Opposition — Doulin v. United States

No. 76-25

In the Supreme Court of the Bnited

OCTOBER TERM, 1976

WILLIAM E. DOULIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RoBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

JOHN J. KLEIN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 76-25

WILLIAM E. DOULIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on May 14, 1976. On June 4, 1976, Mr. Justice Marshall

extended the time in which to file a petition for a writ

of certiorari to and including July 13, 1976, and the peti-

tion was filed on July 12, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner’s false declarations before

two grand juries were material to the proper inquiry of

the grand juries.

(1)

2

2. Whether the district court violated petitioner's Sixth

Amendment right to trial by jury by ruling that his false

declarations before two grand juries were material as

a matter of law.

STATEMENT

After a jury trial in the United States District Court

for the Southern District of New York, petitioner was

convicted on four counts of making false declarations

before a grand jury, in violation of 18 U.S.C. 1623. He was

sentenced to a concurrent term of two and one-half years’

imprisonment on each count, all but six months of which

was suspended in favor of two years’ probation. The court

of appeals affirmed (Pet. App. A).

The evidence at trial and at a mid-trial materiality hear-

ing showed that in June 1973 petitioner, who was then

Chairman of the Republican Committee in Orange County,

New York, appeared before a federal grand jury in the

Southern District of New York that was investigating

alleged payments to Orange County officials to obstruct

the enforcement of local gambling laws. Petitioner

denied participating in any such activity and also denied

having received money to secure a probationary sentence

for one Richard Monell, who had been convicted of assault

in the New York State courts. In February 1975 petitioner

was called before a second grand jury in the Southern

District of New York, which was investigating official

corruption and possible perjury committed before the first

grand jury. Again petitioner denied any improper conduct

with respect to the local gambling operations or the

Monell prosecution (Pet. App. A-3 to A-4).

Contrary to these assertions, however, the proof showed

that Jean Grant, Monell’s grandmother and petitioner's

life-long friend, had asked petitioner to use his influence

to obtain a sentence of probation for Monell. Petitioner

3

agreed and contacted Abraham Weissman, the Assistant

District Attorney handling the Monell case, indicating

to Weissman that his aspirations for higher office might

well be fulfilled if he recommended that Monell not be

given a jai! sentence. Weissman made the requested

recommendstion and the desired sentence was imposed.

Shortly after the sentencing, Mrs. Grant withdrew $1,400

from her savings account and delivered it to petitioner

in payment for his assistance in Monell’s case (Pet. App.

A-3 to A-5).

ARGUMENT

1. Petitioner does not deny the falsity of his state-

ments before the two grand juries. Nor does he contest the

grand jury’s authority to investigate an alleged conspiracy

to interfere with the enforcement of local gambling laws.

See 18 U.S.C. ISI}. Rather, petitioner contends (Pet.

7-8) that the government failed to prove that his false

statements concerning his involvement in the Monell

matter were material to an investigation properly within

the jurisdiction of the grand juries.

The test of materiality is whether a false statement had

a natural effect or tendency to influence, impede, or dis-

suade the grand jury from pursuing its investigations.

United States v. Paolicelli, 50S F. 2d 971, 973 (C.A. 4);

United States v. Devitt, 499 F. 2d 135, 139 (C.A. 7), certio-

rari denied, 421 U.S. 975: United States v. Lardieri, 497

F. 2d 317, 319(C.A. 3); United States v. Mancuso, 485 F. 2d

275, 280 (C.A. 2); United States v. Koonce, 485 F. 2d 374,

380 (C.A. 8); United States v. Makris, 483 F. 2d 1082, 1088

(C.A. 5), certiorari denied, 415 U.S. 914; United States v.

Lococo, 450 F. 2d 1196, 1199(C.A. 9), certiorari denied, 406

U.S. 945. For a statement to be material under the per-

jury statute, it need not be dispositive of the inquiry.

United States v. Birrell, 470 F. 2d 113, 115, n. 1 (C.A. 2).

All that must be shown is that “a truthful answer would

4

have been of sufficient probative importance to the in-

quiry so that, as a minimum, further fruitful investigation

would have occurred.” United States v. Freedman, 445

F. 2d 1220, 1227 (C.A. 2). See also United States v. Paoli-

celli, supra, 505 F. 2d at 973; United States v. Devitt, supra,

499 F. 2d at 139.

The district court correctly concluded that petitioner’s

false statements were material to the grand jury’s in-

quiry. Petitioner’s acceptance of a bribe to use his political

influence to affect the outcome of the Monell prosecu-

tion demonstrated that he had the means as well as

the inclination to interfere in other local criminal mat-

ters as well. A truthful response would have led to further

questioning about the source and ultimate disposition

of the bribe, and might have corrovorated other testimony

before the grand jury that petitioner was protecting

illegal gambling operations in Orange County. Moreover,

petitioner’s ability to corrupt at least one member of the

Orange County District Attorney’s office raised the pro-

spect that others might also have purchased illegal favors

from the same official. Thus, petitioner’s truthful answers

about the Monell matter might have provided substantial

assistance to the grand jury’s inquiry concerning official

corruption, and, accordingly, his false statements were

material to that investigation. !

2. Petitioner contends (Pet. 9-11) that the district court's

finding of materiality as a matter of law violated his Sixth

Amendment right to a trial by jury on each element of

'Petitioner’s claim (Pet. 7-8) that his testimony was necessarily

inmaterial because the grand jury had no jurisdiction to look into

the Monell case is incorrect since. as the court of appeals noted (Pet.

App. A-8). “[t}he grand jury's duty and indeed responsibility to inquire

is not coterminous with its power to indict.” See United States v.

Mancuso, supra, 485 F. 2d at 283: United States v. Cohn, 452 F. 2d

8&1 (C.A. 2). certiorari: denied. 405 U.S. 975.

oa a>

—_—-*~

5

the offense. Although petitioner concedes that the court's

authority to determine the issue of materiality of false

statements in a perjury case was upheld in Sinclair v.

United States, 279 U.S. 263, 297-298, he nevertheless

suggests that the Court should “re-examine this archaic

rule which is out of joint with contemporary thought”

(Pet. 11).

In Sinclair, this Court recognized that the materiality

of a witness’s statements to an investigation does not

depend upon the probative value of the statements, but

is similar to the determination of relevancy made by a

trial court prior to the admission of evidence. Since

materiality is a question of law, it is properiy resolved

by the court rather than the jury. This rule has been applied

without exception by the lower courts. See, e.g., United

States v. Saenz, 511 F. 2d 766, 768 (C.A. 5), certiorari de-

nied, 423 U.S. 946; United States v. Romanow, 509 F. 2d 26,

28 (C.A. 1); United States v. Demopoulos, 506 F. 2d 1171,

1176(C.A. 7), certiorari denied, 420 U.S. 991; United States

v. Paolicelli, supra, 50S F. 2d at 973; Tasby v. United States,

504 F. 2d 332, 337(C.A. 8), certiorari denied, 419 U.S. 1125;

United Stats v. Masters, 484 F. 2d 1251, 1254 (C.A. 10);

United States v. Stone, 429 F. 2d 138, 140(C.A. 2); Vitello

v. United States, 425 F. 2d 416, 423 (C.A. 9), certiorari

denied, 400 U.S. 822.2 In these circumstances, there is

no reason for the Court to reconsider this well-established

doctrine.

?The rule is not unique. An essential element of the crime of

perjury under 18 U.S.C. 1621, for example, is that the false statement

be made to a “competent tribunal.” United States v. Debrow,

346 U.S. 374. Whether a particular tribunal is competent is a ques-

tion of law. to be decided by the court. See Caha v. United States.

152 U.S. 211: Young v. United States, 212 F. 2d 236 (C_A. D.C.).

certiorari denied, 347 U.S. 1015.

6

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

RoBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

JOHN J. KLEIN,

Attorneys.

SEPTEMBER 1976.

DOJ-1976-09