Petition — Niederberger v. United States

mm

Supreme Court, U. & ~

FILED

AUG 10 1978

IN THE

Supreme Court of the Uni

OOAK, jR., CLERK |

Dare Term, 1978

No. ..0.8 =D 34

CYRIL J. NIEDERBERGER,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LIVINGSTON, MILLER, O’MALLEY & CLARK

THOMAS J. LIVINGSTON °

DENNIS J. CLARK

Attorneys for Petitioner

Colonial Building

205 Ross Street

Pittsburgh, Pa. 15219

(412) 391-7686

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA, 15219

INDEX

ED 1 |

Ni ccckdcsasnsncssssnsccscscsnesscees 1

le catatessancimcevonssccoevescsbeoes. 2

Des csescerecnsescersnss 2

Statutes Involved ............00........ 1 4

En 5

Reasons for Granting the Writ... cen. 11

Nc ovncossecsccceseese. ; “a

Appendix:

A—Opinion and Order of the United States

Court of Appeals for the Third Circuit,

dated May 5, 1978, affirming the conviction la

B—Order of the United States Court of Ap-

peals, for the Third Circuit dated July 12,

1978, denying the petition for rehearing ... 20a

ii

Citations.

CITATIONS

CASES PAGE

Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215,

ee ls I os, cccccreciens cs Shc aieels 23

Earl v. United States, 361 F.2d 531 (D.C. Cir: 1966) 20

Earl v. United States, 364 F.2d 666 (D.C. Cir. 1966) 21

Kastigar v. United States, 406 U.S. 441, 92 S.Ct.

Ri Se es WN MRE CRED vaca vicscenkscgccecsaurccsnees 21, 22

Krogmann v. United States, 225 F.2d 220 (6th Cir.

MEE Sinai. ictsscdac esata ee at eae 36

Murphy v. Waterfront Commission, 378 U.S. 52,

84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964) ................ 21

Oyler v. Boyles, 368 U.S. 448, 82 S.Ct. 501 (1962) ... 29

Parr v. United States, 363 U.S. 370 (1960) ................ 36

Post v. United States, 161 U.S. 583 (1894) ................ 36

Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945

NG icnacicnchaysaautilte Me er i a 37

State v. Broady, 321 N.E. 2d 890 (Ohio 1974) ........ 20

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270

BT FES al eS A 25

~<a v. United States, 393 F.2d 627 (8th Cir.

1968 )

United States v. Alessio, 528 F.2d 1079 (9th Cir.

MTD - <ivcscinkseetioseeice ates eae re ena 21

United States v. Arthur, 544 F. 2d 730 (4th Cir.

BE vihinesccccansc de a ne ee 12, 13, 14

United States v. Bell, 457 F.2d 1231 (5th Cir. 1972) 40

United States v. Brewster, 408 U.S. 501, 92 S.Ct.

WEE. SNE. Sach ae ee 12, 13

a v. Brewster, 506 F.2d 62 (D.C. Cir.

1974)

iii

Citations.

CASES PAGE

United States v. Bryant, 439 F.2d 642 (D.C. Cir.

ac coun ebincnestkatetedetiialted aiaksaeanniedh thal crsaeiesnctaan tae

“1006 tcl I ARSED eB ene bee AE DS

toT2) De eet Ra PE me go 31

United States v. Crutchley, 502 F.2d 1195 (3d Cir.

BI i persia dos cnaeceted acscawain vielcon discs vemecuaaisaameryboenes 26, 27

178)... ESD ple EA ae 26

United States v. Falk, 479 F.2d 616 (7th Cir. 1973) 30

United States v. Fioravanti, 412 F.2d 401 (3d Cir.

REE te PRY Fae? ARNE deep amet eee Brae 40

United States v. Gaither, 539 F.2d 752 (D.C. Cir.

ee ocala raids delimhiles Cuaneadioneve 21

United States v. Gallo, 394 F. Supp. 310 (D. Conn

i ate oo aes ren hemi Nnideiealds 25

United States v. Harris, 543 F.2d 1247 (9th Cir.

I aoa aa deena ats a sesh tcointiedinwses 40

United States v. Harrison, 524 F.2d 421 (D.C. Cir

NE Se Ca eae GPE ASS eee Wn RR ICR RE aA 40

United States v. James, 290 F.2d 866 (5th Cir.1961) 25

United States v. Johnson, 521 F.2d 1318 (9th Cir.

ae ae adits datecdadetanpaebisiiaihe) 40, 41

United States v. Jones, 476 F.2d 885 (D.C. Cir.

kts Saal saat a dacecins tose dephsuosinasbvanashingsnke 21

RACER NSBR AUR ad REA ake Ris roa eee

United States v. Lewis, 511 F.2d. 798 (D.C. Cir.

ING ccc sndscoancchastebegivesdveasbigtectcivortaeshioablitchnabeokoseednns 40

iv

Citations.

CASES PAGE

United States v. Morrison, 535 F.2d 523 (3d Cir.

WD esc viknscsnconcadciccutassausensduaaeaa ae 20

United States v. Pollock, 417 F. Supp. 1332 (D.Mass

BIDE xaicecccssnsncocsnsesdicopntisbsusenietedaaae ae 26, 40

United States v. Ramirez, 482 F.2d 807 (2d Cir.

RIE i eisai 26, 40

United States v. Ramsey, 503 F.2d 524 (7th Cir.

BUN sccenveriicsssoesseveinpnivmaciviesstesiataa ae 21

DD, TIDID cvecncsnesinisnssseieruinmanecueataiiaas ede 29, 30

FINED vvcsvesnevsccnsuvoseicnesnscuiulerimmnsl aaa ee 20

SIUTED | <vsunesssoievecinuncivusiosiagianeecontoa aaa ae 31

United States v. Vella, 562 F.2d 275 (3rd Cir. 1977) 40

Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1620

CORBI Devine sncdsicisniec iihcnsoctsghscesennslicnetunsieeiiai aan 22

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 200000000000... 29

UNITED STATES CONSTITUTION

BO} FEEL 20

PO UE ssc c aniston 20, 35, 36

STATUTES

Rule 8(a), Federal Rules of Criminal Procedure........ 32

Rule 14, Federal Rules of Criminal Procedure .......... 37

Rule 16, Federal Rules of Criminal Procedure ........ 39, 40

Rule 18, Federal Rules of Criminal Procedure .......... 38

Title 18, United States Code §201(g) ..0000000000000.... passim

Title 18, United States Code §3500 2000000000000. 39, 40

Title 18, United States Code $6002 2000000000... 21, 22

Title 26, United States Code §7214(a) (2) ............ passim

Citations.

PAGE

OTHER SECONDARY SOURCES

Hearings on H.R. 302, H.R. 3050, H.R. 3411, H.R.

3412, and H.R. 7139 Before the Antitrust Sub-

committee of the House Committee on the Judi-

ciary, 87th Cong. 1st Sess. (1961)... 15

Hearings on H.R. 8140 Before the Senate Committee

on the Judiciary, 87th Cong. 2nd Sess. (1962)

Aad ones bcc saadivnabenssesoosissereeee. 15, 16

S. Rep. No. 2213, 87th Cong. 2nd Sess. (1962) .......... 18

Staff Report (85th Cong. 1958) 2.0... eee 18

Cong. Record, 87th Cong. 2nd Sess. October 3, 1962,

Erlend. sschidniinehinesesenea/aanasesbasancnss 18

Westen, “The Compulsory Process Clause” 73 Mich.

ho ssi os ion sepdensssjorpssaverbisenceds 21

IN THE

Supreme Court of the United States

CYRIL J. NIEDERBERGER,

Petitioner

4

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Your petitioner, Cyril J. Niederberger, prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Third Circuit in

the above captioned cases.

OPINIONS BELOW

No opinion was rendered by the district court. The

court of appeals’ opinion and order dated May 5, 1978,

affirming the district court’s judgment of conviction, is

not yet reported but is set forth herein at “Appendix A”’.

The court of appeals’ order, dated July 12, 1978, denying

the petition for rehearing, is not yet reported but is set

forth herein at “Appendix B”’.

Questions Presented.

JURISDICTION

On May 5, 1978, the court of appeals issued its

opinion and order affirming the district court’s judgment

of conviction. The court of appeals issued an order deny-

ing the petition for rehearing on July 12, 1978, and the

within petition for a writ of certiorari is being filed

within thirty days of said order. The jurisdiction of this

Court is invoked under Title 28, United States Code,

Section 1254(1).

QUESTIONS PRESENTED

I. Whether 18 U.S.C.§201(g) and 26 U.S.C.$7214

(a) (2) require as a necessary element a quid pro quo,

i.e., must a government employee receive something of

value for or because of some specific official act?

II. Whether a district court has the power to grant

use immunity to a defense witness and/or order the gov-

ernment to provide such immunity?

III. Whether grand jury attendance records can

be examined to determine if the grand jury which re-

turned the third indictment was the same grand jury

which heard the evidence and returned the earlier in-

dictments?

IV. Whether a request for a special evidentiary

hearing on the issue of selective prosecution should be

granted when there is a first time prosecution for accept-

ing goodwill entertainment under 18 U.S.C.$201(g) and

26 U.S.C.§7214(a) (2) ?

V. Whether a bill of particulars is required when

an indictment is duplicitous?

Questions Presented.

VI. In a prosecution under 18 U.S.C.§201(g) and

26 U.S.C.§7214(a) (2), whether the trial judge must

charge the jury that the gratuities must be received

within the jurisdiction?

VII. Whether a severance of counts of the indict-

ment should have been granted when clear prejudice ap-

pears during the course of trial?

VIII. Whether testimony concerning a defendant’s

admissions should be stricken when the witness, an In-

ternal Revenue agent, testified that he destroyed the

original rough notes of his interview with defendant?

Statutes Involved.

STATUTES INVOLVED

TITLE 18 UNITED STATES CODE, SECTION 201(G) :

(g) Whoever, being a public official, former pub-

lic official, or person selected to be a public official,

otherwise than as provided by law for the proper dis-

charge of official duty, directly or indirectly asks, de-

mands, exacts, solicits, seeks, accepts, receives, or agrees

to receive anything of value for himself for or because

of any official act performed or to be performed by

him...

Shall be fined not more than $10,000 or imprisoned

for not more than two years, or both.

TITLE 26 UNITED STATES CODE, SECTION 7214(A) (2):

(a) Unlawful acts of revenue officers or agents.—

Any officer or employee of the United States acting in

connection with any revenue law of the United States...

(2) who knowingly demands other or greater

sums than are authorized by law, or receives any fee,

compensation, or reward, except as by law prescribed,

for the performance of any duty...

shall be dismissed from office or discharged

from employment and, upon conviction thereof, shall be

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

than 5 years, or both...

Stutement of the Case.

STATEMENT OF THE CASE

History

On July 16, 1976, your petitioner, Cyril J. Nieder-

berger, was indicted at criminal number 76-143 in the

United States District Court for the Western District

of Pennsylvania. This indictment was superseded by a

second indictment on September 15, 1976, which in turn

was superseded by a third and final indictment on Jan-

uary 10, 1977. This indictment named only Niederberger

and charged him in five (5) counts with violating Title

18 United States Code, Section 201(g), and in five (5)

counts with violating Title 26 United States Code, Sec-

tion 7214(a) (2). Counts one (1), three (3), five (5),

seven (7) and nine (9) allege that at Pittsburgh, in the

Western District of Pennsylvania, Niederberger, a

supervising Internal Revenue agent who was the case

manager for the Internal Revenue Service (hereinafter

sometimes referred to as “IRS’’) audit of Gulf Oil

Corporation’s (hereinafter referred to as “Gulf’”’) in-

come tax returns, did unlawfully and knowingly accept,

receive and agree to receive a thing of value for him-

self from Gulf, otherwise than as provided by law for

the proper discharge of his official duties, for and be-

cause of official acts performed and to be performed by

him, namely the audit of certain annual Gulf income tax

returns. It is further alleged that the things of value

were vacations at Pompano Beach, Florida (count 1),

Miami Beach, Florida (count 3), Absecon, New Jersey

(count 5), Pebble Beach, California (count 7) and Las

Vegas, Nevada (count 9), which included, among other

things, airfare tickets, lodging, meals, drinks and golf

outing fees, all in violation of 18 U.S.C. §201(g).

Statement of the Case.

Counts two (2), four (4), six (6), eight (8) and

ten (10) allege that at Pittsburgh in the Western Dis-

trict of Pennsylvania, Niederberger who was a federal

officer and employee, namely a supervisory Internal

Revenue agent and case manager for the audit of cer-

tain Gulf income tax returns, did unlawfully and know-

ingly receive a fee, compensation and reward which was

not prescribed by law for the performance of his duties

as an IRS agent. It is further alleged that such fee, com-

pensation and rewards were the same vacations recited

above, i.e., at Pompano Beach, Florida (count 2), Miami,

Florida (count 4), Absecon, New Jersey (count 6),

Pebble Beach, California (count 8) and Las Vegas,

Nevada (count 10), which included, among other things,

airfare tickets, lodging, meals, drinks and golf outing

fees, all in violation of 26 U.S.C. §7214(a).

All pre-trial motions, whenever filed, were incorpo-

rated and applied to the superseding, third indictment.

A jury trial on said indictment was convened before the

Honorable Daniel J. Snyder, District Judge, on February

17, 1977. On February 25, 1977, the jury returned a

verdict acquitting Niederberger as to counts 1, 2, 4, and

6, but convicting him as to counts 3, 5, 7, 8, 9 and 10.

On March 29, 1977, Niederberger was sentenced by

the district court to imprisonment for a term of two

years as to count 3 on the conditions that he be incar-

cerated for a period of six (6) months with the re-

mainder of the imprisonment suspended and that he

serve a five (5) year period of probation. He was also

ordered to pay a $5,000.00 fine and the costs of prosecu-

tion. As to counts 5, 7, 8, 9 and 10, the imposition of

sentence was suspended.

Statement of the Case.

The judgment of sentence was affirmed by the

United States Court of Appeals for the Third Circuit on

May 5, 1978. A petition for rehearing was denied on

July 12, 1978. The within Petition For Writ of Certiorari

follows.

Facts

Ernest A. Vendrell, comptroller for Doral Hotel and

Country Club in Miami, Florida, testified to a bill in-

curred by a C. Niederberger at Doral from January 19

to January 22, 1973, in the amount of $143.87. Said bill

was transferred to that of one J. F. Fitzgerald, a com-

panion on the trip, who paid it by American Express

card and the money was then received from the Ameri-

can Express Company and not from Gulf Oil Corpora-

tion.

Wilma Conover, accounts receivable clerk for Sea-

view Country Club in Absecon, New Jersey, identified a

Seaview reservation card in the names of Mr. and Mrs.

Niederberger for August 31 to September 3, 1973. Their

bill in the amount of $169.21 was transferred to Arthur

V. Harris, a fellow vacationer. Mrs. Conover did not

know who paid the bill.

Mrs. Gordon Nelson, an employee in the accounting

office of Del Monte Lodge, Pebble Beach, California,

identified a Del Monte record which indicated a reserva-

tion was made for a Mr. Niederberger on March 28,

1974, by one “Chris Shultz’. Niederberger’s bill (for

April 2-5, 1974) in the amount of $247.56 was included

with the bills of Fitzgerald and one Mr. Standefer, and

paid for by Fitzgerald with an American Express card.

John Alderfer, controller at the Desert Inn and

Country Club in Las Vegas, Nevada, testified that a Mr.

Statement of the Case.

& Mrs. C. J. Niederberger were guests along with the

Standefers, Fitzgeralds and Snokhaus’ from June 17,

1974, to June 21, 1974. The Niederberger bill of $149.91

was transferred to Mr. Fitzgerald’s account which was

paid by an American Express card.

Alan E. Hobron, an IRS investigator, interviewed

Cyril J. Niederberger, who as the “Large Case Man-

ager” headed the IRS team auditing Gulf. He testified

that on June 18, 1976, Niederberger told him that from

1967 or 1968 when he was assigned to the Gulf audit

until 1975 when he retired from the IRS he accepted

meals, drinks, golf outings, lodging, liquor, airfares and

gifts. In regard to the Doral trip, he said it was a golf

outing arranged and paid by Gulf with the plans for

same being made in Pittsburgh. Also, the Seaview,

Pebble Beach and Desert Inn trips were arranged and

paid for by Gulf. Harris, Standefer and Fitzgerald were

all identified as Gulf employees. Fitzgerald was said to

be a friend of Niederberger for thirty years.

William C. Church, from the Personnel Office of the

Pittsburgh District of the IRS, testified that Nieder-

berger’s annual salary in 1967 was $18,481.00, and after

periodic increases his salary in 1975 was $31,552.00.

Harold S. Levin served as Assistant Chief of the

IRS Audit Division in Pittsburgh from October 1, 1973,

to September 30, 1975. He explained that a “Large Case

Manager” supervises a group of IRS agents who pri-

marily examine the tax returns of “large taxpayers”

(corporations with $250 million or more in assets).

Cyril J. Niederberger was assigned as Large Case Man-

ager for the Gulf audit. He testified that on July 11, 1971,

the Gulf audit for 1960 and 1961 was completed; on

Statement of the Case.

January 18, 1973, the Gulf audit for 1965 and 1966 was

closed; on May 10, 1973, the Gulf audit for 1967 and 1968

was completed; and on April 1, 1974, the Gulf audit for

1969 and 1970 was closed, which audit was approved by

the IRS review staff on June 27, 1974. All of these audits

were “agreed audits”. Levin also testified that he never

worked on a “large case” in the IRS and he had neither

a role in regard to the Gulf audit nor any personal

knowledge of the Gulf audits. All “agreed audits” were

examined by the IRS review staff and none of these from

Niederberger’s “large case” team were ever rejected.

Leon Moore, Chief of the IRS Audit Division in

Pittsburgh from March, 1973, to November, 1975, testi-

fied that in 1974 Niederberger was assigned the special

task, in addition to his audit duties, of determining

whether or not alleged political campaign contributions

by Gulf had any impact on its tax liability. After Nieder-

berger’s memorandum concerning the issue, the 1969

and 1970 Gulf audits were closed. He also testified that

Niederberger correctly determined that Gulf owed no

additional taxes by reason of their political contribu-

tions; that Gulf had agreed not to take any tax advan-

tage for this in the future; that Niederberger’s memo-

randum and all the Gulf audits were reviewed by many

levels of the IRS; that none of the Niederberger audits

have been changed after review; and that there was

nothing in the Niederberger memorandum to prevent the

IRS Intelligence Division from continuing an investiga-

tion into possible criminal fraud on the part of Gulf.

James J. Cox, manager of Gulf’s general accounting

department, identified certain Guif employees travel and

expense reports from 1967 through 1974 which related

to Niederberger. Martin E. Boyd, an IRS internal se-

10

Statement of the Case.

curity inspector, examined these reports and sum-

marized from them the expenses relating to Nieder-

berger which totaled 341 instances of entertainment

from 1967 through 1975 for a sum of $7,445.43. He also

testified that he has no personal knowledge whether in

fact Niederberger ever participated in this entertain-

ment or received gratuities of some sort or anything of

value from Gulf in connection with any of the instances

listed in his summary.

Christine Rugh, whose maiden name was “Shultz”,

served as secretary to Mr. Standefer at Gulf from 1972

to 1975; in her job, she typed expense reports and made

reservations for him. Sandra L. Feris, secretary to

Standefer since August 1975, identified certain Fitz-

gerald expense reports and attachments thereto; she

had no personal knowledge of the information contained

on same.

N.B. Other testimony, where pertinent, will be de-

tailed in the following text.

11

Reasons for Granting a Writ of Certiorari.

REASONS FOR GRANTING A WRIT

OF CERTIORARI

Petitioner Niederberger presents two principal

reasons for the granting of a Writ of Certiorari. First,

he poses certain important questions of federal law

which have not been, but should be, settled by this Court.

Second, in view of the increasing concern about the level

of trial counsel’s competence, the instant case offers an

example of how petitioner’s counsel made every attempt

but was prevented from rendering effective assistance

to his client because of the trial court’s rulings which

individually and cumulatively resulted in the denial of

a fair trial to petitioner.

A. Petitioner Niederberger asks this Court to deter-

mine whether 18 U.S.C.§201(g)! and 26 U.S.C.

§7214(a) (2)? require as a necessary element (to be

plead and proven) a quid pro quo, i.e., must a gov-

ernment employee receive something of value for or

because of some specific official act.

1. 18U.S.C. §201(g) reads as follows:

“Whoever, being a public official, former public

official, or person selected to be a public official,

otherwise than as provided by law for the

proper discharge of official duty, directly or

indirectly asks, demands, exacts, solicits, seeks,

accepts, receives, or agrees to receive anything

of value for himself for or because of any

official act performed or to be performed by

him.” (Emphasis supplied. )

2. 26 U.S.C. $7214(a) (2) reads as follows:

“Unlawful acts of revenue officers or agents...

Any officer or employee of the United States

12

Reasons for Granting a Writ of Certiorari.

Prior to trial, petitioner Niederberger field a motion

to dismiss the indictment in that the facts alleged do not

constitute a criminal offense under 18 U.S.C. $201(g) or

26 U.S.C. $7214(a) (2). Neither the indictment nor the

bill of particulars alleges the necessary element under

both of these statutes of a specific quid pro quo, i.e., that

Niederberger as a government employee received some-

thing of value “for or because of’ some specific official

act which he performed or was to perform in the future.

Having omitted this necessary element, the indictment

is plainly insufficient as a matter of law. Furthermore,

the trial court’s failure to charge on quid pro quo as a

necessary element was erroneous.

Although there have been no reported federal prose-

cutions similar to this case, tne issue presented here has

been discussed on a few occasions by the courts, gen-

erally with respect to the adequacy of jury instructions

bearing on tendered defenses. These cases hold that mere

goodwill entertaining of government employees does not

constitute an illegal gratuity or, to state it differently,

that entertaining of a government employee unrelated

to any “specifically identified official act” of that em-

ployee does not constitute an illegal gratuity. United

States v. Brewster, 506 F.2d 62, 81-82 (D.C. Cir. 1974) ;

United States v. Arthur, 544 F.2d 730 (4th Cir. 1976).

In Brewster the court stated that a gratuity given

an Official “out of the general support based on his past

acting in connection with any revenue law of

the United States...

(2) who knowingly demands other or

greater sums than are authorized by law, or

receives any fee, compensation, or reward, ex-

cept as by law prescribed, for the performance

of any duty;” (Emphasis supplied)

13

Reasons for Granting a Writ of Certiorari.

record or out of insubstantial hopes for the future”

would not violate 18 U.S.C. §201(g). 506 F.2d at 77-78.

The court went on to point out:

“There must be more specific knowledge of a definite

official act for which the contributor intends to

compensate before an official’s action crosses the

line between guilt and innocence.” 506 F.2d at 81.

(Emphasis supplied. )

The court in Brewster emphasized that a payment to a

government official becomes an illegal gratuity only

when made because of a “specifically identified act” and

that any payment must be received by the official with

knowledge that he is being paid for that act.

This Court in United States v. Brewster, 408 U.S.

501, 527 (1972), in an opinion by Mr. Chief Justice

Burger, reversed the district court’s dismissal of the

indictment on unrelated grounds but in remanding the

case for trial, set forth the critical elements of an offense

under $201(g) as follows:

“To sustain a conviction [under 201(g) ] it is nec-

essary to show the appellee solicited, received, or

agreed to receive, money with knowledge that the

donor was paying him compensation for an official

act.” (Emphasis supplied.)

Recently in Arthur, the Fourth Circuit held that

entertainment of, or payments to, government employees

do not constitute bribery when made in order to obtain

only their general goodwill. There the court, citing

Brewster with approval, wrote:

“(criminal intent) is not supplied merely by the

fact that the gift was motivated by some generalized

hope or expectation of ultimate benefit on the part

14

Reasons for Granting a Writ of Certiorari.

of the donor... ‘bribery’ imports the notion of some

more or less specific quid pro quo for which the gift

or contribution is offered or accepted.” 544 F.2d

at 734.

The Court in Arthur concluded that goodwill entertain-

ing of government officials does not constitute bribery

because the favor intended in such entertaining is not

intended as a definite quid pro quo for a specific act by

the government official but rather is only intended to

generally influence the official’s actions. In reaching this

conclusion the court reasoned as follows:

“It does not follow, however, that the traditional

business practice of promoting a favorable business

climate by entertaining and doing favors for poten-

tial customers becomes bribery merely because the

potential customer is the government. Such ex-

penditures, although inspired by the hope of greater

government business, are not intended as a quid

pro quo for that business: they are in no way con-

ditioned upon the performance of an official act or

pattern of acts or upon the recipient’s express or

implied agreement to act favorably to the donor

when necessary.” 544 F.2d at 734.

“The crucial distinction between ‘goodwill’ expendi-

tures and bribery is, then, the existence or nonexist-

ence of criminal intent that the benefit be received

by the official as a quid pro quo for some official act,

pattern of acts, or agreement to act favorably to

the donor when necessary.” 544 F.2d at 735.

In the instant case the government does not allege

that Niederberger was entertained for any specific offi-

cial act. In fact, the government alleges only that he was

entertained because of his position as IRS case manager

15

Reasons for Granting a Writ of Certiorari.

of the audit of Gulf Oil Corporation’s income tax returns

over a twelve year period. Such an indictment is insuffi-

cient in view of the absence of the necessary elements of

an illegal gratuity, i.e., the acceptance of entertainment

as a quid pro quo for a specific official act.

The legislative history of the comprehensive bribery

and illegal gratuity sections of Title 18 offers further

convincing and independent support that general good-

will entertaining of government employees does not

constitute an illegal gratuity and that, therefore, the

indictment should have been dismissed.

While the bribery and illegal gratuity statutes were

under consideration by the Congress, amendments were

offered in both the House and Senate which were de-

signed to prohibit certain types of gifts to public officials.

The amendments would have made it illegal for public

officials to accept a gift, gratuity or favor from any

person if, generally, such Government employee “has

reason to believe the donor would not give the gift,

gratuity or favor but for such employee’s office or posi-

tion within the Government.” Hearings on H.R. 802, H.R.

3050, H.R. 8411, H.R. 3412 and H.R. 7139 Before the

Antitrust Subcomm. of the House Comm. on the Judi-

ciary, 87th Cong., 1st Sess., p.9 (1961). The amendments

were designed to prohibit influence peddling and the

purchasing of the goodwill of any federal employee by

one who regularly does business with the employee or

his agency. Hearings on H.R. 8140 Before the Senate

Comm. on the Judiciary, 87th Cong., 2d Sess., p. 10

(1962).

In the Senate the amendment was proposed in the

Judiciary Committee by Senator Keating who described

his amendment in the following language:

16

Reasons for Granting a Writ of Certiorari.

“My last amendment is directed to an area in our

conflict-of-interest laws where there now exists

almost a complete void—that is, gifts to federal

employees. News out of Texas and Washington in

the last few weeks might lead one ta think that

Billie Sol Estes was the Santa Claus of Texas. Under

existing law the acceptance of a gift by a federal

employee may not be illegal even though the em-

ployee’s agency or department does regular busi-

ness with the donor. This is in my opinion is absurd

and should be changed.

“Under the amendment I suggest gifts to federal

employees would be banned if the employee has

reason to believe the donor would not give the gift

but for the employee’s position. In addition, the bill

would bar gifts to federal employees from donors

having business relations with the employee’s

agency or where the donor conducts operations reg-

ulated by the employee’s agency. Such obvious at-

tempts at influence peddling or the purchasing of

goodwill should be strictly prohibited.” Hearings

on H.R. 8140 Before the Senate Comm. on Judiciary,

87th Cong., 2d Sess., 9-10 (1962).’ (Emphasis sup-

plied. )

Deputy Attorney General Nicholas deB Katzenbach

17

Reasons for Granting a Writ of Certiorari.

reason to believe the donor would not give the gift

but for the employee’s official position. Subsection

(a). A regular Government employee would be

barred from receiving any thing of economic value

as a gift from any person if the employee has reason

to believe such person does business with the em-

ployee’s agency, is regulated by it, or may be sub-

stantially affected by the employee’s performance

of duty.

“Although federal law contains some statutory pro-

hibitions relating to gifts, they are miscellaneous

provisions operating in limited areas, e.g., 5 U.S.C.

113 (prohibition of presents to superiors) and 5

U.S.C. 174d (termination of contracts because of

gifts by Department of Defense contractors to

Government employees). General prohibitions re-

stricting the receipt of gifts from private sources

at the present time are principally a matter of indi-

vidual agency regulation ...

“In view of the steps taken by the administration to

guard against the acceptance of improper gifts by

Government employees, the proposed gifts section

does not appear to be necessary. However, the ad-

ministration would not object to its inclusion in the

bill.” Senate Hearings, supra at 25. (Emphasis sup-

submitted the following comments on the proposed gift plied. )

amendment, which reflected the views of the adminis-

tration on this amendment: In view of the position of the Department of Justice

that this amendment did “not appear to be necessary”

it is not surprising that it was defeated. The language

of this amendment was not included in the bill passed by

the House, H.R. 8140, passed August 7, 1961, and on the

Senate side the proposal was not included in the bill

“Senator Keating’s proposal relating to gifts would

prohibit a Government employee, whether regular

or intermittent, from receiving “any thing on eco-

nomic value” as a gift from any person if he has

18

Reasons for Granting a Writ of Certiorari.

reported out of the Senate Judiciary Committee. S. Rep.

No. 2213, 87th Cong. 2d Sess. (1962). The opposition of

Congress to this amendment originated in a 1958 staff

report of the House Anti-Trust Subcommittee. The re-

port concluded that the subject of gifts and social enter-

tainment should be handled in a code of ethics for gov-

ernment employees, rather than in a criminal statute.

The code of ethics, the staff reeommended, should make

it improper for a government employee to accept gifts

or “to become unduly involved, through frequent or

expensive social engagements” with persons doing busi-

ness with the government. Staff Report, Parts II-V,

p. 68 (85th Cong., 1958). The proposed sanctions in-

cluded barring violators from agency practice for a

tine, but did not propose criminal prohibition or sanc-

tions.

Viewing such gratuities as being more appropriately

the subject matter of ethical regulations and guidelines,

Congress rejected this amendment, making it clear that

it was drawing a sharp distinction between gratuities

given public officials because, on the one hand, the donor

is doing business with the official and the official is in a

position to affect the donor’s interest generally, and on

the other hand, gratuities given public officials “for or

because of” specific official acts.

The purpose of the rejected amendment was to ex-

pand the law prohibiting illegal gratuities to include not

3. Senator Keating had intended to offer his

amendment again on the Senate Floor but when the bill

was called up for debate near the close of the session

Senator Keating declined to offer the amendment for

fear it might jeopardize final passage of the entire bill.

Cong. Record, 87th Cong. 2d Sess., Oct. 3, 1962, p. 21987.

19

Reasons for Granting a Writ of Certiorari.

just the gratuity given for a specific act, but also the

gratuity given for more general purposes, such as, ob-

taining the goodwill of the recipient. In rejecting this

amendment, Congress indicated plainly that it wished to

limit the illegal gratuity prohibition to those situations

where the gratuity was given for a definite and specific

Official act, making the offense an approximation of

common law bribery.

To convict a government official by proving that he

knowingly received a reward for an identifiable act is

sustainable under the ‘for or because of” language;

however, to apply $201(g) to other payments, such as

gifts or entertainment which might tend to establish

goodwill, but which were not intended as a reward for

an identifiable act, would be manifestly inappropriate.

Congress explicitly rejected the proposed legislation

which would have precluded Government employees

from accepting gifts and entertainment, if such em-

ployee had reason to believe the gift would not have been

given but for the employee’s position. If the provisions

of $201(g) were interpreted more broadly than the

courts have sanctioned, any conviction would not only

be contrary to the judicial holdings discussed above, but

such conviction would be based on conduct which Con-

gress deliberately and expressly determined not to sub-

ject to criminal sanction.

20

Reasons for Granting a Writ of Certiorari.

B. Petitioner Niederberger asks this Court to deter-

mine whether a district court has the power to

grant use immunity to a defense witness and/or

order the government to provide such immunity.

Prior to trial, petitioner Niederberger asked the

trial court to order the government to grant immunity

to two defense witnesses, Fred Standefer and J. W. Fitz-

gerald; after argument thereon, the motion was denied.

During trial, the government produced evidence which

indicated that these two men had escorted Niederberger

on the trips which formed the basis of the indictment

and paid his expenses for said trips. Clearly, Standefer

and Fitzgerald had knowledge of facts essential to a

fair and proper finding by the jury, and their testimony

was necessary to assure Niederberger a fair trial. Both

men were expected to assert their Fifth Amendment

privilege against self-incrimination if called on to test-

ify. Under these circumstances, Niederberger contends

that the refusal to grant immunity to the witnesses as

requested resulted in a denial of his constitutional rights

to due process under the Fifth Amendment and compul-

sory process under the Sixth Amendment.

The power of a court to provide remedies for viola-

tions of due process has been recognized as extending to

the ability to order grants of immunity for defense wit-

nesses. United States v. Morrison, 535 F.2d 223 (3rd Cir.

1976) ; United States v. Shaeffer, 528 F.2d 920 (4th Cir.

1975) ; United States v. Leonard, 494 F.2d 955, 985 n.

79 (D.C. Cir. 1974) (concurring and dissenting opinion

of Bazelon, D.J.); Harl v. United States, 361 F.2d 531,

534 n. 1 (D.C. Cir. 1966) ; State v. Broady, 321 N.E. 2d

890 (Ohio, 1974). Also, the distinct advantage accorded

the prosecution by its unilateral power to compel testi-

21

Reasons for Granting a Writ of Certiorari.

mony has attracted the attention and concern of several

courts. United States v. Ramsey, 503 F.2d 524, 532 (7th

Cir. 1974) ; Earl v. United States, 364 F.2d 666 (D.C. Cir.

1966), Statement of Judge Leventhal; United States v.

Jones, 476 F.2d 885, 888 (D.C. Cir. 1973) (Bazelon, C.J.,

dissenting) ; United States v. Gaither, 539 F.2d 752 (D.C.

Cir. 1976) , Statement of Chief Judge Bazeion.

Generally, the defendant’s interest in seeking to im-

munize a witness has been overshadowed by the respon-

sibility of prosecutorial discretion. United States v.

Alessio, 528 F.2d 1079 (9th Cir. 1976). But in the in-

stant case, there is no conflict. Niederberger seeks the

limited use immunity for his witnesses provided for in

18 U.S.C. §6002 and upheld by this Court in Kastigar v.

United States, 406 U.S. 441 92 S.Ct. 1653, 32 L.Ed. 2d

212 (1972). Quoting Murphy v. Waterfront Commission,

378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964), the

Kastigar Court held that “immunity from use and de-

rivative use ‘leaves the witness and the Federal Govern-

ment in substantially the same position as if the witness

had claimed his privilege’,” on the absence of a grant of

immunity. 92 S.Ct. at 1664, 406 U.S. at 458. Kastigar in-

terprets the Fifth Amendment as “a privilege against a

subsequent prosecution of the witness based on his own

words”’?, The government controls the method in which

this privilege is exercised by allowing a witness to re-

main silent or granting his immunity and compelling

him to answer. It is incumbent on a government which

adheres to the principle of “equal justice under law” that

this power be exercised fairly, that it be used to bring

out the truth and not merely to insure convictions.

4. Westen, “The Compulsory Process Clause”, 73

Michigan L. Rev. 71, 167 (1974).

22

Reasons for Granting a Writ of Certiorari.

The witnesses Niederberger seeks to immunize,

more than any of the witnesses the government called,

could reveal the truth. Since they were involved in the

activities for which he was indicted, they, better than

any hotel clerk or IRS agent, would be able to testify to

the actions of Niederberger.

The limited scope of this immunity, as held in Kasti-

gar, does not impair the prosecutor’s function to deter-

mine whom to prosecute and not prosecute. The Assist-

ant United States Attorney in the instant case admitted

that the grand jury was close to returning an indictment

against Fitzgerald and Standefer.® A grant of immunity

would not have prevented or forestalled the indictment.

Apparently, the government considers its case strong

enough, so none of the testimony which Fitzgerald and

Standefer would have presented on behalf of Nieder-

berger or any evidence derived therefrom would be need-

ed for prosecuting them. It is clear that the rights and

interests of both prosecutor and witness would have

been adequately protected by a grant of immunity in

accordance with 18 U.S.C. $6002.

The right to offer testimony of witnesses, and to

compel their attendance is a fundamental element of

due process of law. Washington v. Texas, 388 U.S. 14,

87 S.Ct. 1920 (1967). The court’s refusal to grant Fitz-

gerald and Standefer immunity, particularly in light

of the fact that the government’s interests were not

harmed, deprived Niederberger of the testimony to

which he was constitutionally entitled. The government’s

ability to present inculpatory testimony by immunizing

5. Indictments were returned against Fitzgerald

and Standefer on June 14, 1977, in the United States

District Court for the Western District of Pennsylvania.

23

Reasons for Granting a Writ of Certiorari.

witnesses, while denying immunity to witnesses with

exculpatory evidence, unfairly restricts the accused’s

ability to present a defense and seriously impairs the

jury’s ability to return a just verdict. The court’s denial,

in effect, constitutes suppression of the potentially ex-

culpatory testimony of Fitzgerald and Standefer, in vio-

lation of this Court’s ruling in Brady v. Maryland, 373

U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194 (1963).

IL.

The following text will detail counsel’s attempts to

render effective assistance and the law in support

thereof.

A. Counsel should have been able to examine grand

jury attendance records to determine if the grand

jury which returned the third indictment was the

same grand jury which heard the evidence and re-

turned the earlier indictments.

Prior to trial, petitioner Niederberger asked the

trial court to examine pertinent grand jury records.

Three indictments had been returned, and his counsel

explained that such an examination was necessary to

determine both which grand jury was convened on the

dates of each return and which members of those grand

juries were present on the dates of each return. At the

hearing on said petition, counsel asserted a right to

know whether those grand jurors who voted to return

the third indictment (which was eventually tried) were

the same grand jurors who heard the evidence relating

to the first indictment. The underlying reason was to

ascertain if the third indictment was returned by a

grand jury which heard all the evidence of the alleged

crime or merely part of it. Counsel for the government

24

Reasons for Granting a Writ of Certiorari.

was not sure whether the same grand jury returned all

three indictments. Niederberger simply expressed a de-

sire to examine the grand jury attendance records, but

the trial court nevertheless denied the petition.

At trial, following the close of the government’s

case, Niederberger requested any exculpatory evidence,

specifically the transcript from the grand jury which

returned the third indictment. It was noted that the

third indictment was signed by a foreman different from

the individual who signed the first and second indict-

ment. Also, it was pointed out (as learned via cross-

examination) that no witness who testified at trial had

appeared before a federal grand jury concerning this

case. Thereupon, counsel for Niederberger requested the

trial court to exercise its supervisory power and deter-

mine in camera whether or not the final indicting grand

jury heard any sworn testimony which could substan-

tiate the return of an indictment. After the prosecutor

indicated there were no transcripts of testimony, the

request was denied. Because of the lack of transcripts,

Niederberger claimed a denial of due process and moved

to dismiss the indictment; said motion was also denied.

Niederberger then requested a voir dire examina-

tion of those individuals who would be privy to whether

or not any evidence was presented to the indicting grand

jury. After the prosecutor responded that the indict-

ment was presented through IRS agent Charles Nagy,

the request was denied. Finally, Niederberger moved to

interrogate Nagy under oath to determine whether he

testified before the indicting grand jury concerning all

ten counts, which motion was denied.

Immediately prior to the sentencing in this matter,

counsel for Niederberger stated that it appeared as if

25

Reasons for Granting a Writ of Certiorari.

Nagy went before a grand jury which was recording

testimony in other matters but did not do so in regard

to his testimony concerning the instant case. The prose-

cutor affirmed this by declaring:

“Mr. McKay: Your Honor, it appears to me

that the representation that Mr. Livingston desires

that I make to the Court is that although the testi-

mony of the agent who testified before the grand

jury, the particular panel that returned this indict-

ment, that his testimony was not recorded. That in

other cases, all be it gambling or various and sundry

other cases, before that particular panel, that testi-

mony of other witnesses as regards those other

cases was, in fact, recorded. I have made inquiry in

that regard and I am satisfied that in those other

unrelated cases, regarding this particular panel,

that testimony of those witnesses was recorded.”

Niederberger contends that to deny him his re-

quested examination of the grand jury attendance rec-

ords was erroneous. It was essential to discover whether

the grand jury which returned the third indictment was

the same grand jury which returned the earlier indict-

ments after hearing evidence. United States v. James,

290 F.2d 866. 869 (5th Cir. 1961). It was also necessary

to make certain that the government, having decided to

dismiss not one but two indictments and return for a

third, followed the rules and “not (to) attempt a loose,

shortcut procedure fraught with deficiencies of consti-

tutional dimension”. United States v. Gallo, 394 F. Supp,

310, 316 (D. Conn. 1975). Such an examination would

not have breached any grand jury secrecy rules, but

would have allowed the accused, with no hardship on

the court or government, an opportunity to determine

26

Reasons for Granting a Writ of Certiorari.

whether or not his constitutional rights to indictment

by a grand jury (a defendant is entitled“... to have

the grand jury make the charge on its own judgement”,

Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270,

274 (1960) ), and to due process of law had been hon-

ored. This is an especially important request in view of

the prima facie showing of irregularity here,® i.e., prin-

cipally, the return of three indictments, the indictments

being signed by different foremen, no trial witness hav-

ing appeared in the grand jury and the change as to who

was in fact the government’s only witness before the

grand jury.’

Niederberger also argues that the failure to record

the testimony of the single witness appearing before the

grand jury was erroneous, and the motion to dismiss

the indictment on this ground should have been granted.

As the court held in United States v. Crutchley, 502

F.2d 1195, 1200 (3d Cir. 1974) :

“The practice of recording the grand jury testimony

only of non-Government witnesses is undesirable,

since it denies defendants the same opportunity

available to the Government of impeaching the trial

testimony of those witnesses unfavorable to their

case. If the testimony of any grand jury witness

6. That a court will “look behind” an indictment

when there appears some irregularity, or the possibility

thereof, is not novel. Eg. see: United States v. Ramirez,

482 F.2d 807, 812 (2d Cir. 1973); United States v. Es-

tepa, 471 F.2d 1132 (2d Cir. 1972) ; Truchinski v. United

States, 393 F.2d 627, 634 (8th Cir. 1968).

7. Since the last court proceedings, the prosecutor,

Mr. McKay, has informed counsel for Niederberger that

the IRS agent who testified before the grand jury was

not Mr. Nagy but one Glen Hartzell.

27

Reasons for Granting a Writ of Certiorari.

or witnesses is to be recorded, either by a court re-

porter or a recording device, all such testimony

should be recorded so that the defense and the Gov-

ernment will both have available all portions of the

grand jury testimony, provided that the court ap-

proves the method, form and condition of disclo-

sure. This practice would prevent the recording of

only those portions of grand jury testimony helpful

to the Government.”

In the case at bar, the prosecutor admitted that the

testimony of the only witness appearing before the

grand jury was not recorded despite the fact that all

the other testimony heard by that same grand jury con-

cerning other cases was recorded. In addition, the wit-

ness was a government agent. Such selectivity of grand

jury recording is unfair, without justification, arbitrary

and discriminatory. Under all of the circumstances, it is

submitted that the mandate and reasoning of Crutchley

apply here.

B. Petitioner’s request for a special evidentiary hear-

ing on the issue of selective prosecution was denied.

Prior to trial, Niederberger filed a motion to dis-

miss the indictment because of selective prosecution.

Therein, it was alleged that countless others in a similar

position have not been prosecuted for like conduct. It

was further alleged that under all the surrounding cir-

cumstances his prosecution was fundamentally unfair.

At the hearing on said motion, counsel for Niederberger

detailed many well publicized instances of business and

industry entertainment of government officials, and

argued that the within case is the first since the birth

of the applicable statutes (nearly 100 years) where

there is a prosecution for entertainment, not for pay-

28

Reasons for Granting a Writ of Certiorari.

ment of monies but for goodwill entertainment alone. It

was also argued that the government is collaterally

estopped from prosecuting here in view of the contin-

ued, long standing disregard for enforcement of these

statutes. Niederberger requested a special evidentiary

hearing on the issue.

Subsequent to the hearing, the trial court denied

the motion for the stated reason

“... that the defendant has not alleged that the

decision to prosecute his case was made in bad faith

for some invidious or evil purpose or that the selec-

tion of this case for prosecution was deliberately

based upon an unjustifiable standard such as race,

religion or a desire to prevent the exercise of con-

stitutional rights...”

The request for a special evidentiary hearing was also

denied. A motion for reconsideration was filed wherein

Niederberger asserted that he did allege, and support

with exhibits, that the discriminatory selection of him

for prosecution was made arbitrarily and such selection

itself presents an “unjustifiable standard”. Said motion

for reconsideration was denied.

In reference to the trial court’s ruling, Nieder-

berger contends that his prosecution is “invidious” or

unfairly discriminatory. The statutes cited here, 18

U.S.C. $201(g) and 26 U.S.C. §7214 (a) (2) have never

been invoked until now to prosecute social and general

goodwill entertaining in the context of the business-

government relationship. Yet here, Niederberger stands

accused because of a social practice without allegation

that a specific official act was promised or sought

through such practice.

29

Reasons for Granting a Writ of Certiorari.

The evidence of numerous cases of similar behavior

known to the prosecutors establishes beyond question

a pattern of discrimination in the enforcement of the

law. Singling out a circumstance involving a former

lower echelon regional official while deliberately ignor-

ing more highly visible offenders who have admitted like

conduct amounts to an “unjust and illegal discrimina-

tion between persons in similar circumstances’. Yick

Wo v. Hopkins, 118 U.S. 356, 374 (1886). See also: Oyler

v. Boles, 368 U.S. 448, 456 (1962).

The lower court’s ruling construes too narrowly

the boundaries of discriminatory prosecution. It limits

the defense to cases of (1) bad faith and invidious or

evil purpose, and (2) selection based upon unjustifiable

standards such as race, religion, or impairment of con-

stitutional rights.

The case law will not sustain such a narrow read-

ing. In United States v. Robinson, 311 F. Supp. 1063

(W.D. Mo. 1969), wherein the court sustained a claim

of discriminatory prosecution and dismissed the indict-

ment, there was neither prosecutional bad faith and

invidious or evil purpose, on the one hand, nor selection

based upon a constitutional classification, such as race,

religion, or exercise of First Amendment rights, on the

other.

In Robinson, supra, the government prosecuted a

private detective for illegal wiretapping under @ crimi-

nal statute which did not exclude government officials

and in circumstances where the government had con-

sciously never prosecuted government officials for the

same offense, although it had numerous occasions to do

so. The lesson of Robinson is that the category of per-

sons discriminated against can be very broad (e.g., all

30

Reasons for Granting a Writ of Certiorari.

private persons) and that the discrimination can oper-

ate through favoritism toward a category of persons not

prosecuted (e.g., failure to prosecute government offi-

cials) rather than through an conscious bias against

the defendant as an individual identified with a particu-

lar cause or a particular class of citizens. —

Here, as in Robinson, the discrimination is more

subtle than the typical case of prosecutional bias at-

tached to defendant’s race, religion, or political views

because the discrimination operates through favoritism

shown to a category of persons against whom the crimi-

nal law is consciously not enforced. In order to perceive

this discrimination, this court must look at the category

of persons against whom the “gratuity” statutes are

not being enforced—highly place officials in the heart of

the political arena, Washington, D.C., whose prosecu-

tion would touch upon the politically sensitive preserves

of important government agencies. Those agencies are

permitted to shelter their officials from criminal prose-

cution through the lesser sanctions of administrative

procedures.

Conscious nonenforcement of the criminal law based

upon considerations of political expedience discrimi-

nates against this defendant who, as a lower echelon

official of a regional governmental office far removed

from the political arena, enjoys no similar protection, as

surely as if the defendant were being impaired in the

exercise of his religion or in the freedom to express his

political views.

Finally, Niederberger maintains that he has estab-

lished a prima facie case of selective prosecution such

that the burden of proof shifts to the government to

prove that there has been no unjust discrimination. In

31°

Reasons for Granting a Writ of Certiorari.

United States v. Falk, 479 F.2d 616, 623 (7th Cir. 1973),

the Seventh Circuit, after finding that the defendant’s

allegations had made out a prima facie case of improper

discrimination, remanded the case for a hearing at

which Falk could question the prosecution and present

additional evidence and at which the government would

bear the burden of proving the propriety of the prose-

cutor’s exercise of discretior. Similarly, in United States

v. Crowthers, 456 F.2d 1074, 1078 (4th Cir. 1972), the

Fourth Circuit, in reversing defendant’s conviction,

stated that “where it appears that the government is in

ready possession of the facts, and the defendants are

not, it is not unreasonable to reverse the burden of

proof and require the government to come forward with

evidence ...”’ And in United States v. Steele, 461 F.2d

1148, 1152 (9th Cir. 1972), the Ninth Circuit, in revers-

ing outright a conviction based on “purposeful discrimi-

nation”, commented that “since [defendant] had pre-

sented evidence which created a strong inference of dis-

criminatory prosecution, the government was required

to explain it away, if possible, by showing the selection

process actually rested upon some valid ground.”

Under the circumstances of this case, where Nieder-

berger’s proffered evidence far exceeds that which is

necessary to establish a prima facie case of discrimina-

tion, the burden of proof should have been shifted to

the government to establish that it has not engaged in

discriminatory prosecution in violation of the Fifth

Amendment.

32

Reasons for Granting a Writ of Certiorari.

C. Even though faced with a duplicitous indictment,

Niederberger’s request for a bill of particulars on

certain charges was denied.

Rule 8(a) of the Federal Rules of Criminal Proce-

dure states, in pertinent part, as follows:

“(a) Joinder of Offenses. Two or more offenses

may be charged in the same indictment or informa-

tion in a separate count for each offense...” (Em-

phasis supplied)

Petitioner Niederberger claimed below that this Rule is

contravened by the instant indictment because each

count therein alleges more than one offense and is thus

duplicitous. In the odd-numbered counts, the indictment

alleges that Niederberger did “accept, receive and agree

to receive a thing of value” from Gulf; each count there-

by alleges three different criminal acts: accepting, re-

ceiving and agreeing to receive. Besides violating Rule

8(a), this caused severe prejudice to Niederberger. It

is clear from the record that the first two acts, accept-

ance or receipt of things of value by Niederberger, oc-

curred outside the jurisdiction of the United States Dis-

trict Court for the Western District of Pennsylvania.

Therefore, he was tried in five counts on two acts each

over which the court had no jurisdiction, yet he was pre-

sumably convicted for the third act (in each of the five

counts) which the government asserted did occur within

the court’s jurisdiction.

In the even-numbered counts, the indictment alleges

that Niederberger received a “fee, compensation and

reward” from Gulf. It is submitted that more than one

offense is charged by such language. The meanings of

these terms are distinct and depending on which term

33

Reasons for Granting a Writ of Certiorari.

is utilized the connotations are likewise distinct as they

are applied to the facts herein. Receiving compensation

implies something different from receiving a reward,

and in the context of this case, the exact implication of,

and relationship between, the receipt of a vacation and

the performance of IRS duties by Niederberger is sig-

nificant. Moreover, the statute’s language supports the

position that more than one offense is charged. 26 U.S.C.

$7214(a) (2) specifically proscribes the receipt of “any

fee, compensation or reward’’. While the statute speaks

in the disjunctive, the indictment speaks in the conjunc-

tive and thus charges more than one offense.

Prejudice to Niederberger as a result of the dupli-

citous indictment is further evident when the following

question is examined: upon which act or acts did the

jury base its verdict? The verdict could have been based

on one or two acts not occurring within the court’s juris-

diction in counts 3, 5, 7 and 9. In counts 8 and 10, the

jury may have relied, for instance, on the allegation

that Niederberger received “compensation” even though

neither the government’s theory nor the evidence could

support such reliance.

Even though faced with a duplicitous indictment,

Niederberger’s request for a bill of particulars on cer-

tain charges was denied. Because each count alleged

three different criminal acts, Niederberger proposed cer-

tain questions in a bill of particulars. The three proposed

questions which the lower court, by order of December

1, 1976, said did not have to be answered by the govern-

ment were as follows:

1b) Did Cyril J. Niederberger receive a thing of

value for himself from Gulf Oil Corporation?

If so, what was it he accepted, where was it

accepted and from whom was it accepted?”

34

Reasons for Granting a Writ of Certiorari.

“1e) Did Cyril J. Niederberger ‘agree to receive’

a thing of value for himself from Gulf Oil Cor-

poration? If so, what was it (he) accepted,

where was it accepted, and from whom was it

accepted ?”’

“1d) As to each count of the indictment, what spe-

cifically was paid to Cyril J. N iederberger and

by whom, in the Western District of Penn-

sylvania?”

Without answers to these questions, Niederberger could

not prepare a defense, nor was the government limited

to proof of a single specific act in a certain place at a

certain time. Instead, as the indictment reflects, three

different acts involving numerous possible situations |

were presented in each count.

Facing a duplicitous indictment and absent a bill

of particulars, an accused is confronted with an insur-

mountable burden. He plainly cannot prepare and pre-

sent a defense. Nor can he avoid a jury decision which

could be based on a finding that some of the acts charged

in a count were proven while other acts charged in the

Same count were not proven. Such a situation existed

in the case sub judice, and consequently Niederberger’s

right to due process of law was denied him.

35

Reasons for Granting a Writ of Certiorari.

D. The trial court failed to instruct the jury that in

order for the alleged crime to be proven the gratui-

ties to Niederberger had to be received in the West-

ern District of Pennsylvania. Such an instruction is

critical to establishing the jurisdictional element of

the offense in the instant case.

Counts 3, 5, 7 and 9 allege that Niederberger, ‘at

Pittsburgh, in the Western District of Pennsylvania,”

did “accept, receive and agree to receive things of value”

in violation of 18 U.S.C. $201( g). Clearly, there is no

evidence that he accepted or received things of value in

Pittsburgh or anywhere else within the Western District

of Pennsylvania; it is undisputed that if anything of

value (a vacation) was accepted or received this oc-

curred outside the lower court’s jurisdiction in Miami,

Florida, Absecon, New Jersey, Pebble Beach, California,

or Las Vegas, Nevada. Furthermore, the record is de-

void of any proof that he agreed, within the Western

District of Pennsylvania to receive these vacations; in

fact, there is no proof that he agreed at any place to

receive them.

The same is true for counts 8 and 10 which allege

that Niederberger, “at Pittsburgh in the Western Dis-

trict of Pennsylvania”, did “receive a fee, compensa-

tion, and reward” in violation of 26 U.S.C. $7214(a) (2).

It is plain that there is no evidence whatsoever that he

received a fee, compensation or reward in Pittsburgh or

anywhere else within the Western District of Pennsy!-

vania; it is undisputed that if the vacations were re-

ceived this occurred outside the lower court’s jurisdic-

tion in Pebble Beach, California or Las Vegas, Nevada.

=.

36

Reasons for Granting a Writ of Certiorari.

The venue® provisions of the Sixth Amendment and

Rule 18 of the Federal Rules of Criminal Procedure em-

body the principle that a defendant must be tried in the

district where the alleged crime was committed. Accord-

ing to the Sixth Amendment, an accused is entitled to a

trial by jury “of the state and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law”. Rule 18 provides

that “the prosecution shall be had in a district in which

the offense was committed”. Unless venue is waived, a

judgment of acquittal must be rendered if trial is held in

a different district. Post v. United States, 161 U.S. 583

(1894); Parr v. United States, 363 U.S. 370 (| 1960).

Therefore, it is Niederberger’s belief that since there

was no evidence of any acceptance, receipt or agreement

in the Western District of Pennsylvania, the lower court

should have entered a judgment of acquittal. See: Krog-

mann v. United States, 225 F.2d 220, 227 (6th Cir. 1955).

The record is also devoid of evidence that Gulf Oil

Corporation either paid for any ‘thing of value” for Nie-

derberger or provided a fee, compensation or reward to

him as charged in each count of the indictment and

elucidated in the government response to the bill of

particulars, The government testimony and exhibits only

demonstrate that an individual, who happened to be

employed by Gulf as well as being a long-time friend

of Niederberger, paid his resort bill on each vacation

8. The issue of improper venue was also raised by

defendant-appellant Niederberger in his pre-trial mo-

tion to dismiss the indictment, wherein it was alleged

that the lower court was without jurisdiction because

each and every count of the indictment charges certain

violations of law which occurred outside the jurisdiction

of the indicting grand jury.

37

Reasons for Granting a Writ of Certiorari.

excursion. The payments at Miami, Pebble Beach and

Las Vegas were made by Fitzgerald who used his Ameri-

can Express card; the witness from Absecon did not

know who paid the bill there. The only possible connec-

tion to Gulf in evidence are expense vouchers submitted

to Gulf by Fitzgerald for reimbursement of expenses in-

curred on his vacations with Niederberger. However,

there is no evidence that these vouchers were honored

or reimbursement made by Gulf.

Finally, there is no evidence of a quid pro quo; in

other words, the government failed to prove that Nieder-

berger received the gratuity (vacation) in exchange

for a specific official act.

E. A severance of counts of the indictment should have

been granted when clear prejudice appears during

the course of trial.

Rule 14 of the Federal Rules of Criminal Procedure

permits a severance if it is needed to avoid prejudice

prior to trial. Also, events at trial may alter a situation

such that severance is necessary in order to preserve a

defendant’s right to fair trial. A district judge has the

power to order a severance under Rule 14, and indeed

has a “continuing duty at all stages of the trial to grant

a severance if prejudice does appear.” Schaffer v. United

States, 362 U.S. 511, 516, 80 S.Ct. 945, 948 (1960). At

the trial below, prejudice did result from the joinder of

counts of the indictment.

Prior to trial, Niederberger petitioned for relief

from prejudicial joinder of the counts under Rule 14. In

the indictment, each set of two counts charges a viola-

tion of 18 U.S.C. §201(g) and 26 U.S.C. §$7214(a) (2).

The odd-numbered counts charge the former, and the

38

Reasons for Granting a Writ of Certiorari.

even-numbered counts charge the latter. Each set of two

counts alleges conduct constituting separate violations.

First, each set alleges a specific act or acts distinct in

time and place from that alleged in the other sets:

counts 1 and 2 refer to an event in Pompano Beach,

Florida, in May, 1971; counts 3 and 4 concern an event

in Miami, Florida, in January, 1973; counts 5 and 6

refer to conduct in Absecon, New Jersey, in August,

1973; counts 7 and 8 involve acts in Pebble Beach, Cali-

fornia, in April, 1974; and counts 9 and 10 are concerned

with events in Las Vegas, Nevada, in June, 1974. Second,

each set of two counts alleges a separate and distinct

“thing of value” or “fee, compensation or reward” from

that alleged in the other two count sets. The indictment

charges five different gratuities having been received

with each set of two counts concerned with a different

one of the five. Third, with the exception of counts 3, 4,

5 and 6, each set of two counts alleges separate and dis-

tinct “official duties” or “official acts performed or to be

performed” by Niederberger: i.e., the specific audits of

the Gulf income tax returns were different as they were

related in the indictment to each instance of gratuity.

Overall, the indictment charges five separate trans-

actions in five different places at five different times. As

noted below, this is not unlike trying five bank robberies

in one trial. The prejudice to Niederberger in such a

situation is obvious. To believe that a jury could perform

the almost impossible task of separately weighing and

considering the evidence in such a trial is unrealistic.

Moreover, it is simply not fair to subject an accused to

this purely for the sake of administrative expediency.

During the trial below, the request for relief from

prejudicial joinder was again made or referred to on

39

Reasons for Granting a Writ of Certiorari.

three occasions when the prejudice arising from the

joinder of counts became more apparent. First, the pro-

secutor made remarks in his opening address concern-

ing gratuities and other alleged illegal activity not set

forth in the indictment or bill of particulars; a fair trial

on each separate charge is thus made even more illusory.

Second, through government witness Moore, there was

testimony in regard to an on-going investigation of cer-

tain Gulf audits and a memorandum from Niederberger

as to whether Gulf had incurred additional tax liability

because of certain political contributions. Said testimony

is irrelevant and prejudicial in its own right as well as

in relation to any other allegations but those in counts

7 and 8. It was inflammatory and did not bear on any

issues in the other counts of the indictment, Third, also

concerning the “on-going investigation” testimony, the

argument was made that it only injects the “trial” of

Gulf Oil Corporation into the instant case, and has no

probative value on eight counts in the ten-count indict-

ment, Nevertheless, such prejudicial testimony cannot

be separated by a jury and applied only to the appro-

priate counts at the time of deliberation.

40 . .

Reasons for Granting a Writ of Certiorari.

F. The trial court refused to strike the testimony of a

key prosecution witness who testified to certain

admissions by Niederberger and whose rough notes

of his interview were destroyed, thus depriving

petitioner of an effective and meaningful cross-

examination.

During the trial, Allan E. Hobron, an Internal Reve-

nue Service investigator, testified about an interview

he had with Niederberger. On cross-examination, it was

learned that Hobron had made notes during the course

of the interview, notes which subsequently formed the

basis of his report. Niederberger moved for the produc-

tion of these notes under the Jencks Act (18 U.S.C.

3500) and Rule 16 of the Federal Rules of Criminal Pro-

cedure. The court agreed that “if the notes are available,

you are entitled to them”. The prosecutor informed the

court that the notes had been destroyed “per the IRS

guidelines”, Niederberger immediately moved that Ho-

bron’s testimony be stricken and a mistrial be declared

in view of the Internal Revenue Service’s improper con-

duct. The motion was denied on the grounds that the

notes did not have to be preserved.

The notes made by government agents of Nieder-

berger’s statements are potentially discoverable under

the Jencks Act; United States v. Vella, 562 F.2d 275

(3d Cir. 1977) ; United States v. Johnson, 521 F.2d 1318

(9th Cir. 1975); United States v. Harrison, 524 F.2d

421 (D.C. Cir. 1975); United States v. Bell, 457 F.2a

1231, 1235 (5th Cir. 1972) ; United States v. Harris, 543

F.2d 1247 (9th Cir. 1976); and Rule 16 of the Federal

Rules of Criminal Procedure; United States v. Fioravan-

ti, 412 F.2d 401, 411, n. 12 (3d Cir. 1969) ; United States

41

Reasons for Granting a Writ of Certiorari.

v. Lewis, 511 F.2d 798 (D.C. Cir. 1975). See also United

States v. Pollock, 417 F.Supp. 1332 (D. Mass. 1976) ;

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971).

The lower court’s refusal to strike Hobron’s testimony

for the non-production of these notes, it is submitted,

was reversible error. See: United States v. Johnson,

supra; United States v. Carrasco, 537 F.2d 372 (9th Cir.

1976).

Hobron’s testimony is clearly the most damaging

to Niederberger, and the absence of the notes from the

interview made an effective cross-examination impos-

sible. The destruction of this seminal evidence, the most

accurate written record of this key interview, consti-

tutes a dangerous usurpation of the judicial function. In

United States v. Johnson, supra, at 1318, the court held

that:

“It is the function of the trial court to determine

the issue of producibility, i.e., to decide whether the

notes in question constitute a ‘statement’ within

the meaning of the [Jencks] Act.”

The trial court was robbed of its responsibility to rule

on the government’s obligation to make certain evidence

available to the defendant. Also, the defense was seri-

ously impaired in its efforts to refute the government’s

claims. This is particularly true in the instant case, for

Hobron’s testimony is the only direct evidence that Nie-

derberger agreed to receive gratuities in the Western

District of Pennsylvania. Clearly, such evidence deserves

and requires the closest scrutiny. This is best provided

by a rigorous cross-examination, based on all the evi-

dence to which the defendant is legally entitled.

As the court held in United States v. Johnson, supra.

at 1320,

42

Conclusion.

“The question of whether an otherwise producible

statement is useful for impeachment must be left

to the defendant. Certainly the answer should not

rest with the very witness whose testimony the

defendant seeks to impeach.”

The destruction of the notes unfairly deprived Nie-

derberger of his right to contest Hobron’s testimony.

The admission of this testimony, in the absence of the

notes, was clearly prejudicial to him.

CONCLUSION

For the reasons discussed above, petitioner Nieder-

berger requests a writ of certiorari issue to review the

judgment of the United States of Appeals for the Third

Circuit.

Respectfully submitted,

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

APPENDIX A

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CircurT

No. 77-1575

UNITED STATES OF AMERICA

v

CYRIL J. NIEDERBERGER,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

D.C. Crim. No. 76-143

Argued January 4, 1978

Before ROSENN and HIGGINBOTHAM, Circuit Judges,

and BARLOw, District Judge*

THOMAS A. LIVINGSTON

DENNIS J. CLARK

The Colonial Building

205 Ross Street

Pittsburgh, Pa. 15219

Attorneys for Appellant

BLAIR A. GRIFFITH

United States Attorney

CRAIG R. McKay

EDWARD J. SCHWABENLAND

Assistant United States Attorneys

633 United States Postoffice

and Courthouse

Pittsburgh, Pa. 15219

Attorneys for Appellee

"George H. Barlow, United States District Judge for

the District of New Jersey, sitting by designation.

Appendix A.

Opinion of the Court

(Filed May 5, 1978)

BARLOW, District Judge

Cyril J. Niederberger, an employee of the Internal

Revenue Service (I.R.S.), appeals his conviction on

six counts of a ten-count indictment. The indictment

charged Niederberger with accepting illegal gratuities

from Gulf Oil Corporation (Gulf) in the form of five

golfing trips paid for by Gulf.! Each golf trip provided

the predicate for two counts in the indictment, the odd-

numbered counts alleging violations of 18 U.S.C. §201 (g)

(1970)? and the even-numbered counts alleging viola-

tions of 26 U.S.C. $7214 (a) (2) (1970).

1. The jury found the defendant not uilty of

Counts I and II, which concerned a trip of Pompano

Beach, Florida. The defendant was also acquitted of

Counts IV and VI. These counts involved trips taken by

Niederberger to Absecon, New Jersey, and Pebble Beach,

California.

On March 29, 1977, Niederberg was sentenced to

six months in jail, to be followed by a five-year period

of probation. In addition, he was fined $5,000.

2. 18 U.S.C. § 201(g) provides:

Whoever, being a public official, former public

official, or person selected to be a public official,

otherwise than as provided by law for the proper

discharge of official duty, directly or indirectly asks,

demands, exacts, solicits, seeks, accepts, receives,

or agrees to receive anything of value for himself

for or because of any official act performed or to be

performed by him.

3. 26 U.S.C. § 7214(a) (2) provides:

Any officer or employee of the United States

acting in connection with any revenue law of the

United States—

3a

Appendix A.

Niederberger seeks reversal on a variety of grounds.

The principal arguments, however, are addressed to the

trial court’s refusal, first, to grant Niederberger’s mo-

tion for Severance; second, to compel the Government

to provide use immunity for certain potential defense

witnesses; third, to dismiss the indictment on the basis

of duplicity; fourth, to dismiss the indictment for its

failure to allege facts which constitute a federal offense;

and, fifth, to strike the testimony of a prosecution wit-

ness who, prior to trial, had destroyed the rough notes

upon which he based his testimony. Additionally, Nie-

derberger contends that the evidence presented by the

prosecution was insufficient to support a judgment of

conviction.

However, following our careful consideration of all

the issues raised by the appellant, we must affirm the

judgment of the trial court in all respects.

The facts, briefly summarized, are as follows: Dur-

ing the period between 1971 and 1974, Niederberger was

employed by the LR.S. in its Pittsburgh office as a large

case manager. This position required Niederberger to

supervise a group of revenue agents assigned to audit

certain corporate income tax returns filed by Gulf.

Among Niederberger’s responsibilities were the develop-

ment and final approval of the audit plan, which is a

detailed outline of the specific procedures to be utilized

during the course of a particular audit. During the de-

velopment of an audit plan, Niederberger was empow-

(2) who knowingly demands other or

greater sums than are authorized by law, or

receives any fee, com nsation, or reward, ex-

cept as by law prescribed, for the performance

of any duty.

44

Appendix A.

ered to make all final decisions regarding the scope and

depth of the areas of corporate taxation which were

to be reviewed in the audit.

Further, in his position as the large case manager

for Gulf, Niederberger had occasion to Supervise the

audits of Gulf’s tax returns for the years 1960 through

1970 inclusive. Following the completion of a particular

year’s audit, representatives of Gulf would confer with

Niederberger’s staff to discuss the tax adjustments

which the revenue agents determined were required by

the audit. In each instance Gulf agreed to pay the pro-

posed additionz] assessment without resort to available

administrative appellate procedures,

During the same period that Niederberger was

serving as the case manager for the Gulf audits, he

accepted from Gulf—and at Gulf’s expense—several

golfing junkets at various resorts. More precisely, in

January of 1973, Niederberger spent four days at the

Doral Country Club in Miami Beach, Florida, in the

company of Mr. John F. Fitzgerald who, at that time,

was the Manager of Federal Tax Compliance for Gulf.

Niederberger’s entire bill was transferred to Fitzgerald’s

account, which was subsequently charged to Fitzgerald’s

American Express card, This trip provided the basis

for Counts ITI and IV of the indictment.

In August and September of 1973, Niederberger

and his wife spent four days at the Seaview Country

Club in Absecon, New Jersey, in the company of, among

others, Mr. Fred W. Standefer, Gulf’s Vice-President

of Tax Administration. The Niederbergers’ expenses at

Seaview were billed to Mr. Arthur V. Harris, who listed

his billing address as the Gulf Oil Building, Pittsburgh,

teats Lee

Appendix A.

Pennsylvania. Counts V and VI of the indictment em-

body this trip.

In April of 1974, Niederberger spent four days at

the Del Monte Lodge in Pebble Beach, California, in

the company of both Fitzgerald and Standefer. Again,

Fitzgerald charged Niederberger’s bill to his American

Express card. Counts YII and VI of the indictment

reflect this trip.

Two months later, in June of 1974, Niederberger

and his wife were guests of Fitzgerald for five days at

the Desert Inn and Country Club in Las Vegas, Nevada.

This trip underlies Counts Ix and X of the indictment.

SEVERANCE

Prior to trial and pursuant to Fed. R. Crim. P. 14,!

Niederberger moved unsuccessfully to limit the trial

below to those offenses charged in any two counts con-

tained in the indictment which had, as their common

denominator, the location of one of the five golfing

vacations. He urges on this appeal that the joinder of

all ten counts in the indictment substantially prejudiced

his right to a fair trial in that the jury was presented

with evidence relating to all five golfing trips and could

not, therefore, properly separate and distinguish the

evidence with respect to each individual count.

4. Rule 14 provides in pertinent part:

If it appears that a defendant or the govern-

ment is prejudiced by a joinder of offenses or of de-

fendants in an indictment or information or by such

joinder for trial together, the court may order an

election or — trials of counts, grant a sever-

ance of defendants or provide whatever other relief

justice requires.

6a

Appendix A.

Initially, it is settled that a district court’s dis-

position of a Rule 14 severance motion will not be

disturbed in the absence of a clear showing of an abuse

of discretion. United States v. Somers, 496 F.2d 723,

730 (3d Cir.) cert. denied, 419 U.S. 832 (1974). The

burden placed upon the appellant here to demonstrate

such abuse is a heavy one. /d.; see United States v. Rosa,

060 F.2d 149, 154 (3d Cir.) cert. denied,—S. Ct.—

(1977) (severance of defendants) .

Moreover, joinder of offenses in one indictment is

expressly permitted by Fed. R. Crim. P. 8(a).5 Here

the joinder was clearly permissible since the crimes

charged were all of the same or similar character. Thus,

our inquiry must focus on whether the record below

suggests that, by virtue of the joinder, the appellant’s

right to a fair trial was sufficiently prejudiced so as

to warrant the relief provided by Rule 14.

The obvious purpose of Rule 8(a)’s liberal joinder

provision is to promote judicial and prosecutorial econ-

omy by the avoidance of multiple trials. United States

v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977 ), cert.

denied,—S. Ct.— (1978). To accept the appellant’s view

here would clearly violate the intent of Rule 8(a) in

that his motion implicitly proposed that at least two

and perhaps as many as five separate trials would be

dD. Rule 8(a) provides:

(a) Joinder of Offenses. Two or more offenses

may be charged in the same indictment or informa-

tion in a separate count for each offense if the of-

fenses charged, whether felonies or misdemeanors

or both, are of the same or similar character or are

based on the same act or transaction or on two or

more acts or transactions connected together or

constituting parts of a common scheme or plan.

* abet

erent” rt enmaine Sak Pati

7a

Appendiz A.

required to prosecute all ten counts of the indictment.

Given the obvious burden imposed upon the prosecu-

tion and the trial court in terms of both time and ex-

pense, such a result would be as intolerable as it is

unnecessary. That is especially true here because the

evidence in any subsequent trial would be largely dup-

licative of that presented in the initial trial. See United

States v. Taylor, 334 F. Supp. 1050, 1056 (E.D. Pa.

1971) , aff'd 469 F.2d 289 (3d Cir. 1972).

Furthermore, no substantial prejudice has been

demonstrated. The appellant merely asserts that the

jury would be incapable of sifting through and sepa-

rating the evidence and applying it to the appropriate

counts of the indictment. This assessment is belied by

the fact that the jury’s verdict acquitted Niederberger

of four of the ten counts. That result establishes beyond

question that the jury was capable of evaluating the

evidence relating to each separate count. Py

Accordingly, we are satisfied that the joinder of

offenses in a single indictment failed, in any sense, to

infringe upon Niederberger’s right to a fair trial, and

consequently we find no abuse of discretion in the dis-

trict court’s resolution of the Rule 14 application.

|

8a

Appendix A.

IMMUNITY FOR PROSPECTIVE DEFENSE WITNESSES

Niederberger’s second contention is directed to the

district court’s refusal to require the Government to

seek use immunity, pursuant to 18 U.S.C. $6002,6 for

the proposed defense witnesses, Fitzgerald and Stande-

fer, the two Gulf employees instrumental in providing

Niederberger with the gratuities underlying the in-

dictment. The appellant maintains that without a grant

of immunity both men would have refused to testify

on his behalf. Thus, Niederberger argues, the failure

of the court to compel a grant of immunity denied him

his Fifth Amendment right to due process and his

Sixth Amendment right to compulsory process.

The rule in this Circuit is clear; a trial court has

no authority to provide use immunity for a defense

witness. United States v. Morrison, 535 F.2d 223, 228-29

(3d Cir. 1976), cert. denied,—S. Ct.—(197 ); United

States v. Berrigan, 482 F.2d 171, 190 (3d Cir. 1973).7

Similarly, except in an extraordinary circumstance which

was not present below, a trial court cannot compel the

Government to offer such immunity to a prospective

witness. Morrison, supra, 535 F.2d at 229.

Moreover, there was no affirmative showing, as

required by $6002, that either Fitzgerald or Standefer

6. 18 U.S.C. § 6002 makes available use immunity

for a witness who 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

7. The function of the trial court is limited to de-

termining whether a request for immunity made by the

government is in accord with the statutory procedure.

See Ullman v. United States, 350 U.S. 422, 433-34 (1956).

9a

Appendix A.

would have refused to testify if called as defense wit-

nesses. Accordingly, we conclude that the trial court’s

denial of the immunity request did not offend defend-

ant’s Fifth or Sixth Amendment rights.

DUPLICITIOUSNESs

The indictment charges, in the odd-numbered counts,

that Niederberger did “accept, receive and agree to re-

ceive a thing of value” from Gulf. In the even-numbered

counts, Niederberger is alleged to have received a “fee,

compensation and reward” from Gulf. The appellant

insists that, because of the conjunctive phrasing of

the indictment, he is charged with three distinct of-

fenses in each count, in violation of Fed. R. Crim. P.

8(a).8 Thus, Niederberger contends, the trial court

erred when it denied his motion to dismiss the indict-

ment for duplicitousness.

In United States v. Starks, 515 F.2d 112, 116 (3d

Cir. 1975), we defined duplicity as “the joining in a

single count of two or more distinct and separate of-

fenses”. We note that although the indictment is framed

in the conjunctive, the statutes forming the basis for

the indictment are worded in the disjunctive.” Nonethe-

less, this apparent inconsistency presents no difficulty,

for it is settled law that where a statute denounces an

offense disjunctively, the offense may be charged con-

junctively in the indictment. See, e.g., United States v.

Gunter, 546 F.2d 861, 868-69 (10th Cir.), cert. denied,

97 S. Ct. 2189 (1977); United States v. Malinowski,

347 F. Supp. 347, 352 (E.D. Pa. 1972), aff'd 472 F.2d

8. For the text of Rule 8(a), see n.6, supra.

9. The texts of the pertinent statutes appear in

notes 1 and 2, supra.

i i

10a

Appendiz A.

850 (3d Cir.), cert. denied, 411 U.S. 970 ( 1973). More-

over, guilt may be established by proof of any one act

named disjunctively in the statute. See Turner v. United

States, 396 U.S. 398, 420 (1970); United States v.

Gimelstob, 475 F.2d 157, 163 (3d Cir. ), cert. denied,

414 U.S. 828 (1973) ; United States v. Pauldino, 443 F.2d

1108, 1112 (10th Cir.), cert. denied, 404 U.S. 882 (1971).

Therefore, we must find the appellant’s argument

grounded on duplicitousness to be meritless.

QUID PRo Quo

Prior to trial, Niederberger moved to dismiss the

indictment on the grounds that the charges set forth

in the bill did not allege facts sufficient to constitute

a criminal offense under the illegal gratuity statutes,

18 U.S.C. §201(g) and 26 U.S.C. §7214(a) (2). Nieder-

berger maintains here that the trial court’s denial of

that motion constitutes plain error.

The statutes proscribe the receipt by a public of-

ficial of a gratuity, except where specifically permitted

under the law, for the performance of an official act

or duty. The appellant contends that the language of

each statute injects a requirement of a quid pro quo;

but appellant then goes much further and asserts that

the indictment must allege that Niederberger received

the golfing trips in return for some specific, identifiable

act which he performed or was to perform in the future.

Viewing §201 in its entirety, it is apparent that

the elements of the offense which Niederberger claims

should be alleged in an indictment which charges a

violation of §201(g) are found in §201(c) (1), one of

the bribery sections of the statute. Section 201 (c) (1)

subjects a public official to prosecution if he

. os

Ot eke Se ec le ce

lia

Appendix A.

corruptly ... accepts, receives, or agrees to receive

anything of value for himself... in return for:

(1) being influenced in his performance of any

Official act ....

It is clear, then, that § 201(c) (1) requires as one

of its elements a quid pro quo. In fact, we find this to be

the primary distinction between subsections (c) (1) and

(g). Support for this view is found in United States v.

Brewster, 506 F.2d 62 (D.C. Cir. 1974), where the court,

analyzing the differences between subsections (c) (1)

and (g), held that “[t]he bribery section [(c) (1) ]

makes necessary an explicit quid pro quo which need

not exist if only an illegal gratuity is involved’. Jd. at

72,10

Thus, we find it unnecessary for the Government to

allege in an indictment charging a § 201(g) offense that

a gratuity received by a public official was, in any way,

generated by some specific, identifiable act performed or

to be performed by the official. A quid pro quo is simply

foreign to the elements of a subsection (g) offense.

What is proscribed, simply put, is a public official’s re-

ceipt of a gratuity, to which he was not legally entitled,

10. Further support of this conclusion is found in

cases wherein courts have considered the elements of

an 18 U.S.C. § 201(f) offense — forbidding the payment

of a gratuity to a public official — and have concluded

that a quid pro quo is not among them. See e.g., United

States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.), cert.

denied, 426 U.S. 948 (1976) ; United States v. Umans,

368 F.2d 725, 729-30 (2d Cir. 1966), cert. dismissed, 389

U.S. 80 (1967); United States v. Irwin, 354 F.2d 192,

197 (2d Cir. 1965), cert. denied, 383 U.S. 967 (1966). It

follows that if proof of a quid pro quo is not required

under § 201(f), it need not be established in a $ 201(¢g)

prosecution.

|

12a

Appendix A.

given to him in the course of his everyday duties, for or

because of any official act performed or to be performed

by such public official, and he was in a position to use

his authority in a manner which could affect the gift-

giver. See United States v. Alessio, 528 F.2d 1079, 1082

(9th Cir. 1976) ; Brewster, supra, 506 F.2d at 72, n.26.

In light of the foregoing, and because of the obvious

parallelism in the proscriptions of § 201(g) and § 7214

(a) (2) offenses, we hold that § 201 (g) does not require

an allegation or proof of a quid pro quo, nor does § 7214

(a) (2). Thus, we find the indictment sufficiently alleged

acts made criminal by the illegal gratuity statutes,

SUFFICIENCY OF THE EVIDENCE

At the conclusion of the Government's case, the de-

fendant moved unsuccessfully for acquittal, asserting an

insufficiency of evidence. On this appeal, Niederberger

has renewed the following two arguments presented

below in support of that motion: (1) the Government

did not prove that Niederberger received or agreed to

receive a gratuity in Pittsburgh, as alleged in the in-

dictment; and (2) the Government failed to prove that

Gulf paid a gratuity to Niederberger, again as alleged

in the indictment.

In reviewing the sufficiency of the evidence adduced

at trial, we may not disturb a verdict if the evidence,

when viewed in the light most favorable to the Govern-

ment, could justify a jury finding of guilt beyond a

reasonable doubt. Government of the Virgin Islands v.

Bradshaw, — F.2d —, — (34 Cir. 1978) ; Government

of the Virgin Islands v. Peterson, 507 F.2d 898, 900 (3d

Cir. 1975).

ee ee

l3a

Appendiz A.

Counts 3, 5, 7 and 9 allege that Niederberger “at

Pittsburgh ... did unlawfully and knowingly accept,

receive, and agree to receive things of value” from Gulf

in violation of 18 U.S.C. § 201( g). Counts 8 and 10 allege

that Niederberger “at Pittsburgh . . . did unlawfully and

knowingly, receive a fee, compensation, and reward’”’

from Gulf in violation of 26 U.S.C. s 7214(a) (2). As

his first contention, the appellant maintains that since

venue must lie in the district where the criminal acts

occurred,!1 and, since the Government failed to intro-

duce evidence that any of the alleged criminal acts were

committed in Pittsburgh, the charges in the indictment

were not proven and, accordingly, the jury verdict must

be overturned.

We have heretofore determined that although each

count of the indictment is phrased in the conjunctive,

the prosecution need only prove one of the three acts

alleged in each count. Common sense suggests that when

Niederberger boarded an airplane in Pittsburgh to begin

his round-trip flights, the tickets for which were ulti-

mately paid for by Gulf, to Miami (Count ITI), Absecon

(Count V), Pebble Beach (Counts VII and VIII), and

Las Vegas (Counts IX and X), he had accepted and re-

ceived a thing of value or a remard in Pittsburgh.

11. The appellant bases this argument on language

found in the venue Ph gg of the Sixth Amendment

(“The accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and dis-

trict wherein the crime shall have been committed

....’) and Fed. R. Crim. P. 18 (“Except as otherwise

permitted by statute or by these rules, the prosecution

shall be had in a district in which the offense was com-

mitted.”’).

l4a

Appendix A.

Moreover, in framing his venue argument, the ap-

pellant appears to have overlooked 18 U.S.C. § 3237 (a).

This statute provides:

[A]ny offense against the United States begun in

one district and completed in another, or committed

in more than one district, may be inquired of and

prosecuted in any district in which such offense was

begun, continued, or completed.

The above language clearly indicates that the acts which

began in Pittsburgh, even though it may be argued that

the acts were completed elsewhere, are sufficient to

establish venue in the Western District of Pennsylvania

for those activities charged in the indictment which took

place in other locations. See United States v. Barnard,

490 F.2d 907 (9th Cir. 1973), cert. denied, 416 U.S. 959

(1974).

In his second challenge to the sufficiency of the evi-

dence, Niederberger argues that the Government failed

to prove that the Gulf employees who had utilized their

credit cards to cover N iederberger’s expenses on each of

the golfing trips were even reimbursed by Gulf for their

expenditures. In order to properly consider this argu-

ment, the testimony of Government witnesses Cox,

Boyd, Ferris, and Hobron must be reviewed.

The testimony of Cox, the manager of accounting

at Gulf, concerned the procedure employed at Gulf in

situations where an employee, who had incurred ex-

penses on Niederberger’s behalf, sought reimbursement.

The witness testified that the travel aud expense vouch-

ers submitted by these employees, upon which Nieder-

berger’s name appeared — all of which had been ad-

mitted into evidence — reflected an expense of Gulf.

15a

Appendix A.

Boyd, an LRS. security inspector, summarized

these expenses incurred by Gulf on behalf of Nieder-

berger as established by the vouchers, Boyd testified

that, based on his examination of the vouchers, Gulf

expended over $7000. on N iederberger between 1965 and

1975, when included reimbursements for golfing trips to

Miami, Las Vegas, and Absecon.

Ferris, Standefer’s secretary, described the con-

tents of various vouchers which had been approved for

reimbursement. Among them were expenditures for

Niederberger’s round-trip airplane tickets, hotel and

golf charges, and restaurant checks from the golfing re-

sorts in Miami, Absecon, Pebble Beach, and Las Vegas.

Finally, there is the testimony of Hobron, an I.R:S.

investigator, who conducted an extensive interview of

Niederberger prior to the return of the indictment.

Hobron testified that during the course of this interview,

Niederberger admitted that he was aware that Gulf

arranged and paid for the trips to Miami, Absecon,

Pebble Beach, and Las Vegas.

The cumulative effect of this testimony leads us to

the inescapable conclusion that the Government pro-

vided more than sufficient evidence to permit a jury to

find that Gulf paid for Niederberger’s various golfing

trips.

JENCKS MATERIALS

At trial, Hobron, the criminal investigator for the

I.R.S. who had interviewed Niederberger, testified — as

we have previously noted — as to certain admissions

made by Niederberger regarding his receipt of gratui-

ties from Gulf. During cross-examination, Hobron re-

vealed that his rough notes of the interview had been

turned over to his superiors after he had reduced the

CO

Ga

Appendix A,

notes to a typewritten report. Thereafter, the Govern-

ment informed the court that the notes had been de-

stroyed pursuant to I.R.S. administrative guidelines,

Maintaining that these rough notes were materials

which should have been supplied to him under the

Jencks Act, 18 U.S.C. § 3500, the defendant thereupon

moved for a mistrial by reason of the Government’s

failure to preserve and produce the rough notes. Nieder-

berger argued that without the rough notes the defense

was denied an effective cross-examination of the LR.S.

investigator. Thus, the investigator’s testimony should

have been stricken. Further, he urged, because of the

impact on the jury of the incriminating testimony, and

the obvious prejudice to the defense which could not be

cured by an instruction from the court, a mistrial was

the only appropriate remedy. The trial court denied the

motion, concluding that at the time of the trial below the

law in the Third Circuit did not require the preservation

and production of such rough notes.12

The law of this Circuit with respect to the preserva-

tion and production of rough interview notes was estab-

lished in United States v. Vella, 562 F.2d 275 (3d Cir.

1977) (per curiam). In Vella, relying on the reasoning

advanced in United States v. Harrison, 524 F.2d 421

(D.C, Cir. 1975), we held that:

the rough interview notes of F.B.I. agents should

be kept and produced so that the trial court can

determine whether the notes should be made avail-

able to the appellant under the rule of Brady v.

12. The trial was conducted between February

17th and February 25th, i977. The trial court was cor-

rect in noting that at that time the preservation of

rough notes was not required.

17a

Appendix A.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed. 2a

215 (1963), or the Jencks Act. :

Vella, supra, 562 F.2d at 276.

However, despite the requirements of Vella, on the

record before us it is our view that even without the

LR.S. investigator's testimony the Government’s evi-

dence established a sufficient basis for the jury to reach

its verdict.13 This conclusion, coupled with the absence

13. The record reveals that Hobron’s testimony

concerned certain admissions made b Niederberger and

established two particulars which t e jury could have

accepted as factual: 1) Niederberger believed that Gulf

had arranged and paid for each of the olfing trips

charged in the indictment; and 2) Nieder erger knew

his acceptance of those free vacations was illegal. While

we view Hobron’s testimony as damaging, we do not

regard it as critical to a successful prosecution.

In addition to Hobron’s testimony, the government

introduced additional] testimony as well as documentary

evidence from which the jury could have found, beyond

a reasonable doubt, that not only did Niederberger per-

mit Gulf employees to pay his expenses at resorts in

Miami, Absecon, Pebble Beach, and Las Vegas, but, also,

that Gulf itself, through its reimbursement of their em-

ployees, actually paid those expenses.

The Government’s witnesses, Vendrell, Conover.

Nelson and Alderfer, established that Niederberger was

a guest, during the time periods specified in the indict-

ment, at the Doral Country Club, the Seaview County

Club, the Del Monte Lodge and the Desert Inn. Each also

testified that Niederberger’s expenses were charged to

credit cards of Gulf employees.

Sandra Ferris, Standefer’s secretary at Gulf, testi-

fied to the contents of employee expense vouchers which

detailed the expenses of Gulf employees, including

round-trip airline tickets, incurred on behalf of Nieder-

berger for the golfing trips to resorts in Absecon, Pebble

Beach and Las Vegas. In each case it is clear that the

18a

Appendix A.

of any suggestion that the destruction of the notes

under LR.S. administrative procedure was performed

in bad faith, requires a finding that if there were error

below it was harmless. Vella, supra, 562 F.2d at 276.

The remaining allegations of error advanced by the

appellant are without merit and must be rejected,!4

jury could have found that the Gulf employee who hed

expended sums on Niederberger was reimbursed by

Gulf.

Ferris did not testify, however, to any expense

vouchers submitted which related to expenses incurred

at the Doral Country Club in Miami. Nor do we find

any testimony, other than Hobron’s, which directly

establishes that Gulf reimbursed Fitzgerald for Nieder-

berger’s expenses at Doral. However, we are satisfied

that the jury, given the pattern of the arrangements,

could permissibly infer that Gulf did, in fact, reimburse

Fitzgerald for those expenses. The jury heard Ferris

testify that the expense vouchers submitted to Gulf for

the Absecon, Pebble Beach and Las Vegas trips were all

submitted by Fitzgerald, and in each case Fitzgerald

as reimbursed by Gulf. Vendrell testified that Fitz-

gerald charged Niederberger’s expenses at the Doral in

Miami with his American Express Card. Martin Boyd,

an I.R.S. security inspector, testified that his review of

the Niederberger expenses paid by Gulf included trips

to Las Vegas, Absecon and Miami, the location of the

Doral Country Club. Based on the cumulative impact of

that race we find the jury could reasonably infer

that Fitzgerald was reimbursed by Gulf for the Doral

expenses.

14. The remaining contentions are:

(1) denial of the defendant’s request to exam-

ine the grand jury attendance records;

(2) denial of the defendant’s motion to dismiss

the indictment for failure to record certain grand

jury testimony;

(3) denial of the defendant's motion to dis-

miss the indictment for impermissible selective

prosecution;

St, RY Pere, 5 od

Ne St TR ae

19a

Appendiz A.

For the foregoing reasons, the judgment of the dis-

trict court will be affirmed.

(4) admitting testimony concerning the de-

fendant’s salary;

_ (5) admitting testimony concerning an on-

going I.R.S. investigation into Gulf and certain of

its employees;

(6) admitting testimony concerning Nieder-

berger’s confession;

(7) admitting testimony concerning a sum-

mary of Gulf’s entertainment expenditures on

Niederberger;

_ (8) admitting Gulf travel and expense reports

which concerned expenditures on Niederberger;

(9) denial of Niederberger’s mistrial motion

based on the prosecution’s opening remarks to the

jury; and ;

(10) the district court’s failure to properly

charge the jury.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

Appendix B.

APPENDIX B

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT _

No. 77-1575

UNITED STATES OF AMERICA

Vv

CYRIL J. NIEDERBERGER,

Appellant

SUR PETITION FOR REHEARING

Present: SeITz, Chief Judge, ALDISERT, ADAMS, GIBBONS,

ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM,

Circuit Judges, and BARLOW, District Judge*

The petition for rehearing filed by appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regu-

lar active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of

the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in banc,

the petition for rehearing is denied.

By the Court,

MAX ROSENN

Judge

Dated:

*Sitting by designation.

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