# Petition — Del Toro v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 826

## Text

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. :

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0359%3A1. Public record. Not legal advice.