

of 18 U.S.C. § 1623(d) during his testimony

before the Grand Jury. He was sentenced to

concurrent terms of four years on each count.

The jury found Del Toro guilty of

conspiracy, bribery and on five counts of

perjury. He was acquitted on a sixth count

cf perjury; a seventh had been dismissed at

the close of all the evidence. He was sen-

tenced by Judge Knapp to concurrent terms of

a year and one.day on each count.

Evidence introduced by the Govern-

ment allowed the jury to find that Del Toro

and Kaufman had conspired to bribe Pedro

Morales, Assistant Administrator of the

A-4

Harliem-East Harlem Model Cities Program.

Kaufman, a lawyer and a real estate broker,

hoped that Morales would use his official

position to secure for Kaufman a lease by

Model Cities of significant office space in

one of the buildings for which Kaufman was

the renting agent. The benefit to Kaufman

would be a lucrative commission. Del Toro,

the Executive Director of an East Harlem

anti-poverty agency, Massive Economic

Neighborhood Development, Inc. (MEND), acted

as a middle man in the transaction.

The first meeting between Kaufman

and Morales occurred during late August, 1972,

as a result of a chance conversation between

Del Toro and Morales in Morales' office.

Morales mentioned to Del Toro that he had

been charged with the duty of finding of-

fice space for a new branch of Model Cities.

Del Toro stated that space was available

in the Ludwig-Baumann building, where MEN)D

offices had previously been located, and

that he knew Kaufman, the rental agent.

Several days later, Del Toro telephoned

Morales to say that Kaufman was at the MEND

offices. Morales joined Del Toro at MEND

offices, met Kaufman, and discussed the pos-

sibilities of leasing office space with both

men. At one point, Morales told Kaufman

that to secure the lease, Kaufman would have

to pay a 10 per cent commission as a bribe.

Kaufman indicated that he knew he might have

to pay a bribe and would think it over.

On September 1 Morales was arrested

by the United States Attorney's Office on

charges of conspiracy and receipt of bribes

relating to a different matter, a Model

Cities summer camp program. Morales admitted

his complicity and agreed to assist in a joirt

federal-city undercover investigation into

official corruption in the Model Cities

Administration. Thereafter, Morales, while

retaining his job with Model Cities, aided

investigators by tape recording conversa-

tions with various individuals who continued

to perceive him as a corrupt administrator.

Among those individuals were Kaufman and

Del Toro.

On September 20 Kaufman dropped

in at Morales' office at a time, when, by

chance, Morales happened to be wearing

concealed recording equipment in connection

with another investigation. Morales recorded

his conversation with Kaufman, in which the

two discussed the possibility of the rent-

ing of space in the Ludwig-Baumann Building

by Model Cities. Kaufman assured Morales

that a mutually lucrative deal could be

worked out in detail. When Morales stated

that his superior would want money "up

front," Kaufman stated that he usually

operated on trust with people, but he did

not refuse out of hand to supply front money.

Kaufman also noted that they would have to

build up a business record of their trans-

action to conceal the payoff.

On October 26 Morales recorded a

conversation with Del Toro in which Del

Toro offered to help Morales come to an

agreement with Kaufman, who had not gotten

in touch with Morales since their September

20 meeting.

On October 30 Morales met with

Kaufman at Del Toro's office, as Del Toro

had arranged, and the conversation was re-

corded. Del Toro was not present. Kaufman

told Morales that the owners of the building

had agreed to pay Morales $15,000 if he could

arrange for Model Cities to rent the space

A-6

and that the payoff would be disguised as

a part of Kaufman's commission agreement.

Kaufman would make his payment to Morales

once the commission had been paid to Kaufman.

In response to Morales' expressed fears of

a double-cross, Kaufman stated that he would

not jeopardize his continuing good relation-

ship with the City personnel by deceiving

Morales.

Thereafter, Morales had a series

of meetings both with Del Toro and Kaufman

which were recorded. In such meetings, Del

Toro demonstrated specific knowledge of the

transactions between Kaufman and Morales

and urged Morales to trust Kaufman. He also

agreed to help Morales secure front money

from Kaufman. In meetings with Kaufman,

Kaufman assured Morales that money would be

forthcoming once serious negotiations on the

lease had begun.

In the meantime, Kaufman had in-

formed Ralph Ruocco, assistant to the

President of Acme-Hamilton, the New Jersey

corporation which owned the Ludwig-Baumann

Building, that it might be necessary to

bribe Model Cities officials in order to

secure the lease. On November 14 Kaufman

nad Ruocco, on behalf of Acme-Hamilton,

signed a commission agreement which in-

cluded inflated percentage payments to

Kaufman, out of which he would make payments

to the officials. In January, Kaufman suc-

ceeded in getting a check for $500 from

Ruocco, who had purportedly gotten approval

from his superior, the President of Acme-

Hamilton. On January 26 at a prearranged

meeting, Kaufman paid the $500 in cash to

Morales and urged him to press forward with

arrangements for the lease. Kaufman later

told Ruocco that the money had been paid to

Morales.

A-7

The perjury counts against Kaufman

On February 2, 1973, Kaufman

appeared before the Grand Jury, where he

was advised of his constitutional rights

and of the fact that he was a target of

their investigation. After having denied

complicity in any corrupt activities,

Kaufman was shown boxes of tape recordings.

He then admitted that Morales had asked him

for money, but denied offering or paying

any bribes.

Thereafter, Kaufman met with the

Assistant United States Attorney conducting

the grand jury investigation, who reminded

him of his constitutional rights and then

read to him the perjury statute, drawing his

attention to the recantation provision and

to the proviso that a recantation can no

longer be made once the perjury has become

manifest. The Assistant then told Kaufman

about the tapes of his conversations with

Morales, after which Kaufman admitted of fer-

ing a bribe to Morales. He continued to

deny that he actually paid the $500.

The Assistant and Kaufman then

entered into an exchange in which Kaufman

indicated that he would be willing to tape

conversations with officials of Acme-

Hamilton in return for a deal with the

Government. Denied his request for full

immunity, and informed that he would have

to plead guilty to a felony, Kaufman

decided to consult an attorney.

On February 6 Kaufman and his

lawyer met with the Assistant and, after

some discussion, Kaufman agreed to cooperate

with the Government and to plead guilty

either to conspiracy or to perjury. He

A-8

now admitted paying the $500 to Morales

and revealed his discussions and arrange-

ments with Ruocco. During the subsequent.

brief period of cooperation, Kaufman him-

self tape recorded two conversations with

Ruocco, in which Ruocco indicated his

knowledge of the bribery transactions and

implicated his superiors at Acme-Hamilton.

Kaufman was twice called to appear before

the Grand Jury thereafter to adjourn his

subpoena, but he did not testify.

On February 16 Kaufman again asked

for full immunity or for a chance to plead

to a gratuity count in return for his con-

tinued cooperation. Informed that this

arrangement would be impossible, Kaufman

withdrew from his agreement to cooperate

with the Government. He appeared once more

before the Grand Jury, bur failed to testify

further on advice of counsel. Kaufman also

warned Ruocco by telephone that they were

under investigation, and suggested that they

meet to work out a coherent story.

Del Toro Perjury

In the meantime, Del Toro had

appeared before the Grand Jury on February

16, where, after being informed of his

rights and of the fact that he was a target

of the investigation, he denied knowing of

any offer or payment to Morales and parti-

cipating in any way in the transaction. He

admitted only that he thought Model Cities

would be paying Kaufman a brokerage fee

and that he was aware that payoffs were

not uncommon among public officials. In

a second appearance before the Grand Jury

on February 23, Del Toro declined to change

his earlier testimony. He did admit that

A-9

he had introduced Kaufman and Morales and

had been present at their first meeting,

but claimed he had becn in a different part

of the room when they talked.

I

Both appellants contend that their

convictions on the substantive counts, two

and three, for violation of 18 U.S.C. §§ 201

(b)2 cannot stand, and that their conviction

on the conspiracy count, count 1, must also

be reversed. We agree with their conten-

tion on the substantive counts. We disagree

with respect to the conspiracy count.

18 U.S.C. § 201(b) (1) provides

that whoever gives or promises anything of

value to any "public official" with intent

to influence any official act is subject to

fine and imprisonment. Kaufman and Del Toro

were convicted under § 201(b).2/

"Public official" is defined in

Section 20l(a), in pertinent part, es an

"officer or employee or person acting for

or on behalf of the United States, or any

department, agency or branch of Government

thereof, including the District of Columbia,

in any official function, under or by author-

ity of any such department, agency or branch

of Government."

"Official Act" is there defined

as “any decision or action on any question,

matter, cause, suit, proceeding or contro-

versy, which may at any time be pending, or

which may by law be brought before any public

official, in his official capacity, or in

his place of trust or profit."

Appellants raise the point that

ieee

A-10

Morales, who was a city employee, was not

a “public official" nor capable of perfornm-

ing an “official act" within the meaning of

the statute.

The trial judge had some reasoned

hesitation on the point but concluded that

"a close legal question ought to be decided

in favor of the Government so it can be re-

voewed." He accordingly denied the defense

motions to dismiss, and charged the jury

as follows. After telling the jury that in

order to convict they must find that Kaufman

promised Morales $15,000 and that “the pur-

pose of the promise was to influence hin,

Morales, in an official act, namely, to

induce him to make a favorable recommenda-

tion that would induce Model Cities to lease

the Ludwig-Baumann Building," he proceeded

to explain the third element of the offense

"that Morales was a public official."

On this, the trial judge charged

as follows:

"Official, of course, means

an official of the United States.

We have no jurisdiction in this

Court over the bribery of any

other officials. That in turn

has been defined by statute as

one who is acting for or on be-

half of the United States or any

agency thereof.

"Now, you have heard the

testimony of Mr. Torres to the

general effect that the United

States government had determined

to implement certain of its social

and government objectives by fi-

nancing certain state or city

A-11

agencies, one of which was

Model Cities, of which Mr.

Morales was a duputy director.

You will recollect what Mr.

Torres said about the extent

to which the United States

through HUD, Housing and Urban

Development, supervised Model

Cities' activities and that

the United States paid 100% of

the cost of Model Cities' pro-

gram and 80% of its salaries

including, of course, Mr.

Morales'.

"The salaries were actually

paid by the city but through

monies advanced by the govern-

ment, according to Mr. Torres'

testimony. On the basis of

such testimony you may conclude

that Mr. Morales was: ‘Acting

for or on behalf of the United

States or an agency thereof,'

and that he was a public official

within the meaning of the statute."

The jury was permitted to convict

on the substantive counts on the theory that,

although Morales was a city employee, he

could be found to be a federal "public of-

ficial” because the federal government

financed certain city agencies like Model

Cities by paying 100% of the cost of its

program and 80% of its salaries through a

grant to the City, and because HUD super-

vised Model Cities' activities to some ex-

tent.

In view of the enormous amount of

funding by the Federal Government on a broad

spectrum which includes welfare, housing and

health, we are constrained to take a close

A-12

look at the determination below and the

effect of bringing clearly illegal conduct

under state law within the ambit of the

federal jurisdiction.

It seems to us that a healthy

regard for the federal system of divided

powers, as well as for the still accepted

doctrine that “ambiguity concerning the

ambit of criminal statutes should be re-

solved in favor of lenity," Reivis v. United

States, 401 U.S. 808, 812 (1971), compels

a close scrutiny. In discerning Congres-

sional intent we may consider whether an

expansive interpretation of the statute

"would alter sensitive federal-state re-

lationships [and] could overextend limited

federal police resources." Reivis, supra,

401 U.S. at 812.

Turning to the question of am-

biguity, we write on a comparatively clean

slate, for there are no decisions holding

city employees like Morales to be federal

"public officials." Cases cited to this

point by the Government are inapposite.

In United States v. Levine, 219

F.2d 745 (2 Cir. 1942) the Market Adminis-

trator was appointed directly by the Secre-

tary of Agriculture, and in turn appointed

the defendant who was bribed to use his

influence to stave off investigations under

the federal statute. In Harlow v. United

States, 301 F.2d 361, 370 (5 Cir. 1962) the

post exchanges were themselves direct in-

strumentalities of the United States and

its employees were "acting for the United

States."

Cases cited under the federal

fraud statutes are different because they

A-13

involved obtaining federal funds by fraudu-

lent means, see United States ex rel. Marcus

v. Hess, 317 U.S. 537; United States v.

Candella, 487 F.2d 1223 (2 Cir. 1973), cert.

denied, 415 U.S. 977 (1974), a direct injury

to the federal government.

Our first inquiry then is whether

Section 201 on its face takes in a person in

the status of Morales as a federal "public

official." The Government relies on the

phrase "acting for or on behalf of the

United States in any official function."

It places no emphasis on the modifying phrase

"under or by authority of any such depart-

ment, agency or branch of Government."

We do not believe that Morales

was acting “under or by authority of any

such department, agency or branch" of the

federal government. He was a city employee,

Carrying out a task delegated to him by his

superior, another city employee. If his

superior had accepted Morales' recommenda-

tion, the decision to move Model Cities'

offices to the Ludwig-Baumann Building would

still have had to be passed on by the City

Department of Real Estate, the Corporation

Counsel, and the Board of Estimate. Only

after all these agencies had approved would

the request for funding have been made by

the City to HUD. There were no existing

committed federal funds for the purpose.

We would have to strain to find a

Congressional intention to include Morales

as a federal "public official" in these

circumstances.

We think, moreover, that Congress,

by a process of exclusion, has shown a con-

trary intention with respect to persons like

A-14

Morales. A braoder look at the bribery and

related statutes shows this.

18 U.S.C. § 203 includes within

the prohibitions against bribery "a special

Government employee" -- essentially, as de-

fined in Section 202, a short-term employee.

When the Public Health Service

Statute was enacted, it subjected to the

provisions of 18 U.S.C. § 203 “any State

officer or employee who is assigned to the

Department (HEW) without appointment." 42

U.S.C. § 246(7) (A). Thus, even when there

was an actual interchange of personnel with

the states as provided in 42 U.S.C. § 246

(£) (1) et seq., Congress thought it neces-

sary to make the state employee subject to

the bribery statutes by special reference --

an unnecessary reference if he would be

broadly read to be “acting for or on be-

half of the United States" under 18 U.S.C.

§ 201 or § 203 in any case. |

Indeed, in 1971, in formulating

the Government Organization Statute, Congress

specifically provided, 5 U.S.C. § 3374, for

every "executive agency", in which HUD is

included, that "(a) an employee of a state

or local government who is assigned to an

executive agency under an arrangement under

this subchapter .. . (c) during the period

of assignment, a state or local government

employee on detail to an executive agency

- . . (2) is deemed an employee of the agency

for the purpose of .. . sections 203, 205,

207, 208, 209, 602, 603, 606, 607, 643, 654,

1905 and 1913 of Title 18. .. ." (Emphasis

added). 3/

If Section 201 is given the broad

reading of the court below, there is no need

A-15

for the earlier Public Health or later

Government Organization statutes. Whether

we consider the statutory treatment as an

expression of contrary Congressional intent,

however, or as simply a contribution to the

ambiguity of Section 201, we hold that, in

the circumstances of this case, Morales was

not a federal "public official” and that it

was reversible error to permit the jury to

find that he was.

We note in passing that we reject

appellants’ alternative theories that even

if Morales was a federal "public official"

his mere recommendation would not be suf-

ficient to constitute an “official act."

See United States v. Carson, 406 F.2d 424,

433 (2 Cir. 1973); as well as their con-

tention that because, at least with respect

to Count 3, Morales was an undisclosed under-

cover agent, his status negated the concept

of bribery. See United States v. Rosner,

485 F.2d 1213, 1228-29 (2 Cir. 1973), cert.

denied, 417 U.S. 950 (1974).

Il

When we turn to the convictions on

the conspiracy count we are not under the

constraint of interpreting a particular sub-

stantive statute. The conspiracy charged

here was within the federal criminal juris-

diction. The indictment alleged, inter alia,

that the defendants conspired "to defraud the

United States and its departments and agencies

in connection with the performance of its

lawful governmental functions by obstructing

and hindering the United States Department

of Housing and Urban Development in the

impartial, fair and honest distribution of

federal funds and by depriving the United

A-16

States of the faithful and honest services

of employees of the New York City Model

Cities Administration which was, at all

times relevant to this indictment, funded

and supervised in substantial part by the

United States Department of Housing and

Urban Development."

The essence of the conspiracy

was the corrupt agreement to defraud the

United States in the performance of its

lawful governmental functions. On this

charge there is no need to find Morales a

federal public official. And Judge Knapp

correctly explained that to the jury. 4%

Here the conspiracy might never achieve its

objective, but that would not be a deter-

mining factor. An agreement that might de-

fraud the federal government in its functions

at some time in the future, followed by an

overt act, makes out the conspiracy charged.

It is not necessary that the agreement be

to defraud the Government out of money,

Haas v. Henkel, 216 U.S. 462 (1910); United

States v. Jacobs, 475 F.2d 270 (2 Cir.),

cert. denied sub nom. LaVelle v. United

States, 414 U.S. 821 (1973), but only to

impede its lawful functions.

While some of the conspiracy

cases cited by the Government are easier

than this case because federal money had

actually been set aside, Harney v. United

States, 306 F.2d 523, 531 (1 Cir. 1962) or

applied for, United States v. Thompson, 366

F.2d 167 (6 Cir. 1966), we do not think the

difference to be substantial. The concep-

tion that a criminal conspiracy has been

formed is less restrictive than whether an

“attempt” has gone far enough to make the

act charged a criminal act.

A-17

III

Kaufman contends that his convic-

tion on the perjury counts (false declaration)

under 18 U.S.C. § 1623 is legally deficient

in two respects. He contends first that the

prosecutor should never have taken him before

the Grand Jury knowing that he was a poten-

tial defendant without revealing in advance

that Morales had secretly taped conversa-

tions with him at the instance of the govern-

ment. Kaufman contends, moreover, that the

government failed to live up to its obliga-

tions by not informing the Grand Jury that

he had recanted, before permitting the Grand

Jury to indict him for making false declara-

tions.

Kaufman cites no authority in

support of the first proposition. His

argument is that the prosecution is under a

duty to inform a prospective defendant that

there are recordings of his own criminal

conduct, distinguishing cases where the

testimony of other wit nesses was not dis-

closed. United States v. Winter, 348 F.2d

204, 210 (2 Cir.) cert. denied, 382 U.S.

955 (1965). Judge Weinfeld's discussion

in Winter, speaking for this court, lays

the point to rest. There is no duty on the

prosecution to tell a Grand Jury witness

what evidence it has against him or to give

him repetitive warnings that it is his duty

to tell the truth when he has sworn upon

his oath to tell the truth. It is not an

unfair dilemma to put upon a prospective

defendant to require him to claim privilege

or to tell the truth. Though Kaufman was

not in custody, he was given the Miranda

warnings.

We do not condone the use of the

Grand Jury for the sole purpose of preparing

A-18

an already pending indictment for trial,

see United States v. Dardi, 330 F.2d 316,

336 (2 Cir. 1964), and there may be situa-

tions in which no indictment has yet been

filed where this stricture would apply.

In this case, however, there was a continu-

ing investigation into possible corrupt

practices of Model Cities personnel and

some who dealt with them. Kaufman could

have been a valuable witness for the Govern-

ment, see United States v. Sweig, 441 F.2d

114, 121 (2 Cir.), cert. denied, 403 U.S.

932 (1971), as indeed he tried to be in his

period of cooperation after his perjury.

The second contention concerning

his alleged recantation is also without merit.

In 1970, Congress in enacting the

Organized Crime Control Act included a sec-

tion relating to false declarations before

a grand jury or court, Pub. L. 91-452, Title

IV ¥ 40la, 84 Stat. 932. That section, 18

U.S.C. § 1623, addressed itself to the

problems of recantation. Congress provided:

"Where, in the same contin-

uous court or grand jury pro-

ceeding in which declaration

is made, the person making the

declaration admits such declara-

tion to be false, such admission

shall bar prosecution under this

section if, at the time the ad-

mission is made, the declaration

has not substantially affected

the proceeding, or it has not

become manifest that such fal-

sity has been or will be exposed."

18 U.S.C. § 1623(d). 2/

A-19

The purpose was obviously to in-

duce the witness to give truthful testimony

by permitting him voluntarily to correct a

false statement without incurring the risk

of prosecution for doing so. 2 U.S. Code

Cong. & Adm. News p. 4024 (1970). &/

Kaufman appeared before the Grand

Jury on February 2, 1973. He was advised of

his privilege against self-incrimination

and that he was a target of the Grand Jury

investigation. After he gave what the

Assistant United States Attorney believed

to be perjurious testimony, he was warned

that he might be subject to a perjury pro-

secution, and asked whether "in light of

that warning" he wished to change his testi-

mony. Kaufman said no. When the Assistant

conspicuously put some boxes of tape re-

cordings on the table, Kaufman said he would

like to change his testimony and admitted

that Morales had asked him for money. He

continued to deny, however, that he had

offered Morales $15,000, that he had paid

Morales $500 and that he had discussed the

matter with Del Toro. These denials, among

others, were the basis for the false de-

claration counts on which Kaufmg was con-

victed in Counts 12, 13 and 16.

After this first Grand Jury

session, Kaufman went to the office of

the United States Attorney where he talked

with several assistants, recanting some of

the perjury that day, and the balance on

February 6, 1973 after consulting counsel.

Having agreed to become a cooperating wit-

ness for the Government and himself to

wear a tape recorder in further pursuit

of crime, he later balked at wearing a

tape recorder in a prorosed conversation

A-20

with the president of the company which

owned the Ludwig-Baumann building on the

obviously silly excuse that the latter was

an honest person who knew aoe of Kaufman's

illicit relation with Morales.

Kaufman argues that the failure

of the prosecutor to tell the Grand Jury

that he had confessed to the substantive

crime and conspiracy -- for that is what

his "recantation" meant -- bars his prosecu-

tion for perjury.

Kaufman appeared before the Grand

Jury three times after the purported recan-

tation in the United States Attorney's of-

fice. On apparent advice of counsel he

made no effort himself to recant before the

Grand Jury. We need not decide whether

Kaufman still had a chance to recant his

perjury or whether his perjury had by then

been made manifest, for he failed to use

his own opportunity to recant before the

Grand Jury in any event.

In fact, his “recantation,” made

in piecemeal fashion, was part of a plea

bargaining process which could not have

taken place before the Grand Jury, and which

was hardly the type of recantation consi-

dered by Congress in enacting the section.

Kaufman makes the additional argu-

ment that the prosecutor unfairly cut off

his recantation "right" by making his per-

jury "manifest" as soon as he left the

Grand Jury for the first time. However,

the prosecutor's placing of boxes of tape

recordings on the table in the Grand Jury

room should have indicated that the time

for recantation had come, or at least, did

not have long to run. Kaufman thereupon

A-21

simply made one grudging admission, but

he failed to recant his denial that he had

bribed and agreed to bribe Morales. More-

over, as indicated, Kaufman later appeared

before the Grand Jury again but made no

effort to tell it the truth. Under the

circumstances, the claim that his “right”

to recantation was unfairly cut off is

without merit.

There was no need to warn appel-

lant of his “right” to recant, as we have

recently held. United States v. Cuevas,

F.2d , slip op. 1715, No. 577, Sept.

Term 1974 (Decided Feb. 10, 1975); United

States v. Lardieri, 497 F.2d 317, 321 (3

Cir. 1974), on rehearing, remand witdrawn

and judgment affirmed, F.2d 43 Cir.

Dec. 18, 1974) slip op. No. 73-1750.

Nor was there any need, as appel-

lant contends, for the prosecutor to notify

the Grand Jury of his "cooperation." He

quotes from the Commentary on the Standards

Relating to the Prosecution Function (197:)

that "a prosecutor should prsent to the

grand jury evidence which would reasonably

tend to negate the guilt of the accused. .

A guilty person who "cooperates"

does not negate his guilt thereby. It is

commonplace that punishment is for the

court, not the jury, grand or petit.

IV

Del Toro contends that the use

of Kaufman's Grand Jury testimony violated

the rule of Bruton v. United States, 391

U.S. 123 (1968), since Kaufman did not

testify. Though appellant argues that “the

A-22

recantation involving Del Toro” was read

to the jury, no transcript reference is

given, nor could any be found. In the

Grand Jury testimony of Kaufman there is

no inculpatory statement regarding Del

Toro. Hence Bruton is not applicable.

United States ex rel. Nelson v. Follette,

F. P Cir. 0); United

States v. Deutsch, 451 F.2d 98, 116 Cir.

I971), cert. denied, 404 U.S. 1019 (1972);

United States v. Trapiano, 418 F.2d 1069,

1080-81 (2 Cir. 1565s, cert. denied, 397

U.S. 1021 (1970).

We have examined the other clains

of error and found them without merit.

The conviction on counts 2 and 3

is reversed, as to both appellants. The

conviction on the other counts is affirmed

as to both appellants. 1)/

FILED

February 27, 1975

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

A-23

POOTNOTES

1. Ruocco pleaded guilty to the

conspiracy count and testified for the govern-

ment.

2. Section 20l(c) (1) correlatively

subjects to fine and imprisonment the "“pub-

lic official" who corruptly receives or

agrees to receive anything of value in re-

turn for being influenced in his performance

of any official act.

It is also a crime under 18

U.S.C. § 201(b) (2) for the briber to make

the gift or promise to the public official

to influence him to commit or aid in commit-

ting or collude in or allow, any fraud, or

make opportunity for the commission of any

fraud on the United States. There is a

correlative provision in 20l(c)(2). The

case was tried on the theory only of "official

act” under subsection (1) and the court

charged only "official act." In any event,

under either subsection it would be neces-

sary to find that the person bribed was a

"public official."

3. Significantly, in prohibiting

political activity by state and local em-

ployees there is no requirement that the

local employee be “assigned” to the federal

agency. In the context of prohibition of

political activity, as distinguished from

bribery, the definition is broad. A "'state

or local officer or employee' means an in-

Gividual employed by a state or local agency

whose principal employment is in connection

with an activity which is financed in whole

or in part by loans or grants made by the

United States or a federal agency ....”

5 U.S.C. § 1501.

A-24

4. The court charged that “in

the conspiracy count all you must find in

this regard is that the object of the con-

spiracy was to some extent to subvert the

Model Cities program, and hence the ob-

jectives of the United States, by depriving

Model Cities, and hence the United States,

of Mr. Morales' unprejudiced judgment regard-

less of whether he technically fitted the

definition of public official as I have

defined that term to you.”

5. The Supreme Court in United

States v. Norris, 300 U.S. 564 (1937), had

eld that “the telling of a deliberate lie

by a witness completes the crime defined by

law." (§ 125 of the U.S. Criminal Code;

R.S. 5392; 18 U.S.C. § 231), and that a

prompt recantation does not excuse the

perjury though it may demonstrate that there

was no wilful intent to swear falsely. 300

U.S. at 576.

In People v. Ezaugi, 2 N.Y.2d

439 (1957), the Court of Appeals put a

severe limitation on the famous rule of

People v. Gillette, 126 App. Div. 665 (1908),

slaias that the Gillette rule applied only

"when no reasonable likelihood exists that

the witness has learned that his perjury is

known or may become known to the author-

ities." 2 N.Y¥.2d at 443. This made the

New York recantation rule stricter than

Gillette, but more liberal than the federal

rule of Norris. The rule of Ezaugi was

codified in 1967 to provide that e any

prosecution for perjury, it is an affirma-

tive defense that the defendant had re-

tracted his false statement in the course

of the proceeding in which it was made

- « « « before it became manifest that its

falsity was or would be exposed.” N.Y.L.

A-25

1965, c. 1030, Penal Law § 210.25.

Section 1623(d) was adapted in

modified form from the New York Penal Code,

Section 210.25. See 2 U.S. Code Cong. &

Adm. News, 1970, pp. 4023-24; Hearing and

Reports of the Committee on the Judiciary,

S. 30 (1969). The New York Statute codified

the ruling in People v. Ezaugi, supra. In

the New York statute the retraction is made

an "affirmative defense."

6. Section 1621, the general

perjury statute, has no recantation pro-

vision.

7. Counts 11, 14 and 15, based

on Kaufman's initial denials of having any

knowledge of corruption in Model Cities

and of having been asked for or having dis-

cussed money with Morales, were dismissed

prior to trial with the Government's con-

sent, in view of Kaufman's recantation and

admission during his Grard Jury appearance

that he had in fact been asked for money by

Morales.

8. The real basis for the break-

down of further cooperation was presumably

the Government's refusal to grant Kaufman

immunity in return for his cooperation.

9. In view of our conclusion

there is no need to consider whether the

point is waived by failure to move prior

to trial. See United States v. Kahn, supra,

472 F.2d at 283 n.9.

10. Del Toro's claim of entrap-

ment is vrivolous. The initial meeting

between Kaufman and Morales was arranged

by Del Toro and he was told by Kaufman to

A-26

carry the message to Morales that Kaufman

would split $50,000 less taxes with Morales

in exchange for the lease. All this oc-

curred before September 1, 1972, the time

when Morales was arrested and began to act

as a government undercover agent.

ll. We have noted Kaufman's argu-

ment that there is a serious disparity in

sentences on convictions from Model Cities

corruption, with Kaufman's sentence by far

the most severe. We do not exercise appel-

late review on the sentencing judge's

discretion, but we call t he judge's atten-

tion, not only to the reversal of the

substantive counts, but also to the dis-

parity, for his consideration ii a Rule 35

motion is made. :