Petition — Wright v. United States

~ ‘Qupreme Court, U.S

FILED

\

JAN 38 1979

}

| MICHAEL ROOAK, JR., CLERK |

a

IN THE

Supreme Court of the United States

OctToBER TERM, 1978

‘78-1065

SaMvEL DPD. WricuHrt,

Petitioner,

—against—

Tue Unitrep STatTEes oF AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

January 3, 1979

GeRALD L. SHARGEL

1290 Avenue of the Americas

New York, New York 10019

Counsel for Petitioner

TABLE OF CONTENTS

PAGE

RE Th ER IR ie ee OE 1

SESE AREY QT 1

at nes AR 2

EE 2

Reasons for Granting the Writ -.2.0.0.......0.....ccceeeeceeceeees 5

pg Raa SS 8

i ea ictiattcetentacineceecccsovceccccreee la

pe TEE LS SE 18a

TABLE OF AUTHORITIES

Cases:

Brown Transport Corp. v. Ateon, Inc., —— U.S. ——,

RE 5

General Motors Corp. v. City of New York, 501 F.2d

EE EE 7

General Motors Corp. v. United States (In Re Grand

Jury Subpoenas), 573 F.2d 936, 940 (6th Cir. 1978) 6,7

United States v. An Article of Drug, Etc., 394 U.S. 789,

Ce cceececnecvccescosweces 5

United States v. Braniff Airways, Inc., 428 F. Supp.

EL OL |

Other Authorities:

Rule 19, Supreme Court Rules 2000.00.00... cccccececcesceeseeeeeee 5

in ccccnccecccccceseee 2

IN THE

Supreme Court of the United States

OctToBer TERM, 1978

No.

SamMvugEL D. Waicut,

Petitioner,

—against—

Tue Unitep States or AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Samuel D. Wright respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second

Circuit, entered in this proceeding on December 4th, 1978.

Opinions Below

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto at page la. The opinion

rendered by the United States District Court for the

Eastern District of New York appears in the Appendix at

page 18a.

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on December 4th, 1978, This petition

for certiorari is being filed within thirty days of that

2

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

Question Presented

Whether the “appearance of conflict and impropriety”

principle requires dismissal of an indictment where the

wife of the prosecutor who obtained the indictment was a

political opponent of petitioner?

Statement of the Case

The facts of this case, as they relate to the issue on which

petitioner seeks a writ of certiorari, may be briefly stated.

This Hobbs Act and conspiracy prosecution arose out of a

charge that petitioner Wright, a New York State legisla-

tor who in 1973 was serving as the chairman of his local

school board, extorted “under color of official right” $5,000

from Behavioral Research Laboratories, Inc. (hereinafter

“BRL”), an educational supply company which did busi-

ness with the school board.

The entire controversy in this case foeused on peti-

tioner’s conduct when he attended, at the company’s invi-

tation, a BRL-sponsored educational conference in San

Francisco, California. The government's case consisted of

an allegation that Wright, who was supposed to receive a

$500 honorarium for speaking at the conference, demanded,

within the meaning of the Hobbs Act, an additional pay-

ment of $5,000. Petitioner, on the other hand, maintained

that the $5,500 check that he received was a pre-arranged

fee and not the result of any extortive conduct.

The issue raised in this petition for certiorari does not

touch upon either the testimony or any other event which

occurred during trial. Rather, this petition strikes at the

3

very manner in which this case was brought. The facts

are as follows: Prior to trial, defense counsel moved,

inter alia, for dismissal of the indictment upon an allega-

tion of selective prosecution. In support of this charge,

petitioner submitted that the prosecution was invidiously

brought. The investigatory stages of this case were man-

aged by Assistant United States Attorney Thomas Puccio,

who did not appear for the government at trial. As stated

in an affidavit submitted by petitioner’s trial counsel:

“The impropriety in question is founded upon the

activist role Mrs, Thomas Puccio, an attorney we be-

lieve is employed in the community by a local federally

funded poverty law office, has played as a public acti-

vist opposed to the leadership and role occupied by

Samuel D. Wright. As a publically acknowledged op-

ponent of Wright and his programs, her in-put with

a senior member on the United States Attorney’s staff,

both actually and in appearance, pitted the might and

resources of the federal government against Wright

for reasons of political and ideological differences

rather than due to an objective analysis of Wright’s

conduct.” (Affdvt. of Gustave H. Newman, 7/5/77;

A 27)* (Emphasis supplied)

In response, the United States Attorney submitted an

affidavit which acknowledged that the investigation was

in fact conducted by Mr. Puccio (A 42) and, further, that

Puccio’s wife was, until 1975, associated with the Browns-

ville Office of the Brooklyn Community Legal Services.

(A 43) In his affidavit, then United States Attorney David

Trager stated that:

“IT am advised that: Mrs. Puccio, whose name is Carol

Zeigler, graduated from N.Y.U. Law School in June

*The letter “A’’ refers to petitioner's appendix filed in the

Second Circuit Court of Appeals.

4

1973 and joined the Brownsville office in September

1973 prior to her admission to the New York Bar in

March 1974, and after Mr. Wright was elected to mem-

bership on Local Board No. 23. She left the Browns-

ville office in 1975, approximately two years before

the indictment was returned in this case, and long

before Mr. Wright ‘contested United States Repre-

sentative Shirley Chisholm’s bid for renomination.’

She was not personally involved in any election cam-

paign against the defendant, and whatever role she

did play while in the Brownsville office was in her

capacity as an attorney employed by the Brooklyn

Community Legal Services Corp.” (Trager Affdvt. p.

10, footnote; A 43)

This affidavit did not respond at all to the charge that

Mrs. Puccio played an active role in opposition “to the

leadership and role occupied by Samuel D. Wright.” In-

stead, the prosecutor relied upon the fact that the deci-

sion to prosecute Wright was made by him “solely on the

basis of the evidence, which I, and my chief assistant,

thoroughly reviewed.” (Trager Affdvt. A 43-44) Further,

“it had nothing whatever to do with any desire by me to

align myself with any particular faction opposed to Mr.

Wright.” (Trager Affdvt. A 44) The United States At-

torney also drew reference to the fact that the Attorney

General of the United States personally informed peti-

tioner that he, the Attorney General, was satisfied that the

investigation was being handled in a proper manner. In

pertinent part, the letter stated that:

“A complete review of that investigation was under-

taken by the Counsel on Professional Responsibility

who reports directly to me and who has the responsi-

bility for investigating complaints of misconduct by

Department of Justice personnel. The Counsel con-

5

cluded that the investigation has been conducted in

a thorough and professional manner, under the direct

supervision of the United States Attorney, and that

it should continue to proceed in that fashion.” (A 47)

Thus, the government had taken the position that they

themselves had policed and scrutinized their own conduct

and were satisfied that the investigation was conducted in

good faith. Ultimately, this view of the issue was ratified

by the district court and then affirmed by the Court of

Appeals. The district court concluded that:

“On the basis of the representations made by the United

States Attorney, and in light of the report by the

Attorney General and the Counsel on Professional

Responsibility, the court is satisfied that the prosecu-

tion has not been conducted in bad faith or as the

result of improper influence from anyone outside the

United States Attorney’s Office.” (Op. p. 5, A 66)

Although there was absolutely no opportunity to explore

the facts in the district court, the Court of Appeals stated

that it found no “impropriety or appearance of impropri-

ety,” relying in significant part on the Justice Depart-

ment’s review of its own conduct. Slip. op. at 488-89.

Reasons for Granting the Writ

Although petitioner recognizes that this Court is be-

lesguered by petitions for writs of certiorari, Brown

Transport Corp. v. Atcon, Inc., —— U.S. ——, No, 77-

1581, December 4, 1978 (dissent of Mr. Justice White),

this case, it is submitted, presents an issue of importance

which has not heretofore been determined by this Court.

Rule 19, Supreme Court Rules; see, e.g., United States v.

An Article of Drug, Etc., 394 U.S. 789, 791 (1969). In-

6

deed, the issue presented herein was described, in another

context, as an issue of “unusual importance.” General

Motors Corp, v. United States (In Re Grand Jury Sub-

poenas), 573 F.2d 936, 940 (6th Cir, 1978).

Both the district court and the United States Court of

Appeals have concluded that since the Justice Depart-

ment’s Counsel on Professional Responsibility reviewed

the instant investigation and concluded that there had

been no misconduct, petitioner’s contention should be sum-

marily rejected. Petitioner respectfully submits that such

a rule of law is obnoxious to the basic tenets of the

adversary system and thus, this ruling should be reviewed

by this Court.

In the General Motors case, the Sixth Cireuit Court of

Appeals had occasion to discuss an issue which is directly

analogous to the case at bar, In General Motors, an at-

torney by the name of Meno W., Piliaris was conducting

a grand jury investigation of the defendant corporation.

The facts in that case revealed that Piliaris was an attor-

ney employed by the Internal Revenue Service and, in

that capacity, had earlier recommended to the Justice

Department that a grand jury investigation begin. More-

over, Piliaris was intricately involved in the LR.S, aspect

of the case, Even though the district court made no find-

ings of any actual conflict of interest, the circuit court

issued an order terminating the grand jury investigation

due to an appearance of impropriety.

“This appearance of impropriety arises by reason of

the prior connection of Mr. Piliaris with the investi-

gation by IRS of the income tax returns of GM and

the recommendations in which he participated when

he was serving as an attorney for IRS in Cincinnati.”

573 F.2d at 942,

7

See, also, United States v. Braniff Airways, Inc., 428 F,

Supp. 579 (W.D. Texas 1977).

As argued in the court below, the same appearance of

impropriety exists in this case. The ABA Standards Re-

lating to the Prosecution Function, Section 1.2, provides

in relevant part that:

“A prosecutor should avoid the appearance or reality

of a conflict of interest with respect to his official

duties.”

Obviously, in an unusual case such as this, an appearance

of impropriety surfaces, As Judge Kaufman stated in

General Motors Corp, v. City of New York, 501 F.2d 639

(2nd Cir, 1974):

“|, we must act with scrupulous care to avoid any

appearance of impropriety lest it taint both the pub-

lic and private segments of the legal profession.” 501

F.2d at 649. (Emphasis in original)

The Sixth Circuit, in the General Motors case, observed

that:

“In the present case the worry of GM is that Piliaris

has an axe to grind and is more interested in justify-

ing his previous investigations, his recommendations,

and the conduct of IRS agents than in protecting GM

against unfounded criminal prosecution.” 573 F.2d at

943.

It should be clear that the result in the General Motors

case (In Re Grand Jury Subpoenas) would not have been

different if the Counsel on Professional Responsibility had

submitted an affidavit or letter stating that Piliaris’ con-

duct had been reviewed and approved. Simply stated, the

fact that the Justice Department was satisfied with its

8

own conduct is of no moment and such “representations”

should not have been rubber-stamped by the courts before

which it came.

With a United States Attorney’s office that employs

some thirty-five assistants in its criminal division, why

should an assistant who could, as the Sixth Cireuit Court

of Appeals noted, conceivably have had an “axe to grind”

have presented this case to the grand jury? The uncer-

tainty which is inherent in this question demonstrates, de-

spite the assurance of the Justice Department officials to

the contrary, that there was a fatal stigma attached to

the grand jury presentation and, accordingly, the indict-

ment should have been dismissed. This case, it is sub-

mitted, would present this Court with an opportunity to

review and decide the relevant criteria in applying the

concededly important “appearance of impropriety” stan-

dard.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Second Circuit

Court of Appeals.

Respectfully submitted,

GeraLtp L. SHARGEL

1290 Avenue of the Americas

New York, New York 10019

Counsel for Petitioner

January 3, 1979

APPENDIX

he ts pea ae he a

ere

Appendix A

(Opinion of Court of Appeals)

UNITED STATES COURT OF APPEALS

For tHe Srecoxn Circuit

siiinacdiaiiibeniiiaia

No. 176—August Term, 1978.

(Argued September 12, 1978 Decided December 4, 1978.)

Docket No. 78-1219

aay vane a

Unitep Svrates oF AMERICA,

Appellee,

ee

SamvueL D. Wricat,

Appellant.

A.

Before:

Smitu, Fersperc and MaAnsrFIELD,

Circuit Judges.

ps

Appeal from judgment of conviction and sentence on

trial to the jury in the United States District Court for

the Eastern District of New York, Edward R. Neaher,

Judge, for violation of the Hobbs Act, 18 U.S.C, § 1951, and

conspiracy, 18 U.S.C. § 371. Affirmed,

&.

GeraLtp L. Suarcet, New York, N.Y. (Fischetti

& Shargel, New York, N.Y., Gustave H.

Newman and Roger Bennett Adler, of coun.

sel), for Appellant.

la

2a

Appendix A—Opinion of Court of Appeals

Epwarp R. Korman, United States Attorney for

the Mastern District of New York, for Ap-

pellee.

>

Situ, Circuit Judge:

This is an appeal from conviction and sentence on trial

to the jury in the United States District Court for the

Kastern District of New York, Mdward R. Neaher, Judae,

of a school board official for solicitation and receipt “under

color of official right” of a payment of $5,000 from a seller

of school supplies, in violation of the Hobbs Act, 18 U.S.C.

§ 1951, and conspiracy to defraud the United States of

federal funds granted to the school district, in violation of

18 U.S.C. § 371. We find no reversible error and affirm the

judgment.

In 1973, while Wright was chairman of New York City

Community School Board 23, Behavioral Research Labora-

tories, Ine, (“BRL”), a seller of educational systems and

materials to schools, which had a contract with the board

for the 1972-73 school year amounting to over $500,000, -

invited Wright to speak at a conference which it conducted.

Wright received $5,500 for this appearance, $5,000 of which

the government contended and the jury must have found

was induced by Wright and paid by BRL to influence the

decision of the board to purchase educational materials

from BRL.

On appeal, Wright contends that the evidence was insuffi-

cient to show that the payment was solicited in order to

influence his official action, that the government wrongfully

refused to grant immunity to a witness, that the admission

of an out-of-court statement deprived him of his right to

confront the witnesses against him, that the prosecution

was biased and that the government’s inflammatory summa-

3a

Appendix A—Opinion of Court of Appeals

tion deprived him of a fair trial. We find all of Wright’s

contentions to be without merit and affirm for the reasons

discussed below.

Wright argues that the evidence was not sufficient to

support a conviction on either the Hobbs Act count or the

conspiracy count. He claims that there was no proof that

he demanded anything from BRL under color of official

right. Rather, Wright insists that the evidence shows noth-

ing more than a request by him for an increase in the

lonorarium that he was to be paid for his appearance at

the BRL conference. He contends that such an innocent

attempt to negotiate a fee to which he had a legal right

cannot constitute a violation of the Hobbs Act. Likewise,

Wright contends that the conspiracy conviction must be

reversed because there was no proof of an agreement, ex-

press or implied, between Wright and BRL to defraud the

United States.

We disagree with Wright’s characterization of the case

against him and conclude that the evidence, viewed in the

light most favorable to the government, Glasser v. United

States, 315 U.S. 60, 80 (1942), was sufficient to support the

jury s verdict.

In late 1972 or early 1973, James Phipps, then the Divi-

sional Marketing Director of BRL and responsible for

sales in the Northeast region of the country, invited Wright

to speak at a conference to be held by BRL on February

1 and 2, 1973 at a hotel in San Francisco. Wright accepted

the invitation and delivered a forty-five minute address on

February 2. The other speakers at the conference were the

education editor of Newsweek magazine, the president of

the American Federation of Teachers, the director of the

National Institute for Education and John Tunney, United

States Senator from California.

4a

Appendix A—Opinion of Court of Appeals

Phipps received a telephone call from Wright on Feb-

ruary 3, as a result of which they later engaged in a con-

versation in the lobby of the hotel. Phipps testified that

Wright asked whether the honorarium he was to receive

could be increased. During the same conversation, Wright

referred to the expenditures that would be incurred in

conducting a successful election campaign and mentioned

that people in the district which he represented found it

very difficult to raise funds. However, when Phipps was

asked on the witness stand whether Wright asked “for any-

thing with regard to the funds necessary to run a political

campaign,” he responded, “Not specifically, no.”

Phipps subsequently conveyed the substance of his con-

versation with Wright to Bert Parker, BRL’s Vice Presi-

dent for Marketing. Allan Calvin, Chairman of the Board

of BRL, testified that Parker then informed him that Wright

had requested a $5,000 cash political contribution.’ As a

result of his conversation with Parker, Calvin asked Phipps

to request Herbert Corbin, president of Kanan, Corbin &

Shupack (“KCS”), BRL’s publie relations firm, to “gen-

erate the cash for the political contribution.’ Corbin re-

sisted the request, but after a conversation with Parker,

he agreed that KCS would issue a $5,500 check to Wright

if BRL would first issue a check for that amount payable

to KCS.

Meanwhile, Roger Sullivan, the president of BRL, had

approved four separate check request forms to pay the

conference speakers. (Senator Tunney’s agent previously

had been paid $2,500, of which the Senator was to receive

$1,500.) One request form, in the amount of $700, was

1 This and other testimony was admitted under Fed. R. Evid, 801

(d)(2)(E) as the statement of a co-conspirator, subject to subsejuent

proof of the existence of the conspiracy. Wright does not contend

that the testimony was not admissible under the rule.

5a

Appendix A—Opinion of Court of Appeals

for the Newsweek education editor. The ower three, in-

cluding Wright’s, were each in the amount of $500. Four

checks were drawn on BRL’s account at the United Cali-

fornia Bank, but all were voided on February 12, before

they could be delivered. On that same day, BRL issued a

$5,500 check to KCS. The request for this check was not

a printed form, but instead a handwritten page from the

memo pad of Carl Peters, BRL’s Comptroller, containing

the words “5,500.00 Herb Corbin.” Three days later, Sul-

livan approved a printed check request form in the amount

of $1,700 payable to KCS. This form included a hand-

written list of the other three speakers and the same

amounts as requested in the original individual forms. A

check for $1,700 was issued to KCS, which in turn issued

separate $500 and $700 checks to the three speakers.

On February ls, KCS issued a $5,500 check payable to

Wright. Corbin gave this check to Phipps, who delivered

it to Wright's office. Phipps testified that he handed the

check to Wright, who in return gave him a letter of intent

which indicated that Wright’s school district was interested

in renewing and expanding the program that it had pur-

chased from BRL. Calvin and Parker were dissatisfied

with this first letter and sought to obtain a stronger one.

A second letter of intent bearing Wright’s signature and

dated February 23 was subsequently delivered to BRL.

Both of these letters violated a directive of the Chancellor

of the Board of Education of the City of New York, which

forbade the issuance of letters of intent without the Chan-

cellor’s approval.

In August 1973, Community School Board 23 approved

the purchase of an expanded program from BRL. The

vote was five to four, with Wright and the other four board

members who had run for election as part of his slate cast-

ing the votes in favor of the purchase. The funds used to

6a

Appendix 4—Opinion of Court of Appeals

purchase the program were provided by the federal gov-

ernment under Title I of the Elementary and Secondary

Education Act of 1965.

This court in United States y. Trotta, 525 F.2d 1096, 1100

(2d Cir. 1975), cert. denied, 425 U.S. 971 (1976), approved

the Seventh Circuit's description of the offense of extor-

tion under color of official right as set forth in United

States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert.

dented, 421 U.S. 910 (1975):

The use of office to obtain payments is the crux of the

statutory requirement of “under color of officia] right”

.... It matters not whether the publie official induces

payments to perform his duties or not to perform his

duties... .. So long as the motivation for payment

foeuses on the recipient's office, the conduct falls within

the ambit of 18 U.S.C. § 1951.

bes trial judge here correctly instructed the jury that

1951

would not bar the payment to, and receipt by defen-

dant of an honorarium or speaking fee, unless you

are satisfied beyond a reasonable doubt that the pay-

ment focused on his public office and ability to aid

B.R.L. and the defendant knew that that was the rea-

son the money was paid to him.

Appellant asserts that the evidence failed to establish

that he demanded a cash political contribution. He argues

that a strictly voluntary payment by BRL would not

amount to extortion within the meaning of 18 U.S.C. § 1951

citing United States vy. Hathaway, 534 F.2d 386 (1st Cir.),

cert. denied, 429 U.S. 819 (1976). He further contends that

we need only look to the Phipps-Wright conversation in

7a

Appendix A—Opinion of Court of Appeals

the hotel lobby to determine whether or not there was

proof of a demand under color of official right. We de-

cline, however, to view the proof so narrowly, for it is

settled law that the evidence “must be viewed in light of

the totality of the Government’s case, since one fact may

gain color from others.” United States v. Traumunti,

500 F.2d 1334, 1338 (2d Cir.), cert. denied, 419 U.S. 1079

(1974).

The jury properly could have found Wright guilty be-

yond a reasonable doubt of a violation of the Hobbs Act.

Phipps’ testimony that Wright did not specifically ask for

a political contribution did not preclude the jury from

reaching such a verdict. The jury would have been justified

in giving weight to Phipps’ testimony that Wright spoke

of the difficulties of campaign fund-raising. They could

have concluded, as did BRL, that Wright was seeking to

use the power of his public office to obtain $5,000 in addi-

tion to the concededly legal $500 honorarium. Wright’s

assertion of his innocent motives is further undercut by

the simultaneous exchange of the $5,500 check for the first

letter of intent. In addition, Wright’s action in providing

both letters of intent in contravention of an explicit direc-

tive of the Chancellor of the Board of Education supports

a conclusion that the letters and Wright’s successful efforts

to increase the district’s purchases from BRL were part

of a quid pro quo involving the additional $5,000.’

The indictment also charged Wright with conspiring

with BRL to defraud the United States by depriving it of

“the impartial, fair and honest distribution of federal

funds and of the faithful and honest participation of the

2 Evidence of such a quid pro quo may be forthcoming in an extortion

case, although it is not an essential element of the crime. United

States v. Trotta, 525 F.2d 1096, 1100 (2d Cir. 1975), cert. denied,

425 U.S. 971 (1976).

8a

Appendix A—Opinion of Court of Appeals

Board of Education of the City of New York in the finan-

cial grant program under Title I of the Elementary and

Secondary Education Act of 1965,” in violation of 18 U.S.C.

§ 371.

Wright contends that there was no proof that he agreed

with BRL to defraud the United States. We disagree.

The agreement which constitutes the essence of a con-

spiracy need not be explicit, but can be inferred from the

facts and circumstances of the case. Jannelli v. United

States, 420 U.S. 770, 777 n. 10 (1975); American Tobacco

Co, v. United States, 328 U.S. 781, 809 (1946); United

States v. Green, 523 F.2d 229, 233 n. 5 (2d Cir. 1975), cert.

denied, 423 U.S. 1074 (1976). The facts which we have al-

ready discussed were sufficient to support a finding that

Wright implicitly agreed to exercise the powers of his office

to bring about the expenditures of federal funds for con-

tinned and expanded purchases from BRL in return for

BRL’s additional $5,000 payment to him.

Wright next contends that the government’s failure to

provide use immunity to Parker, pursuant to 18 U.S.C.

9§ 6001-6003, deprived appellant of his right to due process

guaranteed by the fifth amendment. He concedes that the

decision to confer immunity ordinarily is within the sole

discretion of the prosecutor. United States v. Housand, 550

F.2d 818 (2d Cir.), cert. denied, 431 U.S. 970 (1977). But,

citing United States vy, Morrison, 585 F.2d 223 (3d Cir.

1976), Wright argues that under extraordinary cireum-

stances, due process may require that the government con-

fer use immunity on a witness for the defendant.

Wright alleges that such extraordinary circumstances

existed here. He contends that Parker was “perhaps the

most critical witness” against him in that Parker’s alleged

out-of-court statement to Calvin constituted the only evi-

dence that Wright had demanded a political contribution

9a

Appendix A—Opinion of Court of Appeals

from BRL. Wright notes that Calvin testified that in his

presence Parker denied having transmitted any such de-

mand for money. Thus Wright argues that Parker’s own

testimony in court was essential to provide him with a fair

trial. He contends that the government’s refusal to confer

use immunity deprived him of that testimony, because

Parker’s attorney said that without such immunity Parker

would claim his fifth amendment right against self-incrimi-

nation and refuse to testify.

Our summary of the evidence, set out above, makes clear

that Parker’s extra-judicial statement in fact was not the

only, nor even the most important, evidence that Wright

extorted money from BRL. But we do not find it necessary

to decide under what circumstances, if any, due process

would require the government to confer use immunity on

a witness at the request of a defendant.’ For we conclude

that Wright failed to make a sufficient showing that he

desired to have Parker testify and that Parker would re-

fuse to testify without use immunity.

After Corbin testified that Parker had denied transmit-

ting Wright’s demand to Calvin, appellant’s counsel ob-

tained from the government Parker’s address in Oregon

and the name of his attorney in New York. Appel-

lant’s counsel later told the court that he had spoken

by telephone with Parker’s attorney who asserted that

Parker would not speak with Wright’s lawyer and that

Parker would “take the Fifth Amendment” if Wright sub-

3 Courts which have confronted this question have reached a variety

of results. Compare, e.g., Uniied States v. Morrison, 5385 F.2d 223,

2°9 (3d Cir, 1976) (immunity required because of prosecutorial mis

conduet), and Earl v. United States, 361 F.2d 531, 534 n. 1 (D.C, Cir,

1966) (immunity might be required if government granted it to its

own witness), cert. denied, 388 U.S, 921 (1967), with United States

v. Ramsey, 503 F.2d 524, 5382 (7th Cir, 1974) (“no merit to the argu

ment” that defendant has constitutional right to immunity for his

witness), cert. denied, 420 U.S. 932 (1975).

10a

Appendix A—Opinion of Court of Appeals

poenaed him. Wright’s counsel then said that if he sub-

poenaed Parker, he would ask the government to confer

immunity on him. The trial court urged appellant’s counsel

to issue a subpoena as soon as possible. Counsel indicated

that he would do so. At that point, the prosecutor in-

formed the court that he did not intend to seek a grant

of use immunity for Parker because he did not believe such

a grant to be “in the public interest” as required by 18

U.S.C. § 6003(b)(1).4 On the following day, however, the

prosecutor offered to provide Parker with informal “let-

ter immunity,”*® the type of immunity which had been

granted to a number of the government’s witnesses. He also

stated that if Parker found that proposal unacceptable,

he would attempt to obtain authorization from the Justice

Department for an application for use immunity,’ despite

his own belief that the request would not satisfy the De-

partment’s criteria.

On the next day, Wright’s attorney informed the court

that he had again spoken with Parker’s attorney, who stated

that he (Parker’s attorney) would not be satisfied with

letter immunity and that he would insist on “full-blown

4 18 U.S.C. § 6003(b) provides that:

A United States attorney may, with the approval of the Attorney

General, the Deputy Attorney General, or any designated Assistant At

torney General, request an order under subsection (a) of this sec

tion when in his judgment—

(1) the testimony or other information from such individual may

be necessary to the public interest... .

5 Letier immunity consists of a promise by the particular United

States attorney not to prosecute the witness for his participation in

the transaction about which he testifies. The government now con

tends that this promise would have been enforceable against United

States attorneys in other districts as well.

6 18 U.S.C, § 6003 requires that a local United States attorney ob-

tain approval of o request for an order compelling testimony pur

suant to a grant of use immunity. See note 4, supra.

lla

Appendix A—Opinion of Court of Appeals

immunity.”’ Wright’s attorney then told the court that “as

a result, I am not wasting any money to subpoena his

client.” The record discloses no further communications

between Wright’s counsel and either Parker or his attor-

ney. No subpoena was issued.

We conclude that Wright failed to establish the need

for a grant of use immunity to Parker. Wright argues

that the proposition “that there was an insufficient basis on

which to apply for statutory immunity ... is clearly with-

out merit,” because 18 U.S.C. § 6003(b)(2) provides that

an application for immunity can be made where an indi-

vidual “has refused or is likely to refuse to testify.” This

argument falls wide of the mark because the issue pre-

sented here is not whether the government had the power

to apply for a grant of immunity, but rather whether it

had an obligation to do so. We hold that it did not.

The key question raised by Wright’s due process claim is

whether the failure to grant immunity denied him a fair

trial. Because Wright failed to subpoena Parker and to

prove any need for use immunity, he cannot now demon-

strate that the refusal to confer immunity prejudiced his

trial. Here, as in United States v. Carman, 577 F.2d 556,

561 (9th Cir. 1978), the appellant’s argument “is based

purely on speculation as to what [the witness] would do

if called to the stand.” (Emphasis in original.) It is true

that Parker’s attorney asserted that his client would not

testify without use immunity. But without calling Parker

to the witness stand, “neither [the appellant] nor anyone

else could be certain that [the witness] would assert his

right against self-incrimination.” Jd, It is not improbable

that Parker, for reasons of his own, might have preferred

to avoid having to travel from Oregon to New York in

order to testify about his role in the payment to Wright.

Whether Parker would have maintained the position that

12a

Appendix A—Opinion of Court of Appeals

his attorney asserted, had he actually been subpoenaed and

called to the stand, is a matter of speculation upon which

this court cannot base a finding that Wright was denied his

due process right to a fair trial.

Wright also suggests that the refusal to grant immunity

violated his sixth amendment right to have compulsory

process for obtaining witnesses in his favor. A claim that

the use immunity statute is unconstitutional because wit-

nesses and defendants are not authorized to compel testi-

mony on the same basis as the government was rejected in

in ve Kilgo, 484 F.2d 1215, 1222 (4th Cir. 1973), where the

court said:

The sixth amendment assures an accused “compulsory

process for obtaining witnesses in his favor.” But the

authors of the Bill of Rights did not deem it essential

to enhance this right by empowering the accused to

confer immunity, and nowhere in the Constitution do

we find any justification for conditioning the govern-

ment’s ability to grant immunity on a corresponding

grant to private individuals.

It has also been held that the sixth amendment imposes

no obligation on the government to confer immunity on a

witness at the defendant’s request. United States v, Ales-

sto, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S, 948

(1976); compare, United States vy. Lacouture, 495 F.2d

1237 (5th Cir.), cert. denied, 419 U.S. 1053 (1974); see

generally Kastigar vy, United States, 406 U.S. 441, 443-47

(1972). But see United States v. Leonard, 494 F.2d 955,

985 n. 79 (D.C. Cir. 1974) (Bazelon, C./., concurring in

part and dissenting in part); United States v. La Duca, 447

F. Supp. 779, 787 (D.N.J. 1978) (dictum).

We need not determine whether the sixth amendment

might ever require the government to confer immunity on

13a

Appendix A—Opinion of Court of Appeals

a defense witness. Wright did not avail himself of the com-

pulsory process to which he clearly was entitled, the right

to subpoena Parker. He cannot now complain that he

was denied whatever other rights he might have had under

the compulsory process clause, had his unexercised right

of subpoena proved unavailing.

We next consider Wright’s argument that he was denied

his sixth amendment right to confront the witnesses against

him when the government failed itself to call Parker as a

witness after the admission of the extra-judicial statement.

He argues that Parker’s statement was crucial to the gov-

ernment as well as devastating to the defense and that

there was nothing inherently reliable about the statement.

Wright does not claim on appeal that Calvin’s testimony

reporting Parker's statement did not satisfy the require-

ments of Fed. R. Evid, 801(d)(2)(), as the statement of

a co-conspirator, That the testimony was admissible under

the rules of evidence does not, however, conclude our in-

quiry, but merely turns our attention to the constitutional

issue involved. The confrontation clause is not merely

the equivalent of the hearsay rules. Dutton v. Evans, 400

U.S. 74, 81-82 (1970): California v. Green, 399 U.S. 149,

155-56 (1970)."

The Supreme Court has not ruled upon the interrelation

of Rule 801(d)(2)() and the confrontation clause. Some

circuits have adopted the position that a statement of a

co-conspirator admissible under Rule 801(d) (2) (12) per se

satisfies the requirements of the confrontation clause.

United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978) ;

; The Supreme Court in Dutton characterized the co-conspirator rule

us a hearsay exception, The new Federal Rules of Evidence adopted

the opposing view that the statement of a co-conspirator simply does

not come within the definition of hearsay. This change in terminology

has no significance for the purpose of determining whether adimission

of a statement into evidence satisfies the confrontation clause.

l4a

Appendix A—Opinion of Court of Appeals

United States v. Papia, 560 F.2d 827 (7th Cir. 1977) ; Otto-

mano v, United States, 468 F.2d 269 (1st Cir. 1972), cert.

denied, 409 U.S. 1128 (1973). This court, however, pre-

viously has concluded that Dutton mandates a case-by-case

examination to determine whether the defendant’s right of

confrontation has been abridged. United States v. Puco,

476 F.2d 1099 (2d Cir.), cert. denied, 414 U.S. 844 (1973);

accord, United States v. Davis, 578 F.2d 277 (10th Cir.

1978); United States v. Kelley, 526 F.2d 615 (8th Cir.

1975), cert. denied, 424 U.S. 971 (1976); United States v.

Snow, 521 F.2d 730 (9th Cir. 1975), cert. denied, 423 U.S.

1090 (1976).

In Puco, 476 F.2d at 1103, we read the plurality opinion

in Dutton as indicating that “the presence of sufficient ‘in-

dicia of reliability’ may, in some circumstances, permit the

prosecution to introduce out-of-court statements into evi-

dence even though the declarant is available to it and the

defendant has never had an opportunity to cross-examine

him.” We held that this rule applied at least where the

statement is not “crucial” to the prosecution or “devas-

tating” to the defendant.

We believe that Parker’s extra-judicial statement bore

sufficient indicia of reliability to assure that “the trier of

fact [had] a satisfactory basis for evaluating the truth of

the prior statement.” Dutton v. Evans, supra, 400 U.S. at

89, quoting California v. Green, supra, 399 U.S. at 161. In

Puco, we suggested that “[i]n most cases the determination

that a declaration is in furtherance of the conspiracy...

will decide whether sufficient indicia of reliability were

present. While there may be exceptions, we do not think

that they will be frequent.” 476 F.2d at 1107-08. There is

nothing that will lead us to conclude that Parker’s state-

ment is one of those exceptions. First, the possibility that

Parker was relying on faulty recollection is remote. He

15a

Appendix A—Opinion of Court of Appeals

made the statement to Calvin either the same day as or

the day after he learned of Wright’s desire to obtain $5,000.

Second, the circumstances were such that there is no reason

to believe that Parker misrepresented what Phipps told

him. Parker had no motive to want his superiors to believe

that Wright was seeking a political contribution if in fact

he had asked only for an honest renegotiation of his hono-

rarium. Lastly, the circumstances and general nature of

Parker’s statement are corroborated by other testimony of

witnesses who were subjected to substantial cross-examina-

tion. Phipps confirmed that a meeting with Wright took

place after the conference. Phipps also testified that he

conveyed his conversation with Wright to Parker, telling

him that Wright had “intimated ... that he was hopeful of

getting a substantial amount of money.” Calvin testif d

that he asked Phipps to contact Corbin and to arrange “for

the political contribution to Mr. Wright” and that Phipps

replied that he would do so. Corbin testified that first

Phipps and then Parker telephoned him to arrange the

issnance of the $5,500 check. As a result of all these fac-

tors, we believe that the jury could adequately weigh the

credibility and importance of Parker’s statement.

We also conclude that Parker’s statement was neither

“devastating” nor “crucial.” As we said in Puco, 476 F.2d

at 1104, “Admittedly, these terms do not offer a precise

standard, but we interpret them as requiring that the evi-

dence be in some way essential, indeed central, to the pros-

ecution’s case.” Our review of the evidence has demop- —

strated that there was a sufficient basis for the jury to

convict Wright on both counts without any reference to

Parker’s statement. Wright argues that the statement is

crucial because it was the only evidence that he demanded

a “political contribution.” We have already stated that it

was not necessary that the government show that Wright

16a

Appendix A—Opinion of Court of Appeals

asked for a contribution in haec verba and that the jury

could infer an extortive demand from the testimony of

Phipps and the surrounding circumstances. Finally, ap-

pellant’s attempt to place importance on the use of the

words “political contribution” is defeated by his own suc-

cess in cross-examination of Calvin, during which the wit-

ness conceded that he did not recall the exact words that

Parker had used. In light of these facts, we cannot con-

clude that the out-of-court statement was in any way cru-

cial or essential to the government's case. Thus no error

was committed in allowing the testimony without an oppor-

tunity to cross-examine Parker.

Wright’s two remaining grounds of appeal require little

comment. We do not condone the prosecutor’s repeated use

of the term “preparations man” in referring to Wright’s

experience in preparing cases for trial while employed in

the office of the Corporation Counsel of the City of New

York. These references may have crossed “the exceedingly

fine line which distinguishes permissible advocacy from im-

proper excess.” United States v. White, 486 F.2d 204, 2

(2d Cir. 1973), cert. denied, 415 U.S. 980 (1974). But

viewed in the context of a summation which totaled several

hours at the conclusion of a rather long and hotly con-

tested trial, whatever inappropriate comments were made

did not deprive the defendant of a fair trial, and thus re-

versal is not warranted. United States v. Socony-Vacuum

Oil Co., 310 U.S. 150, 239, 242 (1940); United States v.

White, supra, 486 F.2d at 207.

The district court properly rejected Wright’s claim that

the prosecution against him was biased because the wife

of the Assistant United States Attorney who presented this

case to the grand jury was allegedly a political opponent

of Wright. The Justice Department’s Counsel on Profes-

e

17a

Appendix A—Opinion of Court of Appeals

sional Responsibility reviewed the investigation and con-

cluded that there had been no misconduct. We agree that

no showing of bias of the prosecutor was made here. The

American Bar Association Standards Relating to the Pros-

ecution Function, $1.2, provides that “A conflict of interest

may arise when, for example, ... a business partner or

associate or a relative has any interest in a criminal case,

either as a complaining witness, a party or as counsel.”

None of these circumstances was present here. We find no

impropriety or appearance of impropriety.

The judgment is affirmed.

18a

Appendix B

(Memorandum and Order)

FILED

IN CLERK’S OFFICE

U, 8. DISTRICT COURT E.D, N.Y.

Mar 28 1978

UNITED STATES DISTRICT COURT

Eastern District or New York

77 CR 181

Unitep States or AMERICA,

—against—

SaMvuEL D, Wrieurt,

Defendant.

APPEARANCES:

Davin G. Tracer, Esq.

United States Attorney,

Kastern District of New York

By Epwarp R. Korman, Esq.

Chief Assistant U.S. Attorney

(iustavE H, Newman, Esq.

Attorney for Defendant

Neauen, District Judge.

Defendant moves for dismissal of the indictment herein

on the grounds that it was a product of selective prosecu-

19a

Appendix B—Memorandum and Order

tion, its factual allegations are legally insufficient, and

certain improprieties occurred in the grand jury proceed-

ings.

The indictment charges that defendant, while chairman

of New York City Community School Board 23 in 1973,

unlawfully obtained money from Behavioral Research

Laboratories (“BRL”) “under color of official right” in

violation of the Hobbs Act, 18 U.S.C. §1951,' and con-

spired with BRL to defraud the United States in violation

of 18 U.S.C. §371.2. The payment was allegedly solicited

and paid to defendant while BRL was seeking hundreds

of thousands of dollars’ worth of business from the school

board.

To substantiate his claim that he is the victim of a dis-

criminatory prosecution, defendant requests the court to

conduct an in camera examination of the government’s

files and, if it finds that the prosecution was brought in bad

1In pertinent part, 18 U.S.C. §1951 provides:

“(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commod-

ity in commerce, by robbery or extortion or attempts or con-

spires so to do, or commits or threatens physical violence to

any person or property in furtherance of a plan or purpose

to do anything in violation of this section shall be fined not

more than $10,000 or imprisoned not more than twenty years,

or both.

“(b) As used in this section—

* * * * *

“(2) The term ‘extortion’ means the obtaining of property

from another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under color

of official right.”

Under 18 U.S.C, $371 it is a crime for “two or more persons

[to] conspire ... to defraud the United States, or any agency

thereof in any manner or for any purpose... .”

20a

Appendix B—Memorandum and Order

faith, to dismiss the indictment. The Second Circuit has

declared:

“To support a defense of selective or discriminatory

prosecution, a defendant bears the heavy burden of

establishing, at least prima facie, (1) that, while others

similarly situated have not generally been proceeded

against because of conduct of the type forming the

basis of the charge against him, he has been singled

out for prosecution, and (2) that the government’s dis-

eriminatory selection of him for prosecution has been

invidious or in bad faith... .” United States v. Ber-

rios, 501 F.2d 1207, 1211 (2 Cir. 1974).

Although the affidavit of his attorney, Gustave H. Newman,

Esq., presents allegations perhaps sufficient to satisfy the

second requirement, defendant has failed to offer any proof

to meet the first requirement.’ Defendant’s request for an

im camera examination of the prosecution's files must there-

fore be rejected. Zd. at 1211-12.

Nevertheless, defendant's claim of bad faith prosecution

warrant further discussion. Newman, his attorney, alleges

that two separate grand juries, one in 1973 and one in

1974-75, investigated defendant's affairs, including the pay-

ment from BRL, and found no criminality. In 1976 defen-

dant, a City Councilman in New York City and “a potent

leader in the Black community.” ran against incumbent

United States Representative Shirley Chisholm in a bit-

*The government asserts that defendant is unable to satisfy

the first requirement because at least three officials were indicted

and convicted in this district on similar violations of law since

the present United States Attorney entered office in 1974. United

States v. Trotta, 525 F.2d 1096 (2 Cir. 1975), cert. denied, 425

U.S. 971 (1976): United States v. Christenfeld, 75 CR 896:

United States v. McGrath, 76 CR 156. )

Zla

Appendix B—Memorandum and Order

terly fought primary which divided Brooklyn’s black com-

munity. Although defendant lost, his attorney now alleges

that his opponents pressed both the District Attorney and

the United States Attorney to launch a prosecution against

defendant. According to his attorney, these efforts suc-

ceeded in the United States Attorney’s office in this district

because the Assistant United States Attorney in charge of

the investigation was influenced by his wife, an attorney

who was involved with the political faction that has op-

posed defendant in his quest for public office.

David G. Trager, Esq., the United States Attorney for

this district, has submitted his personal affidavit refuting

defendant’s charges. As part of his efforts to combat offi-

cial corruption after his appointment as United States

Attorney in 1974, he created an Official Corruption Unit,

which began investigating defendant in late 1974. The first

witnesses concerning the BRL payment were not called be-

fore a grand jury until 1975. No previous grand jury had

considered the matter, Trager further alleges that in 1976

he personally decided to continue the investigation into

the BRL payment, and that the Assistant United States

Attorney, whose wife allegedly was an active opponent of

defendant, had nothing to do with this decision. On March

30, 1977, in response to a letter from defendant alleging

improprieties in the investigat on of his affairs, Attorney

General Griffin Bell advised defendant by letter that the

Justice Department’s Counsel on Professional Responsi-

bility had reviewed the investigation and had concluded

“that the investigation has been conducted in a thor-

ough and professional manner, under the direct

supervision of the United States Attorney, and that it

should continue to proceed in that fashion.”

22a

Appendia B—Memorandum and Order

On April 1, 1977, the grand jury handed up the indictment,

which had been delayed pending the report of the Counsel

on Professional Responsibility.

On the basis of the representations made by the United

States Attorney, and in light of the report by the Attorney

General and the Counsel on Professional Responsibility,

the court is satisfied that the prosecution has not been

conducted in bad faith or as the result of improper in-

fluence from anyone outside the United States Attorney’s

office.

Defendant’s next argument is that the Hobbs Act charge

must be dismissed as deficient in that it fails to allege he

was involved with organized crime and that he employed

some manner of coercion in obtaining the payment from

BRL.‘ Such allegations, however, are unnecessary to make

out a violation of the Hobbs Act. In United States v. Caci,

401 F.2d 664 (2 Cir, 1968), vacated in part on other

grounds, 394 U.S. 310, cert. denied in part, 394 U.S. 917,

931 (1969), the Second Circuit rejected the position that

the Hobbs Act was limited to racketeering cases. See also

United States v. Brecht, 540 F.2d 45, 51 (2 Cir. 1976).

Overt coercion is also not an element of the crime, for de-

fendant is charged with obtaining money “under color of

‘The Hobbs Act charge in the indictment reads as follows:

“On or about and between February 3, 1973 and February

14, 1973, .. . the defendant, Samue, D. Wriaut, unlawfully

did attempt to affect commerce and unlawfully did affect

commerce, and the movement of goods and services in com-

meree, . . . by knowingly and wilfully obtaining from Be-

havioral Research Laboratories, Inc., pursuant to a request

by him for a substantial sum of money, Five Thousand

($5,000.00) Dollars, the consent of Behavioral Research

Laboratories, Inc. to that payment having been induced by

the defendant, Samue, D, Wricnt, under color of official

right.” Count IT.

23a

Appendia B—Memorandum and Order

official right” rather than through “force, violence, or

fear,” which is a separate part of the Hobbs Act. United

States v. Trotta, supra, 525 F.2d at 1100 n. 7. “[I]t is the

use of the power of the public office itself to procure the

payments of money not owed to the public official or his

office that constitutes the offense.” Jd. at 1101. This was

adequately alleged in the indictment. Defendant’s conten-

tion that the BRL payment was owed him as an honor-

arium for his participation in a program sponsored by

BRL is a defense which must be tested at trial.

Defendant also challenges the sufficiency of the charge of

conspiracy to defraud the United States. The indictment

alleges the defendant and BRL

“wilfully and knowingly did conspire to defraud the

United States and its departments and agencies in

connection with the performance of its lawful govern-

mental functions by depriving the United States of the

impartial, fair and honest distribution of federal funds

and of the faithful and honest participation of the

Board of Education of the City of New York in the

financial grant program under Title I of the Elemen-

tary and Secondary Education Act of 1965.” Count I.

First, defendant asserts that there was no fraud upon the

United States because the alleged conspiracy focused on

the distribution of local school board funds. The indict-

ment clearly charges, however, that defendant conspired

to misuse federal funds that were given to the school board.

Second, defendant argues that the charge is defective be-

cause it contains no allegation that BRL knew that the

funds used to purchase its products were federal funds.

The government properly responds that the charge in the

indictment, as it stands, is adequate because it apprises de-

24a

Appendia B—Memorandum and Order

fendant, “with reasonable certainty, of the nature of the

accusation against him.” Russell v. United States, 369 U.S.

749, 765 (1962). Even if the government must show that

BRL knew that federal funds were involved, the allegation

that BRL “knowingly did conspired to defraud the United

States” with respect to Title I funds is sufficient. Third,

defendant contends that the conspiracy charge must fall

because the alleged conspirators had different aims,

namely, defendant allegedly wanted to extort money from

BRL, while BRL allegedly wanted to bribe defendant. Even

if this be true, however, the separate aims combined

smoothly in a conspiracy to defraud the United States.

The crimes of bribery and extortion often are present in

the same transaction. See United States v. Kahn, 472

F.2d 272, 279 (2 Cir.), cert, denied, 411 U.S. 982 (1973).

In his final set of arguments, defendant maintains that

there were certain failings and improprieties in the grand

jury proceedings. First, his attorney alleges that, “Cu]pon

information and belief, facts sufficient to establish the in-

terstate commerce element of a Hobbs Act violation were

not presented to the grand jury.” Newman Affidavit at

16-17. Absent any suggestion of improper use of the grand

jury, the court is unwilling to exercise its discretion and

inspect the grand jury minutes to determine whether there

was proof of the interstate commerce clement. See United

States v. Costello, 350 U.S. 359 (1956); United States v.

Tane, 329 F.2d 848 (2 Cir. 1964). With respect to the inter-

state commerce element, the Second Cireuit has stated:

“Given the sweeping power of Congress under the com-

merece clause , . . particularly evident in the Hobbs Act, it

is enough that the extortion ‘in any way or degree’. , .

affects commerce, though its effect be merely potential or

subtle.” United States v. ugello, 451 F.2d 1167, 1170-71

20a

Appendia B—Memorandum and Order

(2 Cir. 1971), cert. denied, 405 U.S. 1070 (1972). The in-

dictment alleges that BRL has its principal place of busi-

ness in California, and the government alleges that the

grand jury was advised that BRL maintains a permanent

office in New York. The depletion of assets (the payment

to defendant) of this out-of-state firm, apparently in-

volved in interstate commerce, may be enough to satisfy

the interstate commerce element of the Hobbs Act. Id.

Resolution of this issue must await trial.

Defendant also suggests that the government has

breached its legal and ethical duty to introduce exculpatory

evidence before the grand jury. His attorney alleges that

four witnesses who gave exculpatory evidence before “the

non-indicting 1973 Grand Jury” were not called before the

grand jury which indicted defendant in 1977. As men-

tioned above, the government states that there were no

grand jury proceedings against defendant in 1973 and that

the only grand jury investigation into the BRL payment

began in 1975 and concluded with the indictment in 1977.

Furthermore, the government denies that any of the four

witnesses named by defendant gave any testimony with

respect to the BRL payment. In any event, the government

has consented to allow defendant’s counsel to examine any

grand jury testimony of the four persons named by defen-

dant.

Finally, defendant alleges that the government improp-

erly used hearsay evidence before the grand jury without

describing it as such. The court is satisfied with the gov-

ernment’s response :

“Each of the critical witnesses against the defendant,

who we presently intend to call at trial, testified per-

sonally before the grand jury and, of course, the cor-

roborating documents were marked as evidence. We,

26a

Appendix B—Memorandum and Order

of course, intend to turn the grand jury testimony over

to the defendant, pursuant to Title 18 U.S.C. §3500, so

that the defendant will have ample opportunity to con-

firm our representation.” Memorandum of Law for

the United States at 41,

If defendant, after reviewing the grand jury testimony

provided him, finds reason to raise this issue again, the

court will deal with it at that time.

Accordingly, defendant’s motion to dismiss the indict-

ment and his request that the court conduct an in camera

inspection of the government’s files and of the grand jury

minutes are denied.

So OrDERED.

Dated: Brooklyn, N.Y.

March 28, 1978

Epwarp R. NeaHer

U.S. D. J.

—

- - _——

he