Petition — Abrams v. United States
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
*~ Supreme Court, U. a
!
MAR 27 1978
in the | MICHAEL RODAK, JR., CLERK
Supreme Court
of the
United States
OCTOBER TERM 1977
no. %7-1397
ANITA ABRAMS,
Petitioner,
-US-
UNITED STATES OF AMERICA
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
HIRSCHHORN & FREEMAN, P.A.
By: Joel Hirschhorn, Esq.
742 N.W. 12th Avenue
Miami, Florida 33136
(305) 324-5320
Attorneys for Petitioner.
———
=
SUBJECT INDEX
Page
IN « cccincasvadasecadutdanssanceeeseuhe 2
SD ci Sneks chtligddantakndwhdcctssuscekadin 3
a kee dc akeebwnds 4
Constitutional and Statutory Provisions Involved . 5
REST EC EERLE BEET OE TO 6
Reasons for Granting the Writ..................... 8
EE AIRES FPO TET ENO ee Pe Sa 12
EI EE me EE EES Om 13
i
INDEX TO APPENDICES in the
ES Se Nm A .
NS oe cag iia de coeiee ean Pos gh Supreme Court
PIED iccunddteadcesdcctnceteces adele App. 81 the
United States
OCTOBER TERM 1977
NO.
ANITA ABRAMS,
Petitioner,
-US-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The Petitioner, Anita Abrams, respectfully
prays that a Writ of Certiorari issue to review
the Opinion and Judgment of the United
States Court of Appeals for the Fifth Circuit,
entered in the above-entitled case on February
24, 1978.
OPINION BELOW
The Opinion of the Court of Appeals appears in
Appendix ‘“‘A’”’ hereto.
JURISDICTION
The Judgment of the Court of Appeals for the Fifth
Circuit was entered on February 24, 1978, affirming, and
reversing, in part, the Petitioner’s convictions. This
Court’s jurisdiction is invoked under 28 U.S.C.
§1254(1).
QUESTION PRESENTED
Whether a defendant in a criminal prosecution for
perjury before a Federal Grand Jury has been denied
procedural due process of law guaranteed by the Fifth
Amendment to the United States Constitution where
the defendant’s conviction was predicated upon a
finding that the false testimony was material where the
Government failed to prove that the allegedly perjurious
statements were material to the subject matter inquiry
of the Grand Jury, and, further, where the Government
failed to prove that said statements tended to impede,
mislead or hamper the Grand Jury in its investigation.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The case sub judice involves the Petitioner’s right
to due process of law guaranteed by the Fifth Amend-
ment to the United States Constitution; and, the proper
construction of 18 U.S.C.A. §1623, both of which appear
as Appendix “C”’ hereto.
STATEMENT OF THE CASE
Petitioner, a legal secretary and bookkeeper, was
subpoenaed and ultimately given “use” immunity to
testify before a Federal Grand Jury for the Southern
District of Florida. The investigation pertained to
allegations stemming from insurance claims filed by
Petitioner’s employer, Attorney James A. Davis, for
numerous clients. Petitioner was questioned by the
United States Attorney before the Grand Jury about
Davis’ cost breakdown and disbursements of the
proceeds upon the settlement of certain claims by Davis.
Petitioner testified, inter alia, that although she took
part in the preparation of cost breakdown statements,
she had no personal knowledge, information or belief as
to the validity of the costs, i.e., whether they were ac-
tually incurred for and on behalf of the client in ques-
tion. Part of Petitioner’s testimony is set out in the Ap-
pendix to the Fifth Circuit Court of Appeals’ Opinion,
which is Appendix “‘A”’ hereto.
Petitioner was subsequently indicted and charged
with three counts of Perjury before the Grand Jury in
violation of 18 U.S.C.A. §1623 (Appendix “B’’).
After a trial by jury, Petitioner was acquitted as to
Count I, but was convicted as to Counts II and III of the
Indictment and sentenced to eighteen months’ im-
prisonment and a fine of $1,000.00 as to Count II; as to
Count III, Petitioner received three years’ probation,
consecutive to the 18-months sentence. The United
States Court of Appeals for the Fifth Circuit affirmed
Petitioner’s conviction as to Count II, holding, inter alia,
that false testimony is material within the language and
meaning of 18 U.S.C.A. §1623 where it is “capable of in-
fluencing the tribunal on the issue before it” and that
the Government’s introduction into evidence of a
transcript of Petitioner’s Grand Jury testimony was suf-
ficient to prove materiality; Petitioner’s conviction as to
Count III was reversed by the appellate court due to the
trial court’s failure to grant Petitioner’s Motion for
Judgment of Acquittal (Appendix “‘A”’).
REASONS FOR GRANTING THE WRIT
There exists a conflict between the Fifth and Eighth
Circuit Courts of Appeal as to the meaning of the
materiality requirement within the language of Title 18,
U.S.C.A. §1623 and the requirement of its proof by the
Government. Petitioner’s conviction for Perjury, af-
firmed by the Fifth Circuit, required that “the [Grand
Jury] witness’ answers were capable of influencing the
tribunal on the issue before it, including any matters
collateral thereto”. United States v. Abrams,
F.2d (5th Circuit Case No. 77-5107, February 21,
1978) (Appendix “‘A’’).
This standard is confused even within the Fifth Cir-
cuit, where the “‘capable of influencing” test has been
applied correctly to perjury during a trial by jury where
the witness’ demeanor and credibility is paramount,
United States v. Whimpy, 531 F.2d 768 (5th Cir. 1976).
In Grand Jury proceedings, the furtherance of the in-
vestigation is paramount and testimony which is merely
capable of influencing the jurors is not material, see
United States v. Koonce, 485 F.2d 374 (8th Cir. 1973).
But see United States v. Damato, 554 F.2d 1371 (5th
Cir. 1977), in which the Fifth Circuit again applied the
“capable of influencing’ standard while reviewing
testimony in a Motion to Suppress hearing.
The Fifth Circuit’s test deprives a defendant of
procedural due process as it permits a finding of
materiality where the Government has merely alleged,
but not proved, that the false statement pertains to a
Grand Jury proceeding either on a pivotal or peripheral
issue. Moreover, this view vitiates the materiality
requirement of 18 U.S.C.A. §1623, whose purpose ap-
pears to be to limit the scope of prosecutions for
allegedly perjurious statements.
As stated recently by the Eighth Circuit:
To allow the perjury statute to be involved
where the alleged misstatement relates only to
a peripheral matter would unwisely expand the
statute’s scope. U.S. v. Lasater, 535 F.2d 1041,
1049 (8th Cir. 1977).
The Eighth Circuit, beginning with United States
v. Koonce, supra, holds that perjury before a Grand Jury
is material where the false testimony tenas to influence,
mislead or hamper the investigation. In its most recent
pronouncement on this question, United States uv.
Lasater, supra, that Circuit has reaffirmed its view. In
Lasater, supra, the Court held that where there was no
showing that the defendant’s testimony deterred the
prosecutor from further questioning by or before the
Grand Jury and, therefore, it did not “tend to impede
the grand jury,” 535 F.2d at 1048.
The Eighth Circuit’s test requires that some nexus
exists between the testimony and the subject matter of
the prosecutor’s questioning. This nexus did not exist in
Lasater, supra, where the defendant’s statements, con-
cededly false and clearly within the scope of the Grand
Jury’s investigation, did not tend to discourage the
prosecutor from further questioning. Therefore, the false
testimony was not material.
Petitioner contends that, wore Lasater decided by
the Fifth Circuit, the testimony would have been found
materiai because the introduction of the transcript of
the testimony under the Fifth Circuit rule is sufficient to
prove that it was capable of influencing the proceeding.
Conversely, were Petitioner’s case decided under the
Eighth Circuit’s test, her statements would not be
material as the Government made no showing that
Petitioner’s testimony tended to impede the investiga-
tion. In short, Petitioner would have been acquitted un-
der the Eighth Circuit rule, but stands convicted under
the Fifth Circuit rule.
The Fifth Circuit’s interpretation is a broad net
which can draw in all statements before a Grand Jury.
Any statement by any witness is “‘capable of influencing
the proceeding”’ to the extent that a witness’ demeanor
and credibility are observed. If nearly all statements are
deemed material, merely by virtue of having been made
before the Grand Jury by a witness, then the Fifth Cir-
cuit test of materiality is a nullity. On the other hand,
the Eighth Circuit’s construction limits materiality to
statements central to the investigation and which are
clearly in reference to a specific line of questioning. This
construction fulfills the purpose of the statute by en-
couraging the voluntary participation of witnesses
before a Grand Jury, United States v. Del Toro, 513 F.2d
656 (2d Cir. 1975), cert. denied 423 U.S. 826, 96 S.Ct. 41
(1976).
The Fifth Circuit view denies a defendant due
process of law, Brooks v. United States, 253 F.2d 362
(5th Cir. 1958), because a finding of materiality as to all
issues, central and peripheral, but without proof of
materiality, reads that requirement out of 18 U.S.C.A.
§1623. Moreover, this view restricts the feasibility of
cooperative witnesses before the Grand Jury, as wit-
nesses will be stigmatized by the spectre of a perjury
10
charge for nearly any false, or even literally true, but
misleading, statement, whether central or peripheral to
the investigation under the Fifth Circuit’s interpreta-
tion.
Impairment of the Grand Jury proceedings as a
whole will result from a lack of cooperative and
forthright witnesses. While the sanction against perjury
seeks to prevent this type of interference, an interpreta-
tion as broad and encompassing as the Fifth Circuit’s
view does more to encourage resistance than prevent it.
The question of materiality and proof of same must be
resolved and the conflicts within the Circuits settled to
protect the integrity and credibility of Grand Jury in-
vestigations.
11
CONCLUSION
The Petitioner herein was denied basic fundamen-
tal rights guaranteed to her by the United States Con-
stitution. Based on the arguments and authorities cited
herein, Petitioner, ANITA ABRAMS, urges this
Honorable Court to grant this Petition For Writ of Cer-
tiorari to the United States Court of Appeals for the
Fifth Circuit, and reverse her conviction and sentence
herein.
Respectfully submitted,
HIRSCHHORN &
FREEMAN, P.A.
742 N.W. 12th Avenue
Miami, Florida 33136
(Tel.: 305 324-5320)
JOEL HIRSCHHORN
12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit was
mailed to MARSHA LYONS, Assistant United States
Attorney, 300 Ainsley Building, 14 N.E. First Avenue,
Miami, Florida 33132 this 23 day of March, 1978.
JOEL HIRSCHHORN
13
Appendix
Appendix A
UNITED STATES of America,
Plaintiff-Appellee,
Vv.
Anita ABRAMS,
Defendant-Appellant.
No. 77-5107.
United States Court of Appeals.
Fifth Circuit.
Feb. 24, 1978.
Defendant was convicted before the United States
District Court for the Southern District of Florida, at
Miami, Gus J. Solomon, J., by designation, on two
counts of making false material statements before a
federal grand jury, and she appealed. The Court of Ap-
peals, Brown, Chief Judge, held that: (1) evidence on
one count overwhelmingly supported jury conclusion
that defendant gave false testimony; (2) because
questioner failed, for whatever reason, to pin defendant
down on other charges and asked instead general
hypothetical questions, her conviction on another count
had to be reversed; (3) trial judge did not abuse his dis-
cretion in denying motion for mistrial and (4) record,
taken as a whole, failed to demonstrate that defendant
was denied a fair and impartial trial.
Affirmed in part and reversed in part.
App. 1
1. Perjury — 33(8)
Evidence on one count overwhelmingly supported
jury conclusion that defendant, who worked as a
secretary and bookkeeper in law office, gave false
testimony before grand jury in connection with a cost
breakdown prepared for a client following client’s com-
plaint to the Florida bar. 18 U.S.C.A. §1623.
2. Criminal Law — 1159.2(10)
Applicable standard of review in determining suf-
ficiency of evidence to support defendant’s conviction of
making false material statements before a federal grand
jury was not whether the Court of Appeals thought the
evidence sufficient but whether a reasonable jury would
so conclude beyond a reasonable doubt. 18 U.S.C.A.
§ 1623.
3. Criminal Law — 144.13(3)
Evidence in criminal case must be viewed in light
most favorable to the government.
4. Perjury — 33(8)
Every answer set forth in a single count does not
have to be false to sustain conviction of making false
material statements before a grand jury. 18 U.S.C.A.
§1623.
5. Perjury — 33(2)
In light of overwhelming evidence that defendant,
who worked as secretary and bookkeeper in law office,
App. 2
must have known or recalled in connection with grand
jury questions concerning cost breakdown prepared for a
client following complaint to the Florida bar that cer-
tain investigation and photography costs were never in-
curred and that $75 for conferences and $35 for
photographs were somehow fabricated in response to bar
inquiry, jury could have reasonably concluded that
defendant knew full well that certain of her grand jury
answers were false. 18 U.S.C.A. §1623.
6. Perjury — 11(2)
Test for materiality is whether false testimony was
capable of influencing tribunal on issue before it;
however, statements need not be material to any par-
ticular issue but may be material to any pape matter
of inquiry. 18 U.S.C.A. §1623.
7. Perjury — 9
Questions which sought to determine whether coets
deducted from attorney’s clients’ payments were ac-
tually incurred and which formed basis for defendant’s
conviction of making false answers before a grand jury
constituted proper subject of grand jury inquiry into
various allegations stemming from insurance claims,
which investigation resulted in indictment of attorney
and another for use of the mails to execute a fraudulent
scheme. 18 U.S.C.A. §1623.
8. Perjury — 11(7)
Government need not show that because of perjured
testimony, grand jury threw in towel or that investiga-
tion was actually impeded; all the law requires is that
App. 3
the witness’ false answers were capable of influencing
tribunal on issue before it, including any matters
collateral thereto. 18 U.S.C.A. §1623.
9. Perjury — 33(6)
Evidence in prosecution for making false state-
ments, from which jury could conclude beyond
reasonable doubt that certain of defendant’s statements
before federal grand jury were false, was sufficient to
show that answers of defendant, who worked as
secretary anc bookkeeper in law office and testified
before grand jury in regard to cost breakdown prepared
for client following complaint to Florida bar, were
capable of influencing tribunal on issue before it, an in-
vestigation of use of mails to execute fraudulent scheme
involving insurance claims, and were therefore material.
18 U.S.C.A. §1623.
10. Perjury — 33(6)
One way in which government can meet its burden
of showing materiality in prosecution for making false
statements is by introducing transcript of prior
proceeding at which statements were made, and thus
Government, which not only introduced entire
transcripts of all three of defendant’s grand jury ap-
pearances but also introduced indictment setting forth
factual basis for trial judge’s finding and instruction on
materiality, sufficiently placed evidence of materiality
before the jury. 18 U.S.C.A. §1623.
App. 4
11. Perjury — 12
Federal perjury statute is not violated when witness
gives an evasive, nonresponsive but literally true
answer, even if answer is intentionally misleading and
arguably false by negative implication. 18 U.S.C.A.
§1621.
12. Perjury — 12
Making false material declarations before a grand
jury is a species of perjury and thus perjury requirement
of literal falsity is applicable to offenses charging false
material declarations before a grand jury. 18 U.S.C.A.
§§1621, 1623.
13. Perjury — 12
Where defendant, who worked as a secretary and
bookkeeper in law office, who testified before grand jury
in connection with cost breakdown prepared for client,
and who was never asked whether and never stated that
charge sheet accurately reflected costs, was not pinned
down on charges but instead questioner asked general
hypothetical questions, her conviction on one count
charging her with making false material statements
before federal grand jury had to be reversed and, since
the Government could not now cure questions’ defects, a
judgment of acquittal entered. 18 U.S.C.A. §1623.
14. Constitutional Law — 268(8)
Criminal Law — 641.13(2)
Where most questionable instances occurred out of
presence of jury and challenged actions before jury,
App. 5
viewed as a whole, did not amount to intervention which
could have led jury to predisposition of guilt by im-
properly confusing functions of judge and prosecutor,
judge’s behavior did not prevent defense counsel from
conducting defense as he ordinarily would have, defense
was not sole target of judge’s dissatisfaction, and,
significantly, defendant was acquitted on one count,
defendant’s Fifth Amendment due process right to fair
and impartial trial and her Sixth Amendment right to
effective assistance of counsel were not violated by trial
judge’s conduct. U.S.C.A.Const. Amends. 5, 6.
15. Criminal Law — 655(5)
While a trial judge’s disparagement of advocates
appearing before him is not to be condoned, in the final
analysis question whether prejudicial trial court con-
duct reaches constitutional magnitude is a matter of
degree.
16. Criminal Law — 867
Where witness’ answer that he worked for county-
organized crime bureau was truthful, it was customary
to have witnesses state where they were employed, jury
acquitted defendant on one count, and was instructed
more than once that sole issue before it was whether
defendant deliberately lied te grand jury, denial of mo-
tion for mistrial on ground that witness’ answer im-
properly permitted jury to infer that defendant, who
worked as attorney and bookkeeper in law office, was in
some way linked to organized crime was not an abuse of
discretion. 18 U.S.C.A. §1623.
App. 6
Appeal from the United States District Court for
the Southern District of Florida.
Before BROWN, Chief Judge, RONEY and FAY,
Circuit Judges.
BROWN, Chief Judge:
A jury returned a verdict of guilty against Anita
Abrams on two out of three counts of making false
material statements before a federal grand jury in viola-
tion of 18 U.S.C.A. §1623.! She claims on this appeal
that she was denied a fair trial, first, because of the pre-
judicial misconduct of the Trial Judge, and second,
because of his failure to grant a mistrial following an
allegedly prejudicial answer by one witness. She also
challenges the sufficiency of the evidence as to both
counts.? We agree only that there is insufficient evidence
to support the verdict on Count III and reverse as to that
count. Her conviction on Count II is affirmed.
Because of the extremely complicated nature of this
case, we will set forth the facts as they relate to each
issue raised by appellant and address the sufficiency at-
tack first.
‘Abrams was acquitted on Count I.
2Defense motions for judgment of acquittal and a new trial
were denied.
3Abrams received an 18-month sentence and a $1,000 fine on
Count II. The sentence on Count III was suspended and she was
placed on probation for three years to run consecutively with the
Count II sentence.
App. 7
I. Sufficiency Of The Evidence
The United States Attorney for the Southern Dis-
trict of Florida had been conducting an investigation
into various allegations stemming from insurance claims
filed by the law offices of James A. Davis for numerous
clients who had received medical treatment from Dr. M.
S. Fox‘ or Westchester Hospital or both. Settlement of
accident cases following negotiations with insurance
companies or trial would be made by Davis’ office. The
insurance company would pay claims to Davis who, in
turn, would disburse the proceeds to his clients, the ac-
cident victims, after deducting attorneys’ fees, medical
expenses, court costs, investigative fees, and other
related costs.
Abrams, who worked as a secretary and bookkeeper
in Davis’ office, was subpoenaed by the grand jury in
1976 and was ultimately granted use immunity. She
made three appearances before the grand jury; Counts II
and III arose out of her July 26, 1976 appearance.
A. Count II: The Yva Henry Case
1. Documentary Evidence
The false statements which formed the basis of this
count involved a cost breakdown which had been
prepared for Yva Henry, a client of Davis. Henry had
written a letter dated March 12, 1974 to Paul Gross of
‘Defense counsel informed the Court at oral argument that
Davis and Fox were convicted on 104 counts of mail fraud.
°The transcripts of all three appearances were admitted into
evidence.
App. 8
the Florida Bar complaining about the amount she was
to receive in settlement of her claim for an accident
which had occurred in April 1973 * Gross forwarded this
complaint to Davis on March 15, 1974 and requested a
written response.’ By letter dated April 1, 1974, signed
for Davis by Abrams, the latter forwarded to the Florida
Bar a “closing statement” on the Henry Case,® contain-
ing a $231.50 charge for “Costs.”
On April 2, 1974, Gross called Davis’ office to re-
quest a breakdown of the $231.50 in costs as shown by
the following telephone message directed to “‘Anita:”’
6Gov’t Ex. 3A. The Yva Henry file was seized pursuant to a
search warrant.
7Gov’t Ex. 3B. ~
*This closing statement (the second page of Gov't Ex. 3C)
contained the following breakdown:
CASE NO. 5564
CLOSING STATEMENT
FOR
HENRY - YVA
SETTLEMENT $6,500.00
ATTORNEY’S FEES $2,600.00
COSTS 231.50
DR. M.S. FOX 475.00
DR. P. LIPPMAN 40.00
JACKSON MEMORIAL
HOSPITAL 49.00
WESTCHESTER GENERAL
HOSP. 804.50
$4,200.00 $4,200.00
PROCEEDS TO CLIENT $2,300.00
App. 9
Yva Henry —
(cost 231.50 wants
breakdown?) [9]
5564 Case No.
That same day, Abrams signed a letter to the
Florida Bar on behalf of Davis, enclosing a breakdown
she prepared which listed these items: !°
CHARGE SHEET ON
YVA HENRY CASE NO. 5564
[1] Confereace with Dr. M.S. Fox
(4/25/73) $50.00
[2] Conference with Dr. M.S. Fox
(6/1/73) 25.00
[3] Investigation and Photography 107.50
[4] Photographs. 35.00
[5] Accident Report 3.00
[6] . Westchester General Hosp.—
Medical Records 6.00
[7] Jackson Memorial Hospital—
Medical Records 5.00
Total $231.50
Items [1]-[4] of this breakdown are the source of
Abrams’ present problems.
°This telephone slip forms part of Gov’t Ex. 7.
The letter and enclosed breakdown comprise Gov't Ex. 3D.
The items are numbered with brackets for easy reference. Ac-
cording to Davis, he worked up the breakdown and instructed
Abrams on what was to be done. Abrams told the grand jury that
she prepared the breakdow. See appendix, answer 47.
App. 10
As to items [1] and [2] (the two conferences with
Dr. Fox on 4/25/73 and 6/1/73), Gov’t Ex. 14, which was
taken from the Yva Henry file in Dr. Fox’s office, is
critical. That exhibit comprises undated slips of paper,
one of which is a telephone call memo reading in part:
$75 JAD"!
Bill Conference (2)
Iva Henry 50
25
The other critical slip of paper from Fox’s Henry file for-
ming the second part of Ex. 14 reads: ;
Fla Bar
Assn.
Mr. Gross
Eva Henry
Re:
JAD
4/22/74
to verify
total bill
$400 — or $475
The bottom half of this note, beginning with “4/22/74”
appears to be in a different handwriting from the top
half. The third portion of Gov’t Ex. 14 comprises an ex-
act duplicate of an undated typed bill to Davis for the
"'The obvious reference here is to James A. Davis.
App. 11
two office conferences in April and June 1973 which ap-
pears in the Henry file in Davis’ office.'?
Item [3] on the breakdown, relating to $107.50 for
investigation and photography, was ostensibly covered
by a May 17, 1973 typed invoice in duplicate on the
billhead of Worldwide Detective Agency.'* This bill
charged $100 for investigative services and $7.50 for
“auto.”
With regard to item [4] covering $35 for
photographs, the Henry file contained two critical docu-
ments: a photography shop invoice for film and a film
developing envelope, both dated April 2, 1974, the same
day on which the Florida Bar telephone inquiry and the
Abrams breakdown were made.'* The photographs of
the location of the Henry accident which were placed in
'2Gov’t Ex. 9. It is significant to note that these two conferences
on April 25 and June 1, 1973 for $50 and $25, respectively, were not
billed as the Henry case progressed as had Henry’s other medical
expenses. This fact is demonstrated by Gov’t Ex. 4, which contains
a July 27, 1973 bill from Dr. Fox for services rendered for Henry. A
$200 item on that bill covers 20 office visits at $10 each. One $10 of-
fice visit was on April 25; another was on June 1. See also in this
connection note 23, infra.
'3Both the original and duplicate were found in Davis’ files and
they comprise Gov’t Ex. 10.
“Gov't Ex. 11. It must be borne in mind that the Yva Henry
case was closed by April 2 (she was complaining about the amount
Davis was to receive from the total settlement). The point is, why
was there any need for photographic work on April 2, 1974?
App. 12
the Henry file could not have been taken any time before
March 1974.5
The most significant document in Davis’ Henry file
is a slip of paper comprising part of Gov’t Ex. 7.'* The
first four lines of this slip, listing the four items, are in
Davis’ handwriting. The addition and subtraction are in
Abrams’ handwriting.
Gov't Ex. 12. At least one of the photos showed a construction
site. It was stipulated at trial that a witness would testify that he
did not begin construction at this site until March 1974.
‘°The other part of Ex. 7 was the telephone message to “Anita.”
See text at note 9, supra.
App. 13
Photos 1043.50 35.00!”
A.R.'8 3
W.R.'9 6
J.M.H.?° 5
75
124
231.50
124.00
107.50
Another slip of paper, totally in Davis’ handwriting
(Gov’t Ex. 8), reads:
231.50
Invest. 150 24.90
Conf. Dr. 100 1.50
Acc. Report 23 26.40
West. 6 1.50
J.M.H. 5 27.90
‘It is interesting to note that Gov’t Ex. 11, see note 14, supra
and accompanying text, contains 11 photos, not 10. The photo en-
velope, Ex. 11, dated April 2, 1974, shows that 11 prints were made.
Furthermore, no matter which figures on the film envelope are used
— the regular price for development ($36.85) or the discount price
($28.49) — to add to the photography shop invoice for film ($1.46),
the total is not $35.00.
‘*“A.R.” apparently means accident report.
'*Westchester report.
Jackson Memorial Hospital.
App. 14
A comparison of these figures and those of Ex. 7 with the
figures on the breakdown (see text following note 10,
supra) reveals that the breakdown sent to the Florida
Bar matched the figures of Ex. 7 containing Abrams’
mathematical calculation.*!
2. The Grand Jury Testimony
The testimony which formed Count II of the indict-
ment fills nine legal-size pages. So that we do not
further lengthen this opinion, that testimony is attached
as an appendix. The questions and answers are num-
bered for easy reference and the statements which we
believe the jury could reasonably have concluded were
false are italicized.
[1-3] Abrams maintained throughout her grand
jury testimony”? that the $231.50 figure was based on
bills actually in the file prior to the settlement of the
Henry case, on the cost sheet she prepared as the Henry
case progressed, or on cost cards which the accountant
had.?3 Indeed, she effectively, denied fabricating the
2!The calculation is in text following note 20. See also note 10,
supra.
22Abrams did not testify at the trial.
See appendix, answers 2, 18, 20, 36, 48, 50, 51.
Abrams’ grand jury testimony and Davis’ trial
testimony on accounting procedures was far from clear; in-
deed, it can only be described as totally evasive. We have,
however, gleaned from the record that at the time when
Abrams took over as Davis’ bookkeeper, Davis’ accountant
was keeping tabs on costs disbursed in behalf of clients
through the use of cost cards which he personally main-
tained. From these cost cards, Abrams would prepare clos-
(Footnote 23 continued on next page)
App. 15
(Footnote 23 continued)
ing statements, pay bills, etc. She ultimately instituted a
system of ‘“‘charge’’ or “‘cost’”’ sheets on which she (as op-
posed to the accountant) would enter various costs for
each client as they were incurred. According to Davis,
charge sheets were kept separate from the file. The cost
sheet for the Henry case was missing during the grand jury
hearing and at trial and nothing in the record explains its
unavailability.
The grand jury testimony given to the jury additionally
disclosed one other method of keeping track of costs
chargeable to clients. The accountant maintained a jour-
nal on which Davis checks made out by Abrams in pay-
ment of each client’s bills for costs were entered by the ac-
countant. The journal sheet for Yva Henry, not made an
exhibit at the Abrams trial, showed $150, not $231.50, in
costs. This $150 amount did not include checks issued to
Dr. Fox for the two conferences as the following grand jury
testimony demonstrates:
Q. When such conferences are billed to a client, would
Dr. Fox be paid for such a conference?
Yes, he would.
How would he be paid?
By check.
And where would this cost be listed?
On the charge sheet.
2 > © > © Pp
. So if there was a conference, such as this, there
should be a check to Dr. Fox; is that right?
A. ‘There should be, yes.
Q. That’s also not listed in this ledger sheet concerning
Yva Henry that you looked at before, is it?
(Footnote 23 continued on next page)
App. 16
costs.24 We believe that the evidence overwhelmingly
supported a jury conclusion beyond a reasonable doubt
that she gave false testimony.”> Our view is that the jury
could have reasonably concluded that actual events
proceeded along the following lines and that Abrams
must have known about and remembered those events
when she testified before the grand jury: When the
Florida Bar request for the $231.50 cost breakdown was
made, Abrams — or someone in Davis’ office with
Abrams’ knowledge — arranged to have the
photographs taken (item [4], $35), Davis listed minor
amounts to be charged for perfunctory reports made in
almost every accident case (items [5]-[7], $14), and
Abrams — or someone in Davis’ office with Abrams’
knowledge — arranged with someone in Dr. Fox’s office
to bill Davis for $75 of those costs (items [1] and [2]).
And when Abrams totaled those costs and arrived at
only $124, she subtracted the subtotal from $231.50, got
$107.50, and she — or someone in Davis’ office with her
knowledge — fabricated an invoice on Worldwide Detec-
tive Agency billhead (item [3]) to justify the $107.50 dif-
ference. This view is based on the following.
(Footnote 23 continued)
A. No.
Grand Jury Tr. at 84 (Gov’t Ex. 2A).
See appendix answers 15, 33. See also answer 39.
2°The applicable standard of review is not whether we think the
evidence sufficient but whether a reasonable jury could so conclude
beyond a reasonable doubt. E.g., United States v. Parr, 5 Cir., 1975,
516 F.2d 458, 464. Additionally, evidence in a criminal case must be
viewed in the light most favorable to the government. E.g., United
States v. Duhon, 5 cir., 1978, 565 F.2d 345 (1978).
App. 17
First, it is clear from the documentary evidence
that the Fox conferences were not billed in the ordinary
course (see notes 12 and 23, supra). Second, the Fox bill
is not dated as is the other Fox invoice for $475 (see
notes 8 and 12, supra). Third, it is also clear that the
Davis office requested that these conferences be billed in
response to the Florida Bar inquiry. Thus, as to the Fox
conferences, there was sufficient evidence for the jury to
conclude beyond a reasonable doubt that Abrams
violated §1623 when she denied knowing the cir-
cumstances under which the undated Fox bill was
prepared.” .
There was also sufficient evidence to support a con-
clusion beyond a reasonable doubt that Abrams gave
perjured testimony concerning item [3], the $107.50 in-
voice from Worldwide Detective Agency for investiga-
tion and photography. Weigel, owner of Worldwide,
stated that a search of his records disclosed no investiga-
tion having been conducted on the Yva Henry case>
Moreover, when Weigel billed clients, he never submit-
ted the original and the copy as ostensibly was done in
the Henry case.?” Hallen, a Worldwide employee who
did investigative work for Davis on Weigel’s license, also
found no record of investigative or photographic work
done in behalf of Henry. Hallen would bill Davis by sub-
mitting to Abrams handwritten slips containing case
numbers and the plaintiff's name; he never typed in-
voices. Abrams paid Hallen directly by check. Hallen
unequivocally denied submitting the typed $107.50 in-
26See appendix, answer 54.
27See note 13, supra and accompanying text.
App. 18
voice of Gov’t Ex. 10.28 Furthermore, sometime in 1973,
Hallen, with Weigel’s permission, had given blank
Worldwide billheads to Joe Moore, Davis’ office
manager.?9
Based on this uncontradicted testimony, the jury
was justified in finding that Abrams made false state-
ments when she named Hallen as the source of the
$107.50 figure® and when she said that the bill was
prepared by the investigator,*! and submitted.*? In addi-
tion, Abrams’ asserted failure to remember and denial of
knowledge as to what she was doing when she performed
the mathematical calculation of Gov’t Ex. 7° could
reasonably have been considered perjured.™
28Hallen was the only investigator to whom these invoiced ser-
vices could have been attributed. Weigel did not personally do any
work for Davis. Hallen worked for Davis on a case-by-case basis.
The other investigator used by Davis was on the attorney’s regular
payroll.
29Moore had previously worked for Worldwide. In fact, Hallen
replaced Moore when Moore left the agency.
See appendix, answers 25 and 30. If the jury believed Hallen
and Weigel, as undoubtedly was the case, the conclusion is in-
escapable that these answers were false because Hallen was the
only investigator in a position to perform and bill these services. See
note 28, supra.
31See appendix, answer 55.
32See appendix, answers 58 and 60. See also answer 30.
3See text following note 20, supra.
“See appendix, answer 27.
App. 19
Similarly, there was abundant evidence to support
a beyond-a-reasonable-doubt conclusion that Abrams’
testimony concerning the $35.00 for photographs was
false. The invoice for film and the film envelope were
both dated April 2, 1974, the same day on which the
Florida Bar telephone inquiry was made when the
Henry case was, for all intents and purposes, closed.*
Hallen never performed any photographic work on the
Henry case and did not submit the invoice for
photography services. And at least one of the
photographs in the Henry file establish that the pictures
were not taken until at least eleven months after Mrs.
Henry’s April 1973 mishap. No sensible explanation
was forthcoming as to why photography costs need have
been incurred in connection with a closed case, and the
grand jury gave Abrams every opportunity to offer one.*”
Thus, we think a jury could justifiably find that
Abrams committed perjury when she (i) told the grand
jury that the bills were Dave Hallen’s,* (ii) denied
knowing the circumstances under which the
photographic bills were obtained,*® and (iii) denied that
See note 14, supra.
%See note 15, supra and accompanying text. See also note 17,
supra.
37Abrams’ tortured attempts to explain the presence of these
bills in the Henry file can be found in the appendix, questions and
answers 37-53.
%*See appendix, answer 39.
%See appendix, answers 52, 53. For examples of extremely
evasive, if not literally false, answers regarding the photography
bills, see appendix, answers 8-14.
App. 20
the bills were obtained the day after receiving the
Florida Bar letter to justify the costs.‘
Lastly, based on all the evidences relating to the
four items on the breakdown, we believe that a jury
could conclude beyond a reasonable doubt that Abrams’
statements that the $231.50 in costs came from cost
sheets and cost cards,‘! and her denial of attempts to
justify the costs‘? were false.
[4] Appellant’s sufficiency challenge is multi-
pronged. Abrams argues first that she responded to
questions by describing the office routine she normally
“would” use, instead of stating what she actually “did”
with respect to a particular item. We agree with this
argument as to certain answers,*? but believe it con-
veniently overlooks many others.“
This argument also ignores the settled principle that
every answer set forth in a single count does not have to
“See appendix, answer 15.
*\See appendix, answers 2, 18, 36, 48, 50.
*2See appendix, answer 33.
“See, for example, answers 8, 9, 13, 20, 40. Likewise, some
questions were framed in terms of what would occur, as opposed to
what did occur. See, for example, questions and answers 14, 59. Un-
der the standards announced in Bronston v. United States, 1973,
409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 and United States v.
Brumley, 5 Cir., 1977, 560 F.2d 1268, discussed infra in connection
with Count III, answers to such questions cannot form the basis of a
perjury conviction.
“See, for example, answers 2, 18, 33, 39, 48, 50, 60.
App. 21
be false to sustain a conviction. United States v.
Bonacorsa, 2 Cir., 1976, 528 F.2d 1218, 1221-22; Stassi v.
United States, 5 Cir., 1963, 401 F.2d 259,262, vacated on
other grounds sub nom. Giordano v. United States,
1968, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297.
Second, appellant contends that there was no
evidence introduced to show that she willfully and
knowingly lied to the grand jury, that is, that she knew
the charges were not incurred and remembered that
fact. In this connection we are asked to ponder the thou-
sands of cases which passed through, and the thousands
of transactions taking place in, this busy, disorganized
law office, all of which made it unreasonable for Abrams
to remember the details of the Henry cost breakdown.
There are several answers to this contention.
Abrams typed and signed on Davis’ behalf the let-
ters to the Florida Bar, and she — according to her
grand jury testimony — prepared the cost breakdown.
This office work was necessary only because a very
serious complaint about Davis had been lodged with the
Bar. Abrams was an employee in a law office where such
complaints should not have been an everyday oc-
currence and should not have been treated routinely or
cavalierly. All the more so because Abrams was well
aware in April 1974 that Davis had been the target of a
recent investigation. Indeed, that investigation
prompted a meeting of Davis’ staff which Abrams at-
tended and during which Davis instructed the staff to
take certain actions.“
“This investigation, which took place in September 1973, was
apparently conducted by a local television station. Abrams’ grand
jury testimony concerning this staff meeting formed the basis of
Count I as to which extensive testimony was given at trial, in-
cluding what prompted the meeting.
App. 22
[5] In light of this background, the jury could have
reasonably concluded that the Henry cost breakdown
was not as forgettable as appellant contends and that
Abrams knew full well that certain of her answers were
false. This is especially so in light of the overwhelming
evidence which could lead a jury to conclude that
Abrams must have known or recalled that the $107.50
cost for investigation and photography was never in-
curred and that the $75 for conferences with Dr. Fox and
the $35 for photographs were somehow fabricated in
response to the Florida Bar inquiry.“
A Similar argument was raised in United States v.
Chapin, 1975, 169 U.S. App.D.C. 303, 515 F.2d 1274,
1284. In rejecting the sufficiency attack, the Court
stated:
[I]n the absence of a statement by the defen-
dant, the falsity of an “I don’t recall” answer
must be proven by circumstantial evidence.
This does not mean that proof is impossible. As
another court has stated, ‘““The jury must infer
the state of a man’s mind from the things he
says and does. Such an inference may come
from proof of the objective falsity itself, from
proof of a motive to lie, and from other facts
tending to show that the defendant really knew
the things he claimed not to know” or recall.
[Citations omitted.]
‘6]t should be emphasized that several perjured answers did not
involve “I don’t know” or “I don’t remember’’ responses. For exam-
ple, Abrams stated unequivocally that the investigator prepared
the Worldwide invoice for $107.50. the jury obviously believed
Hallen’s testimony to the contrary.
App. 23
Id., 169 U.S.App.D.C. at 313, at 515 F.2d 1284. In apply-
ing these principles, there was abundant proof —
already detailed at length — of objective falsity and
other facts tending to show that Abrams really knew or
recalled that which she denied knowing or recalling. As
to motive, the jury knew that Abrams was employed by
Davis when she appeared before the grand jury and it
was at liberty to draw reasonable inferences concerning
motive from the employer-employee relationship, as
well as from the grant of use immunity.‘’ The jury,
properly instructed, resolved this issue against Abrams
and we see no reason to disturb its verdict here.
The third prong of Abrams’ sufficiency attack
relates to materiality. She urges that even if we hold her
answers to be perjurious, they were not “capable of in-
fluencing the grand jury on the issue it was in-
vestigating; namely whether Attorney James Davis was
using the United States Mails to defraud insurance
companies by ‘ambulance chasing,’ cooperating with
doctors to increase medical bills to ‘get over’ Florida’s
Uninsured Motorist Statute threshold amounts and
similar conduct.” Appellant’s brief at 50.
[6] The test for materiality, as Abrams correctly
concedes, is whether the false testimony was capable of
influencing the tribunal on the issue before it. E.g.,
United States v. Brumley, 5 Cir., 1977, 560 F.2d 1268;
United States v. Damato, 5 Cir., 1977, 554 F.2d 1371;
United States v. Parr, 5 Cir., 1975, 516 F.2d 458.
However, the statements need not be material to any
‘The jury was instructed that it should carefully scrutinize the
circumstances under which each witness testified and that it could
consider each witness’ intelligence, motive, and state of mind.
App. 24
particular issue but may be material to any proper mat-
ter of inquiry. Damato, supra; United States v. Makris,
5 Cir., 1973, 483 F.2d 1082; United States v. Gremillion,
5 Cir., 1972, 464 F.2d 901; Barnes v. United States, 5
Cir., 1967, 378 F.2d 646.
The grand jury was investigating various allega-
tions stemming from insurance claims. That body has
substantial leeway in conducting its investigation. This
Court has approved the following language from United
States v.Stone, 2 Cir., 1970, 429 F.2d 138, 140:
A grand jury’s investigation is not fully carried
out until every available clue has been run
down and all witnesses examined in every
proper way to find if a crime has been
committed.
[7] The questions seeking to determine whether
costs deducted from Davis’ clients’ payments were ac-
tually incurred was a proper subject of grand jury in-
quiry which resulted in the indictment of Davis and Fox
for use of the mails to execute a fraudulent scheme.
Abrams argues that Davis’ clients were not the victims
or complainants, that the insurance companies were,
ergo, no materiality. Appellant’s brief at 51. We are
totally at a loss to understand this argument. Not only
were the insurance companies victimized, but so were
“Quoted with approval in United States v. Parr, supra, 516
F.2d at 469.
App. 25
Davis’ clients and the Florida Bar as well.‘® If the
fabrication and inflation of medical and other costs were
part and parcel of an illegal scheme to obtain money and
property by false representations, the grand jury was
authorized to explore every aspect of that scheme in an
effort to determine whether a federal crime had been
committed.
‘*Because this contention was made in the briefs and pressed so
earnestly at oral argument, we checked the trial record in the
Davis-Fox case, now on appeal in this Circuit. The indictment
alleges a scheme and artifice to defraud and for obtaining money
and property by means of false and fraudulent pretenses, represen-
tations and promises, from various insurance carriers, accident vic-
tims, and the Florida Bar. The alleged objects of the scheme were to
(a) induce accident victims to institute claims against insurance
carriers and to indmce the carriers to pay claims to the defendants
and their clients by submitting false and inflated medical bills; (b)
reduce payments to ‘accident victims by deducting false and in-
flated medical bills and costs from the total amount of their settle-
ments; and (c) defraud the Florida Bar from conducting legitimate
inquiries into matters raised by clients of Davis by preparing and
submitting to the Florida Bar false and inflated justifications for
cost. Two of the false and fraudulent statements and representa-
tions cited in Count I of the Davis-Fox indictment were the
breakdown submitted to the Florida Bar (Count III of the Abrams
indictment) and the court reporter charges listed in the Eduardo
Valdez case (Count II of the Abrams indictment, Section I-B infra).
Counsel for Abrams stated, inter alia, at oral argument, “In fact,
Counts II and III which we’re here on really didn’t deal with the
same issues that the grand jury was investigating . . . The state-
ments and the questions and the answers which the government has
alleged to be perjurious are not material, were not material to the
grand jury’s investigation because they really didn’t deal with the
issue of insurance fraud per se but rather it was a separate matter
involving the client and the attorney.”’ Any doubts as to materiality
that we may have entertained because of these arguments and our
ignorance of the true facts have been completely dispelled by our
study of the Davis-Fox indictment.
App. 26
[8,9] A subpart of the materiality argument is
that Abrams’ answers in no way “deterred, misled or
otherwise influenced the grand jury from conducting
and completing its investigation.” Appellant’s brief at
50. This contention misperceives the legal requirements
regarding materiality. The government need not show
that because of the perjured testimony, the grand jury
threw in the towel. Actual impediment of the investiga-
tion is not required. E.g., United States v. Makris,
supra; United States v. Gremillion, supra. Such a
ridiculous rule would mean that the grand jury believed
the witness and placed so much importance on his
testimony that further inquiry was useless. Grand jurors
are capable of judging credibility and they are free to
disbelieve a witness and persevere in an investigation
without immunizing a perjurer. All the law requires is
that the witness’ answers were capable of influencing
the tribunal on the issue before it, including any matters
collateral thereto. The answers analyzed above easily
passed that test and the Trial Court’s finding and in-
struction on materiality were proper.
[10] Finally, Abrams complains that the govern-
ment failed to place before the jury evidence of
materiality. This complaint is frivolous. One way in
which the government can meet its burden on this score
is by introducing the transcript of the prior proceeding.
See Damato, supra, 554 F.2d at 1373 and cases cited in
note 3. To paraphrase what one Court stated, the best
way to know what the grand jury deems material is by
reading what it asked about. United States v. Sweig,
S.D.N.Y., 1970, 316 F.Supp. 1148, 1164. Not only was
the entire transcript of all three Abrams’ grand jury ap-
pearances introduced at trial, but the jury additionally
had before it the Abrams indictment which set forth the
App. 27
factual basis® for the Trial Judge’s finding and instruc-
tion on materiality as required in this Circuit. See
Brumley and Damato, supra.
B. Count Ill: The Eduardo Valdez Case
Eduardo Valdez, like Yva Henry, was a client of
Davis. The Valdez “charge sheet,”>! Gov’t Ex. 15, shows
the costs incurred in his behalf. Under the heading
“COURT REPORTERS,” the following handwritten
entries appear:
5°Count II read in part as follows:
2. At the time and place aforesaid the Federal Grand
Jury was conducting an investigation into various allega-
tione stemming from insurance claims filed by the law of-
fices of James A. Davis, II. These claims for damages were
made on behalf of people involved in vehicular accidents
who were represented by the Davis law firm. Settlements
of accident claims would be negotiated by personnel at
Davis’ office and insurance drafts would be issued jointly
to the client and James A. Davis, II. Payment would be
made by Davis’ office to the accident victim based on the
amount of settlement after deducting attorney’s fees,
medical expenses and miscellaneous costs.
3. It was a matter material to said investigation to
determine whether the expenses and costs deducted were
actually incurred.
‘\For an explanation of this term, see note 23, supra.
App. 28
Date Check No. Amount
[1] Castillo & Castillo 4/10/75 1831° 87.40
[2] Jack Besoner &
Associates 5/19/75 189758 80.00
As to item [1], check No. 1831 was actually drawn
for $75.70, not for $87.40. Richard Castillo testified that
the check was received in payment of an invoice (Gov’t
Ex. 17) for court reporting services in connection with
the case of Slater v. Faucett. In regard to item [2], check
No. 1897 was actually drawn for $11.25, not for $80.00.
Moreover, Besoner’s ledger sheet, Gov’t Ex. 18, shows
that this check covered court reporting services in con-
nection with the deposition of Jones in the case of Clark
v. Jones. Apparently neither of these two depositions
had anything to do with the Valdez case.
The following Abrams testimony is the subject of
count III:
Q.1 Now, looking at Grand Jury Exhibit No. 2, do
- you recognize the handwriting?
A.l Yes.
Q.2 Whose handwriting is that?
A.2 Mine.
Q.3 All that handwriting?
52The check and the check stub were received in evidence at
Gov’t Ex. 16A.
59The check and the check stub were received in evidence as
Gov’t Ex. 16B.
App. 29
A.3 Yes.
Q.4 You have depositions listed there.
A.4 Yes.
Q.5 That’s your handwriting, also?
A.5 Yes.
Q.6 In cases when you charge for a deposition like
that did the particular client have a deposition taken?
A.6 Yes.
Q.7 And they would be — would you have
somebody, a court reporter there to take down what they
said?
A.7 I wouldn’t be aware — I wouldn’t be there
when the court reporter was there.
Q.8 But there would be a cost?
A.B Yes.
Q.9 Who would give you that cost?
How would you know what to charge for a particular
item like that?
A.9 I would get a bill.
Q.10 From whom?
App. 30
A.10 From the court reporter.
Q.11 Then you’d take that bill.
On the bill would it say the deposition or the par-
ticular work that was done on that?
A.ll_ Yes.
Count III alleges the following violation:
The aforesaid testimony of Anita Abrams as
she then and there well knew and believed, was
false in that she had prepared the charge sheet
in case number 5469 on Eduardo Valdez which
reflects that check number 1897 dated May 19,
1975 in the amount of $80.00 was paid to Jack
Besoner and Associates for court reporter costs
which she knew did not accurately reflect the
costs; all in violation of Title 18, United States
Code, Section 1623.
[11, 12] While it is undoubtedly true that the
Valdez charge sheet did not accurately reflect the costs,
it is clear that Abrams was never asked whether and
never stated that the charge sheet did accurately reflect
the costs. Indeed, careful scrutiny of these answers in
light of Bronston v. United States, 1973, 409 U.S. 352, 93
S.Ct. 595, 34 L.Ed.2d 568 reveals that none of these
answers is literally false. Bronston stands for the
proposition that the federal perjury statute, 18 U.S.C.A.
§1621, is not violated when a witness gives an evasive,
nonresponsive but literally true answer, even if the
answer is intentionally misleading and arguably false by
App. 31
negative implication.** Moreover, Bronston expressly
places on the questioner the burden of pinning the
witness down to the specific object of the inquiry. Chief
Justice Burger wrote, “‘Precise questioning is imperative
as a predicate for the offense of perjury.”” 409 U.S. at
362, 93 S.Ct. at 602, 34 L.Ed.2d at 576.
[13] As to the specific answers contained in Count
III, there is no indication in the record that answers 1-5
are false. Questions and answers 7-11 are framed in
terms of what Abrams “‘would do”’ as a matter of normal
office routine and there is insufficient evidence in the
record to support a conclusion beyond a reasonable
doubt that these answers are false. None of questions
7-11 asks specifically what Abrams actually did with
respect to the Valdez case. The only question which
comes even close to asking directly about Valdez, by use
of the verb “did’”’ instead of “‘would,”’ is No. 6: “In cases
when you charge for a deposition like that did the par-
ticular client have a deposition taken?’ (Emphasis
added.) This question suffers an infirmity similar to
those in questions 7-11, namely, it inquires about cases
(plural) “like that”, not about the Valdez case in par-
ticular.® There is insufficient evidence in the record to
support a conclusion beyond a reasonable doubt that
‘Making false material declarations before a grand jury is a
species of perjury. United States v. Gross, 3 Cir., 1975, 511 F.2d 910,
915. Bronston’s requirements of literal falsity for §1621 convictions
are applicable to §1623 offenses. See United States v. Slawik, 3
Cir., 1977, 548 F.2d 75, 83, cited with approval in United States v.
Brumley, 5 Cir., 1977, 560 F.2d 1268, 1275.
55We should also point out that nowhere in questions 6-11 is
Valdez’s name mentioned and nowhere is the word “accurately”
used.
App. 32
Abrams’ affirmative response to question No. 6, in-
dicating that in cases like that a deposition was taken, is
false. Because the questioner failed, for whatever
reason, to pin Abrams down on these charges and asked
instead general hypothetical questions,** Abrams’ con-
viction on Count III must be reversed. Since there is no
way at this point for the government to cure the ques-
tions’ defects, a judgment of acquittal must be entered
on Count III. Brumley, supra, 560 F.2d at 1277.
Il. Fair Trial
[14] Abrams contends that her Fifth Amendment
due process right to a fair and impartial trial and her
Sixth Amendment right to effective assistance of coun-
sel were violated by the Trial Judge’s conduct which
prejudiced the defense in the eyes of the jury. As exam-
ples of a biased attitude against the defense, appellant
cites nine incidents in the presence of the jury and six in
its absence. These incidents fall generally into four
categories: (i) interjection into the examination of wit-
nesses; (ii) unjustified criticisms and rebukes of defense
counsel; (iii) challenging defense questions without the
government interposing an objection; and (iv) generally
hostile remarks to defense counsel.
Appellant relies primarily on this Court’s decision
in United States v. Candelaria-Gonzalez, 5 Cir., 1977,
5*For an affirmative answer to question No. 6 to have been per-
jured, the interrogator would have had to frame the question
precisely and directly, for example, by asking, “When you charged
the Castillo and Besoner invoices to Valdez, had the depositions in
fact been taken in connection with his case?” Or, “‘Does the Valdez
charge sheet accurately reflect court reporter charges that were ac-
tually incurred in the Valdez case?”
App. 33
547 F.2d 291, in which disparagement, correction, and
interruption of defense counsel was one factor which led
to reversal of the conviction.®’ The record does indicate
that the trial court exhibited some irritation with
defense counsel. But under the standards carefully laid
down by Judge Simpson in Candelaria-Gonzalez,** we
are convinced that conduct of the trial did not rise to the
level of a constitutional violation of Abrams’ rights.
57[W]e view as a serious impropriety the trial judge's failure to
preserve an appearance of impartiality.
But we base our decision to reverse on the conduct of the trial
as a whole. We do not find it necessary to decide whether the trial
judge’s behavior standing alone was sufficiently prejudicial to re-
quire reversal.
547 F.2d at 297-98.
58A trial judge must exhibit neutrality in his language and in
the conduct of a trial before a jury. He should avoid any possibility
of prejudicing the jury through his criticism of or hostility toward
defense counsel . . . Of course a trial judge is not required to
remain silent and passive throughout a jury trial. To the contrary,
he has a duty “‘to participate directly in the trial, and to facilitate
its orderly progress and clear the path of petty obstructions. It is his
duty to shorten unimportant preliminaries, and to discourage
dilatory tactics of counsel.” . . . But in performing this duty he
must make every effort to preserve the appearance of strict impar-
tiality. ‘“The opinion of the judge, on account of his position and the
respect and confidence reposed in him and in his learning and
assumed impartiality, is likely to have great weight with the jury,
and such fact of necessity requires impartial conduct on his part
. . . “[Tyhe judge is a figure of overpowering influence, whose every
change in facial expression is noted, and whose every word is
received attentively and acted upon with alacrity and without ques-
tion.” [Citations omitted.]
Id. at 297.
App. 34
First, the most questionable instances occurred out
of the presence of the jury,®® and the challenged actions
59[t might have been more troublesome had the following ex-
changes occurred in front of the jury:
MR. HIRSCHHORN: I have another case that is a more recent
case with respect to perjury. It is the Lasater case. It’s an Eighth
Circuit case which says the false declarations in question must tend
to influence, mislead or hamper the Grand Jury investigation.
THE COURT: Mr. Hirschhorn, this is not the first hearing we
have had. We have had three other hearings. I urged you all of tre
time to give me the cases upon which you rely so I can make an in-
vestigation. You spring a thing like this on me at the last moment.
The motion is denied.
At two o’clock, start putting on your case.
MR. HIRSCHHORN: If I might, Judge, with all due respect—
THE COURT: With all due respect to this court, it seems to
me that you ought to abide by the rulings of the court and when I
asked you to give me your decisions and your authorities, you ought
to do it. That would really give your client a break because then if
you have a good point, I would have been able to check it.
MR. HIRSCHHORN: Judge, as a practical matter, with all
due respect, there is a tactical decision I have made in this case on
the point I was about to argue. I don’t care to give the government
the benefit of my theory of the defense. I don’t think I’m required to
under the Fifth Amendment. I don’t think I’m required to—
THE COURT: The motion is denied, Mr. Hirschhorn. You will
be here at two o'clock.
Who are you going to cal! as your witnesses?
MR. HIRSCHHORN: Your Honor may I just give the court one
case to read?
(Footnote 59 continued on next page)
App. 35
(Footnote 59 continued)
THE COURT: I’m not going to be able to read it now, Mr.
Hirschhorn. I have to eat. I have to work on the case.
MR. HIRSCHHORN: I’m going to work on the case too. I’m
not going to eat.
THE COURT: Tell me who your first witness is going to be?
MR. HIRSCHHORN: I’m not certain.
THE COURT: You are not going to call any witnesses are you?
MR. HIRSCHHORN: I’m not certain whether I will or not.
THE COURT: Two o'clock.
MR. HIRSCHHORN: If the court please, may I give the case to
your clerk?
THE COURT: Yes. I don’t like to be kidded, Mr. Hirschhorn. I
didn’t believe you were going to put on your witnesses in the first
place. You put down Mr. Davis. You are not going to call him.
MR. HIRSCHHORN: He’s been subpoenaed, Your Honor.
THE COURT: The court will be in recess until 2:00 p.m.
Tr. 123-25 (emphasis added). Davis, as noted earlier, did testify for
the defense.
This colloquy took place after the jury retired:
MR. HIRSCHHORN: Your Honor, I have a couple of matters
in anticipation of an adverse verdict. First, I respectfully request
the maximum time allowable within which to file a motion for new
trial and renew motions under 29(c).
THE COURT: She will be in jail anyway. It wouldn’t make any
difference. You can have as much time as you want.
(Footnote 59 continued on next page)
App. 36
before the jury, viewed as a whole, simply do not
amount to intervention which could have led the jury to
a predisposition of guilt by improperly confusing the
(Footnote 59 continued)
MR. HIRSCHHORN: The second issue, Judge, in the event
there is a guilty verdict, will the court remand her at that time?
THE COURT: I think so.
MR. HIRSCHHORN: Well, there is no risk of flight here.
THE COURT: I don’t know whether there is or not. What does
the government say? I think there is.
MR. HIRSCHHORN: I might say, Judge, it will be the second
time in six years of my Federal criminal cases I have had a defen-
dant remanded pending a presentence.
THE COURT: Mr. Hirschhorn, you’re not running this court.
MR. HIRSCHHORN: I know.
THE COURT: I just want to let you know that.
MR. HIRSCHHORN: Im well aware of that.
THE COURT: Apparently you have been trying to all of the
time.
MR. HIRSCHHORN: Well, I am well aware of that. That’s
why I asked the government first. In fact, I told the government you
would probably remand her. But I would like to have a hearing on
the issue of whether remand is really necessary.
THE COURT: We will have it in the next few days. I will order
the defendant taken into custody right now pending the return of
the verdict. I don’t want you to start trying to push me around. I
don’t like that, Mr. Hirschhorn.
Tr. 222-24 (emphasis added).
App. 37
functions of judge and prosecutor. United States v.
Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1223-24.%
“The following are typical examples.
(1) When defense counsel asked for a short recess to discuss a
stipulation (at that time the parties were awaiting the arrival of
government witnesses), the Court stated:
Remember | asked you to do that in advance of the trial.
There are twelve people here waiting. We are going to take
a recess. This is the last time we are going to do it.
Tr. 20.
(2) When defense counsel asked for Jencks material, the court
stated, ““You were supposed to be here at seven o’clock this morning
and pick that up.” Tr. 57. Apparently the Court was unaware that
counsel had arranged to meet and exchange this material at a more
ordinary hour the day before, at which time some documents had
inadvertently been omitted.
(3) This exchange occurred during the examination of Mr.
Gross of the Florida Bar:
Q You said it is not unusual to get hundreds of these com-
plaints?
A_ I get hundreds of complaints.
Q From clients who think it is unfair that lawyers—
A That’s right.
Q Who handle their cases on a contingency basis and wind up
getting as much or more than they do?
A_ Well, I don’t know.
THE COURT: How is that going to prove or disprove any issue
in this case? What is the relevancy of that?
(Footnote 60 continued on next page)
App. 38
Second, the Court instructed the jury that (i) it was not
to assume from his questioning of a witness that he had
any opinion on the matter to which the questions
relateu; (1i) it was not to draw any inference against the
side to whom an admonition may have been addressed;
(iii) it should disregard any opinion of his as to the facts;
and (iv) it was the sole judge of Davis’ credibility despite
the court’s remarks aimed at putting a stop to
repetitious testimony by Davis.*! Third, defense counsel
(Footnote 60 continued)
MR. HIRSCHHORN: I didn’t hear the government object.
THE COURT: That doesn’t give you the privilege of asking
irrelevant questions.
MR. HIRSCHHORN: I have a theory in the case. I believe it is
relevant.
THE COURT: Tell me the theory of the case.
MR. HIRSCHHORN: Judge, I believe that the government —
the jury is entitled to know, this is not an isolated incident involv-
ing one particular lawyer.
THE COURT: That doesn’t make any difference. That has ab-
solutely no relevancy on whether this woman committed perjury or
not. This is what we are here to determine, whether she was asked
certain questions and whether she wilfully told falsehoods. That is
the issue in this case. It is not the question of whether the lawyers or
doctors overcharged or whether they engaged in ambulance chasing
or anything else. The question here is whether this woman commit-
ted perjury.
Tr. 68-69.
®1\Candelaria-Gonzalez is silent as to whether such curative in-
structions were given. For a case where the giving of instructions
was a factor in finding no prejudice, see Duran v. United States, 9
Cir., 1969, 413 F.2d 596, 600.
App. 39
conceded at oral argument that the Judge’s behavior did
not prevent him from conducting the defense as he or-
dinarily would have. Fourth, the defense was not the
sole target of the Judge’s dissatisfaction; the Court
demonstrated some pique toward the government as
well. See United States v. Bridges, 5 Cir., 1977, 551 F.2d
651; Duran v. United States, 9 Cir., 1969, 413 F.2d 596,
600. Fifth, and most significant, the acquittal of Abrams
on Count I further negates any claim that the jury was
affected by the Judge’s allegedly biased attitude. United
States v. Bridges, supra.
[15] While we do not condone a Trial Judge’s dis-
paragement of the advocates appearing before him, in
the final analysis, the question whether prejudicial trial
court conduct reaches constitutional magnitude is a
matter of degree. In light of all the factors enumerated
above, we do not believe that, standing alone, the
court’s handling of the trial so prejudiced the defense in
the eyes of the jury as to warrant reversal on Fifth or
Sixth Amendment grounds.
Ill. Failure To Grant Mistrial
[16] The government called as a witness Sgt. Paul
Janowski who had assisted in executing the search
warrant of Davis’ office. When asked by whom he was
employed, Janowski responded, ‘‘Dade County
Organized Crime Bureau.’’ Defense counsel im-
mediately objected and moved for a mistrial, stating
that the answer was prejudicial. The motion was sum-
marily denied.
82See note 6, supra
App. 40
Abrams urges that this answer improperly permit-
ted the jury to infer that she was in some way linked to
organized crime or the Mafia, resulting in prejudice that
requires reversal. Alternatively, appellant contends that
the trial court’s conduct, taken together with the denial
of the mistrial motion, should result in reversal as in
Candelaria-Gonzalez, supra.®* We disagree.
Defense counsel conceded at oral argument before
us that Janowski in fact worked for the Dade County
Organized Crime Bureau. The answer was therefore
truthful. Appellant also concedes that it is customary to
have witnesses state where they are employed. In addi-
tion, we are compelled to ask one question: if the answer
had in fact infected the jury in the manner suggested,
why would it have acquitted Abrams on Count I?
Moreover, the jury was instructed more than once that
the sole issue before it was whether Abrams deliberately
lied to the grand jury and that nothing she did in Davis’
office by way of over- or undercharging a client was rele-
vant. Another factor negating likely prejudice is the
jury’s possession during its deliberation of all Abrams’
grand jury testimony in which there was not one shred of
evidence linking Abrams or the Davis office to the Mafia
or organized crime. The possibility that this one isolated
answer — given in the context of the whole trial where
there was not another word to show any connection to
the syndicate — could cause a reasonable juror to jump
to the conclusion that Abrams had any such connection
is farfetched. We refuse to credit jurors with such active
imaginations and so little common sense.
See section II.
App. 41
The Trial Judge did not abuse his discretion in
denying the motion for a mistrial and the record, taken
as a whole, fails to demonstrate that Abrams was denied
a fair and impartial trial.
The conviction and sentence on Count II is
affirmed. The conviction on Count III is reversed and a
judgment of acquittal is to be entered on that count.
AFFIRMED IN PART and REVERSED IN PART.
APPENDIX
JULY 26, 1976 GRAND JURY TESTIMONY
OF ANITA ABRAMS SET FORTH IN
COUNT II OF THE INDICTMENT
Q.1 The message, according to the notation, says
‘Anita space Eva Henry costs space $231.50 space wants
breakdown,” and gives the case number.
Now, after you received this telephone message, did
you obtain a breakdown of these costs?
A.l Yes, I did.
Q.2 Where did you get that from?
A.2 From our cost sheet and the cards that the
accountant would have.
Q.3 Now, what has been marked as page two of
this item, which is a letter dated April 1, 1974, do you
recognize that?
A.3 Yes, I do.
Q.4 Do your initials appear as the typist on this?
A.4 Yes.
Q.5 Attached to that is a breakdown of the costs
on Eva Henry, is that correct?
A.5 Yes.
Q.6 Now, on this charge sheet, on Eva Henry, as
attached to this letter to the Florida Bar list is, first of
all, well it lists a number of minor charges such as $3 for
accident report, $6 Westchester General Hospital
medical records, Jackson Memorial Hospital medical
records, I believe that’s a total of $14 right there.
Then there’s also a charge here for $35 for
photographs.
Now, this request came in and this letter was sent
out on April 1, 1974.
Do you recognize this copy of a bill which appeared
in the Eva Henry file which is page number three of that
exhibit which is a bill for film?
A.6 Yes, I do.
Q.7 Dated April 2, 1974.
Do you recognize that?
A.7 Yes, I do.
App. 43
Q.8 Do you recall the circumstances under which
that bill was obtained?
A.8 I know that the investigator, Dave Hallen,
would take photographs and bill us for that.
Q.9 After the case was closed?
A.9 Well, sometimes a bill is not submitted until
after the case is closed.
Q.10 But this is not a bill from Mr. Hallen.
This is a bill for film.
A.10 He would have paid that bill himself.
Q.11 He wouldn’t have paid it until like a year af-
ter the case was closed?
A.1l No.
What I’m saying is he would pay it out of his own
pocket and collect it from the office.
Q.12 When would he pay it?
A.12 When he gets it.
Q.13 Why he would be getting a bill for film on the
Eva Henry case the day after the letter from the Florida
Bar comes in asking for a breakdown on costs?
A.13_ I wouldn’t know what he would do.
App. 44
All I know is that sometimes, before the case is —
he would pay a bill before and submit it to us after.
Q.14 Now, this amount that you have here, $35 for
photographs, which, apparently, is based on a bill for
film and a copy of a cover envelope from the developing
company also dated April 2, 1974, now these two
amounts, which constitute the bill for $35 on
photographs, where you would have gotten the bill for
film or a bill for photographs prior to receiving these two
items?
A.14 From ave Hallen.
* * * ” * *
Q.15 Isn’t it true, Miss Abrams, that after you
received a letter from the Florida Bar or a note from the
Florida Bar asking for a breakdown of costs, that these
items, the bill for film and the bill for photographs, were
obtained the day after so that you would have something
in your file to justify that cost?
A.15 Not to my knowledge.
Q.16 All right.
You said you did type up this letter to the Florida
Bar, right?
A.16 Yes, I did.
Q.17 You did type up this charge sheet on Eva
Henry?
A.17 Yes, I did.
Q.18 Where did you get the figures from this that
appear on the charge sheet?
A.18 From what I have on my own charge sheets
on what was on the charge cards.
Q.19 You didn’t use the journal entries, then?
A.19 Not for the charge cards.
Q.20 No.
I didn’t ask for the charge cards.
I asked for this letter.
I asked, what records did you use to prepare this
charge sheet which was submitted to the Florida Bar on
Eva Henry?
A.20 Well, I would get it from a charge sheet, like
the one that’s here on Valdez, and if there was a charge
card that the accountant would have.
Q.21 Now, listed on this charge sheet of Eva
Henry is a charge of $107.50 for investigation in
photography.
Now, where would you have gotten that amount
from?
App. 46
A.21 From Dave Hallen.
Q.22 Okay.
You didn’t get it from Dave Hallen when the
Florida Bar asked for a breakdown, did you?
A.22 Probably did.
I don’t recall exactly when I got it from him.
Q.23 Your case was closed by then, right?
A.23 I don’t remember exactly when it was closed
and when there was a letter from the Florida Bar.
Q.24 This charge — closing statement that you
referred to before has a listed cost on here of $231.50 and
part of that cost is, supposedly, made up by this charge
of oo Hallen for a hundred and seven dollars, is that
right?
A.24 Yes.
Q.25 Now, when you prepared this, which was
prepared prior to the time that Miss Henry made her re-
quest to the Florida Bar, where did you get the figure of
a hundred and seven dollars from for investigative
services?
A.25 Dave Hallen.
App. 47
. Q.26 .. . Now this thing on Yva Henry here, on
what has been marked as Government’s Exhibit No. 9,
which, first of all, contains a message of a phone call to
you that we’ve gone over before, saying “Anita, Yva
Henry, costs, $231.50, want breakdown,” gives the case
number is there a little notation off to the side here say-
ing, “Photographs, ten at $3.50, $35 AR” which I assume
is accident report, “$3, WR,” which I assume is
Westchester report, “$6, JMH,” which I assume is
Jackson Memorial Hospital, “$5.”
Giving us a total of $49.
Then underneath that is another entry for $75
giving us a total entry of $124.
Then underneath that, Miss Abrams, is another en-
try wherein you put down the amount of costs, $231.50
and you subtract that amount you have up here, $124 to
arrive at another figure.
Could you please tell me what you were doing
there?
A.26 It looks like I was subtracting $124 from
$231.50.
Q.27 Why would you be doing that?
You testified, when you made up the amount of
costs, you would just go to these various places and get
all the costs and add them up and arrive at a cost.
Why would you be subtracting $124 from what the
total cost is listed on the sheet?
App. 48
Why wouldn’t you be adding up all the costs?
A.27 Well, I don’t remember.
I don’t know what I was doing.
I can’t remember what I was doing there.
I can see I was subtracting that but I don’t know
I can’t remember what I was doing.
Q.28 You can’t explain this?
A.28 I know I did subtract it.
Q.29 You're the bookkeeper.
Can you think of any reason you would be doing it
that way?
A.29 I really don’t remember.
I know I was subtracting it but—
* * * * ” *
Q.30 (By Ms. Lyons) So you’re saying Mr. Hallen
brought this bill into your office; is that right?
A.30 I think he did.
App. 49
Q.31 Now, this is a bill for services dated May 17,
1973.
Now it’s listed in the name of Worldwide Detective
Agency.
Who would the check have been made to?
A.31 Dave Hallen.
Q.32 Were all bills from Worldwide Detective
Agency paid to Dave Hallen directly?
A.32 Yes.
Q.33 (By Ms. Lyons) Miss Abrams, when you got
this request from the Florida Bar for a breakdown on the
Yva Henry case, isn’t it true that you went back through
your books to try and find the check that had been writ-
ten to someone in an amount you could fill in the blanks
on this and thus justify the cost of $131.50?
A.33 No, I did not.
* x * * * *
Q.34 When you figured out the cost, how did you
figure out this entry, or whatever it is, in this book, or in
this book, that $107.50 of that was attributable to in-
vestigation and Yva Henry when it doesn’t say $107.50 is
for Dave Hallen?
A.34 Because his sheet would have it.
App. 50
Dave Hallen has always — almost always supplies
bills for his services and he would have cases on that
sheet. .
I would post it accordingly as such.
Q.35 Post it where?
A.35 On the chart sheet.
Q.36 So you’re saying that you prepared this
amount for the Florida Bar based upon your charge
sheet in the Yva Henry case?
A.36 - Yes.
Q.37 Why wouldn’t you have these bills in your
file until April 2, 1974 and why wouldn’t the cost be in-
curred until April 2, 1974 if his investigation was
allegedly done in May of 1973?
Didn’t you direct to have these photographs
prepared at that time when this inquiry from the Florida
Bar come about?
A.37 I didn’t.
I never directed Dave Hallen to do anything, the at-
torneys would.
Q.38 Did the attorney do that in this case?
A.38 Not to my knowledge, no.
App. 51
Q.39 Didn’t these bills just appear in the file after
that call from the Florida Bar?
A.39 I know that the bills were Dave Hallen’s.
He had them.
I never paid them directly.
He may have requested copies.
Q.40 Where did this come from?
A.40 It would come from him.
Q.41 In April of 1974, the day after the request
from the Florida Bar?
A.41 Well, I don’t know where we got them or
when he got them but he may have asked for copies of
the bills.
He may not have kept them.
He may have requested copies of the bills the—
Q.42 You said he submitted the bills to you and
that you based your payments to him on bills he submit-
ted to you.
Why would he have been requesting copies of bills
from you?
A.42 Not from me, from the photography
company.
App. 52
Q.43 Why would it be in your file?
A.43 He may have been asked to produce the bills.
Q.44 By who?
A.44_ By the attorney.
Q.45 What attorney?
A.45 I don’t know who worked on the file or gave
instructions on it.
Q.46 Mr. Davis is the one signing the letter to the
Florida Bar with the breakdown of costs?
A.46 Yes.
Q.47 This breakdown of costs was prepared by
you, is that correct?
A.47 Yes.
Q.48 And you said that those costs all came from
the cost statement that you had prepared as this case
went along?
A.48 That’s right.
Q.49 All right.
This breakdown of costs to the Florida Bar, then,
you deny was based on these photographic bills which
did not come into your office until April of 1974?
App. 53
A.49 I don’t understand.
What’s the question.
Q.50 You’re saying that the breakdown to the
Florida Bar was based purely on your cost statement?
A.50 Yes.
Q.51 And you said that you recorded costs on your
cost statement as they were incurred?
A.51 Yes.
Q.52 Therefore the cost statement would not con-
tain any bills such as these which were not submitted
into your office until April 2, 1974.
A.52 What I’m saying is that Mr. Hallen may
have paid them and we repaid him and he may have re-
quested copies of the bills because we didn’t have those
to substantiate his payment.
The payment that he received.
He may have got it after.
I don’t know.
I don’t remember the exact circumstances.
@.53 You do not know the circumstances under
which this photographic bill, dated April 2, 1974, and
this envelope containing negatives of photographs dated
April 2, 1974, and contained in the Yva Henry file, you
App. 54
do not know the circumstances under which these items
were contained?
A.53 No.
I do not.
Q.54 Also the bill for the conference with Dr. Fox,
two conferences with Dr. Fox in April of 1973 and in
June of 1973, do you also deny that you know the cir-
cumstances under which this particular bill was
prepared?
A.54 I do.
Q.55 Also this bill from Worldwide Detective
Agency dated May 17, 1973, in the amount of $107.50.
Do you know the circumstances under which this
bill was prepared.
A.55 I know that bill was prepared by the
investigator and it was paid to him.
Q.56 When?
A.56 I don’t know.
Q.57 Would that bill have been submitted on/or
about May 17, 1973?
A.57 It’s possible but I cannot say for sure.
Q.58 Would it have been submitted prior to the
time that this amount was deducted from the client’s
settlement payment?
App. 55
A.58 Ido not remember when it was submitted.
I know it was submitted and paid but J cannot
remember when or what day or what.
Q.59 Would you have charged the client for this
amount if you did not have a bill on it?
A.59 No.
Q.60 You’re saying this bill was submitted to your
office sometiine prior to the settlement in the Yva Henry
case?
A.60 Yeah.
App. 56
APPENDIX B
INDICTMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NO. 76-394-Cr-CA
18 USC 1623
$10,000 - 5 years
[FILED Aug 20 1976]
UNITED STATES OF AMERICA
v.
ANITA ABRAMS
The Grand Jury charges that:
COUNT I
1. On or about May 21, 1976, at Miami, Dade
County, in the Southern District of Florida, the defen-
dant,
ANITA ABRAMS,
while under oath as a witness before Federal Grand Jury
Number 76-2(MIA) knowingly did make a false material
declaration, that is to say:
2. At the time and place aforesaid, the Federal
Grand Jury was conducting an investigation into
App. 57
various allegations stemming from insurance claims
filed by the law offices of James A. Davis, II, on behalf of
persons involved in vehicular accidents who had
received medical treatment from Dr. M.S. Fox and/or
Westchester Hospital.
3. It was a matter material to said investigation to
determine from these accident victims how they had
been referred to James A. Davis, II, Dr. M.S. Fox and
Westchester Hospital.
4. It was also a matter material to said investiga-
tion to determine if any attempt had been made to in-
struct the accident victims to conceal or mislead anyone
inquiring about the identity of those making such
referrals.
5. At the time and place aforesaid, Anita Abrams,
while under oath, did knowingly declare before said
Federal Grand Jury with respect to the aforesaid
material matter as follows:
Q. Id like to call your attention to a time
in 1973, I believe it was, probably mid-1973
when Mr. Davis was under pressure from the
local news media and from the State’s Attor-
ney’s Office for a possible investigation into his
practices and ask you whether or not you
received any instructions at that time to con-
tact former clients of Mr. Davis’?
A. I don’t recall what year it was that he
had us call the client’s in and talk to them.
App. 58
I don’t recall what year it was or exactly
what it was that was said.
Q. When he gave you these instructions,
what was the gist of what he told you to do?
A. I think it was something like to be
careful about the, you know, about what they
say to anyone, something along those lines.
I can’t remember exactly what it was.
It was something to do with that effect
* * * *
Q. Were you told to instruct them as to
what they should say as to how they were
referred to Mr. Davis’ office?
A. No. I wasn’t told this by Mr. Davis.
Who were you told this by?
(No response.)
Who were you told this by?
> © > ©
I wasn’t told.
Q. You were given instructions by Mr.
Davis but that’s not what you were told?
A. That’s not what I was told, no.
App. 59
Q. You were told to tell the clients that
they didn’t remember how they happened to
choose Mr. Davis as an attorney?
A. No.
I never said that.
Q. Were you told to say that?
A. No.
Q. Were you told to tell the clients that a
friend brought them to the office?
A. No.
Q. Were you told to tell the clients that
they don’t remember how they happened to
choose Dr. Fox?
A. No.
I never said that.
Q. Were you told to tell them a friend
referred them to Dr. Fox?
A. No.
I was never told that.
I never said that to a client.
Q. So what, exactly did you say to the
client?
App. 60
A. Don’t make a statement like that, you
know, not to do this or about Dr. Fox or
anything like that, who brought them in or who
referred them but I do remember something
like they should be careful about what they say
to people.
Q. What people?
A. Anybody who questions them about
their case because it may be harmful to their
case...
* * *
6. The aforesaid testimony of Anita Abrams, as
she then and there well knew and believed, was false in
that, on or about September, 1973, Anita Abrams was
present at a meeting called by James A. Davis, II, in
which he instructed office personnel to tell clients that if
they were asked by investigators how they had been
referred to him or Dr. M.S. Fox that they were to say
that a friend sent them; all in violation of Title 18,
United States Code, Section 1623.
COUNT I
1. On or about July 26, 1976, at Miami, Dade
County, in the Southern District of Florida, the defen-
dant,
ANITA ABRAMS,
while under oath as a witness before Federal Grand Jury
Number 76-2(MIA) knowingly did make a false material
declaration, that is to say:
App. 61
2. At the time and place aforesaid the Federal
Grand Jury was conducting an investigation into
various allegations stemming from insurance claims
filed by the law offices of James A. Davis, Il. These
claims for damages were made on behalf of people in-
volved in vehicular accidents who were represented by
the Davis law firm. Settlements of accident claims
would be negotiated by personnel at Davis’ office and in-
surance drafts would be issued jointly to the client and
James A. Davis, II. Payment would be made by Davis’
office to the accident victim based on the amount of set-
tlement after deducting attorney’s fees, medical ex-
penses and miscellaneous costs.
3. It was a matter material to said investigation to
determine whether the expenses and costs deducted
were actually incurred.
4. At the time and place aforesaid, Anita Abrams,
while under oath, did knowingly declare before said
Federal Grand Jury with respect to the aforesaid
material matter, as follows:
Q. The message, according to the nota-
tion, says ““Anita space Eva Henry costs space
$231.50 space wants breakdown,” and gives the
case number.
Now, after you received this telephone
message, did you obtain a breakdown of these
costs?
A. Yes, I did.
Q. Where did you get that from?
App. 62
A. From our cost sheet and the cards that
the accountant would have.
Q. Now, what has been marked as page
two of this item, which is a letter dated April 1,
1974, do you recognize that?
A. Yes, I do.
Q. Do your initials appear as the typist
on this?
A. Yes.
Q. Attached to that is a breakdown of the
costs on Eva Henry, is that correct?
A. Yes.
Q. Now, on this charge sheet, on Eva
Henry, as attached to this letter to the Florida
Bar list is, first of all, well it lists a number of
minor charges such as $3 for accident report, $6
Westchester General Hospital medical records,
Jackson Memorial Hospital medical records, I
believe that’s a total of $14 right there.
Then there’s also a charge here for $35 for
photographs.
. Now, this request came in and this letter
was sent out on April 1, 1974.
Do you recognize this copy of a bill which
appeared in the Eva Henry file which is page
App. 63
number three of that exhibit which is a bill for
film?
A. Yes, I do.
Q. Dated April 2, 1974.
Do you recognize that?
A. Yes, I do.
Q. - Do you recall the circumstances under
which that bill was obtained?
A. I know that the investigator, Dave
Hallen, would take photographs and bill us for
that. |
Q. After the case was closed?
A. Well, sometimes a bill is not submit-
ted until after the case is closed.
Q. But this is not a bill from Mr. Hallen.
This is a bill for film.
A. He would have paid that bill himself.
Q. He wouldn’t have paid it until like a
year after the case was closed?
A. No.
App. 64
What I’m saying is he would pay it out of
his own pocket and collect it from the office.
Q. When would he pay it?
A. When he gets it.
Q. Why he would be getting a bill for film
on the Eva Henry case the day after the letter
from the Florida Bar comes in asking for a
breakdown on costs?
A. I wouldn’t know what he would do.
All I know is that sometimes, before the
case is — he would pay a bill before and submit
it to us after.
Q. Now, this amount that you have here,
$35 for photographs, which, apparently, is
based on a bill for film and a copy of a cover en-
velope from the developing company also dated
April 2, 1974, now these two amounts, which
constitute the bill for $35 on photographs,
where you would have gotten the bill for film or
a bill for photographs prior to receiving these
two items?
A. From Dave Hallen...
* * * *
Q. Isn’t it true, Miss Abrams, that after
you received a letter from the Florida Bar or a
note from the Florida Bar asking for a
App. 65
breakdown of costs, that these items, the bill
for film and the bill for photographs, were ob-
tained the day after so that you would have
something in your file to justify that cost?
A. Not to my knowledge.
Q. All right.
You said you did type up this letter to the
Florida Bar, right?
A. Yes, I did.
Q. You did type up this charge sheet on
Eva Henry?
A. Yes, I did.
Q. Where did you get the figures from
this that appear on the charge sheet?
A. From what I have on my own charge
sheets on what was on the charge cards.
Q. You didn’t use the journal entries,
then?
A. Not for the charge cards.
Q. No.
I didn’t ask for the charge cards.
I asked for this letter.
App. 66
I asked, what records did you use to
prepare this charge sheet which was submitted
to the Florida Bar on Eva Henry?
A. Well, I would get it from a charge
sheet, like the one that’s here on Valdez, and if
there was a charge card that the accountant
would have...
+ + *&
Q. Now, listed on this charge sheet of
Eva Henry is a charge of $107.50 for investiga-
tion in photography.
Now, where would you have gotten that
amount from?
A. From Dave Hallen.
Q. Okay.
You didn’t get it from Dave Hallen when
the Florida Bar asked for a breakdown, did
you?
A. Probably did.
I don’t recall exactly when I got it from
him.
Q. Your case was closed by then, right?
A. I don’t remember exactly when it was
closed and when there was a letter from the
Florida Bar.
App. 67
Q. This charge — closing statement that
you referred to before has a listed cost on here
of $231.50 and part of that cost is, supposedly,
made up by this charge of Mr. Hallen for a
hundred and seven dollars, is that right?
A. Yes.
Q. Now, when you prepared this, which
was prepared prior to the time that Miss Henry
made her request to the Florida Bar, where did
you get the figure of a hundred and seven
dollars from for investigative services?
A. Dave Hallen...
* * * *
Q. Now this thing on Yva Henry
here, on what has been marked as Govern-
ment’s Exhibit No. 9, which, first of all, con-
tains a message of a phone call to you that
we've gone over before, saying, “Anita, Yva
Henry, costs, $231.50, want breakdown,” gives
the case number, is there a little notation off to
the side here saying, “Photographs, ten at
$3.50, $35 AR” which I assume is accident
report, ‘‘$3, WR,’’ which I assume is
Westchester report, “$6, JMH,” which I
assume is Jackson Memorial Hospital, “$5.”
Giving us a total of $49.
Then underneath that is another entry for
$75 giving us a total entry of $124.
App. 68
Then underneath that, Miss Abrams, is
another entry wherein you put down the
amount of costs, $231.50 and you subtract that
amount you have up here, $124 to arrive at
another figure.
Could you please tell me what you were
doing there?
A. It looks like I was subtracting $124
from $231.50.
Q. Why would you be doing that?
You testified, when you made up the
amount of costs, you would just go to these
various places and get all the costs and add
them up and arrive at a cost.
Why would you be subtracting $124 from
what the total cost is listed on the sheet?
Why wouldn’t you be adding up all the
costs?
A. Well, I don’t -emember.
I don’t know what I was doing.
I can’t remember what I was doing there.
I can see I was subtracting that but I don’t
know why.
I can’t remember what I was doing.
App. 69
Q. You can’t explain this?
A. I know I did subtract it.
Q. You're the bookkeeper.
Can you think of any reason you would be
doing it that way?
A. I really don’t remember.
I know I was subtracting it but—.. .
* * * *
Q. (Bv Ms. Lyons) So you’re saying Mr.
Hallen brought this bill into your office; is that
right?
A. I think he did...
* * * *
Q. Now, this is a bill for services dated
May 17, 1973.
Now it’s listed in the name of Worldwide
Detective Agency.
Who would the check have been made to?
A. Dave Hallen.
Q. Were all bills from Worldwide Detec-
tive Agency paid to Dave Hallen directly?
App. 70
* * * *
Q. (By Ms. Lyons) Miss Abrams, when
you got this request from the Florida Bar for a
breakdown on the Yva Henry case, isn’t it true
that you went back through your books to try
and find the check that had been written to
someone in an amount you could fill in the
blanks on this and thus justify the cost of
$131.50?
A. No, I did not...
* * * *
Q. When you figured out the cost, how
did you figure out this entry, or whatever it is,
in this book, or in this book, that $107.50 of
that was attributable to investigation and Yva
Henry when it doesn’t say $107.50 is for Dave
Hallen?
A. Because his sheet would have it.
Dave Hallen has always — almost always
supplies bills for his services and he would have
cases on that sheet.
I would post it accordingly as such.
Q. Post it where?
A. On the chart sheet.
App. 71
Q. So you’re saying that you prepared
this amount for the Florida Bar based upon
your charge sheet in the Yva Henry case?
- Wee +s
* « * *
Q. Why wouldn’t you have these bills in
your file until April 2, 1974 and why wouldn’t
the cost be incurred until April 2, 1974 if his in-
vestigation was allegedly done in May of 1973?
Didn’t you direct to have these
photographs prepared at that time when this
inquiry from the Florida Bar come about?
A. I didn’t.
I never directed Dave Hallen to do
anything, the attorneys would.
Q. Did the attorney do that in this case?
A. Not to my knowledge, no.
Q. Didn’t these bills just appear in the
file after that call from the Florida Bar?
A. I know that the bills were Dave
Hallen’s.
He had them.
I never paid them directly.
App. 72
He may have requested copies.
Q. Where did this come from?
A. It would come from him.
Q. In April of 1974, the day after the re-
quest from the Florida Bar?
A. Well, I don’t know where we got them
or when he got them but he may have asked for
copies of the bills.
He may not have kept them.
He may have requested copies of the bills
the—
Q. You said he submitted the bills to you
and that you based your payments to him on
bills he submitted to you.
Why would he have been requesting copies
of bills from you?
A. Not from me, from the photography
company.
Q. Why would it be in your file?
A. He may have been asked to produce
the bills.
Q. By who?
App. 73
A. By the attorney.
Q. What attorney?
A. I don’t know who worked on the file or
gave instructions on it.
Q. Mr. Davis is the one signing the letter
to the Florida Bar with the breakdown of costs?
A. Yes.
Q. This breakdown of costs was prepared
by you, is that correct?
A. Yes.
Q. And you said that those costs all came
from the cost statement that you had prepared
as this case went along?
A. That’s right.
Q. All right.
This breakdown of costs to the Florida
Bar, then, you deny was based on these
photographic bills which did not come into
your office until April of 1974?
A. I don’t understand.
What’s the question.
App. 74
Q. You’re saying that the breakdown to
the Florida Bar was based purely on your cost
statement?
A. Yes.
Q. And you said that you recorded costs
on your cost statement as they were incurred?
A. Yes.
Q. Therefore the cost statement would
not contain any bills such as thes: which were
not submitted into your office until April 2,
1974.
A. What I’m saying is that Mr. Hallen
may have paid them and we repaid him and he
may have requested copies of the bills because
we didn’t have those to substantiate his pay-
ment.
The payment that he received.
He may have got it after.
I don’t know.
I don’t remember the exact circumstances.
Q. You do not know the circumstances
under which this photographic bill, dated April
2, 1974, and this envelope containing negatives
of photographs dated April 2, 1974, and con-
tained in the Yva Henry file, you do not know
App. 75
the circumstances under which these items
were contained?
A. No.
I do not.
Q. Also the bill for the conference with
Dr. Fox, two conferences with Dr. Fox in April
of 1973 and in June of 1973, do you also deny
that you know the circumstances under which
this particular bill was prepared?
A. Ido.
Q. Also this bill from Worldwide Detec-
tive Agency dated May 17, 1973, in the amount
of $107.50. ©
Do you know the circumstances under
which this bill was prepared.
A. I know that bill was prepared by the
investigator and it was paid to him.
Q. When?
A. I don’t know.
Q. Would that bill have been submitted
on/or about May 17, 1973?
A. It’s possible but I cannot say for sure.
App. 76
Q. Would it have been submitted prior to
the time that this amount was deducted from
the client’s settlement payment?
A. Ido not remember when it was sub-
mitted.
I know it was submitted and paid but I
cannot remember when or what day or what.
Q. Would you have charged the client for
this amount if you did not have a bill on it?
A. No.
Q. You’re saying this bill was submitted
to your office sometime prior to the settlement
in the Yva Henry case?
A. Yeah...
* * * *
5. The aforesaid testimony of Anita
Abrams, as she then and there well knew and
believed, was false in that, on or about April 2,
1974, Anita Abrams did knowingly prepare an
itemized list of costs for the Florida Bar which
did not accurately reflect the costs incurred; all
in violation of Title 18, United States Code,
Section 1623.
App. 77
COUNT Ill
The Grand Jury realleges each of the allegations
contained in paragraphs 1, 2 and 3 of Count II of the in-
dictment and further alleges:
4. At the time and place aforesaid,
ANITA ABRAMS,
while under oath did knowingly declare before said
Federal Grand Jury with respect to the aforesaid
material matter as follows:
Q. Now, looking at Grand Jury Exhibit
No. 2, do you recognize the handwriting?
A. Yes.
Whose handwriting is that?
Mine.
All that handwriting?
Yes.
You have depositions listed there.
Yes.
That’s your handwriting, also?
> © > © > © > O
Yes.
App. 78
Q. In cases when you charge for a deposi-
tion like that did the particular client have a
deposition taken?
A. Yes.
Q. And they would be — would you have
somebody, a court reporter there to take down
what they said?
A. I wouldn’t be aware — I wouldn’t be
there when the court reporter was there.
Q. But there would be a cost?
A. Yes.
Q. Who would give you that cost?
How would you know what to charge for a
particular item like that?
I would get a bill.
From whom?
> Oo >
From the court reporter.
Q. Then you'd take that bill.
On the bill would it say the deposition or
the particular work that was done on that?
A. Yes.
App. 79
5. The aforesaid testimony of Anita Abrams as she
then and there well knew and believed, was false in that
she had prepared the charge sheet in case number 5469
on Eduardo Valdez which reflects that check number
1897 dated May 19, 1975 in the amount of $80.00 was
paid to Jack Besoner and Associates for court reporter
costs which she knew did not accurately reflect the
costs; all in violation of Title 18, United States Code,
Section 1623.
A TRUE BILL
/s/ Thomas E. Thornton
FOREMAN
ROBERT W. RUST
UNITED STATES ATTORNEY
By/s/ Marsha L. Lyons
MARSHA L. LYONS
Assistant United States Attorney
App. 80
APPENDIX C
Constitutional and Statutory Provisions Involved.
1. Constitutional:
AMENDMENT V
UNITED STATES CONSTITUTION
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy or life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
Title 18 U.S.C. §1623 provides in pertinent part:
(a) Whoever under oath (or in any declaration,
certificate, verification, or statement under penalty of
perjury as permitted under section 1746 of title 28,
United States Code) in any proceeding before or an-
cillary to any court or grand jury of the United States
knowingly makes any false material declaration or
makes or uses any other information, including any
book, paper, document, record, recording, or other
material, knowing the same to contain any false
material declaration, shall be fined not more than
$10,000 or imprisoned not more than five years, or both.
App. 81
(b) This section is applicable whether the conduct
occurred within or without the United States.
(c) An indictment or information for violation of
this section alleging that, in any proceedings before or
ancillary to any court or grand jury of the United States,
the defendant under oath has knowingly made two or
more declarations, which are inconsistent to the degree
that one of them is necessarily false, need not specify
which declaration is false if—
(1) each declaration was material to the point
in question, and
(2) each declaration was made within the
period of the statute of limitations for the of-
fense charged under this section.
In any prosecution under this section, the falsity of a
declaration set forth in the indictment or information
shall be established sufficient for conviction by proof
that the defendant while under oath made irrecon-
cilably contradictory declarations material to the point
in question in any proceeding before or ancillary to any
court or grand jury. It shall be a defense to an indict-
ment or information made pursuant to the first sentence
of this subsection that the defendant at the time he
made each declaration believed the declaration was
true.
App. 82
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.