Petition — Edelson v. United States

No.78-=779,

Supreme Court, U.S. \

SSSED 5

} woy 10 1878

— —

—

=e"

In the —_ RODAK, JR., CLERK

Supreme Cowt of the United. States

OctToBER TERM, 1978

MITCHELL EDELSON, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

MrTcHELL EDELSON, JR.

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) $25-6581

INDEX

PAGE

EEE SSS 1S EE 1

ee. sa sassnscnameccosocce 2

Nees seccstewssccaneee 2

Constitutional Provisions and Statutes involved ........ 4

a sscnccoconmecesoes 6

Reasons for granting the Writ. .........0.ccccccccceseceseseeeeeeeeee 11

LES LSE LT OT 32

Ne senosicenerencocsees App. 1

Ne eo ssevnscsccsoreces App. 8

eo TS App. 9

BE EE App. 17

CITATIONS

Bast v. U. S., 542 F.2d 893 (4th Cir., 1976) oo. 8

Clavey v. U.S., 565 F.2d 111 (7th Cir., 1977) ; in bane,

578 F.2d 1219 (7th Cir., 1978) ; cert. pending +78-120

nen 2, 8, 13, 14, 15

Davis v. Alaska, 415 U.S. 308 (1974) coos 22

Dennis v. U.S., 384 U.S. 855 (1966) ooecccccecececsssseseee 24, 26, 28

Fikes v. Alabama, 352 U.S. 191 (1957) ccccccccccccssesecscsese 32

Illinois v. Sarbaugh, 552 F.2¢ 768 (7th Cir., 1977) .... 29

In Re Grand Jury Subpoenas, 573 F.2d 936 (6th Cir.,

ES SD 19

PAGE

Pittsburgh Plate Glass v. U.S., 360 U.S. 395 (1959) ....3, 24,

26, 28

State of Wisconsin v. Schaffer, 565 F.2d 961 (7th Cir.,

OPTED > coccsnetneenseadaciantealeadlibechedsAaccinsgilctancedanaasseadtuaminumilaieaenes 27

U.S. v. Crocker, 568 F.2d 1049 (8rd Cir., 1977) 000... 15

U.S. v. Crippen, 570 F.2d 535 (Sth Cir., 1978) 579 F.2d

340 (7th Cir., 1978) cert. pending #78-538 (1978) ....12, 13

U.S. v. Del Toro, 513 F.2d 656 (2nd Cir., 1975) 0.00... 3, 31

U.S. v. Disston, — F.2d —, #77-1353; 7th Cir,

PID wtickistapicsaciadaccitcrdsmdscambachaabcce eas iaeeowe 6,7, 31

US. v. Duffy, 54 F.R.D. 549 (N.D., Ill. 1972) 0000.0... 26

U.S. v. Howard, 560 F.2d 281 (7th Cir., 1977) 0.00000... 19

US. v. Jacobs, 531 F.2d 87 (2nd Cir., 1976) on remand,

547 F.2d 772 (2nd Cir., 1976) cert, denied — U.S.

ani EE TR, BP CTO) © wrccsccacsecscscatatpusessastasubeassicisnmntcacneell 3, 30

U.S. v. Marchisio, 344 F.2d 653 (2nd Cir., 1965) ............ 19

USS. v. Parker, 244 F.2d 943 (7th Cir., 1957) oo. 19

U.S. v. Slawik, 548 F.2d 75 (8rd Cir., 1975) ....2, 3,11, 12, 13

U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) ..25, 28

Warduis v. Oregon, 412 U.S. 470 (1978) ooo. 31

Washington v. Texas, 388 U.S. 14 (1967) oo. 23

iii

CONSTITUTIONAL PROVISIONS, STATUTES AND

OTHER AUTHORITIES

PAGE

United States Constitution, 5th Amendment ............ 4, 15,19

United States Constitution, 6th Amendment ....2, 4, 15,19, 22

18 U.S.C. $1628 ............... icmiaaciecieeen 2, 3, 4, 8, 13, 14, 15, 16, 19

By RN secs sc chccasnbsvsnsentssceneceseensemenses 9

he | ___)) ESSSEEEE e 2

Supreme Court Rule 19(b) .....ncccccccscccescsceseees cossececeessceees 4, 24

Loyola Law Journai, Vol. #9, Summer, 1978, pp. 984-

dite ahd aciaeic ali eet tewhnasicteaeaencnteoiecedaieecndes access. 29

IR UIce ODay WR MOD occas sescocscenecesosscxssonececcasesstnens 10

In the

Supreme Cowt of the United States

Ocroper Term, 1978

No.

MITCHELL EDELSON, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MITCHELL EDELSON, JR., petitions for a Writ of

Certiorari to review the Judgment of the United States

Court of Appeals for the Seventh Circuit,

OPINION BELOW

The Opinion of the Court of Appeals (App. A, infra,

pp. App. 1-7) is reported, 581 F.2d 1290 (7th Cir., 1978).

There is no opinion from the District Court.

2

JURISDICTION

The Judgment of the Court of Appeals (App. A, tmfra,

p. App. 7) was entered on August 30, 1978. A timely

Petition for Rehearing with Suggestions for an En Banc

Hearing was filed; same was denied by the Court of Ap-

peals for the Seventh Cireuit on October 13, 1978 (App. B,

infra, p. App. 8). The jurisdiction of the Court is invoked

under 28 U.S.C. $1254(1).

QUESTIONS PRESENTED

(1) In view of the conflicts among the federal circuits,

should this Court decide the question of whether a per-

jury indictment must disclose in what respect defendant’s

testimony was material to the Grand Jury’s inquiry???

(2) Is the ‘‘realistic-target’’ defendant entitled to a

copy of his grand jury testimony, prior to indictment???

(Compare Clavey v. U.S., this Court’s docket 78-120, 23

Cr.L. 4167 (1978).

(3) Whether a perjury indictment and conviction un-

der 18 U.S.C. $1623 can survive judicial scrutiny where the

sole testifying witness on the subject of ‘‘materiality of

the grand jury inquiry’’ was the Assistant U.S. Attorney

who was responsible for presenting evidence to the grand

jury??

(a) Whether the petitioner at bar was denied his

Fifth Amendment right not to suffer a federal criminal

conviction ‘‘without due process of law’’ and his Sixth

Amendment right to have ‘‘compulsory process for ob-

1In U.S. v. Slawik, 548 F.2d 75 (3rd Cir., 1975) that Court

answered YES. Both this case and the Fifth Circuit decision in

Crippen v. U.S., this Court's docket 78-538 (1978) say NO.

3

taining witnesses in his favor’’ where the trial court

totally refused the petitioner at bar any access whatso-

ever to the grand jury transcripts??

(b) Whether the government may have the benefit of

a federal criminal conviction where the charge is perjury

under 18 U.S.C, $1623... where absolutely no court has

ever seen any of the grand jury testimony (other than the

petitioner’s) ??

(c) Whether a perjury indictment under 18 U.S.C.

$1623 can survive the review of this Court where the sole

alleged perjury, before a federal grand jury, is the differ-

ence between a series of undisclosed tape recordings as be-

tween the petitioner and his former client ... and the peti-

tioner’s grand jury testimony???

(4) Whether petitioner demonstrated a sufficient ‘‘par-

ticularized need’’ under this Court’s decisions in Pitts-

burgh Plate Glass v. U.S., 360 U.S. 395 (1959) and Dennis

v, U.S., 384 U.S, 855 (1966) so as to compel disclosure of the

grand jury transcripts ... if not to the petitioner then, at

least to the trial court, in camera??

(a) Cana decision affirming a conviction stand where

the Court of Appeals found no request for in camera in-

*Compare U.S. v. Slawik, 548 F.2d 75 (3rd Cir., 1977) where

that Court answered the same question No. In the petitioner’s case

it was clearly conceded that the only alleged perjury was the differ-

ence between the petitioner’s grand jury testimony and a series of

tape recordings approximately eighteen (18) months earlier; same

not being disclosed to the petitioner at any time prior to or during

his grand jury testimony. Compare U.S. v. Del Toro, 513 F.2d 655

at 665 (2nd Cir., 1975); U.S. v. Jacobs, 531 F.2d 87 (2nd Cir.,

1976) on remand, 547 F.2d 772 (2nd Cir., 1976), cert. denied as

improvidently granted, U.S. v. Jacobs, ........ Mk eon , % S.Ct.

1873 (1978).

4

spection of the grand jury testimony but, the record clear-

ly shows the contrary?? Are these questions (1 through

4) sufficient to invoke the supervisory powers of this Court

under Supreme Court Rule 19(b)??

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fitth Amendment to the United States Constitu-

tion provides in pertinent part:

‘©. , Nor be deprived of life, liberty, or property,

without due process of law...’’

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

‘* .. to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in

his favor....’’

The Statute involved is 18 U.S.C. $1623. This statute

reads:

§ 1623. False declarations before grand jury or court

(a) Whoever under oath (or in any declaration,

certificate, verification, or statement under penalty of

perjury as permitted under section 1746 of title 28,

United States Code) in any proceeding before or ancil-

lary to any court or grand jury of the United States

knowingly makes any false material declaration or

makes or uses any other information, including any

book, paper, document, record, recording, or other ma-

terial, knowing the same to contain any false material

declaration, shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

(b) This section is applicable whether the conduct

occurred within or without the United States.

a eee

5

(c) An indictment or information for violation of

this section alleging that, in any proceedings before

or ancillary to any court or grand jury of the United

States, the defendant under oath has knowingly made

two or more declarations, which are inconsistent to the

degree that one of them is necessarily false, need not

specify which declaration is false if—

(1) each declaration was material to the point

in question, and

(2) each declaration was made within the pe-

riod of the statute of limitations for the offense

charged under this section.

In any prosecution under this section, the falsity of

a declaration set forth in the indictment or informa-

tion shall be established sufficient for conviction by

proof that the defendant while under oath made irre-

concilably contradictory declarations material to the

point in question in any proceeding before or ancillary

to any court or grand jury. It shall be a defense to

an indictment or information made pursuant to the

first sentence of this subsection that the defendant

at the time he made each declaration believed the dec-

laration was true.

(d) Where, in the same continuous court or grand

jury proceeding in which a declaration is made, the

person making the declaration admits such declara-

tion to be false, such admission shall bar prosecution

under this section if, at the time the admission is made,

the declaration has not substantially affected the pro-

ceeding, or it has not become manifest that such falsity

has been or will be exposed.

(e) Proof beyond a reasonable doubt under this

section is sufficient for conviction. It shall not be

necessary that such proof be made by any particular

number of witnesses or by documentary or other type

of evidence,

6

STATEMENT OF THE CASE

(A)

The Background

The Petitioner, for approximately eighteen (18) years

prior to 1974 was a practicing lawyer in Chicago, Illinois.

In approximately January, 1974 a man named Roger Camp

sought the petitioner’s help. Camp had been indicted in

Chicago for a series of mail fraud transactions under In-

dictment 73 CR 881. Petitioner agreed to represent Camp

in his up-coming federal criminal trial in Chicago, Illi-

nois. Unbeknown to petitioner Camp was a government

informer and, while under indictment in Chicago, Camp

surreptitiously recorded a series of telephone conversa-

tions as between himself and petitioner during approxi-

mately March and April, 1974. Camp and his accomplices

forwarded these tape recordings to the Secret Service

and the Strike Force Division of the U.S. Attorney in

Chicago in April, 1974. Camp stood trial (with peti-

3 These facts are without dispute. Camp had a co-defendant,

G. Disston, Disston had sought a severance from Camp unde: 73

CR 881. Disston had also received an order from the trial court

granting him the right to see and/or hear anything that Camp had

given the government. The government told the trial court and

Disston (and petitioner as Camp’s attorney) that there were no

statements and/or electronic eavesdropping. Of course, as later facts

revealed, the government was less than candid. See U.S. v. Disston,

esaEry F.2d ........, (#¢77-1353, Aug. 15, 1978, 7th Cir.). The Disston

decision is reproduced as App. C, infra). Up until 1978 both the

Strike Force and the U.S. Attorney’s Offices were on the 15th

Floor in the Federal Building in Chicago. Henderson, the Strike

Force Attorney, got hold of the tapes in April, 1974. Henderson

testified as a trial witness in petitioner's case that he was aware of

Camp’s up-coming trial (Tr. 403-409) aiihough the U.S. Attorney

(footnote continued)

7

tioner as his counsel) in June, 1974. Camp was convicted

and received a three (3) year sentence. Camp eschewed eny

opportunity to appeal. Rather, Camp went directly ‘‘ back

into the enemy-camp’’. Camp’s sentence was later reduced

to one (1) year. Disston was sentenéed to two (2) years

in custody and while serving his sentence sought post-con-

viction relief, The trial court denied any post-conviction

relief. The Court of Appeals reversed.‘

(B)

Petitioner’s Grand Jury Appearance, Testimony,

Indictment And Trial

The tape recordings as between Camp (the government

informer and petitioner’s then client) and petitioner were

taken sometime in late March and early April, 1974. Not-

withstanding seasonable trial requests (as the record under

73 CR 881 demonstrates) Camp’s tape recordings were not

turned over either to the co-defendant, Disston, or to

Camp’s attorney (who made specific request for same both

(footnote continued )

and not the Strike Force was prosecuting Camp in Indictment 73 CR

881, Henderson (the Strike Force Attorney in petitioner’s case)

knew the Assistant U.S. Attorney who was trial counsel for the

government in 73 CR 881 (Tr, 490-493). The background as be-

tween petitioner and government trial counsel in 73 CR 881 is set

forth at pg. 10, n. 11 of this petition.

In any event, we find it impossible to believe that the Strike Force

Attorney, armed with the tapes involving Camp and the petitioner

in April, 1974 did not tell governme at trial counsel of this revelation

in that they were both on the same floor, in the same building, and

in the same office. It strains imagination to believe that both gov-

ernment attorneys did not share in the “tapes”.

*O.S. V. DiestOn, ..1000. i} Re (7th Cir., 1978) . . reproduced

as App. C, infra, pp. 9-16. The decision in Disston reviews at least

some of the facts as set forth above.

en ee a Ee ee

8

before and after the trial under indictment 73 CR 881). In

approximately May, 1975 petitioner was called before a

federal grand jury sitting in Chicago, Illinois. When the

questioning commenced the following grand jury testimony

appears:

‘6, A. I understand that. Am I also entitled to a

copy of this proceeding?

Q. You are not entitled to a copy of the proceed-

ings at this time...’’®

In any event, petitioner testifies and answers some sev-

enty-five (75) questions. Government counsel, in charge

of the grand jury investigation later related that most of

his questions came from reviewing the tapes and tran-

scripts of the ‘‘Camp tape recordings’’; same being undis-

closed to the petitioner until post-indictment.’ It is worthy

of note that apparently NO OTHER WITNESS ACTU-

ALLY TESTIFIED BEFORE THE GRAND JURY IN

CONNECTION WITH THE INSTANT INDICTMENT.’

In October, 1975 petitioner was charged in a four (4)

count indictment with violating 18 U.S.C. $1623. The in-

dictment is reproduced as App. D, infra, pp. 17-19.

Prior to trial, inter alia, the petitioner sought access to

the grand jury materials.* Alternatively, the petitioner

5R. 17, Exh. B, Tr. 3. In Clavey v. U.S., Sup.Ct. Dkt. #78-120

a question presented relates to whether a grand jury witness is en-

titled to see a transcript of their own testimony. Cf., Bast v. U.S.,

542 F.2d 893 (4th Cir., 1976) Wyzanski, dissenting . . . urging that

the witness ought have access to their own testimony, 542 F.2d 897-

899,

® Tr. 468.

Tr. 449-452. V. Nicasio was called, but took the Fifth.

®R. 21; 1/23/75, p. 2, 2.

9

asked that the trial court review the materials, in camera.

Again, prior to trial the petitioner sought leave of court

to interview either the grand jurors and/or the official

court reporters to ascertain how, if at all, the petitioner’s

testimony before the grand jury was ‘‘material’’ (R. 57-

62). These motions (for grand jury interviews) were pre-

sented to the chief judge in the district on March 17, 1977.

The chief judge deferred ruling on the motions and sent

the requests and motions to the trial judge. The trial judge

declined to grant any relief whatsoever (R. 62). At all

times herein pertinent the government opposed production

of the grand jury materials AND UP UNTIL TODAY NO

COURT (TO OUR KNOWLEDGE) HAS EVER RE-

VIEWED ANY GRAND JURY MATERIALS IN THIS

CASE.

Prior to trial the petitioner sought to suppress both his

grand jury testimony and the tapes. The trial court de-

clined to suppress (R. 69-70).° A bench trial commenced

® Inter alia, the tapes were alleged to have been recorded in viola-

tion of 18 U.S.C. §2511(2)(d). In pertinent part, §2511 states:

(d) It shall not be unlawful under this chapter for a person

not acting under color of law to intercept a wire or oral com-

munication where such person is a party to the communication

or where one of the parties to the communication has given

prior consent to such interception unless such communication

is intercepted for the purpose of committing any criminal or

tortious act in violation of the Constitution or laws of the United

States or of any State or for the purpose of committing any

other injurious act.

During the suppression hearing the government alternated their

positions. The government claimed they knew nothing about Camp's

taping activities and that he did them on his own (Tr. 26, 29-30,

62-63). Thus he was not really doing it for the government even

though he was an informer (if he was an informer, how could he

be doing it on his own)?”

10

in March, 1977 and eventually petitioner was convicted on

two (2) of the four (4) counts in the indictment.’® On May

25, 1977 the petitioner filed his post-trial motions (R. 83).

On June 2, 1977 all post-trial motions were denied and

petitioner was sentenced to a year in custody."

10 The trial court acquitted petitioner of perjury as regarding {’s

4 and 7 of the indictment and entered a judgment of guilty as to

{’s 5 and 6 of the indictment (Tr. 1358-1361; 4/4/77). The indict-

ment is reproduced as Appendix D, pp. 17-19, infra.

11On May 26, 1977 at R. 89 the petitioner filed what is the equiva-

lent of a pre-sentence investigation (Fed.R.Crim.Proc., R. 32(c).

Within that statement petitioner calls the court's attention to the

fact that in the early 1970’s petitioner was a member of the

Criminal Law Section of the Chicago Bar Association and that Com-

mittee investigated eavesdropping. One of the eavesdropping targets

was a then local prosecutor, Friedman, The Illinois Bar Association

filed charges against Friedman relating to “eavesdropping”. Fried-

man was GOVERNMENT COUNSEL IN U.S. V. CAMP AND

DISSTON, 73 CR 881. To put it mildly there was “bad blood”

as between petitioner (Camp’s trial counsel) and Friedman. In

the Camp-Disston record there is at least one docket entry relating

to non-eavesdropping which was signed by Friedman. Thus, in

the early 1970's, Friedman transferred his prosecutorial duties from

the local District Attorney's Office to the United States Attorney’s

Office... Lupus pilum mutat, non mentem, Friedman was still a

member of the U.S. Attorney’s Office when petitioner was indicted.

Could this prosecution be mala fide?

Seen nnn nn 22 L<<&«

11

REASONS FOR GRANTING THE WRIT

(1) In view of the conflicts among the federal circuits,

should this Court decide the question of whether a perjury

indictment must disclose in what respect defendant’s testi-

mony was material to the Grand Jury’s inquiry?

Petitioner at bar respectfully states that the conflict

within the Circuits merits this petition being granted. In

U.S. v. Slawik, 548 F.2d 75 (8rd Cir., 1977) that Court re-

versed a series of grand jury perjury convictions. The

sine qua non of the indictments seemingly rested on the

difference between certain tape recordings and Slawik’s

grand jury testimony (548 F.2d 78-83). In Slawik the Court

reversed stating:

But a tape recording of extra-judicial conversations

does not serve the same purpose. In cases where the

government is relying upon extra-judicial prior incon-

sistent statements to establish falsity, proof of mere

inconsistency is not enough. The grand jury must

charge specifically what it believes are the true facts.

Moreover if the courts are to discharge their obliga-

tion of determining materiality they should be in

formed in the indictment in what manner the falsity

alleged affected the grand jury’s deliberations. Fi-

nally, without attempting to lay down any standard

of prosecutorial conduct before the grand jury for all

cases, we think it fair to say that if transcriptions of

electronic interceptions are to be the basis for false

swearing prosecutions we will insist that the govern-

ment’s interrogation be far more precise than in this

ease. (548 F.2d at 87; emphasis ours).

12

In the present case the perjury allegation(s) against this

petitioner are clarified by the trial court as follows:

“The Court: And he was indicted only in those

areas where his testimony could be contrasted with

the tapes.

Mr. Gerber: That is right.

The Court: I recognize that, I accept that as a fact.’’

(Tr. 469).!

The indictment absolutely fails to reflect what the grand

jury believed to be the true facts. Further, the indictment

does not set forth in any manner, how the alleged falsity

affected the grand jury’s deliberations (Cf., App. D, infra,

and Slawik, ante, at 87), The decision in Slawik was urged

on the Fifth Cireuit in U.S. v. Crippen, 570 F.2d 535 (Sth

Cir., 1978) (on rehearing, 579 F.2d 340, 5th Cir., 1978),

cert. pending, ........ USS. ........, #78-538 (1978). The Crippen

Court declined to follow S/awik as follows:

To adopt the rule in false swearing cases that the

full predicate for the charge be set forth in the indict-

ment, in addition to the allegations of the essential

elements of the offense, would be tantamount to re-

quiring that such supporting evidence be alleged in

indictments charging all other federal offenses. This

requirement is not warranted by general principles of

criminal law, Estes v. United States, 5 Cir. 1964, 335

12. Mr. Gerber was trial counsel for petitioner in the court below.

The trial court clarified, for all times, the perjury allegation against

petitioner. The entire “perjury” (???) was the difference between

his grand jury testimony and the undisclosed tapes and/or transcripts.

We further note that the trial transcripts fail to reflect just what

the grand jury heard or saw (viz-a-viz tapes and/or transcripts,

Tr. 452-455).

13

F.2d 609, 619, cert. denied, 1965, 379 U.S. 964, 85 S.Ct.

656, 13 L.Ed.2d 559, nor is it needed to enable the de-

fendant adequately to prepare his defense, nor, finally,

does its absence create a danger of double jeopardy.

To the extent that Slawik requires the indictment to

recite facts showing materiality in indictments for

false swearing, we decline to adopt it as the law of this

circuit. (579 F.2d at 342) ™

In the case at bar petitioner respectfully points out that

Slawtk although raised in the petitioner’s original brief

in the Court of Appeals for the Seventh Cireuit (Edelson’s

Brief, pp. 26, 43, 49, 77, 79, 80, and 86) and in his petition

for rehearing (pp. 14, 15) the Court while affirming peti-

tioner’s perjury conviction does not so much as mention

the Slawik decision.

Petitioner has presented a clear and unmistakable con-

flict within the Third vs. the Fifth and Seventh Circuits.

We respectfully urge that this Court grant the instant

petition so as to resolve not only the conflict as between

the Circuits but to clarify a substantial question which will

again arise (undoubtedly) within the prosecution of cases

under 18 U.S.C. $1623.

(2) Is the “realistic-target” defendant entitled to a

copy of his grand jury testimony, prior to indictment???

(Compare Clavey v. U.S., this Court’s docket 78-120, 23

Cr.L. 4167 (1978).

On May 6, 1975 petitioner, pursuant to subpoena, ap-

peared before the Special November 1974 Grand Jury in

13 Unlike either Slawik or the case at bar Crippen did not involve

tape recording conversations played to the grand jury in order to

establish “perjury” under 18 U.S.C. §1623.

14

Chicago, Illinois. After government counsel"™ advised

petitioner of certain of his rights before the grand jury

the petitioner asked whether he was entitled to a copy of

‘this proceeding’’. The U.S. Attorney answered that ‘‘ You

are not entitled to a copy of the proceeding at this time’’

(R. 19, Exh. B, pg. 3). This Court has before it a similar

ease, Clavey v. U.S., cert. pending, Docket +78-120 (1978).

In Clavey the record demonstrates that following Clavey’s

grand jury appearance he requested from the Chief Judge

that he be given a copy of his grand jury testimony

(Clavey, 565 F.2d 111 at 113-115, 7th Cir., 1977). In Clavey

the majority opinion declined to find that Clavey was en-

titled to release of his grand jury transcript prior to in-

dictment (id. at 114-115). The Court of Appeals heard

the Clavey case in banc, 578 F.2d 1219 (7th Cir., 1978).

The in banc court being equally divided, affirmed the origi-

nal decision (578 F.2d 1219).!° We frankly suggest, that it

borders on the incredible to assume that the grand jury

witness is not entitled PRIOR TO INDICTMENT to his

own grand jury testimony. The government urged to the

trial court that this petitioner was not a ‘‘target’’ of the

14 James D. Henderson, Esq. was a U.S. Attorney with the Strike

Force in Chicago in May, 1975. Henderson was the only trial

witness to testify as to the “materiality” of the grand jury inquiry.

Henderson's trial testimony regarding materiality is, in part, repro-

duced from Tr. 458-469. Henderson, post-conviction, appeared on

the government’s brief as appellate counsel in the Seventh Circuit

brief filed in this case. Thus, Henderson was alternatively an

advocate, the sole government witness on the question of materiality

and later, again, an advocate. This Court might well wonder as to

the propriety of this.

13 Four (4) of the eight (8) Circuit Judges dissented and voted

to reverse (578 F.2d 1219-23). The thrust of the dissenting judges

seem to indicate that the witness was entitled to inspect his own

grand jury testimony so as to allow recantation under 18 U.S.C.

§1623(d) ... 578 F.2d 1220-1223.

15

grand jury investigation. If he was not, and if the govern-

ment did not intend to indict him, let the government ad-

vise this Court what government counsel meant when he

told the petitioner that the petitioner could not get his

own testimony ‘‘at this time’’ (Cf., Clavey, 565 F.2d at

120-124; Clavey en banc, 578 F.2d 1220-23 and U.S. v.

Crocker, 568 F.2d 1049 (8rd Cir., 1977) ... at 1053-1056).'*

Under this question the petitioner respectfully urges that

this writ be granted and the question be considered along

with the Clavey case, #78-120 (1978).

(3) Whether a perjury indictment and conviction un-

der 18 U.S.C. §1623 can survive judicial scrutiny where

the sole testifying witness on the subject of “materiality

of the grand jury inquiry” was the Assistant U. 8. Attor-

ney who was responsible for presenting evidence to the

grand jury?

(a) Whether the petitioner at bar was denied his

Fifth Amendment right not to suffer a federal criminal

conviction “without due process of law” and his Sixth

Amendment right to have “compulsory process for ob-

taining witnesses in his favor” where the trial court totally

refused the petitioner at bar any access whatsoever to the

grand jury transcripts??

(b) Whether the government may have the benefit of

a federal criminal conviction where the charge is perjury

under 18 U.S.C. §1623 . . where absolutely no court has

ever seen any of the grand jury testimony (other than the

petitioner’s) ??

In Crocker the Court seemingly decided that Crocker was a

grand jury target and set forth certain “tests” as to target vel non

(568 F.2d at 1054-55).

16

(c) Whether a perjury indictment under 18 U.S.C.

§1623 can survive the review of this Court where the sole

alleged perjury, before a federal grand jury, is the dif-

ference between a series of undisclosed tape recordings as

between the petitioner and his former client ... and the

petitioner’s grand jury testimony??

A smattering of factual background is realistically nee-

essary to understand the thrust of the petitioner’s posi-

tion. The taped conversation as between Camp and the

petitioner related, in part, to a series of conversations re-

lating to what might be considered counterfeit money and/

or fraudulent securities. In any event, either prior to or

during the tapes the government called off the ‘‘deals’’

(the deals were to have been between Camp and Nicasio)."’

The grand jury investigation did not commence until

May, 1975, some fourteen (14) months after the taped tele-

phone calls. As to the materiality of any of the Camp-

petitioner taped conversations, only the U.S, Attorney, as

a trial witness, testified as to materiality. Over objection,

the U.S. Attorney (now a witness as opposed to an advo-

cate) told the trial judge as follows:

By Mr. Ward:

Q. Now, Mr. Henderson, prior to Mr. Edelson ap-

pearing before the grand jury, what information had

come to your attention as an attorney assisting the

grand jury concerning any relationship of Mitchell

Edelson concerning that investigation?

Mr. Gerber: Your Honor, I’m going to object to

the form of that question. I think he ought to state

17 Nicasio was not charged by the grand jury with any offense

whatsoever, According to U.S. Attorney Henderson Nicasio was

the “subject” of the investigation (Tr. 367-8). As to the govern-

ment calling off any Camp-Nicasio ‘‘deals”, compare Tr. 703-4, 724,

737, 739, 754.

ee

oe

17

the question and get an answer instead of asking for

Mr. Henderson’s conclusions, or versions of them.

The Court: What would be the purpose of the wit-

ness telling us what was in his mind at the time, coun-

sel? I don’t understand where you’re going.

Mr. Ward: We go the question of the materiality

of the questions that were asked of Mr. Edelson dur.

ing his appearance in the grand jury.

Mr. Gerber: Isn’t that a question of law?

Mr. Ward: It’s necessary to have facts in order

to—

The Court: We have to know what the questions

were material to.

You can tell us generally. What were you investi-

gating and what information did you have that you

believed connected Mr. Edelson to it?

The Witness: The grand jury at that time was in-

vestigating violations of the law concerning stolen

securities, such as interstate transportation of stolen

securities, possession of stolen securities, aiding and

abeting, conspiracy, and also investigating the statute

dealing with possession and dealing with counterfeit

currency, the printing of counterfeit currency, again,

aiding and abeting and possible conspiracy charges.

The information that was available at that time—

Mr. Edelson: I would object to the witness going

on without a question.

The Court: It’s overruled, he’s answering the ques-

tion I asked him. Go ahead.

The Witness: The information that was available

at that time connected Mr. Edelson to possible involve-

ment with those violations were the tape recordings,

of which I was aware and which I testified about previ-

ously in the suppression hearing; the conversation that

I had with Special Agent Cozza involving the meeting

between Mr. Camp and Mr. Edelson in February of

a a i a sh ae |

18

1974; and also had discussed generally the involve-

ment of Mr. Edelson with Mr. Camp himself prior to

Mr. Edelson’s appearance before the grand jury.

The Court: The subject of the grand jury investi-

gation at that time was whom?

The Witness: The subject of the grand jury in-

vestigation, your Honor, was Vito Nicasio. (Tr. 366-

368)

That, if it please this Court, was the sole testimony

offered during this trial as to ‘‘materiality’’. Petitioner,

was not afforded the opportunity to present any evidence

whatsoever that either his testimony and/or the tape re-

cordings were not ‘‘material’’ to the grand jury investiga-

tion. During the course of the trial it turned out that

there were different sets of transcripts (from the tapes)

and the defendant, at trial, urges the Court to ascertain

which transcripts the grand jury had before it. At that

point the trial court REFUSES TO CONSIDER WHAT

THE GRAND JURY HAD BEFORE IT (Tr. 716).

In petitioner’s question 1, ante, we reviewed the conflict

as between the Third Cireuit and the Fifth and Seventh

Circuits (that is to say, the question of how a $1623 indict-

ment must be framed, particularly where, as here, the

grand jury had only petitioner’s testimony vs. earlier

taped conversations as between the government informer

(not testifying before the grand jury) and the petitioner).

Now, during trial, the court refuses to consider what the

grand jury actually had before it and considers only the

testimony of the U.S. Attorney as to how, if at all, the peti-

tioner’s testimony was material to the grand jury inquiry.

Interwoven is the problem that the petitioner was at all

times not only denied access to the grand jury materials

(other than his own testimony, post-indictment) but, fur-

ther, petitioner was denied the opportunity to either speak

19

to or subpoena any of the grand jurors or the official court

reporter. We view the combination of these factors to be

absolute denials of Fifth and Sixth Amendment protec-

tions. Under the Sixth Amendment the accused has the

right to have compulsory process for obtaining witnesses

in his favor. Clearly, petitioner was denied that precious

right. The corollary proposition is simply that this Court

will not sanction a conviction which violates the Fifth

Amendment ‘‘without due process of law’’. The case at

bar demonstrates glaring violations of both constitutional

Amendments.

Materiality, under 18 U.S.C. $1623, must be alleged and

proved, U.S. v. Howard, 560 F.2d 281 at 284-85 (7th Cir.,

1977). The traditional ‘‘and honest’’ way of proving up

the materiality of the grand jury inquiry is to call a mem-

ber of the grand jury who would be in a position to testify

as to what the grand jury was investigating and how, if

at all, the testimony of the witness misled or otherwise

impeded the progress of the grand jury inquiry (cf., U.S.

v. Parker, 244 F.2d 943 at 951 (7th Cir., 1957).!® To use an

advocate as a witness (the A.U.S.A. later again became

the advocate in that his name appears as one of the govern-

ment attorneys writing the appellee’s brief for the Court

of Appeals for the Seventh Circuit in the instant case) on

what is realistically the most crucial question (materiality)

can hardly comport with due process especially where

‘‘other non-interested witnesses are readily available.'” We

ean safely reflect that the U.S. Attorney testifying as to

materiality was hardly a disinterested witness. In the

recent decision, In Re Grand Jury Subpoenas, 573 F.2d

18 See also, U.S. v. Marchisio, 344 F.2d 653 (2nd Cir., 1965).

19 The government, while opposing the defense motions for inter-

viewing grand jury witnesses laid no claim to the unavailability of

any grand jurors (R. 59-62).

.20

936 (6th Cir., 1978) the majority of the Court held that the

appointment of an I.R.S. Attorney to conduct a grand jury

investigation was improper and the I.R.S. attorney was

disqualified from conducting the grand jury investigation

(573 F.2d 941-945).2° That Court put the various proposi-

tions as follows:

‘‘GM further complains about the presence of Pilia-

ris in the secret hearings before the grand jury where

it would be possible for him to have access to evidence

which IRS could use in civil matters against GM, not

only with respect to its tax return for 1972, but also

with respect to its returns for subsequent years, Pili-

aris has been placed in a conflicting and intolerable

position.

It should also be remembered that the function of

the prosecutor, as was held in United States v. Calan-

dra, supra, in addition to obtaining an indictment

where probable cause has been shown that a crime has

been committed, is also to protect citizens against un-

founded criminal prosecution.

In Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364,

1373, 8 L.Ed.2d 569 (1962), Mr. Chief Justice Warren,

writing the opinion for the Court, described the fune-

tion of a grand jury with respect to its protection of

the rights of citizens, in stronger terms, stating:

‘Historically, this body has been regarded as a

primary security to the innocent against hasty,

malicious and oppressive persecution; it serves

the invaluable function in our society of standing

between the accuser and the accused, whether the

latter be an individual, minority group, or other,

to determine whether a charge is founded upon

reason or was dictated by an intimidating power

or by malice and personal ill will.’

In the present case the worry of GM is that Piliaris

has an axe to grind and is more interested in justifying

his previous investigations, his recommendations, and

20 Dissenting opinion noted.

21

the conduct of IRS agents than in protecting GM

against unfounded criminal prosecution. It is our duty

to determine these important questions now, and not

to await review of a possible protracted criminal trial,

and not to permit the conduct of grand jury proce-

dures for civil purposes.

In a hearing in the District Court the following ex-

change took place between the Court and the Govern-

ment attorney:

‘The Court: Why can’t you take any Internal

Revenue Service lawyer and make him a special

attorney by appointment and turn the grand jury

ri over to him, let him run the whole

show?

Mr. McBride: Conceivably that could be done.

The Court: You are saying that would be ap-

propriate?

Mr. McBride: Yes, your Honor, for this rea-

son—

The Court: I ought not be concerned with it?

Mr. McBride: Again for this reason that the

law, Section 515 and 543 of Title 28, does not put

any limits on the authority of the attorney general.

It puts him in control and GM, nor the Court, if I

may be forgiven to say so, are not, I think, in a

position, and GM should not be able to dictate who

it will have conducting this grand jury or to assist

in the conduct of this grand jury as it has also

been trying to dictate who would be persons to

assist the government attorneys and suggesting

ror we have other people.*’’’’ (573 F.2d at 942-

4

*1Tt does seem to be anomalous that the attorney for the person

being investigated is not permitted to appear before the grand jury

and represent his client but is excluded, while here the attorney on

the payroll of the Agency instigating the investigation was authorized

net only to appear but also to conduct the grand jury proceeding.

We do not believe it to be appropriate for either of these attorneys

to appear and represent their respective clients before the grand

jury.” (573 F.2d at 943)

22

In reviewing our Sixth Amendment claim we borrow a

quotation from this Court. In Davis vy. Alaska, 415 U.S.

308 (1974) a majority of this Court held that the Sixth

Amendment was violated where the defendant did not have

an opportunity to cross-examine a key prosecution witness

regarding the prosecution witness’ juvenile record. In

pertinent part, this Court viewed the Sixth Amendment

as follows:

The Sixth Amendment to the Constitution guaran-

tees the right of an accused in a criminal prosecution

‘*to be confronted with the witnesses against him.’’

This right is secured for defendants in state as well

as federal criminal proceedings under Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13 L.Md.2d 923 (1965). Con-

frontation means more than being allowed to confront

the witness physically. ‘‘Our cases construing the [con-

frontation] clause hold that a primary interest secured

by it is the right of cross-examination.’’ Douglas v.

Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13

L.Ed.2d 934 (1965). Professor Wigmore stated:

‘‘The main and essential purpose of confronta-

tion is to secure for the opponent the opportunity

of cross-examination. The opponent demands con-

frontation, not for the idle purpose of gazing upon

the witness, or of being gazed upon by him, but

for the purpose of cross-examination, which can-

not be had except by the direct and personal put-

ting of questions and obtaining immediate an-

swers.’’ (Emphasis in original.) (415 U.S. at 315-

16)

Of course, petitioner was denied the opportunity to ex-

amine any of the grand jurors (on the question of ma-

teriality). Even more damning is (was) the trial court’s

position during the cross-examination of the U.S. Attorney

who testified as to the materiality of the grand jury in-

quiry. The Court DISALLOWED petitioner’s trial coun-

sel the opportunity, by way of cross-examining the U.S.

23

Attorney, to at all explore the materiality question. In

fact, the trial court sustained all objections to ‘‘that line

of questioning’’.”

On the issue as to whether the petitioner at bar was de-

nied the Sixth Amendment right to compel the attendance

of witnesses and offer their testimony, we urge this Court’s

opinion in Washington v. Texas,” as dispositive authority

for the petitioner at bar. This Court, while reversing a

state murder conviction urged the ‘‘compulsory process’’

aspect of the Sixth Amendment as follows:

The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms

the right to present a defense, the right to present the

defendant’s version of the facts as well as the prose-

cution’s to the jury so it may decide where the truth

lies. Just as an accused has the right to confront the

prosecution’s witnesses for the purpose of challenging

their testimony, he has the right to present his own

witnesses to establish a defense. This right is a funda-

a element of due process of law. (388 U.S. at 18,

Petitioner’s attack on the proceedings low is just as

simple as his citation to Washington, ante. He wanted wit-

nesses and the Court denied him that precious right. The

issue to be there resolved (at the trial court) was whether

his statements to the grand jury (assuming, arquendo,

their falsity) were material to the inquiry of that grand

jury. We are hard-pressed to believe that the constitution-

al mandates were not violated when petitioner was utterly

22 The trial court, from Tr. 458 to 469 allowed the proffered ques-

tions on materiality to stand as the defendant's “offer of proof” in

that the objections were continuously proffered and sustained. There

is realistically ‘“‘no probing” of the materiality issue (Tr. 458-469;

482-485).

3 388 U.S. 14 (1967).

24

denied both his opportunity to cross-examine the sole gov-

ernment witness on the issue, and, further, was prohibited

from presenting witnesses on his own behalf to counter

that testimony (on materiality) as proffered by the U.S.

Attorney (as the trial witness on materiality). We re-

spectfully conclude this issue by urging that the petition

be granted and the conviction be set aside.

(4) Whether petitioner demonstrated a sufficient “par.

ticularized need” under this Court’s decisions in Pittsburgh

Plate Glass v. U.S., 360 U.S. 395 (1959) and Dennis v. U.S.,

384 U.S. 855 (1966) so as to compel disclosure of the grand

jury transcript ... if not to the petitioner then, at least

to the trial court, in camera??

(a) Cana decision affirming a conviction stand where

the Court of Appeals found no request for in camera in.

spection of the grand jury testimony but, the record clear-

ly shows the contrary?? Are these questions (1 through 4)

sufficient to invoke the supervisory powers of this Court

under Supreme Court Rule 19(b)??

In Pittsburgh Plate Glass v. U.S." this Court affirmed

a federal conviction relating to conspiring to violate the

Sherman Act. As relating to grand jury testimony and

particularized need this Court found that the record did

not bear out the allegation that the trial judge failed to

examine grand jury transcripts. In pertinent part, a then-

majority of this Court put the issue as follows:

It does not follow, however, that grand jury minutes

should never be made available to the defense. This

Court has long held that there are occasions, see

United States v. Procter d& Gamble. supra, 356 U.S. at

683, 78 S.Ct. at page 987, when the trial judge may in

the exercise of his discretion order the minutes of a

grand jury witness produced for use on his cross-

*4 360 U.S. 395 (1959).

ee

20

examination at trial. Certainly ‘‘disclosure 1s wholly

proper where the ends of justice require it.’’ United

States v. Socony-Vacuum Oil Co., supra, 310 U.S. at

page 234, 60 S.Ct. at page 849.

The burden, however, is on the defense to show that

‘*a particularized need’’ exists for the minutes which

outweighs the policy of secrecy. We have no such show-

ing here, As we read the record the petitioners failed

to show any need whatever for the testimony of the

witness Jonas. They vontended only that they had a

‘‘right’’ to the transcript because it dealt with subject

matter generally covered at the trial. Petitioners indi-

cate that the trial judge required a showing of contra-

diction between Jonas’ trial and grand jury testimony.

Such a preliminary showing would not, of course, be

necessary. While in a colloquy with counsel the judge

did refer to such a requirement, we read his denial as

being based on the breadth of petitioners’ claim. Peti-

tioners also claim error because the trial judge failed

to examine the transcript himself for any inconsisten-

cies. But we need not consider that problem because

petitioners made no such request of the trial judge.

The Court of Appeals apparently was of the view that

even if the trial judge had been requested to examine

the transcript he would not have been absolutely re-

quired to do so. It is contended here that the Court of

Appeals for the Second Circuit has reached a contrary

conclusion. United States v. Spangelet, 258 F.2d 338.

Be that as it may, resolution of that question must

await a case where the issue is presented by the rec-

ord. (360 U.S. 400-401) *

25 Four (4) members “of this Court, in a strongly worded dissent

urged that the failure to compel production of the grand jury testi-

mony compelled a new trial (360 U.S. 402-410). In the case at bar

THERE CAN BE ABSOLUTELY NO QUESTION THAT THE

PETITIONER SOUGHT IN CAMERA INSPECTION OF

THE GRAND JURY MINUTES PRIOR TO TRIAL (R. 21,

Discovery Motion, pg. 2, (2; R. 42, R. 83, pg. 8, 914. To the extent

that the Court of Appeals found no such request in the trial record,

the opinion is clearly erroneous, 581 F.2d at 1291-92.

26

In Dennis v. U.S.,7° this Court reversed a series of con-

spiracy, et seq. convictions and discussed the production

of grand jury testimony vel non and ‘‘particularized

need’’, While reversing, this Court variously observed as

follows:

Certainly in the context of the present case, where

the Government concedes that the importance of pre-

serving the secrecy of the grand jury minutes is mini-

mal and also admits the persuasiveness of the argu-

ments advanced in favor of disclosure, it cannot fairly

be said that the defense has failed to make out a ‘‘par-

ticularized need.’’ (384 U.S. at 871-2)

In any event, ‘‘it will be extremely difficult for even

the most able and experienced trial judge under the

pressures of conducting a trial to pick out all of the

grand jury testimony that would be useful in impeach-

ing a witness.’’ Pittsburgh Plate Glass, 360 U.S., at

410, 79 S.Ct., at 1246 (dissenting opinion). Nor is it

realistic to assume that the trial court’s judgment as

to the utility of material for impeachment or other

legitimate purposes, however conscientiously made,

would exhaust the possibilities. In our adversary sys-

tem, it is enough for judges to judge. The determina-

tion of what may be useful to the defense can prop-

erly and effectively be made only by an advocate. (384

U.S. at 874-875)

o @ 6

Because petitioners were entitled to examine the

grand jury minutes relating to trial testimony of the

four government witnesses, and to do so while those

witnesses were available for cross-examination, we re-

verse the judgment below and remand for a new trial.

It is so ordered. (384 U.S. at 875)

The question of ‘‘particularized need’’ has oft been re-

viewed. In United Staies v. Duffy, 54 F.R.D. 549 (N.D.,

Ill., 1972):

2% 384 U.S. 855 (1966).

27

‘*Because of the nature of the charge in the case at

bar, perjury before the grand jury, there is a particu-

larized need for the production of the grand jury tes-

timony of those witnesses whom the government will

present at trial. Whether the defendant has perjured

himself will depend on a comparison of his testimony

with the testimony of other witnesses which will pre-

sumably be the same at the trial as it was before the

grand jury. Nuances in the testimony of those wit-

nesses may be important. The government has access

in advance of trial to both the testimony of defendant

and the testimony of the other witnesses and fairness

requires that the defendant have like access to the

same testimony.’’ (54 F.R.D. at 550-551).

Lest there be no mistake, the grand jury returning the

instant indictment had been disbanded long prior to the

trial. In State of Wis. v. Schaffer, 565 F.2d 961 (7th, 1977),

the Court ordered the production of grand jury testimony

albeit the particular grand jury materials apparently did

not include the testimony of the State trial witnesses (Id.

at 967). While compelling disclosure, in part, the Court

stated:

‘*. . . We are aware that demonstrating a particu-

larized need is often a difficult task and applying this

standard to a given set of facts is an inexact process.

Courts have found that a particular need has been

shown when disclosure is requested to impeach a wit-

ness. United States v. Procter & Gamble, supra, 356

U.S. at 683, 78 S.Ct. 983, to attack deposition testi-

mony, Atlantic City Electric Co. v. A.B. Chance Co.,

313 F.2d 431 (2d Cir. 1963), or to refresh a witness’

recollection about matters he previously testified to

before a grand jury, Baker y. United States Steel

Corp., 492 F.2d 1074, 1079 (2d Cir. 1974).’’ (565 F.2d

966-967).

28

‘*Once a grand jury has completed its work, indict-

ments having been brought, the reasons for secrecy

become less compelling. State of Illinois v. Sarbaugh,

552 F.2d 768, 775 (7th Cir., 1977). The grand jury in

question sat between June and November of 1974, and

even though the government asserts that some of the

matters relating to that grand jury investigation have

not been concluded, it has undoubtedly completed its

primary task. ‘[A]fter the grand jury’s functions

are ended, disclosure is wholly proper where the ends

of justice require it.’’ Socony-Vacuum Oil Co., supra,

310 U.S. at 234, 60 S.Ct. at 849.’’ (565 F.2d at 967) *7

It is respectfully submitted, that the petitioner at bar

demonstrated the requisite ‘‘particularized need’’ and

therefore both the trial court and the Court of Appeals

erred while concluding to the contrary. What greater par-

ticularized need could there be? In the instant case the

trial transcripts reflect that Edelson only actually gave

testimony before the grand jury that returned the instant

indictment (the never-indicted alleged subject, Nicasio as-

serted a testimonial privilege and the only other witness

apparently appearing was a Secret Service Agent, Juris,

Tr. 447-452). Whatever ‘‘particularized need’’ may or may

not mean it is respectfully urged that the petitioner at bar

made a threshold showing and to deny ANY COURT OR

THE PETITIONER ACCESS TO THE GRAND JURY

MATERIALS ABSOLUTELY CONTRAVENES THE

CONSTITUTIONAL PROTECTIONS GUARANTEED

TO ANY DEFENDANT IN A FEDERAL CRIMINAL

27 In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234,

60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940), the Court said that “after

the grand jury’s functions are ended, disclosure is wholly proper

where the ends of justice require it.” While this staternent may

appear to have been limited by Procter & Gamble and Pittsburgh

Plate Glass, it was quoted with approval in Dennis, 384 U.S. at 870,

86 S.Ct. 1840.

29

TRIAL. In Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.,

1977) the Court reviewed, while granting limited grand

jury disclosure, the various justifications supporting the

policy of grand jury secrecy (id. at 774-778). The reasons

are set forth as follows:

‘*Courts have asserted five justifications in support

of the policy of grand jury secrecy: (1) to prevent the

escape cf those whose indictment may be contem-

plated; (2) to insure the utmost freedom to the grand

jury in its deliberations and to prevent persons subject

to indictment or their friends from importuning the

grand jury; (3) to prevent subornation of perjury or

tampering with the witnesses who may testify before

the grand jury and later appear at the trial of those

indicted by it; (4) to encourage free and untrammeled

disclosure by persons who have information with re-

quest to the commission of crimes; and (5) to protect

the innocent accused who is exonerated from disclosure

of the fact that he has been under investigation, and

free from the expense of standing trial where there

was no probability of guilt. The dual purpose of these

justifications is to protect the integrity of ongoing

grand jury proceedings and to assure the effective

functioning of future grand juries.’’ **

Not a single justification at all appears for denying the

petitioner at bar the grand jury minutes or testimony. We

respectfully urge that under this issue (more properly,

question) that the petition be granted and the conviction

vacated with directions that petitioner be tried anew.

28 Loyola University of Chicago, L. J., Vol. #9, Summer, 1978,

pp. 984-1014, gives an in-depth review of the diminishing approach

to grand jury secrecy. The above “five (5) justifications” in sup-

port of grand jury secrecy are reproduced directly from the L.J.

article at pp. 987.

30

We have alluded to the supervisory powers of this Court.

We respecttfuily urge that they be invoked in favor of the

petitioner in this case. Putting the pieces of this frag-

mented puzzle together is no easy task. The government

informer, Camp (petitioner’s erstwhile client) did not tes-

tify before the grand jury returning the instant perjury

indictment. The government witness (the U.S. Attorney)

was unclear as to which tape recordings were played to

the grand jury and which transcripts they may have seen

(Tr. 451-455). The trial court refused to consider what

the grand jury returning the instant indictment had before

it (Tr. 716). Only the U.S. Attorney testified as to what

the grand jury had before it and the defense was at All

times herein pertinent absolutely denied any and all ac-

cess to the grand jury record. The Court of Appeals, while

affirming the instant conviction, erroneously found that no

request for the grand jury testimony was made (581 F.2d

1291-1292). Even further, the Court of Appeals, while

affirming the instant conviction, found that the U.S. Attor-

ney was under no dwuty_to alert the petitioner to the fact

that he had been cavesdropped and that the actual ques-

tions being proffered to him by the U.S. Attorney were

gleaned from the tapes and transcripts which the U.S.

Attorney reviewed before questioning petitioner at the

grand jury (Tr. 468). Even further, there was approxi-

mately fourteen (14) odd months as between petitioner’s

grand jury appearance and the surreptitiously taped tele-

phone conversations (March and April, 1974 were the

pertinent ‘‘taping dates’’) and petitioner appeared before

the grand jury in May, 1975, Of course, the Court of Ap-

peals for the Second Circuit disapproved conduct of this

kind, U.S. v. Jacobs, 531 F.2d 87 at 89 (2nd Cir., 1976); on

remand, 547 F.2d 772 (2nd Cir., 1976) .. . cert. dismissed,

as improvidently granted, U.S. v. Jacobs, ........ eb i canciinns

31

98 S.Ct. 1873 (1978). However, the Court of Appeals in

the instant case found that the prosecutor had no duty to

alert the defendant (present petitioner) to the tapes and

transcripts. For that proposition the Court of Appeals,

581 F.2d at 1293 cited U.S. v. Del Toro, 513 F.2d 656 (2nd

Cir., 1975) as authority for the prosecution’s ‘‘lack of

duty’’» HOWEVER, IN DEL TORO AS THE WITNESS

WAS TESTIFYING BEFORE THE GRAND JURY THI

FOLLOWING IS CONSPICUOUS IN THE DEL TORO

OPINION:

When the Assistant conspicuously put some boxes of

tape recordings on the table, Kaufman said he would

like to change his testimony and admitted that Morales

had asked him for money. (513 F.2d at 665; emphasis

ours).

Thus, the very authorities cited as suggesting no duty

on the prosecutor to alert the grand jury witness...

demonstrates that the prosecutor in that case ... did ex-

actly what the prosecutor did not do in this case (alert the

petitioner to the previously recorded telephone conversa-

tions which were the sine qua non of the instant indict-

ment; Petitioner’s indictment is reproduced at App. D,

infra). The haunting features of these tapes, transcripts

(and the government’s denial of their very existence dur-

ing the trial in U.S. v. Camp and Disston, 73 CR 881)...

are a demonstration of the pregnant possibility of the

type of prejudice resulting from the government playing

‘*noker’’ with the criminal justice system.

In Warduis v. Oregon, 412 U.S. 470 (1973) this Court

discussed both ‘‘the poker game’’ and ‘‘due Process’’

while reversing a state narcotic conviction. The Court

stated:

‘¢ . The adversary system of trial is hardly an end

itself; it is not yet a poker game in which players

32

enjoy an absolute right always to conceal their cards

until played. We find ample room in that system, at

least as far as ‘due process’ is concerned, for (a rule)

which is designed to enhance the search for truth in

the criminal trial by insuring both the defendant and

the State ample opportunity to investigate certain

facts crucial to the determination of guilt or inno-

cence,’’ (412 U.S. at 474).

We close this petition with a statement by Mr. Justice

Frankfurter:

No single one of these circumstances alone would in

my opinion justify a reversal. I cannot escape the

conclusion, however, that in combination they bring

the result below the Plimsoll line of ‘‘due process.’’ *

CONCLUSION

In that each question presented reflects substantial and

important questions that merit consideration by this Court

because of their impact on federal criminal trials, it is

respectfully urged that this Petition be granted and that

this Court review cach of the four (4) questions presented;

and thereafter vacate the instant conviction with directions

that the case be tried anew.

Respectfully submitted,

AuLtan A. ACKERMAN, Esq.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

For Petitioner,

Mitchell Edelson, Jr.

2° Fikes v. Alabama, 352 U.S. 191 at 199 (1957).

APPENDIX

. s

APPENDIX A

Zu the

United States Court of Appeals

For the Seventh Circuit

No. 77-1613

Unitep States or AMEnica,

Plain‘ iff-Appeliee,

Mircuett Epetson, Jr.,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75 CR 630--Frank McGarr, Judge.

Argued June 1, 1978—Decided August 30, 1978

Before Pei, Tone, and Baver, Circuit Judges.

Per Curiam. On October 22, 1975, the defendant- appel-

lant Mitchell Edelson, Jr., was charged with violating 18

U.S.C. § 1623 by making false material statements to a

federal grand jury that was investigating the involvement

of one Vito Nicasio in the transfer of stolen securities.

The Government’s evidence at trial consisted largely of

App. 2

seven taped conversations that had been recorded by an

informant named Roger Camp. On the basis of these re-

cordings, the trial court found the defendant guilty on

April 4, 1977. From this judgment I*delson now appeals.

In the first of several arguments on appeal, Edelson

claims that the district court improperly denied his pre-

trial request for the production of certain grand jury ma-

terials. While the appellant did receive a transcript of

his own testimony, he insists that the additional materials

might have disclosed evidence of prosecutorial misconduct

or enabled him to show that his own assertions were not

‘‘material’’ to the grand jury’s investigation,

A defendant, however, is not entitled to a disclosure of

grand jury proceedings without some demonstration of

‘‘narticularized need,’’ Pittsburgh Plate Glass Company

v. United States, 360 U.S, 895, 400 (1959), and such a

demonstration has not been made in this case. To begin

with, Edelson has not pointed to anything in the record

which might suggest that the prosecution engaged in im-

proper conduct before the grand jury. His claims on

this point, therefore, amount to nothing more than un

supported speculation, and this is not enough to consti-

tute a ‘‘particularized need.’’ See United States v. Bitter,

874 F.2d 744, 748 (7th Cir, 1967); United States v. Chase,

872 F.2d 453, 466 (4th Cir.), cert. denied, 387 U.S. 907

(1967),

If Edelson wished to determine whether the grand jury

minutes contained any information inconsistent with the

evidence offered by the government to meet its burden of

proof on materiality, the proper procedure would have

been to ask the district judge to examine the minutes in

camera and report on the record whether they contained

App. 3

such inconsistent information. If they did, the Govern-

ment would then be forced to elect whether to acquiesce

in disclosure or dismiss the indictment. Edelson made

no request for in camera inspection by the judge. It is

apparent from the record in any event that his omission

did not prejudice him, because the questions and answers

concerning his knowledge of possible stolen securities and

counterfeit money transactions were relevant to the grand

jury’s inquiring into possible violations of the law relat-

ing to stolen securities and counterfeit currency,

The appellant next attacks the admissibility of the seven

taped conversations on the grounds that 18 U.S.C, § 2511

(2)(d) is void for vagueness, The statute provides;

‘It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a

wire or oral communication where such person is a

party to the communication or where one of the par-

ties to the communication has given prior consent to

such interception unless such communication is in-

tercepted for the purpose of committing any criminal

or tortious act in violation of the Constitution or laws

of the United States or any State or for the pur-

pose of committing any other injurious act.’’

We note at the outset that it is by no means clear that

Edelson has standing to raise the vagueness argument

since the statute does not charge criminal violations against

the non-recording party to the recorded conversation, But

assuming, arguendo, that Edelson does have standing, we

are not persuaded by the appellant’s claim that the terms

‘‘criminal,’’ ‘tortious’? and ‘injurious act’? are so vague

that ‘‘men of common intelligence must guess at [their]

meaning and differ as to [their] application.’’ Connally vy,

General Construction Co,, 269 U.S. 385, 391 (1965). On the

App. 4

contrary, we find the statute to be sufficiently explicit to

‘tinform those who are subject to it what conduct on their

part will render them liable to its penalties.’ Jd.

We also cannot agree with Edelson’s claim that the

Government’s conduct in the circumstances of this case

was so ‘‘outrageous’’ as to constitute a denial of due

process rights, On this point, the appellant appears to

argue that he was ‘‘entrapped’’ by the Government be-

cause he was not informed of his ‘‘target’’ status before

the grand jury, nor was he informed that the Government

had in its possession the recordings of his conversations

with Camp.

The district court found, however, that the ‘‘target’’ of

the grand jury’s investigation was not Edelson but Vito

Nicasio, and we see no reason for disturbing this finding

on appeal. The mere fact that the grand jury interroga-

tion focused on some of the appellant’s specific activities

does not mean that he had hecome the target of the in-

vestigation, for those activities were directly related to

Nicasio’s alleged involvement in the transfer of stolen or

fraudulent securities. Equally if not more important,

however, the Supreme Court has recently determined that

the failure to inform a grand jury witness that he is a

target of the investigation does not alone amount to a

due process denial which could excuse perjury, United

States v. Mandujano, 425 U.S, 564 (1976). Thus, even if

Edelson ‘‘was indeed a ‘putative defendant,’ that fact

would have no bearing on the validity of a conviction for

testifying falsely.’’ 7d. at 583,

‘In this connection, Edelson also claims that the recorded conver-

sations were a tortious invasion of his privacy and thus did not com-

ply with the terms of § 2511(2)(d). It is quite clear, however, that

the conversations were not recorded “for the purpose of” invading

the appellant's privacy.

App. 9

Similarly, we cannot accept the appellant’s claim that

the prosecution was under an obligation to disclose the

existence of the taped conversations before questioning

him in the course of the grand jury proceedings. As the

Second Circuit has held:

‘There is no duty on the prosecution to tell a Grand

Jury witness what evidence it has against him or to

give him repetitive warnings that it is his duty to

tell the truth when he has sworn upon his oath to tell

the truth. It is not an unfair dilemma to put upon

’ prospective defendant to require him to claim [the

Fifth Amendment] privilege or to tell the truth.’’

United States v, Del Toro, 513 F.2d 656, 664 (2d Cir.

1975),

In sum, then, we find nothing remotely akin to ‘‘entrap-

ment’’ in the facts of this case. Edelson was not en-

couraged or solicited by the Government to commit per-

jury, but rather, was lawfully subpoenaed to answer ques-

tions about matters that were directly related to the grand

jury’s inquiry. The appellant was ‘‘free at every stage

to interpose his constitutional privilege against self-in-

crimination, but perjury was not a permissible option.’”

United States v. Mandujano,, supra at 584.

Finally, Edelson insists that the Government’s evidence

was insufficient to establish two necessary elements of a

$ 1623 offense; (1) the falsity of his statements before the

grand jury and (2) the materiality of his statements to the

grand jury’s investigation. The first claim warrants little

discussion. In the course of the grand jury proceedings,

Edelson gave the following responses:

Q. ‘Did you ever tell Mr. Camp that Mr. Nicasio

would be hesitant about bringing merchandise, se-

2 It should perhaps be noted that the appellant was advised of his

constitutional rights on three occasions in the course of his grand

jury appearance,

App. 6

curities, or any type of property whatsoever across

state lines, or that he was not going to cross the

state lines with the merchandise or property?’’

A. ‘‘I did not say such a thing to Mr. Camp.’’

Q. ‘Did you ever agree with Roger Camp to make

arrangements for the exchange of said merchandise,

whatever it may be, in a place outside your office that

‘would not and could not be bugged’?’’

A. ‘No, I did suggest a place outside my office. I

suggested they go to the American National Bank.’’

On the other hand, the Government’s tape recordings con-

tained the following statements (among others) :

Edelson: ‘‘But he [Nicasio] is not coming to Chi-

cago, I’ll tell you that right now, he’s not going to

cross the state line with it. You have to go there.

But I’m telling you right now there is no way in hell

he’s going to transport this stuff.’’

Edelson: ‘‘He [Nicasio] is thinking over how he

can handle it without taking the danger of doing any-

thing in the mail or having anything on his person when

he crosses the state line.’’

Camp: ‘‘Well I assume that where we’re going to

do it is your office, right?’’

Edelson: ‘‘Probably not.’’

Camp: ‘Probably not, okay. But I’m a little leery

myself, I understand the nature of the merchandise,

it’s a little warm, but which doesn’t constitute a

problem but I want to be as cautious as the next guy,

okay?’’

Edelson: ‘‘You want me to make sure that the ar-

rangements are made, that the meeting takes place

in a place that will not and cannot be bugged.’’

Camp: ‘‘Yeah,’’ .

Edelson: ‘‘Alright, that’s simple. Good-bye.’’

App. 7

We have no difficulty in concluding that, when taken

with the testimony at trial, this evidence is sufficient to

support the district court’s finding that Edelson know-

ingly gave false answers to the grand jury interrogation.

By the same token, we must conclude that the appel-

lant’s responses were ‘‘material’’ to the grand jury’s in-

vestigation. The grand jury was apropriately concerned

with Vito Nicasio’s possible involvement in the transfer of

stolen or fraudulent securities, and it had ample reason

to believe that Edelson was directly involved with Nicasio

in this activity. If Edelson had responded truthfully to

the questions, a follow-up inquiry might very well have

disclosed information that would have inculpated Nicasio.

It is quite apparent, therefore, that the appellant’s an-

swers had ‘‘the natural effect or tendency to impede, in-

fluence or dissuade the grand jury from pursuing its in-

vestigation,’’ United States v. Devitt, 499 F.2d 135 (7th

Cir. 1974), and were thus ‘‘material’’ to the grand jury’s

inquiry.

We have examined the appellant’s other arguments and

find them to be without merit. The judgment of the dis.

trict court is therefore

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 8

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 13, 1978

Before

Hon, Wiser F. Pett, Jr., Circuit Judge

Hon. Pumire W. Tone, Circuit Judge

Hon. Wiiuiam J. Bauer, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

No. 77-1613 vs.

MITCHELL EDELSON, JR.,

Defendant-A ppellant.

On Petition for Rehearing and Suggestion for

Rehearing En Bane

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed in the above-entitled

cause by Defendant-Appellant Mitchell Edelson, Jr., no

judge in active service has requested a vote thereon, and

all of the judges on the original panel have voted to deny

a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby,

DENIED.

a

App. 9

APPENDIX C

IN THE

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

No, 77-1353

Unirep States or AMERICA,

Plaintiff-A ppellee,

vs.

Grorrrey Disston,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 73 Cr 881—Thomas R. MeMillen, Judge.

Arcugep June 1, 1978—Dectpep Avoustr 15, 1978

Before Pe.ii, Tone, and Baver, Circuit Judges.

Pewi, Circuit Judge. This is an appeal from the dis-

trict court’s orders denying without an evidentiary hear-

ing the defendant’s (Disston) motion for new trial on the

basis of newly discovered evidence, Fed. R. Crim. P. 33,

and denying his petition for writ of habeas corpus, 28

U.S.C, § 2255. Disston seeks relief on the ground that he

was denied his Sixth and Fourteenth Amendment rights

during his trial in which he was convicted for mail fraud.’

' Disston’s conviction was affirmed on direct appeal in an un-

published order. United States v. Disston, 525 F.2d 694 (7th Cir.

1975).

App. 10

He first argues that the Government violated his rights

by failing to inform him that his co-defendant, Roger

Camp, was a Government informer. This, he argues,

hindered his ability to succeed in his pre-trial motion to

sever, hindered his ability to cross-examine Camp, and re-

quired him to stand trial with a co-defendant who may have

offered the Government information regarding his (Diss-

ton’s) trial strategy. Second, he argues that he was de-

nied his Fifth Amendment due process rights because the

Government refused to provide him tape recordings of

Camp’s conversations.

Because of these alleged violations, Disston requests

that this court at the very least remand for an eviden-

tiary hearing to determine, inter alia, whether Camp’s

informer status prejudiced his trial and whether the Gov-

ernment knowingly or in bad faith failed to turn over the

tape recordings and failed to disclose Camp’s informer

status. The Government, however, now concedes that

the district court should have granted an evidentiary hear-

ing,” and we agree, See, e.g., Weatherford v. Bursey, 429

U.S. 545 (1977); United States v. Esposito, 523 F.2d 242

(7th Cir, 1975) ; United States v. Gerard, 491 F.2d 1300 (9th

Cir, 1974); Caldwell vy. United States, 205 F.2d 879 (D.C.

Cir. 1953), Disston seeks alternatively that we remand

for a new trial or with instructions to dismiss the indict-

ment. We must, therefore, examine the Government’s con-

7In his original brief in the present appeal, Disston prayed in

the alternative for remand for dismissal or new trial, or remand for

an evidentiary hearing, Subsequent to the Government's concession

as to the necessity for an evidentiary hearing, the Disston reply

brief prayer was narrowed to dismissal or new trial. We do not

regard the omission as constituting a complete abandonment of the

earlier requested alternative relief.

App. 11

duct to determine whether, on the basis of the record

now before us, we should conclude that the Government’s

conduct constitutes grounds for a new trial or dismissal of

the indictment. Although we view the Government’s con-

duct or misconduct as a whole, we will first address the

issue of Camp’s informer status, and then the Govern-

ment’s failure to disclose that status and to turn over the

tapes,

I. The Co-defendant Informer

If Disston’s co-defendant was a Government informer,

and if he obtained information prejudicial to Disston or

regarding Disston’s trial strategy which he then trans-

ferred to the Government, Disston’s conviction should be

reversed, See Caldwell v. United States, 205 F.2d 879

(D.C. Cir, 1953). The newly discovered evidence on which

Disston bases his claim for relief indicates at least that

Camp had met with Government agents and provided

them with some information. Although the evidence is

sufficient to label Camp an informer, it does not suggest

that Camp provided the Government with any information

that might prejudice Disston’s trial.

This, however, does not exonerate the Government vis-

a-vis Disston, because the Government never disclosed

Camp’s informer status and thus the district court was

never apprised of the scope of Camp’s relationship with

The newly discovered evidence includes testimony of Camp and

Government agents in United States v. French, 75 Cr 448 (N.D.

Ill.), and United States v. Edelson, 75 Cr 630 (N.D. Ill.), which

indicated Camp’s status as a Government informer, and tape record-

ings made by Camp of telephone conversations between himself and

Mitchel Edelson, an attorney, which Camp had provided to the Gov-

ernment, Edelson later represented Camp at trial.

App. 12

the Government. That Camp was a Government informer

during the same general time period that he was tried

with Disston, and that the Government failed to disclose

this fact, at least raises an issue of whether his relation-

ship with the Government may have prejudiced Disston.

A determination of this issue requires more facts and, there-

fore, an evidentiary hearing is appropriate, If the in-

formation Camp gave the Government was irrelevant to

the Camp-Disston trial and could not have prejudiced

Disston, then the fact that Camp and Disston were tried

together would not constitute reversible error.‘

II. The Government’s Non-disclosure of Evidence

The Government’s failure to disclose Camp’s informer

status and its failure to turn over the tapes of telephone

conversations between Camp and Edelson raised a dif-

ficult question of Government misconduct. Prior to trial,

Disston filed a discovery motion seeking recorded state-

ments of Camp. The district court granted the motion

on March 13, 1974.5. On April 30, 1974, Camp filed a pre-

trial discovery motion seeking electronically recorded con-

versations to which he was a party and this motion was

granted on June 13, 1974. Although the district court

granted these motions, the Government did not turn over

the tapes in question. The Government’s response through-

out the trial was that it was unaware of any such eaves-

dropping or electronic surveillance of Camp, and affidavits

* Disston filed a motion to sever on April 19, 1974 which was

denied on April 26, 1974.

® The district court granted the motion conditional upon Camp not

being a prospective Government witness, which he was not. See

Fed.R.Crim.P. 16(a)(2).

App. 13

to this regard were filed by the Assistant U.S. Attorney

who prosecuted the case.°

The newly discovered evidence indicates that Camp

met with some Government agents in New York several

months before the trial and thereafter remained in con-

tact with these and other agents. He personally tape-

recorded conversations between himself and Mitchel Edel-

son, the Chicago attorney who later represented Camp

during the trial. Camp apparently gave these tapes to

Government agents in Chicago in April 1974. The Govern-

ment agents were not members of the U.S. Attorney’s

Office and there is no evidence that the U.S. Attorney or

his assistants had knowledge of these tapes.’ The district

court examined the tapes in camera during post-conviction

proceedings and concluded that the tapes were entirely

irrelevant to the Camp-Disston trial. It, therefore, denied

post-conviction relief.

The record before us is deficient for the purpose of

making two critical determinations. Primarily, it lacks

sufficient facts regarding the circumstances of the Gov-

ernment’s non-disclosure of the tapes and of Camp’s in-

former status, e.g., the good faith, bad faith, or inadvertence

® The Assistant U.S. Attorney who prosecuted this case filed affi-

davits in late July and August of 1974, after the trial, which stated

that he was “not aware of any electronic surveillance of the defendant

Roger Camp or of any premises owned, leased or occupied by him,”

and that he had been advised by the Department of Justice that the

following agencies had not conducted electronic surveillance of Roger

Camp: Federal Bureau of Investigation, Securities and Exchange

Commission, Secret Service, Post Office, Internal Revenue Service,

Customs Service, Alcohol, Tobacco Tax and Firearms Division,

Department of the Treasury, and Drug Enforcement Administration.

* The agents who received the tapes apparently were agents of the

Secret Service and Chicago Strike Force.

App. 14

of the prosecutors. Secondarily, the parties did not have

a full opportunity to demonstrate the relevancy and ma-

teriality of the tapes as they would have had in the factual

context that might have been developed with and (sic) evi-

dentiary hearing. The district court’s decision does indicate

that Disston was ordered to prepare a transcript of tape

recordings which had been filed in camera and to specify

the way in which he was prejudiced by the matters con-

tained in the transcripts. Whether with an evidentiary

hearing Disston can demonstrate any prejudice which he

could not with only the tapes themselves remains to be

seen. We are concerned at the present moment with his

having the opportunity to try.°

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Su-

preme Court held that

the suppression by the prosecution of evidence favor-

able to an accused upon request violates due process

where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith

_ of the prosecution,

8 For example, the accuracy of the prosecutor’s affidavits was not

probed. See note 6 supra.

® Our decision in this case carries no implication that due process

requires that tape recordings be made automatically available to a

defendant. On a case-by-case basis, the trial judge will have to

determine the appropriateness of the tapes, or parts thereof, being

made available. In the case before us it had been determined that the

tapes should be made available but there was non-compliance with

the order followed by post-trial ascertainment that the recorded mes-

sages were those of a Government informer. We do not intend to

lay down any principles regarding pre-trial or trial use of such

recordings beyond the narrow factual confines of the particular case

before us. ,

a

ee ee See

tl a

App. 15

Thus a finding of materiality is a critical aspect of the

due process analysis. Moreover, although the good faith

or bad faith of the prosecutor is irrelevant if the evidence

is material, the good or bad faith of the prosecutor may

well bear on the materiality determination. In United

States v. Esposito, supra at 248-49, this court stated

{.\} court should be less inclined to hold unproduced

evidence immaterial or to hold the non-production of

admittedly material evidence harmless error if the

proseceutor’s failure to reveal the evidence was not

in good faith .... On the other hand, if the non-pro-

duction is in good faith, no special benefit of the doubt

need be given the defendant’s position. [Citations

omitted. |

We note also that the standard for materiality may differ

depending on whether the defendant specifically requested

the non-disclosed evidence. Compare United States v.

Agurs, 427 U.S. 97, 106, 112 (1976), with Brady v. Mary-

land, supra. See also United States vy. Anderson, 574 F.2d

1347, 1353-55 (Sth Cir. 1978); United States v. Keogh, 391

F.2d 138, 147 (2d Cir. 1968); Jones v., Jago, 428 F.Supp.

405, 408 (N.D. Ohio 1977). Thus the materiality stan-

dard for non-disclosure of the tapes would be different

than for non-disclosure of Camp’s informer status.

In any event, these are issues that cannot be properly

resolved without a more complete development of the

facts. We, therefore, remand to the district court for an

evidentiary hearing. After the facts have been fully de-

veloped, the district court should order a new trial if it

finds that the non-disclosure was not harmless, See Giglio

v. United States, 405 U.S. 150, 153-54 (1972). In addi-

tion, the court should examine the prosecutor’s conduct

as a whole to determine whether it was so egregious as to

App. 16

merit dismissal of the indictment, This latter disposition

is, of course, an extraordinary one which should be re-

versed for only the most serious misconduct.

Accordingly, the order denying the post-conviction mo-

tions is vacated and this cause is remanded for further

proceedings before the same trial judge, said further pro-

ceedings to be consistent with this opinion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circutt

App. 17

APPENDIX D

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

UNITED STATES OF AMERICA

v.

MITCHELL EDELSON, JR.

REE RPE AERA Be See IIS, Aeon TEEN

Vio.: Title 18, United States Code

Section 1623

The SPECIAL NOVEMBER 1974 GRAND JURY

charges:

1. That on May 6, 1975, at Chicago, in the Northern

District of Illinois, Eastern Division,

MITCHELL EDELSON, JR.

defendant, while under oath as a witness before the Spe-

cial November 1974 Grand Jury of the United States of

America, duly empaneled and sworn in the United States

District Court fcr the Northern District of Illinois, in

a case then and there pending before the Grand Jury,

did knowingly make false material declarations.

2. At the time and place aforesaid, the Grand Jury

was conducting an investigation pertaining to possible

violations of the criminal laws of the United States, that

is, among others, Sections 371, 2314 and 2315 of Title 18,

United States Code.

App. 18

8. During the course of the investigation by the Grand

Jury it became and was a material matter for the Grand

Jury to determine whether the defendant had ever acted

as a go-between for Roger Camp and Vito Nicasio in mak-

ing arrangements for the sale of stolen securities or coun:

terfeit United States currency.

4. That at that time, defendant Mitchell Edelson, Jr.,

after having been sworn, and then being under oath to tes-

tify truthfully, did knowingly and falsely state in sub-

stance before the Grand Jury that he had never heard the

expression ‘‘Q.,’’ whereas Mitchell Edelson, Jr. then well

knew that he had heard the expression ‘‘Q.”’

5. That at that time, defendant Mitchell Edelson, Jr.,

after having been sworn, and then being under oath to

testify truthfully, did knowingly and falsely state in sub-

stance before the Grand Jury that he never told Roger

Camp that Vito Nicasio would not bring the merchandise

across state lines, whereas Mitchell Edelson, Jr. then well

knew that he had told Roger Camp that Vito Nicasio would

not bring the merchandise across state lines,

6. That at that time, defendant Mitchell Edelson, Jr.,

after having been sworn, and then being under oath to tes-

tify truthfully, did knowingly and falsely state in sub-

stance before the Grand Jury that he never agreed with

Roger Camp to make arrangements for the exchange of

merchandise in a place that would not and could not be

bugged, whereas Mitchell Edelson, Jr. then well knew that

he had agreed with Roger Camp to arrange for the ex-

change of merchandise in a place that would not and could

not be bugged.

—"

oe

App. 19

7. That at that time, defendant Mitchell Edelson, Jr.,

after having been sworn, and then being under oath to tes-

tify truthfully, did knowingly and falsely state in sub-

stance before the Grand Jury that he did not suggest to

Roger Camp that he hold Roger Camp’s money in a safety

deposit box while Roger Camp examined merchandise in

the possession of Vito Nicasio, whereas Mitchell Edelson,

Jr, then well knew that he had suggested to Roger Camp

that a safety deposit box under the control of Mitchell Edel-

son, Jr. be used to hold Roger Camp’s money while Roger

Camp examined the merchandise belonging to Vito Nicasio.

All in violation of Title 18, United States Code, Section

1623.

A TRUE BILL:

Lillie Connor

FOREMAN

Samuel V. Skinner

United States Attorney