# Petition — Attorney General of New York v. Shargel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0319%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 922 ## Text | 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? Te ote At) EN 3 + ¥ ] 3 2 ‘ 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). 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0319%3A1. Public record. Not legal advice.