Petition — Librach v. United States

—

Sup eme Court, U. &

FILED

JUL 26 1916

MICHAEL RODAK, JR., CLER

t

=

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

BURTON A. LIBRACH.

Petitioner,

V

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

KOHN, SHANDS, ELBERT, GIANOULAKIS

& GILJUM

ALAN C. KOHN

MARK J. BREMER

411 North Seventh Street

St. Louis, Missouri 63101

(314) 241-3963

Attorneys for Petitioner

MARK HIRSCHFELD

130 South Bemiston

Clayton, Missouri 63105

(314) 863-3344

Of Counsel

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

RAE Sa neg ee Serer er rer eter eee a I

i od ace eee ade RARE 2

EES eee TT Eee TTT ee eT eT eT TS 2

ee ee each ec ehaus eee oes 2

Reasons for Granting the Writ ..................... 8

1. The decision below raises an important question in

the administration of federal criminal justice which

should be decided by this Court ............... 8

2. The decision below conflicts with this Court's ruling

in DeMarco v. United States, 415 U.S. 449 (1974) 15

ES oo bate kah sae Gea os caceen cous ae ee 18

NG +4 dec eee ee karen eee ceeeacek 4 A-l

I oi sd'oc hades 6064s 0040S ERS REE EO RSS A-9

4, ee eee re a eee ee eee A-12

Table of Cases

DeMarco v. United States, 415 U.S. 449 (1974) ..... 2, 16, 17

Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489 (Ct. App.

Pee Pe Te Tee TT ee eee ee PCE UTE PPT Cre Pee 9

Gouled v. United States, 255 U.S. 298 (1921) ........ 14

Hanna v. United States, 260 F.2d 723 (D.C.Cir. 1958) ... 14

Jackson v. United States, 371 F.2d 960 (D.C. Cir. 1966) 17

Kastigar v. United States, 406 U.S. 441 (1972) ........ 10

Kolod v. United States, 88 S.Ct. 752, 390 U.S. 136 (1968),

reargument, 394 U.S. 165, reh. den., 394 U.S.939 .... 17

Mapp v. Ohio, 367 U.S. 643 (1961) ................ 14

McNabb v. U:S., 318 U.S. 332 (1943) ............... 14

People v. Brunner, 32 Cal.App.3d 911, 108 Cal. Rptr. 501

GUO. 8 5 hase se cc cd ee eeN eae eee Kcr costes 1!

Rochin v. California, 342 U.S. 165 (1952) ............ 14

United States v. Collins, 335 F.2d 547 (6th Cir. 1964) ... 17

United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967) ..17, 18

United States v. Johnson, 487 F.2d 1318 (Sth Cir. 1974) 17

U.S. v. Librach, 520 F.2d 550 (8th Cir. 1975) ......... ®

Weeks v. United States, 232 U.S. 383 (1914) .......... 14

Statutes Cited

Pe Sees kh ee A oe 4s se eeeweR eae ke< aus 3

Pe Pe NE 68 6 nc 8 oes k 6084 6450S AS be 10

oe Eg er er er ee 7, 10

cg re rr ar 10

ee Re ee eT oe ee 2

Miscellaneous Cited

Annot. Prosecutor—Immunity to Witness, 13 A.L.R. 2d

POE erat ee ries els ieee he RCRA aR Ne ee ae y

U.S. Constitution, Amendment 5 and6............... 17

U.S. Constitution, Article II, Sec. 2 .................. 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

RSE ey 8 Bee

BURTON A. LIBRACH,

Petitioner,

Vv

UNITED STATES OF AMERICA.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Burton A. Librach, petitioner, respecttully prays that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Eighth Circuit entered in this pro-

ceeding on June 17, 1976.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported, ap-

pears in Appendix A hereto.

i]

JURISDICTION

The judgment of the Court of Appeals for the Eighth Circuit

was entered on June 17, 1976. A timely petition for rehearing

or for rehearing en banc was denied on July 9, 1976, and this

petition was filed within 30 days of that date. This Court's

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

QUESTIONS PRESENTED

1. Should an indictment be quashed and a conviction re-

versed where both depended upon the testimony obtained from

4 witness to whom the local prosecutor granted immunity in a

manner and with a breadth wholly unauthorized under federal

statutes, Where the witness was the key conspirator and _peti-

tioner a fringe defendant, and where the witness received from

the Government a compensation of $1,000 per month plus

expenses?

2. Where the documen.ary evidence exhibited briefly to

petitioner at beginning of trial but not furnished petitioner until

after tria! establishes a prima facie case that protective custody

payments 1:ede by the Government to a witness were based on

fictitious th: °s, should the Court of Appeals follow this Court's

ruling in DeMdurco v. United States, 415 U.S. 449 (1974), and

remand the case to the District Court for disposition of the

issue Only after a proper evidentiary hearing?

STATEMENT OF THE CASE

Evidence Relating to the Offenses Charged

Petitioner was indicted in a two count indictment for filing a

false claim and using a false document to obtain an urban

renewal relocation payment of $9,700 from the Department of

Housing and Urban Development (HUD) in violation of 18

U.S.C. $1001 (R. 1-2).' He was convicted by a jury and sen-

tenced to six months confinement on Count I and 2 years pro-

bation to be served consecutively on Count II (Tr. 351, 356:

R. 33, 36).

Petitioner, a lawyer, is accused of filing a false claim in Au-

gust, 1969, for expenses fictitiously incurred in relocating the

furniture of the Windemere Hotel from the West End Urban

Renewal Area of St. Louis, Missouri, to two buildings known as

the Kingsbury Court Apartments which were in part owned by

petitioner (R. 1-2: Tr. 241, 253). The Windemere Hotel was

owned by petitioner's step-mother, Peppi Librach. It was lo-

cated in a building which was owned by the Windemere Realty

Company whose main shareholder was Peppi Librach, with pe-

titioner, his step-sister and his father’s estate having lesser in-

terests (Tr. 243-244)

The Government's key witness was Robert Fowler, a busi-

ness relocation specialist for the St. Louis Land Clearance Re-

development Authority (LCRA), a quasi-municipal agency un-

der contract with HUD (Tr. 62-63: Ex. 1). He testified that in

May. 1969, petitioner and Sam Siegel, a real estate agent for

Peppi Librach, came to see him about relocating the furniture

at the Windemere Hotel (Tr. 66-71). Siegel had sold the build-

ing housing the Hotel, and the furniture had to be removed from

the building (Tr. 196-200). According to Fowler, Siegel, whom

Fowler knew, left the meeting early and then Fowler proceeded

to explain to petitioner, whom Fowler had never met before,

how Fowler could “make a deal” with a mover and arrange a

fictitious move with a mover “we could work with” (Tr. 68-72).

The deal involved filling out forms for moving expenses for a

move which would not take place, with petitioner, rather than

1 The certified record is referenced by the letter “R.” and the

transcript by “Tr.”.

ee es

the mover, receiving the payments for the fictitious move (Tr.

72). According to Fowler, petitioner approved of the plan,

agreed to let Fowler keep the furniture for his part in the

scheme, but subsequently paid Fowler $1,000 cash instead

(Tr. 74-75, 90-91).

Fowler contacted Timothy Person, the mover and a man

Fowler had worked with on previous occasions, and arranged

for Person to submit fictitious competing bids for the move

with the low bid for $9,700 coming from Person’s company,

A-American Van and Storage (Tr. 45-50, 59, 76-79). Fowler

certified that the move had taken place when he knew it had

not and petitioner ultimately received the $9,700 which had

been paid for the alleged move (Tr. 38, 108-109). Petitioner

subsequently paid this money to his stepmother, Peppi Librach,

since she owned the Hotel and its contents (Tr. 261-262, 267-

268). Government witness Richard Green testified that he

bought the Windemere furniture and removed it from the

Windemere Hotel around the time the fictitious move was al-

leged to have taken place (Tr. 163-165). He testified he dealt

with Government witness Charles Ginsberg for the purchase

of the furniture (Tr. 163-165). Ginsberg testified he sold the

furniture to Green and that Government witness Sam Siegel

had retained him to find a buyer (Tr. 148-151). After Green

indicated an interest in the furniture, Ginsberg testified he

contacted petitioner who authorized the sale for around a

$1,000 (Tr. 151). Government witness Samuel Fine, who was

associated with Ginsberg, testified that he and Ginsberg shared

a fee of $200 which Green paid them for finding the furniture

(Tr. 142-143).

Siegel and his associate, Ronald Heller, testified that three

years later, in 1972, they met with petitioner when the matter

was under investigation. Siegel, after much hesitation and un-

certainty (Tr. 178-186), testified that petitioner said something

about the statute of limitations and that Siegel “shouldn't know

—_ oo

anything about the furniture” (Tr. 186). Heller testified that

petitioner said that he had signed an affidavit that the furni-

ture was moved to the Kingsbury Apartments and that Heller

should contact petitioner if the FBI contacted Heller (Tr. 220).

Petitioner testified that at his meeting on May 29, 1969, with

Fowler and Siegel, there was no discussion about a fictitious

or otherwise illegal move (Tr. 248-251); that Siegel thereafter

told petitioner that the furniture would be moved to the Kings-

bury Apartments, which was satisfactory to petitioner (Tr.

252-256): that. at Siegel's request, petitioner went to Fowler's

office and signed some papers authorizing the move (Tr. 256-

258): that thereafter Siegel advised him the move had been

made and that he should go to Fowler's office and sign some

more papers (Tr. 259-260): that petitioner went again to Fowl-

er’s office: that Fowler assured him the move had been made

(Tr. 260); and that petitioner then signed papers to that effect

(Tr. 260-261). Shortly thereafter, petitioner received a check

for $12,200, of which $9,700 represented the moving expense

and $2,500 represented a lawfully claimed relocation benefit

(Tr. 39, 66, 82. 261-262). A few months later, when his

father’s estate was closed and the Windemere Corporation.

which owned the building, was liquidated, petitioner forwarded

the $12.200 to his stepmother, Peppi Librach (Tr. 265-268).

At all times, petitioner testified that, based on the assurances

from Siegel and Fowler, he thought the move indeed had been

made and the mover paid (Tr. 240-241).

Evidence Relating to Granting Fowler Non-Statutory

Immunity and Relating (o Money Payments

to Witness Fowler

At the beginning of trial, petitioner moved to quash the in-

dictment and suppress the testimony of witness Fowler. The

motion pointed out that in June, 1974, before Fowler testified

pe a

before the grand jury, he was promised immunity from prose-

cution in exchange for his testimony (Tr. 3). It was urged that

this immunity grant was illegal. It was also pointed out, as it

was at trial, that Fowler had been paid $9,947.65 in “witness

protection payments” before he testified at the first trial (Tr.

3, 118) and it was argued that these payments were also il-

legal.

The Assistant U. S. Attorney admitted that Fowler was

promised that “we would not prosecute him for the offenses

which we were aware he committed in the Eastern District of

Missouri in return for his testimony” (Tr. 8-9). He also stated

that the payments to Fowler were made because some un-

known person had made threats directed to Fowler and “that's

what we were concerned with on the 19th and 20th when we

sent the telegrams to Washington requesting that this gentle-

men [Fowler] be placed under the witness protection program”

(Tr. 8).

Immediately before the trial began, the Assistant U. S. At-

torney exhibited, but did not furnish, to petitioner the two tele-

grams to which he referred, and which were said to have been

sent on June 19, 1974 and June 20, 1974 (Appendices B and

C). The first telegram purported to be sent not on June 19,

but in the early morning hours of June 20, 1974, at 1:05 A.M..

and in paragraph 5 it describes two threatening phone calls

which Fowler allegedly received during the day of June 20,

1974. Manifestly, it was impossible for Fowler to have been

threatened in two separate telephone calls between midnight

and 1:05 A.M. June 20, 1974, and for a telegram to have been

composed complaining of the threats during that same period

of time.

Because the telegrams were only exhibited briefly to petitioner

before the second trial and were not furnished him until the

case was on appeal, this discrepancy was not noted a: the

a eon

time of trial. This discrepancy was pointed out to the Court

of Appeals however. The Government at that point filed

an amended record on appeal which contained numerous affi-

davits, files and other documents purporting to show that its

representation that two telegrams were sent was erroneous, that

only one had been sent late in the afternoon of June 20; that

the first purported telegram which it furnished to petitioner was

not a telegram at all but a draft of a telegram and the date and

time of June 20, 1974, 1:05 A.M. appearing at the top of this

draft was totally unrelated to the draft itself.

Decision Below

The Court of Appeals affirmed petitioner's conviction. It

held that Fowler had been given an informal grant of immunity

in exchange for his testimony and that the fact that the Govern-

ment did not seek court approval pursuant to the statutory im-

munity provisions of 18 U.S.C. § 6V01 ¢f seq. did not make the

agreement unlawful. It further held that while the decision to

prosecute petitioner and give Fowler immunity may have been

an “unwise decision” it was not arbitrary. As to the discrepancy

in the telegrams, the Court held that this point would not be

considered because it was not raised at trial.

REASONS FOR GRANTING THE WRIT

1. -The decision below raises an important question in the

administration of federal criminal justice which should

be decided by this Court.

The Court below erroneously decided a question of excep-

tional importance in the administration of federal criminal justice:

Should an indictment be quashed and a conviction reversed

where both depended upon the testimony obtained from a

witness to whom the local prosecutor granted immunity in

a manner and with a breadth wholly unauthorized under

federal statutes, where the witness was the key conspirator

and petitioner a fringe defendant, and where the witness

received from the Government a compensation of $1,000

per month plus expenses?

This case was tried twice. The first conviction was reversed

by the Eighth Circuit for an “egregious case of prosecutorial sup-

pression of evidence.” U.S. v. Librach, 520 F.2d 550, 553 (8th

Cir. 1975). In the course of its first opinion, the Court of

Appeals observed that the Government was enforcing the crimi-

nal laws in a “strange way” by prosecuting a fringe defendant

and granting immunity and compensation to Fowler. a public

servant turned arch-conspirator (at page 553):

Here, actually, Fowler's culpability is greater than that

of the defendant. Fowler violated his public trust by fraudu-

lently dispensing public funds. Yet the Government grants

him immunity and a compensation of $1,000 a month plus

expenses. Many observers may feel this is a strange way to

enforce the criminal laws.

In affirming petitioner's second conviction, the Court of Appeals

characterized the prosecution of petitioner as an “unwise de-

cision,” but not an arbitrary one (Appendix A at footnote 3).

=

But the use of Fowler's testimony to indict and convict peti-

tioner was arbitrary, illegal and improper under all the cir-

cumstances and calls for the exercise of this Court's supervisory

power over the administration of federal criminal justice. The

totality of the circumstances includes, not only the fact that

Fowler's culpability was greater than petitioner's and the pay-

ment to Fowler of $10,000, but moreover the fact that the

testimony of Fowler was obtained by an illegal grant of im-

munity.

In approving this grant of immunity, the Court below er-

roneously equated a unilateral decision not to prosecute, which

the local prosecutor undeniably has the power to make and

which, without more, is revocable and not binding on the Gov-

ernment, with a bilateral, contractual, enforceable and binding

agreement ‘ot to prosecute (“immunity”). It is Petitioner's po-

sition that agreements of this sort which irrevocably bind the

Government must be made only pursuant to express congres-

sional authorization, and that Congress has the right to set

ground rules which the local prosecutor must abide by in mak-

ing such agreements. Undeniably, as the Court of Appeals ob-

served and as the prosecutor admitted at the first trial, what is

here involved is a binding promise of immunity and not merely a

revocable decision not to prosecute (Appendix A; Tr. 114).

Judge [later Justice] Cardozo’s memorable dictum in Doyle v.

Hofstader, 257 N.Y. 244, 177 N.E. 489, 494 (Ct. App. 1931),

is still sound: namely, that a grant of immunity “may be wrought

through the enactment of a statute . . . [and] may be wrought

in no other way while the legislative structure of our govern-

ment continues what it is.” Simply stated, Congress may au-

thorize the making of immunity contracts but the executive

branch of Government has no inherent authority to enter into

such agreements. See Annot. Prosecutor—Immunity to Wit-

ness, 13 A.L.R. 2d 1439. This salutory, and heretofore unas-

sailed, constitutional precept has been violated by the Govern-

on

ment in this case, and with the affirmance of the Eighth Circuit.

And, incredibly, the breadth of the immunity granted Fowler

was far greater than ever sanctioned by Congress (Tr. at pages 7,

8-9):

Mr. Fowler was told he would not be prosecuted by this

office for violations that occurred in the Eastern District

of Missouri, and as a basis for that—the basis for that was

his testimony. of course, in this matter (Tr. 7).

* * % * * * *

I told Fowler that we would not prosecute him for the

offenses of which we were aware he committed in the East-

ern District of Missouri in return for his testimony (Tr.

8-9).

This was not merely “use” immunity, or “transaction” immu-

nity: It was a multi-transactional immunity, tantamount to a full

and complete parden for all offenses committed by Fowler in

the Eastern District of Missouri.

On October 15, 1970. Congress passed a law which revoked

its theretofore authorized “transaction” immunity [the revoca-

tion was not effective. however, »ntil December 15, 1974], and

substituted in its place a much narrower “use” immunity. /8

U.S.C. § 2514 and the pocket supplement thereto, and 18

U.S.C. §§ 600] et seq. This narrower use immunity was upheld

as constitutional by this Court in Kastigar v. United States,

406 U.S. 441 (1972).

By entering the field in this manner, Congress evinced an in-

tent to narrowly circumscribe what the Executive Branch of

Government can do through its prosecutors: they can grant use

immunity only, and then only if the grant has been authorized

by the Attorney General and approved by the court, /8 U.S.C.

§ 6003. In this case neither was that procedure followed nor

was the breadth of the immunity within the limits which have

been so carefully considered and prescribed by Congress.

In shori, petitioner's position is as follows:

(1) Immunity finds its authority exclusively within the legis-

lative branch of government and the prosecutor may not grant

immunity absent express legislative authorization.

(2) Where, as here, Congress has entered the immunity field,

the prosecutor must adhere to the mandated statutory procedure

requiring the approval of the Attorney General and the court.

That was not done here.

(3) Whether he adheres to the procedures or not, the prose-

cutor can in no event, as he did here, grant a witness an im-

munity which is broader in substance than the narrow use im-

munity authorized by the statute.

(4) The prosecutor cannot, as he did here, grant to the wit-

ness such broad multi-transactional immunity amounting in sub-

stance to a pardon. Such power is strictly constitutional and

is given to the President only. U.S. Constitution, Article 1,

Section 2.

(5) And in no event can the prosecutor grant a witness, whose

culpability is greater than petitioner's, a broad, non-statutory,

multi-transactional immunity, together with compensation in

the amount of $10,000.

A critical public interest is at stake here. The twofold nature

of this interest is carefully articulated in People v. Brunner, 32

Cal.App. 3d 911, 108 Cal. Rptr. 501 (1973). Brunner involved

a statute which, as here, required judicial approval of the pro-

posed grant of immunity. The court wrote:

In negotiating and carrying out an agreement with target-

area witnesses for immunity from prosecution in return for

1?

testimony two dangers are involved. The first is that of

the treacherous witness—who promises to testify in return

for a grant of immunity from prosecution and then, having

secured immunity, does not testify in the matter he said he

would or refuses to testify beyond a certain point. It is a

fact of life that the quality of veracity and honor among

thieves and murderers leaves something to be desired, and

an Overly-trusting district attorney may find that in granting

immunity to one he could have prosecuted he has exchanged

gold for brass.

The other danger in the e..change of immunity for testi-

mony is the obverse of the first—a witness may be so in-

fluenced by his hopes and fears that he will promise to

testify to anything desired by the prosecution in order to

obtain a grant of immunity. Because the satisfaction of the

prosecutor is the witness's ticket to freedom, the prosecutor,

by dangling the promise of immunity, can put the words

he wishes into the witness's mouth. This danger is espe-

cially grave when the witness knows he is expected to give

particular testimony, absent which he will not receive the

promised immunity.

These twin dangers point up the desirability for court

approval of immunity bargains with target-area witnesses.

Properly used, [the immunity statute] is broad enough to

protect the prosecutor against double-dealing and enable

him to make an enforceable agreement with the most

duplicitous witness. Properly used, the section also protects

the witness against prosecution pressure to color existing

or create additional testimony in order to obtain previously-

promised immunity. The statute establishes a procedure

under which the bargain between prosecutor and witness,

each to perform certain acts in the future, can be made a

matter of record so that dishonesty, equivocation, and mis-

understanding may be minimized. In our view whenever

target-area witnesses have been promised immunity in re-

—_—

turn for their promise to testify, the prosecutor's request for

court approval should set out the terms of the agreement,

the subject-matter of the testimony, the proceedings at

which it will be given, the representations of the witness

(or his counsel) as to the specific content of his testimony,

and the promise of the witness to testify fully and truth-

fully in return for the promised grant of immunity. On

court approval of the agreement immunity will be granted

to the witness. . .

As with plea bargains, terms of a promise of immunity

should appear clearly on the record and be supported by

court order. Full disclosure of the terms of the bargain

not only protects against double-dealing, coercion, and mis-

understanding (so apparent in this case), but it enables an

impartial judicial officer to review the propriety of the im-

munity bargain itself.

108 Cal. Reporter at 505-506.

The dangers noted by the court in Brunner are particularly

applicable here. Fowler demanded. and the Government gave

him. a “ticket to freedom” which was broader than he could

have ever obtained through the legislative process. And he had

to pay for his ticket by providing full and complete satisfaction

to the prosecutor, which in this case meant testimony which in-

criminated petitioner. The danger is, as the Court stated in

Brunner, that the prosecutor “can put the words he wishes into

the witness's mouth” or that the witness, to please the prosecutor,

will on his own say what he believes the prosecutor wants to

hear. Furthermore. where, as here. immunity is given to the

arch-conspirator in return for his testimony against a fringe

defendant, the prosecutor has to the detriment of the public in-

terest “exchanged gold for brass.” The prosecutor's decision

was indeed “unwise” (Appendix A at note 3). These critical

dangers point up the necessity for court approval of immunity

bargains with key witnesses.

aaa” eR

In this case, petitioner is the victim of the Government's fail-

ure to protect the public interest in this area fraught with danger.

The testimony against him is the product of this illegal and un-

constitutional bargain. It therefore should have been sup-

pressed. Cf. Rochin v. California, 342 U.S. 165 (1952); Mapp

v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232

U.S. 383 (1914); McNabb v. U.S., 318 U.S. 332 (1943);

Gouled v. United States, 255 U.S. 298 (1921). The justifica-

tion for the suppression is the same justification the courts recog-

nize in any illegal evidence case. judicial integrity and deter-

rence:

[A] conviction resting on evidence secured through such a

flagrant disregard of the procedure which Congress has

commanded cannot be allowed to stand without making

the courts themselves accomplices in willful disobedience

of the law.

McNabb v. United States, 318 U.S. 322, 345 (1943). See also.

Hanna v. United States, 260 F.2d 723 (D.C.Cir. 1958). where

recogn tion is given to deterrence as a basis for the exclusionary

rule.

In the case at hand, Fowler's illegally obtained testimony was

used to obtain both the indictment and the conviction of peti-

tioner. Without Fowler's testimony, the Government would have

obtained neither. Accordingly, the indictment should be quashed

and the conviction reversed.

Recent public events have given rise to a hypothetical case

which sheds much light on petitioner's case. Consider the situa-

tion where a Congressman puts his mistress on his congressional

payroll as a secretary and she cannot and does not type or per-

form other secretarial duties. The Government then gives the

congressman unauthorized immunity from prosecution and pro-

tection money in return for his testimony against his mistress

who is charged with wrongfully receiving Government money.

—— ee

Surely, in such a case. this Court would use its supervisory

powers to set aside any conviction of the mistress. So, in the

case at hand, where the Government has also given the most

culpable person extra-legal immunity and compensation, the

conviction should likewise be set aside.

2. The decision below conflicts with this Court’s ruling in

DeMarco v. United States, 415 U.S. 449 (1974).

At the beginning of trial, it was stipulated that the two tele-

grams appended as Appendices B and C to this petition were

part of the record (Tr. 6-7). The Government's counsel, also at

the beginning of trial, unequivocally advised petitioner's counsel

and the trial court that indeed there were vo telegrams, not

one, and that the Government “on the 19th [sic, June 20 at

1:05 A.M.| and 20th |of June, at 4:11 P.M.| .. . sent the

telegrams to Washington” (Tr. 8). The purported telegram of

1:05 A.M., June 20, 1974, refers to two threats against Fowler

which occurred during the day of June 20. Manifestly, it was

impossible for Fowler to have been threatened twice on June

20 between midnight and 1:05 A.M. and for the first telegram

then to have been composed and written.

Realizing this, at the appellate level, the Government sought

to correct the record that there were two telegrams by means

of a voluminous appendix which was not a part of the record

on appeal (Rule 10 of the Federal Rules of Appellate Proce-

dure). That appendix contained affidavits stating that, contrary

to the statements of the Government counsel! at trial, there was

only one telegram, not two, and that only one telegram, not two,

was sent to Washington.

The appendix the Government submitted to the Court of Ap-

peals indicated that the first purported telegram was not sent

but was only a draft of the one which was sent. The affidavits

— oan

also stated that the date and iime of June 20, 1974, 1:05 A.M.

appearing at the top of this draft was totally unrelated to the

draft itself.

The Court of Appeals did not review this discrepancy be-

tween the record evidence and the corrected record on appeal

because it held that petitioner should have raised the issue at

trial. But it was impossible for the petitioner to have raised

the issue at trial because he was not furnished the telegrams until

after trial and while the case was on appeal (Tr. 6, 7). The fact

that the telegrams were exhibited to petitioner for a brief instant

before trial is of no moment because he obviously did not have

the time to do the painstaking study of the telegrams necessary

to divulge the discrepancy. This could only be done with the

telegrams in hand.

Thus, this case is in the same posture as was the case of De-

Marco v. United States, 415 U.S. 449 (1974). where evidence

discovered after trial cast a cloud on the trial evidence and the

defendant pressed the point in the Court of Appeals which

affirmed the conviction. This Court reversed and held that the

discrepancy should have been resolved in the District Court

upon an evidentiary hearing and reversed the case for that

purpose.

The same is true here. Petitioner here finds himself without

@ remedy. The evidence was exhibited at trial and ostensibly is

therefore not newly discovered. and a motion for new trial on

the grounds of newly discovered evidence would apparently

not lie. Yet. obviously, the matter could not. as the Court be-

low held, have been raised at trial because the telegrams were

not furnished until after trial and the discrepancy could not rea-

sonably have been discovered until the telegrams were furnished.

What is called for here, as in DeMarco, is a remand to the Dis-

trict Court for an evidentiary hearing on the telegram dis-

crepancy.

—17—

Moreover, it is submitted that the Government should not be

permitted to correct the record, to supplement the record, or

otherwise to make arguments based on evidence outside the

record, as it attempted to do in the Court below. If the Govern-

ment on appeal is allowed to use affidavits and other de novo

evidence as attempted here, petitioner will be deprived of his

constitutional right to confront witnesses, to cross-examine them,

to present his own evidence, and, generally, to be accorded due

process of law. U.S. Const., Amendment 5 and 6. Since there

are factual issues raised with the record in this posture, consti-

tutional fairness demands that they be decided with all the safe-

guards of a proper evidentiary hearing.

That this Court has the authority to order such a hearing is

without doubt:

The Supreme Court or any other court of appellate jurisdic-

tion . . . may . . . require such further proceedings to

be had as may be just under the circumstances.

28 U.S.C. § 2106: DeMarco v. United States, 96 S.Ct. 1185,

415 U.S. 449 (1974): Kolod v. United States, 88 S.Ct. 752,

390 U.S. 136 (1968), reargument, 394 US. 165, reh. den.,

394 U.S. 939; Jackson v. United States, 371 F.2d 960 (D.C.

Cir. 1966); United States v. Guthrie, 387 F.2d 569 (4th Cir.

1967); United States v. Johnson, 487 F.2d 1318 (Sth Cir.

1974): United States v. Collins, 335 F.2d 547 (6th Cir. 1964).

In the DeMarco case, wherein the issue was raised on appeal

as to whether a key government witness, contrary to his testi-

mony at trial, had in fact entered into a plea bargain with the

Government, this Court held that

it would have been better practice not to resolve it in the

Court of Appeals based only on the materials then before

the court. The issue should have been remanded for initial

disposition in the District Court after an evidentiary hear-

ing.

— pee

ld. 94 S.Ct. at 1185-86, 415 U.S. at 450. In the case at hand,

“the mere submission of ex parte affidavits, without the safe-

guard of cross-examination, is not an adequate method for de-

termining the issues.” Guthrie, supra, 387 F.2d at 572.

In this case, it is respectfully submitted that the Court of Ap-

peals should have remanded the case for an evidentiary hearing

on the telegrams.

CONCLUSION

For each and all of the foregoing reasons, it is respectfully

submitted that a writ of certiorari should issue to review the

judgment and opinion of the Eighth Circuit.

KOHN, SHANDS, ELBERT,

GIANOULAKIS & GILJUM

ALAN C. KOHN

MARK J. BREMER

411 North Seventh Street

St. Louis, Missouri 63101

(314) 241-3963

Attorneys for Petitioner

MARK HIRSCHFELD

130 South Bemiston

Clayton, Missouri 63105

(314) 863-3344

Of Counsel

APPENDIX

Ye

APPENDIX A

United States Court »f Appeals

For the Eighth Circuit

No. 76-1060

United States of America, >

Appellee. | Appeal from the United

v. States District Court

for the Eastern Dis-

Burton A. Librach, trict of Missouri.

Appellant. |

Submitted: May 10, 1976

Filed: June 17, 1976

Betore Vogel. Senior Circuit Judge, and Heaney and Henley,

Circuit Judges.

Heaney, Circuit Judge.

Burton A. Librach was chaiged in a two-count indictment

with filing a false claim and using a false document to obtain

an urban renewal relocation payment of $9,700 from the De-

partment of Housing and Urban Development in violation of

18 U.S.C. §1001. After trial to a jury, he was found guilty.

The judgment of conviction was, however, reversed by this

Court because the government suppressed, contrary to the dic-

tates of Brady v. Maryland, 373 U.S. 83 (1963), evidence

— *

that was both favorable and material to the defense. United

States v. Librach, 520 F.2d 550 (8th Cir. 1975). Upon re-

trial, Librach was again found guilty by a jury of the crimes

charged. We affirm the judgment of conviction.

The principal witness for the government was an accom-

plice, Robert Fowler.' It is argued by the appellant that Fow!-

er’s testimony should have been suppressed because it was in-

duced by an improper grant of immunity and by illegal pay-

ments of money.

A

Fowler testified after receiving from the government a prom-

ise that he would not be prosecuted for those offenses known

to have been committed by him in the Eastern District of

Missouri. The agreement had been characterized during the

first trial as an informal grant of immunity because the gov

ernment admittedly did not seek court approval pursuant to

the statutory immunity provisions of 18 U.S.C. $6001 ¢f sey."

This failure to seek court approval does not render the

agreement unlawful. The decision of whether to prosecute

rests in the Executive Branch. See United States v. Nixon,

' A more complete recital of the facts can be found in United

States v. Librach, 520 F.2d 550 (8th Cir. 1975).

- The government did request and obtain authority from the

Justice Department to apply to the court for an order of immunity

for Fowler. The authority was, however, never exercised because

Fowler testified voluntarily. Counsel for the government stated at

ore! argument that the authority was obtained from the Justice

Departmen: as a precautionary measure in light of the fact that an

accomplice could, when put on the stand, renege on his agreement

to testify. See United States v. Edwards, 516 F.2d 913, 914 (8th

Cir. 1975) (per curiam).

a eo

418 U.S. 683, 693 (1974); United States v Cowan, 524 F.2d

504, 507-508 (Sth Cir. 1975); Weisberg v. U. S. Department

of Justice, 489 F.2d 1195, 1201 (D.C. Cir. 1°73) (en bane),

cert. denied, 416 U.S. 993 (1974); United States v. Alarik,

439 F.2d 1349, 1350-1351 (8th Cir. 1971). It can be re-

viewed only in those limited situations in which there has been

a clear abuse of discretion. Oyler v. Boles, 368 U.S. 448, 456

(1962); United States v. Alarik, supra at 1350-1351. See K.

Davis, Discretionary Justice 207-214 (1969). The decision

to grant Fowler, rather than the appellant, informal immunity

has not been shown to be arbitrary. The decision was made,

so far as the record reveals, in good faith and upon considera-

tion of appropriate factors. An agreement not to prosecute

an accomplice who is cooperating in the conviction of others

is recognized as a proper exercise of authority. A.B.A. Stand-

ards for Criminal Justice. The Prosecution Function $3.9(b)

(vii) (Approved Draft, 1971).

Nor is the agreement so suspect that Fowler's testimony

must be regarded as per se unreliable and excluded from evi-

dence pursuant to the court's supervisory power to require fair

conduct from the government in furnishing evidence. The

agreement was made and binding upon the government before

Fowler testified; it was not contingent upon the government's

satisfaction with the content of the testimony. Fowler could

testify truthfully and fully pursuant to the agreement without

fear of reprisal. His testimony related to “nown facts; the

agreement did not require the witness to seek out incriminat-

ing evidence against the appellant. Compare Alcorta v. T.xas,

355 U.S. 28 (1957) (per curiam); Williamson v. United

States, 311 F.2d 441 (Sth Cir. 1962). Further, the jury was

fully apprised of the conditions under which Fowler testified.

* This Court has previously questioned the wisdom of the deci-

sion. United States v. Librach, supra at 553. An unwise decision

is not, however, necessarily an arbitrary one.

Librach also argues that Fowler's testimony should have

been suppressed because the latter, along with his wife and

seven children, received $9,947.65 in support payments from

the government contrary to law. The payments were received

during the period that Fowler was in protective custody be-

cause of threats to his life.

The appellant's argument is premised upon the proposition

that these protective custody payments could only have been

authorized pursuant to Title V of the Organized Crime Con-

trol Act of 1970, P.L. 91-452, 18 U.S.C. $3481, which is

inapplicable be.ause Librach was not involved in organized

crime. The government contends that the payments were

properly made pursuant to an alternative source of statutory

authority, 28 U.S.C. $524.

The appellant has cited no authority for his proposition,

either by reference to the decisional law or the legislative his-

tory of 28 U.S.C. $524.

The statute specifically states:

Appropriations for the Department of Justice are avail-

able for payment of—

(1) * * * expenses of witnesses and informants, all at

the rates authorized or approved by the Attorney General

or the Assistant Attorney General for Administration [.]

In our view. this language is broad enough to encompass the

payments at issue.t Considerable weight is also given to the

fact that the Department of Justice has consistently so inter-

preted the statute. See County of Marin v. United States, 356

* The more usual witness expenses are provided for in 28 U.S.C.

$ 1821.

Sa arcs

U.S. 412, 420 (1958). We further note that the correctness

of the government's interpretation of its statutory powers was

conceded in United States v. Partin, 493 F.2d 750, 757-758

(Sth Cir, 1974).

Moreover, not only were the payments properly authorized,

but they were actually used for the purposes of protective cus-

tody. There is no basis upon which an inference can be made

that the testimony of Fowler was purchased. Indeed, while pro-

tection from the threats was contemplated before Fowler testi-

ued before the grand jury, mention of money payments was not

made until after that testimony was given. The evidence of pro-

tective custody and support payments was put before the jury.

The appellant had full opportunity to develop the implications

thereof, and the jury was allowed to judge the credivility of

Fowler in the light of all the circumstances.

Librach also contends that Fowler's testimony should have

been suppressed because: (1) the support payments were au-

thorized without full compliance with Department of Justice

regulations, and (2) the threats against Fowler's life, which

justified the protective custody, were fictitious. These claims

were not raised before the District Court and, accordingly, will

not be considered for the first time on appeal.” United States v.

Bear Runner, 502 F.2d 908, 910 (8th Cir. 1974).

* Librach’s allegation that the threats to Fowler's life were fic-

litious is also the basis for his claim that the government knowingly

used false evidence at trial. Specifically, he refers to Fowler's state-

mgnts that he received the support payments because of the threats.

rhis testimony was received during redirect examination by the gov-

ernment to rehabilitate the witness’s credibility. Again, we do not

consider this contention on appeal because it was not raised below.

The appellant did not object to the testimony at trial and did not

make the contention a basis for his post-trial motion for an acquittal

or new trial.

— >

II

Librach also argues that the government made prejudicial

comments to the jury in its closing argument by implying, with-

out factual support in the record, that he was a source of the

threats to Fowler's life. Specifically, he objects for the first time

on appeal to the following statement:

Now, Burton Librach is not on trial today for threaten-

ing somebody's life. He's not on trial for threatening Mr.

Fowler's life. I don't know who threatened his life. I

dont know if Green threatened his life or the defendant

threatened his life or somebody on behalf of the defendant,

or who. That's not what is on trial here today, and that’s

not the issue and | didn’t bring it up. Mr. Kohn [the appel-

lant’s counsel] did. about who ts threatening who.

Because objection to the statement was not made below, we

review the alleged error under the plain error rule of Federal

Rule of Criminal Procedure 52(b). The appellant must demon-

Strate that the closing argument “affected substantial rights re-

sulting in a miscarriage of justice.” United States v. Big Crow,

§23 F.2d 955. 960-961 (8th Cir. 1975}.

Appellant's counsel chose to focus upon the evidence of

threats to Fowler's life im closing argument in an effort to draw

adverse inference upon the witness's credibility and to imply

that the threats came from another, not Librach. The statement

of which the appellant complains was made in rebuttal to this

defense argument. When read in context, the government's argu-

ment was not improper. It was not made to imply that Librach

threatened Fowler's life. The thrust of the statement was that

the source of those threats was unknown and irrevelant. The

government has the right to comment on arguments raised by

the defense." United States v. Olsen, 487 F.2d 77, 83 (8th

— <

Cir. 1973), cert. denied, 415 U.S. 993 (1974). Surely. if there

was error, the error was not plain error.

Librach further argues that he was denied due process be-

cause of an unreasonable delay between the time of the offense

and the filing of the indictment that prejudicially affected his

defense. See United States v. Jackson, 504 F.2d 337 (8th Cir.

1974), cert. denied, 420 U.S. 964 (1975). This claim was

decided against the appellant in our previous decision. United

States v. Librach, supra at 555. That decision is the law of the

case. Hawkes v. Internal Revenue Service, 507 F.2d 481, 482

n.l (6th Cir. 1974); Thorton vy. Carter, 109 F.2d 316, 320

(8th Cir. 1940).

IV

Finally, Librach contends that the District Court committed

reversible error by refusing to permit a second reading to the

jury of prior inconsistent statements of government witnesses

which were given at the first trial. The statements were first

read to the jury during the cross-examination of witnesses

Fowler and Sam Siegal. The appellant contends that this ruling

undermined the substantive force of these prior inconsistent

statements contrary to Federal Rule of Evidence 801(d)(1)(A).

The District Court ruled, with the agreement of the govern-

ment, that the prior statements read before the jury during cross-

examination were substantive evidence and could be used for

‘ We noted in our previous opinion that the matter of protective

custody because of the threats to Fowler's life could have connota-

tions adverse to the appellant. United States v. Librach, supra at

554 n.4. Librach should not complain that the issue was argued,

for it was his tactical decision to interject the matter into the trial.

—*

substantive purposes in closing argument. Its failure to permit

the appellant to give the prior statements special emphasis by

a second reading was not prejudicial error. See United States

v. Skillman, 442 F.2d 542, 551 (8th Cir.), cert. denied, 404

U.S. 833 (1971): Wright v. United States, 389 F.2d 996, 1090

(8th Cir. 1968).

We cannot conclude, as does the appellant, that the jury

failed to understand the substantive effect of the prior state-

ments. Indeed, one rationale of Federal Rule of Evidence 801

(d)(1)(A) is that juries do consider such evidence for sub-

stantive purposes even when instructed to the contrary. 4 Wein-

steins Evidence € 801(d)(1)(A)({O1] (1975). Moreover, the

appellant could have sought an instruction from the court at the

time the evidence was first received to dispel any doubts that

might have been in the jury's mind.

The judgment of conviction is afirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

—_

APPENDIX B

Exhibit A

DO JMS

RR SS AEMOU.

OOS 22:43:01 06°19 74

Good Night—DOJ MSG Switch Is Out of Service

NNNN

OOS 22:43:09 06 19 74

JSUPR

001 01:04:16 06 20 74

OO SS AEMOU

O01 01:05:16 06 20 74

Good Morning—DOJ MSG Switch Is Now in Service.

NNNN

O00! 01:05:24 06 20 74

AEMOURR AA JCRIM MDCOL

From David W. Harlan, Chief Criminal Division, Eastern Dis-

trict of Missouri, St. Louis

To Henry Peterson, Assistant Attorney General, Criminal Di-

vision, Department of Justice

Info Jerry Hoff, Attorney Fraud Section, Criminal Division

Info John W. Cameron, Associate Director for Internal Services,

Washington, D. C.

Subject: Request for Witness Protection for Robert Fowler, Jr.

Reference: Departmental Memo No. 792

Authorization for Protection of the Following Described Wit-

ness Is Hereby Requested. We Request Urgent Consideration

and Response to This Request.

— A-10 —

1. Robert Fowler, Jr., 7840 Birchmont Drive, University

City, Missouri, Negro, Male, DOB: August 11, 1933, Tunica,

Mississippi, No Previous Arrest Record.

2. This Witness Is a Key Witness in the Case of United States

\. Burton Librach. Librach Will Be Indicted Within the Next

14 Days. He Is an Attorney at Law Practicing in the City of

St. Louis. This Case Is a Target Case Under the St. Louis

HUD Task Force Program.

3. Fowler Is a Former Employee of the St. Louis Land Clear-

unce for Redevelopment Authority. We Consider His Evidence

Critical in the Case Against Librach. In Addition, We Antici-

pate That He Will Provide Information on Numerous Employees

of the St. Louis Land Clearance for Redevelopment Authority,

Which Information Is Likely to Result in Future Indictments.

He Has Previously Testitied Before the United States Grand Jury

for the Eastern District of Missouri.

4. This Witness Is an Accomplice in the Fraud Scheme In-

volved in the Case of U. S. v. Librach. He Is Not Related to

Librach.

5. On June 12. 1974 an Unidentified Negro Male Ap-

proached Fowler on the 6th Floor of the Veterans Administra-

tion Hospital, St. Louis, Missouri, Where Fowler Was Recuperat-

ing From an Illness. The Unidentified Negro Male Made Refer-

ence to an Individual Named Richard R. Green Who Is In-

volved in the Above Captioned Case and Stated That Green

Was Acquainted With a Number of “Hit Men” in St. Louis and

That Fowler Ought to Be Very Careful About Testifying Against

Green. On June 19. 1974 Fowler Testified Before the United

States Grand Jury for the Eastern District of Missouri. Efforts

Were Made by This Office to Conceal the Fact That He Was So

Testifying. On June 20, 1974 Fowler Received a Phone Call

From an Unidentified White Male Who Made Reference to

Fowler's Testifying in This Case and Stated That a Man Was

— helt

Looking for Him With a Gun. On the Same Date, Fowler Re-

ceived a Phone Call From an Unidentified Negro Male, Who

Asked Fowler if He Was Going to Turn State’s Evidence and

Then Made a Threat Against His Life. The F.B.I. Is Presently

Investigating These Threats.

6. At This Time, It Is Impossible to Make an Estimate of

the Time for Which Protection Will Be Needed.

7. Fowler Is Currently Suffering From Sickle Cell Anemia.

He Is Not Presently Employed. He Subsists on V.A. and Wel-

fare Benefits. He Is Not Presently Incarcerated. He Is Married

and Has 7 Children.

8. At the Present Time, We Are Unable to Give the Names

or Ages of His Dependents.

9 At the Present Time, We Are Unable to State Whether

His Wife Is Employable.

10. As Indicated Previously, the Defendant Suffers From

Sickle Cell Anemia and as Been Under Medical Supervision

at the Veterans Administration Hospital, St. Louis, Mo.

11. The Witness Is Employable Except Insofar as He Is In-

capacitated by His Illness. He Has Previously Held White Collar

Management Positions in the St. Louis Land Clearance for Re-

development Authority.

This Request Has Beer Approved by David W. Harland,

Chief Criminal Division and Concurred in by Donald J. Stohr,

United States Attorney for the Eastern District of Missouri. No

Other Request for Witness Protection Has Been Made in Con-

nection With This Matter. Request That This Authorization

Include Fowler, His Wife and Children.

— A-l2 —

APPENDIX C

Exhibit B

OO1 16:11:17 06, 20,74

RR AA JCRIM MDCOL

From David W. Harlan, Chief Criminal Division, Eastern Dis-

trict of Missouri, St. Louis

To Henry Peterson, Assistant Attorney General, Criminal Di-

vision Department of Justice

Info Jerry Hoff, Attorney Fraud Section, Criminal Division

Info John W. Cameron, Associate Director of Internal Services,

Washington, D.C.

Subject: Request for Witness Protection for Robert Fowler, Jr.

Reference: Departmental Memo No. 792

Authorization for protection of the following described wit-

ness is hereby requested. We request urgent consideration and

response to this request.

1. Robert Fowler, Jr.. 7840 Birchmont Drive, University

City, Missouri, Negro. Male, DOB: August 11, 1933. Tunica,

Mississippi, no previous arrest record.

2. This witness is a key witness in the case of United States

\. Burton Librach. Librach will be indicted within the next 14

days, he is an attorney at law practicing in the City of St. Louis.

This case is a target case under the St. Louis HUD Task Force

Program.

3. Fowler is a former employee of the St. Louis Land Clear-

ance for Redevelopment Authority. We consider his evidence

— A-13 —

critical in the case against Librach. In addition, we anticipate

that he will provide information on numerous employees of the

St. Louis Land Clearance for Redevelopment Authority, which

information is likely to result in future indictments. He has

previously testified before the United States Grand Jury for the

Eastern District of Missouri.

4. This witness is an accomplice in the fraud scheme involved

in the case of U. S. v. Librach. He is not related to Librach.

5. On June 12, 1974 an unidentified Negro male approached

Fowler on the 6th floor of the Veterans Administration Hospital,

St. Louis, Missouri, where Fowler was recuperating from an ill-

ness. The unidentified Negro male made reference to an indi-

vidual named Richard Green who is involved in the above cap-

tioned case _ad stated that Green was acquainted with a num-

ber of “hit men” in St. Louis and that Fowler ought to be very

careful about testifying against Green. On June 19, 1974

Fowler testified before the United States Grand Jury for the East-

ern District of Missour. Efforts were made by this office to

conceal the fact that he was so testifying. On June 20, 1974

Fowler received a phone call from an unidentified white male

who made reference to Fowler's testifying in this case and stated

that a man was looking for him with a gun. On the same date.

Fowler received a phone call from an unidentified Negro male,

who asked Fowler if he was going to turn state’s evidence and

then made a threat against his life. The F.B.1. is presently in-

vestigating these threats.

6. At this time, it is impossible to make an estimate of the

time for which protection w'll be needed.

7. Fowler is currently suffering from sickle cell anemia. He

is not presently employed. He subsists on V.A. and welfare

benefits. He is not presently incarcerated. He is married and

has 7 children.

on Ald —

8. At the present time, we are unable to give the names or

ages of his dependents.

9. At the present time, we are unable to state whether his

wife is employable.

10. As indicated previously, the defendant suffers from sickle

cell anemia and has been under medica! supervision at the

Veterans Administration Hospital, St. Louis, Mo.

11. The witness is employable except insofar as he is inca-

pacitated by his illness. He has previously held white collar

management positions in the St. Louis Land Clearance for Re-

development Authority. This request has been approved by

David W. Harlan, Chief Crim Div. and concurred in by Donald

J. Stohr, U.S. Atty E.D.Mo. No other request for witness pro-

tection has been made in connection with this matter. Authori-

zation should include Fowler, wife and children.