Petition — Rubin v. United States
Supreme Court brief1978
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"Supreme Court y
; » U.S,
FILED
IN THE DEC 2 1977 —
Supreme Court of the United ites 296 ecg
October Term, 1977
NO. pes-smp----- ,
T7=792
BERNARD G. RUBIN,
~——
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court ef Appeals for the Fifth Circuit.
RICHARD L. ROSENFIELD,
1888 Century Park East, Suite 815,
Los Angeles, Calif. 90067,
(213) 277-2411,
Attorney for Petitioner.
FLAX AND ROSENFIELD,
Of Counsel.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
SUBJECT INDEX
Page
I ka actarceesipliceiianlsiecanslibilibianandtiins 1
ELEN Se NORE Re nT a a ERT 1
I a nalaciialaine 2
RE EE RRR east te Oe ae Le 2
i aes 17
The Court of Appeals Erred in Concluding That
the Prosecutor’s Misuse of the Prior Invocation
of the Fifth Amendment Before the Grand Jury
by Important Defense Witnesses Was Not Error
of Constitutional Dimension ............................ 17
A. The Court Below Correctly Concluded
That the Cross-Examination and Com-
ment Upon the Prior Exercise of the Fifth
Amendment Was Error .......................-..-- 17
B. The Court Applied an Erroneous Stand-
ard by Concluding That the Error Was
Merely Evidentiary and Did Not Rise to
Constitutional Proportion -..............0........ 24
The Court Erred in Denying Standing to
Petitioner Who Is Asserting His Own
Constitutional Right as Well as Those
of His Witnesses ........... ndaddienmibaeiiniteasiias 29
The Petitioner Has Standing to Raise the
Witness’s Constitutional Rights in This
a sauheelonlakdaiaseliteteitieaiasitlasiblamnatigmsananiaicies 34
The Court of Appeals Misapprehended
the Prejudice Suffered by Petitioner .... 38
ii.
II Page
The Decision Below Squarely Conflicts With the
Decisions of the United States Court of Appeals
for the Ninth Circuit With Respect to Failure
to Record Grand Jury Proceedings Despite
Timely Preindictment Request ....................----
I SSeS pen eS a a
INDEX TO APPENDICES
Appendix A. Opinion of the United States, Court
of Appeals, Fifth Circuit .................... App. p.
Appendix B. Petition for Rehearing Denied With
Suggestion for Rehearing En Banc ....................
Appendix C. Stay of Issuance of Mandate Pending
Petition for Writ of Certiorari Is Denied ............
Appendix D. Letter to Honorable C. Clyde Atkins,
Judge, United States District Court, Dated De-
Ne a sciaecicciciineiincnnsennasiennancctinieicietiniiianainien
Appendix E. Letter to Honorable C. Clyde Atkins,
Judge, United States District Court, Dated Feb-
St SP ~ waecrisatdsciantastaisinsiasbestimanesnimnseiatnicichdins
41
46
45
46
48
ill.
TABLE OF AUTHORITIES CITED
Cases Page
Alderman v. United States, 394 U.S. 165 (1969) .... 37
Ashe v. Swenson, 397 U.S. 436 (1970) ...00022.0220..... 39
Barrows v. Jackson, 346 U.S. 249 (1953) ........... 35
Bivens v. Six Unknown Federal Agents, 403 U.S.
ai ela acai a ala 37
Bowman v. United States, 350 F.2d 913 (9th Cir.
nn Epa nt Enmore cn Ronee Dor RM ee 38
Boyd v. United States, 116 U.S. 630 —..00000000.. 33
Branzburg v. Hayes, 408 U.S. 665 (1972) ............ 31
Bray v. Paton, 429 F.2d 500 (4th Cir. 1970) ....28, 29
Burgett v. Texas, 389 U.S. 109 (1967) ............ 25
California v. Green, 399 U.S. 149 (1970) ........ 25
Cary v. Westinghouse Electric Corporation, 178
N.Y. 2d 846, aff'd, 190 N.Y. 2d 1103 (1958) .. 34
Chambers v. Mississippi, 410 U.S. 284 (1973) .... 27
Chapman v. California, 386 U.S. 18 (1967) ....
REDE ME Ao TNE OS TE A APTA eT eT Pee 2, 16, 24
Couch v. United States, 409 U.S. 322 (1973) .. 19
Doyle v. Ohio, 426 U.S. 610 (1976) ....15, 22, 23
haeailaeiiteie dees adeieibaileiiaeabedassiaiianiaimapiaiaasdiiaals 25, 30, 31, 33
Dutton v. Evans, 400 U.S. 74 (1970) —20000000.... 25
Gardner v. Broderick, 392 U.S. 273 (1968) ..19, 32
Garner v. United States, 424 U.S. 648, 96 S.Ct.
UI on BN a 19, 20
Garrity v. State of New Jersey, 385 U.S. 493
RPUEETEy sasestiednceiinsidlaibiriniasasclebadanidaiiicieainbaddinaiidiiaienie 32
iv.
Page
Griffin v. State of California, 380 U.S. 609 (1965)
sescriainaiglaiaiaticiiataasislestinaians teatasadecsataesaainne nnn 31
Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 33
Grunewald v. United States, 353 U.S. 391 (1975)
se\cuibaiptinaditdleinasdcasid aaa i5, 21, 22, 30, 31
Hale v. Henkel, 201 U.S. 43 (1906) ................-... 19
Hoffman v. United States, 341 U.S. 479, 71 S.Ct.
CA6 CIBBR) nccwenunescteeeeee 20
Imbler v. Pachtman, 424 U.S. 409 (1976) ............ 36
Investigation Before April 1975 Grand Jury, In re,
403 F.Supp. 1176 (D.C. Cir. 1975), vacated 500
F.26 GO (DE. Cit, BRO) cmc 20
Jones v. United States, 362 U.S. 257 (1960) ........ 37
Kastigar v. United States, 406 U.S. 441 (1972) .. 18
Kotteakos v. United States, 328 U.S. 750 (1946)
ccsantininpisinhdiniiaiae 2, 16, 24, 38
Lefkowitz v. Turley, 414 U.S. 70 (1973) .~........... 32
Malloy v. Hogan, 378 U.S. 1 (1964) —....0000000002.... 31
Marchetti v. United States, 390 U.S. 39 (1968) .. 19
McCarthy v. Arndstein, 266 U.S. 34 (1924) _...... 32
Miranda v. Arizona, 384 U.S. 436 (1966) ..23, 25, 33
Murphy v. Waterfront Commission, 378 U.S. 52
CFS) ccccessnessnienepiecniteisetilbamesiidiinsltamsanialaaanaiaaneaa 33
Oliver, In re, 333 U.S. 257 (1948) ..........cccceccccccevees 27
Schlinksy v. United States, 379 F.2d 735 (ist Cir.
BOE) ncovcensacecisendnnstionannmnncuiiemanaiaaaaan 4!
Singleton v. Wolf, 428 U.S. 106 (1976) ..35, 36, 37
——__ — er -
v.
Page
Slochower v. Board of Higher Education, 350 U.S.
EEE 19, 32
Spevack v. Klein, 385 U.S. 511 (1967) ois 31, 32, 33
Uniform Sanitation Men v. New York, 392 USS.
RE EI 32
United States v. Aloisio, 440 F.2d 705 (7th Cir.
I ati hetticcueiines EERE SE Ae On ee Oe 44
United States v. Basurto, 497 F.2d 781 (9th Cir
EE SE SSE a 45
United States v. Battisti, 486 F.2d 961 (6th Cir
a cinsnnieemnnneiniell 44
United States v. Chanen, 549 F.2d 1306 (9th Cir
ES LSS i 45
United States v. Cianchetti, 315 F.2d 584 (2d Cir
SEE Se 44
United States v. Cramer, 447 F.2d 210 (2d Cir
IRE AEE 44
United States v. DeMarco, 401 F.Supp. 505 (C.D.
SENN sutinsssipsnsssernsacnsunensenscurenecsermcerensessrcenees 45
United States v. Fairchild, 505 F.2d 1378 (Sth Cir.
EEE 21
United States v. Gallo, 394 F.Supp. 310 (D.Conn
EEE SE ESOT 45
United States v. Glasser, 443 F.2d 994 (2d Cir.
EN 15, 16, 25, 26
United States v. Gramolini, 301 F.Supp. 31 (D.C.
EE 44
United States v. Grunewald, 233 F.2d 556, rev. 353
TE 33
vi.
Page
United States v. Hale, 422 U.S. 171 (1975) ..15, 22
United States v. John, 408 F.2d 1134 (8th Cir.
STD cccinisitatncistinsaaviniiansilanntiininmnnate 44
United States v. King, 478 F.2d 494 (9th Cir
I: cl ecaasheamenrnsemnemenaianniientien 43
United States v. Messitte, 324 F.Supp. 334 (S.D.
BE, TD. scniscotccsccssdicarnticiniciintepatimennininnmntiinens: 45
United States v. Morrison, 535 F.2d 223 (3rd Cir.
| RIN ramen tcc a emer ab breve reine nna roanie erro 28
United States v. Natale, 526 F.2d 1160 (2d Cir.
GESTED -ccishamsosninsteesbiadeuiiiilansicidaaaielbinsdiiiad iideiatalidiaanaaéiiit 15, 16
United States v. Nixon, 418 U.S. 683 (1974) ...... 27
United States v. Peden, 472 F.2d 483 (2d Cir.
DETTE scinsicescissccsnuiinasieeieiaatistaicesnienialidabiacieiduiiniddaniaimeasiiadh 44, 45
United States v. Price, 474 F.2d 1223 (1973) ....
salibihceshabdaenielateadshapaiiaiapieiiaapaiiaaniatea AEA SE
United States v. Smith, 478 F.2d 976 (D.C. Cir.
TE cissccicasisieisnssuslansucttsliasieasdditiabassaacdameaaseimamaielaiaitie 29
United States v. Thomas, 488 F.2d 334 (6th Cir
TUTTI. sxccerbindveninsscccteisnsediitiajagiliiadaidiada lnmiatibeelaa mains 28
United States v. Thoresen, 428 F.2d 654 (1970) .... 42
United States v. Tomaiolo, 249 F.2d 683 (2d Cir.
TUTTE: ssncnncecsinn~ «ttniiniiianaiainatansibiinasinaslatstgniadnegsiiaian 15, 16
United States v. Williams, 464 F.2d 927 (8th Cir.
PIP TTIET : ssccoceonsnaisenasisdtinnsintaesinbadisampisiieabinaiimieididcabnailal 15, 16
Washington v. Texas, 388 U.S. 14 (1967) ........ 27, 28
Webb v. Texas, 409 U.S. 95 (1972) .......0000000222.... 27
Wood v. Georgia, 370 U.S. 374 (1962) ~............... 45
> «ees
Vii.
Miscellaneous Page
American Bar Association Project on Standards for
Criminal Justice, Standards Relating to the Prose-
Gutiom Famctiom, Gee. BSE). ......-<ccceccececccscoscecseses 45
Rules
Federal Rules of Criminal Procedure, Rule 6(d) .... 44
Statutes
United States Code, Title 18, Sec. 664 000000000... 2
United States Code, Title 18, Sec. 1962 ............ 4, 9
United States Code, Title 18, Sec. 1962(c) ...... 2
United States Code, Title 18, Sec. 6002 ........... 18
United States Code, Title 18, Sec. 6003 2.000.000. 18
United States Code, Title 26, Sec. 7206(1) ...... 2
United States Cole, Title 28, Sec. 1254(1) ...... 1
United States Code, Title 29, Sec. 436 ........... 2
United States Code, Titie 29, Sec. 439 0000000. 2
United States Code, Title 29, Sec. 501(c) ........ 2
United States Constitution, Fourth Amendment .... 37
United States Constitution, Fifth Amendment ..9, 11
ers 12, 13, 14, 17, 18, 19, 20, 21, 24, 27, 28
nencndiiiindiidieaial 29, 30, 31, 32, 33, 34, 35, 38
United States Constitution, Sixth Amendment ______. 27
Textbooks
Louis, “Constitutional Rights and the Misuse of
Standing,” 14 Stanford Law Review (i962), p.
ITE sisipssieniedinadicinnipeaielanasnivnbaaaiiuasiiamimciaiaiadinltiddaatiactieds 34
8 Moore’s Federal Practice (Cipes Ed., 1969),
Para. 6.02(2), p. 611
Viii.
Page IN THE
Note, “Standing to Assert Constitutional Jus Tertii,” °
"88 Herverd Law Review (1968), pp. 324, 425 .. 34 Supreme Court of the United States
Scott, “Standing in the Supreme Court—A Func-
tional Analysis,’ 86 Harvard Law Review October Term, 1977
(1973), P. GAS ...........-c.-eccenecccssncesnocessnsnenneessenes 34 I sa Are
Settler, “Standing to Assert Constitutional Jus Tertii |
in the Supreme Court,” 71 Yale Law Journal BERNARD G. RUBIN,
Oe RIES. RAE enesenre 34 Sateen
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.
Opinion Below.
The opinion of the Court of Appeals is reported
at 559 F.2d 975 (Sth Cir. 9/22/77). A copy of
the opinion is attached in our Appendix (App. A).
On November 2, 1977, the court denied petitioner’s
Petition for Rehearing with Suggestion for Rehearing
En Banc (App. B). The court stayed the issuance
of its mandate, pending the timely filing of a Petition
for Writ of Certiorari (App. C).
Jurisdiction.
The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. §1254(1).
—
Questions Presented.
1. Whether the impeachment of defense witnesses
by eliciting and commenting upon their prior invocation
of the privilege against self-incrimination before a fed-
eral grand jury is error of constitutional magnitude,
or is simply a violation of evidentiary canons, subject
only to the lesser harmless error standard of Kotteakos
v. United States, 328 U.S. 750, 764-75 (1946), rather
than the constitutional harmless error standard of Chap-
man v. California, 386 U.S. 18 (1967).
2. Whether the Indictment should have been dis-
missed for failure to record the grand jury proceedings,
despite timely pre-indictment request.
Statement.
On October 22, 1975, after a two-weck jury trial
in the United States District Court for the Southern
District of Florida (Honorable Peter T. Fay, presiding),
petitioner was convicted on 103 counts of a 105 count
Indictment charging embezzlement (29 U.S.C. §501(c);
18 U.S.C. §664), racketeering (18 U.S.C. §1962(c)),
false statements on tax returns (26 U.S.C. $7206(1))
and failure to keep labor union records (29 U.S.C.
§$$436 and 439).
At the time of the alleged offenses,’ petitioner was
an official of the Laborer’s International Union of
North America (“LIU”). He was President of the
Southeast Florida Laborer’s District Council, President
'We do not expect the government to dispute our contention
that on October 3, 1977, petitioner resigned all his union
and trust fund positions and that in modification of his bond
pending the resolution of this Petition consented to the imposi-
tion of proscriptions restraining him from exercise of control
over any labor union or trust fund affairs or receipt of any
monies or property from any union or trust fund.
=
of Local 666 of the Concrete Products and Material
Yard Workers, Business Manager of LIU Local 478,
and Special International Representative (R. 1-2).?
Counts 1 through 86 alleged separate instances of
embezzlement from the labor organizations and trust
funds. The gist of these offenses was that petitioner
had engaged in multiple duplicate billings to the respec-
tive entity for expenses incurred. The government's
theory was that petitioner embezzled the monies of
the respective labor organizations or employee welfare
benefit plan by causing the entity to pay for alleged
item(s) of expenses knowing that the expense had
been paid or would be paid by another labor organiza-
tion (and/or employee welfare benefit plan).
Correlatively, Counts 97-99 alleged false subscribing
of federal income tax returns for the calendar years
1972, 1973 and 1974, respectively (R. 127-129). The
~ government’s theory was that the excess reimbursement
received from the multiple billings was not disclosed
on petitioner’s federal income tax returns.
Counts 87 and 88 alleged that during the approxi-
mate four year period covered by the Indictment, peti-
tioner embezzled $178,701.00 and $150,330.00 from
Local 666 and the District Council, respectively, by
causing the respective labor organization “to pay him
unauthorized salary increases.” (R. 123).*
*“R” is a reference to the Clerk’s Record. Reference solely
to number will hereinafter be used as a reference to the Re-
porter’s Transcript.
’The government’s theory on these counts was that petitioner
had engaged in criminal conduct by failing to follow the pro-
cedures prescribed by the local union and district council con-
stitutions for raising salaries. Petitioner contended that his sal-
aries were raised pursuant to these constitutions and that in
any event, the responsible officers and delegates had properly
(This footnote is continued on next page)
—4—
Counts 89 through 96 alleged that appellant failed
to keep adequate union records (R. 124-126).
Counts 100-105 alleged that appellant conducted
the activities of the respective labor unions and trust
funds through a pattern of racketeering activity in
violation of 18 U.S.C. §1962 (R. 130-141).*
With respect to the “multiple” billing counts (Counts
| through 86) petitioner did not challenge the govern-
ment’s contention that the various vouchers, airline
tickets, charge card expenditures, etc., admitted into
evidence by the government constitutec requests for
overlapping expenses.
On the “multiple billing” trust fund counts, the gov-
ernment introduced evidence that on the various trust
funds each trustee would receive advances to attend
educational conferences occurring one or two times
per year (R.T. 287, 305-306, 402). In each instance,
petitioner was voted the monies that he received (R.
298, 407).
The management trustees related that they had been
advised by both the trust fund attorney and the trust
administrator that if they did not spend the full allotted
amount, they did not have to return the excess but
should report any excess on their income tax returns
(296, 300, 419, 582-583, 621-622).°
delegated authority to him to set all saleries. On appeal, peti-
tioner argued that the jury was erroneously instructed inter
alia on civil fiduciary standards which effectuated strict liability
in this criminal case. The court of appeals invoked the con-
current sentence doctrine to refuse to review petitioner’s conten-
tions (/d. at 990, f.n. 14, App. A).
‘The “racketeering activity” alleged was the various acts
of embezziement charged in Counts 1 through 89 (R. 130-141).
‘Petitioner was also informed by the trust fund’s attorney
that any excess could be spent for legitimate union purposes
(1220, 1215).
aalinen
The trusts’ administrator, who served all the respec-
tive trust funds, issued the advances to petitioner with
the knowledge that petitioner was receiving multiple
advances (394-395).
In his defense, petitioner conceded the existence of
his practice of multiple reimbursement. Petitioner de-
tailed without contradiction that he would invariably
cash the reimbursement checks; the proceeds would
be received in cash and would not be deposited to
any savings account, checking account or investment
(1176-1179). Additionally, petitioner would cash most
of his personal salary checks received from Local 478,
which proceeds were used for his personal living ex-
penses (1179).°
Petitioner explained that he spent the cash generated
by the multiple reimbursements for union-oriented ac-
tivities, primarily organizing expense.’ As_ petitioner
explained (1175-1176):
Ever since late '68, 69 when our organizations
reached financial strength, I accumulated this cash.
I always accumulated a cash fund and was always
snending cash.
. * * &
*Petitioner argued that this supported his defense that he
used the monies obtained from multiple reimbursements for
union-oriented purposes. He contended that if, indeed, he consid-
ered the proceeds from the union-expense money as his own,
he would not have needed to cash the salary checks for his
own personal expenses.
*Petitioner described examples: He would give cash to the
organizers. If the union wanted to organize a subcontractor,
in order to induce people into the union, the organizers would
go into the shop and pick out one, two or three ple
they considered to be leaders in that subcontractor’s organization
and seek to enlist their help. These “independent contractors”
would seek remuneration for their services in enlisting people
to join the union. The organizer would pay $20-$30 for each
person signed up (1171-1172).
onions
I was on salary from two different organizations
which is proper in the labor movement. I saw
no impropriety with drawing expenses from each
one of the organizations on which I was on salary.
Each time I drew expenses from the organizations,
each organization was getting a full measure of
service.
I was representing each organization and drew
reimbursed expenses. The excess of the reimbursed
expenses was converted into cash and this cash
was used to organize the unorganized.
To my belief, there was never a cent of cash
received from these reimbursed expenses that was
not spent for the benefit of the Union with which
I am involved.
Petitioner described how cash was paid out during
strikes because the striking employees could not receive
unemployment benefits and had no other sources of
income (1174).
Petitioner also testified that he paid large amounts
of cash to entertain contractors (1182). Because he
was dealing with executives of multi-million dollar cor-
porations, he tried to deal with them on their own
level (1189). Similarly, by cultivating friendships with
other union officials and entertaining them, he could
enlist their aid when it would be beneficial to the
union (1183-1186).
With respect to the trust fund conferences, petitioner
believed that they were one of the greatest encouragers
of peaceful, harmonious labor-management relations.
Whenever he received excess cash reimbursement, the
cash went into his cash organization fund (1207-1211).
=
Petitioner believed that this provided the ultimate benefit
to the member.*®
Prior to the first conference attended by petitioner,
the attorney for the trust funds advised him that it
would be proper to receive advances from each fund
and that if there were excess reimbursement, the money
could properly be spent on legitimate union purposes
(1220, 1215). Petitioner was aware that the attorney,
and indeed the administrator, were also voted advances
from each fund on which petitioner was a trustee
(1227, 1229).
It was stipulated that petitioner disclosed all amounts
he received from salary and reimbursed expenses from
each labor organization on the LM-2 reports filed with
the Department of Labor (1232-1233).
Several individuals corroborated petitioner’s expendi-
ture of cash for union-oriented purposes. We argue
infra that the government committed constitutional
error in cross-examining District Council organizers
Kenton L. Wells and Jack Gordon. For purposes of
cohesiveness, the summary of the testimony of those
witnesses .is found in a latter portion of this statement
of fact (infra at pp. 11-13).
Larry Feder, an organizer for Local 666, estimated
that since 1971, petitioner had provided him with
$35,000 to $40,000 in cash for organizational expendi-
tures (1582-1583). Feder described these expenditures
which included large cash outlays during a three month
8Petitioner described, for example, how a $4,000 cash expend-
iture for organizing at the Aventura Project, a high rise project
in Miami, Florida, resulted in the acquisition of approximately
40 members. As a result, the trust fund would receive $104,000
per year in contributions in return for the $4,000 spent to
acquire the new members (1213-1214).
a
strike at the Carriage House Hotel in Miami Beach
(1564-1584). Feder also observed petitioner entertain-
ing with cash and carrying large amounts of cash.
When Feder questioned petitioner as to the wisdom
of carrying around large amounts of money, petitioner
told him that during the course of his daily routine,
which included entertaining and organizing, it was nec-
essary to have large amounts of cash (1571-1572).°
Several laborers corroborated significantly lesser ex-
penditures of cash. One Lucius Smith not only observed
petitioner spend cash on séveral occasions, but also
personally received $2,400 which he then used to enlist
others to help him in organizing (1628-1632). Jake
Wright, a Local 478 business agent and District Council
organizer, testified that in addition to the cash monies
he had observed petitioner spend on many occasions,
he had received $2,000 in cash to pay for organizing.
He paid this cash to one Ulysses C. Edwards (1677-
1680). Edwards corroborated Wright’s testimony
(1698-1700).
Jerry Schwartz, Executive Vice President of the
County National Bank of North Miami, where petitioner
maintained both personal and union accounts, recalled
that he had often observed petitioner present checks
for cashing. When Schwartz asked petitioner to deposit
the checks rather than cash them, petitioner told him
that he needed the cash (1654-1655). Schwartz also
*Feder testified that this conversation occurred at Capra’s
Restaurant in Miami and that petitioner paid cash for enter-
taining that evening (1572). Vincent Bruno, the owner of
Capra’s, called as a government witness, testified that on many
occasions petitioner would come to the restaurant with union
people and pay the bill with cash rather than charging it to the
union (824-826). These bills would range from $70.00 to
$150.00 (828).
—
recalled that in 1971 he was contemplating constructing
a building project as a non-union project and when
he spoke to petitioner, he was advised that petitioner's
union was establishing a fund for organizing and would
strike the project (1656).
Petitioner’s expenditures of cash for entertaining was
also corroborated by Joseph Fanti, a contractor, and
Ralph DeMeo, a contractor and President of the Florida
Home Builders Association. Each testified that during
the many years they had known him, petitioner had
entertained them on many occasions; each had seen
petitioner expend cash for this purpose (1549-1557;
1706-1715).
On appeal, petitioner urged inter alia that the trial
court committed constitutional and evidentiary error
by allowing the prosecutor to elicit the prior invocation
of the Fifth Amendment by two witnesses and that
the prosecutor egregiously compounded the error by
his closing argument.”
Two extremely important defense witnesses were
unior. organizers Kenton Wells and Jack Gordon. The
government’s cross-examination and closing argument
1In addition to the arguments presented here, petitioner
also argued that the conviction should be reversed because
of (1) the exclusion of highly important evidence due to an
incorrect view that the evidence constituted hearsay; (2) the
deprivation of a fair trial by the improper use and subsequent
jury instruction on codified federal civil law on fiduciary re-
sponsibility and exculpatory resolutions; (3) improper convic-
tion of “racketeering” under 18 U.S.C. §1962; (4) the im-
propriety of the order of forfeiture of petitioner’s union and
trust fund positions; (5) the failure to allow an adversary
hearing into allegations that the government’s case was the
product of illegal activity; and (6) the attendance of unauthor-
ized persons before the grand jury. The court rejected the
latter four contentions; the court determined to apply the concur-
rent sentence doctrine to foreclose consideration of the former
two issues.
—_—
impugning the credibility of these two witnesses form
the basis of our argument of error.
Weils, a District Council organizer and co-Mayor
of the City of Opa-Locka, Florida, testified that as
an organizer, he would attempt to solicit men to join
the organization (1504).
With respect to the organizing of one specified con-
struction project, petitioner provided him with at least
$5,000 in cash (1509-1510). For other union purposes,
petitioner had provided him with approximately $7,000
over the previous five years (1510-1513). Additionally,
he observed petitioner spend large amounts of cash
on entertaining for union purposes (1506, 1516-1517).
Wells explained that in organizing a plant, it is necessary
to pick out the key people to be influential in bringing
other people into the mémbership. Sometimes it is
necessary to compensate these people for their work
(1513). Most often these people are paid by cash
(1513-1514); it is also necessary to pay their bills
while they are working (1514). Wells also explained
that he paid cash provided by petitioner for work
lists, addresses and telephone numbers (1514).
Jack Gordon, an organizer for Local 666 and the
District Council, testified that over the past four years
he had incurred entertainment expenses of approxi-
mately $150.00 per month at the Jockey Club and
that petitioner gave him the required cash to pay
these bills. Additionally, petitioner would reimburse
him in cash for out-of-pocket expenses of approximately
$1,500.00 per year (1616). Thus, over the past four
=
years petitioner had provided him with approximately
$13,000.00 in cash (1617)."
Prior to the cross-examination of Wells, defense coun-
sel approached the bench in an effort to avert the prob-
lem (1518-1519):
Mr. Flax [defense counsel]: Your honor, we
have another one of these anticipated problems.
Rather than have the question asked, it is my
understanding that Mr. Wells took the Fifth
Amendment in the grand iury. Am I correct?
Mr. Steinberg [Prosecutor]: That’s correct.
Mr. Flax: I want tc inquire just how we are
going to go into it. I think it is highly improper.
I don’t want to just stand up and object. I do
want to try to head it off.
Mr. Steinberg: I intend to go into it. I intend
to ask him if he answered those questions in
any different manner on the previous occasion.
The Court: I will overrule the objection.
Thereafter, the prosecutor commenced his cross-
examination of the witness by eliciting that Wells had
invoked the Fifth Amendment before the federal grand
: 12
jury
“Gordon explained that the reimbursement for out-of-pocket
expenses of approximately $1,500 per year was incurred for
entertainment of contractors, meals, hotel rooms and football
tickets.
12The relevant portions of the examination were as follows
(1519-1524):
{1519}
Mr. Steinberg: Q. Mr. Wells, I notice that Mr. Flax asked
you your occupation.
A. Yes, sir.
(This footnote is continued on next page)
=
Similarly, over objection, the prosecutor elicited from
Jack Gordon that he had previously refused to testify
(1622-1623).
The guise under which the prosecutor elicited the
invocation of the Fifth Amendment by these witnesses
was that the refusal to testify at the grand jury was
Q. Have you ever given a different response on a previous
occasion?
A. Not thai I know of as far as my occupation. No I
don’t.
x - *
Q. Did you testify in the Federal Grand Jury on April
29, 1976, Sir?
A. This year?
Q. That’s correct.
A. No, Sir, I didn’t.
Q. You did not?
A. Icame before the Federal Grand Jury.
Q. Were you asked this question:
“Q. What is your occupation?”
A. I was asked that question.
. * -
[1521]
Q. After you gave your address were you asked your oc-
cupation?
A. Yes.
Q. Did you give the same response that you gave Mr.
Flax?
A. No, Sir. I took the Fifth Amendment.
Mr. Flax: May we approach the bench, Your Honor?
The following colloquy occurred at the bench (1521-1522):
Mr. Rosenfield: Your Honor, I would suggest that because
the man answered the question before the grand jury
that he refused to answer on the ground that it might
tend to incriminate him, this would be improper and highly
prejudicial. There is nothing inconsistent about a witness
trying to invoke the Fifth Amendment in front of a grand
jury and testifying here. There is nothing inconsistent about
that at all. This kind of questioning is improper.
The Court: I have overruled your objection. You can cer-
tainly bring out that he refused to testify before the grand
jury. I think that is proper cross-examination.
With the Court’s express sanction, the prosecutor then con-
tinued to elicit that Wells had never told the government about
the cash received from petitioner (1523-1524).
ee ee a te
— =
inconsistent with testifying as a defense witness at
trial. Then, in closing argument the prosecutor argued
(1911):
Jack Gordon, Mr. Jack Gordon—you saw him
sitting up there. He is another one of the fat
cats. He is living off the sweat of these laborers.
You heard now much money he was getting, and
when he was given an opportunity to testify at
the grand jury, what did he do? He refused tu
testify about the same matters. Why?
If his testimony would have exculpated Mr.
Rubin, it would have meant that we would not
be here today. Why would he not have offered
it? Why would he not have told us?
He never told the government about any cash
pool. He had an opportunity and he submitted
bills for organizing.
Addressing himself to Kenton Wells, the prosecutor
argued to the jury (1914):
Now, Mr. Kenton Wells,
* * *
What did he do when he got to the grand
jury and was given an opportunity to testify about
Mr. Rubin? If he had something to exculpate
Mr. Rubin, to say Mr. Rubin was a good guy,
he did the right thing, he followed the law, why
did he not say it? Why did he not say it?
Why is he a willing witness now and not a willing
witness then?
Defense Counsel moved for a mistrial based on the
improper comment on the exercise of the Fifth Amend-
ment by these witnesses (1959). The motion was denied
(ibid.).
a
In rebuttal argument the prosecutor reiterated his
same theme (2043-2044).
Now, Mr. Rosenfield also said that they had
witnesses come in here and tell us about this
money and where it went and you cannot disbelieve
them. I would argue with that. This is what a
jury is for, and that is what the Judge will tell
you a jury is for. You are here to judge the
credibility of these witnesses. You use your com-
mon sense. You use every test you use to test
the credibility of your friends, your neighbors,
people you do business with, your insurance
people. Use your common sense.
If you ask a man something last year about
something that happened before that and he refuses
to tell you, he refuses to tell you about that,
why is it changed a year later when he is here
a year later testifying for Mr. Rubin on the witness
stand and all of a sudden he is a volunteer?
Why does it change?
You ask yourself, if you ask a man a question
a year ago and he says, “X,” and then he comes
here to this witness stand under oath and says,
“Y.” you judge for yourself. You are the judge
of the credibility of these witnesses. You do not
have to accept what the Government witnesses
say at face value. You do not have to accept
what the defense witnesses say at face value. You
are the sole judges of the credibility of these
witnesses. I cannot tell you whether they lied
or not. That is not my decision. Mr. Rosenfield
13The defense, however, did not in any manner address
itself in closing argument to the prior invocation of the Fifth
Amendment by the witnesses.
==
cannot tell you that. That is your decision. You
use the facts you have at hand to determine wheth-
er they were credible and if they have a motive,
if they have a motive for testifying.
On appeal, the Fifth Circuit validated petitioner's
claim that the impeachment of these witnesses was
error. The court considered that argument to be a
“most troubling challenge to the validity of the convic-
tion . . .” (559 F.2d at 979, App. A). Drawing
upon the teachings of this Court in Grunewald vy.
United States, 353 U.S. 391 (1975); United States
v. Hale, 422 U.S. 171 (1975) and Doyle v. Ohio,
426 U.S. 610 (1976), the court concluded that the
district court had “violated evidentiary canons by per-
mitting such impeachment.” (559 F.2d at 979, App.
A). The court specifically held (Jd. at 983, App.
A):
A defense witness’s prior refusal to supply
testimony to a grand jury before which he had
a reasonable belief that he might be a defendant
himself has no proper significance as impeachment
evidence. Use of the evidence for that purpose
risks prejudice. Accordingly, we hold that the
government may not attempt to impeach a defense
witness by eliciting such a prior refusal to testify
before a grand jury [Footnote omitted. |
Aligning itself with the Eighth Circuit decision in
United States v. Williams, 464 F.2d 927 (8th Cir.
1972) and ihe Second Circuit decisions in United
States v. Glasser, 443 F.2d 994 (2d Cir. 1971); United
States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957)
and United States v. Natale, 526 F.2d 1160 (2d Cir.
1975), the court nevertheless adopted a perspective
=
not voiced by those other Circuits—by concluding that
the error was not of a constitutional nature, thus allow-
ing the harmfulness to be assessed under the lesser
standard of Kotteakos v. United States, 328 U.S. 750,
764-765 (1946) rather than the stricter standards ap-
plied to constitutional error. Chapman v. California,
386 U.S. 18 (1967).™
In weighing the purported harmfuiness of the im-
peachment, the court apparently carefully avoided opin-
ing upon the result it would reach if it were determined
that the constitutional harmless error standard was
applicable. In applying the less stringent Kotteakos
standard, the court concluded that on balance the error
was probably not sufficiently harmful to require re-
versal. We argue infra that the court applied an erro-
neous standard in assessing the error’s potential harmful-
ness and should have applied the standard applicable
to constitutional violations. Moreover, we urge that
irrespective of the applicable standard, the prejudicial
impact of the prosecutor’s actions require the granting
of the Petition for Writ of Certiorari and reversal
of the Court of Appeals’ decision.
144No other circuit has drawn such a distinction. In United
States vy. Williams, supra, the Court rejected the government’s
contention of harmless error without discussion as to the standard
employed by the court. Similarly, neither Glasser, Tomaiolo
nor Natale focused on this aspect.
=— =
ARGUMENT.
I
THE COURT OF APPEALS ERRED IN CONCLUDING
THAT THE PROSECUTOR’S MISUSE OF THE PRIOR
INVOCATION OF THE FIFTH AMENDMENT BE-
FORE THE GRAND JURY BY IMPORTANT DEFENSE
WITNESSES WAS NOT ERROR OF CONSTITUTION-
AL DIMENSION.
A. The Court Below Correctly Concluded That the
Cross-Examination and Comment Upon the Prior
Exercise of the Fifth A:aendment Was Error.
As a preliminary matter, we present a brief analysis
of the nature of the error which occurred below. We
then turn to a consideration of the proper standard
to be employed in assessing the prejudicial impact.
The error which was permitted by the district court
was not the result of an inadvertent or isolated act
of the federal prosecutor. The defense attempted to
avert the error; indeed, the defense asserted the proper
legal objections prior to the interjection of the impermis-
sible evidence. The prosecutor, with the express sanction
of the court, made a considered judgment not only
to elicit the prior invocation of the Fifth Amendment
by these witnesses, but also to vigorously argue to
the jury the precise inference which the law wisely
condemns. Moreover, the prosecutor’s own determina-
tion of the importance of destroying the credibility
of these particular witnesses is reflected in his statement
to the jury concerning witness Gordon (1911):
If his testimony would have exculpated Mr. Rubin,
it would have meant that we would not be here
today. Why would he not have offered it? Why
would he not have told us? [Emphasis added. ]
= =
In our view, the prosecutor’s vociferous reliance on
these witnesses’ prior invocation of the Fifth Amend-
ment in order to destroy their credibility totally deprived
petitioner of a fair trial.
Proper analysis requires the initial recognition that
the government did not at any time purport to claim
in the courts below that either witness improperly as-
serted his personal privilege against self-incrimination
when he appeared as a witness before the grand jury.
There is no suggestion in this record—nor could there
be—that at the time the witnesses appeared before
the grand jury that their respective assertions of privi-
lege were anything but proper and for their own per-
sonal protection.”” It is an elementary principle of
our jurisprudence that the privilege is purely personal;
it cannot legitimately be asserted to protect or shield
others from inquiry into their affairs. The notion that
the “public has a right to everyone’s evidence,” Kastigar
v. United States, 406 U.S. 441, 443 (1972), is firmly
imbedded.
When the government’s interest in acquiring testi-
mony conflicts with the witness’s privilege against self-
incrimination, the government is entitled to obtain im-
munity for the witness, thus removing the witness’s
fear of self-incrimination and securing the witness’s
testimony. See 18 U.S.C. $§6002, 6003.
The court of appeals reached the same conclusion in ob-
serving (559 F.2d at 982, App. A):
“Insofar as the record reveals, the two witnesses also
could have been justified in the conclusion that they were
being interrogated for the express purpose of supplying
evidence against themselves. They, of course, could invoke
the privilege properly only to avoid incriminating them-
selves: the government has never levied the charge that
either improperly claimed the protection of the fifth amend-
ment.”
— =
Even if the government does not desire to grant
immunity, nevertheless where persons improperly invoke
the Fifth Amendment for protection of others, the
government is still not without remedy. Since the pr‘vi-
lege does not exist to protect others, but exists only
where there is a “ ‘real and appreciable’ and not merely
‘imaginary and unsubstantial’ hazard of self-incrimina-
tion,” Marchetti v. United States, 390 U.S. 39, 48
(1968), the government has the power to seek contempt
sanctions for those who improperly assert the testimonial
privilege. Although the privilege “guarantees the right
to remain silent absent immunity,” Garner v. United
States, 424 U.S. 648, 96 S.Ct. 1178, 1182 (1976),
nevertheless:
[u]nless the government seeks testimony that will
subject its maker to criminal liability, the constitu-
tional right to remain silent absent immunity does
not arise. An individual therefore properly may
be compelled to give testimony, for example, in
a noncriminal investigation of himself. See e.g.
Gardner v. Broderick, 392 U.S. 273, 278 (1968).
Garner, supra. The Fifth Amendment cannot be used
to shield third persons. Couch v. United States, 409
U.S. 322, 328 (1973); Hale v. Henkel, 201 US.
43 (1906). A prospective grand jury witness, who
is unsure of the depth and scope of the grand jury
investigation, has the constitutional prerogative of pro-
tecting himself by assertion of the privilege. “The privi-
lege serves to protect the innocent who otherwise might
be ensnared by ambiguous circumstances,” Slochower
v. Board of Higher Education, 350 U.S. 551, 557-
558 (1956).
When these witnesses appeared before the grand
jury and invoked the Fifth Amendment, if the invoca-
enfin
tion of the privilege was improperly oriented to shield
petitioner rather than for personal protection, the gov-
ernment had the power to compel the testimony—by
attempting to invoke the contempt sanction. As the
Garner court stated (424 U.S. 628, 96 S.Ct. 1178,
n.J1):
As we have noted, the privilege is an exception
to the general principle that the Government has
the right to everyone’s testimony. A corollary to
that principle is that the claim of privilege ordinar-
ily must be presented to a “tribunal” for evalua-
tion at the time disclosures are initially sought.
This early evaluation of claims allows the Govern-
ment to compel evidence if the claim is invalid
or if immunity is granted and therefore assumes
that the government obtains all the information
to which it is entitled.
There was simply no suggestion made to the trial
court that at the time these witnesses invoked their
Fifth Amendment privileges that there was anything
improper about their respective assertions of privilege.
If the government belicved otherwise, the remedy was
to seek the court’s aid to compel answers to specific
questions. See Hoffman v. United States, 341 US.
479, 71 S.Ct. 814 (1951); Cf. In re Investigation
Before April 1975 Grand Jury, 403 F.Supp. 1176
(D.C. Cir. 1975), vacated 500 F.2d 600 (D.C. Cir.
1976).”°
16In In re Investigation, 19 witnesses acting on the advice
of an attorney with potentially conflicting interests invoked the
Fifth Amendment to even innocuous questions, and the district
court disqualified the attorney, requiring separate representation.
The Court of Appeals vacated the disqualification order and
instructed the government to cure any suggestion of impropriety
by challene’"~ any unwarranted claims of privilege.
—
One of the essential vices of the error committed
by the government was its total failure to offer any
evidence that there was anything improper about the
witnesses’ assertion of their privilege. Yet, the only
way in which the argument that the government made
would acquire any probative force whatsoever, would
be if the invocation of the privilege at the grand
jury stage by the witnesses was injustifiable. “[T]o
be admissible, keeping silence must be much more
than ambiguous.” United States v. Fairchild, 505 F.2d
1378, 1383 (Sth Cir. 1975). Moreover, in closing
argument, the prosecutor truly perverted justice when
he invited the jury to join him in speculation as to
why the witnesses would have invoked the Fifth Amend-
ment before the grand jury, then later testify at peti-
tioner’s trial. The prosecutor asked the jury to infer
that they acted to shield petitioner at the grand jury
stage. The record, of course, was totally devoid of
any such evidence, and indeed every permissible infer-
ence is to the contrary.
In Grunewald v. United States, 353 U.S. 391 (1957),
reaching the conclusion that the invocation of the privi-
lege lacked probative value as impeachment of trial
testimony, the Court “emphasized anew that one of
the basic functions of the privilege is to protect inno-
cent men.” (Emphasis in original) 353 U.S. at 421,
and that (id. at 422):
[T |he Fifth Amendment claim was made before
a grand jury where the witness was a compelled
and not a voluntary witness; where he was not
represented by counsel; where he could summon
no witnesses; and where he had no opportunity
to cross-examine witnesses testifying against him.
These factors are crucial in weighing whether a
=— =
plea of the privilege is inconsistent with later
exculpatory testimony on the same questions, for
the nature of the tribunal which subjects the wit-
ness to questioning bears heavily on what infer-
ences can be drawn from a plea of the Fifth
Amendment. [citation omitted|. Innocent men are
more likely to plead the privilege in secret proceed-
ings where they testify without advice of counsel
and without opportunity for cross-examination,
than in open court proceedings, where cross-exami-
nation and judicially supervised procedure provide
safeguards for the establishing of the whole as
against the possibility of merely partial truth.
The Grunewald majority rested the decision on evi-
dentiary grounds. Nevertheless, four members of the
Court would have rested the decision squarely on consti-
tutional grounds (353 U.S. at 425-426).
Then, in United States v. Hale, 422 U.S. 171 (1975),
the Court rejected the government’s contention that
it could permissibly cross-examine a defendant by elicit-
ing his prior silence at the time of arrest. Resolving
the issue on evidentiary grounds, the Court concluded
that “[{i]f the Government fails to establish a threshold
inconsistency between silence . . . and later exculpatory
testimony at trial, proof of silence lacks any significant
probative value and must therefore be excluded.” (Jd.,
at 176).
Finally, only last term, in Doyle v. Ohio, 426 USS.
610, 96 S.Ct. 2240 (1976), the Court reached the
issue left open by Hale and concluded that it was
error of constitutional magnitude to allow a state prose-
cutor to impeach a testifying defendant by inquiry
as to the defendant’s post-arrest silence. The Court
—_ =
recognized that silence in the wake of Miranda warnings
(Miranda v. Arizona, 384 U.S. 436 (1966)) is “in-
solubly ambiguous” (96 S.Ct. at 2244).
The court below properly rejected the government’s
argument that the prosecutor’s cross-examination and
closing argument were permissible. Relying upon this
Court’s teachings as well as the decisions of the Second
and Eighth Circuits, the court recognized the invalidity
of the government’s reasoning (559 F.2d at 983):
The conclusion . . . that a defense witness’s
prior silence before a grand jury and trial testi-
mony exculpating the defendant lack sufficient
inconsistency to justify impeachment use of the
silence is well-founded. Grunewald teaches that
the many factors that may lead an individual
to remain silent before the grand jury imake it
impossible to draw any reasonable inference that
a subsequent protestation of his own innocence
has been fabricated. Assuming a reasonable belief
at the time of the witness’s grand jury appear-
ance that he himself may be a defendant, any
suggestion of inconsistency between his silence
and subsequent testimony exculpatory of someone
else can certainly be no stronger.
In our view, it was no less “fundamentally unfair”
to allow the prosecutor here to benefit from the prior
invocation of the privilege by these witnesses than
in Doyle where this Court recognized the fundamental
unfairness attendant to the inquiry into silence following
Miranda warnings.
There is simply no justification for allowing the
inquiry and argument.sanctioned by the trial court.
This entire area of inquiry and argument was patent
=" va
error striking right to the very essence of petitioner’s
defense at this jury trial. The court in no way inter-
fered with this approach by the government despite
fervent objection. Moreover, no cautionary instruction
was given, nor could one have cured the egregious
error. We turn, then, to a consideration of the standards
to be applied in assessing the harmfulness of the error
which occurred.
B. The Court Applied an Erroneous Standard by Con-
cluding That the Error Was Merely Evidentiary
and Did Not Rise to Constitutional Proportion.
The court of appeals committed serious error in
concluding that a prosecutor may elicit a prior invoca-
tion of the Fifth Amendment before a grand jury
by important defense witnesses, and thereafter comment
upon the exercise of that privilege as indicative of
the defendant’s guilt without running afoul of any
constitutional protection.
The reasoning that constitutional values were not
involved allowed the court to escape the application
of the harmless error standard enunciated by this Court
in Chapman y. California, 386 U.S. 18 (1967), which
would have required the court to conclude that the
error was harmless “beyond a reasonable doubt.” In-
stead, the court below applied the less stringent standard
of Kotteakos v. United States, 328 U.S. 750 (1946)
in attempting to calculate the harmlessness of the error.
This case thus presents to this Court an issue of
critical importance. If, as the court below contends,
there is no constitutional bar to the impeachment use
of protected silence, then there is no bar to the un-
checked proliferation in the state-courts of such im-
wiiiiun
peachment tactics. As this Court noted in Burgett v.
Texas, 389 U.S. 109, 113-114 (1967):
The states are free to provide such procedures
as they choose, including rules of evidence, pro-
vided that none of them infringes a guarantee
in the federal Constitution.
See also, Dutton v. Evans, 400 U.S. 74 (1970); Caii-
fornia v. Green, 399 U.S. 149 (1970).
The danger to the exercise of the privilege against
self-incrimination, if the decision of the court below
is permitted to stand, is best illustrated by the recent
decision in Doyle v. Ohio, supra, in which this Court
concluded that the use of a defendant’s post-arrest
silence to impeach was indeed a constitutional violation
and not merely a breach of evidentiary rules; this
constitutional holding was finally necessitated by the
failure of state courts consistently to exclude such
evidence based on evidentiary canons. The Doyle court
specifically reserved the question of whether constitu-
tional error would obtain upon the use of post-arrest,
post-Miranda warning silenc® to impeach a defense
witness rather than the defendant (426 US. at 6).
The acceptance of the expedient rule adopted below
will thus put this Court’s sub silentio imprimatur on
a practice which would allow state prosecutors to call
all potential detense witnesses before a grand jury,
advise them that they are targets of an investigation,
thus obtaining an invocation of the privilege against
self-incrimination and thereafter proceed, secure in the
realization that if those persons appear as defense wit-
nesses, the prosecutor may permissibly seriously impugn
their credibility by eliciting and commenting upon their
prior invocation of the privilege. Cf. Glasser vy. United
onlin
States, supra. Moreover, federal prosecutors will be
secure in the knowledge that they too may engage
in the condemned practice and will not be reversed
upon appeal unless the defense successfully persuades
the appellate court that the error affected the verdict
under reviewing standards less strict than the applicable
standard for constitutional violations.
In our view, the error of such a practice rises to
constitutional dimensions and is equally repugnant to
constitutional values irrespective of whether the forum
is state or federal. Because of the exceptional impor-
tance of this issue—and the wide-ranging impact which
its resolution will have on the conduct of both state
and federal trials within the Nation—this case presents
a paradigmatic one for granting the Petition for Writ
of Certiorari.
The decision below reflects an ill-advised determina-
tion that requires remedial action by this Court. The
potential for abuse of the rule adopted below is mani-
fest. The court ignored this potential in observing (559
F.2d at 984, n.7):
Beyond the unfairness of exploiting a claim
of the privilege, we cannot conclude that the grand
jury silence of a defense witness is so utterly
lacking in probative value yet highly charged with
prejudicial potential that its use merits universal
constitutional condemnation.
Adherence to notions of fundamental fairness strong-
ly suggests that this is not a proper area to allow
disparate rules throughout the states. Uniform condem-
nation of the practice is constitutionally required.
The error committed below was of far greater import
than a simple violation of evidentiary canons. The
_— =
tactic used by the prosecutor in the instant case is
inextricably intertwined with the right to a fair trial
and right to the unhampered production of witnesses
in one’s defense that is at the very core of the Fifth
and Sixth Amendment guarantees. This Court recently
reaffirmed this primal constitutional value in United
States v. Nixon, 418 U.S. 683, 711 (1974):
The right to the production of all evidence at
a criminal trial similarly has constitutional dimen-
sions. The Sixth Amendment explicitly confers
upon every defendant in a criminal trial the right
“to be confronted by the witnesses against him”
and “to have compulsory process for obtaining wit-
nesses in his favor.” Moreover, the Fifth Amend-
ment also guarantees that no person shall be
deprived of liberty without due process of law.
It is the manifest duty of the court to vindicate
those guarantees and to accomplish that it is essen-
tial that all relevant and admissible evidence be
produced. .
Indeed, so important is the petitioner’s constitutional
right to.freely call witnesses so that live testimony
may be presented on his behalf, that the Court has
stated:
Few rights are more fundamenta! than that of
an accused to present witnesses in his own
defense.
Chambers v. Mississippi, 410 U.S. 284 (1973), citing
Webb v. Texas, 409 U.S. 95, 98 (1972); Washington
v. Texas, 388 U.S. 14, 19 (1967); In re Oliver,
333 U.S. 257 (1948).”
‘TAs explained by the Court in Washington v. Texas (388
U.S. at 19):
(This footnote is continued on next page)
If a witness’s rights can be trampled upon with
impunity, as they were here, the ability of a defendant
to obtain witnesses on his behalf will be necessarily
and seriously impaired, particularly in a case such
as this where the witnesses’ testimony is important
to the defendant and where the witnesses have the
option to testify or to continue to assert their Fifth
Amendment right to remain silent. in such situations,
the power to subpoena witnesses is not sufficient to
ensure the defendant’s ability to present his case. A
defendant is utterly dependent upon the witnesses’ co-
operation in agreeing to testify. Thus, it has been
consistently held that the government may not impair,
directly or indirectly, the willingness of potential witness-
es to freely testify on behalf of the defense. See United
States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973)
(government agent’s threat of prosecution “interfered
with any free and unhampered determination the witness
might have made as to whether to testify and if so,
as to the content of such testimony” and thus required
a new trial); United States v. Morrison, 535 F.2d
223, 228 (3rd Cir. 1976) (prosecutor’s intimidation
in an unnecessary interview “interfered with the volun-
tariness of the [witnesses’] choice [whether or not
to testify] and infringed defendant’s constitutional right
to have [witnesses’] freely given testimony”); Bray
v. Paton, 429 F.2d 500, 501 (4th Cir. 1970) (state’s
The right to offer the testimony of witnesses and to
compel their attendance if necessary is in plain terms
the right to present a defense, the right to present the
defendant’s version of the facts as well as the prosecution’s
to the jury so that it may decide where the truth lies.
Just as an accused has the right to confront the prosecu-
tion’s witnesses for the purpose of challenging their testi-
mony, he has the right to present his own witnesses to
establish the defense. This right is a fundamental element
of due process of law.
——— nets ae eres we = ~~
—- =
arrest and intimidation of defense witness requires a
new trial); United States v. Smith, 478 F.2d 976
(D.C. Cir. 1973) (prosecutor violated Fifth Amend-
ment by warning witness that he might be incriminating
himself; such warning is calculated to intimidate witness
from testifying).
Plainly, witnesses who are aware that their invocation
of the Fifth Amendment before the grand jury will
be publicly revealed and used to discredit them will
be reluctant or unwilling to voluntarily take the witness
stand: why should such witnesses stand and expose
themselves to the public ignominy and threat to their
own livelihood which revelation of their conduct before
the grand jury would surely entail? For these reasons,
the court below seriously erred in analyzing the constitu-
tional problems solely in terms of the witnesses’ right
to remain silent. Violation of the witnesses’ rights to
claim the privilege in secrecy here leads inevitably
to a violation of the petitioner's own constitutional
right—his right to call witnesses on his own behalf
who are not discouraged from testifying by fear of
government action which may cause them to be publicly
discredited and professionally disgraced.
The federal courts cannot shirk from the constitu-
tional condemnation of a practice which so invidiously
infringes upon a basic right.
The Court Erred in Denying Standing to Petitioner Who Is
Asserting His Own Constitutional Right as Well as Those
of His Witnesses.
In order to fully protect constitutional rights, the
petitioner must be allowed to assert his witnesses’ rights
under the circumstances of this case. We commence
with the proposition that the impeached witnesses suf-
=o
fered infringement of their constitutional rights. Use
of a witness’s prior claim of his Fifth Amendment
privilege against self-incrimination to discredit his subse-
quent testimony is surely an error with “grave constitu-
tional overtones.” Grunewald v. United States, 353
U.S. 391, 423 (1957) (invalidating such practice on
non-constitutional grounds); iideed, as Justice Black
staied, concurring in an opinion in which four Justices
joined:
“IT can think of no special circumstances that
would justify use of a constitutional privilege to
discredit or convict a person who asserts it. The
value of constitutional privileges is largely de-
stroyed if the person can be penalized for relying
on them. It seems peculiarly incongruous and inde-
fensible for courts which exist and act only under
the Constitution, to draw_inferences of lack of
honesty from invocation of a privilege deemed
worthy of enshrinement in the Constitution.” 353
USS. at 426.
While the panel below did not directly deal with
the constitutional violation suffered by the witnesses
here, it is noted that use of the witnesses’ constitutionally
protected prior silence would also violate the constitu-
tional principle enunciated in Doyle v. Ohio, supra,
—that it would be “fundamentally unfair and a depriva-
tion of due process” to allow the arrested person’s
silence to be used to impeach an explanation subse-
quently offered at trial, 426 U.S. at 618. The court
concluded (559 F.2d at 984; App. A):
“That same unfairness may be present whenever
the government attempts to exploit a proper invoca-
tion of the privilege. The factors found intolerable
—
in Doyle might be thought to extend to the witness-
es’ silence in the face of grand jury questioning.”
That the “factors found intolerable in Doyle” do
indeed extend to a witness’s silence before the grand
jury, is clear from a review of the principles and
precedents governing Fifth Amendment analysis.
Witnesses testifying before a grand jury are not
only enfitled but are encouraged to rely on the secrecy
of those proceedings. See, e.g., Branzburg v. Hayes,
408 U.S. 665 (1972). Plainly, the witnesses here,
Wells and Gordon, were entitled to the reasonable
expectation that their invocation of the Fifth Amend-
ment before the grand jury would remain secret
—indeed, that it could not be made public even if
they, themselves, were indicted and took the stand
in defense. Grunewald v. United States, 353 USS.
391 (1957). Had these witnesses, at the time of their
grand jury appearances, been forewarned that their
exercise of the right to remain silent would be used
against them—not for any compelling governmental
purpose, nor for any probative evidentiary value,’
but merely for the purpose of impugning their credibil-
ity and damaging their reputations—surely, their right
to assert the privilege would have been rendered “cost-
ly.” See Spevack v. Klein, 385 U.S. 511, 515 (1967).
This Court has repeatedly held that the state may
not unnecessarily exact a price for assertion of the
9719,
“grand privilege,”’’; the prohibited costs have never
18The Panel below explicitly found the disclosure of the
witnesses’ silence has “no proper significance as impeachment
evidence.” (559 F.2d at 983).
See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964); Griffin
v. State of California, 380 U.S. 609 (1965).
been restricted to criminal sanctions. In Spevack v.
KI in, 385 U.S. at 515, the Court noted that:
In [the Fifth Amendment] context, “penalty” is
not restricted to fine or imprisonment. It means
as said in Griffin v. State of California, 380
U.S. 609 . . . the imposition of—any- sanctions
which makes assertion of the Fifth Amendment
privilege “costly.”
Within the context of that case, the Court held
that:
The threat of disbarment and the loss of pyrofes-
sional standing, professional reputation and of live-
lihood, are powerful forms of compulsion to make
a lawyer relinquish the privilege. That threat is
indeed as powerful an instrument of compulsion
as “the use of legal process to force from the
lips of the accused individual the evidence nec-
essary to convict him.” (id.). [Emphasis
added }.”
Nor is the threat of discharge the only “cost” which
can unduly burden the exercise of the Fifth Amendment
privilege. In Lefkowitz v. Turley, 414 U.S. 70 (1973),
the sanction of disqualification from state contracts
was held impermissible. In McCarthy v. Arndstein,
260 U.S. 34 (1924), the state’s valid interest in mar-
shalling and distributing the assets of bankrupts was
held not to prevail over the protection of the privilege.
The constitutional justification for refusing to permit
the government to unnecessarily make “costly” the ex-
20%See also Slochower v. Board of Education, 350 USS.
551 (1956); Garrity v. State of New Jersey, 385 U.S. 493
(1967); Gardner v. Broderick, 392 U.S. 273 (1968); and
Uniform Sanitation Men v. New York, 392 U.S. 280 (1968)
(state may not burden the Fifth Amendment right by threat
of loss of employment).
=_ =
ercise of the Fifth Amendment right, has been framed
in a variety of terms. Doyle v. Ohio, supra, found
it “fundamentally” unfair and a “deprivation of due
process” to extend with one hand the privilege of
silence, while placing, with the other hand, a price
upon that silence (id. at 618). Miranda v. Arizona,
384 U.S. 436 (1966) indicated that the Fifth Amend-
ment demarcated the “right to a private enclave where
{one} may lead a private life” (id. at 460) (quoting
United States v. Grunewald, 233 F.2d 556, 581 (Frank,
J. dissenting, reversed 353 U.S. 391 (1957)).
Whatever terms are used, however, it is clear that
threats that the gevernment will publicly advertise a
witness’s invocaticn of the Fifth Amendment privilege—
and thus damage his credibility and reputation—works
a compulsion against and exacts a heavy penalty for
the assertion of that privilege. In the words of Doyle,
it is “fundamentally unfair” to assure witnesses before
the grand jury that they may avail themselves of the
Fifth Amendment protection in secret and then to
gratuitously publicize that assertion at an open trial.
In the language of Miranda and Griswold, these wit-
nesses had a justifiable and constitutionally protected
expectation that the government would refrain from
needlessly invading the domain of privacy which they
demarcated before the grand jury.
Indeed, just as occurred in Spevack, supra, Wells
and Gordon have been forced to suffer “loss of profes-
sional standing [and] professional reputation” and they
*1See also Boyd v. United States, supra, 116 U.S. at 630;
Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964);
Griswold v. Connecticut, 381 U.S. 479 (1965) noted that
“The Fifth Amendment in its self-incrimination clause enables
the citizen to create his own privacy which government may
not force him to surrender to his detriment.” (id. at 484).
=)
face the very real possibility that their jobs as union
officials will be endangered.”
No justification for imposing this burden on the
exercise of constitutional rights exists; indeed, the pen-
alty was here exacted in a procedure which the court
below found impermissible even from an evidentiary
viewpoint.
The Petitioner Has Standing to Raise the Witness’s
Constitutional Rights in This Case.
Here, despite the plain infringement upon the wit-
nesses’ constitutional rights, the court of appeals held
that no constitutional issue could be raised in this case.
The court justified this conclusion by reference to
the general and oft-repeated “rule” that one person
may not object to the violation of another person’s
rights. This “rule” however, is one which as many
commentators have noted, is riddled with exceptions.
See, Note, “Standing To Assert Constitutional Jus
Tertii,” 88 Harvard Law Review 423, 425 (1968);
Settler, “Standing to Assert Constitutional Jus Tertii
In the Supreme Court,” 71 Yale Law Journal 599
(1962); Scott, “Standing in the Supreme Court—A
Functional Analysis,” 86 Harvard Law Review 645
(1973) and Louis, “Constitutional Rights and the Mis-
use of Standing,” 14 Stanford Law Review 433
(1962).
Indeed, the principle that one has no standing to
vindicate another’s constitutional right is “only a rule
*2Although it appears that this Court itself has never resolved
this issue, lower courts have held that there is no constitutional
right to employment and private employers may therefore dis-
charge employees for exercising Fifth Amendment rights. See,
e.g., Cary v. Westinghouse Electric Corporation, 178 N.Y. 2d
846, affirmed, 190 N.Y. 2d 1103 (1958).
of practice.” Barrows v. Jackson, 346 U.S. 249, 257
(1953) which “like any general rule should not be
applied when its underlying justifications are absent.”
Singleton v. Wolf, 428 U.S. 106, 114 (1976).
In Singleton, the court reviewed the factors which
justify or may even make imperative the court’s permit-
ting a litigant to raise another’s rights. First, there
must be a concrete injury to the litigant sufficient
to create a “Case or Controversy” within the meaning
of Article III. Second, the court must analyze whether
“the enjoyment of the right is inextricably bound up
with the activity the litigant wishes to pursue” so that
the court “can be sure that construction of the right
is not unnecessary in the sense that the rights enjoy-
ment will be unaffected by the outcome of the suit.”
428 USS. at 115.
Third, the court must consider whether the relation-
ship between the litigant and the person whose rights
are asserted makes the litigant “fully or very nearly
as effective a proponent of the right as the latter”
(ibid.). Finally, the court must look to the ability of
the third party to assert his own rights. If there is
“a genuine obstacle to such assertion . . . the party
who is in court becomes, by default, the right and
justifiable proponent” (id. at 116).
Applications of these principles to the instani case
must result in finding that the petitioner kh * had
standing to raise the constitutional infringemee * red
by the witnesses Wells and Gordon. First, there is
no question that the petitioner, threatened with loss
of liberty through a criminal conviction, has a “cz
and controversy.” Second, the witnesses’ enjoyment *
their Fifth Amendment right is, as fully discussed above,
onlin
seriously “affected” if they can be discredited by being
forced to reveal, in violation of the guaranteed secrecy
of grand jury proceedings, that they exercised their
constitutional right against self-incrimination. In this
respect, the witnesses’ “enjoyment” of their right is,
‘n fact, utterly dependent upon the outcome of this
case. Third, considering the impact on the petitioner,
if witnesses called on his behalf are successfully im-
peached by the government, the petitioner is surely
as effective a proponent of the rights at issue here
as the witnesses themselves could be. Fourth, and most
importantly, unless the petitioner-here is permitted to
raise the witnesses’ constitutional rights in this case,
there is, in fact, absolutely no way the witnesses them-
selves can vindicate those rights. The instant case is
stronger in this respect than Singleton where the third
parties (women seeking abortions) could themselves,
albeit with difficulty, bring suit to assert their own
rights. Here, no ameliorative suit is possible; indeed,
in the recent case of Imbler v. Pachtman, 424 USS.
409 (1976), this Court squarely held that the prosecu-
tor is absolutely immune from civil suit for acts such
as those at issue here, taken by him in the course
of pursuing a criminal prosecution and in presenting
the government’s case at trial. Consequentiy, under
Singleton, the defendant here is literally “by default,
the right’s best—if not only available proponent.”™
*8The petitioner here thus not only satisfies the requirements
of the plurality opinion in Singleton, but also meets the more
stringent test the concurrent dissent would require. In his con-
curring opinion, Justice Stevens indicated that to have stand-
ing it was probably also necessary that the litigant raising
another’s constitutional right have his own constitutional claim
as well. As will be discussed below, the petitioner here does
—_ =
Further, the total lack of civil remedy available
to the witnesses in this case distinguish this case from
those in which standing has been denied to defendants
who seek to raise the Fourth Amendment rights of
persons other than themselves. A non-defendant victim
of an illegal search and seizure, while without the
defendant’s remedy of suppression of tainted evidence,
may nevertheless vindicate his own Fourth Amendment
rights through the vehicle of his suit for damages
(see, e.g., Bivens v. Six Unknown Federal Agents,
403 U.S. 388 (1971) ) or by the implication of criminal
penalties for unlawful surveillance. Indeed, in denying
standing to a defendant to object to evidence obtained
in violation of another’s Fourth Amendment rights,
the Court has pointed to the availability of criminal
penalties to vindicate the victim’s rights. Alderman
v. United States, 394 U.S. 165, 175 (1969). An addi-
tional distinguishing factor is that “no rights of the
victim of an illegal search are at stake when evidence
is offered against another party.” Alderman v. United
States, supra, at 174; in the instant case, of course,
the witnesses’ rights were directly violated by impeach-
ing them in trial as the court of appeals, at least
implicitly, recognized. Finally, as the Court pointed
out in Jones v. United States, 362 U.S. 257, 261
(1960), evidence from an illegal search is not “inher-
ently unreliable or prejudicial,” but violation of the
constitutional rights at issue here does, in fact, result
in precisely such inherently unreliable and highly preju-
dicial effects—specifically, the improper inference of
indeed have his own constitutional claim. Moreover, the dissent-
ers in Singleton stated that third party standing should be
barred except where it was otherwise virtually impossible for
the third party to vindicate his right—as it would be here.
= =
guilt from the mere exercise of the right to remain
silent.
Nor is this case controlled by the cases holding
that the petitioner may not object if the witness is
incorrectly ordered to answer a question despite a
valid Fifth Amendment claim and the witness then
incriminates himself along with the petitioner, e.g.,
Bowman y. United States, 350 F.2d 913, 916 (9th
Cir. 1965). In such a situation, the witness at least
will be able to exclude his improperly obtained testi-
mony in any subsequent prosecution that might follow,
but the witnesses in this case who did not incriminate
themselves by remaining silent will under no circum-
stances have any remedy. If the petitioner in this case
cannot assert the rights of his witnesses, then those
rights will simply be forfeited.
The Court of Appeals Misapprehended the Prejudice
Suffered by Petitioner.
As we have demonstrated above, the court of appeals
should properly have applied the stricter test applicable
to constitutional error. Nevertheless, irrespective of the
test applied, the circumstances present here demonstrate
sufficient prejudice to require the action of this Court
to reverse the judgment of conviction.
The careful distinction drawn by the court of appeals
as to the applicability of the Kotteakos standard indi-
cates the court’s grave concern as to whether the error
could have infected the jury’s verdict. Moreover, the
approach adopted by the court strongly suggests the
court’s unwillingness to conclude that the error was
harmless beyond a reasonable doubt. In our view, a
determination that the error was hermless is clearly
= =
erroneous irrespective of the standard employed. The
court’s rationalization that the Gordon-Wells testimony
is cumulative to the testimony of other defense witnesses
is highly disingenuous. This Court has recognized that
a reviewing court is not required to cast a stoic eye
upon the proceedings, but rather, may use common
sense in appraising the actual issues raised by the
proceedings. Ashe v. Swenson, 397 U.S. 436 (1970).
In the instant case, the jury would assuredly not have
credited the defense by quantitatively counting peti-
tioner’s corroborative witnesses. Here, the prosecutor
sabotaged the entire line of defense by vigorously argu-
ing that two of the defense’s crucial witnesses were
fabricating their testimony. If the jury accepted the
prosecutor’s argument, it defies logical analysis to con-
clude that they would not assume that the other corrob-
orative witnesses were similarly part of the fabricated
defense.” Afortiori, the prejudice where the prosecutor
has argued that all the union-employed defense witnesses
were “cronies” of petitioner, who “was the goose that
laid the golden egg.” A careful reading of the prosecu-
tor’s argument points up the utter unfairness of the
situation which he created by his improper conduct. |
There was simply no way that petitioner could fairly
defend the prosecutor's allegations that the witnesses
had fabricated their story. It defies common experience
to suggest that the jury would not have been misled
by this nonprobative yet highly prejudicial argument.
*Thus, in a bank robbery case, if five defense witnesses
provide a consistent alibi defense, yet because of improper
impeachment of two witnesses the jury concludes that those
two witnesses were perjuring themselves, it is incredible to
suggest that the assessment of the credibility of those witnesses
does not “spillover” and infect the jury’s deliberative processes
and «valuation of the credibility of the other witnesses who
similarly supported the theory of the defense.
—40—
The fundamental unfairness here flows not only to
Wells and Gordon, who suffer the public ignominy,
loss of reputation and perhaps livelihood by having
their earlier invocations of the privilege exposed at
this public trial. The primary impact of the unfairness
and prejudice is suffered by petitioner—as the prosecu-
tor fully intended. Patently, the purpose of the cross-
examination and argument was to destroy petitioner’s
defense. The totally improper criteria adopted by the
prosecutor deprived the petitioner of the opportunity
to have the jury evaluate his good faith unaffected
by the improper suggestion that the jury could reject
the defense because petitioner and his “cronies” fabri-
cated the defense as evidenced by the witnesses’ prior
refusal to exculpate petitioner at the grand jury.
It does little credit to our courts as symbols of
justice to comb the entire record to suggest that the
jury may have discredited the witnesses for other rea-
sons. In this case, because of the sanction of the
trial court, the prosecutor's strongest argument impugn-
ing the witnesses’ credibility was the argument which
this court must now condemn. Assuredly, the jury could
not be presumed to have ignored the prosecutor’s argu-
ment in assessing the credibility of these two important
witnesses. It is similarly illogical to assume that the
jury could have credited any other corroborative wit-
nesses after accepting the prosecutor’s argument that
Wells and Gordon had fabricated their testimony on
petitioner’s behalf subsequent to their grand jury appear-
ances. Under these circumstances, the extreme potential
for actual prejudice requires reversal.
ee
II
THE DECISION BELOW SQUARELY CONFLICTS WITH
THE DECISIONS OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT WITH RE-
SPECT TO FAILURE TO RECORD GRAND JURY
PROCEEDINGS DESPITE TIMELY PREINDICTMENT
REQUEST.
At the initial stages of the grand jury proceedings
in this matter, petitioner filed a “MOTION TO RE-
CORD ALL PROCEEDINGS BEFORE THE FEDER-
AL GRAND JURY” (R. 434-435).” As part of
the motion, counsel, on behalf of petitioner, offered
to pay “all added expenses necessitated by such recorda-
tion” (ibid.).
In support of the motion to record, counsel pointed
out that the record demonstrated that the prosecutor
in the instant case was overzealous and that there
was reason to justifiably fear prosecutorial miscon-
duct.”
The district court denied the motion, without opinion
(R. 450).
Subsequent to the Indictment, as part of the pre-
trial motions, petitioner moved to dismiss the Indictment
“Specifically, counsel requested the recordation of:
A. The entire testimony of all witnesses;
B. All remarks and comments of the prosecutors of
any nature whatsoever; and
C. All instructions of law, general or special, given
to said grand jury (R. 434).
*6Counsel relied upon pleadings filed in the district court,
and an ex parte letter written by the prosecutor to a district
judge accusing petitioner and his attorney (not present counsel)
of obstruction of justice. That letter and present counsel’s re-
sponse are found at Appendix D and Appendix E, respectively.
— =
for failure to record the grand jury proceedings, despite
request (R. 333-344). This motion was also denied.
On appeal, petitioner contended that under the cir-
cumstances, the court improperly refused to require
recordation. The court of appeals concluded that while
“the far better practice is to record grand jury proceed-
ings, including the comments of the prosecutor, . . .
[n]evertheless there remains no constitutional or statu-
tory requirement of recording.” (559 F.2d at 988,
App. A). While the court “[a]ssum[ed] a defendant's
substantive right to dismiss an indictment based on
prosecutorial misconduct so flagrant as to deny funda-
mental fairness”, the court determined that it could
not “regard [petitioner’s] speculation as a sufficient
demonstration of need to require reversal for the district
court’s failure to require recording, to order production
of existing grand jury records, or to conduct a hearing
inquiring into the prosecutor’s action.” (/bid.).
The court of appeals thus digressed from the rule
established by the United States Court of Appeals
for the Ninth Circuit in United States v. Thoresen,
428 F.2d 654, 666 (1970) and United States v. Price,
474 F.2d 1223, 1225 (1973). In Thoresen, the court
asserted that the proper time to request recordation
was at the pre-indictment stage of the proceedings:
[T]he fact that a particular discovery procedure
is “permissive rather than mandatory” does not
mean that permission may be arbitrarily denied.
Where a defendant, anticipating future grand jury
proceedings involving himself, gives notice in ad-
vance that he will seek a transcript of the pro-
ceedings if the indictment is returned and offers
to pay the expenses of having a reporter in at-
tendance or shows inability te pay, a sound exer-
Aimee see
oes nee ee eee
—43—
cise of discretion would ordinarily call for the
granting of a motion that a reporter be in attend-
ance.
In the later case of United States v. King, 478 F.2d
494, 507 (9th Cir. 1973), the court characterized
the government’s failure to record grand jury testimony
as “arrogant” and cautioned (at 508):
We repeat our previous warnings however; the
Government is courting disaster when it fails to
record grand jury proceedings and the judges
should exercise their discretion to require such
recording.
In United States v. Price, supra, the court established
the rule now applicable in the Ninth Circuit.
We adhere to the principles stated in Thoresen,
and we now implement them by holding that
the district court must exercise its discretion in
passing upon a preindictment motion for recorda-
tion of grand jury proceedings and that a district
court abuses its discretion in denying the motion
of parties situated as were appellants, in absence
of a Government showing that it has a legitimate
and compelling interest to be served by non-
recordation. The Government cannot meet its
burden by resort to the secrecy rubric. Secrecy
of grand jury proceedings is not jeopardized by
recordation. The making of a record cannot be
equated with disclosure of its contents, and dis-
closure is controlled by other means.
The court below refused to follow the lead of the
Ninth Circuit. Thus, there exists a significant conflict
which requires this Court’s resolution.
—v
Rule 6(d) of the Federal Rules of Criminal Pro-
cedure provides in pertinent part:
“[A] stenographer or operator of a recording de-
vice may be present while the grand jury is in
session...”
The developing law is now legion that it is better
practice to record. United States v. Peden, 472 F.2d
483 (2d Cir. 1973); United States v. John, 408 F.2d
1134 (8th Cir. 1975) United States v. Cianchetti,
315 F.2d 584, 591 (2d Cir. 1963); United States
v. Cramer, 447 F.2d 210, 214 (2d Cir. 1971); United
States v. Battisti, 486 F.2d 961 (6th Cir. 1973);
Schlinksy v. United States, 379 F.2d 735, 740 (lst
Cir. 1967); United States v. Aloisio, 440 F.2d 705
(7th Cir. 1971).
From the standpoint of justice, there is simply no
compelling reason not to require recordation of all
the proceedings, including the prosecutor’s comments.
Where, as here, there is prima facie evidence of a
zealous prosecutor, there can be no sound reason to
deny recordation. The strong policy underlying recorda-
tion was stated forcefully by the Honorable Judge
Pettine of Rhode Island in United States v. Gramolini,
301 F.Supp. 31, 41-42 (D.C.R.I. 1969). See also
United States v. Battisti, 486 F.2d 961 (6th Cir. 1973)
(rejection of government challenge to a local district
court rule requiring recordation).
Emerging from the present line of cases is the firm
notion that there are no disadvantages in requiring
recordation. Recordation can only serve to further the
ends of justice.
Moreover, there is no reason to distinguish between
recordation of testimony of witnesses and reccrdation
—_ Ps
of the comments of the prosecutor. United States v.
Messitte, 324 F.Supp. 334 (S.D.N.Y. 1971); United
States v. Peden, 472 F.2d 583, 584 (2d Cir. 1973).
See ABA Project on Standards for Criminal Justice,
Standards Relating to the Prosecution Function, §35(c)
(Approved Draft); See also 8 Moore’s Federal Practice
at 96.02(2), p. 611 (Cipes Ed., 1969).
The court of appeals correctly assumed a defendant’s
substantive right to dismissal of an indictment where
flagrant prosecutorial misconduct denied fundamental
fairness. See United States v. Basurto, 497 F.2d 781
(9th Cir. 1974); Wood v. Georgia, 370 U.S. 374,
390 (1962); United States v. Chanen, 549 F.2d 1306
(9th Cir. 1977); United States v. Gallo, 394 F.Supp.
310 (D.Conn. 1975); United States v. DeMarco, 401
F.Supp. 505 (C.D. Cal. 1975). The court’s conclusion
that petitioner’s contentions were “speculation” demon-
strates the need for the prophylactic rule which we
espouse and which is now the law in the Ninth Circuit.
Since prosecutorial misconduct can rise to sufficient
proportions to require dismissal of an indictment, it
necessarily follows that recordation is essential to vindi-
cate the right. If the prosecutor’s comments are not
recorded, as here, any suggestion of prejudice is neces-
sarily speculative. Moreover, the court below engaged
in circular reasoning in concluding that petitioner had
not made a sufficient demonstration of prejudice to
require production of the existing grand jury records
or to require a hearing. Manifestly, by escaping recorda-
tion of his comments, the prosecutor renders any dis-
Closure of the other recorded proceedings, or indeed,
a hearing, entirely meaningless.
Fundamental fairness dictates that a prosecutor not
be given free reign to inflame or prejudice a grand
— =
jury. It is beyond contradiction that a prosecutor holds
a high place in the esteem of lay grand jurors and
the chance of improper influence is high, even if based
on good intentions. If a prosecutor knows that his
comments are on the record and subject to review,
the only possible effect would be to further the interests
of justice.
In our view, the court below seriously erred in
not requiring recordation, where there was colorable
overzealousness and a timely preindictment request.
This Court’s review is thus necessary to establish a
rule of uniform application on this matter of extreme
importance to the administration of justice.
Conclusion.
For the foregoing reasons, it is respectfully requested
that the Petition for Writ of Certiorari be granted.
Respectfully submitted,
RICHARD L. ROSENFIELD,
Attorney for Petitioner.
FLAX AND ROSENFIELD,
Of Counsel.
APPENDIX A.
UNITED STATES of America, Plaintiff-Appellee,
v. Bernard G. RUBIN, Defendant-Appellant. No. 76-
1143.
United States Court of Appeals, Fifth Circuit.
Sept. 22, 1977.
Defendant was convicted on various charges relating
to his role in financial operations of several laborers’
organizations. In the United States District Court for
the Southern District of Florida at Miami, Peter T.
Fay, Jr., he was found guilty of embezzlement of union
and employee welfare benefit plan funds, racketeering,
false statements on income tax returns, and failure
to keep labor union records. Defendant was also ordered
to forfeit all his union and trust fund positions as
well as his right to seek such positions in the future.
The defendant appealed. The Court of Appeals, Gold-
berg, Circuit Judge, held that (1) defense witnesses
should not have been cross-examined regarding their
prior refusals to testify before the grand jury, but
the error was harmless in view of the evidence, and
(2) defendant was properly ordered to forfeit the posi-
tions he held but «ould not properly be ordered to
forfeit his right to seek such offices in the future.
Judgment of conviction affirmed; order of forfeiture
modified, and, as modified, affirmed.
1. Witnesses 347
Government bears burden of establishing threshold
inconsistency necessary for admission of impeachment
evidence of witness’ prior silence.
—_
2. Witnesses 347
Where grand jury witness had properly invoked priv-
ilege against self-incrimination, “insoluble ambiguity”
of his silence precluded demonstration that such silence
was inconsistent, for impeachment purposes, with his
subsequent testimony. U.S.C.A.Const. Amend. 5.
3. Witnesses 347
That witness against whom his prior silence before
grand jury was admitted for impeachment purposes
was not a defendant himself did not render inapplicable
the requirement of threshold inconsistency nor provide
any additional basis for concluding that requirement
was met, where witness in testifying before grand jury
could have been justified in conclusion that he was
being interrogated for express purpose of supplying
evidence against himself. U.S.C.A.Const. Amend. 5.
4. Witnesses 347
Government may not attempt to impeach defense
witness by eliciting his prior refusal to testify before
grand jury, where he has not conveyed impression
that he affirmatively cooperated with Government in
all matters relating to case.
5. Constitutional Law 266(1)
Witnesses 347
Admission, for impeachment purposes, that witness
other than defendant had been silent before grand
jury was violation of rules of evidence but was not
constitutional error as to defendant, at least where
evidence was not so critically prejudicial as to rise
to level of due process violation. U.S.C.A.Const.
Amend. 5.
FN cle OE a, Crate nate.
cfs
6. Criminal Law 1169.1(1)
Where error in admission of evidence was nonconsti-
tutional, harmless error t.st was whether error had
substantial influence, i.e., whether court could say with
fair assurance, after pondering all that happened without
stripping erroneous action from the whole, that judg-
ment was not substantially swayed by the error.
7. Criminal Law 1162
Alleged heinousness of crime is never appropriate
consideration in testing whether error is harmless.
8. Criminal Law 117012(1)
In view of evidence available, which was overwhelm-
ingly convictive in prosecution for embezzlement of
union and employee welfare benefit plan funds, rackeet-
eering, false statements on income tax returns and
failure to keep labor union records, nonconstitutional
error in admission, for impeachment purposes, of evi-
dence that defense witnesses other than defendant had
remained silent before grand jury tainted trial at most
to such marginal extent that convictions would be
affirmed. -18 U.S.C.A. §§ 664, 1962(c); 26 U.S.C.A.
(I.R.C.1954), § 7206(1); Labor-Management Report-
ing and Disclosure Act of 1959, §§ 2-611, 206, 209,
501(c), 29 U.S.C.A. §$§ 401-531, 436, 439, 50i(c);
U.S.C.A.Const. Amend. 5.
9. Labor Relations 1057
That defendant was good union man was not defense
to requirement of modicum of accountability for monies
expended for the union. Labor-Management Reporting
and Disclosure Act of 1959, §§ 2-611, 501(c), 29
U.S.C.A. §§ 401-531, 501(c).
pa”
10. Criminal Law 1166(2)
Grand Jury 40
Far better practice is to record grand jury proceed-
ings, including comments of prosecutor, but there re-
mains no constitutional or statutory requirement of
recording, and failure to do so, standing alone, provides
no predicate for reversal.
11, Criminal Law 627.9(1)
Defendant may obtain what grand jury records do
exist, or receive hearing on what has transpired in
grand jury room, upon showing of need, but showing
must include more than unsubstantiated, speculative
assertions of impropriety in proceedings.
12. Criminal Law 1166(1, 2)
Assuming a defendant’s substantive right to dismiss
indictment based on prosecutorial misconduct, before
grand jury, so flagrant as to deny fundamental fairness,
defendant’s speculation that prosecutor by concentrating
his questioning of several witnesses on their conversa-
tions with their own or defendant’s lawyers improperly
misinformed grand jury that defendant was obstructing
investigation was not sufficient demonstration of need
for grand jury records as to require reversal for district
court’s failure to require recording of prosecutor’s com-
ments before grand jury, to order production of existing
grand jury records or to conduct hearing inquiring
into prosecutor’s action.
13. Criminal Law 394.5(1)
To trigger Government’s obligation to affirm or deny,
there must at least be a positive statement that un-
lawful surveillance has taken place, and an allegation
that it may have occurred will not suffice. 18 U.S.C.A.
§ 3504(a)(1).
_
14. Criminal Law 394.5(1)
Though there was no requirement that allegation
be sworn, defendant’s allegation that he had “reason
to believe” someone had eavesdropped on conversations
in his office was insufficient without supporting evidence
to trigger Government’s obligation to affirm or deny.
18 U.S.C.A. § 3504(a)(1).
15. Criminal Law 394.5(1)
Government was to be cautioned against further
use of form of limited response to allegation concerning
asserted unlawful surveillance; unadorned denial of il-
legal surveillance may suffice to meet barest, most
general accusation, but response must unequivocally
deny occurrence of illegal surveillance, apart from any
question whether evidence against defendant was ob-
tained thereby. 18 U.S.C.A. § 3504(a)(1).
16. Criminal Law 800(2)
In prosecution under statute making it unlawful for
any person employed by any enterprise engaged in
interstate commerce to conduct or participate in conduct
of such enterprise’s affairs through pattern of racketeer-
ing activity, trial judge did not err in refusing defend-
ant’s requested instruction which included statement
that “through” means “by means of.” 18 U.S.C.A.
$§ 1961(1, 5), 1962(c); Labor-Management Reporting
and Disclosure Act of 1959, § 501(a), 29 U.S.C.A.
§ 501(a).
17. Criminal Law 1177
In view of concurrent sentences imposed upon convic-
tions on various counts, on some of which convictions
were sustained, it was not necessary for Court of Ap-
peals to reach defendant’s contentions pertinent to other
counts.
niiion
18. Threats 8
Congress intended to use every possible means to
separate those found guilty of racketeering activity and
their confederates from enterprises they had conducted
through such activity, to increase variety and strength
of federal prosecutorial weapons designed to root out
and keep out influence of organized crime in legitimate
business and labor organizations, and to provide
for forfeiture of any ownership or investment type
of interest a defendant might hold in an organization
he had conducted through pattern of racketeering activi-
ty. 18 U.S.C.A. §§ 1962, 1963, 1963(a), 3563.
19. Embezzlement 52
Forfeiture provision of Organized Crime Control Act
of 1970 reached union offices occupied by defendant
convicted of embezzlement and other offenses; his vari-
ous offices fell within language of “any interest in,
security of, claim against, or property or contractual
right of any kind” but his right to seek and reattain
such offices, which right is independently regulated
by provisions of federal labor statutes, was not within
reach of such provision and it was error to bar him
in perpetuity. 18 U.S.C.A. §§$ 1962, 1963, 1963(a),
1964, 3563; Labor-Management Reporting and Disclo-
sure Act of 1959, § 504, 29 U.S.C.A. § 504; Employee
Retirement Income Security Act of 1974, § 411, 29
US.C.A. § 1111.
See publication Words and Phrases for other
judicial constructions and definitions.
20. Statutes 241(2)
Forfeiture provision of Organized Crime Control Act
of 1970 was to be strictly construed as criminal statute,
and any ambiguity was to be resolved in favor of
—
lenity, which canon had particular application to for-
feiture statutes. 18 U.S.C.A. §§ 1963, 1963(a).
21. Threats 8
In enacting forfeiture provision of Organized Crime
Control Act of 1970, although Congress’ primary con-
cern was to eradicate organized crime’s economic base,
which more readily translates into ownership interesis,
it also intended forfeiture fully to serve broader goai
of legally separating persons who run enterprise through
defined racketeering activity from enterprise itself. 18
U.S.C.A. §§ 1963, 1963(a).
22. Labor Relations 124
That union offices forfeited by convicted defendant
could not be meaningfully transferred to United States
was of no moment, in view of statute providing that
forfeited interest not exercisable by United States shall
terminate. 18 U.S.C.A. §§ 1963, 1963(c); Labor-Man-
agement Reporting and Disclosure Act of 1959,
§ 401(e), 29 U.S.C.A. § 481(e).
Richard L. Rosenfield, Los Angeles, Cal., for defend-
ant-appellant.
Robert W. Rust, U. S. Atty., Miami, Fla., Ivan
Michael Schaeffer, Atty., T. George Gilinsky, Dept.
of Justice, Washington, D.C., Jerome M. Feit, Atty.,
Marty Steinberg, Sp. Atty., Dept. of Justice, Miami,
Fla., for plaintiff-appellee.
Appeal from the United States District Court for
the Southern District of Florida.
Before GOLDBERG and HILL, Circuit Judges and
KERR,* District Judge.
*Senior District Judge of the District of Wyoming, sitting
by designation.
enlies
GOLDBERG, Circuit Judge:
Bernard G. Rubin appeals from his conviction of
charges relating to his role in the financial operations
of several southern Florida laborers’ organizations. Ap-
pellant is a Special International Representative of the
Laborers’ International Union of North America. He
is President of the Southwest Florida Laborers’ District
Council (hereinafter “District Council”), an umbrella
organization supervising several locals. He is President
of the Concrete Products & Material Yard Workers
Local #666, Business Manager of Local #478, and
a trustee of several labor trust funds.
Following a two week trial a jury found appellant
guilty of 103 counts of the 105 count indictment
charging embezzlement/of union and employee welfare
benefit plan funds, 29 U.S.C. § 501(c), 18 U.S.C.
§ 644; racketeering, 18 U.S.C. § 1962(c); false state-
ments on income tax returns, 26 U.S.C. § 7206(1);
and failure to keep labor union records, 29 U.S.C.
§§ 436, 439. The court imposed concurrent sentences
on all counts up to a maximum of five years imprison-
ment. The court levied fines totalling $50,000.00 on
five different counts. Finally, the court ordered appel-
lant to forfeit all his union and trust fund positions
as well as his right to seek such positions in the
future.
Eighty-six counts of the indictment charged appellant
with embezzling funds from the various unions and
trust funds by submitting to those entities duplicate
expense vouchers, mostly for travel and entertainment,
thereby receiving multiple reimbursements for expenses
incurred. With respect to each expense covered by
the indictment, appellant had sent a voucher to each
of two or more of the organizations and received
stilton
reimbursement. The government credited one reimburse-
ment of each expense as legitimate, charging embezzle-
ment only on the duplications. Appellant did not deny
the fact of these many multiple reimbursements. Rather,
he maintained that he employed the duplicate billing
system to create a cash fund he needed for additional
union related expenses. Rubin asserted that he had
understood his power of the purse in the various
organizations to encompass accumulating such a fund
and making such expenditures. Numerous defense wit-
nesses testified that he had spent large amounts of
cash in past organizing drives and in entertaining man-
agement.
Additionally, the indictment charged appellant with
two counts of embezzlement through granting himself
over $300,000 in unauthorized salary increases as an
officer of local 666 and the District Council. The
charges of inadequate recordkeeping largely related to
required documentation of union treasury disburse-
ments. The tax counts charged false subscribing of
income tax returns, in that appellant received substantial
income in excess of the amount reported. Finally, on
the basis of the embezzlement allegations appellant
was charged with conducting or participating in the
conduct of the union organizations inrough a pattern
of racketeering activity.
On appeal Rubin proffers several claims of error.
We agree with appellant’s contention that two of his
defense witnesses should not have been cross-examined
regarding their prior refusals to testify before a grand
jury, but we find the error harmless in the circum-
stances. We reject appellant’s remaining claims of error
in the conviction. Finally, though we think the distict
court properly ordered Rubin to forfeit the positions
=
he presently holds, we must reverse its order that
he forfeit his right to seek such offices in the future.
I. Defense Witnesses’ Silence Before the Grand Jury.
Appellant’s most troubling challenge to the validity
of the conviction relates to the government’s attempt
to impeach two defense witnesses by eliciting on cross-
examination their prior refusals to testify before a
grand jury. We conclude that the trial court violated
evidentiary canons by permitting such impeachment.
In light of the cumulative nature of the witnesses’
testimony, the substantial proper impeachment of these
and all other defense witnesses, and the inherent im-
plausibility of appellant’s defense theory, however, we
cannot conclude that the error here requires reversal.
Kenton Wells, an organizer for the District Council,
and Jack Gordon, an organizer for the District Council
and local 666, were two of eight witnesses who corrob-
orated appellant’s story that during the relevant years
he had handed out large amounts of cash to subordi-
nates for use in organizing campaigns and had spent
large amounts of cash entertaining management figures.
Appellant testified these expenditures required a large
cash fund which he maintained through the multiple
billing of the various union entities for yet other ex-
penses. Rubin claimed he had understood that accumu-
lating funds in this manner and disbursing them for
general organizing purposes fell within the authority
granted him by the District Council and local 666.
The defense witnesses, Wells and Gordon among them,
corroborated only the fact of numerous disbursements
for organizing and entertaining. They gave no testimony
regarding the source of Rubin’s funds.
andiiion
In an effort to impeach the testimony of Wells
and Gordon through proof of a prior inconsistent act,
the prosecution brought out on cross-examination the
witnesses’ previous refusals te testify before the federal
grand jury investigating the activities of southern
Florida laborers’ organizations. Of Wells the govern-
ment inquired as follows:
Q. Without respect to the exact date, sir, did you
appear twice before the Federal Grand Jury?
A. Yes, sir.
Q. Were you asked questions concerning your
labor-union activities and Mr. Rubin?
A. Yes, sir.
Q. Did you refuse to testify on both of those oc-
casions?
A. Yes, sir, I did. (T. 1522-23).
At one time during the colloquy, set out in its entirety
in the margin,’ Wells volunteered that he “had taken
*Q. Mr. Wells, I notice that Mr. Flax asked you your
occupation.
A. Yes, sir.
Q. Have you ever given a different response on a pre-
vious occasion?
A. Not that I know of as far as my occupation. No,
I don’t.
Q. Do you remember testifying to a Federal Grand Jury
on April 29, 1975?
MR. ROSENFIELD: Can I have a copy of that, Counsel?
MR. STEINBERG: I don’t have extra copies, Mr. Rosenfield.
A. Yes, I do, 1975.
MR. ROSENFIELD: Before he inquires, I would like an
opportunity to take a look at the document.
MR. STEINBERG: It’s not part of discovery, Your Honor.
I only have one copy. It’s not discovery.
THE COURT: Let him look over your shoulder or read
what you are reading.
MR. ROSENFIELD: That is fine.
I object to the characterization as not being discoverable.
It is now discoverable.
(This footnote is continued on next page)
= =
the Fifth Amendment.” (T. 1521). Similarly, the fol-
lowing exchange took place during the cross-examina-
tion of Jack Gordon:
Q. Mr. Gordon, did you appear at the Federal
Grand Jury on May 27, 1975?
Q. Mr. Gordon, did you appear at the Federal
Grand Jury on May 27, 1975?
BY MR. STEINBERG:
Q. Did you ever give a different response on a previous
occasion, Mr. Wells?
A. Not that I know of, sir.
Q. Did you testify in the Federal Grand Jury on April
29, 1975, sir?
A. This year?
Q. That’s correct.
A. No, sir, I didn’t.
Q. You did not?
A. I came before the Federal Grand Jury.
Q. Were you asked this question:
“Q. What is your occupation?”
A. I was asked that question.
Q. Did you give the same response that you gave to Mr.
Flax?
A. I gave my address at that time, sir, 836 West
Drive.
Q. After you gave your address, were you asked your
occupation?
A. Yes.
Q. Did you give the same response that you gave Mr.
Flax?
A. No, sir. I took the Fifth Amendment.
MR. FLAX: May we approach the bench, Your Honor?
THE COURT: Come right up.
(Side-bar conference: )
MR. ROSENFIELD: Your Honor, I would suggest that
because the man answered the question before the grand jury
that he refused to answer on the ground that it might tend
to incriminate him, this would be improper and highly prejudi-
cial. There is nothing inconsistent about a witness’ trying to
invoke the Fifth Amendment in front of a grand jury and
testifying here. There is nothing inconsistent about that at all.
This kind of questioning is improper.
I would suggest that before counsel be allowed to inter-
rogate him with respect to that document, that I be allowed
to take a look at it.
==
A. I don’t remember the date. I appeared there,
yes, at the grand jury.
Q. Did you ever refuse to testify?
A. Yes, I did. (T. 1622-23).
THE COURT: I have overruled your objection. You can
certainly bring out that he refused to testify before the grand
jury. I think that is proper cross-examination.
I do not think we need fifty questions to do it. If he
refused to answer all the questions, I think we can bring
that out and then drop it.
MR. STEINBERG: Fine.
(Side-bar conference concluded. )
BY MR. STEINBERG:
Q. Mr. Wells, were you called to testify before the Federal
Grand Jury on two occasions, October 29, 1974, and April
29, 1975?
A. Sir, I could not possibly swear to that because I don’t
have anything at ali to tell me what time that I went up
there. You could ask me a question of that nature and I
-_ tell you exactly what date or when those specifics took
place.
Q. Without respect to the exact date, sir, did you appear
twice before the Federal Grand Jury?
A. Yes, sir.
Q. Were you asked questions concerning your labor-union
activities and Mr. Rubin?
A. Yes, sir.
Q. Did you refuse to testify on both of those occasions?
A. Yes, sir, I did.
Q. Mr. Wells, during any of those occasions did you tell
the grand jury or the Government about this fund of cash
that you were receiving?
MR. ROSENFIELD: I will object to that, Your Honor.
He testified he has not testified before. Any other question
he would be incompetent to answer. He said he did not testify.
THE COURT: I think this question has two parts and
I will sustain the objection. I think he has answered that
part dealing with the grand jury. I am not so sure he answered
the part dealing with the Government, if that means someone
other than the grand jury.
THE WITNESS: Would you repeat the question, sir.
BY MR. STEINBERG:
Q. Mr. Wells, i wi'l rephrase the question.
Have you ever told the Government before about this cash
that you were receiving from Mr. Rubin to organize?
A. I don’t recall telling the Government anything, sir. (T.
1519-24).
collie
The trial court overruled defense covnsel’s objections
to both these lines of inquiry. As part of his discussion
of the defendant’s case during closing argument, the
prosecutor commented on the testimony of Wells and
Gordon, plainly stating that he saw a contradiction
between their corrotoration of appellant’s exculpatory
story and their refusals to speak to the grand jury.
A. Improper I‘apeachment Under Evidentiary Guide-
lines
Appellant asserts that admission of the witnesses’
silence before the grand jury, exacerbated by the prose-
cutor’s reference during argument, was error. We agree
that under well-established evidentiary principles the
impeachment was improper.
1. The Requirement of Inconsistency Between
Silence and Testimony
[1, 2] In United States v. Hale, 422 US. 171,
95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975), the
Supreme Court reiterated the governing principles:
A basic rule of evidence provides that prior in-
consistent statements may be used to impeach
the credibility of a witness. As a preliminary mat-
ter, however, the court must be persuaded that
the statements are indeed inconsistent. 3A J. Wig-
more, Evidence § 1040 (Chadbourne rev. 1970).
If the Government fails to establish a threshold
inconsistency between silence . . . and later ex-
culpatory testimony at trial, proof of silence lacks
any significant probative value and must therefore
be excluded.
See also Grunewald v. United States, 353 U.S. 391,
418-19, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In
*
= _ ete teases
— jp.
Hale, the Court concluded that a defendant's silence
in the circumstances following arrest and Miranda
warnings lacked the requisite inconsistency with his
exculpatory trial testimony and that such silence was
therefore inadmissible for impeachment purposes. More
recently the Court has held that the impeachment use
of a defendant’s post-arrest, post-Miranda warning si-
lence violated the due process clause. See Doyle v.
Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91
(1976).
For present purposes we limit our analysis to the
evidentiary framework employed in Hale. Into that
framework we must place, not a defendant, but a
defense witness and, not the circumstances of a post-
arrest police interrogation, but those of the grand jury
room. The question before us is whether the prior
silence of a defense witness before the grand jury
conveys the threshold inconsistency with the witness’s
exculpatory trial testimony that is necessary to permit
the use of the silence to impeach the testimony. We
hold that it does not.
2. Silence and the Grand Jury
Grunewald v. United States, supra, precludes any
suggestion that silence before the grand jury is more
probative than silence following arrest. In the circum-
stances of Grunewald, the Supreme Court squarely
rejected the argument that the defendant’s invocation
of the privilege against self-incrimination before the
grand jury had “involved such inconsistency with any
of his trial testimony as to permit its use against
him for impeachment purposes.” 353 U.S. at 419.
77 S.Ct. at 981.
—
To reach that conclusion the Court placed significant
reliance on factors always attendant upon appearing
before a grand jury:
[T]he Fifth Amendment claim was made before
a grand jury where [defendant] was a compelled,
and not a voluntary, witness; where he was not
represented by counsel; where he could summon
no witness; and where he had no opportunity
to cross-examine witnesses testifying against him.
These factors are crucial in weighing whether a
plea of the privilege is inconsistent with later
exculpatory testimony on the same questions, for
the nature of the tribunal which subjects the wit-
ness to questioning bears heavily on what infer-
ences can be drawn from a plea of the Fifth
Amendment. Innocent mea are more likely to plead
the privilege in secret proceedings, where they
testify without advice of counsel and without op-
portunity for cross-examination, than in open court
proceedings, where cross-examination and judicial-
ly supervised procedure provide safeguards for the
establishing of the whole, as against the possibility
of merely partial, truth.
Id. at 422-23, 77 S.Ct. at 983 (citation omitted).
The Court also emphasized that the grand jury had
considered the defendant a potential target for indict-
ment at the time of his appearance. Therefore “it
was quite natural for him to fear that he was being
asked questions for the very purpose of providing evi-
dence against himseif,” and “quite consistent with inno-
cence for him to refuse tc provide evidence which
could be used by the Government in buiiding its it. “imi-
nating chain.” /d. at 423, 77 S.Ct. at 983.
ee ee eee ce
=—
Both the general nature of grand jury proceedings
and the particular situation of the defendant thus fed
the Court’s conclusion that his invocation of the privi-
lege had been “wholly consistent with innocence” and
consequently inadmissible to impeach the defendant's
exculpatory trial testimony. See id. at 421-22, 77 S.Ct.
963. Given the risk that the jury had drawn an inference
of guilt from the exercise of the privilege, the Court
fuund the error in admitting the evidence for impeach-
ment purposes prejudicial. See, id. at 423-24, 77 S.Ct.
963.
When Wells and Gordon appeared before the grand
jury investigating the laborers’ unions of southern Flor-
ida, they faced the same uncertainties and pressures
that Grunewald found inherent in the grand jury’s
secret ex parte proceedings. Insofar as the record re-
veals, the two witnesses also could have been justified
in the conclusion that they were being interrogated
for the express purpose of supplying evidence against
themselves. They of course could invoke the privilege
properly only to avoid incriminating themselves; the
government has never levied the charge that either
improperly claimed the protection of the fifth amend-
ment.
The government bears the burden of establishing
the threshold inconsistency necessary to admit impeach-
ment evidence. See United States v. Hale, supra, 95
S.Ct. at 2136. So long as a grand jury witness has
properly invoked the privilege against self-incrimination,
the “insoluble ambiguity” of his silence, See Doyle,
supra, 96 S.Ct. at 2244, precludes demonstration of
that requisite inconsistency. Accordingly, the predicate
for impeachment use of Wells’ and Gordon’s grand
jury silence was lacking.
—~ =
3. Prior Silence of a Defense Witness
[3] That we are concerned with the testimony of
defense witnesses, rather than a defendant, neither ren-
ders inapplicable for requirement of threshold incon-
sistency nor provides any additional basis for concluding
that the requirement was here met. The Eighth Circuit
has squarely applied Grunewald in the witness context.
See United States v. Williams, 464 F.2d 927 (8th
Cir. 1972). Drawing on Grunewald’s description of
the nature of grand jury proceedings, the court in
Williams rejected the argument that the refusal of
a defense witness to testify before a grand jury was
inconsistent with his trial corroboration of the defend-
ant’s exculpatory story. The court concluded that the
improper impeachment had been prejudicial where the
single defense witness’s corroboration had been critical,
and it reversed the conviction. Similarly, the Second
Circuit has stated that where a witness, who is later
to supply exculpatory testimony for a criminal defend-
ant, has a reasonable belief at the time of a grand
jury appearance that he may be a defendant himself,
. it is perfectly consistent with innocence
and with nonincriminatory answers to particular
questions to refuse to answer any question at
all.
United States v. Tomaiolo, 249 F.2d 683, 691 (2d
Cir. 1957).
See also United States v. Natale, 526 F.2d 1160 (2d
Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724,
48 L.Ed.2d 193 (1976); United States v. Glasser,
ee | 1 eet Gre ee 8
_—
443 F.2d 994, 1004-06 (2d Cir.), cert. denied, 404
U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).’
The conclusion of these two courts that a defense
witness’s prior silence before a grand jury and trial
testimony exculpating the defendant lack sufficient in-
consistency to justify impeachment use of the silence
is well-founded. Grunewald teaches that the many fac-
tors that may lead an individual to remain silent before
the grand jury make it impossible to draw any reason-
able inference that a subsequent protestation of his
own innocence has been fabricated. Assuming a reason-
able belief at the time of the witness’s grand jury
appearance that he himself may be a defendant, any
suggestion of inconsistency between his silence and
subsequent testimony exculpatory of someone else can
certainly be no stronger.
4. The Potential for Prejudice
As against the complete lack of probative value
in the defense witness’s refusal to testify before the
grand jury, impeachment by that silence runs some
risk of two varieties of prejudice. First, where the
jury learns that the witness’s silence was an exercise
of the privilege against self-incrimination, there is a
2Natale and Glasser are concerned more directly with the
prejudicial impaci of explicit attempts to elicit from a defense
witness the fact that he previously exercised the fifth amend-
ment privilege, rather than the lack of probative impeachment
value in witness’s prior silence. Therefore these cases do not
explore the issue of consistency between grand jury silence
and exculpatory trial testimony. The opinions do cite Williams
and Tomaiolo with approval, however, and they make clear
that a defense witness’ prior silence before a grand jury is
not a proper subject of cross-examination in the Second Circuit.
~~ =
danger the jury will improperly infer guilt on the
part of the witness and, depending on the circumstances,
transfer that inference to the defendant. See United
States v. Natale, supra; United States v. Glasser, supra.
Second, without an understanding of the uncertainties
a witness faces in testifying before a grand jury, a
juror may well attribute undue significance to the fact
a witness offered no response to the prosecutor’s ques-
tions before that tribunal and may thereupon disbelieve
the witness’s trial testimony. To allay any such tendency
would require the defense somehow to instruct the
petit jury on the difficulties of testifying before a
grand jury, an abstract digression that would at best
distract the jurors and at worst unduly emphasize the
issue of silence, exacerbating any tendency to draw
the improper substantive inference that the witness
was hiding guilt that may taint the defendant.®
[4] A defense witness’s prior refusal to supply testi-
mony to a grand jury before which he had a reasonable
belief that he might be a defendant himself has no
proper significance as impeachment evidence. Use of
the evidence for that purpose risks prejudice. According-
ly, we hold that the government may not attempt
8In a similar vein the D.C Circuit has held that a prosecutor
cannot attempt to impeach a defense witness by eliciting on
cross-examination that the witness had not testified at the de-
fendant’s preliminary hearing. See United States v. Fluff, 143
U.S.App.D.C. 163, 442 F.2d 885 (1971). Given the many
reasons for the defense not to put on evidence at such a
hearing, the court found the witness’s failure to testify there
of little if any probative value. The court also recognized
that a jury might tend to find significance in the failure to
testify. Rather than require defense counsel to combat that
prejudicial tendency with a demonstration of the general nature
of preliminary hearings and the particular considerations that
governed the hearing in question, the court prohibited the im-
peachment use of a witness’s failure to testify at a preliminary
hearing.
=—
to impeach a defense witness by eliciting such a
prior refusal to testify before a grand jury.*
B. The Constitution Inviolate
[5] Appellant argues that the impeachment use of
the prior silence of Wells and Gordon not only violated
the rules of evidence, but also transgressed constitu-
tional boundaries staked out in Doyle v. Ohio, supra.
Doyle did elevate to a constitutional level the Court’s
earlier holding that impeachment use of a defendant’s
post-arrest, post-Miranda warning silence was improper
as an evidentiary matter. See United States v. Hale,
supra. Because we find that the Court’s reasons for
being party to that particular ascension do not transfer
to the situation before us, we reject appellant’s claim
of constitutional error.
Certainly the Doyle Court reaffirmed the recognition
in Hale of the inherent ambiguity of post-arrest silence.
However, the Court expressly noted that its considera-
tion of the lack of probative value of the Ohio defend-
ants’ silence was unnecessary to its constitutional hold-
ing. Id. 96 S.Ct. at 2444-45 n. 8. Rather, that holding
followed from the fundamental unfairness of employing
a person’s invocation of the right against self-incrimina-
tion to his disadvantage as he stands trial.
Justice Powell’s majority opinion described that un-
fairness in the context presented by Doyle of post-
Miranda warning silence:
‘This holding of course does not apply to the of
situation discussed in United States v. Fairchild, 505 F.2d
1378 (Sth Cir. 1975), and noted in Doyle v. Ohio, supra,
96 S.Ct. at 2245 n. 11, in which the defendant (here, a
defense witness) has conveyed the impression that he affirma-
tively cooperated with the government in all matters relating
to the case.
==
. while it is true that the Miranda warnings
contain no express assurance that silence will carry
no penalty, such assurance is implicit to any per-
son who receives the warnings. In such circum-
stances, it would be fundamentally unfair and
a deprivation of due process to allow the arrested
person’s silence to be used to impeach an ex-
planation subsequently offered at trial.
Id. 96 S.Ct. at 2245.°
That same unfairness may be present whenever
the government attempts to exploit a proper invocation
of the privilege, whether or not preceded by explicit
warnings of the right to remain silent. Thus, whatever
the ultimate validity of the proposition that Miranda-
type warnings are required in the grand jury room,
see United States v. Washington, ........ I kins ;
97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); United States
v. Wong, ....---- USS. ........, 97 S.Ct. 1823, 52 L.Ed.2d
231 (1977); United States v. Mandujano, 425 U.S.
564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), the
factors found constitutionally intolerable in Doyle might
be thought to extend to a defendant’s silence in the
face of grand jury questioning.
We need not resolve this question today. A defendant
cannot complain where the prosecutorial abuse is of
another's exercise of the constitutional privilege against
‘The Court went on to quote with approval from Justice
White’s concurrence in the judgment in United States v. Hale,
supra, 95 S.Ct. at 2139. “Surely Hale was not informed here
that his silence, as well as his words, could be used against
him at trial.” Doyle, supra, 96 S.Ct. at 2245.
ena
—_ =
self-incrimination.* That privilege is a personal one.
It is established that a defendant may not object to
the violation of another person’s privilege. See Doyle,
supra, 96 S.Ct. at 2248 (Stevens, J., dissenting) and
cases cited. Thus a defendant cannot complain of any
Doyle-type unfairness that might be seen in impeach-
ment of a defense witness by a prior refusal to testify
before a grand jury.’
C. Error Harmless
[6] Because we have found the error in impeaching
Wells and Gordon by their grand jury silence to be
nonconstitutional, the strict guidelines set out in Chap-
man v. United States, 547 F.2d 1240, 1249-50 (Sth
Cir. 1977), for testing the harmlessness beyond a rea-
sonable doubt of a Doyle violation are inapplicable.
Rather we must apply the test of Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248,
90 L.Ed. 1557 (1946):
®Doyle itself specifically reserved the question whether con-
stitutional error would obtain upon the use of post-arrest, post-
Miranda warning silence to impeach a defense witness rather
than the defendant.
"Note that in United States v. Sobell, 314 F.2d 314 (2d
Cir. 1963), the court opined that on the assumption the Grune-
wald holding achieved constitutional dimensions, those constitu-
tional implications would be limited to the person whose claim
of the privilege was used against him.
Beyond the unfairness of exploiting a claim of the privilege,
we cannot conclude that the grand jury silence of a defense
witness is so utterly lacking in probative value yet highly char
with prejudicial potential that its use merits universal constitu-
tional condemnation. We need not forecast whether the use
of such evidence might in some particular case be so critically
prejudicial as to rise to the level of a due process violation.
The case at bar, however, is not such a case.
—
. if [we] cannot say with fair assurance,
after pondering all that happened without stripping
the erroneous action from the whole, that the
judgment was not substantially swayed by the
error, it is impossible to conclude that substantial
rights were not affected. The inquiry cannot be
merely whether there was enough to support the
result, apart from the phase affected by the error.
It is rather, even so, whether the error had sub-
stantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.
See United States v. Constant, 501 F.2d 1284, 1289
(5th Cir. 1974), cert. denied, 420 U.S. 910, 95 S.Ct.
830, 42 L.Ed.2d 840 (1975).°
[7,8] Oft times the alleged heinousness of a crime
provides the judicial vehicle for a finding of harmless
error. That factor, however, is never an appropriate
consideration. Here, in reading and examining the rec-
ord, we have attempted to strain out the quality of
the alleged crime and to confine our attention to the
residue of its basic factual underpinnings. The nature
of the crime has not entered our evaluation of the
evidence, which we find to be overwhelmingly con-
victive. Cognizant that “harmless-error rules can work
very unfair and mischievous results”, Chapman v. Cali-
fornia, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d
705 (1967), we are nevertheless convinced that the
improper impeachment of Wells and Gordon tainted
appellant’s trial at most to such a marginal extent
8Kotteakos continues to provide the standard for judging
nonconstitutional errors in this circuit. See, e.g., United States
v. Martinez, 536 F.2d 1107 (Sth Cir. 1976); United States
v. Jennings, 527 F.2d 862 (Sth Cir. 1976); United States
v. Harbolt, 491 F.2d 78 (Sth Cir. 1974); United States v.
Resnick, 488 F.2d 1165 (Sth Cir. 1974).
— =
that the judgment must be affirmed under the above
standard.
The government presented an extremely powerful,
if circumstantial, case against the appellant. Largely
unchallenged documentary evidence established that ap-
pellant made it a common practice to bill identical
expenses, chiefly travel and entertainment, to each of
local 666, local 478, the District Council, and the
ILU, and to obtain full reimbursement from each.
The vast majority of the reimbursement checks were
cashed by Rubin at a savings and loan association;
a few were deposited in an account Rubin maintained
there. Similar documentation established that when. at-
tending a conference on behalf of the various employee
welfare benefit plans of which he was a trustee, Rubin
would obtain from each organization the amount it
had set to cover an individual’s full expenses at the
conference.
None of the entities to which appellant addressed
~his duplicate billing had any notice of his reimbursement
from other sources. Indeed, the government established
that in local 666, the constitution of which required
two signatures on all checks from the union treasury,
Secretary-Treasurer Henry signed all checks in blank.
Appellant, president and business manager of 666,
supplied the payee and amount.
Appellant did not deny the fact of multiple billing.
Rather, he attempted to show that his actions were
unaccompanied by the intent requisite to convictions
under 29 U.S.C. § 501(c).° Rubin claimed that organ-
izing drives and the maintenance of relationships with
®On the contents of that intent requirement, see United
States v. Ottley, 509 F.2d 667 (2d Cir. 1975); United States
v. Silverman, 430 F.2d 106 (2d Cir. 1970).
=
management required him to keep a large cash fund
at the ready. He testified that in a campagin to unionize
laborers at a particular plant, he had frequently had
to give a subordinate organizer as much as several
thousand dollars cash to compensate workers helping
in the drive and to entertain others. Checks were
too slow and cumbersome in the brief duration of
a campaign; laborers traditionally preferred cash. Cash
would frequently be required by the establishment at
which, over lunch or a drink, prospective members
were encouraged to join. Cash was sometimes necessary
to cover workers’ emergency needs during a strike.
Final! ;, cash was an important part of appellant’s efforts
to entertain management. Rubin testified of the impor-
tance of maintaining an “image of affluence.” He related
that he attempted always to carry four or five thousand
dollars in cash, with which he could pick up large
bills.
Appellant explained that he had employed the mul-
tiple billing practice to generate this cash. He testified
that local 666 and the District Council had authorized
him to make whatever expenditures from the union
treasury he deemed in the interest of the organization.
He had concluded that this authorization legitimized
the multiple billing and the use of the cash fund
for general organizing and maintenance of relations
with management. As for the employee welfare benefit
plans, Rubin testified that a lawyer had advised him
that it was legal to receive conference expense advances
from more than one entity, so long as any excess
over actual expenses was spent on union business.
On cross-examination, Rubin testified that he main-
tained no records of the cash fund or disbursements
from it. Moreover, the government’s evidence contained
- —_—_-
— =
Material responsive to appellant’s story. The annual
reports of each relevant entity, required by the Labor-
Management Reporting and Disclosure Act of 1959,
29 U.S.C. §§ 401-531, showed the amount of expenses
that entity had reimbursed, but the cash fund and
the disbursements from it never appeared. The govern-
ment introduced evidence tending to show that an
audit of any individual organization involved would
not have disclosed the multiple reimbursements. Finally,
the government documented a multitude of expenditures
not included in the indictment that appellant had not
covered out of any cash fund, but for which he had,
instead, received reimbursement.
Suffice it to say that after appellant told his story
the government’s case remained extremely strong. Ac-
cording to his own testimony, appellant had the legiti-
mate authority to draw a check on one of the union
treasuries whenever organizing or entertaining expenses
created the need for cash. Instead he generated cash
by copying assorted bills and charging them two to
four times over to various entities.
The witnesses called by appellant corroborated only
one aspect of his story: the fact of numerous and large
cash expenditures by Rubin, either as disbursements
to subordinates for organizing or as payments by himself
in entertaining. Including Wells and Gordon, eight wit-
nesses testified to this effect, six from the union ranks
and two contractors.
Larry Feder, an organizer for local 666, was perhaps
the chief union witness. He testified that over the
relevant years he had received between $35,000 and
$40,000 cash from Rubin for organizing expenses. Ad-
ditionally, he had witnessed Rubin spend large amounts
of cash at dinners with management.
= S=
The government attacked Feder’s credibility in
numerous ways. As with all the organizers who testified,
the government established the large salary received
by Feder at appellant’s direction. Feder admitted he
had kept no records of any of the thousands of dollars
he claimed to have received. Most importantly, the
government offered the testimony of Department of
Labor Agent William Gamble, who had interrogated
Feder regarding the money he received 2s an organizer,
specifically inquiring how his expenses were paid. Feder
had told Gamble that expenses were reimbursed upon
the submission of receipts. No mention was made of
ever receiving cash from appellant. The prosecutor
repeatedly emphasized Feder’s statement to Gamble
in his closing argument.
Jake Wright, a district council organizer, offered
similar testimony, accounting for approximately $6,000
cash received from appellant. On cross-examination,
Wright first testified that he thought he had told Agent
Gamble about the cash payment in response to questions
Gamble asked about organizing expenses. A review
of his statement to Gamble refreshed his recollection
to the contrary. Moreover, the government brought
out Wright’s grand jury testimony that he did not
know what Rubin did in his union offices. Again,
the prosecutor emphasized this impeachment material
in argument.
Besides Wells and Gordon, the defense called two
other union witnesses of relatively minor importance.
A laborer from local 478 testified that he had received
$2400 cash from appellant for work in an organizing
campaign. A shop steward from local 478 testified
that he had received $1,000 cash from Jake Wright
in each of two campaigns.
= =
Wells and Gordon each accounted for around $13,-
000 cash received from Rubin for organizing expenses,
though Wells testified at greater length and in more
detail. Apart from any effect of the impeachment by
grand jury silence, Wells’s testimony at many points
lacked credibility in its own right. On direct he at-
tempted to explain the absence of receipts for his
organizing expense. Wells testified that when an or-
ganizer takes a recruit out to lunch, he cannot impress
the prospect if he has to obtain a receipt. Wells further
testified that he did sometimes manage to collect re-
ceipts, but that these were frequently lost when his
wife washed his clothes. The prosecutor pointed to
Wells’s lack of credibility as well as his grand jury
silence in argument. Apart from Gordon’s grand jury
silence, the government attacked his testimony only
as it did that of each organizer—with the facts that
appellant controlled his salary and that Gordon had
kept no records of the cash he received from Rubin.
In short, the defense put on four union witnesses
of significance in the effort to corroborate the fact
of union related cash expenditures by appellant. With
the nossible exception of Gordon, who testified most
briefly of the four, each faced sharp attack from the
government apart from the impeachment use of Wells’s
and Gordon’s grand jury silence. The prosecutor empha-
sized those attacks in closing argumeni at least as
forcefully as the references to the silence of Wells
and Gordon.””
We reject the claim that the prosecution’s argument tended
to lump all the defense witnesses under the refusal of Wells
and Gordon to testify. When read in context, each of the
references to their grand jury silence is accompanied by distinct
references to the statements given to Agent Gamble by Feder
and Wright that were inconsistent with their trial testimony
and to Wright’s inconsistent statement to the grand jury.
nfities
[9] The jury’s verdict rests on either of two lines
of reasoning. Given the strength of the government's
case, the jury could well have believed the defense
witnesses’ testimony that Rubin made many large cash
payments related to union activities and still have con-
cluded that Rubin knew the multiple reimbursements
were unauthorized or that the multiple reimbursements
were unrelated to any such cash payments, sufficient
for them to find violations of 29 U.S.C. § 501(c).
That Rubin was a good union man is no defense
to the requirement of a modicum of accountability
for moneys expended for the union. The embezzlement __
statute imposes no penny pinching requirements, but
neither does it afford blanket exculpation for open-
handedness and benignity in the spending process. The
jury could easily have concluded that union activities
require big spending and that Rubin was a free spender,
but still have believed that he knew accumulating funds
by duplicate billing was unauthorized and that the
funds so accumulated were not benignly employed.
In that case the improper impeachment obviously had
no impact.
Alternatively, the jury may have disbelieved all or
part of the testimony regarding Rubin’s cash expendi-
tures. We find nothing in the cross-examination or
argument regarding the grand jury silence of Gordon
and Wells that would have any significant tendency
to impugn the testimony of Feder and Wright. To
the extent the jury disbelieved the latter pair, we are
confident they did so on the basis of the substantial
proper impeachment of the two.
Thus it appears that at most the improper impeach-
ment tended to discredit Gordon’s brief comments and
a
Wells’s testimony, not without substantial independent
implausibility. The effect of that tendency must have
been slight. There was no detensive attempt to match
the total allegedly embezzled sums to the expenditures
related by the witnesses. Each individual witness did
not occupy a linchpin position. Thus the possibility
that the jury believed Feder and Wright but rejected
the defense because of the improper impeachme .t of
Gordon and Wells is remote. Moreover, given the sum
of Gordon’s and Wells’s testimony, the possibility is
equally slim that the jury disbelieved the remaining
£
__. defense witnesses but would-have-accepted—the-defense
absent the improper impeachment. In light of the bal-
ance of the evidence and the place of Wells and
Gordon in the defensive lineup, we cannot conclude
that the erroneous impeachment use of their refusal
to testify before the grand jury was prejudicial under
the Kotteakos standard.“ Were that balance any dif-
ferent or the testimony of Wells and Gordon of any
more apparent importance, different considerations
would obtain. As this record stands, however, we harbor
nothing approaching a “grave doubt” that the error
did not exert a substantial influence on the jury. We
think it clear that the error was harmless.
“Appellant does not and could not claim that the single
explicit reference during Wells’s testimony to the privilege against
self-incrimination prejudiced him by creating a substantive in-
ference of Wells’s guilt that transferred to the defendant. See
United States v. Natale, supra; United States v. Glasser, supra.
That reference, though volunteered by Wells, was certainly fore-
seeable by the prosecutor. The government cannot escape blame
for any prejudice that might have arisen. Nevertheless it is
clear that no such prejudice did arise. The government at
trial consistent'y showed that the subordinates knew nothing
of appellant’s financial machinations; there was in the circum-
stances no suggestion to the jury of the witnesses’ involvement
in criminal behavior related to the charge against appellant.
—32—
II. Other Claims
We inay readily dispose of appellant's remaining
attacks on the validity of his conviction.
A. Failure to Record Grand Jury Proceedings
Appellant complains that the prosecutor’s comments
to the grand jury were not recorded. The trial court
denied motions to require recording of the grand jury
proceedings and to dismiss the indictment for failure
to do so. The government did record the testimony
of witnesses before the grand jury.
{10} The far better practice is to record grand
onion
the prosecutor improperly misinformed the grand jury
that Rubin was obstructing the investigation. Assuiiing
a defendant’s substantive right to dismiss @m indictment
based on prosecutorial misconduct so flagrant as to
deny fundamental fairness, we cannot regard appellant’s
speculation as a sufficient demonstration of need to
require reversal for the district court’s failure to require
recording, to order production of existing grand jury
records, or to conduct a hearing inquiring into the
prosecutor’s action.
~~
B. Electronic Surveillance Claim
jury proceedings, including the comments of the prose-
cutor. See United States v. Peden, 472 F.2d 583 (2d
Cir. 1972). Nevertheless there remains no constitutional
or statutory requirement of recording. See United States
v. Flanagan, 445 F.2d 263 (Sth Cir. 1971), United
States v. Howard, 433 F.2d 1 (Sth Cir. 1970). Accord-
ingly, the failure to do so, standing alone, provides
no predicate for reversal.
[11] A defendant may nevertheless obtain what
grand jury records do exist or receive a hearing on
what has transpired in the grand jury room upon
a showing of need. See United States v. Tucker, 526
F.2d 279, 282 (5th Cir. 1976); United States v. How-
ard, supra, 433 F.2d at 2-3. That showing, however,
must include more than unsubstantiated, speculative
assertions of improprieties in the proceedings.
[12] Appellant’s only allegation of prosecutorial
misconduct in the grand jury proceedings themselves
is that the prosecutor concentrated his questioning of
several witnesses on their conversations with their own
or appellant’s lawyers. From this appellant argues that
[I3, I4] Appellant also claims that the trial court
improperly handled his suggestion that government
agents had conducted illegal electronic surveillance of
his office. Under 18 U.S.C. § 3504(a)(1), a defendant
by asserting a claim of such surveillance requires the
government to affirm or deny its occurrence.'”
This court has made clear that a “mere assertion”
by a criminal defendant claiming surveillance of himself
is sufficient without supporting evidence to trigger the
government’s obligation to affirm or deny. See United
States v: Tucker, 526 F.2d 279, 282 (5th Cir. 1976).
However, we have also announced adherence to the
requirement that the assertion of surveillance be a
“positive statement that unlawful surveillance has taken
place.” Id.'* An allegation that it “may” have occurred
will not suffice.
1218 U.S.C. § 3504(a)(1) reads in full as follows:
Upon a claim by a party aggrieved that evidence is inadmis-
sible because it is the primary product of an unlawful
act or because it was obtained by the exploitation of
an unlawful act, the opponent of the claim shall affirm
or deny the occurrence of the alleged unlawful act.
SThere is no requirement that the allegation be sworn.
anne
Appellant failed to meet this requirement. Like the
claimant in Tucker, he filed a motion alleging only
a suspicion of surveillance, that he had “reason to
believe” someone had eavesdropped on conversations
in his office. The statutory provision for discovery
of illegal surveillance is a salutary one; it is not too
much, however, to require a positive representation
of such surveillance before the government's obligation
to respond arises. In any event that requirement is
already the law of this circuit.
[15] In passing we caution the government against
further _use of the form’ of limited response it did
— =
The statute defines “racketeering activity” to include
the offenses of embezzlement from union funds and
employee welfare benefits plans. 18 U.S.C. § 1961(1).
A “pattern of racketeering activity’ comprehends two”
or more such offenses within a ten year period. 18
U.S.C. § 1961(5).
Appellant’s concern is the requirement of § 1962(c)
that the offender conduct or participate in the conduct
of an enterprise’s affairs, here the affairs of the unions
and the benefit plans, through a pattern of racketeering
activity. He contends that the statute requires the gov-
y,
offer below. While an unadorned denial of illegal sur-
veillance may suffice to meet the barest, most general
accusation, that response must unequivocally deny the
occurrence of illegal surveillance, apart from any ques-
tion whether evidence against the defendant was ob-
tained thereby. While such a general denial may have
been the intended import of the government’s statement
here that “nc illegal activities were used to gain evidence
concerning Bernard Rubin”, the ambiguity created by
the negative pregnant would render this response inade-
quate.
C. Racketeering Instruction
[16] Lastly Rubin objects to the district court's
instructions defining the racketeering offense set out
in 18 U.S.C. § 1962(c). That section of the Organized
Crime Control Act of 1970 provides:
It shall be unlawful for any person employed
by . . . amy enterprise engaged in . . . interstate
or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enter-
prise’s affairs through a pattern of racketeering
activity ....
ee Re Le bee A Cr ee mn
ernment-to—prove that-he—acquired—ur—maintaimed his
labor union control by virtue of acts of embezzlement,
or that those acts somehow furthered his ability to
participate in or conduct the affairs of the enterprises.
The government maintains that to convict under the
racketeering statute the jury need only have found
two offenses during the course of appellant’s employ-
ment with one of the organizations.
Then District Judge Fay steered a middle course.
Tracking the language of the statute, he instructed
the jury that the government had to prove that
“through” the two or more offenses, the defendant
participated in the conduct of affairs of the various
union entities. Judge Fay rejected appellant’s only
suggestion for incorporating his reading of the statute
into the instructions, which was to include a statement
that “through” means “by means of”. The judge also
rejected an instruction proposed by the government
along the lines of its interpretation of § 1962(c).
The language of § 1962(c) is less than pellucid,
and appellant’s attempt to illumine has appeal. The
“Siatement of Findings and Purpose” that introduces
online
the Organized Crime Control Act of 1970 contains
some suggestion that Congress primarily concerned itself
with the use of racketeering activity to gain and main-
tain positions in legitimate business and labor or-
ganizations. See Pub. L. No. 91-452, 84 Stat. 922
(1970), reprinted in [1970] U.S.Code Cong. and Ad.
News 1073. The Ninth Circuit has emphasized the
importance to a § 1962(c) prosecution of establishing
a substantial nexus between the prohibited activity and
the conduct of the enterprise’s affairs in United States
v. Campanale, 518 F.2d 352 (9th Cir. 1975). On
>
ee ee ee Se eee
= =
[17] Having found no prejudicial error in the pro-
ceedings that culminated in appellant’s conviction, we
affirm that judgment. Appellant has, however, raised
a substantial objection to one aspect of his sentence,
to which we now turn.”
III. Forfeiture of Union Offices
[18-20] Upon appellant’s conviction of the racketeer-
ing charges, the district court issued an order pursuant
to 18 U.S.C. § 1963(a) that Rubin forfeit his offices
in the various unions and employee welfare benefit
the other hand, one court has found the statute satisfied
by two or more offenses committed in the course
of employment with the relevant enterprises, so long
as the offenses are themselves related. See United States
v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff'd.
527 F.2d 237 (2d Cir. 1975).
We find it unnecessary to attempt definitive resolution
of this issue. Assuming some required relationship be-
tween the proscribed acts and the maintenance of union
position, we find the trial court’s instructions suf-
ficient to convey that meaning. At least we cannot
find reversible error in the failure to add the proffered
words “by means of”. Appellant’s definition might have
emphasized the nexus, but would have added little
content to the definition of so common a word as
“through.” The evidence was certainly sufficient to
support a conclusion that appellant’s embezzled funds
served his position in the union organizations.
plans. Additional’y. the court ordered forfeiture in per-
petuity of the right to hold any such office. Appellant
challenges these orders as beyond the intended reach
of the forfeiture sanction.
Part of tiie Organized Crime Control Act of 1970,
(hereinafter the “Act”), 18 U.S.C. § 1963(a) provides:
Whoever violates any provision of section 1962
.. . Shall forfeit to the United States ... (2) any
interest in, security of, claim against, or property or
contractual right of any kind affording a source of
influence over, any enterprise which he has es-
tablished, operated, controlled, conducted, or par-
14Appellant raised four other claims of error. We reject
as meritless the claim relating to discovery of an Internal
Revenue Service file and that relating to the presence before
the grand jury of Department of Justice Organized Crime and
Racketeering Strike Force attorneys. Two claims, one asserting
that the trial court improperly excluded certain defense evidence
as hearsay and one challenging the court’s instructions on the
fiduciary duties of a union official under 29 U.S.C. § 501(a),
were raised pertinent to the embezzlement counts that ch
unlawful salary increases. We need not reach these claims be-
cause of the operation of the concurrent sentence doctrine.
—_— =
ticipated in the conduct of, in violation of section
1962.
The question before us is whether appellant’s various
offices are “interests”, “securities”, “claims”, or “proper-
ty or contractual right of any kind”, within the meaning
of § 1963(a). Given Congress’ clear intent to use
every possible means to separate those found guilty
of racketeering activity and their confederates from
the enterprises they had conducted through such activity,
we find no basis in language or policy for excluding
those offices appellant presently holds from the reach
of the forfeiture provision. The terms of that provision,
however, cannot reach appellant’s right to seek and
reattain such offices. That right, moreover, is independ-
ently regulated by provisions of the federal labor stat-
utes. Accordingly, we modify the forfeiture order en-
tered below, restricting its application to appellant’s
incumbent status in the enumerated offices.
As a criminal statute, § 1963 “must be strictly
construed, and any ambiguity must be resolved in favor
of lenity.” United States v. Enmons, 410 U.S. 396,
411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973).
This canon has particular application to forfeiture stat-
utes. See Baca v. Commissioner, 326 F.2d 189 (5th
Cir. 1964). Indeed, the forfeiture of a portion of
an individual’s property as a consequence of a criminal
conviction was unknown to the federal criminal law
until the passage of § 1963." Such a penal foray
bespeaks a need for circumspection.
Unlike in rem forfeiture proceedings against contraband
or articles put to unlawful use, § 1963 operates against the
person of the defendant and includes within the punishment
for his crime forfeiture of a portion of his estate. Such a
provision, while known to the common law of England and
cad
= =
That circumspection nevertheless must give fair heed
to the clear congressional intent to increase the variety
and strength of federal prosecutorial weapons designed
to root out and keep out the influence of organized
crime in legitimate business and labor organizations.
Congress found the traditional criminal sanctions of
imprisonment and fine wanting in the effort against
infiltration by organized crime. Incarcerating individuals
could remove them from the operation of victimized
organizations. So long as those individuals retained
or could transfer economic leverage over the organi-
zations, however, removing them to prison often resulted
only in the rule by proxy or in the promotion of
junior members of organized crime. As the Senate
Judiciary Committee stated, “What is needed here... .
are new approaches that will deal not only with
individuals, but also with the economic base through
which those individuals constitute such a serious threat.”
S.Rep. at 78 (1969); see also Measures Relating to
Organized Crime: Hearings on S.30 and Related Pro-
the colonies, is foreign to the federal criminal law. The 91st
Congress recognized that, in passing § 1963, it was partially
repealing a statute passed by the First Congress, which in
its present form provides that: “No conviction or judgment
shall work corruption of blood or forfeiture of estate.” 18
U.S.C. § 3563. See United States v. Mandel, 408 F.Supp.
679 (D.Md. 1976); S.Rep. 91-617, 91st Cong., Ist Sess 79-80
(1969), hereinafter S.Rep.); 116 Cong.Rec. 35205, 35208
(remarks of Rep. Mirka, Rep. Ryan).
Besides the unprecedented nature of the forfeiture sanction,
the uncertain reach of “patterns of racketeering activity”—the
gravamen of a § 1962 offense—requires interpretive caution
in this area. See Part II. A., supra. While addressed to organized
crime, the Act is not limited in application to members of
that undertaking. See United States v. Campanale, supra. Indeed,
while we readily conclude appellant was properly convicted
under the racketeering provisions we intend to intimate no
finding or sense of any kind that he is or has been affiliated
with what might be labeled organized crin:-.
—_— =
posals Before the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee, 91st
Cong., Ist Sess. 112 (1969) (statement of Attorney
General) (hereinafter “Senate Hearings”); Organized
Crime Control: Hearings on S.30 and Related Propos-
als Before Subcommittee No. 5 of the House Judiciary
Committee, 91st Cong.2d Sess. 107 (Statement of Sen.
McClellan) (hereinafter “House Hearings”); 116 Cong.
Rec. 35193 (1970) (remarks of Rep. Sisk).
The criminal forfeiture provision is one attempt to
destroy that economic base. Thus Congress clearly con-
templated forfeiture of any ownership or investment
type of interest a defendant might hold in an organi-
zation he had conducted through a pattern of racketeer-
ing activity. It is just such an interest that would
not otherwise terminate with incarceration and would
enable a defendant and/or his confederates to maintain
control of an organization.
The question is whether that language of § 1963(a)
— interest, security, claim, property or contract right—
should be extended beyond such financial interests to
elective or appointive management positions such as
those held by appellant. The scope of the statute is
indeed without precise boundaries." Appellant’s man-
“Judge Fay below explicitly noted the ambiguity in the
statute:
I would want the record to show that this is apparently
a gray area. It’s difficult to say that the statute is
or specific, because when it talks in terms of forfeit
something to the Government, you would ordinarily thin
of money or property, or something of that sort. (R.
821-22).
—_ =
agement positions do not present the same problem
regarding perpetuation of control that ownership in-
terests create.
Nonetheless we conclude that appellant’s entitle-
ment under the organic documents of the various en-
tities to serve the remainder of his terms of office
falls within the language of the statute. So far as
the record demonstrates, his rights under the charter
and constitutions of the various organizations to serve
out his terms of office are as contractual in nature
as an employee's rights under an employment agreement
for a term of years, terminable for cause. The terms
of the forfeiture provision reach beyond any narrow
definition of capital investment, embracing “property
or contractual right of any kind.” The Senate Judiciary
Committee wrote that the language “is designed to
accomplish a forfeiture of any interest of any type
in the enterprise... .” S.Rep. at 79. While such
open-ended intent cannot legitimate extension of the
sanction beyond the statute’s plain terms, limited to
their reasonably foreseeable scope, neither can it be
disregarded.
[21] Construing § 1963 to encompass the positions
appellant holds also accords with congressional intent.
First, retention of a management position, even in
absentia, could permit a defendant convicted under
the racketeering provisions to continue to exert an
influence over an enterprise. Moreover, althouga Con-
gress’ primary concern in enacting the forfeiture pro-
sndiffiion
vision was eradicating organized crime’s economic base,
which more readily translates into ownership interests,
it also intended forfeiture fully to serve the broader
goal of legally separating persons who run an enterprise
through the defined racketeering activity from the enter-
prise itself. See S.Rep. at 79."" Although applying
§ 1963 to appellant's offices may serve only this broader
goal and be unrelated to eliminating self-perpetuating
economic power, there remains no reason to conclude
that those offices lie outside the sanction’s reach.
[22] In short, a reasonably cautious interpretation
of the language of the forfeiture provision brings within
its reach the right under an organization’s charter to
serve out a specified term in an elective or appointive
management position of substantial influence. Such an
interpretation serves the policies identified by Congress
in enacting the statute. Because both those conditions
are satisfied, the order that appellant forfeit his present
positions in the various union entities is proper.”
The forfeiture sanction, however, can have no proper
effect on appellant’s right in the future to seek union
office, including those offices he must now give up.
That right to run for and hold office is not something
appellant as an individual has acquired or maintained
with respect to the various union entities; it is the
Senator McClellan, a sponsor of the provision, explained
to the House subcommittee that the forefeiture sanction would
“punish the criminal appropriately by forfeiting to the govern-
men
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