Petition — Attorney General of New York v. Shargel

| IN THE \

| Supreme Court of the Aiteh Satna JR, CLERR

October Term, 1978

No. —W8-1849

THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK,

Petitioner,

against

GERALD L. SHARGEL,

Attorney in behalf of VINCENT ALOI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Rosert M. MorcentHAau

District Attorney

New York County

Attorney for Petitioner

155 Leonard Street

New York, New York 10013

(212) 553-9000

Rosert M. Pir.er

Henry J. STEINGLASS

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

Neen hw adciveniunesnvesconsonss

Jurisdiction ALG, vas Gidseanvanysusscoavoee

Questions Presented |

Constitutional and Statutory Provisions Involved .

Statement of the Case 2.000000... Jit, 2 Oe ie SP

Aloi’s Grand Jury Appearance .........00..................

Ne cccocseshescaivers

The Federal Habeas Corpus Proceeding .............

Reasons for Granting the Petition 000...

Conclusion ........... ss ola k aileaivedicacesacs:

App. A—Opinion of the Court of Appeals ..................

App. B—Judgment of the Court of Appeals ................

App. C—Opinion of the District Court ...0..00000000.........

II

TABLE OF AUTHORITIES

PAGE

Cases:

Aloi v. Arnold, 413 F.Supp. 1384 (S.D.N.Y. 1976) ........ 8n

Braden v. 30th Judicial Cireuit Ct. of Kentucky, 410

RN IE so oo cece eek crac ceases 5n

Cameron v. United States, 231 U.S. 710 (1914) .......... 10, 14

Dunn v. United States (U.S. No. 77-6949, decided June

M U600s 4F Uke Ws QUOD | iiccindcccne 11, 12,13

Kastigar v. United States, 406 U.S. 441 (1972) ............ 9

BU FOG, Gy BEA Goren ncces cs kaise sik idecsictecndccraees 9

People v. Ianniello, 36 N.Y. 2d 187 (1975) 0000000000000... 8n

United States v. Aloi, aff’d, 511 F.2d 585 (2d Cir.),

cert dented 423 U.S. 1015 (1975) ............... ee. 4

United States v. Apfelbaum, 584 F.2d 1264 (3d Cir.

1978), cert. granted, 99 S. Ct. 1496 (1979) ....9, 10, 13, 14

United States v. Freed, 401 U.S. 601 (1971) ....... eee 12

United States v. Kahan, 415 U.S. 239 (1974) ............... 15

Constitution, Statutes and Rules:

United States Constitution, Fifth Amendment .......... passim

N.Y. Criminal Procedure Law

EERE NED AE ss 2 eck ae eee Sen eer CRN ER eA? 3,5

RIE Sihisd castts ase PisS sf carcdhls tas-c Rap tomias shaper neta ean 3, 4, 12n

Be ee NE BT RO soaks enc vce aenien teaasdaasrnsceacceastcrantios 4

I oie 75s ss iacaspacvskdememon tra aateonbate, 2

Rules Governing Sec. 2254 Cases in United States Dis-

NIN NI NN hs ie ee dn

Other Authorities:

Brief for the United States, Dunn v. United States

(U.S. No. 77-6949, decided June 4, 1979, 47 U.S.

Rf Ra eR leak earat ered AR ole IAD Nip ARES ER BCR TC 11,12

IN THE

Supreme Court of the United States

October Term, 1978

THe AvrrorNEY GENERAL OF THE State or New York,

Petitioner,

against

Geratp L. SHarcei, Attorney in behalf of Vincent ALot1,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Attorney General of the State of New York peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Cireuit in

this case.

Opinions Below

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

la-5a) is not yet reported. The opinion of the United

States District Court for the Southern District of New

York (App. C, infra, 8a-22a) is reported at 459 F.Supp.

700.

Jurisdiction

The judgment of the Court of Appeals (App. B, infra,

6a-7a) was entered on March 13, 1979. The jurisdiction of

this Court is invoked under 29 U.S.C. 1254(1).

Questions Presented

1. Ina state trial for committing perjury in testimony

given to a grand jury under a grant of immunity, does the

Fifth Amendment privilege against self-incrimination pre-

clude the prosecution from introducing the record of the

defendant’s grand jury appearance in order to establish

the perjury by showing the circumstances in which it was

committed—cireumstances which include a patently false

and evasive assertion of an inability to recall?

2. Ina habeas corpus proceeding in which it is claimed

that it was a violation of the Fifth Amendment vrivilege

against self-incrimination to introduce the entire record of

the defendant’s immunized grand jury testimony (with a

few deletions) at his state trial for perjury committed

before the grand jury, should the federal court re-determine

whether such evidence had probative value or contextual

significance, and give no weight to the ruling by the state

trial judge who admitted the evidence?

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Constitutional and Statutory Provisions Involved

The Fifth Amendment to the United States Constitu-

tion provides, in pertinent part:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, * * * nor shall be com-

pelled in any criminal case to be a witness against

himself * * *.

N.Y. Criminal Procedure Law (‘‘CPL’’), Sec. 50.10(1),

provides:

A person who has been a witness in a legal pro-

ceeding, and who cannot, except as otherwise provided

in this subdivision, be convicted of any offense or sub-

jected to any penalty or forfeiture for or on account of

any transaction, matter or thing concerning which he

gave evidence therein, possesses ‘‘immunity’’ from any

such conviction, penalty or forfeiture. A person who

possesses such immunity may nevertheless be con-

victed of perjury as a result of having given false

testimony in such legal proceeding, and may be con-

victed of or adjudged in contempt as a result of having

contumaciously refused to give evidence therein.

Section 190.40 of the New York Criminal Procedure

Law provides, in pertinent part:

1. Every witness in a grand jury proceeding must

give any evidence legally requested of him regardless

of any protest or belief on his part that it may tend

to incriminate him.

2. A witness who gives evidence in a grand jury

proceeding receives immunity unless:

4

(a) He has effectively waived such immunity

pursuant to section 190.45; or

(b) Such evidence is not responsive to any in-

quiry and is gratuitously given or volunteered by

the witness with knowledge that it is not responsive.

New York Penal Law Sec. 210.15 provides:

A person is guilty of perjury in the first degree

when he swears falsely and when his false statement

(a) consists of testimony, and (b) is material to the

action, proceeding or matter in which it is made.

Statement of the Case

Following a jury trial in New York State Supreme

Court, New York County, Vincent Aloi was convicted of

Perjury in the First Degree (N.Y. Penal Law §210.15) for

giving false testimony to a grand jury. On August 7, 1973,

he was sentenced to an indeterminate term of two and one-

third to seven years’ imprisonment. Aloi is not serving his

state sentence, but is in federal custody serving a nine-year

sentence for an unrelated violation of federal securities

laws. United States vy. Aloi, aff’d 511 F.2d 585 (2d Cir.),

cert denied, 423 U.S. 1015 (1975). <A state detainer was

lodged with federal authorities.

A habeas corpus petition was filed on Aloi’s behalf in

the United States District Court for the Southern District

of New York claiming that Aloi’s privilege against self-

incrimination was violated when the record of his appear-

ance before the grand jury, which was under a grant of

immunity, was introduced at his perjury trial. The Dis-

5)

trict Court granted habeas corpus relief and the United

States Court of Appeals for the Second Circuit affirmed.*

Aloi’s Grand Jury Appearance

A New York County grand jury was investigating the

killing of Joseph Gallo in a downtown Manhattan restau-

rant on April 7, 1972. The grand jury heard evidence that

a certain apartment ‘‘L-K’’, located at 101 Gedney Street

in Nyack, New York, had been used by Aloi and others as a

meeting piace for planning Gallo’s murder and for attempt-

ing to conceal the identity of the perpetrators after the

murder was committed (French: T334-36).**

Pursuant to a subpoena, Aloi appeared before the grand

jury for about one hour on November 28, 1972. Under New

York law, a grand jury witness ‘‘automatically”’

immunity from prosecution for ‘‘any transaction, matter

or thing concerning which he gave evidence.’? CPL Sees.

50.10(1), 190.40. This immunity does not extend, however,

to a prosecution for perjury or contempt.

receives

When Aloi was asked what his occupation was, he stated

that he was a partner in a trucking business in which he

worked and had invested. However, Aloi claimed that he

* In view of Braden vy. 30th Judicial Circuit Ct. of Kentucky, 410

U.S. 484 (1973), the State has not disputed that Aloi may seek

federal habeas relief with respect to his future incarceration. Since

this habeas proceeding concerns Aloi’s future state custody, the

Attorney General of the State of New York was named as a respond-

ent and is the party who appealed the District Court's grant of the

writ. See Rule 2(b) of the Rules Governing Sec. 2254 Cases in the

United States District Courts. The District Attorney of New York

County has represented the State throughout the federal and state

post-conviction proceedings and continues to do so on this petition.

** “T____” refers to pages of the trial record, a copy of which was

before the District Court and the Second Circuit.

¢

6

could ‘‘recall’’ very little about his business. Asked when

he went to work, Aloi questioned the meaning of ‘‘work’’

and ‘‘reporting’’ to work (T382-83, 387-88) and, despite

persistent questioning, claimed that he could not recall

when he had gone to work (1382-401, 409-11). Aloi stated

that he had ‘‘no recollection’’ (T432) of even the approxi-

mate amount of the investment he said he had made in the

business only six or seven years earlier (1419-421, 432-436)

other than that it was ‘‘many thousands’’ (T432) and, when

pressed, that it was ‘‘probably more than $30,000’’ (T434)

and less than $90,000 (T435). Aloi also claimed little recol-

lection concerning such matters as his income (T412) and

what he did to earn it (T414-17), how long he had been

involved in this trucking business (T380), and names of its

employees (T'401-403).

Asked whether he knew certain individuals (Carmine

DiBiasi, Joseph Luparelli, Joseph Yacovelli) and when he

had last seen them, Aloi responded that he was only casu-

ally acquainted with them and that he had not seen them

in about a year (T418, 437-41, 444-47, 448-51).

Aloi was then asked whether he had ever been to the

apartment in Nyack, New York, where the grand jury had

learned that Joseph Gallo’s murder was planned. The

identity of the apartment was called to Aloi’s attention not

only by its address and designation (‘‘L-K’’), but also by

asking whether Aloi had been in an apartment in Nyack

with individuals (Yacovelli, Luparelli) whom, he had tes-

tified, he knew. In the course of responding to ques-

tions about whether he had been to the apartment, Aloi

used the name ‘‘Joe Yac’’ (T458), which Aloi said was a

7

nickname for Joseph Yacovelli (1447). Despite the various

ways in which the apartment in question was called to his

attention, Aloi repeatedly denied ever visiting that apart-

ment.

The State Prosecution

Aloi was indicted for Perjury in the First Degree for

falsely swearing that he had never been to the Nyack apart-

ment. Indictment No. 239/73. At the trial in June 1973,

two agents of the Federal Bureau of Investigation testified

that on April 18, 1972, which was eleven days after Gallo

was murdered, they had watched Aloi enter the apartment

in Nyack. Another witness, Joseph Luparelli, who had

been involved in the killing of Gallo, described Aloi’s visits

to the apartment on several occasions before and after the

murder.

When the minutes of Aloi’s appearance before the

grand jury were offered into evidence, defense counsel took

the position that only the portion containing the statements

charged in the indictment to be perjurious was admissible

(T1349, 351-52, 353-54, 355). The trial judge then ex-

cused the jury and discussed the matter with counsel.

The judge stated that the minutes of Aloi’s appearance

would not be received ‘‘for the truth of the matters con-

tained therein’’ (T350), and that Aloi’s statements to the

grand jury would not be treated as admissions (T350-51).

The judge stated that he considered the minutes to be ad-

missible ‘‘solely to show what transpired before the Grand

Jury”’ (350), so that ‘‘in the total context’’ (T351) the

trial jury could determine whether perjury had been com-

mitted. The judge also stated that he considered the grand

<=

8

jury minutes to have ‘‘some relevancy’’ (T356) on the issue

of materiality.*

The trial judge then invited defense counsel to object

to any particular statements made by Aloi before the grand

jury which the defense considered prejudicial (T351, 352).

However, defense counsel refused to request deletion of

specific items in the grand jury minutes. The trial judge

continued to urge defense counsel to object to any particular

statements which he considered to be prejudicial. The

judge himself suggested deletion of some material (T357,

359-60), and finally directed defense counsel to review the

grand jury minutes and present any objections he had to

specific statements (T358-60). Defense counsel still did

not ask to have particular statements deleted (T360-61),

except for one request which was granted (T363-64).

The judge then ruled that the record of Aloi’s grand

jury appearance, less the deleted material, would be ad-

mitted into evidence. The jury was instructed that grand

jury testimony was not to be considered ‘‘for its truth’’

but solely to show what had transpired before the grand

jury. The record of Aloi’s grand jury appearance, apart

from the statements concerning the Nyack apartment, could

be considered only for its bearing on the issues of ma-

teriality and Aloi’s state of mind in making the statements

charged to be perjurious (T332, 362-63, 642-43, 652-53).

* Under New York law, the issue of materiality is an issue for the

jury to determine. See People v. lanniello, 36 N.Y.2d 137, 143-44

(1975). See also Aloi v. Arnold, 413 F.Supp. 1384, 1387 and n.12

(S.D.N.Y. 1976) (Weinfeld, J.), which dismissed on exhaustion

grounds a habeas corpus petition filed by Aloi prior to the filing

of the habeas petition which is the subject of the instant proceeding.

9

Aloi’s conviction was affirmed by the Appellate Division,

First Department, on June 11, 1974, without opinion (45

A.D. 2d 819). Leave to appeal to the Court of Appeals was

denied on July 10, 1974, and, upon Aloi’s motion for reargu-

ment, again denied on September 10, 1974.

The Federal Habeas Corpus Proceeding

In granting Aloi’s habeas corpus petition, the District

Court relied heavily on the decision by the Third Circuit

in United States v. Apfelbaum, 584 F.2d 1264 (3d Cir

1978), which this Court has recently decided to review (99

S.Ct. 1496; March 19, 1979, U.S. No. 78-972). Like the

Third Circuit, the District Court regarded the general pro-

hibition against use of immunized testimony ‘‘in any re-

spect,’’ Kastigar v. United States, 406 U.S. 441, 453 (1972),

as requiring that in a perjury trial the defendant’s testi-

mony given under a grant of immunity be excluded, except

for the statements charged in the indictment to be perjuri-

ous and ‘‘the minimal relevant and essential other testi-

mony necessary to be able to place the alleged perjury in

its proper context.’’ (Opinion of the District Court, App. C,

infra, 17a; emphasis in original).

In the District Court’s opinion, the introduction of the

record of Aloi’s appearance b fore the grand jury did not

comply with this rule. The District Court considered Aloi’s

evasiveness in responding to questions about his business

to be immaterial to developing the context in which the

perjured testimony was given (id., 17a, n. 14). The District

Court considered Aloi’s responses concerning his acquaint-

ance with DiBiasi, Luparelli and Yacovelli, including

whether Aloi knew their nicknames, to be ‘‘somewhat rele-

10

vant’’ to developing the context of the perjury, but ‘‘quite

incriminating’’ and erroneously admitted at the trial (id.,

17a, n. 14),

The District Court ruled that Aloi’s grand jury testi-

mony claiming lack of ‘‘recall’’ concerning his business

was protected by the privilege against self-incrimination

even though the State maintained that this testimony was

on the face of the record, patently false and evasive. The

State’s contention was termed a ‘‘bare allegation of

falsity’’ (id., 20a) which was not sufficient to remove Aloi’s

grand jury testimony from the ambit of the privilege.

The District Court also rejected the State’s contention

that the introduction of the record of Aloi’s grand jury

appearance was, if error, harmless (id., 21a). The District

Court granted habeas corpus relief without reaching Aloi’s

second claim that he was denied due process by references

to organized crime during the trial.

The Second Circuit affirmed the District Court’s grant

of the writ, stating that it found it unnecessary to decide

whether to follow, as the District Court had, the Third Cir-

cuit’s ruling in the Apfelbaum case or, as the State urged,

the standard set forth in Cameron v. United States, 231 U.S.

710, 721 (1914). In Cameron, this Court stated that a

witness’ testimony given under a grant of immunity may

be used ‘‘for any legitimate purpose in establishing’’ that

he committed perjury in the same proceeding in which that

testimony was given. The Second Circuit stated that ‘‘even

under the more liberal Cameron standard, it was clearly

improper to admit virtually all of his [Aloi’s] immunized

11

grand jury testimony. Since it was not shown that all of

his testimony was false, the testimony could not have been

admitted as unprotected by the grant of immunity. Assum-

ing at least some of it was truthful, it had no probative

value in determining whether the alleged perjurious portion

was intentionally false.’’ (Opinion of the Court of Appeals,

App. A, infra 4a-5a).

Reasons for Granting the Petition

This case presents important issues concerning what

the Fifth Amendment requires in the conduct of perjury

trials when the perjury is charged to have been committed

by a grand jury witness while testifying under a grant of

immunity. An additional issue concerns the seope of fed-

eral habeas review of such perjury cases tried in the state

courts. These issues are closely related to questions re-

cently raised in two cases before this Court.

1. In Dunn v. United States (U.S. No. 77-6949, de-

cided June 4, 1979), the Solicitor General urged this Court

to decide whether a grand jury witness who testifies under

a grant of immunity is protected from use of his testimony

to prove that he subsequently committed the crime of false

declarations. In support of his position that a witness is

not constitutionally entitled to such protection, the Solicitor

General maintained, first, that the question of whether a

grant of immunity precludes use of the witness’ testimony

should be resolved by looking to whether, at the time the

witness is called to testify, he may properly assert the privi-

lege against self-incrimination.. Second, it was argued

that a witness may not invoke the privilege on the ground

that he fears that the testimony he is being compelled to

12

give may be used to prosecute him if he later commits

perjury. See United States v. Freed, 401 U.S. 601, 607

(1971) (the privilege against self-incrimination does not

supply ‘‘insulation for a career of crime about to be

launched’’); see also 40i U.S. at 610-612 (Brennan, J.,

concurring). Accordingly, the Solicitor General contended

that Dunn’s grand jury testimony, although given under a

grant of immunity, could be used to show that in a later

proceeding he gave an inconsistent statement under oath,

thereby committing the crime of false declarations. Brief

for the United States, pp. 36-57. This Court, in deciding

the Dunn ease, did not reach this issue. 47 U.S.L.W. 4607,

4609, 4611 n.14.

The issue bricfed, argued but not reached in Dunn is

presented by this case, although in slightly different form.

Here, the question is whether a grant of immunity protects

a witness from use of his testimony to prove that, after

giving ‘‘immunized’’ testimony, he committed perjury later

on in the same proceeding. Aloi’s perjurious denial that he

had ever been to the Nyack apartment was made subsequent

to the testimony which Aloi claims was protected by the

privilege against self-incrimination and the grant of im-

munity. If Aloi, before denying that he had been to the

Nyack apartment, had invoked the privilege against self-

incrimination on the ground that his testimony up to that

point should not be used to prosecute him for perjury in the

statements he was about to make, that claim would have

been made with respect to an entirely prospective act.*

* That Aloi was granted immunity “automatically” under the New

York statute (CPL 190.40) does not alter this analysis, which depends

not upon the manner by which immunity is granted but upon whether,

if no immunity had been granted, the privilege properly could have

been asserted with respect to the perjury.

13

Thus, the issue in this case is whether a witness should

be permitted to invoke the privilege against self-inecrimina-

tion and remain silent on the ground that he is about to

perjure himself. If the privilege may not properly be in-

voked on this ground, then the fact that Aloi’s grand jury

testimony was given under a grant of immunity would not

render his testimony inadmissible at his perjury trial.

The Court of Appeals, however, viewed the grant of

immunity as protecting Aloi from introduction of his grand

jury testimony at his perjury trial (5a). The Court of

Appeals thus implicitly rejected the contention made by the

State below, based upon the position advanced by the

Solicitor General in the Dunn case, that a witness does not

receive immunity with respect to the use of his testimony

to prove that he subsequently committed perjury. Even if,

in the view of the Court of Appeals, Aloi’s grand jury testi-

mony as a whole *‘had no probative value in determining

whether the alleged perjurious portion was intentionally

false’’ (5a), the court should not have concluded that Aloi’s

Fifth Amendment privilege against self-incrimination was

violated. A lack of probative value should have been re-

garded as simply an evidentiary error, not cognizable in

a federal habeas corpus proceeding except as part of Aloi’s

claim that his trial was so unfair as to constitute a denial of

due process—a claim which was made but not passed upon

by the courts below.

2. In United States v. Apfelbaum, 584 F.2d 1264 (3d

Cir. 1978), upon which the District Court relied in granting

Aloi’s habeas petition, this Court has granted the Solicitor

General’s petition for review (99 S.Ct. 1496; March 19,

1979, U.S. No. 78-972). The Apfelbaum case concerns the

14

scope of permissible use of ‘‘immunized’’ testimony to

prove that a witness committed perjury in the same pro-

ceeding in which his testimony was given.

The instant case, while decided by the Court of Appeals

without reliance on the standard employed by the Third

Cireuit in Apfelbaum, presents important issues which are

closely related to the issues before this Court in the A pfel-

baum case. If this Court decides in that case to adhere to

the standard set forth in Cameron v. United States, supra—

which permits the defendant’s testimony, though ‘‘immu-

nized,’’ to be introduced ‘‘for any legitimate purpose”’ to

establish the perjury, 271 U.S. at 721—then the holding of

the Court of Appeals presents a significant question. That

question, assuming, as held by the Court below, that Aloi’s

grand jury testimony had no probative value in establishing

the perjury, is whether a trial judge’s erroneous ruling that

the proffered testimony is probative of the perjury consti-

tutes a violation of the privilege against self-incrimination.

Or, is such an error simply an incorrect evidentiary ruling

which is not cognizable in a federal habeas corpus proceed-

ing except as part of a claim that the trial was fundamental-

ly unfair and deprived the defendant of due process?

The ruling of the Court of Appeals also raises the issue

of whether the federal courts, in habeas corpus review of

state perjury convictions, should determine the probative

value or contextual significance of the defendant’s grand

jury testimony without giving great weight to the ruling

made by the state trial judge in receiving that evidence.

The trial judge exercised his discretion to admit the entire

record of the defendant’s brief grand jury appearance

15

(after deleting particular portions objected to as prejudi-

cial) for the limited purpose of showing what transpired

during that appearance. Significantly, much of that testi-

mony is defendant’s patently false and evasive assertions of

an inability to recall. These false assertions tended to show

that defendant acted intentionally in committing the alleged

perjury and were not protected by the Fifth Amendment.

See Umited States v. Kahan, 415 U.S. 239, 243 (1974) (‘the

incriminating component of respondent’s pretrial state-

ments derives not from their content, but from respondent’s

knowledge of their falsity’’).

Conclusion

The petition for a writ of certiorari should be

granted or, in the alternative, held pending the deter-

mination of United States v. Apfelbaum (U.S. No. 78-

972).

Respectfully submitted,

Rosert M. MorcentHau

District Attorney

New York County

Rosert M. Pitter

Henry J. SrerncLAss

Assistant District Attorneys

Of Counsel

June, 1979

Appendices

Appendix A

UNITED STATES COURT OF APPEALS

For tue Seconp Circuit

No. 656—August Term, 1978.

(Argued February 6, 1979 Decided March 13, 1979.)

Docket No. 78-2143

rr

GeraLtp L. Suarcet, Attorney in Behalf of Vincent Aloi,

Petitioner-Appellee,

against

Lovis J. Lerxowrrz, Attorney General of the

State of New York,

Respondent-A ppellant,

and

Cuarues KE. Fenton, Warden of the Federal Penitentiary

at Lewisburg, as Agent for the State of New York,

Respondent.

Before:

WatTeRMAN, MANSFIELD and TimBeErs,

Circuit Judges.

Appeal from a judgment of the United States District

Court for the Southern District of New York, Gerard L.

Goettel, Judge, granting a petition for a writ of habeas

2a

corpus filed on behalf of a state prisoner convicted of

Perjury in the First Degree, N.Y. Penal Law §210.15, for

giving false testimony before a grand jury. The writ was

granted on the ground that the state court improperly ad-

mitted into evidence at the perjury trial the entire tran-

script (with a few deletions) of the petitioner’s immunized

grand jury testimony.

Affirmed.

a - —

Henery J. Sterneauass, Assistant District Attorney,

New York, NY (Robert M. Morgenthau, District

Attorney, New York County, Robert M. Pitler,

Assistant District Attorney, New York, NY, of

counsel), for Appellant.

Geratp L. Suarcet, Esq., New York, NY (Fischetti &

Shargel, New Work, NY, of counsel), for Appellee.

> ie

Per Curiam:

The State of New York appeals from a judgment of the

United States District Court for the Southern District of

New York, Gerald L. Goettel, Judge, entered on October

13, 1978, granting the petition of Gerald L. Shargel for a

writ of habeas corpus on behalf of Vincent Aloi, who was

convicted by the New York Supreme Court of perjury in

the first degree, N.Y. Penal Law §210.15, after a jury

trial for giving false material testimony before a grand

es aie]

3a

jury. Under New York Criminal Procedure Law §§50.10(1)

and 190.40 Aloi automatically received transactional im-

munity which did not extend to perjurious testimony.! At

the jury trial of Aloi for perjury the state trial judge,

although the defendant’s alleged false testimony wherein

he denied ever being at a certain apartment in Nyack,

New York, constituted but a small portion of the 92-page

transcript of his entire grand jury testimony, admitted in-

to evidence over Aloi’s objection the entire transcript (ex-

cept for a few minor deletions) on the ground that it

could be used by the jury to determine the materiality of

1. Section 50.10(1) of the New York Criminal Procedure Law

provides in pertinent part :

“A person who has been a witness in a legal proceeding, and

who cannot, except as otherwise provided in this subdivision, be

convicted of any offense or subjected to any penalty or forfeiture

for or on account of any: transaction, matter or thing concerning

which he gave evidence therein, possesses ‘immunity’ from any

such conviction, penalty or forfeiture. A person who possesses

such immunity may nevertheless be convicted of perjury as a

result of having given false testimony in such legal proceeding,

and may be convicted of or adjudged in contempt as a result of

having contumaciously refused to give evidence therein.”

Section 190.40 provides in pertinent part :

“1. Every witness in a grand jury proceeding must give any

evidence legally requested of him regardless of any protest or

belief on his part that it may tend to incriminate him.

“2. A witness who gives evidence in a grand jury proceeding

receives immunity unless :”.

Although a grant of immunity to a witness must be co-extensive with

his Fifth Amendment privilege against self-incrimination, Kastigar v.

United States, 406 U.S. 441, 448-49 (1972), this does not preclude

prosecution of the witness for giving perjurious testimony under the

grant, United States v. Tramunti, 500 F.2d 1334, 1342 (2d Cir.), cert.

demed, 419 U.S. 1079 (1974). Otherwise the purpose of the im-

munity grant, which is to obtain the witness’ truthful testimony,

would be defeated.

da

the alleged false statements and whether the defendant

knew they were false. The district court, relying heavily

upon the Third Cireuit’s decision in United States v.

Apfelbaum, 584 F.2d 1264 (3d Cir. 1978), granted the

writ on the ground that the state was precluded by the

grant of immunity from introducing any of Aloi’s im-

munized testimony except ‘‘the perjurious statements al-

leged in the indictment plus the minimal relevant and

essential other testimony necessary to be able to place the

alleged perjury in its proper context.’’

In Cameron v. United States, 231 U.S. 710, 720-24

(1914), the Supreme Court, in holding that truthful immu-

nized testimony by the defendant in one proceeding was

protected by a statutory grant of immunity from use to

prove perjury in another proceeding,” indicated that the

testimony might be used ‘‘for any legitimate purpose in

establishing’’ the perjury in the same proceeding, 231 U.S.

at 721. The state contends that this language authorizes a

more liberal standard than that applied in Apfelbaum,

supra, which made no reference to Cameron.

We find it unnecessary to decide in this case whether

the Apfelbauwm or some more liberal standard should be

applied to determine the extent to which Aloi’s immu-

nized testimony may be used to prove that he gave per-

jurious testimony in the same proceeding since, even

under the more liberal Cameron standard, it was clearly

improper to admit virtually all of his immunized grand

2. See, in accord, United States v. Housand, 550 F.2d 818, 823

(2d Cir.), cert. denied, 431 U.S. 970 (1977); United States v.

Berardelli, 565 F.2d 24, 28 (2d Cir. 1977),

a

jury testimony. Since it was not shown that all of his

testimony was false, the testimony could not have been

admitted as unprotected by the grant of immunity.

Assuming at least some of it was truthful, it had no

probative value in determining whether the alleged per-

jurious portion was intentionally false.

Accordingly the judgment of the district court is af-

firmed.

6a

Appendix B

UNITED STATES COURT OF APPEALS

For THE Seconp Circvir

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the

United States Courthouse in the City of New

York, on the thirteenth day of March, one

thousand nine hundred and seventy-nine.

Present:

Hon. Sterry R. Waterman

Hon. Water R. Mansrrevp

Hon. Wittram H. Timsers

Cireuit Judges,

78-2143

$$ —___

Geratp L. Suarcen, attorney in behalf of Vincent Aloi,

Petitioner-Appellee,

v.

CrarLes Ki. Fenton, et al.,

Respondents,

Lovis J. Lerxowrtz, Attorney General of the

State of New York,

Respondent-A ppellant.

—EE

Appeal from the United States District Court for the

Southern District of New York.

7a

This cause came on to be heard on the transcript of

record from the United States District Court for the South-

ern District of New York, and was argued by counsel.

On Consmeration Wuereor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed in accordance with the

opinion of this court with costs to be taxed against the

appellant.

A. Dantet Fvsaro,

Clerk

By: /s/ Arraur Heuer

ArtHur HeEter,

Deputy Clerk

8a

Appendix C

UNITED STATES DISTRICT COURT

SoutHern District or New York

78 Civ. 1218 (GLG)

EE A

GeraLp L. SHarcEL,

Attorney in behalf of Vincent Aloi,

Petitioner,

against

Cares E. Fenton,

Warden of the Federal Penitentiary at Lewisburg, as

Agent for the State of New York and

Louis J. Lerxowrrz,

Attorney General of the State of New York,

Respondents.

Appearances:

Fiscnett: & SHarce., Esqs.

Attorneys for Petitioner

1290 Avenue of the Americas

New York, N.Y. 10019

By: Gerald L. Shargel, Esq.

Of Counsel

9a

Opinion of the District Court

Rosert B. Fiske, Esq.

United States Attorney

Attorney for Defendant, Fenton

One St. Andrews Plaza

New York, N.Y. 10007

By: Thomas E. Moseley, Esq.

Assistant U.S. Attorney

Rosert M. Morcentuav, Esq.

District Attorney, New York County

Attorney for Defendant, Lefkowitz

155 Leonard Street

New York, N.Y. 10013

By: Robert M. Pitler, Esq.

Henry J. Steinglass, Esq.

Assistant District Attorneys

Of Counsel

Gortre., D.J.:

In this habeas corpus action under 28 U.S.C. §2241,

petitioner Aloi’ seeks to vacate his New York State perjury

conviction and the accompanying detainer now lodged

against him. Petitioner alleges that his conviction violated

both his Fifth Amendment right against self incrimination

and his right to due process of law under the Fourteenth

Amendment to the United States Constitution.

Aloi appeared under subpoena on November 28, 1972

before a New York County Grand Jury investigating the

killing of Joseph Gallo. Upon his refusal to sign a waiver

of immunity petitioner automatically received transactional

1. This petition for habeas corpus has been brought by Gerald

L. Shargel as attorney for Vincent Aloi. Hereafter, all use of the

term “petitioner” shall refer exclusively to Vincent Aloi.

10a

Opinion of the District Court

immunity pursuant to New York Criminal Procedure Law

§190.40 (McKinney, 1971). Following this grant of im-

munity, petitioner testified that he had never visited a cer-

tain apartment in Nyack, New York, allegedly the meeting

place for the planning of Gallo’s murder and the subsequent

attempts to conceal the identity of the perpetrators. As a

result of this denial, petitioner was indicted for perjury in

the first degree.”

At the perjury trial in June, 1973, a number of witnesses

testified as to Aloi’s presence in the Nyack apartment. In

addition, the prosecution, over the objection of defense

counsel, introduced into evidence almost all of Aloi’s im-

munized grand jury testimony. Much of this material con-

tained statements far beyond the corpus delicti of the per-

jury, including many questions relating to the nature of

petitioner’s employment that attempted to characterize the

petitioner as an organized crime figure.’ The trial court

allowed this material into evidence for the purpose of

determining the materiality of the allegedly perjurious

statement to the grand jury’s investigation. Petitioner

contends that the introduction of these minutes constituted

both an impermissible use of compelled testimony in deroga-

tion of his Fifth Amendment right against self incrimina-

tion, and so prejudiced the jury as to make impossible a fair

trial, in violation of the Due Process Clause of the Four-

teenth Amendment.

Petitioner was convicted in New York State Supreme

Court and sentenced to two and one-third to seven years

2. N.Y. Penal Law §210.15 (McKinney 1971).

3. See note 12 and accompanying text, infra for a full description

of the material involved.

lla

Opinion of the District Court

imprisonment. The Appellate Division affirmed without

opinion, 45 App. Div. 2d 819, and the Court of Appeals

denied leave to appeal. Thereafter, Aloi petitioned in fed-

eral court for a writ of habeas corpus claiming both self

incrimination and due process grounds. Judge Weinfeld

found, United States ex rel. Aloi v. Arnold, 413 F. Supp.

1384 (S.D.N.Y. 1976), that the due process ground had not

been raised on appeal in state court and thus that there had

been no exhaustion of state remedies with regard to that

claim. Since he found that the due process claim was suf-

ficiently related to the self incrimination claim so as to

preclude review of either until the due process claim had

been properly presented to the state court, he denied the

petition without prejudice.

Petitioner returned to the state courts to move under

New York’s post-conviction statute‘ to vacate the judgment

on both self incrimination and due process grounds. He

failed, however, to offer any explanation why the due

process claim had not been raised on direct appeal, a failure

which precluded the state Supreme Court from reviewing

the claim on the merits.” The motion was denied, as was

leave to appeal to the Appellate Division. Petitioner there-

upon brought his second federal habeas corpus petition on

the same two grounds. Judge Stewart, in Shargel ex rel.

Aloi v. Arnold, No. 77 Civ. 316 (S.D.N.Y. May 27, 1977)

(unreported opinion), once again found that there had been

4. N.Y. Crim. Proc. Law §440.10 (McKinney 1971).

5. N.Y. Crim. Proc. Law §440.10(2)(c). Under the terms of

this provision, a petitioner must demonstrate that his failure to raise

an issue on direct appeal was “justifiable” in order to permit the

Court to make a post-conviction determination on the merits.

12a

Opinion of the District Court

no exhaustion of state remedies because the state court had

not had the opportunity to determine whether petitioner’s

failure to raise the due process claim on direct appeal was

‘*justifiable,’’ (and thus whether the motion could have been

heard on the merits), and denied the petition. Whereupon

petitioner once again went back to state court to file a second

post-conviction motion to vacate, this time accompanied by

an affidavit explaining his earlier actions.° This motion

was denied, as was leave to appeal to the Appellate Division.

Petitioner has now filed his third federal habeas corpus

petition alleging the same two claims. No motion has been

made by the respondents to dismiss for failure to exhaust

state remedies. We agree that petitioner has finally ex-

hausted his state remedies, and met the requirement set out

in Picard v. Connor, 404 U.S. 270, 276 (1971) to present ‘‘the

state courts with the same claim he urges upon the federal

courts.’’ See United States ex rel. Gibbs v. Zelker, 496

F.2d 991, 994 (2d Cir. 1974) ; United States ex rel. Nelson v.

Zelker, 465 F.2d 1121, 1124 (2d Cir.), cert. denied. 409 U.S.

1045 (1972). Thus, this Court may now, on petitioner’s

third try, reach the merits of the petition.’

6. Petitioner’s explanation consisted of an affidavit submitted by

the attorney who had represented him on his direct appeal. In that

affidavit the attorney stated that he believed that he had raised the

due process issue on appeal but had inartiully failed to make specific

reference to the appropriate constitutional provisions.

7. At the present time the petitioner is in federal custody serving

a nine-year term on an unrelated feceral conviction. Respondents,

however, in light of Braden v. 30th Judicial Circuit Court of Ken-

tucky, 410 U.S. 484 (1973), do not contest petitioner’s right to chal-

lenge his future state incarceration.

13a

Opinion of the District Court

The Self Incrimination Claim

An important function of the Fifth Amendment is to

guarantee an individual’s right against self incrimination

by protecting him from being compelled to be ‘‘a witness

against himself’’ in a criminal case. The function of the

grand jury is to investigate fully all potential criminal

charges to insure that, ‘‘serious criminal accusations will

be brought only upon the considered judgment of a repre-

sentative body of citizens acting under oath and under

judicial instruction and guidance.’’ United States v. Man-

dujano, 425 U.S. 564, 571 (1976) (plurality opinion of

Burger, C.J.). On occasion, the need of a grand jury to

know comes into conflict with a witness’ right against self

incrimination. In such a situation, as was noted by the

Second Circuit in United States v. Tramunti, 500 F.2d 1334,

1342 (2d Cir.), cert. denied, 419 U.S. 1079 (1974), ‘*[t]he

accommodation between the right of the government to

compel testimony on the one hand and the constitutional

privilege to remain silent on the other, is the immunity

statute.’’ :

In order for a grand jury to compel testimony over a

claim of privilege, it is necessary that the immunity af-

forded be at least as insulating as the protection afforded

8. The Fifth Amendment’s guarantee against self incrimination

protects an individual from state as well as federal encroachment.

The Supreme Court held in Malloy v. Hogan, 378 U.S. 1, 8 (1964):

“The Fourteenth Amendment secures against state invasion the

same privilege that the Fifth Amendment guarantees against federal

infringement—the right of a person to remain silent unless he chooses

to speak in the unfettered exercise of his own will, and to suffer no

Ity, as held in Twinings [Twinings v. New Jersey, 211 U.S. 78]

or such silence.”

14a

Opinion of the District Court

under the Constitution. In Kastigar v. United States, 406

U.S. 441, 453 (1971), the Supreme Court held that the

federal immunity statute, 18 U.S.C. §§6002-3, which pro-

vides for use and derivative use immunity is, ‘‘coextensive

with the scope of the privilege itself against self incrimina-

tion.’’ See Glickstein v. United States, 222 U.S. 139 (1911).

New York’s immunity statute, which provides for trans-

actional immunity as well as that for use and derivative

use,® is even more protective. As immunity is treated as

having ‘‘substituted for the privilege,’’ United States v.

Mandujano, 425 U.S. at 576, a ‘‘witness can be compelled to

answer, on pain of contempt, even though the testimony

would implicate the witness in criminal activity.’’ Jd. at

575.

Since the transactional immunity afforded a grand jury

witness under New York law provides greater protection

than does the Fifth Amendment itself, it is clear that the

compelled testimony of such an immunized witness cannot

be used by, ‘‘prosecutorial authorities .. . in any respect

... Land] cannot lead to the infliction of criminal penalties

on the witness.’’ Kastigar v. United States, 406 U.S. at

453.1° The only exception to this rule occurs when the wit-

9. The immunity afforded a witness in a grand jury proceeding

under N.Y. Crim. Proc. Law §190.40 is defined in §50.10(1) (Mc-

Kinney 1971) which states, in pertinent part that: “A person who

has been a witness in a legal proceeding, and who cannot, except as

otherwise provided in this subdivision, be convicted of any offense

or subjected to any penalty or forfeiture for or on account of any

transaction, matter or thing concerning which he gave evidence

therein, possesses ‘immunity’ from any such conviction, penalty or

forfeiture.”

10. Kastigar dealt with the less inclusive federal immunity statute.

Whatever protections are afforded by that statute are encompassed

in New York’s transactional immunity law.

a ne |

lda

Opinion of the District Court

ness perjures himself. As noted recently by the Third

Circuit in United States v. Apfelbaum, No. 77-2427, slip op.

at 10 (3d Cir. Aug. 10, 1978): ‘‘Perjury however is a viola-

tion of an independent criminal statute, and as a practical

matter, if immunity constituted a license to lie, the purpose

of immunity would be defeated.’’ Thus a witness, despite

the grant of immunity, and without coming into conflict

with the constitutional prohibition against compulsory self

incrimination, United States v. Mandujano, 425 U.S. at

576-577,"' can be prosecuted for his perjurious statements

before the grand jury.”

To prove perjury against a defendant the prosecution

can introduce into evidence such part of the defendant’s

immunized testimony as is necessary to establish the corpus

delicti of the offense. United States v. Apfelbaum, No. 77-

2427, slip op. at 11; United States v. Hockenberry, 474 F.2d

247, 249 (3d Cir. 1973). Use in this manner of such limited

portion of the immunized testimony is the extent to which

the prosecution can go without violating the Fifth Amend-

ment. In defining corpus delicti the court in Apfelbaum

stated, supra, at 11, n.9: ‘‘[ W]e define corpus delicti to

mean only the statement or statements of the defendant

which the grand jury has charged to be perjurious, together

with no more than that minimal testimony essential to place

11. The Supreme Court has held that prosecution for false state-

ments or perjury can be had even in cases where the government ex-

ceeded their authority in making the inquiry. See, e.g., United States

v. Wong, 431 U.S. 174 (1977) ; United States v. Knox, 396 U.S. 77

(1969). Bryson v. United States, 396 U.S. 64 (1969).

12. N.Y. Crim. Proc. Law §50.10(1) (McKinney 1971) pro-

vides, in pertinent part: “A person who possesses such immunity

[transactional] may nevertheless be convicted of perjury as a result

of having given false testimony in such legal proceedings.”

l6a

Opinion of the District Court

the charged falsehood into its proper context.’’? See United

States v. Berardelli, 565 F.2d 24 (2d Cir. 1977); United

States v. Housand, 550 F.2d 818 (2d Cir.), cert. denied, 431

U.S. 970 (1977) ; United States v. Tramunti, 500 F.2d 1334.8

Beyond this minimal use, as noted in Housand, supra at 822,

truthful grand jury testimony is ‘‘not admissible to prove

perjury for its use ... [i]s proscribed by the immunity

granted.”’

The respondent asserts that petitioner’s grand jury tes-

timony is admissible for any ‘‘legitimate purpose’’ to show

that petitioner perjured himself before the grand jury.

We cannot accept such a broad formulation. The court in

Hockenberry, 474 F.2d at 250, stated that, ‘‘if immunity

that deprived him [the defendant] of that privilege [against

self incrimination] is to be, as constitutionally it must, co-

extensive with the privilege itself, his compelled admission

of wrongdoing cannot later be used to discredit his effort

to defend himself against a charge of some other wrong-

doing.’? The extent to which immunized testimony can be

introduced by the prosecution in a later proceeding is thus

severely circumscribed. United States v. Apfelbaum, No.

77-2427, slip op. at 12. In Apfelbawm, the Court held that

only that part of the immunized testimony which was ‘‘in-

13. The Second Circuit in Tramunti cited and endorsed the Third

Circuit’s decision in Hockenberry, reading that case as standing for

the proposition that you cannot use truthful immunized grand jury

testimony in a later prosecution. Tramunti held, however, that the

immunity statute did not prevent the use of false grand jury testimony

for impeachment purposes at a criminal trial. The Third Circuit has

subsequently seen Tramunti as “embracing the principle that while

truthful testimony can have no subsequent use under a grant of im-

munity, untruthful testimony is unprotected. That same principle

was announced in Hockenberry, and is endorsed here.” United

States v. Frumento, 552 F.2d 534, 543 n.16 (3d Cir. 1977 %

a i i i i lish i i a a a Rie Na ee ai

17a

Opinion of the District Court

corporated in haec verba in the perjury indictment”’ could

be considered part of the corpus delicti, id. at 11 n.9, and

therefore admissible. In this case, however, we see no need

to limit the corpus delicti to the same extent. We define

corpus delicti as being the perjurious statements alleged in

the indictment plus the minimal relevant and essential

other testimony necessary to be able to place the alleged

perjury in its proper context. Material beyond this may

not be introduced at trial, nor may it be contained in the

indictment.

In the state’s prosecution against Aloi virtually the

entire minutes of his immunized grend jury testimony was

introduced into evidence. This material went far beyond

that minimal amount of other testimony which was needed

to place the alleged perjury in its proper context, and thus

was not within the corpus delicti.* It has been held that

that part of the immunized testimony which is not within

the corpus delicti of the perjury cannot be used by the pros-

14. The minutes of petitioner’s testimony before the grand jury

constitute 90 pages of the trial record. Of that material, 59 pages,

or nearly two-thirds of the minutes, relate to matters which appear

altogether immaterial both to the alleged perjurious statement and to

developing the context in which the perjured testimony was given.

Questions and answers concerning the nature of Aloi’s business, how

the business was run, where it was located, the dates during which

Aloi worked, and the extent of income derived from it, formed the

substance of this material (Trial Transcript pages 378-437). An

additional 18 pages of testimony concern matters only somewhat rele-

vant to developing the context of the perjury, which at the same time

are, however, quite incriminating in regards to petitioner’s organized

crime connections. Question and answers here concerned the nature

of petitioner’s relationship with such individuals as Messrs. DiBiasi,

Luperelli and Yacavelli, and included such questions as (Transcript

at 447), “Do you know his nickname?” (Transcript at 437-455).

Only 9 pages of the minutes contain questioning which is directly

relevant to the issue of petitioner’s presence in the N yack apartment

(Transcript at 456-464).

18a

Opinion of the District Court

ecution as substantive evidence in proving its case in chief.

United States v. Apfelbaum, No. 77-2427, slip op. at 12.

Nor can such testimony be used for the purpose of impeach-

ment if the grand jury witness is later called to testify at

trial. United States v. Frumento, 552 F.2d 534, at 542-543

(3d Cir. 1977) ; United States v. Tramunti, 500 F.2d at 1344;

United States v. Hockenberry, 474 F.2d at 250. As was

stated in Frumento, supra, at 543, and quoted with approval

in Apfelbaum, supra, at 12:

‘“Clearly, if a witness had invoked his Fifth Amend-

ment privilege, the government could have no testimony

available with which it might impeach his subsequent

sworn statements. Were we to permit impeachment

with immunized testimony we would then be affording

the immunized witness something less than his full

Fifth Amendment protection.’’

We now hold that that part of Aloi’s immunized tes-

timony not within the corpus delicti, material which in fact

goes very far beyond that which is necessary, or even rel-

evant, to placing the alleged perjury in its proper context,

cannot be allowed into evidence against the petitioner either

for the prosecution’s stated purpose of determining the

materiality of the alleged perjury (which could have been

determined by using testimony within the corpus delicti and

by other evidence) or for the purpose of showing that he

committed perjury while testifying. Use in such a manner

constitutes an impermissible infringement upon his priv-

ilege against self incrimination: ‘‘Nor may such use be

harmonized with the scope of immunity afforded ... [the

defendant] by statute, because as the Supreme Court has

declared, use and fruits immunity is, and must necessarily

19a

Opinion of the District Court

be, co-extensive with the privilege.’? United States v.

Apfelbaum, supra, at 12. Since such material was intro-

duced against the petitioner, we find that his conviction in

state court was obtained in derogation of his Fifth Amend-

ment rights. In such situations federal habeas corpus

relief is appropriate.

The respondent contends, nevertheless, that the grand

jury testimony is admissible because it was false and eva-

sive and thus not within the protection of the Fifth Amend-

ment. That such false testimony is not protected is clear:

‘“‘Tf he gives false testimony, it is not compelled at all. In

that case, the testimony given not only violates his oath, but

is not the incriminatory truth the Constitution was intended

to protect.’’ United States v. Tramunti, 500 F.2d at 1342.

Accord, United States v. Moss, 562 F.2d 155 (2d Cir.), cert.

denied, 46 U.S.L.W. 3535 (U.S. Mar. 6, 1978); United

States v. Housand, 550 F.2d 818. But before this rule can

come into effect, there must be more than just a mere allega-

tion that such testimony is false. In deciding this same

question the Third Circuit in Apfelbaum, No. 77-2427, slip

op. at 13 stated: ‘‘ Permitting the government unrestricted

use of any immunized statements whenever it supposes

them to be false would necessarily vitiate the protection af-

forded by a grant of immunity and would effectively ab-

rogate the immunity agreement.’’ The Court there held

that such immunized statements could not be used until they

were incorporated ‘‘into a false swearing indictment as the

corpus delicti of the indictment.’’ The Second Circuit has

not gone this far and does not require that the false tes-

timony be part of the corpus delicti of an indictment to be

20a

Opinion of the District Court

usable. However, there must be some independent proof

of the falsity before the testimony is admissible. See, e.g.,

United States v. Moss, 562 F.2d at 165. (‘‘(T]he acknowl-

edgement by the defendant that it was perjurious rendered

it usable.’’?); United States v. Berardelli, 565 F.24 at 29

(‘‘Nothing in the Tramunti decision suggests that the result

in that case would be the same if it could not have been in-

dependently determined that the immunized testimony is

false.’’); United States v. Housand, 550 F.2d at 823 n.8.

Respondent’s bare allegation of falsity is insufficient to

remove petitioner’s grand jury testimony from the ambit of

Fifth Amendment protection.

Similarly, we cannot accept the respondent’s contention

that even if the admission of the testimony was error, it

was harmless error since there was overwhelming other

evidence to convict him with. The jury in the petitioner’s

trial, which after five hours of deliberation reported a

deadlock, reached a verdict only after additional instruction

was given and testimony re-read. The difficulty of the jury

in reaching a verdict seems to refute the respondent’s claim

that the evidence was ‘‘overwhelming.’’ In addition, even

if it appears to us that sufficient other evidence existed for

the jury to convict the petitioner, this does not mean that

the error was harmless. The Supreme Court in Kotteakos

v. United States, 328 U.S. 750, 764 (1946) held: ‘‘[T]he

question is, not were they right in their judgment, regard-

less of the error or its effect upon the verdict. It is rather

what effect the error had or reasonably may be taken to

have had upon the jury’s decision.’’ The Court concluded

that only if it is sure ‘‘that the error did not influence the

21a

Opinion of the District Court

jury, or but had a very slight effect,’’ id., may the verdict

stand. See United States v. Check, No. 77-1208, slip op. at

6755-56 (2d Cir. July 17, 1978). Given the difficulty of the

jury in reaching a verdict, and the damaging nature of the

grand jury testimony (with its allegations of organized

crime connections) it seems unlikely that the jury was not

influenced, or only slightly influenced, by the testimony.

We find that the error in admitting Aloi’s grand jury tes-

timony was far from harmless,

We hold that the introduction into evidence, even for

a restricted purpose, of substantially all of the petitioner’s

immunized grand jury testimony violated the petitioner’s

Fifth Amendment rights.

The Due Process Claim

Petitioner presents a second ground upon which to at-

tack his state conviction, contending that he was deprived

his right to due process of law guaranteed under the Four-

teenth Amendment by the prosecution’s ‘‘egregious mis-

conduct’’ at his trial. These allegations raise serious con-

stitutional questions about the fairness of the trial. See

Donnelly v. DeChristoforo, 416 U.S. 637 (1973). A serious

question is also raised as to whether, in light of the Supreme

Court’s recent decision in Wainright v. Sykes, 433 U.S. 72

(1977), this Court has jurisdiction to reach the merits of

this claim, or whether we must find that under state law

petitioner has waived his right to raise the due process

issue. In view of this Court’s disposition of peticioner’s

self incrimination claim, however, there is no need to reach

these issues.

22a

Opinion of the District Court

The writ of habeas corpus is granted and the detainer

against petitioner is hereby vacated, unless the state com-

mences a new trial of petitioner within 90 days.

So OrpDERED:

s/ Gerrarp L. Gortre.

U.S.D.J.

Dated: New York, N.Y.,

October 13, 1978.