Appendix — Dunn v. United States
Supreme Court brief1979
Ask Donna
What actually matters in this document.
Text
_ APPENDIX N 5 1979
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No. 77-6949
ROBERT DUNN,
Petitioner,
—vs.—
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
PETITION FOR CERTIORARI FILED JUNE 20, 1978
CERTIORARI GRANTED DECEMBER 11, 1978
ee
IN THE
Siuywrenw Court of the United States
OCTOBER TERM, 1978
No. 77-6949
ROBERT DUNN,
Petitioner,
-—U3.-——
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
INDEX
Page
Chronological List of Relevant Docket Entries .......... 1
I is atcha tpemicmrsnteaibdre chu dbuloacsotecebeoeed cab ics 3
Motion for Bill of Particulars —.......00............ oe eS 12
Memorandum in Support of Motion for Bill of Particulars.... 14
Government’s Response to Motion for Bill of Particulars... 17
Defendant’s Exhibit F-1—Application for Order to Grant
RINE LIN Aa See Ses OREO aes Ey ON AE lie Se 20
Defendant’s Exhibit F-2—Order Granting Immunity ............ 23
Government’s Exhibit 1-a—Grand Jury sis aheaen of Robert
REESE Stet ESL eRRPRS RS Ae tn les BeOS TL Sern AE TOT 25
Government’s Exhibit 2-a—Canges’ Affidavit of Dunn ........... 33
Government’s Exhibit 4-a—Dunn’s Testimony at October 21,
REE EDEN REE ees ro RBI Urey SES MONTE LS AORN RE 43
ii INDEX
Transcript of Trial Proceedings:
Offer of Defendant’s Exhibits F-1 and F-2, and Objection
te Pisintif’s Rabi 3 .W.. 3 eee
Offer and Objection to Plaintifi’s Exhibit 1 0.000...
Stipulation to Defendant’s Exhibits F-1 and F-2 _.........
Testimony of Rod Snow, Witness on Behalf of Plaintiff:
Divest, Minsaninotioe - oo a ee
Crean Teme: cic. ancccncnndccnaseeieeeee
Motion for Judgment of Acquittal 2.00000.
Objections to Government’s Exhibits l-a, 2-a, and 4-a_...
Excerpt from Plaintiff’s Closing Argument ....................
Excerpt from Trial Court’s Instructions —.........0...............
Motion for Judgment of Acquittal 2000000000
rth Ta css scsstins cece
) ENON S ery Stier PN Ts suabenlas
Opinion of Court of Appeals, Filed June 5, 1978 —..................
Denial ef Petition for Reheouwritee ...icince ee
Order of the Supreme Court of the United States Granting
Motion for Leave to Proceed In Forma Pauperis and Grant-
ing Petition for Writ ef Cortnenie 2c ee
Page
47
48
49
49
51
55
56
57
57
59
63
68
70
81
82
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
1976
12-15 INDICTMENT ($5,000-10%)
Warrant of Arrest issued.
1977
2-11 ARRAIGNMENT (SGF) Deft. enters plea of NOT
GUILTY to Cts. 1, 2,3... Case be set for trial 4-11-77
... Deft. has 15 days to file motions . .. Bond cont’d. eod
2-14-77.
2-23 Trial set for wk of 4-11-77.
3-10 MOTION of Deft. for Bill of Particulars.
**3-16 Minute Order (SGF) Deft’s Motion for Bill of Par-
ticulars is set for hearing 3-25-77 at 10 a.m... . Govt. to
file answer on or before 3-25-77. c.o.m.
3-18 Govt’s Response to Motion for Bill of Particulars.
3-22 Memo in Support of Motion for Bill of Particulars.
3-25 HEARING (SGF) Oral argument waived... Ordered:
Motion for Bill of Particulars is denied . . . Bond cont’d
.. . Recess. eod 3-28-77.
4-13 Trial Brief of Deft.
MOTION of Deft. for Judgment of Acquittai.
**4-11 TRIAL TO JURY (SGF) Ist Day... Jurors selected
—excused to 4-13-77
4-13 TRIAL TO JURY (SGF) 2nd day... Jurors sworn to
try ... Witnesses ... Exhibits .. . Closing arguments
.. . Court instructs jury ... Jury commences delibera-
tions .. . Court in recess to 4-14-77. eod 4-19-77
2
RELEVANT DOCKET ENTRIES—CONTINUED
1977
4-14 TRIAL TO JURY (SGF) 3rd Day .. . Jury continues
deliberations ... Jury returns verdict of NOT GUILTY
to Ct. 1, GUILTY to Ct. 2, GUILTY to Ct. 3, GUILTY
to Ct. 4, NOT GUILTY to Ct. 5 . . . Motions to be filed
by 4-25-77 ; reply due by 5-2-77 . .. Bond cont. eod 4-19-77
5-6 HEARING (SGF) Ordered: Hearing on Deft’s Motion
for Acquittal filed during trial set for special hearing
on 5-23-77 at 9 a.m. eod 5-6-77.
5-13 Signed (SGF) Order re: Govt. has until 5 p.m. 5-16-77
to file answer & memo of authorities to Deft’s Motion for
Acquittal & pre-trial brief . . . Deft. has until 5 p.m.
5-19-77 to file any response. eod 5-17-77 c.o.m.
5-23 HEARING (SGF) Re: Motion for Judgment of Acquit-
tal... Matter submitted on briefs . . . Ordered: Motion
is denied . . . Oral findings of fact & conclusions of law
given from bench... Recess. eod 5-24-77
5-23 SENTENCING (SGF) Deft. be impr. 5 yrs. as to Cts.
2, 3, 4; Cts. 3 & 4 to run conc. w/Ct. 2... Deft. advised
of right to appeal . . . Bond cont’d pending appeal...
Transcript for appeal to be pd. for by govt . . . Deft. to
report to Prob. Office on the 1st & 15th of every mo.
while on bond pending appeal, advising them of current
address & place of employment... eod 5-24-77
Signed (SGF) Judgment and Commitment. eod 5-24-77
3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
ROBERT DUNN, DEFENDANT
INDICTMENT—Filed Dee. 15, 1976
18 USC § 1623
COUNT I
The Grand Jury charges that:
1. On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a wit-
ness in a proceeding before a Grand Jury of the United
States in the District of Colorado, did knowingly make
a false material declaration, as more fully set forth in
paragraphs 2 through 6 of this Count I, in violation of
Title 18, United States Code, Section 1623.
2. At the time and place aforesaid, the Grand Jury
was conducting an investigation to determine whether
there were violations of the federal conspiracy and drug
abuse prevention and control statutes.
3. It was a matter material to this investigation to
determine whether ROBERT DUNN had ever assisted
Phillip Musgrave in smuggling controlled substances into
the Colorado State Penitentiary through Steve and Debbie
Strammel.
4. At the time and place aforesaid, ROBERT DUNN,
while under oath, did knowingly declare before the
Grand Jury with respect to the aforesaid material matter
as follows:
Q. Did you assist him (Phillip Musgrave) in
getting stuff smuggled into the penitentiary?
A. Yes, sir, once.
4
Q. Was that with the Strammels?
A. Yes, sir.
5. At atime subsequent to ROBERT DUNN ’s declara-
tion as aforesaid, that is, on September 30, 1976, while
under oath as a witness in a proceeding ancillary to
United States v. Musgrave, et al., Criminal Case No.
76-CR-155, ROBERT DUNN did knowingly declare with
respect to the aforesaid material matter as follows:
Q. What about Steve Stramel. Did you ever
know Steve Stramel?
A. Uh not knowing, by being introduced to him.
I seen him at one time.
Q. Where did you see him?
A. Uh him and a girl Debra, Debbie uh came up
to see Phillip and I seen him across the visiting
room. I was visiting with some friends of mine that
came up from Denver and I just seen him from a
distance. I... I couldn’t even... I doubt if I
could recognize him.
Q. You never had any conversation with either
Steve...
A. Nosir.
Q. ... or his girlfriend or wife, Debbie?
“A. No.
Q. Did you ever smuggle in drugs to the institu-
tion from Steve and Debbie?
A. Nosir.
6. The aforesaid declarations by ROBERT DUNN,
as set forth in paragraphs four (4) and five (5) of
this Count I were inconsistent to the degree that one of
said declarations was false and known by him to be
false when made.
COUNT II
The Grand Jury further charges that:
1. On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a wit-
ness in a proceeding before a Grand Jury of the United
States in the District of Colorado, did knowingly make
5
a false material declaration, as more fully set forth in
paragraphs 2 through 6 of this Count II, in violation of
Title 18, United States Code, Section 1623.
2. At the time and place aforesaid, the Grand Jury
was conducting an investigation to determine whether
there were violations of the federal conspiracy and drug
abuse prevention and control statutes.
3. It was a matter material to this investigation to
determine whether Phillip Musgrave ever gave ROBr RT
DUNN a controlled substance while both were incar-
cerated in the Colorado State Penitentiary.
4. At the time and place aforesaid, ROBERT DUNN,
while under oath, did knowingly declare before the Grand
Jury with respect to the aforesaid material matter as
follows:
Q. Did he (Phillip Musgrave) have drugs there
in the penitentiary?
A. All the time.
Q. Did you work with him or for him in the
penitentiary?
A. I was a gopher boy; I went for pop, com-
mensary and held his stash for him.
Q. What did you get in return?
A. A fair amount of speed every time he’d cop.
Q. Every time he had some, he’d give you some?
A. Oh, yes, sir. I don’t know whether it was
because he liked me, because he wanted to do it, or
because he was paranoid if he didn’t do it, some-
thing bad would happen at first.
5. At atime subsequent to ROBERT DUNN’s deciara-
tion as aforesaid, that is, on September 30, 1976, while
under oath as a witness in a proceeding ancillary to
United States v. Musgrave, et al., Criminal Case No.
76-CR-155, ROBERT DUNN did knowingly declare with
respect to the aforesaid material matter as follows:
Q. During the time that you were in the peni-
tentiary uh did Phillip Musgrave ever give you any
drugs of any sort?
A. Nosir, he didn’t.
6
6. The aforesaid declarations by ROBERT DUNN,
as set forth in paragraphs four (4) and five (5) of this
Count II were inconsistent to the degree that one of
said declarations was false and known by him to be false
when made.
COUNT III
The Grand Jury further charges that:
1. On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a wit-
ness in a proceeding before a Grand Jury of the United
States in the District of Colorado, did knowingly make
a false material declaration, as more fully set forth in
paragraphs 2 through 6 of this Count III in violation
of Title 18, United States Code, Section 1623.
2. At the time and place aforesaid, the Grand Jury
was conducting an investigation to determine whether
there were violations of the federal conspiracy and drug
abuse prevention and control statutes.
3. It was a matter material to this investigation to
determine whether ROBERT DUNN made telephone calls
to Kate Blehm regarding drugs from the Colorado State
Penitentiary.
4. At the time and place aforesaid, ROBERT DUNN,
while under oath, did knowingly declare before the Grand
Jury with respect to the aforesaid material matter as
follows:
Q. Did you make some calls for Musgrave to
Kate?
A. Yes, sir, I did.
Q. Did he give you the phone number?
A. Yes, sir, both of them.
Q. He gave you two phone numbers?
A. One where she worked at the—881-2273, at
the Rustic Resort and at home, 881-2278, and that? S
in Belleview. I may have them numbers mixed up,
but I’m not sure. It’s been quite a while since I
called the number.
Q. So you would call and give messages to Kate
also in addition to Musgrave?
A. Yes.
7
Q. Did you have any code names you were sup-
posed to use?
A. He was one, Jimmy Heath was two and I was
three.
Q. Did you talk about speed or did you use an-
other word?
A. Bull shit, excuse me. F
Q. That was the code name for the speed?
A. Yes, sir.
9. Ata time subsequent to ROBERT DUNN’s declara-
tion as aforesaid, that is, on September 30, 1976 while
under oath as a witness in a proceeding ancillary to
United States v. Musgrave, et al., Criminal Case No.
76-CR-155, ROBERT DUNN did knowingly declare with
respect to the aforesaid material matter as follows:
Now who is Kate?
Kate Blehm.
And who was she?
Phil’s uh girl.
Alright.
Uh he asked me if I would call her and ask
and have her bring up a book, you know, like
a tarot card book that uh shows you how to read ’em
and how to uh understand ’em. And uh to be sure
and come up and see him. Uh that was it.
Q. Was there any mention or any code with
reference to drugs in any conversation with Kate
Blehm?
A. Nosir.
Q. Did Phillip tell you what to say to her inso-
far as code which might involve speed or the smug-
gling of drugs into the institution?
A. No sir. All he said was see... tell her to get
me uh a tarot card book and to be sure and come
up to see him.
6. The aforesaid declarations by ROBERT DUNN,
as set forth in paragraphs four (4) and five (5) of this
Count III were inconsistent to the degree that one of
said declarations was false and known by him to be false
when made.
/ POPOPO
8
COUNT IV
The Grand Jury further charges that:
1. On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a wit-
ness in a proceeding before a Grand Jury of the United
States in the District of Colorado, did knowingly make
a false material declaration, as more fully set forth in
paragraphs 2 through 6 of this Count IV, in violation
of Title 18, United States Code, Section 1623.
2. At the time and place aforesaid, the Grand Jury
was conducting an investigation to determine whether
there were violations of the federal conspiracy and drug
abuse prevention and control statutes.
3. It was a matter material to this investigation to
determine whether Phillip Musgrave ever gave ROBERT
DUNN a list of chemicals useful in the manufacture of
methamphetamine.
4. At the time and place aforesaid, ROBERT DUNN,
while under oath, did knowingly declare before the
Grand Jury with respect to the aforesaid material mat-
ter as follows:
Q. During February of ’76, did you see Mus-
grave again and find out—did he say that he still
wanted any of those chemicals?
A. Yes. I was living out on West 58th Avenue
in Arvada, 14500 West 58th. It was a 10-acre farm
that me and a friend of mine was renting—me and
a friend of mine and his wife, and it was pretty
excluded, had a barn. And the guy that I was living
with, he worked out at Continental Oil also and he
came into town looking for me on a Monday and I
had just had some teeth pulled and I didn’t feel
like messing with anybody so I just started spacing
him out—just not meeting when I was supposed to,
and he chased me for three and a half days until
he finally caught up with me.
Q. What did he want when he caught up with
you?
9
A. Propenyl, methylamine. He wrote out on an
envelope—a big manilla envelope that I still have—
all the chemicals that are needed.
Q. Musgrave wrote this out on the envelope?
A. Yes, sir.
5. At atime subsequent to ROBERT DUNN ’s declara-
tion as aforesaid, that is, on September 30, 1976 while
under oath as a witness in a proceeding ancillary to
United States v. Musgrave, et al., Criminal Case No.
76-CR-155, ROBERT DUNN did knowingly declare with
respect to the aforesaid material matter as follows:
Q. Did you ever at any time ever get a list of
chemicals from Mr. Musgrave for any purpose?
A. Nosir.
6. The aforesaid declarations by ROBERT DUNN,
as set forth in paragraphs four (4) and five (5) of this
Count IV were inconsistent to the degree that one of
said declarations was false and known by him to be
false when made.
COUNT V
The Grand Jury further charges that:
1. On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a wit-
ness in a proceeding before a Grand Jury of the United
States in the District of Colorado, did knowingly make
a false material declaration, as more fully set forth in
paragraphs 2 through 6 of this Count V in violation of
Title 18, United States Code, Section 1623.
2. At the time and place aforesaid, the Grand Jury
was conducting an investigation to determine whether
there were violations of the federal conspiracy and drug
abuse prevention and contro] statutes.
3. It was a matter material to this investigation to
determine whether Edward Perkins had ever delivered
methamphetamine to ROBERT DUNN.
4. At the time and place aforesaid, ROBERT DUNN,
while under oath, did knowingly declare before the Grand
Jury with respect to the aforesaid material matter as
follows:
10
Q. Did you have a meeting with Perkins some
time?
A. He came down one night. Cebe sent me down
a half ounce as a bonus for the girl I got him, that
Kris.
Q. Was this in November or December of ’75?
A. Yeah.
Q. Okay.
A. And Eddie Perkins come down and delivered
it.
Q. Delivered it to you?
A. No, he come in kind of funny. He come in
the front door of the apartment, said it was on the
outside window sill of the bedroom and it was one of
these—it was a basement where you couldn’t roll the
windows and they were roll-type windows and you
couldn’t rol] them all the way out and I couldn’t get
my arm out there and Charlotte, my girl at the
time, couldn’t get her arm out there, so he stuck
his arm out there and got it. .
Q. And gave it to you?
A. Yes, sir, and then he did about six 180 de-
gree turns and out the door.
5. At atime subsequent to ROBERT DUNN ’s declara-
tion as aforesaid, that is, on September 30, 1976, while
under oath as a witness in a proceeding ancillary to
United States v. Musgrave, et al., Criminal Case No. 76-
CR-155, ROBERT DUNN did knowingly declare with
respect to the aforesaid material matter as follows:
Q. You’ve met Eddie Perkins once or twice?
A. Uh twice.
Q. And how long did each of those meetings or
uh social events take place?
A. With Mr. Perkins the first time, it was about
three minutes. In other words, he came in and de-
livered a message you know, Phillip was in town
and if I wanted to see and meet him for dinner. And
the second time was at uh Aurora, a friend of
mine’s house. Went out to uh... I went out to
sell a guy some tires and Eddie was there. Uh
11
somethin’ happened to his car. Oh, his wife or his
ex-wife took his car and he didn’t have any trans-
portation. And he was waitin’ for a ride andI...
that was no more than hello and goodbye.
Q. Did you ever have any business dealings of
any sort with Mr. Perkins?
A. Nosir.
Q. Did you ever buy any speed from him?
A. No, but I’d sure like to sell him some.
Q. Did you sell him any?
A. No.
Q. Alright. Did you ever discuss speed with Mr.
Perkins?
A. Nosir.
6. The aforesaid declarations by ROBERT DUNN, as
set forth in paragraphs four (4) and five (5) of this
Count V were inconsistent to the degree that one of said
declarations was false and known by him to be false
when made.
A TRUE BILL:
/s/ (Illegible]
Foreman
JAMES L, TREECE
United States Attorney
BY: /s/ Edward W. Nottingham
EDWARD W. NOTTINGHAM
Assistant United States Attorney
12
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
[Title Omitted in Printing]
MOTION FOR BILL OF PARTICULARS—
Filed March 10, 1977
COMES NOW the defendant, by and through his coun-
sel, Federal Public Defender, Daniel J. Sears, and re-
spectfully moves this Court for a Bill of Particulars as
to the following matters:
1. In paragraphs 4 and 5 of each respective count,
the indictment in the above case alleges that the defend-
ant made certain declarations before the Grand Jury
and on September 30, 1976, in a proceeding ancillary
to United States v. Musgrave, et al., Criminal Case No.
76-CR-155, respectively. In paragraph 6 of each re-
spective count, the indictment alleges that the “afore-
said declarations . . . as set forth in paragraphs four
(4) and five (5) ... were inconsistent to the degree
that one of said declarations was false and known by
him to be false when made.
The defendant requests that the government file a
Bill of Particulars setting out which of the declarations
in paragraphs 4 and 5 of each count are inconsistent
with each other, or, in the alternative, which of the
statements alleged was false and known by the defend-
ant to be false when made.
As grounds therefore, the defendant states:
1. That each count charges a violation of Title 18,
United States Code, Section 1623 without alleging the
subsection under which he is charged. The indictment
alleges the language of an inconsistent declarations viola-
tion in the language of subsection (c) yet alleges that
one of said declarations was false without specifying
which it intends to prove is false.
2. The defendant requires such information to ade-
quately prepare a defense.
13
WHEREFORE, the defendant requests that a Bill of
Particulars be filed by the government specifying which
declarations it deems inconsistent in each count, or in the
alternative, which declarations it charges were false and
known to the defendant to be false when made.
Respectfully submitted,
/s/ Daniel J. Sears
DANIEL J. SEARS
Federal Public Defender
[Certificate of Service Omitted in Printing]
14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
[Title Omitted in Printing]
MEMORANDUM IN SUPPORT OF
MOTION FOR BILL OF PARTICULARS—
Filed March 22, 1977
It is well held that a Motion for Bill of Particulars
is addressed to the sound discretion of the trial court.
United States v. Hedges, 458 F.2d 188, 191 (10th Cir.
1972). And a decision by the trial court will not be
disturbed absent an abuse of discretion such that an
accused was denied information which would have more
specifically defined the offense charged. United States
v. Gleeson, 411 F.2d 1091 (10th Cir. 1969).
The indictment, on its face, must be sufficient to allow
a defendant to adequately prepare a defense. If it is
not, then a bill of particulars should fulfill that func-
tion. Tritt v. United States, 421 F.2d 928, 950 (10th
Cir. 1970).
It is no answer to a denial of a bill of particulars
to say that a defendant knew what he did. King v.
United States, 402 F.2d 289, 292 (10th Cir. 1968).
The defendant in the present case submits that in
order to effectively prepare for trial, he must know the
specific allegations of inconsistent declarations he must
meet, or, in the alternative, which declarations the gov-
ernment contends are false. What must be met as a
matter of proof to defend against charges that declara-
tions made on two separate occasions are inconsistent
with each other is substantially different than prepar-
ing to prove the truth of alleged false declarations. And
where the declarations alleged to be inconsistent or false
are several within a single count of an indictment, the
defendant must be apprised of which particular state-
ments are alleged to be inconsistent with each other, or,
in the alternative, which were allegedly false when
made.
15
If, in an obstruction case, the defendant is entitled
to know the identities of jurors or acquaintances through
whom influence or intimidation was alleged to have been
transmitted, certainly statements alleged to be incon-
sistent, or, in the alternative, false in a perjury case
should be set out to the defendant. Cefalu v. United
States, 234 F.2d 522, 525 (10th Cir. 1956).
The government in its Response to Motion for Bill of
Particulars misconstrues the defendant’s request. The
defendant agrees that only one offense is defined under
18 U.S.C. $1623 with alternative ways of violating
the statute. The defendant submits, however, that he is
entitled to know under which theory the government
expects to proceed. The language of the indictment
closely follows the phraseology of 18 U.S.C. § 1623(c)
but subsection “ce” is not cited. The defendant will be
greatly prejudiced if it prepared a defense of an in-
consistent declaration theory and discovers, at trial, that
the government expects to prove that some of the state-
ments were false when made. A bill of particulars serves
to prevent such surprise to a defendant. Williams v.
United States, 289 F.2d 598, 601 (9th Cir. 1961). De-
fendant requests that the government particularize which
section of the statute is being proceeded under, and if it
is subsection ¢c, then which particular declarations are
alleged to be inconsistent with each other.
To answer that any ambiguity, as the government
states in its Response, is “resolved by a reading of the
grand jury transcript against the transcript of Mr.
Dunn’s subsequent statement under oath . . .” points out
the very problem. The defendant is entitled to know
which statements in the grand jury transcript are to be
read against which statements in the subsequent sworn
statement.
Paragraph one of each count alleges that the defend-
ant “while under oath as a witness before a Grand
Jury of the United States in the District of Colorado,
did knowingly make a false material declaration, as
more fully set forth in paragraphs 2 through 6 of this
Count ——, in violation of Title 18, United States Code,
Section 1623.” (See Indictment; Emphasis added.) In
16
paragraphs 4 and 5 of each count, certain declarations
are alleged to have been made without specifying which
were allegedly false. Paragraph one alleged that false
declarations were made and promised to “more fully set
forth” those false declarations but did not identify those
which are alleged to be false as promised.
In paragraph 6 of each count, the indictment alleges
that “[t]he aforesaid declarations by Robert Dunn, as
set forth in paragraphs four (4) and five (5) of this
Count—were inconsistent to the degree that one of said
declarations was false and known by him to be false
when made.” (See Indictment. )
Thus, the government has charged in paragraph one
in each count that false declarations were made before
the federal grand jury but has not specified which were
false. Under such an allegation, the government must
prove beyond a reasonable doubt that such an allegation
was knowingly false when made.
Title 18, U.S.C. $1623(c) provides, however, that
where the defendant “has knowingly made two or more
declarations, which are inconsistent to the degree that
one of them is necessarily false .. .” the government
“need not specify which declaration is false .. .” if cer-
tain conditions are met. Title 18, United States Code,
Section 1623(c) (as amended, 1970). The inconsistent
declarations language is alleged in paragraph six of each
count.
Therefore, paragraph one of each count charges a false
declaration under 18 U.S.C. § 1623(a) without specify-
ing which is false, and paragraph 6 charges inconsistent
declarations under 18 U.S.C. $1623(c) and need not
specify which is false. Defendant submits the govern-
ment cannot have the best of both worlds. The defend-
ant is entitled to know under which subsection the gov-
ernment is proceeding and what it is expected to defend
against at trial.
Respectfully submitted,
/s/ Daniel J. Sears
DANIEL J. SEARS
Federal Public Defender
17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
[Title Omitted in Printing]
GOVERNMENT’S RESPONSE TO
MOTION FOR BILL OF PARTICULARS—
Filed March 18, 1977
THE MOTION FOR BILL OF PARTICULARS
SHOULD BE DENIED, BECAUSE THE GOV-
ERNMENT IS NOT REQUIRED TO STATE
OR PROVE, IN A PROSECTUTION UNDER
18 U.S.C. $ 1623, WHICH OF TWO INCON-
SISTENT DECLARATIONS IS FALSE.
Defendant has requested the Government to specify,
in a Bill of Particulars, which of defendant’s statements
set forth in the Indictment was false or, in the alterna-
tive, which of the allegedly inconsistent declarations in
each count of the Indictment are inconsistent with each
other. The argument appears to rest on the premises
(1) that two separate types of offenses can be alleged
under 18 U.S.C. $ 1623, one under subsection (a) and
the other under subsection (c), and (2) that the Gov-
ernment is required to state and prove which of two
allegedly inconsistent declarations is false. We disagree
with both premises and thus resist the Motion for a Bill
of Particulars.
Title 18 U.S.C. $ 1623(a) says it is a crime to make
“any false material declaration . . . in any proceeding
before or ancillary to any court or grand jury of the
United States... .” Title 18 U.S.C. §$ 1623(c) merely
defines what an indictment, charging false declarations
before a grand jury, must allege and articulates one
way of proving a false declaration before a grand jury.
It does not delineate a separate offense. All of this is
stated in the legisiative history of the section:
—- —_
18
This subsection [subsection c], as amended by the
committee, therefore, provides specifically for the
prosecution of a false declaration in the case of ir-
reconcilable contradictory statements without the
necessity of specifying which of the declarations is
false. It requires that each declaration upon which
the prosecution is based was material to a point in
question in the proceeding in which it was made,
and was made within the period of the statute of
limitations for the offense charged. ... It should
be noted that the subsection relates solely to the es-
tablishment of the element of falsity in the offense
which is delineated in subsection (a). H.R. Rep.
No. 91-1549 (91st Cong., 2d Sess). [1970 U.S. Code
Cong. & Admin. News 4007, 4023.) (Emphasis
supplied )
As the legislative history demonstrates, we do not
need to prove at trial which of the declarations is false.
Therefore, we should not have to specify in a Bill of
Particulars which is false. As for the alternate request
that we specify which of the declarations is inconsistent
with the other, the Government’s position is that the
declarations set forth in each count of the Indictment
speak for themselves. To the extent that there is any
ambiguity in definition of terms, such as the meaning
of the word “stuff” in paragraph 4 of Count I, that
ambiguity is resolved by a reading of the grand jury
transcript against the transcript of Mr. Dunn’s subse-
quent statement under oath. Defense counsel has both
of those documents, and there would thus seem to be no
need for a Bill of Particulars defining which of the state-
ments is inconsistent.
19
Dated at Denver, Colorado, this 18th day of March,
1977.
By:
Respectfully submitted,
JAMES L. TREECE
United States Attorney
s/ Edward W. Nottingham
EDWARD W. NOTTINGHAM
Assistant United States Attorney
323 U.S. Courthouse
1929 Stout Street
Denver, CO 80294
837-2081
Attorneys for Plaintiff
20
DEFENDANT’S EXHIBIT F-1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
No.
IN THE MATTER OF THE GRAND JURY
APPLICATION FOR ORDER TO GRANT IM-
MUNITY AND COMPEL TESTIMONY UN-
DER TITLE 18, UNITED STATES CODE,
SECTIONS 6002-6003—Filed June 16, 1976
The United States Attorney for the District of Colo-
rado makes application to the United States District
Court for the District of Colorado for an Order grant-
ing immunity to and compelling the testimony of
ROBERT DWIGHT DUNN pursuant to Title 18, United
States Code, Sections 6002-6003. The reasons for this
application are as follows:
1. The Federal Grand Jury presently sitting at Den-
ver, Colorado, was duly empanelled and sworn on Feb-
ruary 11, 1975, and is presently investigating violations
of the following criminal statutes of the United States:
Title 21, United States Code, § 841(a) (1)
Title 21, United States Code, § 846
2. The witness ROBERT DWIGHT DUNN on June
15, 1976, appeared in person pursuant to subpoena issued
in connection with the above investigation before the
Federal Grand Jury presently sitting in Denver, Colo-
rado, and refused to testify. relying on his Fifth Amend-
ment privilege against self-incrimination;
3. Mr. Richard L. Thornburgh, Assistant Attorney
General of the United States by authority vested in
him by Title 18, United States Code, Sections 6002-6003
and Title 28, Code of Federal Regulations, Section 0.175
has granted authority by letter to the United States
Attorney for the District of Colorado to make applica-
tion to the United States District Court for the District
21
of Colorado for an order or orders granting immunity
and compelling the testimony of ROBERT DWIGHT
DUNN pursuant to Title 18, United States Code, Sec-
tions 6002-6003;
4. The United States Attorney for the District of
Colorado represents to the United States District Court
for the District of Colorado that the testimony and other
information from ROBERT DWIGHT DUNN is neces-
sary to the public interest;
WHEREFORE, the United States Attorney for the
District of Colorado, makes application to the United
States District Court for the District of Colorado for an
order to grant immunity to and compel the testimony of
ROBERT DWIGHT DUNN pursuant to Title 18, United
States Code, Sections 6002-6003.
/s/ James L. Treece
JAMES L. TREECE
United States Attorney for
the District of Colorado
22
ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
DEPARTMENT OF JUSTICE
Washington 20530
RLT:KWM:CAC :clb June 10, 1976
84381
Honorable James L. Treece
United States Attorney
District of Colorado
Denver, Colorado 80202
Attn: Rod Snow
Assistant United States Attorney
Re: Grand Jury Investigation
Robert Dewight Dunn
Dear Mr. Treece:
Pursuant to the authority vested in me by 18 U.S.C.
$6003(b) and 28 C.F.R. $0.175(a) I hereby approve
your request for authority to apply to the United States
District Court for the District of Colorado for an order
pursuant to 18 U.S.C. § 6002-6003 requiring Robert
Dewight Dunn to give testimony or provide other in-
formation in the above matter and in any further pro-
ceedings resulting therefrom or ancillary thereto.
Sincerely,
/s/ Richard L. Thornburgh
RICHARD L. THORNBURGH
Assistant Attorney General
Criminal Division
[SEAL ]
23
DEFENDANT’S EXHIBIT F-2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
No.
IN THE MATTER OF THE GRAND JURY
ORDER GRANTING IMMUNITY AND COM-
PELLING TESTIMONY UNDER TITLE 18,
UNITED STATES CODE, SECTIONS 6002-
6003—Filed June 16, 1976
Upon the application of the United States Attorney
for the District of Colorado for an Order Granting Im-
munity and Compelling Testimony under Title 18, United
States Code, Sections 6002-6003, the United States Dis-
trict Court finds as follows:
1. The Federal Grand Jury presently sitting at Den-
ver, Colorado, was duly empanelled and sworn on Feb-
ruary 11, 1975, and is presently investigating violations
of the following criminal statutes of the United States:
Title 21, United States Code, § 841(a) (1)
Title 21, United States Code, § 846
2. The witness ROBERT DWIGHT DUNN on June
15, 1976, appeared in person pursuant to subpoena is-
sued in connection with the above investigation before
the Federal Grand Jury presently sitting in Denver,
Colorado, and refused to testify relying on his Fifth
Amendment privilege against self-incrimination;
3. Mr. Richard L. Thornburgh, Assistant Attorney
General of the United States, by authority vested in
him by Title 18, United States Code, Sections 6002-6003,
and Title 28, Code of Federal Regulations, Section 0.175,
has granted authority to the United States Attorney
for the District of Colorado to make application to the
United States District Court for the District of Colorado
for an order or orders granting immunity and compelling
24
the testimony of ROBERT DWIGHT DUNN pursuant
to Title 18, United States Code, Sections 6002-6003;
4, The United States Attorney for the District of
Colorado represented to the United States District Court
for the District of Colorado that the testimony and other
information from ROBERT DWIGHT DUNN is neces-
sary to the public interest ;
THEREFORE, it is hereby ordered as follows:
1. That the witness ROBERT DWIGHT DUNN give
testimony and provide other information which he re-
fuses to give or provide on the basis of his privilege
against self-incrimination and that the witness is not
excused from testifying or providing other information
on the ground that such testimony or information may
incriminate him or subject him to penalty or forfeiture;
2. That no testimony or other information compelled
under this order (or any information directly or in-
directly derived from such testimony or other informa-
tion) may be used against the witness ROBERT
DWIGHT DUNN in any criminal case, in any court,
except a prosecution for perjury, giving a false statement,
or otherwise failing to comply with this order.
Dated at Denver, Colorado, this 15th day of June,
1976.
By THE COURT:
/s/ [Illegible]}
United States District Judge
25
GOVERNMENT EXHIBIT l-a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
FEDERAL GRAND JURY
IN THE MATTER OF THE FEDERAL GRAND JURY
TESTIMONY OF ROBERT DWIGHT DUNN
Grand Jury Hearing Room
164 United States Courthouse
Denver, Colorado 80202
Wednesday, July 16, 1976
The above-entitled matter came on for hearing before
the Federal Grand Jury at 9:25 o’clock a.m., this date.
APPEARANCES:
For the United States RODNEY W. SNow, Esq.
Government Assistant United States
Attorney
323 United States Courthouse
Denver, Colorado 80202
[p. 2]
PROCEEDINGS
ROBERT DWIGHT DUNN,
a witness herein, after having been first duly sworn by
the Foreman to tell the truth, the whole truth and
nothing but the truth, was examined and testified as
follows:
EXAMINATION
BY MR. SNOW:
[p. 3]
Q State your name, please?
A Robert Dwight Dunn.
& e e &
26
Q When did you first get involved in the drug scene?
A 1969.
* * * *
[p. 9]
Q All right. Do you recall having an occasion to go
to Vicki Burr’s house at 480 South Washington?
A Yes, sir, I do.
* x * *
[p. 10]
Q All right. Let’s go back to what happened there
at South Washington. Did you meet Phillip Musgrave
there?
A Yes, sir, I did. I was selling bags, which was
very—lI don’t do that very often.
Q Why, because it’s a lot or what?
A No. I just—I recognize myself as in the security
part of—or have been in the security part of the illicit
speed traffic. I check for security. If they’re security
type, they don’t get ripped; if it’s not, I rip them and
I’ve never had anybody come back on me. So I was out
selling bags—I was doing more than I was selling, but
I was putting up a front that I was selling and Sparky
had asked me if I had any bags, that he had someone
who wanted to buy one and Sparky—he run around
with me for a while, so he more or less knew what I
did and he did the same thing and I was afraid he was
going to try and rip me, so I said, “No, I’ll sell him the
bag.”” And we went in the bedroom and there was a
fairly good-sized dude, about six foot, two hundred
pounds, leather hat, beard and doberman pinscher, and
I knew who it was because I had
[p. 11]
heard stories about him.
Q Did you know him as Cebe?
A Everybody called him Steve.
Q Steve?
A Steve. I think it was a mistake in names. They
used to call him Cebe; his middle name was Cebe, but
somebody got Steve started and he just kept the name
Steve. He just got out of jail and didn’t have any dope
27
with him in town so I sold him a half gram and I took
a half gram and we got high together and he paid me
and he said the next time he was in town, he’d square me
away, that he just didn’t have anything with him.
* * * *
[p. 14]
Q When you got to Canon City, did you see Mus-
grave?
A First day.
Q Where did you see him?
A At Diagnostic Center in the fish tank. I was on
the second tier on the east side and he was on the third
tier on the west side and he was right directly across
from me. And I had heard from a couple of people that
he was hot on my case; I was supposed to be setting
him up with the man and the only thing I was trying to
set him up for was relieving him of what he had.
[p. 15]
Q Did you get high, then, in the penitentiary?
A You bet. Stayed high in the penitentiary.
Q Did he have drugs there in the penitentiary?
A All the time.
Q Did you work with him or for him in the peni-
tentiary?
A I was a gopher boy; I went for pop, commensary
and held his stash for him.
Q What did you get in return?
A A fair amount of speed every time he’d cop.
Q Every time he had some, he’d give you some?
A Oh, yes, sir. I don’t know whether it was because
he liked me, because he wanted to do it, or because he
was
[p. 16]
paranoid if he didn’t do it, something bad would happen
at first.
Q Did you assist him in getting stuff smuggled into
the penitentiary?
A Yes, sir, once.
Q Was that with the Strammels?
A Yes, sir.
28
Would you tel. us about that, please?
How shall I get around that one part?
Well, jut tell them about that one part.
Okay. It was just before noon, I think it was a
Wednesday, and the block officer came down and told me
I had a visitor—there was some people to see me, but
it was too late, they were closing the visiting room for
the feeding period and to be ready to go to a visit right
at 1:30. And Musgrave is standing right beside me,
or a few feet from me when he told me this and he
told me, “When you go to the visiting room, don’t go to
the visiting room until I come. down.” So we went back
ourselves for count and lock up and he came down with
—this is going to be bad.
Q_ Did he give you some vaseline?
A Yes, sir, he did.
Q What did he tell you to do with the vaseline?
A Grease up—it’s called keystring in the peniten-
tiary. It’s the most popular way of getting drugs in the
penitentiary.
[p. 17]
Q Was it you were supposed to take the drugs and
put it into your rectum?
A Yes, sir.
Q Did you do that?
A Yes, sir, I did.
Q Who gave you the drugs?
A Steve handed it to Musgrave and Musgrave handed
it to me.
Q You did what with it?
A Over a period of five or six minutes of wiggling
around and watching for cameras and cops, I got it
up there.
Q Is that the way you get it back in the cell so you
can later get it out and use it?
A Yes, sir, because you get strip-searched, you know,
when you got back through the visiting room.
Q Okay.
A And when I got back to my cell, I got it out and
he came down and got it and went up to his cell, pulled
PO PO
29
his out, pulled a pretty good porzion out for me and
brought it down for me.
* * * *
[p. 28]
Q Okay. Now, did you have discussions with Mus-
grave while you were in the penitentiary about how he
was going to set up the organization once he got outside?
* * * *
A Never come in contact with the people, just do it
by mail.
Q Did he name particular people—Eddie Perkins, for
instance?
A Eddie Perkins, I didn’t meet him until he brought
me a half ounce one night and that was a gesture on
Cebe’s part to keep me away from Ken Brown.
Q We'll come back to that.
A Okay.
[p. 29]
Q Did he tell you about Kate, how she fit into this
[p. 30)
or do you know?
A When he went to the penitentiary he had two old
ladies or two girls, Kate Blehm and Judy Schultz, and
he told them the one that held up while he was in the
joint would benefit from his release and Judy blew it and
started doing a whole bunch of downers and started
getting crazy shooting at people and Kate won out; and
she took instructions from him through the mail and
on the phone about what to do and who to take care of,
to send what where.
Q He called from the penitentiary and told her?
A Two or three times a day.
Q Can you make calls like that out of the peni-
tentiary?
A They have pay phones at the penitentiary.
Q And no one pays any attention to what they say
or anything?
A No.
30
[p. 33]
Q (By Mr. Snow) Okay. Let’s go back to Musgrave
and Kate. Did he tell you if Kate was supplying—you
say you got some dope in the penitentiary from Steve
and Debbie Strammel?
A Yes.
Q Did he tell you whether or not there was any
connection between Steve and Debbie and Kate?
A Steve and Debbie kept their connection while he
was locked up solely for the purpose of bringing him
his dope when he wanted it.
Q Was Kate connected with that at all?
A She would make sure that Steve and Debbie were
supplied with, you know, what they needed to sell when
they were selling and what Cebe needed in the peni-
tentiary.
Q Did you make some calls for Musgrave to Kate?
[p. 33]
A Yes, sir, I did.
Q Did he give you the phone number?
A Yes, sir, both of them.
[p. 34]
Q He gave two phone numbers?
A One where she worked at the—881-2273, at the
Rustic Resort and at home, 881-2278, and that’s in
Belleview. I may have them numbers mixed up, but I’m
not sure. It’s been quite a while since I called the number.
Q So you would call and give messages to Kate also
in addition to Musgrave?
A Yes.
Q Did you have any code names you were supposed to
use?
A He was one, Jimmy Heath was two and I was three.
Q Did you talk about speed or did you use another
word?
Bull shit, excuse me.
That was the code name for the speed?
Yes, sir.
And did Kate visit Musgrave often?
Twice a week.
* + *
PO PO >
31
[p. 49]
Q Now, who is Eddie Perkins?
A Eddie Perkins; he was unknown to me until I
heard his name one night dropped by somebody that he
was Cebe’s new chemical man, that’s the person that his
main function is to buy, transport, stash and take the
heat for buying chemi-
[p. 49]
cals that are restricted or that are directly related with
making speed.
Q Did you have a meeting with Perkins some time?
A He came down one night. Cebe sent me down a
half ounce as a bonus for the girl I got him, that Kris.
Q Was this in November or December of ’75?
A Yeah.
Okay.
A And Eddie Perkins come down and delivered it.
Q Delivered it to you?
[p. 50]
A No, he come in kind of funny. He come in the front
door of the apartment, said it was on the outside window
sill of the bedroom and it was one of these—it was a
basement where you couldn’t roll the windows and they
were roll-type windows and you couldn’t roll them all the
way out and I couldn’t get my arm out there and Char-
lotte, my girl at the time, couldn’t get her arm out there,
so he stuck his arm out there and got it.
Q And gave it to you?
A Yes, sir, and then he did about six 180 degree turns
and out the door.
* * * *
[p. 52]
Q Did you then in January of this year—did you get
a regular job?
[p. 53]
A Yes, sir, I did.
Q Where?
A Continental Oil, Ramsey Engineering; subcontract-
ing.
Q Did you discover any chemicals while you were
working there?
32
A I sure did—discovered a whole warehouse full, but
they were all the wrong chemicals.
[p. 55]
"Q During February of ’76, did you see Musgrave
again and find out—did he say that he still wanted any
of those chemicals?
A Yes. I was living out on West 58th Avenue in
Arvada, 14500 West 58th. It was a 10-acre farm that
me and a friend of mine was renting—me and a friend
of mine and his wife, and it was pretty excluded, had
a barn. And the guy that I was living with, he worked out
at Continental Oil also and he came into town looking
for me on a Monday and I had just had some teeth
pulled and I didn’t feel like messing with anybody so I
just started spacing him out—just not meeting when I
was supposed to, and he chased me for three and a half
days until he finally caught up with me.
Q What did he want when he caught up with you?
A Propenyl, methylamine. He wrote out on an enve-
lope—a big manilla envelope that I still have—all the
chemicals that are needed.
Q Musgrave wrote this out on the envelope?
A Yes, sir.
Q And you still have access to that envelope?
A Yes, sir, I hope. I’ve been away for an hour, so
things are a little shaky.
[p. 62]
Q_ All right. Who else? How about the Strammels?
A Steve and Debbie for a while, while he was in the
penitentiary were given the opportunity to keep a speed
connection while he was in jail if they agreed to deliver
certain amounts of speed to him at the penitentiary or
smuggle them into the penitentiary or to whatever people,
you know, individuals he wanted it smuggled to.
Q You were one of those people that smuggled in,
right?
A Yes.
Q Whoe else—Heath?
A Jimmy Heath, Gary Ryan and Al Reeves.
Q Ryan?
33
GOVERNMENT EXHIBIT 2-A
AFFIDAVIT OF ROBERT DWIGHT DUNN
September 30, 1976
APPEARANCES:
CANGES & SHAVER
By Michael Canges, Esq.
1025 Capitol Life Center
Denver, Colorado
[p. 2]
The examination of Robert Dwight Dunn, was taken
on Thursday the 30th day of September, 1976, at 1025
Capitol Life Center, Denver, Colorado, commencing at
the hour of 10:10 a.m., before Jerald B. Cohen, Notary
Public within and for the State of Colorado.
REPORTER’S NOTE: You may note in this deposi-
tion that some portions are typed in UPPER CASE
LETTERS.
When two or more persons are speaking simul-
taneously, the simultaneously spoken portions will be
transcribed in UPPER CASE LETTERS. Should
a greater need for clarity occur in the deposition,
it is transcribed so that each speakers’ every word,
in sequence, is clearly understandable.
[p. 3]
PROCEEDINGS
MR. COHEN: Mr. Dunn, would you raise your right
hand please? Is the testimony that you are about to give,
to be the truth, the whole truth and nothing but the
truth, so help you God?
MR. DUNN: Itis.
34
EXAMINATION
BY MR. CANGES:
. Mr. Dunn, you are, at present, in my offices. I
am Michael Canges and I’m an attorney.
A. Yessir.
Q. And we’re in the Capitol Life Center. It’s ap-
proximately 10:15 in the morning. What’s the date. .
twenty....
MR. COHEN: 30th.
Q. On September 30th. Am I correct?
A. Yessir, you are.
Q. You and I are present in my conference room.
Present is Mr. Jerald Cohen, who has identified himself
to you as a person authorized by the statutes of the
State of Colorado as a person to administer oaths. You
understand that?
[p. 3]
A. Yes sir.
. And yeu have taken an oath at this moment to tell
the truth, the whole truth and nothing but the truth,
have you not?
A. Yessir, I have.
Q. You understand, Mr. Dunn, that we are on tape
and what
[p. 4]
you and I discuss will be transcribed and ultimately re-
duced to writing, to the extent of a transcript?
A. Uh huh.
Q. What is your name please?
A. Robert Dwight Dunn.
[p. 4]
Q. You understand that I’m Phillip Musgrave’s at-
torney?
A. Yessir.
Q. And you know Phillip, do you not?
A. Yessir, I do.
35
[p. 5]
Q. Alright. At the time you went to the institution,
explain to me the physical location of where your cell
was vis-a-vis where Phillip’s cell was.
A. I was on the second tier in . . in the fish tank
... when I
[p. 6]
first arrived. I was on the second tier on the... east,
east two... east two side and Phillip was on the west
three side.
Q. During THE PERIO...
A. WHICH WAS ALMOST just directly . . . we were
.. had a direct cells, right directly across.
Q. During the period of time that you were in the
institution with Phillip, did you get to know each other
PRETTY WELL?
A. YES sir, we did.
* * * *
[p. 8]
Q. Now prior to your testimony to the Grand Jury,
you discussed the matters that you testified to with cer-
tain law enforcement officials. Am I correct?
A. Yessir.
Q. Who were those persons?
A. Uh... Mr. Ronald Hollingshead and Mr. James
Congrove.
Q. By whom is Mr. Hollingshead employed?
A. DEA
Q. AND WHO....
A. DRUG ENFORcement Administration.
Q. Alright. That’s an agency of the Federal Gov-
ernment?
A. Yes sir, it is.
Q. And by whom is Mr. Congrove employed?
A. Uh, Jefferson County Sheriff’s Department. Uh
. . investigator.
[p. 11]
Q. Explain what you mean to me by your play.
A. Well lI... I’m running a bluff, is what I’m doing.
Is what I began and that’s what I’m still doing. I hope
that I can
36
[p. 12]
come out... I hope the curtail falls behind me and not
on me. Uh, I told them, uh, he had about nine or ten
pages of writing, this Mr. Hollingshead, on legal pad
paper.
Q. What color was that paper?
A. Yellow.
Q. Alright sir.
A. Yellow lined paper. Uh, and I just commenced
to making up stories. Now, now each story, I mean,
each incident that I told him about, was... there was
some, there was something in it. Like there was an
incident, but I, I put an incident together with me and
Phillip or me and you know, whoever. They got maybe
ninety percent fairy tales and ten percent of what I’d
heard.
Q. Atthe TIME THAT...
A. UH..BUT THEY WENT for every bit of it.
Q. At the time, Mr. Dunn, that you made the state-
ment to uh Officer Hollingshead and Officer Congrove,
did they specifically ask you questions or...
A. Yes sir, they did. Uh, they asked me. . . phone
numbers. Phillip’s old phone number, in Fort Collins.
Had I ever purchased any uh .. . drugs from Phillip.
And I told them no. That I hadn’t. Told them thatI..
I had been given which I haven’t. Hell, I’ve sold him
.. I sold him items before, myself.
. What sort of items had you sold?
A. I sold him uh... a half gram of speed in 1973.
Q. The things that you told or the things you dis-
cussed.
[p. 13]
with Officers Congrove and Holiingshead, were they true?
A. No sir. Uh, ten percent was . . was true as far
as I, you know, as far as I know.
[p. 18]
Q. Now with reference to the items you testified to
in front of the Grand Jury, I don’t want to know spe-
cifically what you said, but was what you said basically
what you had told Mr. Hollingshead or Mr. Congrove?
A. Basically, yes, but it was uh... Mr. Snow had a
pattern
* * e +
37
[p. 19]
of questions or had a list of questions and each time he
asked me a question, I’d answer and when I’d finish that
answer he... he’d come with another question that was
really leading, you know.
Q. Did you review the questions before... .
A. No, sir.
Q. ....the Grand Jury testimony?
A. Nosir.
Q. Was what you told Mr. Hollingshead and Mr.
Congrove before you testified in front of the Grand Jury,
was it true?
A. Nosir.
Q. Alright.
A. Partially.
[p. 22]
Q. Now, at the time of your testimony before the
Grand Jury, you took an oath did you not, to tell the
truth?
A. Yes sir, I did.
Q. And, in fact, did you tell the Grand Jury the
truth?
[p. 23]
A. No, sir I didn’t.
[p. 23]
Q. During the time that you were in the penitentiary
uh ie Phillip Musgrave ever give you any drugs of any
sort!
A. Nosir, he didn’t.
Q. Were there drugs available?
A. Oh, there’s plenty of drugs available in the peni-
tentiary.
[p. 24]
Q. Did Phillip, to your knowledge, ever help Jimmy
Heath smuggle in drugs?
A. Nosir.
Q. Did Phillip, to your knowledge, ever smuggle in
or cause to be smuggled in drugs for any person?
A. Nosir.
* aa * .
38
Q. Alright.
A. Not that I know of.
[p.26 |
Q. Alright. During the time you were in the in-
stitution uh did you ever have occasion to make tele-
phone calls for Phillip?
A. Yes sir.
Q. And explain to me why that was or to whom
those calls were made?
A. Uh they ...us... in the Cell House you have
two different sides of the cell house itself. You have
Block A and Block B. I lived on Block B and Phillip
lived on Block A. One night Block A’d be out for the
night you know, TV uh cards what-
[p. 27]
ever, and phone calls and the other . . . the next night
Block B would be out. Well, it was my night to be out
and Phillip was locked up and I went up and was talk-
ing to him and he asked me if I would call Kate cause
we had made some tarot cards.
Now who is Kate?
Kate Blehm.
And who was she?
Phil’s uh girl.
Alright.
Uh he asked me if I would call her and ask .
and ‘have her bring up a book, you know, like a tarot
ecard book that uh shows you how to read ’em and how
to understand ’em. And uh to be sure and come up and
see him. Uh that was it.
Q. Was there any mention or any code with refer-
ence to drugs in any conversation with Kate Blehm?
A. Nosir.
Q. Did Phillip tell you what to say to her insofar
as code which might involve speed or the smuggling of
drugs into the institution?
A. No sir. All he said was see... tell her to get
me uh a tarot card book and to be sure and come up
and see him.
Q. Alright. And what was the purpose or what was
the meaning of the tarot card book?
>OPO PO
39
A. We had made some tarot cards out of like uh
like poster paper, thick paper, and Phillip’s uh quite an
artist uh and he
[p. 28]
drew these cards from a... it was a small deck of tarot
cards, it was just a... kind of like a. . . what the hell
was it? Oh, no. I’m wrong. We... he wanted a set
of tarot cards. We had a book. That’s what it was.
I’m sorry, that... whew... that was my mis-
[p. 28]
take. We had a book, but we needed the cards and then
that’s when . . . and they wouldn’t let ’em in, they
wouldn’t allow ’em in so Phillip draw some. That’s what
it was.
Q. Were you ever present at any time when Phillip
gave Frank Brannan any chemicals?
A. Nosir.
Q. Alright. Do you recall ever telling Mr. Hollings-
head or Mr. Cosgrove or any other law enforcement of-
ficer that you were present at such a time?
A Yessir.
Q. Alright. Was that true?
A. Nosir.
Q. Do you remember whether or not there was any
conversation that you were present at or that you heard
about where Mr. Brannan was to give chemicals and
money to Mr. Musgrave or vice versa?
A. No sir. I... now I told the two law enforce-
ment officers that, you know, that I was.
Q. Was that true?
A. Nosir, it wasn’t.
> Did you ever at any time ever get a list of chemi-
cals
[p. 29]
from Mr. Musgrave for any purpose?
A. Nosir.
Q. 3 Did Mr. Musgrave ever give you any drugs at any
time?
A. Nosir.
40
[p. 29]
Q. At any time while you were in the institution, did
Phillip ever give you a hit of speed or any drug of any
sort?
A. Nosir.
Q. At any time did you smuggle in drugs for Phillip?
A. Nosir.
Q. Did you at any time smuggle in drugs for any
other person?
A. Nosir.
[p. 35]
Q. Did you ever know Eddie Perkins?
A. Yes sir, I met him one time . . a couple times.
Q. Alright. Did you ever have any dealings with him
of any sort?
No sir.
You met him several times?
I don’t like the individual, no sir.
Alright. You had nothing to do with him?
No sir.
Under what circumstances had you met him?
Uh came by my apartment on uh 925 West uh
Eight Avenue one night and told me that Phillip was
in town and that if I wanted to meet him for dinner,
you know, meet him, and uh cause he wanted to talk
to me.
POPOPOP
* * * *
[p. 46]
Q. You’ve met Eddie Perkins once or twice?
A. Uh twice.
Q. And how long did each of those meetings or uh
social events take place?
[p. 46]
A. With Mr. Perkins the first time, it was about
three minutes. In other words, he came in and delivered
a message you know, Phillip was in town and if I wanted
to see and meet him for dinner. And the second time
was at uh Aurora, a friend of mine’s house. Went out
to uh... I went out to sell a guy some tires and Eddie
was there. Uh somethin’ happened to his car. Oh, his
41
wife or his ex-wife took his car and he didn’t have any
transportation. And he was waitin’ for a ride and I
. that was no more than hello and goodbye.
Q. Did you ever have any business dealings of any
sort with Mr. Perkins?
A. Nosir.
Q. Did you every buy any speed from him?
A. No, but I’d sure like to sell him some.
Q. Did you sell him any?
A. No.
Q. Alright. Did you ever discuss speed with Mr.
Perkins?
A. Nosir.
[p. 51]
Q. What about Steve Stramel. Did you ever know
Steve Stramel?
A. Uh not knowing, by being introduced to him. I
seen him one time.
Q. Where did you see him?
A. Uh him and a girl Debra, Debbie uh came up to
see Phillip and I seen him across the visiting room. I
was visiting with some friends of mine that came up
from Denver and I just seen him from a distance. I...
I couldn’t eve ... J doubt if I could recognize him.
Q. You never had any conversation with either
Steve. ...
* * * *
A. Nosir.
Q. ....orhis girlfriend or wife, Debbie?
A. No.
[p. 52]
Q. Did you ever smuggle in drugs to the institution
from Steve and Debbie?
A. Nosir.
Q. Ever smuggle in drugs on behalf of Phillip or at
Phillip’s suggestion?
A. Nosir. As a matter of fact, Phillip was uh more
or less . . . well, he stayed on my case to stay out of
trouble. He more or less, you know, if uh I was messin’
vo or getting in trouble uh he was... him and Steve
42
were the first two down on my case forit. You know,
to whip me back in line cause I’... I’m pretty much a
mess-up.
[p. 62]
Q. All right. Who else? How about the Strammels?
A. Steve and Debbie for a while, while he was in
the penitentiary were given the opportunity to keep a
speed connection while he was in jail if they agreed to de-
liver certain amounts of speed to him at the penitentiary
or smuggle them into the penitentiary or to whatever
people, you know, individuals he wanted it smuggled to.
Q. You were one of those people that smuggled in,
right?
A. Yes.
43
GOVERNMENT EXHIBIT 4-a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 76-CR-155
UNITED STATES OF AMERICA, PLAINTIFF
vs.
PHILLIP C. MUSGRAVE, et al., DEFENDANTS
EXCERPT OF PROCEEDINGS
(Direct Examination of Robert Dwight Dunn)
Proceedings before the HONORABLE FRED M.
WINNER, Chief Judge, United States District Court
for the District of Colorado, for hearing on all pending
motions commencing at 11:10 a.m. on October 21, 1976,
in Courtroom A, United States Courthouse, Denver,
Colorado.
APPEARANCES
EDWARD W. NOTTINGHAM and ROD W. SNOW,
Assistant United States Attorneys, appearing for plain-
tiff.
ELMER LEE HAMBY, Attorney at law, Denver, Colo-
rado, and DAVID L. WORSTELL, Attorney at law, Den-
ver, Colorado, appearing for the witness Robert Dwight
Dunn.
E. MICHAEL CANGES, Attorney at law, Denver,
Colorado, and JOSEPH SAINT-VELTRI, Attorney at
law, Denver, Colorado, appearing for the defendant
Phillip C. Musgrave.
WILLIAM L. KEATING, Attorney at law, Denver,
Colorado, appearing for the defendants Edward G. Per-
kins and Charles Frank Brannon.
SHELLEY B. DON, Attorney at law, Denver, Colo-
rado, appearing for defendant Kim L. Duleff.
44
[2] PROCEEDINGS (3:30 p.m.)
(Prior proceedings were had and entered of record
but are not herein transcribed pursuant to direc-
tion of ordering counsel. )
MR. CANGES: Call Robert Dwight Dunn.
MR. HAMBY: Your Honor, private counsel appears
with Mr. Dunn to assume the duties that I was appointed
to perform. I would like to ask to be excused.
THE COURT: You may be excused, Mr. Hamby.
Thank you very much.
MR. WORSTELL: Just for purposes of the record,
Your Honor, my name is David Worstell, W-o-r-s-t-e-l-l,
of the law office of Al Zinn; and I do represent Mr.
Dunn.
THE COURT: Very well. And, of course, Mr. Wor-
stell, you may sit somewhere up here where you are
at a convenient place from which you may object, if you
wish to object, as counsel for Mr. Dunn.
MR. WORSTELL: Thank you, Your Honor.
ROBERT DWIGHT DUNN, called as a witness for the
defense herein, being first duly sworn on his oath testified
as follows:
DIRECT EXAMINATION
BY MR. CANGES:
Q If it please the Court, for the record would you
state your name and address?
[3] A Robert Dwight Dunn, 1245 South Pennsyi-
vania.
Q Mr. Dunn, you are the same Robert Dwight Dunn
that has been previously mentioned as an unindicted co-
conspirator in the action entitled United States of Amer-
ica vs. Phillip C. Musgrave, et al., bearing Criminal
Action 76-CR-155, are you not, sir?
A That’s correct.
Q You had occasion at some point during the sum-
mer months of 1976 to testify before a federal grand
jury. :
A Yes, sir, I did.
45
Q And, in fact, you did so testify, did you not?
A Yes, sir.
Q Mr. Dunn, you are present in the United States
District Court for the District of Colorado on the after-
noon of Thursday, October 20th, am I correct?
A Yes, sir.
Q You understand where you are and who is present
at this time.
A Yes, sir.
Q Do you understand that I’m Phillip C. Musgrave’s
attorney?
THE COURT: Let me make a recommendation to
you.
MR. CANGES: Yes, sir.
THF COURT: Let’s make it the 21st.
MR. CANGES: I beg your pardon, Your Honor.
[4] Q Today being October 21st and approximately
3:30 in the afternoon.
A Yes, sir.
Q Present with you in court is your attorney, am
I correct?
A Yes, sir.
Q What is his name, sir, please?
A David Worstell, seated right there. (Indicating)
Q During the course of the day you have had oc-
casion to consult with him, have you not?
A Yes, sir.
Are you satisfied with the advice that you have
had and the representation he has given?
A Very much so.
Q You had the occasion to consult with an Elmer
Lee Hamby who was appointed by this Court to represent
you with reference to certain matters, am I correct?
A Yes, sir.
Q Mr. Dunn, on or about September 30, 1976, did
you appear in my office at 1025 Capitol Life Center in
Denver, Colorado?
A Yes, sir, I did.
Q And at that time was there present a Mr. Jerald
Cohen who was a certified reporter and a notary public
pursuant to the statutes of the State of Colorado.
[5] A Yes, sir, there was.
46
Q At that time did I ask you certai. questions and
did you make certain answers to those questions?
A Yes, sir, I did.
Q And at that time did you tell the truth, the whole
truth, and nothing but the truth?
A I did, sir.
Q Mr. Dunn, have you had occasion to review that
certain transcript or affidavit of the conversation or
colloquy that transpired on September 30th?
A Yes, sir, all but about the last five or ten pages.
Q And referring to that affidavit—
MR. CANGES: For the record, that would be the
affidavit that was tendered to this Court, a copy of which
has been tendered to both the United States and to co-
counsel.
Mr. Dunn, with reference to that affidavit, and
now having had the occasion to again review it, are the
contents of that affidavit true?
A Yes, sir.
Q With reference to your testimony before the grand
jury, as I understand it, your testimony encompassed
acts over a period of some several years with reference
to certain statements that you made concerning alleged
distribution of methamphetamines on behalf of Mr. Mus-
grave and other co-defendants, am I correct?
[6] A Yes, sir.
Was what you told the grand jury true?
No, sir.
Was any part of it true?
Possibly ten percent.
PO PO
BR
47
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
UNITED STATES OF AMERICA, PLAINTIFF
vs.
ROBERT DUNN, DEFENDANT
TRANSCRIPT OF TRIAL PROCEEDINGS—
April 13, 1977
Pursuant to recess, proceedings were resumed before
the HONORABLE SHERMAN G. FINESILVER, Judge
of the United States District Court for the District of
Colorado, beginning at 8:35 a.m. on the 13th day of
April, 1977, in Courtroom D, United States Courthouse,
Denver, Colorado.
APPEARANCES:
EDWARD W. NOTTINGHAM, Assistant United
States Attorney, Denver, Colorado, appearing for the
plaintiff.
DANIEL J. SEARS, Federal Public Defender, Denver,
Colorado, appearing for the defendant.
[OFFER OF DEFENDANT’S EXHIBITS F-1 AND
F-2, OBJECTION TO PLAINTIFF’S EXHIBIT 2]
[T. Vol. II, p. 21]
MR. SEARS: Your Honor, I might state for the
record that the offer of Defendant’s Exhibits F-1 and F-2
are with regard to the immunity granted to Robert
Dwight Dunn, which the defense would submit immuni-
zes the submission of Plaintiff’s Exhibit 2, which has
not been offered yet, but as a matter of foundation, which
we submit is an indirect result of the immunity afforded
Mr. Dunn before the Federal Grand Jury.
48
THE COURT: Any objection?
MR. NOTTINGHAM: [I still object to the relevancy,
Your Honor. I don’t think this immunizes him from a
perjury charge, so I am still saying that they are not
relevant to this proceeding.
THE COURT: The Court will admit the court file as
identified. The Court will admit in evidence Defendant’s
Exhibits F-1 and F-2.
* * * *
[OFFER AND OBJECTION TO
PLAINTIFF’S EXHIBIT 1]
(T. Vol. II, p. 41]
MR. NOTTINGHAM: Your Honor, at this time I am
going to tender a document which has been marked
Plaintiff’s Exhibit 1 which purports to be the testimony
of Robert Dwight Dunn before the Federal Grand Jury,
and bears the certificate at the end of that testimony
of Terri L. Bryant, Special Court Reporter of the Grand
Jury of the United States.
THE COURT: Is that the totality?
MR. NOTTINGHAM: It is the totality of Mr. Dunn’s
grand jury testimony, Your Honor, and I would offer that
at this time, based on the certificate of Terri Bryant.
THE COURT: Mr. Sears, your position, please?
MR.SEARS: May I have just a moment, please?
THE COURT: Please.
MR. SEARS: Your Honor, with regard to the au-
thenticity of the document, the defense has no specific
objection. We do object to the admission of the docu-
ment on the ground, again, of the immunity order ten-
dered to the Court, and on Mr. Dunn’s fifth amendment
grounds.
THE COURT: The Court will note the objection.
The objection will be overruled on that basis, please.
49
(STIPULATION TO DEFENDANT’S EXHIBITS
F-1 AND F-2]
[T. Vol. II, p. 42]
MR. SEARS: Your Honor, might I also ask, with-
out the necessity of calling Miss Bryant, whether the
Government would be willing to stipulate that Defend-
ant’s Exhibits F-1 and F-2 that were tendered to the
Court were entered by Judge Arraj prior to the grand
jury proceedings, in other words, directly related to the
grand jury proceedings.
MR. NOTTINGHAM: Without waiving my prior ob-
jection, I would so stipulate.
THE COURT: The record will so reflect.
Ladies and gentlemen, when the attorneys stipulate
as to a matter, you may consider that evidence in the
case. Do you understand that, please?
The stipulation is, as I understand, that the immunity
was entered by Chief Judge Arraj prior to the time of
the presentation of testimony.
MR. NOTTINGHAM: Sostipulated.
MR.SEARS: That’s correct.
* + * *
[T. Vol. II, p. 43-44]
DIRECT EXAMINATION OF
ROD SNOW,
called as a witness by the plaintiff, being first duly
sworn on his oath, testified as follows:
THE COURT: What is your name, please?
THE WITNESS: Rod Snow.
THE COURT: Your profession, please?
THE WITNESS: I am employed in the U.S. Attor-
ney’s office.
THE COURT: You are an attorney by profession,
is that correct?
THE WITNESS: Yes, sir.
THE COURT: Are you employed by any agency,
please?
50
THE WITNESS: Yes, sir, by the U.S. Attorney’s
office, here in ge ee
E COURT: /Your title:
THE WITNESS: I am Assistant United States At-
OTHE COURT: In brief, what are your duties in
that regard, please, that related to trials or activities
ith the grand jury?
“THE WITNESS: I am currently assigned to the
criminal area of law, and I participate with the grand
jury in investigating crime, and also in prosecuting 1n-
dictments that are returned by the grand jury.
THE COURT: Proceed, please.
DIRECT EXAMINATION
BY MR. NOTTINGHAM:
Q Mr. Snow, how long have you been employed as
an Assistant United States Attorney?
A About a year and a quarter.
Would you describe what your connection was with
the case of United States v. Musgrave? —
A Yes, sir. I participated with the agents in investi-
gating the case, in presenting certain matters to the
grand jury, and in prosecuting after the indictment was
~~ os right. Have you had an opportunity to review
the grand jury transcript?
A You mean today? ;
Q Not today, but did you have an opportunity .
review the grand jury transcript after it was made?
es. a
o teil hand you what’s been marked as Exhibit
1, Plaintiff's Exhibit 1, and ask you to identify that.
A It appears to be the transcript of one of the hear-
ings from a witness that I presented to the grand jury.
+. = 7 *
LENCE OE
51
CROSS EXAMINATION OF ROD SNOW
(T. Vol. II, p. 64-65]
Q Were you present when a representation was made
at that time by you and/or Mr. Hollingshead that you
could in large part corroborate all of Mr. Dunn’s testi-
mony before the Federal Grand Jury?
A Yes.
Q Do you still believe that today but for Mr. Dunn’s
statements to the contrary?
A Could I do it today or could I have done it then?
Q Do you have any knowledge that would tend to
refute Mr. Dunn’s testimony before the Federal Grand
Jury, other than the statements made by him personally?
A No.
Q All right. Now, with regard to Mr. Musgrave
smuggling speed into the penitentiary, did your investi-
gation present you with independent evidence that Mr.
Musgrave was in fact smuggling speed into the peni-
tentiary?
A There was testimony, other testimony by other
people, to that effect, yes, sir.
* * * *
[T. Vol. II, p. 66-67]
Q (By Mr. Sears) Were you aware of an incident
where Kate Blehm was detected smuggling what was be-
lieved to be speed in to Mr. Musgrave, and she thereby
lost her visiting privileges?
A Yes. I knew she lost her visiting privileges.
* * * *
Q (By Mr. Sears) Mr. Snow, in your investigation,
did you have independent corroborative information in-
dicating that the Strammels were involved in smuggling
speed into the penitentiary to Mr. Musgrave?
A Yes, sir.
Q Did you also have independent evidence that Mr.
Dunn had been detected at the Colorado State Peni-
tentiary for concealing some speed in his rectum, which
was subsequently detected by a Dr. Doanes at the Colo-
rado State Penitentiary?
52
A I don’t recall anything about Dr. Doanes detect-
ing it.
0 Were you aware of the incident where Mr. Dunn
was detected with having speed detected or concealed in
his rectum at the Colorado State Penitentiary, regard-
less of whether it concerned Dr. Doanes or not?
MR. NOTTINGHAM: Your Honor, may counsel ap-
proach the bench?
THE COURT: Let’s go ahead, please.
A I don’t recall that.
* * * *
[T. Vol. II, p. 68-70]
Q Was Mr. Dunn, based on your investigation, a
gofer for Mr. Musgrave?
A Was Mr. Dunn?
Q Yes.
A Yes.
Q Did you have other evidence independently cor-
roborating that?
A No.
Q Other than Mr. Dunn’s statement, did you have
other evidence refuting that?
A No.
Q All right. Mr. Snow, I believe in your overt acts
you allege that a great number of phone calls were placed
from the phone numbers 881-2273 at the Rustic Resort
and 881-2278 in Belleview.
Did you have occasion to confirm with the telephone
company or Mountain Bell, as to whom those two num-
bers listed?
A As to whom the two telephone numbers were listed?
Q Yes.
A Yes, I’m sure.
Q And as you alleged in the indictment and as Mr.
Dunn testified before the Federal Grand Jury, isn’t it a
fact that your independent investigation with Mountain
Bell indicated that 881-2273 listed to the Rustie Resort
and that 881-2278 in fact listed to Katherine or Kate
Blehm?
ee
53
A I don’t remember the specific telephone number,
but it did confirm that they did list to whom they were
told they were listed to.
Q And your investigation did confirm that Kate or
Katherine Blehm was the girlfriend of Phillip Musgrave?
A Yes, sir.
Q Did your investigation confirm whether or not
Robert Dunn, at the time of Mr. Dunn’s testimony be-
fore the Federal Grand Jury, was in fact living on West
58th Avenue in Arvada, to your recollection?
A Did I confirm where he lived when he testified
before the grand jury?
Q You or the Drug Enforcement Administration
transmitting such information to you in the course of the
preparation of the case.
A I presume we did confirm it. I don’t have an inde-
pendent recollection as to the address.
* * * *
[T. Vol. II, p. 70-71]
Q (By Mr. Sears) Mr. Perkins never specifically
denied that he delivered drugs to Robert Dunn from
Phillip Musgrave in November or December of 1975?
A Mr. Perkins, to me, in a one-on-one confrontation,
no.
Q The basis of, by virtue of his not guilty plea, that
plea was with regard to the conspiracy charge, and all
the overt acts charged to him, that was the not guilty
plea entered, was it not?
A Yes, sir.
Q And that dealt with much more than simply a
delivery to Mr. Dunn in November or December of 1975?
A Yes, sir.
Q Mr. Snow, you had occasion to review the state-
ment to Michael Canges on September 30, 1976?
A This morning or when I was given it last fall or—
Q You have reviewed it?
A I know the contents of this document, yes, the
general content.
Q Mr. Snow, at page 29 of what has been marked,
I believe, as Plaintiff’s Exhibit 2, is there a statement
54
there made to the effect that Phillip Musgrave never gave
me any drugs at any time?
A Yes, sir.
Q Through the course of your investigation—we are
talking about the statement to Mr. Canges.
A Yes, sir.
Q Through the course of your investigation, did you
have information that refuted that statement?
A Testimony from Mr. Dunn, yes.
Q Any other independent evidence, to your recollec-
tion?
A Mr. Dunn was the sole source of that area of testi-
mony, as I recall.
* * * *
[OBJECTION TO GOVERNMENT EXHIBIT 4-a]
[(T. Vol. II, p. 80-81]
MR. NOTTINGHAM: This is a transcript of certain
proceedings before Judge Winner on October 21, 1976.
THE COURT: Let’s have this marked as an exhibit,
so that we are all talking about the same document. Will
you do that, please.
What is your position, Mr. Nottingham, please?
MR. NOTTINGHAM: Your Honor, I haven’t had an
opportunity to go through and excerpt the irrelevant
portions of this transcript. Again, I would submit that
this transcript is admissible as it bears—
THE COURT: I am sure that counsel is not ques-
tioning the authenticity.
MR. SEARS: No.
THE COURT: That’s correct. Let’s go. There is a
proper certification. Let’s have a marshal in here, please.
Let’s have a marshal throughout the trial, would you,
please.
You are tendering part of this transcript, is that cor-
rect, please?
MR. NOTTINGHAM: That’s correct.
THE COURT: All right. Let’s go ahead. Any objec-
tions? If there are, state them, please.
55
MR. SEARS: Yes, I do, Your Honor. First of all,
any of the statements or declarations made by Mr. Dunn
in that proceeding are not charged in this indictment,
and I submit they are immaterial and irrelevant.
* * * *
[MOTION FOR JUDGMENT OF ACQUITTAL]
[T. Vol. II, p. 96-98]
Second of all, Your Honor, I would move for judgment
of acquittal on this case due to the fact that as defend-
ant’s exhibits tendered before this Court—I don’t recall
the specific marking—but the motion for order of im-
munity and order of immunity indicate that the testi-
mony of Robert Dunn before the Federal Grand Jury
cannot be used to establish a corpus delicti in an incon-
sistent declarations case.
I specifically cite to the Court the case of United
States v. Patrick, 542 F.2d 381, a Seventh Circuit 1976
case, that said specifically that in an inconsistent declara-
tions case immunized testimony in a grand jury proceed-
ing, testimony granted pursuant to 18 United States
Code, Sections 6002 to 6003, and any subsequent state-
ments made pursuant to an order of immunity—in that
case, there were three separate immunity orders, three
separate proceedings before the Federal District Court
—inconsistent declarations cannot be used when the tes-
timony results from immunized testimony in an incon-
sistent declarations case.
The Court in Patrick holds that 6002 and 6003 simply
does not encompass inconsistent declarations prosecution,
only where the prosecution is under subsection (a) of
1623 or 1621 it would be warranted. And I tender to the
Court a trial brief on that matter.
I secondly move for judgment of acquittal on the basis
that there is no inconsistent declaration in a proceeding
ancillary or before any Federal District Court or Federal
Grand Jury, in the statement to Attorney Canges. Mr.
Cohen stated very specifically that he did not comply
with the Federal Deposition Rules in a criminal pro-
ceeding, it was merely a statement, and on the face of
Plaintiff’s Exhibit 2 it shows that Jerald Cohen is a
56
reporter for the State and District of Colorado. There
is no indication that he was sworn as a reporter for the
Federal District Court in the District of Colorado, there
is no indication that he meets the standards set by the
Judicial Conference as promulgated in the statutes I
cited to you before, and I think most telling was Mr.
Nottingham’s statement that this was a private proceed-
ing before an attorney.
If the Court goes this far to extend an inconsistent
declarations case to cover any private statement given
to any attorney privately, I submit that is beyond the
intent and the spirit of 1623, inconsistent declarations
prosecutions.
I would also tender a written brief, a motion for judg-
ment of acquittal, and there is simply not a proceeding
based on the Canges statement and a proceeding ancil-
lary to or before any Federal Court or grand jury.
Let the record show that I am tendering copies of the
motion and brief to the prosecuting attorney.
* & * *
[OBJECTIONS TO GOVERNMENT’S EXHIBITS
l-a, 2-a AND 4-a]
[(T. Vol. II, p. 118-114]
THE COURT: The Court will deny the motion, re-
newed motions for judgment of acquittal. The Court at
this time will note the objection of Mr. Sears to the
Court’s admitting in evidence the following exhibits, to-
wit: 1-A, which is an excerpt from the testimony of Mr.
Dunn before the grand jury; 4-A, which are excerpts
from the proceedings before Chief Judge Winner.
What is the number of the so-called affidavit before
Mr. Cohen?
Mr. Sears, I will note your objections to 1-A, 4-A, 2-A.
Your objection will be noted and overruled. The Court
intends to submit these documents to the jury.
MR. NOTTINGHAM: Your Honor, excuse me. For
the record, may we also note that the Government’s
theory of this case is relying on 18 United States Code,
Section 1623 (c), and that the Government intends to
57
present its case on the basis of inconsistent declarations
in proceedings ancillary to a U. S. Court or a Federal
Grand Jury proceeding.
THE COURT: Do I understand that you are pro-
9 Mr. Nottingham, on the provisions of the statute,
iC).
MR. NOTTINGHAM: That is the theory of our
proof, Your Honor, yes, sir.
THE COURT: This is the theory of your case, is
that correct?
_ MR. NOTTINGHAM: That’s correct. We are prov-
ing Our case as permitted by 1623 (c).
* * e *
[EXCERPT FROM PLAINTIFF’S
CLOSING ARGUMENT]
[T. Vol. II, p. 168]
You will be instructed, and I would like to quote this,
and ask you to listen carefully for this instruction. You
will be instructed in part, that it is not necessary for
the evidence to show which of the declarations in each
count was in fact false.
_ The only necessity is that the statement under oath be
irreconcilably contradictory, that is, irreconcilably con-
tradictory declarations. So, we don’t have to try to prove
that his grand jury testimony was false, but whether his
subsequent affidavit to the defense attorney was false.
That’s all that mass of testimony would go to, is which
one is really true. We don’t have to prove that. All we
have to prove is the inconsistent statements.
[EXCERPT FROM TRIAL COURT’S
INSTRUCTIONS]
[T. Vol. II, p. 178-179]
As the Court has read to you, ladies and gentlemen,
the statute or federal law that is referred to in the in-
dictment is Title 18, United States Code, Section 1623,
and it provides in part that whoever under oath in any
58
proceeding before or ancillary to any court or grand jury
of the United States knowingly makes any false material
declaration, shall be guilty of an offense.
There are five essential elements required to be proved
in order to establish each of the counts charged in the
indictment. I would like to outline these for you, ladies
and gentlemen.
First, the defendant had made two or more declara-
tions which are inconsistent to the degree that one of
them is necessarily false.
Second, said declarations were given in proceedings
before or ancillary to a court or grand jury of the United
States.
Third, said declarations were made under oath.
Fourth, said declarations were known by the defendant
to be falsely inconsistent when made.
Fifth, that testimony in each proceeding must be mate-
rial to the crime charged or under investigation.
These are the five elements, do you understand that,
ladies and gentlemen?
59
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
[Title Omitted in Printing]
MOTION FOR JUDGMENT OF ACQUITTAL—
Filed April 13, 1977
The indictment in the above case charges the defend-
ant with five (5) counts of making false declarations
before a grand jury or court in violation of 18 United
States Code, Section 1623 (as amended, 1970). More
specifically, in paragraph 6 of each count, the indict-
ment alleges, in part, that “[t]he aforesaid declarations
by Robert Dunn . . . were inconsistent to the degree
that one of said declarations was false and known by him
to be false when made.”
Title 18, United States Code, Section 1623 provides,
in part, as follows:
“Whoever under oath in any proceeding before or
ancillary to any court or grand jury of the United
States knowingly makes any false material dectara-
a
shall be guilty of an offense against the United States.
Title 18, United States Code, Section 1623(a) (as
amended, 1970).
Title 18, U.S.C. § 1623(c) provides, in part, as follows:
“An indictment or information for violation of this
section alleging that, in any proceedings before or
ancillary to any court or grand jury of the United
States, the defendant under oath has knowingly
made two or more declarations, which are incon-
sistent to the degree that one of them is necessarily
false, need not specify which declaration is false...”
Title 18, United States Code, Section 1623(c) (as
amended, 1970) (Emphasis added.)
60
ARGUMENT
THE SWORN STATEMENT BEFORE JERALD B.
COHEN ON SEPTEMBER 30, 1976, DOES NOT
QUALIFY AS A “PROCEEDINGS BEFORE OR
ANCILLARY TO ANY COURT OR GRAND JURY
OF THE UNITED STATES.”
Title 18 U.S.C. § 1623(c) requires that the inconsistent
declarations be made under oath “in any proceedings
before or ancillary to any court or grand jury of the
United States .. .” Title 18, United States Code, Sec-
tion 1623(c) (as amended, 1970) (Emphasis added.)
The legislative history to 18 U.S.C. § 1623(c) indi-
cates an intent by Congress “to facilitate Federal perjury
prosecutions and establish a new false declaration pro-
vision applicable in Federal grand jury and court pro-
ceedings.” U.S. Code Cong. and Adm. News, 1970 Ses-
sion, Vol. II, p. 4008 (Emphasis added. )
A plain reading of the statute and the legislative his-
tory indicates no intent to extend inconsistent declara-
tions prosecutions to statements or declarations made in
proceedings other than before or ancillary to federal
grand jury or court proceedings.
A sworn affidavit taken in a private attorney’s office
by a shorthand reporter who is a “Notary Public with-
in and for the State of Colorado” simply does not qualify.
(See Affidavit of Robert Dwight Dunn, September 30,
1976, p. 2). Mr. Cohen may be a “certified shorthand
reporter” within the definition of C.R.S. 1973 § 12-63-
102; but unless he has been sworn and qualifies pursuant
to Title 28, United States Code, § 753, he is not a reporter
for the United States District Court for the District of
Colorado. See United States v. Doshen, 133 F.2d 757
(3rd Cir. 1943).
Notwithstanding, the mere taking of a sworn state-
ment is not a proceedings before or ancillary to any court
or grand jury of the United States. In 1970, Congress
created a procedure for taking depositions in criminal
eases in federal courts. 18 U.S.C. § 3503. If such a
procedure had been followed, a deposition might qualify.
ee
61
See U.S. Code Cong. and Adm. News, 1970 Session, Vol.
II, p. 4009; United States v. King, —— F.2d ——, 20
Cr.L.Rptr., 2348 (9th Cir. December 16, 1976).
To gain some idea as to a definition of what “proceed-
ings before or ancillary to a court or grand jury of the
United States” are, we may look to 18 U.S.C. § 6002.
Since it is not defined in § 1623 but is closely related
to immunity proceedings under $§ 6002-6003, the same
definitions may assumedly apply. The same phraseology
is used in both sections.
Title 18 U.S.C. § 6001(4) defines “court of the United
States” as follows:
“Court of the United States’ means any of the
following courts: the Supreme Court of the United
States, a United States court of appeals, a United
States district court established under chapter 5,
title 28, United States Code, the District of Co-
lumbia Court of Appeals, the Superior Court of the
District of Columbia, the District Court of Guam,
the District Court of the Virgin Islands, the United
States Court of Claims, the United States Court of
Customs and Patent Appeals, the Tax Court of the
United States, the Customs Court, and the Court
of Military Appeals.”
Though there does not appear to be any provision in the
federal statutes defining “grand jury of the United
States,” the provisions concerning the impaneling of a
grand jury, 18 U.S.C. § 3321, whether it be a regular
statutory grand jury or a special grand jury, 18 U.S.C.
§ 3331 et seg., seems to make clear that such a body
is a creaturg of the federal district court in the judicial
district in which such body sits. See Rule 6, Federal
Rules of Criminal Procedure. The scope of a grand
jury’s duties is set out in 18 U.S.C. § 3332.
We must next determine what proceedings would be
considered “ancillary to” a court or grand jury of the
United States. The common definition of “ancillary” is
found to be subordinate, subsidiary, auxillary, supple-
mentary. Webster’s Third New Instructional Dictionary,
1971. The only federal decision found defining the term
62
adopts the meanings “auxillary” or “subordinate.” John-
son V. Thomas, 16 F.Supp. 1019 (N.D. Tex. 1936).
The defendant contends that an individual act by an
attorney calling a witness in to swear to an affidavit
cannot be considered to be a “proceeding before or ancil-
lary to a court or grand jury of the United States.”
Penal statutes are to be strictly construed. Bronston V.
United States, 409 U.S. 352 93 S.Ct. 595, 34 L.Ed.2d
568 (1973). Such an interpretation, the defendant sub-
mits, is overbroad.
Respectfully submitted,
/s/ Daniel J. Sears
DANIEL J. SEARS
Federal Public Defender
63
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
UNITED STATES OF AMERICA, PLAINTIFF
v8.
ROBERT DUNN, DEFENDANT
TRIAL BRIEF—Filed April 13, 1977
The indictment in the above case charges the defend-
ant with five (5) counts of making false declarations
before a grand jury or court in violation of 18 United
States Code, Section 1623 (as amended, 1970). More
specifically, in paragraph 6 of each count, the indict-
ment alleges, in part, that “t]he aforesaid declarations
by Robert Dunn .. . were inconsistent to the degree
that one of said declarations was false and known by him
to be false when made.”
Title 18, United States Code, Section 1623 provides,
in part, as follows:
“Whoever under oath in any proceeding before or
ancillary to any court or grand jury of the United
States knowingly makes any false material declara-
tiem...”
shall be guilty of an offense against the United States.
Title 18, United States Code, Section 1623(a) (as
amended, 1970).
Title 18, U.S.C. § 1623(c) provides, in part, as follows:
“An indictment or information for violation of this
section alleging that, in any proceedings before or
ancillary to any court or grand jury of the United
States, the defendant under oath has knowingly made
two or more declarations, which are inconsistent
to the degree that one of them is necessarily false,
need not specify which declaration is false .. .”
Title 18, United States Code, Section 1623(c) (as
amended, 1970) (Emphasis added. )
64
ARGUMENT
TH& DEFENDANT’S IMMUNIZED TESTIMONY BE-
FORE THE FEDERAL GRAND JURY CANNOT
BE USED AGAINST HIM IN AN INCONSISTENT
LCLARATIONS PROSECUTION.
Paragraph one of each count of the indictment in the
present case alleges that “[o]n June 16, 1976, at Denver,
in the District of Colorado, Robert Dunn, while under
oath as a witness in a proceeding before a Grand Jury
of the United States in the District of Colorado, did
knowingly make a false material declaration, as more
fully set forth in paragraphs 2 through 6 of this
Count .. .” Accordingly, paragraph 4 of each count
alleges “{a]t the time and place aforesaid, Robert Dunn,
while under oath, did knowingly declare before the Grand
Jury with respect to the aforesaid material matter as
follows . . .” and proceeds to allege specific declarations
made before the Grand Jury.
In paragraph 6 of each count, the indictment alleges
that “(t]he aforesaid declarations by Robert Dunn, as
set forth in paragraphs four (4) and five (5) of this
Count — were inconsistent to the degree that one of
said declarations was false and known by him to be false
when made.” It is therefore quite clear that the declara-
ions made by the defendant before the Federal Grand
Jury sitting at Denver, Colorado, on June 16, 1976, are
relied upon by the government, in part, to make out its
ease of inconsistent false declaration under 18 U.S.C.
§ 1623(c).
Evidence has been introduced to show that the de-
fendant, Robert Dwight Dunn, was called to testify before
said grand jury on June 16, 1976, by the U.S. Govern-
ment. The defendant, having been sworn, stated his
name and was thereupon advised of his right to remain
silent and his right to counsel. Immediately thereafter,
government counsel asked the defendant about his knowl-
edge and activities with Phillip Musgrave to which the
defendant responded by claiming his privilege against
self-incrimination. The defendant was thereupon taken
65
before the Honorable Alfred A. Arraj and, upon pre-
sentation of an application for immunity under 18 U.S.C.
$$ 6002 and 6003 by the United States, an order of use
immunity was entered.
Title 18, United States Code, Section 6002 provides
as follows:
“Whenever a witness refuses, on the basis of his
privilege against self-incrimination, to testify or
provide other information in a proceeding before or
ancillary to—
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee
of the two Houses, or a committee or a sub-
committee of either House,
and the person presiding over the proceeding com-
municates to the witness an order issued under this
part, the witness may not refuse to comply with the
order on the basis of his privilege against self-
incrimination; but no testimony or other informa-
tion compelled under the order (or any information
directly or indirectly derived from such testimony
or other information) may be used against the wit-
ness in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise fail-
ing to comply with the order. (Emphasis added.)
_ Though immunity granted under §§ 6002-6003 is use
immunity, as compared to the former transactional im-
munity, Tierney v. United States, 409 U.S. 1232, 93 S.Ct.
17, 34 L.Ed.2d 37 (1972); Kastigar v. United States,
406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972),
use immunity is co-extensive with the Fifth Amendment
privilege and must be asserted in any criminal proceed-
ings brought against a defendant based upon or derived
from the immunized testimony. United States v. Cap-
petto, 502 F.2d 1351 (7th Cir. 1974) cert. den., 420
U.S. 925; Goldberg v. United States, 472 F.2d 513 (2nd
Cir. 1973).
Title 18 U.S.C. § 6002 protects a witness from use of
the immunized testimony against him in any criminal
66
case, “except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order.”
18 U.S.C. $6002 (Emphasis added.) The immunized
testimony, however, cannot be used as a basis for an in-
consistent declarations prosecution under 18 U.S.C.
§$ 1623 (c).
The distinguishing feature of a § 1623(c) prosecution
from a § 1623(a) or $1621 prosecution is that the
government, in the former, need not prove the falsity of
any allegedly inconsistent declarations. It need only dem-
onstrate that the defendant made two or more declara-
tions under oath which were inconsistent to the degree
that one of them is necessarily false. See footnote 3,
United States v. Patrick, 542 F.2d 381, 384 (7th Cir.
1976).
Immunized testimony may not be used to establish the
corpus delicti of an inconsistent declarations prosecution.
United States v. Patrick, supra, at p. 385.
“We believe such use was not intended by Congress
to come within the exception found in 6002 that the
compelled testimony may be used in ‘a prosecution
for perjury, giving a false statement, or otherwise
failing to comply with the order.’” 542 F.2d at p.
385.
Many decisions similarly hold that a witness can’t be
compelled to testify before a federal grand jury under
an order of immunity only to worry about inconsistent
false declarations he may have made or will make under
18 U.S.C. § 1001. United States v. Watkins, 505 F.2d
545 (7th Cir. 1974); United States V. Alter, 482 F.2d
1016 (9th Cir. 1973) ; United States v. Doe, 361 F.Supp.
996 (E.D. Pa. 1973) aff'd. 485 F.2d 682 (3rd Cir. 1973)
cert. den., 415 U.S. 989. It is generally agreed that it
is perjury committed in contravention of the immunity
order that is expected for use. United States Vv. Tra-
munti, 500 F.2d 1834, 1342-44 (2nd Cir. 1974) ; United
States v. Patrick, supra at p. 385.
“To interpret this perjury exception to include a
prosecution under § 1623(c) for inconsistent state-
ments, some of which were made prior to the latest
67
grant of immunity, would be too broad of a read-
ing of § 6002.” 542 F.2d at p. 385.
A similar holding was entered in People v. Denson
1l.2d 546, 322 NE.2d 464 (1975). Dunn was not bs
dered by Judge Arraj to testify truthfully before At-
torney Canges. The immunity order applied only to the
grand jury proceedings.
_ Even if the government establishes that the incon-
sistent statement made before a court or grand jury
was false when made, this will still not save a prosecu-
tion under 18 U.S.C. § 1623(c). See United States v
Bell, 371 F.Supp. 220, 224 (E.D. Tex. 1973). ;
Respectfully submitted,
/s/ Daniel J. Sears
DANIEL J. SEARS
Federal Public Defender
68
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 76-CR-322
UNITED STATES OF AMERICA, PLAINTIFF
vs.
ROBERT DUNN, DEFENDANT
REPLY BRIEF—Filed May 19, 1977
ARGUMENT
I
IMMUNIZED TESTIMONY MAY NOT BE USED
TO ESTABLISH THE CORPUS DELICTI IN AN
INCONSISTENT DECLARATIONS PROSECU-
TION.
United States v. Patrick, 542 F.2d 381 (7th Cir. 1976)
very clearly holds that testimony immunized under 18
U.S.C. §§ 6002-6003 may not be used to establish the
corpus delicti in an inconsistent declarations prosecution
under 18 U.S.C. § 1623(c). The defendant submits that
the only way that such immunized testimony can be used
is if the government attempts to establish that the de-
fendant perjured himself before the grand jury in vio-
lation of the order of immunity. But when the govern-
ment committed itself to an inconsistent declarations
theory not proving which of the two declarations was
false (the Canges statement or the grand jury testi-
mony), then the Patrick holding becomes very significant.
69
Il
THE CANGES STATEMENT WAS NOT A PRO-
CEEDING BEFORE OR ANCILLARY TO A
COURT OR GRAND JURY OF THE UNITED
STATES.
The defendant stands on the authorities and argument
submitted in its Trial Brief with the further statement
that, contrary to the government’s assertion, defendant
does not concede that a deposition is a proceeding with
the provisions of § 1623(c). The defendant submits a
deposition complying with 18 U.S.C. § 3503 would have
presented a much closer question. But certainly a re-
corded statement taken in an attorney’s office does not
qualify under the statute.
Respectfully submitted,
/s/ Daniel J. Sears
DANIEL J. SEARS
Federal Public Defender
[Certificate of Service (Omitted in Printing) ]
70
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 77-1398
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
vs.
ROBERT DUNN, DEFENDANT-APPELLANT
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 76-CR-322)
OPINION—June 5, 1978
Daniel J. Sears, Federal Public Defender, for appellant.
Edward F. Nottingham, Asst. U. S. Attorney, (with
Joseph F. Dolan, U. S. Attorney, on the brief) for
appellee.
Before BARRETT, DOYLE, LOGAN, Circuit Judges
BARRETT, Circuit Judge
Robert Dunn appeals from his conviction of making
false statements before a grand jury in violation of 18
U.S.C. § 1623.
71
FACTUAL BACKGROUND:
In June 1976, under a grant of immunity pursuant to
18 U.S.C. $6002, Dunn presented testimony to a grand
jury investigating illegal drug activity in the Colorado
State Penitentiary. Dunn’s testimony implicated Phillip
Musgrave in the crimes under investigation. Following
the grand jury proceeding, Musgrave and others were
indicted on charges of conspiring to manufacture and
distribute controlled substances. (United States v. Mus-
grave, et al, No. 76-Cr-155.)
Subsequently, in September 1976, Dunn appeared in
the office of Michael Canges, attorney for Phillip Mus-
grave. In the presence of Canges and Gerald Cohen, a
notary public, Dunn gave an oral statement under oath
which was recorded and transcribed wherein he recanted
his grand jury testimony implicating Musgrave. (Vol. I
at 74-83; Vol. II at 144-147). Dunn stated that much
of what he had previously told the grand jury was not
true. (Vol. I at 68-73). At the time Dunn made the
statement, he was not represented by counsel. However,
there is nothing in the record which indicates that Dunn
could not have appeared with counsel or that his state-
ment was not completely voluntary. Dunn was fully cog-
nizant that Canges was representing Musgrave.
Thereafter, Michael Canges notified the United States
Attorneys’ office of Dunn’s recantation of his grand jury
testimony. Canges filed a transcript of Dunn’s sworn
statement with the district court wherein the Musgrave
prosecution was pending. Motions were filed on behalf
of Musgrave and others challenging the indictments on
the basis that such indictments had been returned predi-
cated on false grand jury testimony. An evidentiary
hearing on these motions was held before Judge Winner
in October 1976. At that time Dunn, who was then rep-
resented by counsel, reaffirmed under oath that he had
lied to the grand jury. His testimony of course, was
duly reported and transcribed. As a result, the charges
against Musgrave were subsequently reduced.
Thereafter, Dunn was indicted and charged with five
counts of making false statements to a grand jury in
violation of 18 U.S.C. § 1623. The evidence against Dunn
72
admitted at trial included: Dunn’s grand jury testi-
mony, Dunn’s Canges statement, and relevant portions
of Dunn’s testimony at the Musgrave motion hearing.
At Dunn’s trial, testimony was given by the notary pub-
lie who had administered the oath to Dunn in Canges’
office, and by the United States Attorney in charge of
the grand jury proceeding. The jury found Dunn guilty
on three counts of perjury before the grand Jury.
On appeal Dunn contends that the trial court erred in
1) ruling that the proceeding in Canges’ office was a
proceeding ancillary to a court or grand jury of the
United States, and 2) ruling that immunized grand jury
testimony could be used to establish the corpus delectt in
an inconsistent declarations prosecution.
PRELIMINARY DISCUSSION:
Before proceeding to the specific issues at hand, it is
necessary to discuss in some detail the pertinent statutes
and the 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:
“(q) Whoever under oath in any proceeding before
or ancillary to any court or grand jury of the United
States knowingly makes any false material declara-
tion or makes or uses any other information . . .
knowing the same to contain any false material
declaration, shall be fined not more than $10,000 or
imprisoned not more than five years, or both.”
18 U.S.C. § 1625(c), outlines a statutory method of
charging a witness with violating § 1623 (a):
“(e) 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 know-
ingly made two or more declarations, which are in-
consistent to the degree that one of them is neces-
sarily false need not specify which declaration is
false...”
73
In addition, § 1623(c) sets forth a method for prov-
ing false declarations:
“In any prosecution under this section, the falsity of
a declaration set forth in the indictment or informa-
tion shall be established sufficient for conviction by
proof that the defendant under oath made irrecon-
cilably contradictory declarations material to the
point in question in any proceeding before or ancil-
lary to any court or grand jury.”
Thus, § 2623(c) eliminates the two witness rule which
is otherwise required to prove perjury. The government
need not prove which of the declarations was false
through extrinsic evidence, but rather, the falsity of one
of the two declarations is inferred from their inconsis-
tency with each other. United States v. Slawik, 548 F.2d
75 (3rd Cir. 1977); United States v. Patrick, 542 F.2d
381 (7th Cir. 1976), cert. denied 430 U.S. 931.
Turning now to the government’s indictment of Dunn,
all counts of the indictment read that:
“On June 16, 1976, at Denver in the District of
Colorado, ROBERT DUNN, while under oath as a
witness in a proceeding before a grand jury of the
United States in the District of Colorado, did know-
ingly make a false material declaration . . . in viola-
tion of Title 18, U.S.C. § 1623.”
The indictment quotes the appropriate portions of
Dunn’s initial grand jury testimony from a certified
transcript wherein Dunn made statements implicating
Musgrave. The indictment also quotes statements con-
tradicting Dunn’s grand jury testimony made in Canges’
office. The concluding portion of each count against Dunn
included this language:
“6. The aforesaid declarations by ROBERT DUNN,
as set forth in paragraphs (4) and (5) of this count
were inconsistent to the degree that one of said
declarations was false and known by him to be false
when made.”
In the preliminary stages of the proceedings below,
Dunn moved for a bill of particulars to determine which
74
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
tha’ evidence to show that Dunn’s June grand jury tes-
timony 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 specified 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 Canges 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 a 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 con-
strued. Nor has the question of what other statement
may be used to show inconsistency with grand jury tes-
timony. “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.
ee nr a
75
In the absence of a clear meaning for the term “ancil-
lary 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 pro-
ceedings 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 proceed-
ing 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 out-
come of that proceeding.
This court has concluded that while the Canges state-
ment 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 proceed-
ing. 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 district court on Musgrave’s
motion to dismiss the indictment, clearly constitutes a
proceeding ancillary to the grand jury proceeding. Thus,
the admission into evidence of Dunn’s testimony during
the hearing on Musgrave’s motion was proper in that
it constituted an affirmation and adoption of the Canges
statement, supportive thereof and cumulative in nature.
76
Furthermore, the admission into evidence of Dunn’s
testimony given at the Musgrave hearing does not create
a fatal variance between proof at trial and the indict-
ment. This court has consistently held that a variance
between the indictment and evidence is not fatal unless
the defendant could not have anticipated from the in-
dictment what evidence would be presented at trial or
unless the conviction based on an indictment would not
bar a subsequent prosecution. United States v. Cowley,
452 F.2d 243 (10th Cir. 1971); United States v. Free-
man, 514 F.2d 1184 (10th Cir. 1975). Clearly, where
Dunn’s testimony in the Musgrave motion hearing was
inextricably related to his Canges statement, that is,
affirming the truth of the latter, it cannot be said that
Dunn could not have anticipated that such evidence would
be presented against him at his perjury trial.
Finally, the court has also considered whether the in-
dictment brought against Dunn meets the standards
for sufficiency of an indictment as set forth in United
States v. Radetsky, 535 F.2d 556 (10th Cir. 1976). The
government has repeatedly stated its reliance upon § 1623
(ec) 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
Dunn’s 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.
However, the sufficiency of an indictment is to be
determined by practical rather than technical considera-
tions, United States v. Crim, 527 F.2d 289 (10th Cir.
1976), cert. denied 425 U.S. 905. Viewed in this prac-
tical light, where excerpts from the Canges statement
were necessarily included in the indictment to establish
“inconsistency”, and where the Canges statement was in-
extricably related to Dunn’s testimony in the Musgrave
77
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 particu-
lars 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, giv-
ing 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. Tra-
munti, 500 F.2d 1334, 1344 (2nd Cir. 1974), cert. de
nied 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 in-
quiry 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.”
78
Neither the Fifth Amendment nor statutory immunity
offers a witness protection against prosecution for per-
jury, 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 govern-
ment 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 im-
munity substitutes for the privilege.
“In this constitutional process of securing a wit-
ness’ testimony, perjury simply has no place what-
ever. Perjured testimony is an obvious and flagrant
affront to the basic concepts of judicial proceedings.
Effective restraints against this type of egregious
offense are therefore imperative. The power of sub-
poena, 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 an-
swers. Hence, Congress has made the giving of false
answers a criminal act punishable by several penal-
ties: 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 in-
tended to facilitate perjury prosecutions and establish
a new false declaration 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 to meet the ends
of justice. Bronston v. United States, 409 U.S. 352
(1973). We observe that it would be an affront to the
basic purpose of the criminal justice system to permit
one to avoid likely prosecution under the grant of im-
ae
” af
79
munity. The import of statements made in the context
of a grand jury proceeding were recognized by the Su-
preme Court in United States v. Harris, 311 U.S. 292
(1940) :
Section 125 of the Criminal Code makes no dis-
tinction between the false assertions of the fact of
prior statements and the false assertions of any
other fact. Nor can we see any reason to make one.
As the Government points out, the denial of the fact
that certain statements have been made may be
equally as clear, deliberate, and material a falsehood
as the denial of any other fact. And since state-
ments made to government agents are generally one
of the bases upon which criminal proceedings are
instituted and indictments returned, such a distinc-
tion might substantially impede effective adminisitra-
tion of criminal law. (Emphasis supplied.)
311 U.S., at p. 295.
We have carefully studied the cases relied upon by
Dunn, including United States v. Patrick, 542 F.2d 381
(7th Cir. 1976), cert. denied, 430 U.S. 931 (1977);
United States v. Housand, 550 F.2d 818 (2nd Cir. 1977),
cert. denied, 431 U.S. 970 (1977); and United States v.
Berardelli, supra. These cases involve the interrelation-
ship between § 6002 immunity, the Fifth Amendment,
and §1623(c) inconsistent declarations prosecutions.
Arising in different factual contexts, these decisions
basically stand for the general proposition that immu-
nized testimony may not be used to establish the corpus
delecti of an inconsistent declarations prosecution with-
out a prior showing of falsity.
However, unlike the fact situations of the above deci-
sions relied upon by Dunn, Dunn’s subsequent: testimony
in his Canges affidavit and in the Musgrave motion hear-
ing not only were inconsistent with his immunized grand
jury testimony, but, significantly, contained Dunn’s ad-
mission that he had in fact testified falsely before the
grand jury. Even though we have held that the govern-
ment need not prove which of Dunn’s statements were
false for purposes of sustaining his conviction under
§ 1623(a), (c), and while we do not decide whether,
80
under other circumstances, immunized testimony may be
admitted to demonstrate inconsistency without a prior
showing of falsity, in our view Dunn’s unequivocal ad-
mission that his immunized testimony before the grand
jury was false justified the use of such immunized testi-
mony to establish the corpus delecti of the present prose-
cution.
Immunity statutes are, of course, ordinarily for the
benefit of the government, designed to effectiveiy serve
the compelling needs of the criminal justice system by
preventing a substantial avoidance of prosecution and
penalty. Dunn has grossly abused those purposes. In
Shotwell Mfg. Co. v. United States, 371 U.S. 341 (1963),
the Supreme Court said, inter alia:
... Plainly the offer of immunity contained in the
voluntary disclosure policy presupposed, at the very
least, that a delinquent taxpayer would make a
“clean breast of things” .... [in] deciding whether
to disclose or run the risk of prosecution petitioners
were initially justified in relying on the Treasury’s
general offer of immunity . . . once a fraudulent
disclosure had been determined upon they must be
deemed to have recognized that such an offer had in
effect heen withdrawn as to them or, amounting to
the same thing, that they were no longer entitled
to place reliance on it. 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. (Emphasis 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 testi-
mony 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.
WE AFFIRM.
81
IN THE UNITED STATES TENTH CIRCUIT
COURT OF APPEALS
MAY TERM—June 22, 1978
Before The Honorable James E. Barrett, The Honor-
able William E. Doyle, and The Honorable James K.
Logan, Circuit Judges
No. 77-1398
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v8.
ROBERT DUNN, DEFENDANT-APPELLANT
This matter comes on for consideration of appellant’s
petition for rehearing filed in the captioned cause.
Upon consideration whereof, the petition for rehearing
is denied.
/s/ Howard K. Phillips
HOWARD K. PHILLIPS
Clerk
82
SUPREME COURT OF THE UNITED STATES
No. 77-6949
ROBERT DUNN, PETITIONER
Vv.
UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO the United
States Court of Appeals for the Tenth Circuit.
ON CONSIDERATION of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion
to proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.
December 11, 1978
YU. S. GOVERNMENT PRINTING OFFICE, 1978 284133 255
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.