Opposition — Griffin v. United States

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No. 78-1518 JUN 18 j979

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In the Supreme Court of the United States

OcTOBER TERM, 1978

THOMAS ANDREW GRIFFIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCrer, Jr.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

James A. HUNOLT

Attorney

Depariment of Justice

Washington, D.C. 20530

A li an

In the Supreme Court of the Hnited States

OcTOBER TERM, 1978

No. 78-1518

THOMAS ANDREW GRIFFIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A33)

is reported at 589 KF. 2d 200.

JURISDICTION

The judgment of the court of appeals was entered on

February 6, 1979. The petition for a writ of certiorari was

filed on March &, 1979. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether false testimony that hinders a grand jury’s

investigation may constitute obstruction of justice in

violation of 18 U.S.C. 1503.

(1)

Nm

2. Whether petitioner's false testimony was material to

the grand jury’s investigation.

STATEMENT

After a jury trial in the United States District Court for

the Southern District of Florida, petitioner was convicted

of obstruction of justice, in violation of 18 U.S.C. 1503,

He was sentenced to 1% months’ imprisonment, 12 months

of which were suspended, to be followed by two years’

probation,

|. The evidence at trial showed that in September 1975

an Argentine aircraft bound for Panama crashed at

Miami International Airport (Tr. 165-166).' Among those

killed in the crash was Felix Herrero (Tr. 167). A bank

bag containing $15,046 was recovered trom the wreckage

of the plane (Tr. 167-168).

In October 1975 the FBI began investigating Charles

Ebeling and John Cifarelli in connection with loanshark-

ing, the financing of loansharking activities, and the

transportation of money out of the country (Tr. 102).

During this investigation, a number of conversations

Tr” refers to the one-volume transcript of the trial, References to

the transcript of intercepted conversations between petitioner and

Ebeling are to the date and time of the separately paginated

conversations, “Gud. Te” refers to the one-volume transenpt of

petitioner's grand jury testimony,

Prior to petitioner's tral both Ebeling and Citarell were convicted

of conspiracy to Use extortionate means to collect extensions of

credit, in violation of TB U.S.C. 894(a), and obstruction of justice, in

violation of TX U.S.C. 1504. Ebeling was also convicted of collecting

an extension of credit: by extortionate means, in violation of 1K

U.S.C. 894 and 2 (Tr. 121, S.D. bla. No, 77-201-CR-WMH), Their

convictions were alfirmed. United States v. Cifarelli, 589 b. 2d TRO

(Sth Cir 1979).

between petitioner and Ebeling were intercepted pursuant

to court-authorized wire interceptions. The conversations

dealt largely with the efforts of petitioner and Ebeling to

recover the money found in the wreckage of the crashed

Argentine airplane. In these conversations, petitioner

assured) Ebeling on various occasions that he was

attempting to recover the money found in the crash

(1/19/76, 6:29 p.m., at 2-3, 1/19/76, 9:54 p.m., at 3;

1/20/76, 9:31 a.m., at 1-2; 1/21/76, 6:26 p.m., at 3).

Petitioner stated that belix Herrero is “the only man we're

worrted about” (1/19/76, 6:29 p.m., at 4), that. the

airplane was ultimately bound for Argentina (id. at 6),

and that “16,000° was found ina black bag (1/19/76, 9:54

pm... at 2). Petitioner and Ebeling discussed — the

Statements petitioner should make to federal authorities

to obtain’ return of the money (id. at 2-5).

During these conversations, petitioner also discussed a

debt that he owed Ebeling (Tr. 119). Ebeling explained

that he had to collect money not only from petitioner, but

also from three or four other persons (1/25/76, 9:07 a.m.,

at 3).' Among those mentioned during the conversations

were “Dominic,” “Angelo.” and “Jack. Ebeling told

petitioner that he had received money from Dominic, but

that he had a “legitimate thing” with Angelo (1/26/76,

4:22 p.m., at 3). Petitioner told Ebeling on one occasion

that he had talked to Jack, and on other occasions that he

was awaiting calls from Jack (1/21/76, 6:26 p.m., at 1;

1/23/76, 6:18 p.m., at 3, 1/25/76, 9:07 a.m., at 10).

‘Petitioner assured Ebeling that he would obtain moncy to make a

payment on his loan (1/26/76, 4:15 pom, at. 1-2).

‘None of those individuals was further identified during the

recorded conversations or at. tral,

2. On March 9, 1976, petitioner was called to appear

before a federal grand jury investigating loansharking, the

financing of loansharking operations, and the possible

movement of money from the United States to South

America (Ir. 82). Petitioner testified that he knew Ebeling

slightly but that he had no relationship with him (G.J. Tr.

3). Petitioner stated that Ebeling had never discussed the

source of money he loaned to petitioner (G. J. Tr. 5-6).

Petitioner denied being aware of the crash of an airplane

destined to South America and denied discussing that

crash with Ebeling (G.J. Tr. 7). He stated that he did not

know Felix Herrero, or any one named Dominic, Angelo,

or Jack (G.J. Tr. 7, 12-13). Petitioner testified that he was

not aware that Ebeling had stated that he hac obtained

money from Dominic (G.J. Tr. 13-14). He could not recall

whether he had talked with Ebeling about any financial

arrangements in Argentina (G.J. Tr. 13-14).

3. At trial petitioner testified that his grand jury

testimony was true or innocently false (Tr. 235, 237-238).

According to petitioner, the subjects of his intercepted

conversations with Ebeling were fictitious or otherwise

innocuous (Tr. 231-233, 240, 269-273, 315).

ARGUMENT

1. Petitioner contends (Pet. 7-14) that false testimony

before a grand jury does not constitute obstruction of

justice in violation of 18 U.S.C. 1503. That claim was

properly rejected by the court of appeals (Pet. App. A8-

A28) in an opinion on which we essentially rely.

a. The crime of obstructing justice is not limited to

improper interference with witnesses, jurors, or court

officials. 18 U.S.C. 1503 speaks in general and broad

terms to prohibit the action of one who “corruptly * * *

influences, obstructs, or impedes, or endeavors to

influence, obstruct, or impede, the due administration of

justice * * *.” As the court of appeals observed (Pet. App.

Al6), the objective of the statute is to prevent contrived

miscarriages of justice. Conduct that results in the

submission of false evidence or the withholding of

material information may violate the statute if it so

impedes the flow of truthful information that “the due

administration of justice” is frustrated or impeded. See,

e.g., United States v. Walasek, 527 F. 2d 676, 679-681 (3d

Cir. 1975) (destruction of relevant records); United States

v. Cohen, 202 F. Supp. 587 (D. Conn. 1962) (submitting

false document to grand jury). Cf. United States v. Vixie,

532 KF. 2d 1277 (9th Cir. 1976) (submission of false

documents obstructed administrative proceedings in

violation of 18 U.S.C. 1505); United States v. Fruchtman,

421 F. 2d 1019 (6th Cir.), cert. denied, 400 U.S. 849 (1970)

(same); United States v. Tallant, 407 &. Supp. 878 (N.D.

Ga. 1975) (same).

The court of appeals properly concluded (Pet. App.

A17-A18) that petitioner's false testimony obstructed and

hindered the grand jury’s investigation into criminal

loansharking and related activities.. Petitioner's mendacity

impeded the criminal investigation at its earliest stages

before the grand jury (Tr. 82-83) and thereby obstructed

the due course of the administration of justice. See United

States v. Cohn, 452 F. 2d 881, 883-884 (2d Cir. 1971),

cert. denied, 405 U.S. 975 (1972); United States v. Alo,

439 F. 2d 751, 753-754 (2d Cir.), cert. denied, 404 U.S.

850 (1971).

b. Petitioner contends (Pet. 7) that his conduct before

the grand jury was “simple false testimony” and that,

although such testimony may constitute perjury under 18

U.S.C. 1621, it is not obstruction of justice within the

6

scope of 18 U.S.C. 1503.5 The problem with petitioner's

contention is that he was not convicted for “simple false

testimony” but for false testimony that obstructed and

impeded the due administration of justice.

Petitioner's reliance (Pet. 8) on United States v. Essex,

407 b. 2d 214 (6th Cir, 1969), is therefore misplaced. In

Essex, the court of appeals held that a false statement

made in an affidavit submitted to the district court was

not an obstruction of justice in violation of 18 U.S.C.

1503. Relying on this Court's decision in In re Michael,

326 U.S. 224 (1945),° the court ruled that “the mere

rendering of false testimony,” without more, does not

obstruct the due administration of justice within the

meaning of 18 U.S.C. 1503. 407 Fb. 2d at 218. The court

concluded that, in addition to giving false testimony, the

defendant must be shown to have hindered or obstructed

‘Petitioner notes (Pet. 7) that the perjury statute has a less severe

maximum sentence (five years’ imprisonment and a $2,000 fine) than

the obstruction of justice statute (five years’ imprisonment and a

$5,000 fine). Petitioner's sentence in this case, however, was within

the maximum under either statute. Moreover, petitioner apparently

could have been tried under 1K U.S.C. 1623 (false declaractions

before a grand jury), which carries the more severe maximum sen-

tence of five years’ imprisonment and a $10,000) tine

Petitioner has not claimed that, i/ his conduct were punishable

under 18 U.S.C, 1621, ut could not be punished under 1 U.S.C. 1503.

Ct. United States vy. Batchelder, No. 78-776 (June 4, 1979). In-

stead, his claim is that his false testimony did not constitute ob-

struction of justice under IK USC. 1503.

‘The Court held in dn re Michael that false testimony, by itself,

does not necessarily constitute contempt of court (326 U.S. at 227)

All perjured relevant testimony is at war with justice, since it

may produce a judgment not resting on the truth. Therefore it

cannot be denied that it tends to defeat the sole ultimate

objective of a trial. It need not necessarily, however, obstruct or

halt the judicial process.

eee

the administration of justice, as by interfering with the

jury's investigation, See ibid., see also note 6, supra. The

indictment in this case, however, alleged precisely that

petitioner's false testimony was an “endeavor to obstruct

and impede the due administration of justice.” (Govt. Ct.

App. Br. 20). The evidence at tral showed that

petitioner's false testimony hindered the grand jury in its

investigation (Ir. $2-83), and the jury was instructed that

it must find as essential clements of the offense that

petitioner gave false material statements and that in doing

so he endeavored to obstruct the due administration of

justice (Ir, 355). Since the essential clement of obstruction

was charged and proved in this case, the decision in Essex

is not in conflict with the decision of the court below.

c. Petitioner's contention (Pet. 8) that the decision in

this case conflicts with United States v. Ryan, 455 b. 2d

72% (9th Cir. 1971), and United States v. Metcalf, 435 Fk.

2d 754 (9th Cir. 1970), also ts) incorrect.

In Ryan the defendant had, destroyed certain docu-

ments that were sought during the course of investigations

by the Internal Revenue Service and a grand jury. The

court held that the administration investigation was nota

“proceeding” within the coverage of Section 1503 (see 18

U.S.C. 1505) and that the destroyed documents were not

material to the grand jury investigation. 455 kb. 2d at 733-

735. By contrast, the grand jury investigation in this case

was unquestionably a “proceeding” under Section 1503’

und, as we show below (pages & to 9), petitioner's false

testimony was material to the grand jury's investigation.

In Metcalf the court of appeals held that Section 1503

is inapplicable to acts that occurred before judicial

‘heg.. United States v. Campanale, 51% b. 2d 482, 465-366 (9th Cir

1975). cert. denied, 423 U.S. 1050 (1976).

proceedings have been initiated, as by the filing of a

criminal complaint. 435 Kk. 2d at 757. The court of

appeals went on to state, in dictum, that the obstruction

of justice offense “would ordinarily seem to be limited to

intimidating actions.” Even %® this dictum were the

holding in Metcalf, it would not be in conflict with the

decision in this case. The suggestion that obstruction of

justice “ordinarily” involves intimidation is not in conflict

with a conclusion that sometimes it does not. Moreover,

in United States v. Vixie, supra, 532 &. 2d at 1278, the

Ninth Circuit necessarily rejected the dictum in Metcalf in

holding that the submission of a false document to the

IRS constituted obstruction of justice under 18 U.S.C.

1505. There is thus no conflict among the courts of

appeals warranting further review in this case.

2. Petitioner urges (Pet. 13), without argument, that his

false testimony was not material to the grand jury’s

investigation. The grand jury was investigating loanshark-

ing and the secret exportation of money from the United

States (Tr. $2). Petitioner's false statements concerned the

loansharking activities of Ebeling (who was subsequently

indicted by the grand jury) and the attempted removal of

more then $15,000 from the United States to South

America. These subjects were the proper focus of the

grand jury's inquiry, and petitioner’s testimony was

therefore plainly material to its investigation. See United

States v. Whimpy, 531 F. 2d 768, 770 (Sth Cir. 1976);

United States v. Parr, 516 F. 2d 458, 470 (Sth Cir. 1975);

United States v. Saenz, 511 F. 2d 766, 768 (Sth Cir. 1975);

cert. denied, 423 U.S. 946 (1975). Moreover, petitioner's

*Here, of course, petitioner's false testimony was given as part of

the ongomg grand jury proceeding.

9

false and misleading testimony hindered the grand jury

in performing its lawful duties (Tr. %2-83).

CONCLUSION

Ihe petition for a writ of certiorari should be denied.

Respectfully submitted.

Wapte H. McCrer, Jr.

Solicitor General

Puiie Bo. HrkYMANN

Assistant Attorney General

James A. Hunowt

Attorney

JuNE 1979:

DO} 1979-06.