Petition — La Duca v. United States

FTC ED

= ee FEB 26 1979

Supreme Court of the siclhed Pratese, curr |

+

October Term, 1978

“ 78-1326

ANTHONY LA DUCA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STEVEN H. GIFIS

Attorney for Petitioner

68 Bayberry Road

Princeton, New Jersey 08540

(609) 466-3550

LUTZ APPELLATE PRINTERS. INC.

Law and Financial Printing

South River, NJ. New York. N.Y. Philadelphia, Pa. Washington, D.C

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-72%X

7

ff Supreme Court, U. &-

“gy

;

TABLE OF CONTENTS

SD GUT PARR RRR Ree GA cEnic cobs dc ncosccccccccccess

ae Ua sews s ess eoesb tecces

Order Denying Rehearing and Order Extending Time to File

Eri att se gocccccccccoccess

i eee Ea se ee uwescdceosscocecces

a SS os a cig cwesesececee

Reasons For Granting the Writ:

Il.

a.

Certiorari should be granted because the court

below, in ruling that defendants failed to exercise

due diligence by not insisting upon a full exploration

of the co-defendant’s privilege, cast doubt upon the

scope of the Fifth Amendment privilege as settled by

numerous decisions of the federal courts. ........

Certiorari should be granted so that this Court can

give guidance to divided federal courts on the

resolution of the recurrent issue under Fed. R. Crim.

P. 33 of a defendant who originally invokes his Fifth

Amendment privilege against self-incrimination but

later indicates willingness to testify on behalf of a co-

defendant once his original criminal exposure has

Dt MAGE eteR GUase pubRenwebsest ceccceccocce

Certiorari should be granted to resolve the conflict

created by the lower courts’ decisions with the

standards of due diligence widely held by federal

i ees Cees Case eececccosccccces

De ee see bececcccee

ii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Coates v. United States, 174 F.2d 959 (D.C. Cir. 1949)

wanes bb kce die whier0bsb cious ges socweunwhedsees 14, 15

Coplin v. United States, 88 F.2d 652 (9th Cir. 1937) ...... 11, 12

Estes v. United States, 254 F. Supp. 314 (W.D. Tex. 1966)

Rododecn qed WesndedGeobepnbes codes desesecdvessesons 15

Hoffman v. United States, 341 U.S. 479 (1951) ............ 8

LaBelle v. United States, 86 F.2d 991 (Sth Cir. 1936) ....... 12

Lefkowitz v. Turley, 414 U.S. 70 (1973) ........ceceeeeees 8

McAteer v. United States, 148 F.2d 992 (Sth Cir. 1945) ..... 12

Nagell v. United States, 354 F.2d 441 (Sth Cir. 1966) ....... 15

Ottomano v. United States, 468 F.2d 269 (Ist Cir. 1972),

OUR, GHOR, SOP UE. FERD coc hisgedcevncescsqceses 9

Prentice v. Hsu, 280 F. Supp. 384 (S.D.N.Y. 1968) ........ 9

Santobello v. New York, 404 U.S. 257 (1972) .............. 10

United States v. Cioffi, 242 F.2d 473 (2d Cir. 1957) ........ 9, 10

United States v. Franz, 469 F.2d 76 (9th Cir. 1972) ........ 9

United States v. Garcia, 544 F.2d 681 (3d Cir. 1976) ....... 8

iil

Contents

Page

United States v. Gernie, 252 F.2d 664 (2d Cir. 1958) ....... 9,10

United States v. Gordon, 246 F. Supp. 522 (D.D.C. 1965)

dh caked ECGS doa Lah be Made cade bn ots Wee 0 en we ee 14, 15

United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967) .... 10

United States v. lanelli, 528 F.2d 1290 (3d Cir. 1976) ...... 5

United States v. Jacobs, 475 F.2d 270 (2d Cir. 1973) ...... 11, 12

United States v. Johnson, 488 F.2d 1206 (Ist Cir. 1973)

PEE Pe STE eT ee re ee pe moe Fey 9

United States v. LaDuca, 546 F.2d 417 (3d Cir. 1976), cert.

Gonled, 650 UR, FES CURT) occ csvcccavssiscvccccstes 3

United States v. LaDuca, 447 F. Supp. 779 (D.N.J. 1978),

, ee Ss ey: | Bee re eT ery ee 1, 11

United States v. Mahady & Mahady, 512 F.2d 521 (3d Cir.

SOVE eule Gv ad cddatecdenhekeunl bsnunestessnaneeens 8

United States v. Malnik, 348 F. Supp. 1273 (S.D. Fla.),

aff'd, 489 F.2d 1407 (Sth Cir. 1972) ....ccccccccccccee 9

United States v. Matthews, 417 F. Supp. 813 (E.D. Pa.

SN into hans baune hs tan aseas cent anteakaeunceenes 8

iv

Contents

Page

United States v. Matthews, 424 F. Supp. 339 (E.D. Pa.

TEED ckcccevcacedceccebaccctcepenaenaennenasines 11, 12

United States v. Miranti, 258 F.2d 135 (2d Cir. 1958) ...... 9

United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), cert.

Genied, .... U.S...» { DP cmmebwivactaaarnaaee 13

United States v. Natelli, 553 F.2d 5 (2d Cir. 1977) ......... 15

United States v. Romero, 249 F.2d 371 (2d Cir. 1957) ...... 9, 10

United States v. Schwartzbaum, 527 F.2d 249 (2d Cir.

FD ce veekviceskeesdacesdevieusseuneereewee 15

United States v. Stephens, 492 F.2d 1367 (6th Cir. 1974),

ost. Geel, GES Di GRR cctccvtissuscescccsussenss< 9

United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert.

Boned, Gay. Oe. Sie Gee wer ectesacecenoussseasncn 13

United States v. Ward, 314 F. Supp. 261 (E.D. La. 1970)

one bobees $oen6e ee nde teésenunsaeenenceesnerebaes 9

United States v. West, 170 F. Supp. 200 (N.D. O. 1959)

oben ep obinee abd cheeky ounce aaa ees 15

United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978)

n't deta tenets oe exes ein cose eee 8

Statutes Cited:

BS Wa UO nas os cececccccéeecncesubecteuseeesuanees 3

TS UDA. GRRE GPO oc ccecccincconctseuccduenscn 3, 6, 12

\

Contents

Page

ee eens 6 cn alas phe ERs 05 eee besss 2

United States Constitution:

I oo creas ae éb'eh sce ahe-ewe.easeere Se By Fe 80, 89

RR ee eee Fe re 13

Rule Cited:

es ee | kc adine ca ccwkeneenceaucennes a oe 1

Other Authorities Cited:

Comment, A Re-Examination of Defense Witness Immu-

nity: A New Use for Kastiger, 10 Harv. J. Legis. 74

SUE £654 o 6 nlee Shiv Ree SATA EEGs Oe RO EAS Se ee Ch ORES 12

Comment, Right of the Criminal Defendant to the Com-

pelled Testimony of Witnesses, 67 Colum. L. Rev. 953

SOT CeGN KeWh kak CoS eCbe secs a kdaWRaw ides eeeeenuses 12

Wright, Federal Practice and Procedure, Criminal §557,

PE Ss cians eich gns en keeceakneknne ees 14

Weston, Confrontation and Compulsory Process: A Uni-

fied Theory of Evidence for Criminal Cases, 91 Harv. L.

te ee ed Uae be Cache de +an ee eee pads aa 12

Weston, The Compulsory Process Clause, 73 Mich. 71,

BREESE. en a epee ee a een 12

vi

Contents

Page

APPENDIX

Appendix A — Opinion of the United States Court of Ap-

peals for the Third Circuit of November 14, 1978 ...... la

Appendix B — Opinion of the United States District Court

for the District of New Jersey of March 10, 1978 ...... 12a

Appendix C — Affidavit of John Neiman Filed with the

United States District Court for the District of New

ge Sy ee Pr er roe 34a

In The

Supreme Court of the United States

—~¢

October Term, 1978

No.

ANTHONY LA DUCA

Petitioner,

VS.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for

the Third Circuit entered in this proceeding on November 14,

1978.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit is appended to this petition as Appendix A. It is as

yet unreported. The opinion of the United States District Court

for the District of New Jersey is appended to this petition as

Appendix B. It is reported at United States v. LaDuca, 447 F.

Supp. 779 (D.N.J. 1978).

2

JURISDICTION

The jurisdiction of the Supreme Court to review the final

judgment of the United States Court of Appeals for the Third

Circuit is based on 28 U.S.C. §1254(1).

ORDER DENYING REHEARING AND ORDER

EXTENDING TIME TO FILE PETITION FOR

CERTIORARI

A timely petition for rehearing was filed with the United

States Court of Appeals and denied by order entered on

December 27, 1978. Thereafter, an application was made to

Associate Justice William Brennan seeking an extension of time

within which defendant could timely file the within petition for

certiorari. On February 13, 1979 Justice Brennan entered an

order extending defendant's time to petition this Court for

certiorari until February 25, 1979.

QUESTIONS PRESENTED

1. When, after the defendant unsuccessfully attempted to

subpoena a pleading co-defendant, the defendant then acquired

the court’s assistance in summoning the witness; the court had

notice as to the purpose and scope of the witness’ proffered

testimony; the defendant mentioned placing the witness on the

stand; and the court excused the witness, thereby implicitly

ruling that the defendant was protected from testifying by the

Fifth Amendment; did the defendant fail to exercise due

diligence under Fed. R. Crim. P. 33 by not insisting upon a full

judicial inquiry into the validity of the witness’ assertion of his

privilege against self-incrmination?

2. When, after the defendant unsuccessfully attempted to

subpoena a pleading co-defendant; the defendant then acquired

the court’s assistance in summoning the witness; the defendant

mentioned to the court placing the witness on the stand; and the

3

court implicitly ruled that the witness was protected from

testifying by the Fifth Amendment; did the defendant fail to

exercise due diligence under Fed. R. Crim. P. 33 by not

requesting the government and the court to confer on the

witness use immunity under 18 U. S. C. §§6001, er seq.?

STATEMENT OF THE CASE

On January 23, 1976, Anthony LaDuca was convicted by a

jury of aiding and abetting one John Neiman’s willful

misappropriation of monies of the Paper Industry Union

Management Pension Fund in violation of 18 U.S.C. §664. On

direct appeal, the conviction was affirmed, United States v.

LaDuca, 546 F.2d 417 (3d Cir. 1976), and, after the government

was directed to respond, petition for certiorari was denied, 430

U.S. 965 (1977). In October 1977 the defendant filed a motion

for a new trial on the grounds of newly discovered and/or

available evidence — to wit, the testimony of his pleading co-

defendant, John Neiman, who invoked legitimately his Fifth

Amendment privilege against self-incrimination when originally

called to testify. The district court denied the motion; the circuit

court affirmed the denial on different grounds and denied a

motion for rehearing. The defendant has fully served an eighteen

month custodial term. He nonetheless continues to assert his

innocence and seeks review in this Court so that a new trial can

be had wherein that claim of innocence may be vindicated.

LaDuca, Neiman and two others were indicted by the

federal grand jury on February 3, 1975, on several counts,

including conspiracy, misappropriation of pension funds, and

misapplication of bank funds. Neiman, under a plea bargain,

pled to the conspiracy charge on November 24, 1975. LaDuca

was tried alone starting on January 19, 1976, and found guilty

four days later. (Charges against the other co-defendants were

dropped.) Neiman was sentenced on the conspiracy count and

the remaining counts against him were dismissed on March I,

1976.

4

La Duca’s trial strategy depended upon the introduction of

statements by Neiman to the effect that LaDuca had no

knowledge of the illegal source of the funds Neiman supplied to

initiate a real estate venture. Since Neiman had pled, LaDuca

anticipated that the government would call him to testify, at

which time LaDuca planned to elicit the exculpatory statements.

La Duca planned either to impeach any denials or to support any

affirmations with the testimony of two attorneys who were

present when Neiman made statements exculpating LaDuca

(T2.114-18 to T115-20).' In an extended discussion with the trial

court concerning the proffered testimony of the two attorneys, it

became evident that the government was not going to call

Neiman (T2.118-2 to 4). The court then ruled that the testimony

of the attorneys would not be admitted and said that if LaDuca

wanted to introduce Neiman’s statements LaDuca should call

Neiman (T119-13 to T120-1).

To acquire Neiman’s testimony, LaDuca first tried to

subpoena Neiman. Having sent his brother to effect service, but

not being able to determine the witness’ whereabouts, LaDuca

then enlisted the court’s aid and had Neiman summoned to

appear (1216-25 to T218-18). Once Neiman was present (T3.2-1

to 4), his counsel, Mr. Greenberg, fervently attempted to

expedite his exit. Before the court was ready to call the witness,

Greenberg interrupted the proceedings and brought to the

court’s attention Neiman’s intent to raise his privilege (T3.4-17

to 1T3.5-7). After some discussion of whether Neiman had

intended to testify, the court then asked him a single question

about whether he would invoke his privilege. Neiman

immediately said he would (T3.7-25 to T3.8-2). Defense counsel

1. “IT refers to transcript of the trial proceedings. No testimony was taken

on the motion for a new trial. The two lower courts relied exclusively upon the

papers in the matter which included a set of original affidavits, an opposing

affidavit from the government, and a further affidavit which was appended to

defendant's supplemental memorandum of law filed at the direction of the trial

court.

then questioned the court about the procedure to be followed,

explicitly mentioning putting Neiman on the stand (T3.8-13 to

14). After some continued discussion, Greenberg again pressed

for his client to be excused. After a moment, the court granted

the request (T3.12-9 to T3.14-2). Thus, following its informal

voir dire concerning Neiman’s privilege, the court implicitly

ruled on its validity by excusing the witness.

The defense, having lost its key witness and having been

denied the alternative means of introducing the key testimony,

was desperate in the wake of Neiman’s excusal. Shortly after the

witness left the courtroom, the defense made a last, desperate

attempt to get the testimony, suggesting that perhaps Neiman no

longer had a privilege since he had made a plea bargain and that

bargain would be enforceable (T3.14-23 to T3.15-6). The court

correctly recognized that other counts of the same indictment

were still outstanding against Neiman, and that these could form

the basis for a claim of privilege (T3.21-7 to 14). The defendant

later conceded the point (13.82-17 to 24).

In October 1977, LaDuca moved for a new trial pursuant to

Fed. R. Crim. P. 33 on grounds of newly-discovered /available

evidence.? in support of his motion, he offered several affidavits.

Affiant John Neiman swore that LaDuca had no knowledge of

the illegal source of the funds and that his jeopardy being no

longer existent he would be willing to testify on the behalf of

LaDuca (App. C, 35a, 38a, 1 71 6, 14). Affiants Feinstein and

Querques swore that in a pre-trial strategy session Neiman made

statements that LaDuca had no knowledge of the illegal source

2. It is commonly held that five requirements must be met before a new

trial will be granted on grounds of newly-discovered evidence: |) the evidence

must have been discovered since the trial ended; 2) the defendant must have

exercised due diligence in trying to discover the evidence before or during trial;

3) the evidence may not be merely cumulative or impeaching; 4) the evidence

must be material to the issues involved; 5) the evidence must be of such a

nature that on retrial it would probably produce an acquittal. See, e.g., United

States v. lanelli, 528 F.2d 1290 (3d Cir. 1976).

6

of the funds. Affiant Vort swore that during January 1974, he

overheard a conversation between LaDuca and Neiman in which

Neiman repeatedly assured LaDuca of the legality of funds

obtained by Neiman and that he did notinform La Duca of his

eavesdropping until after he had learned of LaDuca’s conviction.

Affiant Salvatore La Duca, the defendant's brother, swore to his

attempt to serve the witness Neiman with a subpoena at

Neiman’s home in Doylestown, Pennsylvania. Finally, affiant

LaDuca swore that he had no knowledge of the source of the

funds and that his trial defense was based upon Neiman’s

testimony exculpating him.

The trial court denied LaDuca’s motion on the grounds of

the defendant’s failure to exercise due diligence in attempting to

introduce Neiman’s testimony. Regardless of the facts that the

defendant planned his trial strategy around Neiman’s testimony,

had Neiman brought to court and mentioned putting Neiman on

the stand, the district court faulted the defendant for failure to

make the innovative request that the government confer use

immunity on the witness under 18 U.S.C. §§6001, et seg. On

appeal, the circuit court affirmed on different grounds. The

circuit court disavowed the lower court's reasoning but still

faulted the defendant for not exercising due diligence. Despite

the trial court’s and the witness’ knowledge of the scope and

nature of the questions to be asked; despite the trial court's

informal voir dire and implicit ruling on the validity of Neiman’s

privilege; despite the clarity of the case law to the contrary; the

circuit court faulted the defendant for not insisting upon a full

exploration of Neiman’s privilege and its validity.

3. The circuit court also suggested that Neiman’s testimony would not

“probably produce an acquittal.” Since this issue was not argued by the parties

below, and since no court below ever explored the issue and made a finding on

it, should this Court dezm the issue important to the ultimate granting of a

new trial, the case should be remanded for its proper consideration.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the court below, in

ruling that defendants failed to exercise due diligence by not

insisting upon a full exploration of the co-defendant’s privilege,

cast doubt upon the scope of the Fifth Amendment privilege as

settled by numerous decisions of the federal courts.

In faulting the defendant for not fully pursuing the issue of

whether Neiman had a privilege at that time, the Circuit Court

of Appeals stated that “the issue [of Neiman’s privilege] was not

clear-cut at that time.” (App. A, 9a). Such a finding is not only

contrary to the facts in the case but also to the holding of

numerous federal courts. Neiman had several valid grounds,

recognized by our courts, for his privilege — exposure to

sentencing; exposure to the other counts of the indictment; a

right of appeal; and exposure to possible state charges.

The trial court was well aware of at least two of these

grounds, since it had taken Neiman’s plea and had yet to

sentence him. The trial court also well knew of the purpose for

which Neiman was to be called since it was discussed when

LaDuca proffered the testimony of the two attorneys. When the

court sua sponte asked Neiman the single question about

invoking his privilege, Neiman’s response was direct. Although

the procedure involving Neiman’s raising his privilege was

irregular, that irregularity is manifestly due to the trial court's

impatience with an obvious point of law. Indeed, the trial court

ignored LaDuca’s suggestion that Neiman be placed on the

stand. Under such circumstances, it is unquestionable that all

parties present were satisfied that the circumstances surrounding

Neiman’s criminal lability formed sufficient basis for his

assertion of privilege.‘

4. The defendant's later attack upon Neiman’s privilege clearly lacks merit

as a matter of law and can only be viewed as the efforts of a desperate

defendant grasping for straws when his primary trial strategy was destroyed by

Neiman’s assertion of privilege.

The case law fully supports the trial court’s recognition of

Neiman’s privilege. If defendant pursued the legal argument the

Third Circuit suggests, he wou!d be arguing against not only the

settled case iaw of that jurisdiction but of all the federal courts.

In the Third Circuit's leading case on the issue, United States v.

Mahady & Mahady, 5:2 F.2d 521, 525 (3d Cir. 1975), the court

upheld a lawyer's assertion of the privilege when summoned by

the IRS to testify about certain financial transactions because

such testimony could have supported federal revenue

prosecutions. In so holding, that court said that the privilege

may be invoked by a compelled witness “when his answers to

questions ‘might incriminate him in future criminal

proceedings,” quoting Lefkowitz v. Turley, 414 U.S. 70, 77

(1973). The court also emphasized that “the self-incrimination

privilege ‘must be accorded liberal construction in favor of the

right which it was intended to secure,” quoting Hoffman v.

United States, 341 U.S. 479, 486 (1951). Since then, the courts of

the Third Circuit have consistently found valid assertions of the

privilege even after the defendant had pled guilty. Relying upon

Mahady, the court in United States v. Matthews, 417 F. Supp.

813, 819 (E.D. Pa. 1976), held that the privilege still obtained to

a pleading co-defendant called as a witness when two counts of

the indictment were still open against him and the plea bargain

had not yet been formally accepted by the court. In United

States v. Garcia, 544 F.2d 681, 684-86 (3d Cir. 1976), the court

found that the privilege obtained when a pleading defendant still

had to be sentenced and was still exposed to additional criminal

charges outside the indictment. Indeed, as the Third Circuit

panel indicated in its opinion herein, the court followed the

same judicial reasoning in United States v. Yurasovich, 580 F.2d

1212 (3d Cir. 1978). There, the court upheld the defendant's

assertion of the privilege when, after having pled guilty to two

counts of tampering with the mails, the defendant was still

exposed to a possible conspiracy indictment in the same district

and to possible similar charges in another district.

The bulk of federal law is consonant with the holdings of

the Third Circuit’s case law. Defendants, after having been

9

found guilty of some charges and having pled guilty to others,

have been found to still have a privilege when grand jury

testimony about the same events could have led to additional

charges. United States v. Miranti, 258 F.2d 135, 136-38 (2d Cir.

1958). A defendant has been held to have a privilege when still

exposed to a federal or state conspiracy charge and when

testimony could provide clues to other illegal transactions.

United States v. Johnson, 488 F.2d 1206, 1209 (Ist Cir. 1973). A

pleading defendant has been held to have the privilege when still

exposed to additional criminal charges. United States v. Franz,

469 F.2d 76, 77 (9th Cir. 1972); United States v. Stephens, 492

F.2d 1367, 1374 (6th Cir. 1974), cert. denied, 419 U.S. 852;

United States v. Ward, 314 F. Supp. 261 (E.D. La. 1970).

Indeed, a defendant has been found to retain the privilege even

after acquittal, when he was still exposed to possible charges.

United States v. Malnik, 348 F. Supp. 1273, 1276 (S.D. Fia.),

aff'd, 489 F.2d 1407 (Sth Cir. 1972).

In addition to cases of continued criminal exposure, the

federal courts hold that the privilege still obtains after the trial

disposition of the case when judicial proceedings concerning the

case are still in progress. The fact that an appeal is pending has

been deemed a relevant factor in determining the existence of the

privilege. United States v. Hains, 542 F.2d 1283, 1298 (7th Cir.

1976), cert. denied, 430 U.S. 934. Also, when appeal was

pending and retrial was a possibility, the privilege remains viable

to a defendant. Ottomano v. United States, 468 U.S. 269, 273-74

(Ist Cir. 1972), cert. denied, 409 U.S. 1128; Prentice v. Hsu, 280

F. Supp. 384, 388 (S.D.N.Y. 1968).

Any cases which might be cited to the contrary are easily

distinguishable. A line of Second Circuit cases have suggested, in

dicta, that a pleading defendant might not have a privilege.

United States v. Cioffi, 242 F.2d 473, 477 (2d Cir. 1957); United

States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957); United

States v. Gernie, 252 F.2d 664, 669 (2d Cir. 1958). But, in each

of these cases, not only was the witness successful in invoking his

10

privilege in the trial court, Cioffi, 242 F.2d at 476; Romero, 249

F.2d at 375; Gernie, 252 F.2d at 669, but the alternative bases

for the privilege (state charges, sentencing and appeal) were not

considered. The only other case supporting a lack of privilege

theory involved a witness invoking the privilege on cross-

examination—after he testified voluntarily on direct examination.

United States v. Hoffman, 385 F.2d 501, 505 (7th Cir. 1967).

Additionally, this case wars with the liberal view demonstrated

by a more recent case from the same circuit. See Hains, supra.

The circuit court in its opinion suggests that Neiman might not

have a privilege since, under Santobello v. New York, 404 U.S.

257, 263 (1972), he would be entitled to specific performance of

his plea bargain. This suggestion ignores the fact that Neiman’s

plea bargain only extended to the dismissal of the remaining

counts, and not the sentence to be received upon his guilty plea,

and also ignores the other bases of criminal exposure.

It is clear that Neiman, under the settled case law of the

federal courts, had a valid privilege to assert. As is evident from

the number of opinions on the issue, the question is a recurrent

One important to both prosecutors and defendants. A writ of

certiorari should issue so that this court can prevent any

incursion upon the privilege against self-incrimination which the

circuit court’s opinion would allow.

Certiorari should be granted so that this Court can give

guidance to divided federal courts on the resolution of the

recurrent issue under Fed. R. Crim. P. 33 of a defendant who

originally invokes his Fifth Amendment privilege against self-

incrimination but later indicates willingness to testify on behalf

of a co-defendant once his original criminal exposure has

passed.

The contrary positions of the district court and the circuit

court demonstrates that the federal courts lack any definite and

rational way to decide what the district court recognized as a

“recurring and troublesome question: Under what circumstances

will a new trial be required where an individual who has invoked

the privilege against self-incrimination and has not testified at

the trial of his co-defendant comes forward after trial and

conviction of his co-defendant and purports to be able and

willing to give testimony exculpatory of him.” United States v.

LaDuca, 447 F. Supp. 779, 781 (D.N.J. 1978) (App. B, 13a).

Courts have devised various solutions in dealing with new

trial motions presenting the above situation. The courts of the

Third Circuit itself demonstrate several different approaches. In

United States v. Matthews, 424 F. Supp. 339 (E.D. Pa. 1976),

the defendant moved for a new trial under circumstances that

mirror the case at hand —- a co-defendant who had pled guilty

but had not yet been sentenced before the movant’s trial came

forward after the movant’s conviction and offered exculpatory

evidence. The court, instead of analyzing the case under a “due

diligence” standard, characterized the evidence as not “newly

discovered.” 424 F. Supp. at 341. Instead of discussing whether

the defendant had access to the evidence for use at his trial, the

court focused upon prior courts’ exercise of caution as to and

disdain for such motions because of alleged possibilities of

collusion among co-defendants, citing Coplin v. United States,

88 F.2d 652, 665 (9th Cir. 1937), and United States v. Jacobs,

12

475 F.2d 270, 286 n. 33 (2d Cir. 1973). Cf, LaBelle v. United

States, 86 F.2d 991 (Sth Cir. 1936); McAteer v. United States,

148 F.2d 992 (Sth Cir. 1945).

The circuit court in this case took a different tact and

subjected the defendant's actions to strict judicial scrutiny and

found fault for lack of “due diligence” (App. A, 9a). The court,

whether in an attempt to set a higher standard or merely to

avoid the issue, faulted the defendant for not raising an issue

which was clear and upon which the trial court implicitly ruled

by dismissing the witness. The district court below similarly

based its decision upon due diligence grounds but also decided

the case on a totally different theory. That court said that the

defendant should have requested the government to confer

immunity upon Neiman since the government had access to his

testimony via 18 U.S.C. §§6001 ef seq.

The district court’s suggestion that the government confer

use immunity upon defense witnesses is salutory and would go

far in alleviating the problems inherent in this situation. The

bona fides of the defendant’s initial attempt to obtain the desired

testimony would be fully tested, since he would have to make

such a request well knowing that it could be granted. Hence, not

only would the need for new trial motions in this situation be

reduced by the use of the testimony at trial, but the fears of

collusion exhibited in Matthews, Jacobs and Coplin, supra,

would also be dissipated. The defendant would not be able to

make a facetious motion in anticipation of its denial and thus

preserve a claim for a new trial. The benefits of defense-initiated

immunity in a trial setting has been much commented upon. See

generally, Weston, The Compulsory Process Clause, 73 Mich. L.

Rev. 71, 166-170 (1974); Comment, Right of the Criminal

Defendant to the Compelled Testimony of Witnesses, 67 Colum.

L. Rev. 953 (1967); Comment, A Re-Examination of Defense

Witness Immunity: A New Use for Kastigar, 10 Harv. J. Legis.

74 (1972); Weston, Confrontation and Compulsory Process: A

Unified Theory of Evidence for Criminal Cases, 91 Harv. L.

A 8

tome

~oe

a

13

Rev. 567 (1978). Cf, United States v. Morrison, 535 F.2d 223

(3d Cir. 1976), cert. denied, __ U.S. (___ ). Not only would

defense-initiated immunity create an enhanced atmosphere of

fairness at trial and substantially aid the Sixth Amendment right

of compulsory process, but it would also lend a high degree of

certainty to resolving claims such as the one at hand and serve to

ferret out such claims as clearly lack merit. Should the court find

this meritorious procedure to be mandated by either the

compulsory process clause of the Sixth Amendment or the due

process clause of the Fifth Amendment, this case should be

remanded . for a hearing, in lieu of the procedure, on the bona

fides of LaDuca’s desire for Neiman’s testimony.

Since the federal courts have demonstrated inability to

resolve under a consistent theory new trial motions stemming

from the newly available testimony of a pleading co-defendant

who previously and validly invoked his Fifth Amendment

privilege against self-incrimination, and since it is peculiarly

within this Court's jurisdidffon to settle issues arising under the

Federal Rules of Criminal Procedure, it is respectfully urged

that a writ of certiorari issue so that this Court may give

guidance to federal courts in deciding issues of this nature.

Certiorari should be granted to resolve the conflict created

by the lower courts’ decisions with the standards of due diligence

widely held by federal courts.

It is settled doctrine that in order to be granted a new trial

on grounds of newly discovered evidence, the defendant must

show, inter alia, that he exercised due diligence in attempting to

get that evidence. See, e.g., United States v. Stofsky, 527 F.2d

237, 244 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976). Both

the district and the circuit courts in this case imposed upon the

defendant a higher degree of due diligence than has heretofore

been recognized by the federal courts. The defendant

14

subpoenaed the witness, had him summoned to court, and

mentioned placing the witness on the stand. After the trial court,

in exercising its authority over the proceedings, conducted an

abbreviated and informal voir dire of the witness, and then

implicitly ruled that the witness had a privilege by excusing him

from the courtroom, it faulted the defendant for not proposing a

novel theory of law in order to show due diligence and thus

preserve his right to a new trial. The circuit court, dissatisfied

only with the district court’s reasoning, imposed the same lofty

standard of due diligence in affirming the district court’s denial.

The circuit court faulted the defendant for not pursuing a

facetious legal theory, suggested desperately by the defense only

after the proceedings were totally beyond its control and the

witness crucial to its case was leaving the courtroom.

The due diligence standard has been said, uncontradictedly,

to require ordinary diligence, not the highest degree of diligence.

United States v. Gordon, 246 F. Supp. 522, 525 (D.D.C. 1965),

cited at Wright, Federal Practice and Procedures, Criminal

§557, n. 16 (1969). In applying the standard, the Gordon court

granted a new trial when the defendant was able to locate

evidence impeaching the complaining witness only after trial.

The impeaching evidence was the witness’ prior larceny

conviction. The defense originally searched police records for it

under the witness’ names of Horace Leroy Logan, Jr. and

Horace L. Logan; the information appeared under the name of

Leroy Logan. In grantig a new trial, the court said:

“The attorney for the defendant acted in good

faith throughout, although perhaps he was not as

imaginative as others might have been under the

same circumstances. However, | find that he was

diligent in the sense that I understand the term.”

246 F. Supp. at 525.

Similarly, in Coates v. United States, 174 F.2d 959 (D.C. Cir.

1949), the court found due diligence when defense counsel

a rr TT

15

repeatedly visited a police station prior to trial in order to try to

obtain evidence. Cf., United States v. West, 170 F. Supp. 200,

208 (N.D.O. 1959). In Nagell v. United States, 354 F.2d 441 (Sth

Cir. 1966), a new trial was granted when the defendant had

knowledge of the newly-discovered evidence but failed to

disclose the knowledge to his counsel because of a mental illness.

Similar to Gordon and Coates, LaDuca made every reasonable

effort to obtain Neiman’s testimony, from bringing him to court

to mentioning placing him on the stand. Like Nagell, disclosure

of the evidence was hindered through no fault of his own —

Neiman had a privilege which LaDuca could not overcome. Like

Gordon, LaDuca could not be expected to suggest to the court

the innovative and novel legal theory which, despite its salutary

aspects, has been rejected by nearly all of the few courts which

have entertained it.

The cases which deny motions for new trials because of lack

of due diligence are based upon the availability of the evidence

or of leads to the evidence at trial and the defense’s failure to

pursue that evidence. For instance, in United States v. Hearst,

424 F. Supp. 307 (N.D. Cal. 1976), the court denied the motion

when the newly-discovered evidence of prior inconsistent

statements was available to the defense through previously

disclosed grand jury testimony. Cf, Estes v. United States, 254

F. Supp. 314, 330-34 (W.D. Tex. 1966), holding lack of due

diligence where defendant who had all his mental facilities failed

to tell counsel of additional evidence. See also, United States v.

Natelli, 553 F.2d 5, 7-8 (2d Cir. 1977); United States v.

Schwartzbaum, 527 F.2d 249, 254 (2d Cir. 1975).

It is clear that the decisions of the district and the circuit

courts in this case go beyond those of other cases denying new

trial motions in scrutinizing the diligence of the defense in

acquiring the evidence for the first trial. The decisions in this

case are also clearly contrary to the other federal decisions

granting such motions. It is urged that a writ of certiorari be

16

granted in this case so that the Supreme Court may settle this

conflict between the circuits and resolve the issue arising under

Fed. R. Crim. P. 33, and thus within this Court’s special

province.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

this petition for a writ of certiorari to the United States Court of

Appeals for the Third Circuit should be granted.

Respectfully submitted,

s/ Steven H. Gifis

Attorney for Petitioner

. af ewe ee

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT OF

NOVEMBER 14, 1978

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 78-1356

UNITED STATES OF AMERICA

VS.

Anthony R. La Duca,

Appellant

Before SEITZ, Chief Judge, ADAMS and ROSENN, Circuit

Judges

(filed November 14, 1978)

ADAMS, Circuit Judge

Anthony 1a Duca appeals from a denial by the district

court of his motion for a new trial, which had been predicated

upon newly discovered evidence. La Duca had premised his

motion on an affidavit by one John Neiman stating that he was

now prepared to testify to La Duca’s innocence. Neiman was the

other principal participant in the activities for which La Duca

had been convicted. The trial judge denied the moiion, reasoning

that inasmuch as La Duca had not sought to compel Neiman’s

2a

Appendix A

testimony at the trial by requesting that the government confer

use immunity upon Neiman, he had not exercised the diligence

in procuring the newly discovered evidence that is required to

prevail on such motion. Although we affirm the order denying

the motion for a new trial on the strength of all the facts in the

record, we wish to make clear that we do not affirm the

proposition advanced by the trial judge since it is contrary to the

settled rule of this Court as well as that of other circuits.

La Duca, Neiman, and two other men were indicted in 1975

for conspiring to embezzle money from a union pension fund,

for embezzling $100,000 from that fund, and for related offenses.

Neiman pleaded guilty to the conspiracy count on November 24,

1975, and La Duca stood trial by himself on the single charge of

embezzlement. La Duca was convicted based on a jury verdict

entered on January 23, 1976. On March |, 1976, Neiman was

sentenced to three years imprisonment and the remaining counts

against him were dismissed. La Duca was sentenced on March

24, 1976, to a three year prison term. !

For purposes of this appeal it is necessary to review those

aspects of La Duca’s trial that relate to Neiman’s availability as

a witness. Neiman appeared at the trial with his attorney on

January 21, 1976, after efforts to locate him were made by both

the government and the defense. Neiman’s attorney informed the

judge that his client would not testify on behalf of either side,

‘

1. This Court affirmed the conviction, United States v. La Duca, 546 F.2d

417 (3d Cir. 1976), and the Supreme Court denied certiorari, 430 U.S. 965

(1977). La Duca’s sentence was subsequently reduced to eighteen months.

3a

Appendix A

and that if called to the stand, Neiman would invoke his

privilege against self-incrimination. Counsel also stated that he

had apprised both sides of this position when they sought

Neiman’s testimony. The judge asked Neiman if he would invoke

the privilege against self-incrimination if he were called, and

Neiman answered in the affirmative. Defense counsel moved to

have Neiman invoke the privilege in the presence of the jury, but

the judge denied the motion on the ground that invocation of

the privilege is a matter of no legal significance.?

Neiman was excused and left the courtroom. Then, defense

counsel pointed out that although several counts were still open

against Neiman, in view of the fact that Neiman had already

pleaded guilty to one count as part of a plea bargain to dismiss

the remaining counts, he might not be able to invoke the fifth

amendment. The judge reprimanded defense counsel for not

raising the point before Neiman was dismissed, but agreed to

examine Neiman if he were brought back. However, Neiman

could not be found. Defense counsel, after consulting with La

Duca on whether he should press the issue, conceded that

perhaps Neiman could still invoke the fifth amendment privilege,

and let the matter rest.3

In October, 1977, La Duca moved for a new trial, pursuant

to Federal Rule of Criminal Procedure 33, based on newly

2. Appellee’s Supplemental Appendix at 35b-41b.

3. Id. at 43b-SIb.

4a

Appendix A

discovered evidence. His motion was accompanied by an

affidavit in which Neiman declared that he was now willing to

give testimony that would exculpate La Duca, and explained

that he had not appeared at trial on La Duca’s behalf because at

that time he was still in jeopardy on the open counts of the

pending indictment and feared that if he testified a more severe

sentence would be imposed on him in retaliation for his

testifying.

To prevail on a motion for a new trial on the ground of

newly discovered evidence, a defendant bears the heavy burden

of establishing five requirements:

(a) the evidence must be in fact, newly

discovered, i.e., discovered since the trial; (b) facts

must be alleged from which the court may infer

diligence on the part of the movant; (c) the evidence

relied on, must not be merely cumulative or

impeaching; (d) it must be material to the issues

involved; and (e) it must be such and of such,

nature, as that, on a new trial, the newly discovered

evidence would probably produce an acquittal.‘

The district court based its denial of the motion for a new trial

upon La Duca’s failure to meet the second requirement, stating

that La Duca had not been diligent in attempting to obtain the

evidence prior to the conclusion of his trial since La Duca had

not requested that the government confer use immunity upon

Neiman.

4. United States v. lannelli, 528 F.2d 1290, 1292 (3d Cir. 1976), quoting

United States v. Howell, 240 F.2d 149, 159 (3d Cir. 1956).

Sa

Appendix A

The trial judge conceded that as the law now stands,

“absent special circumstances, the Sixth Amendment imposes no

affirmative obligation on the government to confer immunity on

a witness in order to make that witness's testimony available to a

defendant.’ Still, the judge asserted, “For me, however, ...a

Sixth Amendment breach would occur.” The lower court

further posited that even if no sixth amendment obligation

existed and even if the court is powerless to compel the

government to immunize a defense witness, due process

considerations of fairness “mandate that the government request

use immunity for a defendant's witness or be barred from

prosecuting the defendant.”’ Having laid this groundwork, the

district court concluded that since La Duca had not requested

the government to immunize Neiman, he had failed to exercise

due diligence and consequently was not entitled to a new trial.

We cannot subscribe to the district court’s analysis, which

rests on two propositions. First, it is maintained that the sixth

amendment or the due process clause mandates that the

government make use immunity available to a defendant.

Second, as a corollary of the foregoing, it is contended that

defense counsel does not exercise due diligence in obtaining

evidence if he fails to request immunization of a witness who

would otherwise invoke the fifth amendment privilege.

5. United States v. La Duca, Crim. No. 75-56, typed opinion at 12 (D.

N.J., filed March 10, 1978).

6. Id.

7. Id. at 13.

6a

Appendix A

The first proposition, though suggested by a number of

commentators* as a practical solution to the recurring problem

of obtaining the -llegedly exculpatory testimony of defense

witnesses who refuse to incriminate themselves,’ has been

8. Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 166-70

(1974); Comment, Right of the Criminal Defendant to the Compelled

Testimony of Witnesses, 67 Colum. L. Rev. 953, 956 n.19 (1967); Comment, A

Re-Examination of Defense Witness Immunity: A New Use of Kastigar, 10

Harv. J. Legis, 74, 79 (1972); Note, The Sixth Amendment Right to Have Use

Immunity Granted to Defense Witnesses, 91 Harv. L. Rev. 1266 (1978).

9. It is contended with a degree of ingenuity that in the aftermath of 18

U.S.C. §§6002 and Kastigar v. United States, 406 U.S. 441 (1972), a practical

approach exists for resolving the competing values of the fifth amendment

privilege of a witness against self-incrimination and the sixth amendment right

of a defendant to have compulsory process for obtaining witnesses in his favor.

Traditionally, it has been held that a defendant's right must yield to the

witness’ privilege, and that the defendant may be tried without the benefit of

the exculpatory testimony. £.g., Holloway v. Wolff, 35! F. Supp. 1033, 1037-

38 (D. Neb. 1972), rev'd on other grounds, 482 F.2d 110 (8th Cir. 1973).

Although theoretically the witness could be stripped of his privilege by

granting him immunity from prosecution, prior to 1970 such an approach

would have severely hampered the efforts of law enforcement authorities, who

were at that time required to provide full transactional immunity to

prospective witnesses to remove their constitutional privilege. However, in

1970 Congress enacted 18 U.S.C. §6002, which confers only use immunity

upon witnesses who are compelled to testify, and this statute was upheld

against constitutional attack ig Kastigar. Since under use immunity the

government may still prosecute a witness on the basis of evidence gathered

from sources independent of the witness’ testimony, it is argued that the

(Cont'd)

Ta

Appendix A

rejected to date by this as well as other courts of appeals.

Rather, it has been uniformly accepted that the grant or denial

of immunity is within the sole discretion of the executive branch

of government, and that neither the courts nor defense counsel

may force the prosecutor to compel the testimony of a defense

witness.'° As we recently confirmed in United States v.

(Cont'd)

government's interest in withholding immunity is now insufficient to outweigh

the defendant's sixth amendment interest in producing exculpatory testimony,

and that consequently the government must immunize defense witnesses. See

Westen, supra note 8, at 166-70.

The government maintains that notwithstanding the availability of use

immunity, a requirement that it be compelled to immunize defense witnesses

would jeopardize its investigations and prosecutions, United States Attorneys

Manual §1-!1.230 (1977), and urges here that the district court’s order denying

La Duca’s motion for a new trial be affirmed on other grounds.

Thus, neither La Duca nor the government has advanced on appeal the

theory propounded by the district court. In view of this fact and in view of the

fact that even were this Court now to adopt the first proposition of the district

court we would be precluded from attiming the district court's rationale

because of our discussion of that court's second proposition, it is inappropriate

at this juncture to reconsider the settled rule as enunciated in our earlier

opinions.

10. E.g., United States v. Housand, 550 F.2d 818, 824 (2d Cir.). cert.

denied, 431 U.S. 970 (1977); United States v. Alessio, 528 F.2d 1079 (9th Cir.

1976); United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974),

cert. denied, 421 U.S. 999 (1975); United States v. Berrigan, 482 F.2d 171 (3d

Cir. 1973); Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966), cert. denied,

388 U.S. 921 (1967) (suggesting, however, at 361 F.2d at 534 n.1 that there may

be a due process violation if the prosecution immunizes its own witnesses while

(Cont'd)

8a

Appendix A

Niederberger, No. 77-1575, at 6-7 (3d Cir., filed May 5, 1978):

The rule in this Circuit is clear; a trial court has no

authority to provide use immunity for a defense

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

228-29 (3d Cir. 1976) cert. denied, —— S.Ct.

—___(197__); United States v. Berrigan, 482 F.2d

171, 190 (3d Cir. 1973). Similarly, except in an

extraordinary circumstance..., a trial court

cannot compel the Government to offer such

immunity to a prospective witness. Morrison, supra,

535 F.2d at 229.

Cont’

perl immunize defense witnesses). For a lone voice in opposition, see

United States v. Gaither, 539 F.2d 753 (D.C. Cir. 1976) (statement of Bazelon,

C.J., as to why he voted to deny rehearing en banc), cert. denied, 429 U.S. 961

(1976); United States v. Leonard, 494 F.2d 955, 985 n.79 (D.C. Cir. 1974)

(Bazelon, C.J., concurring and dissenting).

In United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976), this Court

commented that

{t Jhere are circumstances under which it appears due process

may demand that the Government request use immunity for

a defendant's witness ... Such a circumstance was created

in this case when prosecutorial misconduct caused the

defendant's principal witness to withhold out of fear of self-

incrimination testimony which would otherwise allegedly

have been available to the defendant.

The absence of any suggestion of prosecutorial misconduct in the present case

makes Morrison inapplicable.

«7

9a

Appendix A

Since the first proposition contradicts the accepted rule of

law in this Court, its corollary, the second proposition, must fail.

A defendant cannot be faulted for not exercising due diligence to

request use immunity if settled case law does not indicate that he

could successfully make such a request.

Although we are constrained to disagree with the district

court’s rationale, we nevertheless affirm the denial of the motion

for a new trial because the record provides alternative grounds

for refusing to grant the motion.'!' The defense exhibited a lack

of due diligence in failing to bring to the judge’s attention until

after Neiman had departed from the courtroom that the

privilege against self-incrimination might no longer be available

to Neiman. Whether or not Neiman in fact was still privileged at

the time in question is now irrelevant. Since the issue was not

clearcut at that time!? and since the defense did not pursue its

ll. See, e.g., PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir. 1974), cert.

denied, 419 U.S. 1108 (1975) (“It is proper for an appellate court to affirm a

correct decision of a lower court even when that decision is based on an

inappropriate ground.”) (emphasis in original).

12. On the one hand, it might have been concluded that since Neiman was

entitled to “specific performance” of his plea bargain agreement, under which

the remaining counts were to be dismissed, Santobello v. New York, 404 U.S.

257, 263 (1972), those remaining counts could not have furnished a basis for

Neiman’s claim of privilege. On the other hand, this Court has been most

reluctant to hold that a witness may no longer invoke the privilege against self-

incrimination when any possibility of injury from his own testimony still exists.

See United States v. Yurasovich, No. 78-1066 (3d Cir., filed July 26, 1978)

which was decided after the completion of La Duca’s trial.

10a

Appendix A

resolution as part of a sustained effort to compel Neiman’s

testimony, the defense never discharged its responsibility to act

diligently in procuring the evidence on which it now seeks to

base its motion for a new trial.

We also note that La Duca has not satisfied the weighty

burden of convincing the district court that the newly discovered

evidence “would probably produce an acquittal.”!3 Neiman’s

lengthy criminal record, which includes crimes of fraud, would

have made him easily impeachable. Particularly reminiscent of

the situation in this case, is Neiman’s posture in United States v.

Crisona, 271 F. Supp. 150 (S.D.N.Y. 1967), aff'd 416 F.2d 107

(2d Cir. 1968). There, a co-defendant sought a severance on the

ground that Neiman’s testimony would exculpate him.'4

Severance was denied and, despite the co-defendant’s forecast,

Neiman subsequently testified as a government witness.!5 The

13. See text accompanying note 4 supra.

14. 271 F. Supp. at 153.

1S. 416 F.2d at 109.

The trial court in this case expressed similar concern whether a new trial

could be predicated upon Neiman’s promised testimony:

Any rule of law which would result automatically in a new

trial upon the submission of an affidavit like the one in this

case would place tremendous and dangerous power in the

hands of a pleading co-defendant. It would enable him to

(Cont'd)

os

Appendix A

defense has made no effort to dispel the inevitable inference

from Neiman’s past that Neiman’s testimony would be unlikely

to result in an acquittal.

We have reviewed La Duca’s other contentions and find

them to be without merit. Accordingly, the order of the district

court will be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

(Cont'd)

give to a co-defendant who chooses to go to trial the gift of

a second chance if the first jury should convict, and this

where there is substantial doubt as to whether the witness's

testimony was even desired at the time of the original trial

and thus substantial doubt as to whether that now- proffered

exculpatory testimony is worthy of belief,

United States v. La Duca, Crim. No. 75-56, typed opinion at 10 (D. N.J., filed

March 10, 1978).

12a

APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

OF MARCH 10, 1978

UNITED STATES of America

v.

Anthony R. LA DUCA.

Crim. No. 75-56.

United States District Court,

D. New Jersey.

March 10, 1978.

STERN, District Judge.

Defendant Anthony La Duca stands convicted of willful

embezzlement of funds of the Paper Industry Union

Management Pension Fund, in violation of 18 U.S.C. §664. He

now moves, pursuant to Rule 33 of the Federal Rules of

Criminal Procedure, for a new trial on the ground of newly

discovered evidence. The claimed newly discovered evidence

consists of the testimony of La Duca’s co-defendant John

Neiman. Neiman had pleaded guilty and was awaiting sentence

at the time of La Duca’s trial. Called to the stand by La Duca

during trial, Neiman invokéd his Fifth Amendment privilege and

declined to testify. Now, long after Neiman’s sentencing and

after denial of several applications for reduction of sentence,

l3a

Appendix B

Neiman states that he is prepared to exculpate La Duca by

testifying that he, Neiman, alone was guilty of the crime

charged. This case thus presents the recurring and troublesome

question: Under what circumstances will a new trial be required

where an individual who has invoked the privilege against self-

incrimination and has not testified at the trial of his co-

defendant comes forward after trial and conviction of that co-

defendant and purports to be able and willing to give testimony

exculpatory of him.

On February 3, 1975, a federal grand jury returned an

indictment charging Anthony La Duca, John Neiman, Guido

Rocco, and Herman Levine with conspiracy to steal money from

a pension fund, in violation of 18 U.S.C. §371; embezzlement

of money of a pension fund, in violation of 18 U.S.C. §664;

misapplication of bank funds, in violation of 18 U.S.C. §657;

and several other crimes. On November 24, 1975, Neiman

pleaded guilty to the conspiracy count. On January 19, 1976, the

government moved the trial of La Duca on the embezzlement

count alone. The charges against Levine and Rocco were

eventually dismissed.

The government’s proofs at trial showed that La Duca, a

disbarred attorney, met Neiman in federal prison where both

were incarcerated, La Duca following conviction on federal

perjury charges. Their scheme to embezzle pension funds began

at least as early as December 1973, when La Duca and Neiman

presented to a New Jersey bank a $100,000 check drawn on an

account of the Paper Industry Union Management Pension

Fund and payable to the pension fund. Neiman introduced

l4a

Appendix B

himself to the bank officers as a financial consultant to the

pension fund, a position which he did not hold, and he

exchanged the check for a $100,000 certificate of deposit payable

to the fund. Shortly thereafter, Neiman and La Duca returned to

the bank and proposed another transaction. This time they

possessed three $100,000 checks drawn on the fund and payable

to the bank. They requested that the bank issue three $100,000

certificates of deposit — two payable to the pension fund and

one payable to Playmate Enterprises, Inc., a corporation formed

by Neiman and La Duca. The bank officers informed Neiman

and La Duca that the bank could not issue a certificate of

deposit to a private corporation on a check drawn against a

pension fund, and refused to participate in the proposed

transaction.

Neiman and La Duca took their business elsewhere.

According to the testimony of Guido Rocco, then president of

the Totowa Savings and Loan Association, they took the three

checks to his bank. They. proposed to Rocco the same

transaction proposed to the first bank. Initially, the Totowa

bank was not interested in the transaction because it was not the

payee of the checks. La Duca and Neiman left and returned with

pension fund checks made payable to the Savings and Loan.

They again sought to have the bank issue certificates of deposit,

one to the fund, and one to Playmate Enterprises. Rocco

advised them that his bank could not do that without a written

resolution from the pension fund or cashier’s checks in lieu of

the pension fund checks. Neiman and La Duca obliged and had

one of the checks exchanged for a cashier’s check, thereby

A tat Sel Wt A AT a eam

~ ee

Cane ee

1Sa

Appendix B

disguising the source of the funds. The Totowa bank accepted

the checks and issued two certificates of deposit, one payable to

the fund and the other payable to Playmate Enterprises, Inc.

Neiman and La Duca immediately borrowed $80,000

against the certificate of deposit that was payable to Playmate

Enterprises, Inc. This money was deposited in Playmate’s

checking accounts. Twenty thousand dollars was immediately

drawn out in cash. Within several months, the remainder of the

money had been withdrawn from the Playmate accounts on

checks signed by Neiman and/or La Duca and payable in large

part to cash.

La Duca took the stand. His defense was that he was

without criminal intent. He testified that he believed that

Neiman was authorized to possess monies of the pension fund

and to invest them in commercial ventures like Playmate

Enterprises, Inc.

The jury deliberated less than two hours and returned a

verdict of guilty. The conviction was affirmed by the Court of

Appeals for the Third Circuit. Certiorari was denied. La Duca

was sentenced to a three-year term; on Rule 35 motion, the

sentence was later reduced to 18 months. The defendant is

presently incarcerated.

The motion now before the Court ig based on the affidavit

of John Neiman. Neiman therein states that La Duca

approached him early in 1973 with an idea for a business

venture. Neiman told La Duca that he would be interested in a

16a

Appendix B

partnership and that he, Neiman, could obtain all necessary

financing. He states that in late 1973 he was approached by

Theodore Potash who offered, for a fee, to introduce him to a

source of investment capital. Potash introduced him to James

Fabio, the administrator of the pension fund. Fabio was

Neiman’s source for the checks. In return, Neiman paid Potash

and Fabio. According to the Neiman affidavit:

La Duca had no knowledge of these

meetings, nor did he have knowledge of how,

where, or why the money was given to me... .

Neiman affidavit, Sept. 20, 1977, Para. 8.

Neiman further states that:

Prior to and at the actual time of receipt of the

money by me, both La Duca and his wife

interrogated me regarding the propriety of the

funds and I assured them that it was a perfectly

legal business transaction and that the unions

made investment loans every day of the

year....1 am convinced that if the La Duca’s

were remotely aware that the loans were even

tainted by illegality, they would have disassociated

themselves from our business ventures

immediately. ‘

atti OOO a) it si

ee eee

17a

Appendix B

Id., Para. 10.!'

This Court is entitled to view with some skepticism a motion

for a new trial based on “newly discovered evidence” which

exists only because a convicted defendant who had earlier

availed himself of his privilege not to testify comes forward later

with an affidavit in which he states that he is not prepared to

exculpate his co-defendant. Such a claim is inherently suspect.

See United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2nd Cir.)

(Friendly, C.J.), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38

L.Ed2d 53 (1973).

Under some circumstances, the granting of a new trial so

that such testimony can be presented to a jury is a result which is

just and proper. But in the great majority of cases there is an

unspoken premise which, once recognized, must cause a court to

proceed with caution.

The Court cannot be blind to the real possibility that the

defendant who stood trial did not genuinely desire that his

pleading co-defendant testify at that trial, and thus that the new

evidence is not worthy of belief.

1. Neiman’s position is, in part, corroborated by the affidavit of Stuart

Vort dated August 30, 1977. In his affidavit, Vort states that in January of

1974, while in La Duca's office, he overheard a conversation between Neiman

and La Duca in which “Neiman repeatedly assure [sic] La Duca about the

accessability [sic] and legality of the financing obtained and to be obtained by

Mr. Neiman.” He further states that he did not reveal to La Duca the fact that

he had overheard this conversation until after La Duca’s conviction.

18a

Appendix B

The co-defendant who has admitted his guilt and who is

awaiting sentencing is concerned with what the sentencing court

will do. That very concern is a_ potent guarantee of

trustworthiness. Once sentence is imposed, however, there is

very little to deter the pleading co-defendant from untruthfully

swearing out an affidavit in which he purports to shoulder the

entire blame. In these circumstances, the possibility of a

successful prosecution for perjury is not a sufficient guarantee of

trustworthiness. If the new trial motion is granted, two new

trials would be required. If the motion for a new trial is denied,

a perjury prosecution would probably require a replay of the

original trial to establish the untruthfulness of the affiant’s

statements. Most prosecutors do not have the resources to

constantly retry the same issues against the identical defendants.

If a pleading defendant invokes his privilege against self-

incrimination at his co-defendant’s trial, his testimony does, of

course, become unavailable. But there is every likelihood that at

that point in time, his testimony was unwanted as well, and what

was desired instead was an issue for appeal or for a new trial

motion later.

In La Duca’s case, the record strongly suggests that this

scenario is not a mere hypothetical. The transcript of trial clearly

indicates that La Duca had no genuine wish to put Neiman on

the witness stand.

During the course of La Duca’s trial, counsel for La Duca

proposed instead to introduce Neiman’s exculpatory statements

through the testimony of attorneys who were present at a post-

19a

Appendix B

indictment, pre-trial strategy meeting. The attorneys would have

testified, or so it was represented, that Neiman had told them

that La Duca was innocent of the charges and that La Duca did

not know the source of the funds.

The Court advised that if the government called Neiman as

a witness, the defense could, of course, confront Neiman with

these statements. If Neiman admitted having made them, there

would be no need to call the lawyers to testify. If Neiman denied

them, the Court indicated that the defense could impeach him

with the prior inconsistent statements.

Counsel for La Duca wanted to know what would happen if

the government chose not to call Neiman. The Court suggested

that, in that event, the defense could call Neiman and introduce

the evidence through him. Counsel for La Duca ignored the

suggestion, making clear to the Court that under no

circumstances did he want Neiman himself on the stand.

Counsel for La Duca reiterated his view that the lawyers’

testimony was crucial, whether or not Neiman was called to

testify. The Court restated its view that the proper way to get

Neiman’s testimony before the jury was to call Neiman to the

stand.

By this time, the government had disclosed that it had no

intention of calling Neiman to testify. Counsel for La Duca still

balked at the idea of calling him and, instead, asked that the

Court direct the government to call Neiman. The Court noted

that it was without authority to tell the government what

20a 2la

Appendix B Appendix B

witnesses to call but that it stood ready and willing to enforce -

the defendant’s subpoena power if La Duca wanted to call —

a 2 2 painted P MR. LUCIANNA: Yes. Supposing they don't call

Neiman.° him?

2. The text of the relevant exchange is as follows: THE COURT: Pardon me?

MR. LUCIANNA: [counsel for La Duca] I your

Honor please, | understand that there was a meeting at the

office of an attorney by the name of Miles Feinstein from

Paterson, attended by Mr. Querques. Mr. Greenberg and

Mr. Naiman, [sic] and that at that meeting statements were

made by Naiman to the effect that this defendant, Anthony

La Duca, was absolutely innocent of these charges, that he

in fact didn’t know where these funds came trom, and that

he, Mr. Naiman, would acknowledge that he and he alone

was the one who converted these union funds and no one

else and more especially not the defendant Anthony La

Duca.

Now, if your Honor please, | fully propose to bring Mr.

Querques and/or Mr. Feinstein or both of them into court

and have them testify to this conversation which took place.

THE COURT: All right. ... if Mr. Naiman testifies

for the Government you will first, of course, confront him

with this. If he admits saying it there may be no need to call

the lawyers for you will establish through the witness

himself.

If the witness denies it, then | think clearly you would

be entitled to impeach him on the basis of a prior

inconsistent statement and you may introduce that evidence.

Fair enough?

MR. LUCIANNA: Supposing they don't call Mr.

Naiman?

THE COURT: Then you can call Mr. Naiman.

MR. LUCIANNA: Well, if your Honor please, | think

the testimony of these two lawyers is very important in this

case whether or not Mr. Naiman is called.

THE COURT: Sir, please.

MR. LUCIANNA: I think it was made under such a

time and under such a circumstance that it goes completely

to the heart of this case, namely, whether the defendant La

Duca is guilty of any conversion of union funds.

THE COURT: Please. A first year law student would

say in response that the statement made in the offices of the

attorney is hearsay, that you may certainly use that hearsay

if you have an exception to the hearsay rule such as if

Naiman takes the stand and testifies in a contradictory

manner to that, he may be impeached by a prior

inconsistent statement.

But... , If Naiman doesn't testify, you just can’t call

lawyers in to say what Naiman said when Naiman was not

under oath, when Naiman was not available for cross-

examination.

22a

Appendix B

(Cont'd)

In the event you want that testimony you call Naiman

and if they don't

MR. LUCIANNA: If your Honor please, most

respectfully. | think I have the right to call him regardless of

whether the Government calls him or | call him.

THE COURT; You just have said two contradictory

things. If you feel as strongly as your statement and

particularly your tone of voice indicates that you do, that

the jury should in your words have the benefit of Mr.

Naiman’s testimony, by all means call him to the stand if the

Government doesn't. The Court will do everything in its

power to facilitate your task, that being to present Mr.

Naiman’s testimony.

But if all you want to present is what Mr. Naiman may

have said to a group of lawyers, .. . that is not presenting

Mr. Naiman’s testimony. That is just presenting what Mr.

Naiman happened to say sometime outside of court when he

wasn't testifying at all. This issue may be academic anyway.

Let me find out, are you going to call Naiman?

MR. PLAZA: [Prosecuting Attorney] No, sir.

MR. LUCIANNA: There you are.

THE COURT; Then it isn't academic. They are not

calling Naiman.

(Cont'd)

ed

23a

Appendix B

(Cont'd)

MR. LUCIANNA: I think you should direct the

Government to call him as their witness. He has pleaded

guilty before your Honor in this case. He definitely is in

possession of knowledge germane to the issues which are

being tried in this court and yet the Government is not to

call him as their witness.

If your Honor please, those were the extra-ordinary

circumstances under which I decided to bring Mr. Querques

and Mr. Feinstein into court and have them testify as to

what transpired in their office at the time this man Naiman

said unequivocally that my client was innocent of these

charges.

THE COURT: ...

| have no authority to tell the Government who to call

as witnesses. I've got authority to make sure they don't

suppress evidence in the sense that you become aware of

whatever evidence there is. I've got authority so that no one

can place any impediments in your path in introducing any

evidence which you believe to be relevant to your case.

I have no authority to tell the Government to try not

only their case but to try your case as well. I'm unaware of

any federal precedent but if you know of one you can cite it

to me by which a court can tell the Government it must call

witnesses to the stand who are not only favorable to its

cause but unfavorable as well.

You don't lack the subpoena power. | stand full force

behind you ready to enforce the orders of the court for your

benefit. You may call anybody to the stand whom you

believe to have evidence which is useful to your case. Do so,

if you believe so.

But you cannot require your adversary to call witnesses

which may be favorable to your cause... .

(Trial transcript, January 20, 1976, 2.114-2.121 [emphasis supplied)).

24a

Appendix B

Later that day, counsel for La Duca stated that he had

contacted Neiman’s attorney who had advised that he would not

permit his client to testify. Counsel for La Duca indicated that

he did not have Neiman’s address. The defense was still not

anxious to take any steps to get Neiman into court. The

following exchange occurred:

THE COURT: How can I be of service to

you? Do you want Mr. Neiman to come in here?

MR. LUCIANNA: I think he should be

brought in, if your Honor please, as the Court’s

witness, or I will call him. If your Honor decides,

I will call him.

THE COURT: Wait a minute. Let’s take one

step at a time. I’m not calling witnesses but I will

facilitate in any way I can your calling of any

witness that you want to.

MR. LUCIANNA: Yes, sir.

THE COURT: I cannot prevent any witness

from invoking any legitimate privilege that the

witness has.

MR. LUCIANNA: I understand.

THE COURT: But on the other hand I can

at least guarantee that the full process of the

25a

Appendix B

court will be available to you to bring in anybody

you desire. Do you want Mr. Neiman in court?

MR. LUCIANNA: Yes, sir.

(Trial transcipt, January 20, 1976, 2.217-2.218.) Neiman

appeared the following day. When asked by the Court whether,

if called to the stand, he would testify, Neiman indicated that he

would invoke his privilege against self-incrimination. (Trial

transcript, January 21, 1976, 3.7-3.8.) Neiman was then excused

by the defendant without any application that the government or

Court make Neiman’s testimony available by conferring

immunity upon him.

Where the record demonstrates or strongly suggests that the

defendant did not desire originally to present the testimony of

the witness who invoked the Fifth Amendment, it may not even

be appropriate to call the evidence newly discovered or newly

available when that witness later reports that he now agrees to

speak. At the very least, because the possibility of fraud and

collusion is so great, strict scrutiny must be brought to bear on

an application like the instant one.

An analogous situation exists in a multi-defendant case

where one defendant moves for severance on the ground that he

desires the testimony of a co-defendant who declines to give up

his right to refuse to testify at his own trial. The law has

developed to meet this situation by imposing a high standard on

the defendant who seeks severance on such grounds. Among

other things, the defendant who seeks severance must show a

26a

Appendix B

bona fide intent to have his co-defendant testify and must show

a likelihood that, if severance is granted, the co-defendant will in

fact testify. See. e.g., United States v. Rosa, 560 F.2d 149, 155

(3rd Cir.), cert. denied, Sica v. U.S , 434 U.S. 862, 98 S.Ct.

191, 54 L.Ed.2d 135 (1977). The Court notes that there is no

guarantee whatsoever that, if the Court were to grant La Duca’s

motion for a new trial, Neiman would testify for him. Nothing

stands in the way of yet another change of heart by Neiman,

after the conviction of La Duca is vacated, when the case against

La Duca is called to trial again.

Any rule of law which would result automatically in a new

trial upon the submission of an affidavit like the one in this case

would place tremendous and dangerous power in the bands of a

pleading co-defendant. It would enable him to give to a co-

defendant who chooses to go to trial the gift of a second chance

if the first jury should convict, and this where there is substantial

doubt as to whether the witness's testimony was even desired at

the time of the original trial and thus substantial doubt as to

whether that now-proffered exculpatory testimony is worthy of

belief.

There is a clear path out of this dilemma. It is black letter

law that, to establish entitlement to a new trial on the ground of

newly discovered evidence, the defendant must show that his

failure to learn of the evidence prior to the conclusion of the first

trial was not a result of-any lack of diligence on his part. See

United States v. lannelli, 528 F.2d 1290, 1292 (3rd Cir. 1976);

United States v. Meyers, 484 F.2d 113, 116 (3rd Cir. 1973):

United States v. Bertone, 249 F.2d 156, 160 (3rd Cir. 1957).

27a

Appendix B

Where the newly discovered evidence is really newly available

evidence which was known all along, the defendant can

demonstrate his due diligence — and more importantly, can

establish the bona fides of his otherwise suspect claim that he

truly wanted this witness to testify at his first trial — by

requesting that the government have immunity conferred on the

witness pursuant to 18 U.S.C. §§6001 et seg. (Supp. 1973).

It has often been noted that the decision to seek immunity

or not for a particular witness rests within the sole discretion of

the prosecutor. See, e.g., United States v. Housand, 550 F.2d

818, 824 (2nd Cir. 1977), cert. denied, 431 U.S. 970, 97 S.Ct.

2931, 53 L.Ed.2d 1066 (1977). The Court is without power to

grant immunity except upon his or her request. United States v.

Berrigan, 482 F.2d 171, 190 (3rd Cir. 1973). This is, of course,

the statutory scheme now in force. No doubt it reflects concern

about judicial usurpation of the executive’s prosecutorial role.

Until 1970, when the federal immunity statutes resulted in the

conferring of complete, transactional immunity on a witness, the

courts’ adamant refusal to interfere in any way with the

government's decision to grant or to withhold immunity was

easy to understand. The enactment of 18 U.S.C. §§6001 et seq.,

however, which provides only for the grant of use immunity, has

operated to change the balance. But see United States v. Allstate

Mortgage Corp., 507 F.2d 492 (7th Cir. 1974), cert. denied, 421

U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975). Testimonial

“use” immunity is sufficient to vindicate fully a witness’s Fifth

Amendment rights, but it does not operate to foreclose future

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

1653, 32 L.Ed.2d 212 (1972). A grant of immunity thus does not

28a

Appendix B

infringe upon the government's interest in law enforcement to

the extent that transactional immunity would. The availability of

use immunity can protect the government's interest in potential

future prosecution of a witness while also satisfying the interest

of the criminal defendant in the presentation of testimony which

can exculpate him. See generally, Note, Right of the Criminal

Defendant to the Compelled Testimony of Witnesses, 67

Colum.L.Rev. 953 (1967).

The Sixth Amendment to the Constitution guarantees that

“{iJn all criminal prosecutions, the accused shall enjoy the

right . . . to have compulsory process for obtaining witnesses in

his favor...”

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 prosecution’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 fundamental element of due

process.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18

L.Ed.2d 1019 (1967).

29a

Appendix B

The courts have generally agreed that the defendant’s Sixth

Amendment right of compulsory process must give way to the

subpoenaed witness’s personal Fifth Amendment right against

self-incrimination. See Royal v. Maryland, 529 F.2d 1280, 1283

(4th Cir. 1976) (Winter, C.J., dissenting); United States v.

Lacouture, 495 F.2d 1237, 1241 (Sth Cir.) (on petition for

rehearing), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42

L.Ed.2d 648 (1974); United States v. Gomez-Rojas, 507 F.2d

1213, 1220 (Sth Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46

L.Ed.2d 42 (1975); Holloway v. Wolff, 351 F.Supp. 1033, 1038

(D.Neb.1972), rev’d on other grounds, 482 F.2d 110 (8th Cir.

1973); cf. Murdock v. United States, 283 F.2d 585, 587 (10th

Cir. 1960). Of course, the government’s power to confer

immunity on a witness under section 6001, and thus to compel

his testimony while preserving his Fifth Amendment right,

renders it unnecessary to choose between vindication of one

individual’s Fifth Amendment right and another individual’s

Sixth Amendment rights.

Nevertheless, the courts have generally suggested that,

absent special circumstances, the Sixth Amendment imposes no

affirmative obligation on the government to confer immunity on

a witness in order to make that witness’s testimony available to a

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

Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184

(1976); United States v. Lacouture, supra; United States v.

Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert. denied, 411 U.S.

920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973).

3. Generally, the Sixth Amendment's guarantee of compulsory process

has not been construed as entitling the defendant to any more than the physical

presence of the witness. Yet, the amendment has been recognized as the source

(Cont'd)

30a

Appendix B

For me, however, if a court did find that the testimony of a

witness invoking privilege would exculpate a defendant, and the

government withheld the immunity which would make that

testimony available to the defendant even while insisting on

continuing to prosecute him, a Sixth Amendment breach would

occur. See generally, Westen, The Compulsory Process Clause,

73° Mich.L.Rev. 71, 166-170 (1974). Comment, Right of the

Criminal Defendant to the Compelled Testimony of Witnesses,

67 Colum.L.Rev. 953, 956 n. 19 (1967); Comment, A Re-

Examination of Defense Witness Immunity: A New Use for

Kastigar, 10 Harv.J.Legis. 74, 79 (1972). See also Westen,

Confrontation and Compulsory Process: A Unified Theory of

Evidence for Criminal Cases, 91 Harv.L.Rev. 567 (1978).

Even if the view be taken that the Sixth Amendment

imposes no affirmative obligation on the government to take

those steps which it alone can take to make available to a

defendant the testimony of a particular witness, and even if the

Court is powerless to compel the government to immunize a

defense witness, it is clear to me that there are circumstances

where considerations of fairness, and thus of due process,

mandate that the government request use immunity for a

defendant’s witness or be barred from prosecuting the defendant.

Cf. United States v. Morrison, 535 F.2d 223, 229 (3rd Cir. 1976).

See also United States v. Gaither, 176 U.S.App.D.C. 274, 539

(Cont'd) .

of the government's affirmative obligation under Rule 17 of the Federal Rules

of Criminal Procedure to pay for the trial expenses and fees of witnesses of

indigent defendants. See Taylor v. United States, 329 F.2d 384, 386 (Sth Cir.

1964).

tna.

3la

Appendix B

F.2d 753 (1976) (statement of Bazelon, C.J., as to why he voted

to deny rehearing En Banc), cert. denied, 429 U.S. 961,97 S.Ct.

388, 50 L.Ed.2d 329 (1977); United States v. Leonard, 161

U.S.App.D.C. 36, 66, 494 F.2d 955, 985 n. 79 (1974) (Bazelon,

C.J., concurring and dissenting); Earl v. United States, 124

U.S.App.D.C. 77, 80, 361 F.2d 531, 534 n. 1 (1966) (Burger, J.),

cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370

(1967); McCormick, Handbook of The Law of Evidence, §143 at

308 (2d ed. E. Cleary 1972).

If the defendant requests that the government confer

immunity so that the defendant can have the testimony of a

witness he desires, and the government honors the request, the

desired testimony will immediately become available and there

will be no later claim for a new trial on the ground of newly

discovered evidence. If, on the other hand, the defendant

requests that the government grant immunity and the

government refuses, the court can, at that point, determine

whether the defendant can get a fair trial without this witness,

and may dismiss the indictment if it determines that a fair trial

cannot be had.

The interests of all parties can be accommodated. The use-

restriction immunity statute is not, by its terms, ‘limited to

4. The court may, of course, determine that notwithstanding the

unavailability of the witness upon whom the government refuses to confer

immunity a fair trial may be had and may permit the trial to go forward. The

determination may be based on a proffer by the defendant of what the

testimony of the witness would be, supported by a showing that the profferer

has good reason to know. The court could then determine if the trial could

fairly proceed. Even if it does, the government will then bear the risk that, later

on, a new trial motion like the present one will be brought and will be granted.

32a

Appendix B

witnesses who testify on behalf of the government. Rather, it is

to be employed when “testimony .. . from such individual may

be necessary to the public interest . . .” 18 U.S.C. §6003(b)(1).

The public interest is surely advanced where all testimony

relevant to ascertaining the defendant’s guilt or innocence is

available. And the operation of use immunity — as contrasted

with transactional immunity — results in no substantial sacrifice

of the public interest in the future prosecution of witnesses who

are themselves implicated in crimes.‘

Even assuming, as the government argues, that the grant of

use immunity renders more difficult future prosecution of an

immunized witness who has not yet been convicted, that may be

the price it has to pay to prosecute the defendant. Where a

potential witness, who is also a potential defendant, has evidence

which a court finds could exculpate another — even if it is true

that sestimonial immunity could cost the government something

— his continued silence could cost the accused everything. The

shifting of costs to the criminal defendant is simply not

consistent with fundamental notions of fairness. And, to the

extent that the defendant wilfully attempts to abuse his right in

order to give an immunity bath to his cohorts, a sentencing

judge need not be blind to what has happened.

Because La Duca failed to request that the government seek

use immunity for Neiman, he failed to take those steps necessary

to secure the availability of the evidence which he now claims is

5. This is particularly true in the case of an already convicted co-

defendant, who even then receives only testimonial immunity.

33a

Appendix B

newly available. He thus has failed to establish that his new

evidence entitles him to a new trial. See United States v. Alper,

449 F.2d 1223 (3rd Cir. 1971), cert. denied, 405 U.S. 988, 92

S.Ct. 1248, 31 L.Ed.2d 453 (1972).

The cases upon which La Duca relies — Amos v. United

States, 95 U.S.App.D.C. 31, 218 F.2d 44 (1954); Ledet v. United

States, 297 F.2d 737 (5th Cir. 1962); and United States v.

Guillette, 404 F.Supp. 1360 (D.Conn.1975) — shout out to be

distinguished. See also Newsom v. United States, 311 F.2d 74

(Sth Cir. 1962). Amos is not a Fifth Amendment case. In the

others, the court which granted a new trial identified cumulative

trial errors or irregularities, found exceedingly thin evidence of

guilt, and made manifest its sense that the convicted defendant

may have in fact been innocent. It appears that the newly

available evidence doctrine was used as a vehicle to correct what

the courts perceived to be an unjust result. That is not the case

here.

Defendant’s motion for a new trial will, accordingly, be

denied.

34a

APPENDIX C — AFFIDAVIT OF JOHN NEIMAN FILED

WITH THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEW JERSEY ON OCTOBER 5, 1977

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

v.

ANTHONY R. LA DUCA,

Defendant.

STATE OF )

COUNTY OF )

Criminal No. 75-56

JOHN NEIMAN, of full age, being duly sworn according

to law, upon his oath, deposes and says:

1. 1 am one of the defendants in the above-captioned

criminal indictment.

2. On November 29, 1975, I pleaded guilty to Count One of

the above said indictment, which charged me with conspiracy to

convert union pension funds to my own use. At the time of my

plea, the Government represented to me that it would move for

a dismissal of the remaining Counts against me at the time of my

sentencing.

35a

Appendix C

3. After my plea of guilty and before the trial of my co-

defendant, Anthony R. La Duca, | had many meetings and

telephone conversations with La Duca and with Mr. Frank

Lucianna, La Duca’s trial attorney, the substance of which |

indicated that I would testify on La Duca’s behaif at his trial.

4. On January 20, 1976, | was summoned to appear as a

witness by La Duca, however, my attorney advised me that

because | was still in jeopardy on the open counts of the pending

indictment and because I was in fear that by testifying, | would

receive the maximum sentence of five years in prison, I refused

to testify.

5. I regret not having testified on La Duca’s behalf when

summoned, because I now realize that my failure to testify

resulted in the unjust conviction of an innocent person causing

him and his family undeserved heartaches.

6. It is my understanding that La Duca appealed his

conviction and that his appeal was not successful. | had.hoped

that his conviction would be reversed, so that I may have an

opportunity to testify as to my knowledge of his innocence, now

that my former jeopardy is no longer existent.

7. La Duca approached me in the early part of 1973 witha

business transaction involving the purchase of a chain of gas

stations. After discussing the transaction I agreed with him that

his idea was both feasible and profitable and advised him that I

would be interested in an equal partnership with me obtaining

the finances that were required and La Duca doing the necessary

paperwork.

36a

Appendix C

8. During the latter part of 1973, | was approached by

Theodore Potash, who informed me that he had a source of

investment capital and that he would introduce me to the source

for a fee of one percent of any money that would be advanced

by the source. I readily agreed and | was introduced to Mr.

Fabio, the Administrator of the Paper Industry Union

Management Pension Fund. As a result of these meetings, |

obtained, on different occasions, six checks each in the sum of

$100,000.00 and paid Potash a total of $7,000.00 and Fabio a

total of $20,000.00. La Duca had no knowledge of these

meetings, nor did he have knowledge of how, where, or why the

money was given to me. The only thing I told La Duca was that

I was paying a one percent finders fee for the money to Potash.

La Duca did not know, nor did he ever meet, nor did he ever

communicate with either Potash or Fabio, nor did he have any

knowledge of my arrangements with them.

9. When I obtained the money, | took the sum of

$20,000.00 cash, which | subsequently gave to Mr. Fabio and

two checks which I gave to Potash. At the time, I told La Duca

that I needed the cash for another business transaction.

10. Prior to and at the actual time of receipt of the money

by me, both La Duca and his wife interrogated me regarding the

propriety of the funds and I assured them that it was a perfectly

legal business transaction and that the unions made investment

loans every day of the year. They were both convinced when I

obtained a Chase Manhattan Treasurer’s Check in the sum of

$100,000.00. I am convinced that if the La Duca’s were remotely

aware that the loans were even tainted by illegality, they would

have disassociated themselves from our business ventures

immediately.

37a

Appendix C

11. The money which I used to finance our corporation was

given to me personally by Mr. Fabio, and I was responsible for

the repayment of it. After I deposited the money into our

corporation, I directed the distribution of it, taking what I

needed, when I needed it, without explaining to La Duca what I

did with it. I authorized La Duca to take a salary, pay office

expenses, pay Herman Levine $12,000.00, bought him a car and

miscellaneous other expenditures made by La Duca at my

direction.

Our corporation had entered into several negotiations and

agreements regarding the investment of the money in question

and had it not been for the investigation being conducted into

the affairs of the Pension Fund and one Loretta Lustig, who

apparently obtained in excess of $900,000.00 in a similar fashion

from Potash and Fabio, further funds would have been

advanced to me by the Pension Fund with which to complete my

business transactions successfully and the Pension Fund would

have been repaid the money together with a profit.

12. During the month of May or June of 1976, I made an

informal application to Judge H. Stern for a reduction of

sentence and in my letter, I advised him that I was solely

responsible for the illegal obtaining of the Pension Funds and its

distribution and La Duca was totally innocent of any

wrongfoing in the misuse of the money.

13. I sincerely regret having implicated La Duca in this

matter and I regret even more, my selfish reasons for not

testifying on his behalf when summoned by him at his trial. It

—e

38a

Appendix C

was always my intention to profitably invest the money I

obtained from the Paper Industry Union Management Pension

Fund and to repay with a profit the money borrowed by me.

14. | make this affidavit freely, voluntarily and without

promise or reward from anyone, in a sincere effort to induce the

Court to grant the defendant, Anthony R. La Duca, a new trial,

so that I may take the witness stand on his behalf and testify as

to my knowledge in this matter. P

s/ John Neiman

JOHN NEIMAN

Sworn and subscribed to this

20th day of September, 1977.

s/ Patricia Williams

Parole Officer - Authorized by

Act of July 7, 1953 to admin-

ister oaths

en