Petition — Dunn v. United States

—,

JUN 20 \978

OFFICE OF THE CLERK

SUPREME COURT. U.S.

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT DUNN, )

pefendant-Appel lant ;

vs. } w. pir LY LY

UNITED STATES OF AMERICA, }

praintiff-Appettee:

COMES Now the above named appellant, through his court

appointed counsel, Daniel J. Sears, Federal Public pefender

for the District of Colorado, and for his Petition for Writ

of certiorari states to the Court as follows:

1. The appellant, Robert Dunn, was convicted on three

(3) counts of a five-count indictment chargins false declarations

before 4 grand jury, in violation of Title 18, united States

Code, Section 1623. The yerdict was returned on April 14,

1977, and appellant was thereafter sentenced on May 23, 1977,

to five (5) years imprisonment on Count 11, and the same

sentences on convictions for Counts til and IV, to run con-

current to one another: Appellant filed 4 timely Notice of

Appeal and the matter was heard before the united States

Court of Appeals for the Tenth Circuit. On June 5, 1978, tne

Tenth Circuit affirmed the conviction of the trial court. A

copy of its Opinion is attached hereto:

2. The judgment sought to be reviewed was filed in

the United States Court of Appeals for the Tenth Circuit

on June 5, 1978. Jurisdiction is conferred on this Honorable

Court to review said judgment by Writ of Certiorari under

Title 28, United States Code, Section 1254(1).

3. The questions presented for review on appeal and

by Writ of Certiorari are as follows:

Can declarations made before 4 federal grand jury

under a grant of immunity pursuant to 18 U.S.C. §6002-

6003, be used to establish the corpus delecti of an

inconsistent declarations prosecution under Title 18,

United States Code, Section 1623(c), without its first

being established that the declarations under immunity

were false, thereby yiolating the immunity order?

Can a proceeding in a private attorney's office

before 4 local court reporter be deemed to be a pro-

ceeding ancillary to 4 y. S$. Court oF 4 federal grand

jury proceeding in sustaining 4 conviction under 18

U.S.C. §1623(c) ?

Can an admission by a witness before a federal

district judge that 90 percent of his grand jury

testimony was false be relied upon in sustaining 4

perjury conviction when the only theory presented to

the trial court and jury was one of inconsistent

declarations under Title 18, United Stats Code, Section

1623(c)?

4. This case involves the following citations of law:

x=

wt bin fo .

Cases

Kastigar V- united States, 406 U.S. 441, 92 S.Ct.

1653, 32 L.Ed, 2d 212 (1972)

People V- Denson, 59 111,24 546, 322 N.E.2d 464

People V-_——————

(1975)

ited States vy. Alter, 482 F.2d 1016 (9th Cir.

United States V-————

1973)

tates V- Berardelli,

United S

1977)

United States v. Cappetto, 502 F.2d 1351 (7th eer.

1974) cert- den., 420 u.S. 925

ited States V- Doe, 361 F.Supp- 226 (E.D. Penn.,

United States “-——

1973) affirmed, 485 F.2d 682 (3rd Gis. 1973)

cert. den-, 415 U.S. 989

United States vy. Housand, 550 F.2d 818 (2nd Cir-

1977)

ited States V- Patrick, 542 F.2d 381 (7th Gir.

v.S. :

united States VT

1976) cert- den.,

statutes

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

Title 18 United States Code,

«$-

565 F.2d 24 (2nd Cir.

—_—

Section 1621

Section 1623

Section 1623 (a)

Section 1623(b)

Section 1623(c)

Section 1623 (4)

Section 3503

Section 3503(d)

Section 3503(g)

Section 6001¢4)

Section 6002

Section 6003

other

United States Constitution, Fifth Amendment

U; Ss. Code Congressional and Administrative News,

1970 Session, Vol. II, pages 4008-4009

Bs On December 15, 1976, appellant Robert Dunn was

indicted on five counts of false declarations before a grand

jury or court pursuant to Title 18 United States Code, Section

1623. The indictment alleged inter alia that Dunn had made

sworn declarations before 4 federal grand jury on June 16,

1976, and subsequently, on December 30, 1976, had made sworn

declarations before a court reporter in the office of a local

attorney “in a proceeding ancillary to United States VS-

Musgrave, et rv Hee Criminal Case No. 76-CR-155." The indictment

further alleged that the "aforesaid sentovectons Sa

inconsistent to the degree that one of said declarations was

false and known by him to be false when made." On January 28,

1977, the defendant entered pleas of not guilty to all five

counts. On March 10, 1977, the defendant filed a Motion for

Bill of Particulars requesting that the government be ordered

to set out “which declarations in paragraphs 4 and 5 of each

count are inconsistent with each other, OT, in the alternative,

which of the statements alleged was false and known by the

defendant to be false when made.” In his Memorandum in

Support of Motion for Bill of Particulars, the defense argued

that it must be advised as to whether the government was pro-

ceeding on the theory that the declarations alleged were in-

consistent to the degree that one was necessarily false, the

theory authorized under subsection (c) of Title 18 U.S.C. §1623,

ate

or alternatively. intended to prove that the defendant's

June 16, 1976, grand jury declarations were false by showing

the September 30, 1976, recantation before the local attorney-

In the government 'S response to the Motion for Bill of

Particulars, the prosecutor cited the legislative history

for and the provisions under 1623(c), seemingly indicating

its intent to proceed on an inconsistent declarations theory-

The court, however, after hearing, denied the Motion for Bill

of Particulars.

At the commencement of trial on April 13, 1977, the

prosecutor in his opening statement used such phrases 4S

“so logically and inherently inconsistent that one of the

two times he had to be lying", "so inconsistent that he had

to be lying at one of the two times", “two inconsistent

statements, S° inconsistent that you have to infer that one

of them is false”, “infer the falsity of one of the statements

on the basis of their utter and complete inconsistency" - It

was thus clear that the theory of the prosecution was directed

toward an inconsistent declarations theory provided for under

1623(c).-

The government 'S first witness was the Clerk of the U. S-

District Court for the District of Colorado, who identified

the statement taken in the local attorney's office which had

been admitted as an exhibit in U. s. v. Musgrave, et al. On

cross-examination, the Clerk was asked to identify the use in-

munity orders compelling the appellant's testimony before the

federal grand jury on June 16, 1976. (it should be noted that

the appellant had claimed his Fifth Amendment privilege prior to

entry of the immunity order.) The government next proceeded

a$-

to offer the immunized grand jury testimony and the subsequent

recantation before the private attorney into evidence. The

defendant objected on the basis that the immunized grand jury

testimony could not be used in establishing the corpus delecti

in an inconsistent declarations prosecution unless the

government first showed that the immunity order had been

violated and the defendant testified falsely before the

grand jury, citing tne Patrick case. The government next

called a court reporter who indicated that he had taped

appellant's statement in the local attorney's office on

September 30, 1976. He, however, admitted on cross-examination

that none of the deposition procedures provided in Title 18

United States Code, Section 3503 had been used in taking such

statement. He conceded that Dunn had not been assured the

right to the presence of an attorney, had not been advised

of his rights 2s outlined in the statute, he had not given

notice to any other parties in the proceeding, and had made

no determination of Dunn's unavailability at any future pro-

ceedings in the pending criminal case.

At this juncture, it must be stated that as 4 result of

Dunn's testimony before the federal grand jury, Phillip Musgrave

and several other co-defendants were indicted for conspiracy

to manufacture drugs. The government contended that rhe

indictment resulted in part from Dunn's testimony- Dunn sub-

sequently met Musgrave on the street and indicated that his

testimony before the federal grand jury was false. Dunn, at

Musgrave's insistence, accompanied Musgrave to his attorney's

office whereafter Dunn recanted his grand jury testimony.

«en

Defense counsel for the various co-defendants in the Musgrave

case moved to dismiss the pending indictment on the grounds

that it was based on perjured testimony. After hearing

before the trial judge in the Musgrave case, the government

negotiated reduced pleas, although the indictment was not

dismissed.

After defendant's objections to the introduction

of the affidavit taken in the local attorney's office and

the jmmunized grand jury testimony were overruled and said

documents were admitted, the government called the prosecutor

who handled the grand jury investigation in U. S. V8:

2

Musgrave. et al. He testified to the materiality of Dunn's

testimony t° the grand jury investigation. On cross-examina-

tion, however, the prosecutor indicated that there was no

independent evidence to refute Dunn's grand jury testimony and

in fact, much of the independent evidence corroborated it.

The prosecutor further gndicated that other than Dunn's own

recantations, he was not aware of any independent evidence

establishing the falsity of the federal grand jury testimony.

i ra-

Defense counsel cross-examined the prosecutor on each decla

tion Dunn had made before the federal grand jury and received

* gndication that there was independent evidence to corroborate

the greater majority of it. The government subsequently

offered 4 transcript of testimony by appellant in a hearing

g i

in United States v. Musgrave, et al., on October 21, 1976- This

was the testimony presented by counsel for the co-defendants in

the Musgrave case to seek dismissal of the pending indictment.

Defense counsel objected on the grounds that the statements

or declarations made by Dunn in the October 21, 1976, pro-

«P<

ceedings were not set out as inconsistent declarations in

the indictment; and further, that such statements had not

been supplied by the government as required by Rule 16 of

the Federal Rules of Criminal Procedure. The objections

were overruled and the government closed its case. The

defense moved for a judgment of acquittal relying on United

States V. Patrick, 542 F.2d 381 (7th Cir. 1976), holding

that immunized testimony, to wit: Dunn's federal grand jury

testimony, could not be used to establish the corpus delecti

in an inconsistent declarations prosecution and further,

that the statement taken in the local attorney's office

could not be considered an inconsistent declaration in a

proceeding before or ancillary to 4 federal court OT grand

jury, as required under 18 U.S.C. §1623(c). The government

countered that the statement to the local attorney could be

considered ancillary to a U. S. court proceeding because said

attorney was representing 4 defendant in a4 pending matter in

U. S. District Court. The defense countered that Section

1623 simply could not be stretched that far. The prosecutor

once again affirmed that he was proceeding on an inconsistent

declarations theory. Relying on said representation, the

defense discharged its subpoenaed witnesses which were called

to prove the truth of the grand jury testimony. The jury was

instructed that the government need not prove which of the

declarations was false, but that the defendant made “irrecon-

cilably contradictory declarations material to the point in

question in any proceeding before or ancillary to a court OT

grand jury." In its decision affirming appellant's conviction

vie

in the United States Tenth Circuit Court of Appeals, the

appellate court affirmed Dunn's position that the proceedings

‘in the local attorney's office could not be deemed to be

a proceeding ancillary to a U. S. Court or federal grand

jury proceeding. The Tenth Circuit, however, affirmed the

conviction on the basis of Dunn's statements in the October,

1976, proceeding, admitting that his grand jury testimony was

false. However, 4s pointed out in appellant's Petition for

Rehearing, Dunn's statements in the October, 1976, proceeding

were as follows:

"Q Was what you told the grand jury true?

A No, sir.

Q Was any part of it true?

A Possibly ten percent."

Appellant contends that this admission before a federal

judge cannot be used as an inconsistent declaration in a

proceeding under 18 U.S.C. §1623(c) - The falsity of the

federal grand jury testimony was never before the court and

was never presented to the jury as 4 prosecution theory. The

trial jury rendered a verdict solely on the basis of incon-

sistent declarations; one said declaration having been made

before a grand jury, the other in a taped recording in a local

attorney's office. Appellant argued that such decisions 4s

United States V- Patrick, 542 F.2d 381 (7th Cir. 1976), United

States V. Housand, 550 F.2d 818 (2nd Cir. 1977), United States

Vv. Berardelli, 565 F.2d 24 (2nd Cir. 1977), could not on the

one hand sustain the theory that 4 witness could not be

prosecuted for inconsistent declarations thus being compelled

ae

to testify in a grand jury or court proceeding and on the

other, subject him to inconsistent declarations prosecution

by the use of immunized grand jury testimony in establishing

the corpus delicti. Though the Tenth Circuit did not overrule

said three cited cases, it did not render 4 decision in Dunn

that could be deemed consistent with Patrick, Housand or

Berardelli. Appeliant argued that the government simply could

not have it both ways. During the proceedings before the

federal judge on October 21, 1976, seeking to dismiss the

indictment, no attorney sought to take each specific declara-

tion that Dunn had made before the federal grand jury and

determine its inconsistency for the court. Such testimony

was not and could not have been presented as inconsistent

declarations since no declarations inconsistent with the

federal grand jury testimony were presented; only an admission

that ten percent of the statements before the federal grand

jury were true. Appellant's Petition for Rehearing is still

pending before the Tenth Circuit Court of Appeals.

6. The basis of federal jurisdiction in the first

instance was that the appellant was charged in the District

of Colorado with 4 violation of Title 18 United States Code,

Section 1623.

7. The appellant argues for allowance of a Writ of

Certiorari on the basis that the government's reliance on

immunized testimony in establishing the corpus delicti in an

inconsistent declarations prosecution cannot be sustained.

To compel the defendant on the one hand to testify truthfully

under an order of immunity thereby setting aside his Fifth

-10-

Amendment claim, but on the other hand, prosecuting him

for inconsistent declarations without proving 4 violation

of the immunity order is 4 violation of due process and his

Fifth Amendment privilege. Until and unless the government

proved that he testified falsely before the federal grand

jury, it could not use his grand jury testimony to establish

the corpus delicti in an inconsistent declarations prosecu-

tion. To do so, the Tenth Circuit Court must overrule the

Patrick, Housand and Berardelli decisions. The Tenth Circuit,

though not overruling said decisions, never explained how the

government accomplished its conviction without violating the

reasoning contained in those opinions. Further, the appellate

court cannot sustain a conviction based on the government 'S

use of an admission that grand jury testimony was false when

the trial jury was told that the falsity of the federal grand

jury testimony was not at issue. Such a conviction certainly

cannot be sustained in light of the admission by the govern~

ment that all the independent evidence pointed to the truth-

fulness of the federal grand jury testimony.

Based on the above circumstances, this Honorable Court

is urged to grant 4 Writ of Certiorari so that it may review

the conviction of the appellant below.

Respectfully submitted,

DANI J. SEARS

Federal Public Defender

\ Purited States Court of Appeals

TENTH circuit

orrice OF THe CLERK

TEs CourTHOUse

469 UNITED STA

po 80294

. DeNnvER. COLORA

TELEPHONE

303-837-3! 57

ARD x. PHILLIPS

a gune 5, 1978

pear Nr- Sears:

Enclosed is a COPY of the Court's opinion in

t has been entered today

the captioned case- Judgmen

in accordance with the opinion.

PIS ©

HOWARD K. PHILLIPS

Clerk

| y /|

Tee Able

bnt

Enclosure

cc: Honorable Sherman G. Finesilver

Attorney: Faward W- Nottinghem,

Denver:

joseph F- polan, U- Ss.

Asst. U- Ss. Actorney:s

Colorado g0294

fropert punn, c/o

323 U- S. Courthouse:

Federal Public pefender

FILED

United States Cou

1tof A

Tenth Circuit ppeals

JUN 5 1978

UNITED STATES

COURT OF APP

TENTH CIRCUIT —

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

;

)

)

vs.

ROBERT DUNN, NO. 77-1398

)

)

Defendant-Appellant.

FROM THE UNITE

D STATES DISTRIC

FOR THE DISTRICT OF aE

Daniel J. Sears

- Ss F ®

appellant. , Federal Public Defender , SUrene seas f

or

Edward F. ,

vise pig Baggage Asst. U. S. Attorney, (wi

; orney, on the brief) ee Joseph F.

ee.

Before B

ARRETT, DOYLE, LOGAN, Circuit Judges

BARRETT, Circuit Judge

is a Dunn appeals from his conviction of making false

‘“ :

ements before a grand jury in violation of 18 U.S.C. §1623

FACTUAL BACKGROUND:

aan ene 1976, under a a of immunity pursuant to 18 U.S.C.

a presented testimony to a grand jury investigating

_— — activity in the Colorado State Penitentiary D ‘

eneanneneed implicated Phillip Musgrave in the crimes aes ie

ee the grand jury proceeding, Musgrave and

RN ae eae, of conspiring to manufacture and

Voge agentacape ty stances. (United States v. Musgrave, et

- ined gsitands in September 1976, Dunn appeared in the office

se ae eels ae for Phillip Musgrave. In the presence

statement under oath apa ge TAY Ue PEN

recorded and transcribed wherein |

Oe at we ok nt testimony implicating Musgrave. aes pe

cade <iak wes saphena stated that much of what he had

ry was not true. Vol. -

paca Dunn made the statement, he was re poole ng

tne ee is nothing in the record which tidsenten

Sha ave appeared with counsel or that his

not completely voluntary. Dunn was fully cogni t

that Canges was representing Musgrave. : a

ED saga Sepa gatna tea notified the United States

. s recantation of his grand jur

scare Ca filed a eo of Dunn's niga A

ee eae court 0g 8 the Musgrave prosecution was

ee eave filed on behalf of Musgrave and others

gga Seances on the basis that such indictments had

~ saben oe ed on false grand jury testimony. An

capoatraae ea ees, motions was held before Judge Winner

satonneyyons fae 7 that time Dunn, who was then represented by

| ’ affirmed under oath that he had lied to the grand

His testimony of course, Was duly reported and

jury:

the charges against Musgrave were

trans¢ribed. As a result,

subsequently reduced.

Thereafter, Dunn was in

making false statements to a gran

§1623. The evidence against Dunn admitted at trial included:

punn's grand jury testimony, Dunn's Canges statement, and relevant

t the Musgrave motion hearing. At

en by the notary public who had

and by the united

dicted and charged with five counts of

d@ jury in violation of 18 U.S.C.

portions of Dunn's testimony 4

punn's trial, testimony was giv

administered the oath to Dunn in Canges' office,

f the grand jury proceeding. The jury

States Attorney in charge ©

ts of perjury before the grand

found Dunn guilty on three coun

jury-

On appeal Dunn contends that the tria

t the proceeding in Canges' office was

y of the United States, and 2)

1 court erred in 1)

ruling tha a proceeding

ancillary to 4 court or grand jur

ruling that immunized grand jury

establish the corpus Gelecti in an inconsistent declarations

testimony could be used to

prosecution.

PRELIMINARY DISCUSSION:

issues at hand, it is

Before proceeding to the specific

tinent statutes and the

y to discuss in some detail the per

indictment as drafted against Dunn, as such have a significant

bearing upon the specific issues raised on appeal.

18 U.S.C. §1623, captioned “False Declarations Before a Grand

Jury or Court" provides that:

*"(a) Whoever under oath in any proceedin

ancillary to any © t j

knowingly makes any false material

or uses any other information + «+ -

contain any false material declaration, shall be fined

not more than $10,000 or imprisoned not more than five

years; or both."

necessée@r

18 U.S.C. §1623(c)s outlines a statutory method of charging 4

witness with violating §1623 (a):

"(c) An indictment or information for violation of this

; section alleging that in any proceeding before or

ancillary to any court or grand jury of the united

States, the defendant under oath has knowingly made two

or more Geclarations, which are inconsistent to the

degree that one of them is necessarily false need not

specify which declaration is false + - —

In addition, §1623(c) sets forth a method for proving false

declarations:

"In any prosecution under this section, the falsity of 4a

declaration set forth in the indictment or information

shall be established sufficient for conviction by proof

that the defendant under oath made irreconcilabdly

contradictory declarations material to the point in

question in any proceeding before or ancillary to any

court or grand jury.”

Thus, §1623 (c) eliminates the two witness rule which is

quired to prove perjury. The government need not

otherwise re

false through extrinsic

prove which of the declarations was

evidence, Dut rather, the falsity of one ©

red from their inconsistency with each other.

Slawik, 548 F.2a 75 (3rd Cir.1977); United States V-

542 F.2d 381 (7th Cir.1976), cert. Genied 430 y.S. 931.

dictment of Dunn, all counts

£ the two declarations

is infer united

States V-

Patrick,

Turning now to the government's in

of the indictment read that:

"On June 16, 1976, at Denver in the District of Colorado,

ROBERT DUNN, while under oath as 4 witness in a

proceeding before a grand jury of the United States in

the District of Colorado, did knowingly make a false

material Geclaration +- + = in violation of Title 18,

U.S.C. §1623."

The indictment guotes the appropriate portions of Dunn's

jury testimony from 4 certified transcript wherein

The indictment also

initial grand

Dunn made statements implicating Musgrave.

quotes statements contradicting Dunn's gran

The concluding portion of each count against

d jury testimony made

in Canges' office.

Dunn included this language:

"6. The aforesaid declarations by ROBERT DUNN, 4s set

forth in paragraphs (4) and (5) of this count were

fs

inconsistent te the Guess fp be false wien —

In the preliminary stages of the proceedings below, enn moved

for a bill of particulars to determine which statements the

government intended to prove were false. The need for :

clarification is obvious. As quoted above, each count of the

indictment specified that during Dunn's appearance before the

grand jury in June, 1976 he knowingly made false material

declarations. On the other hand, the concluding portion of each

count indicated that the government was relying on 18 U.S.C.

§1623(c), where, as explained above, inconsistencies between

Dunn's grand jury testimony and Dunn's Canges statement would be

sufficient to prove the falsity of one or the other of them.

In response to Dunn's request for a bill of particulars, the

government Claimed to rely upon §1623(c). The government and Dunn

proceeded upon this theory of the case. For example, Dunn's

counsel properly concluded that evidence to show that Dunn's June

grand jury testimony was in fact true would be irrelevant in a

§1623 (c) prosecution. (Vol. II at 87, 113-114, 127-128, 153,

168). Of course, if the government had not chosen to proceed upon

the inconsistent declarations theory, the government would have

had to state which statements it intended to prove false, and

Dunn's defense would have been to demonstrate that in fact such

eet: testimony was true. In addition, the jury was properly

instructed that under 1623(c) the jury need not find which of the

statements, that is, Dunn's June grand jury testimony or Dunn's

— statement, was false, but rather that the jury need only

find that the statements were so inconsistent that one had to be

false. (Vol.II at 179).

CANGES' STATEMENT

Dunn's first argument is that the proceedings in Canges'

office did not constitute 2 proceeding ancillary to a grand jury

or court proceeding so as to come within the meaning of §1623(a)

and (c).

The term "ancillary proceeding” has seldom been construed.

_ Nor has the question of what other statement may be used to show

inconsistency with grand jury testimony. “Ancillary Proceeding”

is generally defined as "one subordinate to or in aid of another

primary action". Black's Law Dictionary (4th Ed.1968) at 112.

In the absence of a clear meaning for the term "ancillary

Proceeding", Dunn argues that his statement made in Canges'" office

was not taken in a proceeding before or ancillary to the grand

jury. He argues that Gerald Cohen was not an officer for the

United States District Court for the District of Colorado such

that a statement taken by him could be ancillary to the federal

court proceedings in United States v. Musgrave, and stresses that

he was not advised of his rights nor was counsel present. Dunn

analogizes to 18 U.S.C. §3503, which provides the method for

taking depositions of unavailable witnesses, and implies that

Procedures more closely adherent to those outlined in §3503 may be

found to be ancillary to a grand jury proceeding.

On the other hand, the government submits that Dunn's

affidavit in Canges' office was taken in a Proceeding ancillary to

the grand jury proceeding, where the testimony was given under

oath, administered by a notary public authorized to do so, where

the testimony was taken in the office of an attorney of a

defendant in a federal court Proceeding, and where the affidavit

was filed in that court proceeding and influenced the outcome of

that proceeding. ;

This court has concluded that while the Canges statement is

"ancillary", in the sense that it is connected to and had an

effect upon the grand jury proceeding, the event occurring in

Canges' office, in and of itself, is not a "proceeding" within the

meaning of the statute so as to be a Proceeding ancillary to a

grand jury proceeding. Despite the administration of the oath and

Presence of the notary public, we hold that the event lacks the

degree of formality the statute requires.

_ The court further concludes that Dunn's subsequent affirmation

of his Canges statement, in the course of the hearing conducted in

the

“proceeding. Thus, the admission

motion to dismiss the indictment,

district court on Musgrave's

learly constitutes a proceeding ancillary to the grand jury .

; into evidence of Dunn's testimony

motion was proper in that it

Canges statement,

during the hearing on Musgrave's

constituted an affirmation and adoption of the

supportive thereof and cumulative in nature.

the admission into evidence of Dunn's testimony

s not create a fatal variance

This court has

Furthermore,

given at the Musgrave hearing doe

between proof at trial and the indictment. abt

consistently held that a variance between the indictment and

evidence is not fatal unless the defendant could not have :

anticipated from the indictment what evidence would be aE ;

at trial or unless the conviction based on an indictment woul neg

bar a subsequent prosecution. United States v. Cowley, 452 F. am

243 (10th Cir.1971); United States v. Freeman, 514 F.2d 1184 Re

Cir.1975). Clearly, where Dunn's testimony in the Musgrave waists

hearing was inextricably related to his Canges winekcesene ic that is,

affirming the truth of the latter, it cannot be said that Dunn

that such evidence would be presented

could not have anticipated

i i his perjury trial.

mes pig also considered — = indictment

brought against Dunn meets the standards for sufficiency of an ie

indictment as set forth in United States v. Radetsky, 7 F.2d

(10th Cir.1976). The government has repeatedly stated its

reliance upon §1623(c) in this case. Therefore, to state an

offense under that statute, the government had to allege .

inconsistent statements by Dunn made in one or more proceedings

ancillary to a grand jury or court. In the indictment the

government pleaded Dunn's grand jury testimony and 7 Canges

statement, the latter of which we have determined is in and of

itself not taken in a proceeding ancillary to the grand jury.

while Dunn's testimony at the Musgrave hearing is clearly taken in

a proceeding ancillary to the grand jury the government completely

failed to plead such testimony in the indictment.

a

ae

However, the sufficiency of an indictment is to be determined

by practical rather than technical considerations, United States

v. Crim, 527 F.2d 289 (10th Cir.1976), cert. denied 425 U.S. 905.

Viewed in this practical light, where excerpts from the Canges

statement were necessarily included in the indictment to establish

"inconsistency", and where the Canges statement was inextricably

related to Dunn's testimony in the Musgrave hearing which was

taken in an ancillary proceeding, we hold that the indictment

sufficiently states an offense under §1623(c).

GRAND JURY TESTIMONY:

Having established by response to the bill of particulars that

the government intended to prove a violation of §1623(a) through

the use of the method prescribed in §1623(c), Dunn contends that

immunized grand jury testimony may not be used to establish the

corpus delecti of a prosecution for inconsistent declarations

without a prior showing of its falsity.

Prior to his testimony before the grand jury, Dunn was granted

immunity in accord with 18 U.S.C. §6002 which provides:

No testimony or other information compelled under the

order may be used against the witness in any criminal

case, except a prosecution for perjury, giving a false

statement, or otherwise failing to comply with the order.”

It is hornbook law that testimony given by a witness under a

grant of immunity cannot be used to incriminate him in crimes or

activities concerning which he gives testimony. Kastigar v.

United States, 406 U.S. 441 (1972). However, the grant of

immunity is never a license to commit perjury. In United States

v. Tramunti, 500 F.2d 1334, 1344 (2nd Cir. 1974), cert. denied 419

U.S. 1079, the court stated: :

"The immunity granted by the court does not confer

upon the witness the right to perjure himself or withhold

‘testimony. .. . The very purpose of the granting of

immunity is to reach the truth and when that testimony is

incriminating, it cannot be used against him. If the

witness thwarts the inquiry by evasion or falsehood, as

the appellant did here, such conduct is not entitled to

immunity. In fact, another crime not existing when the

immunity was offered is thereby committed. The immunity

does not extend in futuro."

Neither the Fifth Amendment nor statutory immunity offers a

witness protection against prosecution for perjury, United States

v. Frumento, 552 F.2d 534 (3rd Cir. 1977). In United States v.

Mandujano, 425 U.S. 564, 576 (1976), Chief Justice Burger,

speaking for the court, described the sanctions available to the

government when an immunized witness commits perjury:

"On the other hand, when granted immunity, a witness

once again owes the obligation imposed upon all citizens

- - the duty to give testimony - - since ‘mmunity

substitutes for the privilege.

"In this constitutional process of securing a

witness’ testimony, perjury simply has no place

whatever. Perjured testimony is an obvious and flagrant

affront to the basic concepts of judicial proceedings.

Etfective restraints against this type of egregious

offense are therefore imperative. The power of subpoena,

broad as it is, and the power of contempt for refusing to

answer, drastic as that is - - and even the solemnity of

the oath - - cannot insure truthful answers. Hence,

Congress has made the giving of false answers a criminal

act punishable by several penalities; in no other way can

criminal conduct be flushed into the open where the law

can deal with it."

§1623 is a species of perjury. Its enactment was intended to

facilitate perjury prosecutions and establish a new false

Geclaration provision applicable to federal Grand jury and court

Proceedings. United States v. Gross, 511 F.2d 910 (3rd Cir.

1975), cert. denied 423 U.S. 924; Organized Crime Control Act,

Title IV, 1970 U.S. Code Cong. and Ad. News at 4007, 8.

We feel that Congress intended to include §1623 false

declarations prosecutions within the perjury exceptions to the

immunity grant of §6002. But see United States v. Berardelli, 565

F.2d 24, 29 (2nd Cir. 1977). Such interpretation is in the spirit

of the perjury statutes, to insure’ against wrongs to the court and

—- exe *'

.

-

to meet the ends of justice. Bronston v. United States, 409 U.S. oa However unlik

> , e : .

sf ‘WEINE Win be i the fact Situations of the above deci

unn ’ ecision

» Dunn's Subsequent testimony in hi : s

S Canges

We observe that it would be an affront to the basic

~ $32 (1973) .

purpose of the criminal justice system to permit one to avoid

likely prosecution under the grant of immunity. The import of sistent with hie deeni ul

, : . s ze ra ; '

statements made in the context of a grand jury proceeding were contained Dunn's aGatont grand jury testimony, but, significa :

. , : : Sion tha : nt

recognized by the Supreme Court in United States v. Harris, 31ll . before the ad a t he had in fact testified false) Y,

U.S. 292 (1940): ment ne ugh we have held ¢

. €d not prove which of Dunn's state pane eee

Purposes of sy ini ——— oor ae

Staining his ; oie fer

: Na ; conviction

Section 125 of the Criminal Code makes no while we do not desta under §1623(a), ied, dee

distinction between the false assertions of the , } € whether, under Other ci

fact of prior statements and the false assertions immunized testimony may be admitted ee

of any other fact. Nor can we see any reason to without a prior show: €d to demonstrate inconsistenc

make one. As the Government points out, the - a ing of falsity, in our vi y

denial of the fact that certa.n statements have Ocal admission that his immunized a

been made may be equally as clear, Geliberate, jury was false aii ail testimony before the grand

and material a falsehood as the denial of any “ ; ied the use of Such immuni

other fact. And since statements made to govern- Stablish the corpus delecti of "ed testimony to

ment agents are senerally one of the bases upon ————— the present Prosecution

which criminal proceedings are instituted and

indictments returned, such a distinction micht Immunity Statutes are of cs

’ urse, ordi ‘

of the gover , Or inarily fo ,

nment . r the bene

* designed to effectively serve th an

“1e compelling

substantially impede effective administration of

(Emphasis supplied.) er .

©€cas of the crim}

riminal j :

1 justice System by Preventing a sub

Sudstantial

u

311 U.S., at p. 295.

those pur

eo Pf Poses. In Shotwell Mfg. Co. y United st

° at

63), the Supreme Court Said, inter li ee

r alia:

——“—<<<<1/_ °

We have carefully studied the cases relied upon by Dunn,

F.2d 381 (7th Cir. 1976),

+ te Plainly th ££ .

the offer of immunity containeg in

including United States v. Patrick, 542

cert. denied, 430 U.S. 931 (1977); United States v. Housand, 550 the volante Spee

F.2d 818 (2nd Cir. 1977), cert. denied, 431 U.S. 970 (1977); and the sae Teast, thar e Policy presupposed, at

These cases involve the wheghee giean breast of things saxpayer would

lonere tector oF Gan tie ink oe playin

United States v. Berardelli, supra.

interrelationship between §6002 immunity, the Fifth Amendment,

the Treasury

and §1623(c) inconsistent declarations prosecutions. Arising in

‘2 ~ : Once @a fray .

Pe upon they eg g2sclosure had been Getermineg

Such an fer had in ef Fes eooanized that

them or ae had in effect been withdeo that

— . <smOunting to the Same thin réwn as to

nger entitled t , that the

the general proposition that immunized testimony may not be used

to establish the corpus delecti of an inconsistent declarations were no lo

’ ; O Place reliance On it

prosecution without a prior showing of falsity.

-1ll-

,710-

Petitioners are thus in legal effect left in no

, better position than they would have been had

the treasury formally withdrawn its offer of

immunity before their disclosure figures were

furnished. (Underlining supplied.)

371 U.S., at pp. 349, 350.

In the instant case, Dunn's recantation was, in an analogy

to Shotwell, supra, an admission that he had not made a "clean

breast of things” in his immunized testimony before the grand

jury which implicated Musgrave. Thus, such false testimony

stripped him of the cloak of immunity which he was initially

entitled to rely upon. Dunn's recantation thus -- as in Shotwell

-- in legal effect left him in no better position than he would

have been in had the Government formally withdrawn its offer of

immunity before he testified before the grand jury.

=} 2-

tee ol