Opposition — Edelson v. United States

FILED

No.78-779 |} JAN 40 1979

|_MICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

‘MITCHELL EDELSON, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERT: 9ORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

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Questions presented -.............-...--:c-eeeceeeeeeeeeeeees 2

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I ctinnion 11

CITATIONS

Cases:

Alvarez, In re, 351 F. Supp. 1089 ............ 7

Bast v. United States, 542 F.2d 898 ........ 7

Berenyi v. Immigration Director, 385 U.S.

REESE: ESSE (Se 11

Biaggi, In re, 478 F.2d 489 ...........20..22-220-+- 7

Bianchi, In re, 542 F.2d 98 ............2.22---.-- 7

Bonanno, In re, 344 F.2d 880 .................... 7

Costello v. United States, 350 U.S. 359...... 9

Dennis v. United States, 384 U.S. 856 ...... 9

Grand Jury Witness Subpoenas, In re,

ae 7

Hamling v. United States, 418 U.S. 87...... 6

Lawn v. United States, 355 U.S. 389 ...... 9

Markham vy. United States, 160 U.S. 319.. 5

Pittsburgh Plate Glass Co. v. United

States, 360 U.S. 396 ............................... 8

Russell v. United States, 369 U.S. 749...... 5

Sinclair v. United States, 279 U.S. 263.... 5,10

United States v. Bernstein, 583 F.2d 775,

cert. denied, 429 U.S. 998 ....0..00.0.ccecee. 6

United States v. Bitter, 374 F.2d 744 ...... 9

United States v. Calandra, 414 U.S. 338.. 9

II

Cases—Continued Nias Iu the Supreme Court of the United States

United States v. Clavey, 565 F.2d 111, OcTOBER TERM, 1978

aff'd en bane by an equally divided

court, 578 F. 2d 1219, cert. denied,

No. 78-120 (Nov. 6, 1978) ...........0c000000- 7

United States v. Crippen, 570 F.2d 585, No. 78-779

cert. denied, No. 78-5388 (Jan. 8,

REE AE ne Hes ne ee 5 MITCHELL EDELSON, JR., PETITIONER

United States v. Crocker, 568 F.2d 1049.. 5

United States v. Damato, 554 F.2d 1871.. ‘10 | bs

United States v. Davis, 548 F.2d 840........ 5 UNITED STATES OF AMERICA

United States v. Del Toro, 513 F.2d 656.. 8

United States v. Devitt, 499 F.2d 135...... 6

United States v. Fitch, 472 F.2d 548, cert.

T OF CERTIORARI TO THE

denied, 412 U.S. 954 0... eeceeseeesecnneens 7 ON PUNITED STATES COURT OF APPEALS FOR

United States v. Mandujano, 425 U.S. THE SEVENTH CIRCUIT

GUTS sictasinicichitcvns sctadeipensecdadebiiondacataaioiddastiencenaesa 8

United States v. Percell, 526 F.2d 189...... 10

“—e oo v. Procter & Gambie,"056 ° BRIEF FOR THE UNITED STATES IN OPPOSITION

United States v. Roethe, 418 F. Supp.

A TNE, scscatbicsntsbasliamaiadehiasctaitidas ins ta aia 10

United States v. Rook, 424 F.2d 403, cert. OPINIONS BELOW

denied, 398 U.S. 966 .................cccccccceeeee 6 er

United States v. Slawik, 548 F.2d 75 ...... 6 The oral opinion of the district court (C.A. App.

United States v. Wortman, 26 F.R.D. 5-11) is unreported. The opinion of the court of ap-

NIT Gicckaiclasissscetiencubadaidinialpivecnutiap sania waebinieie 10 peals (Pet. App. 1-7) is reported at 581 F.2d 1290.

Statutes: | The opinion of the court of appeals denying rehearing

(Pet. App. 8) is unreported.

BT, WEE Aadcnesdepicenhogecticencaamameatie. 2 |

Be SP as RIED ds cescontnssontenstcceminennedinionians 7 JURISDICTION

Rule: The judgment of the court of appeals was entered

Fed. R. Crim. P. 16(a) (1) (A) ceecceceesoeene- 7 on August 30, 1978. A petition for rehearing was

(1)

2

denied on October 13, 1978. The petition for a writ

of certiorari was filed on November 10, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the indictment sufficiently alleged that

petitioner’s false statements were material to the

grand jury’s investigation.

2. Whether prior to indictment petitioner was en-

titled to a copy of his grand jury testimony without

demonstrating a particularized need for that testi-

mony.

3. Whether petitioner demonstrated a compelling

necessity for the disclosure of the grand jury pro-

ceedings.

4, Whether the government sufficiently established

the materiality and falsity of petitioner’s perjury.

STATEMENT

Following a bench trial in the United States Dis-

trict Court for the Northern District of Illinois, peti-

tioner was convicted of making false declarations

before a grand jury, in violation of 18 U.S.C. 1623.’

Petitioner received a one-year sentence of imprison-

ment. In a per curiam opinion, the court of appeals

affirmed (Pet. App. 1-7).

This case arises out of petitioner’s testimony be-

fore a special grand jury investigating the interstate

1 The indictment charged petitioner with making four false

statements to the grand jury. The district court acquitted

petitioner with regard to two of those false declarations.

(C.A. App. 9-11).

3

transportation of stolen goods, stolen securities, and

counterfeit currency in May 1975. At that time,

petitioner, who was a practicing attorney in Chicago,

denied having ever told Roger Camp that Vito Nicasio

would not bring stolen goods and securities across

state lines or having ever agreed with Camp to ar-

range a safe (non-bugged) place to exchange the

stolen items (Pet. App. 5-6; C.A. App. 10-11; Gov’t

Exh. 2):

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

would be hesitant about bringing merchan-

dise, securities, or any type of property what-

soever across state lines, or that he was not

going to cross the state lines with the mer-

chandise 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 mer-

chandise, whatever it may be, in a place out-

side 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.

However, the evidence at trial established that

Camp, who was a government informant, had dis-

cussed with petitioner the very matters that petitioner

had denied discussing in his grand jury testimony. In

particular, the government introduced seven tape re-

corded conversations between Camp and petitioner

(Pet. App. 1-2, 6; C.A. App. 7-11; Gov’t Exhs. 3, 5-7,

4

3T1, 3T2, 5T, 6T1, 6T2, 7T1, 7T2). These recordings,

which were corroborated by testimony from various

government agents and informants including Camp

(e.g., Tr. 143-147, 213, 227-232, 263-281, 690-706,

1269-1274, 1283-1284), contained the following pas-

sages (Pet. App. 6):

Edelson: “But he [Nicasio] is not coming to

Chicago, I’ll tell you that right now, he’s not go-

ing 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 anything in the mail or having anything

on his person when he crosses the state line.”

* * & *

Camp: “Well I assume that where we’re go-

ing 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 arrangements 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.”

5

ARGUMENT

1. Petitioner contends (Pet. 11-13) that the indict-

ment upon which he was convicted insufficiently al-

leged the materiality of his perjury. But the in-

dictment averred that petitioner’s perjurious state-

ments concerning his knowledge of the planned inter-

state shipment and transfer of stolen securities in the

possession of Vito Nicasio were material “for the

Grand Jury to determine whether [petitioner] had

ever acted as a go-between for Roger Camp and Vito

Nicasio in making arrangements for the sale of stolen

securities or counterfeit United States currency”

(Pet. App. 18). The indictment further stated that

the grand jury before which petitioner falsely testi-

fied was investigating the transportation, sale, and

receipt of stolen securities and counterfeit currency

(Pet. App. 17).

Such specific and detailed allegaiions of materiality

more than satisfy the minimal pleading recuirements

established long ago by this Court with regard to per-

jury indictments. See Markham v. United States,

160 U.S. 319, 324-825 (1895); accord, Russell v.

United States, 369 U.S. 749, 755-756 (1962); Sin-

clair v. United States, 279 U.S. 263, 296-297 (1929) ;

United States v. Crippen, 570 F.2d 535 (5th Cir.

1978), cert. denied, No. 78-588 (Jan. 8, 1979) ; United

States v. Crocker, 568 F.2d 1049, 1056-1057 (8d Cir.

1977); United States v. Davis, 548 F.2d 840, 845

6

(9th Cir. 1977) ; United States v. Bernstein, 533 F.2d

775, 786 (2d Cir.), cert. denied, 429 U.S. 998 (1976) ;

United States v. Rook, 424 F.2d 408, 405 (7th Cir.),

cert. denied, 398 U.S. 966 (1970).* In sum, because

this indictment enabled petitioner to prepare a de-

fense to the specific charges while adequaiely protect-

ing him from future prosecutions for the same offense,

both courts below correctly rejected petitioner’s argu-

ment on this point (Pet. App. 7). See Hamling v.

United States, 418 U.S. 87, 117 (1974).

2. Petitioner further contends (Pet. 13-15) that

he was automatically entitled to a copy of his grand

jury testimony prior to his indictment. This claim

is predicated solely on petitioner’s verbal request (that

he receive a transcript of the proceedings), made to the

Assistant United States Attorney during petitioner’s

* Petitioner notes (Pet. 11-13) that the Third Circuit may

mandate more factual specificity in an indictment than is re-

quired by this Court and the other courts of appeals. See

United States v. Slawik, 548 F.2d 75 (8d Cir. 1977) ; but see

United States v. Crocker, supra. Review of this alleged con-

flict is unwarranted since, in any event, the indictment at

issue here “set[s] forth the precise falsehood alleged and the

factual basis of its falsity with sufficient clarity to permit a

jury to determine its verity and to allow meaningful judicial

review of the materiality of those falsehoods.” United States

v. Slawik, supra, 648 F.2d at 88. As the court of appeals cor-

rectly concluded (Pet. App. 7), petitioner’s false statemenis

about the transportation and exchange of Nicasio’s stolen

securities certainly tended to impede the grand jury’s investi-

gation of those activities. See United States v. Devitt, 499

F.2d 185 (7th Cir. 1974).

25

7

testimony to the grand jury (Pet. 14).* But the

courts of appeals have unanimously held that a wit-

ness who seeks a transcript of his own grand jury

testimony prior to indictment must demonstrate with

particularity a compelling necessity for the disclosure.

See, e.g., United States v. Clavey, 565 F.2d 111 (7th

Cir. 1977), aff’d en bane by an equally divided court,

578 F.2d 1219 (1978), cert. denied, No. 78-120 (Nov.

6, 1978); Bast v. United States, 542 F.2d 8938, 896

(4th Cir. 1976) ; In re Bianchi, 542 F.2d 98, 100 (1st

Cir. 1976) ; United States v. Fitch, 472 F.2d 548, 549

n.6 (9th Cir.), cert. denied, 412 U.S. 954 (1973). See

also In re Biaggi, 478 F.2d 489, 494 (2d Cir. 1973) ;

Fed. R. Crim. P. 16(a)(1)(A) (disclosure of tran-

scripts after indictment).* And petitioner’s unsup-

ported verbal request for his grand jury testimony

fell far short of meeting that stringent standard.

E.g., United States v. Clavey, supra (failing memory

and alleged desire to recant under 18 U.S.C. 1623(d)

‘ Petitioner was, of course, given a copy of his testimony

after his indictment. Thus, the earlier rejection of his request

did not affect petitioner’s defense at trial. Moreover, peti-

tioner never indicated in the five months between his testi-

mony and his indictment that he sought to recant (see 18

U.S.C. 1628 (d)), so that production of the transcript was not

even arguably justified. See United States v. Clavey, 565 F.2d

111 (7th Cir. 1977), aff’d en banc by an equally divided court,

578 F.2d 1219 (1978), cert. denied, No. 78-120 (Nov. 6, 1978).

‘Sound policy reasons, including protection of the grand

jury process from coordinated perjury and protection of grand

jury witnesses, support this rule. See Jn re Bonanno, 344 F.2d

880, 834 (2d Cir. 1965) ; In re Grand Jury Witness Subpoenas,

370 F. Supp. 1282, 1284 (S.D. Fla. 1974) ; In re Alvarez, 351

F. Supp. 1089 (S.D. Cal. 1972).

8

held insufficient to overcome presumption in favor of

grand jury secrecy).°

8. Similarly, petitioner’s contention (Pet. 24-29)

that he was generally entitled to disclosure of the

complete grand jury proceedings is without merit.

As already indicated, the principle of grand jury

secrecy is well-established, and grand jury testimony

will be revealed only upon a showing of “compelling

necessity,” which “must be shown with particularity.”

United States v. Procter & Gamble, 356 U.S. 677, 682

(1958) ; Pittsburgh Plate Glass Co. v. United States,

860 U.S. 395, 399-400 (1959). Whether such a show-

ing has been made is a matter for the trial court’s

discretion, and the standard of review is whether that

discretion has been abused. United States v. Procter

& Gamble, supra; Pittsburgh Plate Glass Co. v.

United States, supra. No abuse of discretion occurred

here.

Although 18 months passed between petitioner’s in-

dictment and trial, petitioner did not move to inspect

the grand jury minutes (or to interview the grand

jurors) until the eve of trial. In light of the lengthy

delays already incurred, the trial judge properly re-

° Nor was the government required to disclose to petitioner

the existence of the taped conversations between petitioner and

Camp prior to petitioner’s testimony before the grand jury,

as petitioner apparently claims (Pet. 30). E.g., United States

v. Del Toro, 518 F.2d 656, 664 (2d Cir. 1975); see United

States v. Mandujano, 425 U.S. 564, 576-584 (1976). As both

courts below concluded (Pet. App. 4-5), petitioner was not a

target of the grand jury investigation and was not, in any

event, entitled to any special warnings or ee

9

jected petitioner’s last-minute attempt to further post-

pone his trial. More importantly, petitioner has never

sufficiently specified what particular circumstances

gave rise to a need for disclosure (see Pet. 28). Peti-

tioner did not allege that he needed the grand jury

proceedings to ensure accurate testimony from any

particular witness. Compare Dennis v. United States,

384 U.S. 855, 870 (1966). Rather, petitioner has sim-

ply speculated that improper or insufficient evidence

may have been presented to the grand jury or that the

government may have acted improperly before the

grand jury. Brief for Appellant (in the court of ap-

peals) at 47-59. However, this Court has repeatedly

stated that “an indictment valid on its face is not

subject to challenge on the ground that the grand jury

acted on the basis of inadequate or incompetent evi-

dence * * *.” United States v. Calandra, 414 U.S.

338, 345 (1974) ; see Lawn v. United States, 355 U.S.

539, 349 (1958) ; Costello v. United States, 350 U.S.

359, 363 (1956). And, as the court of appeals cor-

rectly concluded, petitioner’s other vague, speculative,

and unsubstantiated assertions do not constitute the

necessary showing of particularized need (Pet. App.

2). See, eg., Bast v. United States, supra; United

States v. Bitter, 374 F.2d 744, 748 (7th Cir. 1967).°

4, Petitioner also claims (Pet. 15-24) that his con-

viction was somehow unconstitutional because the

* In addition, the court of appeals noted that petitioner had

made no specific request for in camera inspection of the grand

jury minutes by the district court (Pet. App. 3).

10

only evidence establishing the materiality of his per-

jury was the transcript of his grand jury testimony

and the testimony of the Assistant United States

Attorney who conducted the grand jury proceedings.

At the outset, we note that the issue of materiality is

a question of law for the court to determine. £.g.,

Sinclair v. United States, 279 U.S. 263, 298-299

(1929); United States v. Damato, 554 F.2d 1371,

1373 (5th Cir. 1977); United States v. Percell, 526

F.2d 189 (9th Cir. 1975). Here the materiality of

petitioner’s perjury was apparent from the face of

the indictment. See point 1, supra. In addition, the

Assistant United States Attorney who conducted the

grand jury proceedings at which petitioner perjured

himself testified fully concerning the grand jury’s in-

quiries into the interstate transportation of stolen

property and securities, and the materiality of peti-

tioner’s testimony thereto (Pet. App. 3, 7; Tr. 365-

468).”

* Contrary to petitioner’s conclusory allegation, the Assist-

ant United States Attorney was subject to extensive cross-

examination. Petitioner’s irrelevant and improper questions

concerning the underlying facts supporting his facially valid

indictment were properly cut off by the trial judge (Tr. 458-

469). See United States v. Calandra, supra. In addition, the

district court properly denied petitioner’s last-minute request

to interview the grand jurors and the court reporters as an

obstructive fishing expedition. See United States v. Roethe,

418 F. Supp. 1118 (E.D. Wisc. 1976) ; United States v. Wort-

man, 26 F.R.D. 188, 198 (E.D. Ill. 1960). Thereafter, peti-

tioner apparently did not attempt to subpoena the grand jury

foreman or others as witnesses for his defense.

11

Finally, insofar as petitioner argues (see Pet. 16)

that there was insufficient evidence of the falsity of

his statements, that contention is also without merit.

Petitioner testified before the grand jury that he had

never told Camp, the government’s informant, that

Nicasio would not bring the stolen securities across

state lines or that he (petitioner) would arrange a

safe place for the exchange of the stolen goods. How-

ever, as Camp’s testimony and the tapes of the con-

versations between Camp and petitioner demonstrated

beyond a reasonable doubt, petitioner had discussed

those very matters with Camp in detail (Pet. App.

5-7; C.A. App. 8-11; Gov’t Exh. 2-7, 8T1, 3T2, 5T,

6T1, 6T2, 7T1, 7T2; Tr. 692-703). Thus, the courts

below properly rejected petitioner’s argument on this

point, and their concurrent factual findings do not

warrant further review by this Court. See Berenyi v.

Immigration Director, 385 U.S. 680, 685 (1967).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

JANUARY 1979

ov. 8. COveRnmanT paintine orrice, 1979 264373 262