# Petition — Dunn v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1276%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 100 ## Text —, 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 , 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 — .