Petition — Rubin v. United States
Supreme Court brief1979
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IN THE
Supreme Court of the United States vo |
October Term, 1979
No. PG 17
BERNARD G. RUBIN,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.
RICHARD L. ROSENFIELD,
1888 Century Park East, Suite 815,
Los Angeles, Calif. 90067,
(213) 277-2411,
Attorney for Petitioner.
FLAX AND ROSENFIELD,
Of Counsel.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
or
SUBJECT INDEX
Page
gun pase cay ossmionnvaecatn’ 1
Sie ea critaa bebe Stuy ocneinwdesaacveesnces 2
ee eo cicluseknbhubasdbacddatennecnseepsnass 2
ee f
aie saa oasohinv sn canmeginisonsape +
SR CREBIE DESO TIRE COREE SS SSO 19
The Court of Appeals Erred in Concluding That
the Prosecutor’s Misuse of the Prior Invocation
of the Fifth Amendment Before the Grand
Jury by Important Defense Witnesses Was Not
Error of Constitutional Dimension .................... 19
A. The Court Below Correctly Concluded
That the Cross-Examination and Com-
ment Upon the Prior Exercise of the Fifth
Amendment Was Error ..................2222.2.2.. 19
- B. The Court Applied an Erroneous Stand-
ard by Concluding That the Error Was
Merely Evidentiary and Did Not Rise to
Constitutional Proportion ~........0000........... 26
The Court Erred in Denying Standing to
Petitioner Who Is Asserting His Own
Constitutional Right as Well as Those
of His Witnesses -........00000......2...22ccceece ee 31
The Petitioner Has Standing to Raise the
Witness’s Constitutional Rights in This
TESTS SESE Sa ee 36
ii.
Page
The Court of Appeals Misapprehended the
Prejudice Suffered by Petitioner .......... 40
Petitioner's Entire Conviction Should Be
Reversed Due to the Improper Exclu-
sion of Highly Probative State of Mind
UNI 505. an cas case ironsp aera Cia entiiion ide 43
II
The Decision Below Squarely Conflicts With
the Decisions of the United States Court of
Appeals for the Ninth Circuit With Respect to
Failure to Record Grand Jury Proceedings
Despite Timely Preindictment Request .......... 52
RETR a UC eh 9 TRI apart Lele Ana a 58
Appendix A. Opinion of the United States Court
of Appeals, Fifth Circuit .........................- App. p. 1
Appendix B. Opinion of the United States Court
Of Appeals, Fifth Circuit ....0.- 2... ccccnssnccnen sans, ieee 38
Appendix C. Letter to the Honorable C. Clyde
Atkins, Judge, United States District Court,
Miami, Florida, Dated December 23, 1974 .......... 47
Appendix D. Letter to the Honorable C. Clyde
Atkins, Judge, United States District Court, Dated
IN BAU OER issih acnckiicics ccanctobcetngsnabieniecanes 55
ili.
TABLE OF AUTHORITIES CITED
Cases Page
Alderman v. United States, 394 U.S. 165 (1969) .... 39
Ashe v. Swenson, 397 U.S. 436 (1970) .......022...2.-- 4]
Barrows v. Jackson, 346 U.S. 249 (1953) ...... 36, 37
Bivens v. Six Unknown Federal Agents, 403 U.S.
PE PG Pe wicctctiimbcsacanse-cicinianctnedetainiecsunjeicoiown 39
Bowman v. United States, 350 F.2d 913 (9th Cir.
RN Feniaseeecadehscot tig kcotoea asia ts asin See dtacesh Heo oa tsa 40
Boyd v. United States, 116 U.S. 630 ........................ 35
Branzburg v. Hayes, 408 U.S. 665 (1972) ..00000..... 33
Bray v. Paton, 429 F.2d 500 (4th Cir. 1970) ........ 30
Burgett v. Texas, 389 U.S. 109 (1967) .....00....... 26, 27
California v. Green, 399 US. RA CERO) sasccuccane: ae
Cary v. Westinghouse Electric Corporation, 178
N.Y. 2d 846, affirmed, 190 N.Y. 2d 1103
CPI evoking cites Sa viatelies ieisecadesupubaitoas each onesies 36
Chambers v. Mississippi, 410 U.S. 284 (1973) .... 29
Couch v. United States, 409 U.S. 322 (1973) ...... 21
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976)
aL AE a ea 16, 24, 25, 27, 32, 34, 35
Dutton v. Evans, 400 U.S. 74 (1970) 20000000000... 27
Gardner v. Broderick, 392 U.S. 273 (1968) ....21, 34
Garner v. United States, 424 U.S. 648, 96 S.Ct.
Sic aN «5 gi BIE) Si, UE NAAN Rcnenaoe SAS tM STERNER eS es
ly.
Page
Garrity v. State of New Jersey, 385 U.S. 493
CHOY cin cee 34
eer rr Te TT rT Tere Tee ed
Hale v. Henkel, 201 U.S. 43 (1906) ...................... 21
Hoffman v. United States, 341 U.S. 479, 71 S.Ct.
814 (9961) 2 eee 22
Imbler v. Pachtman, 424 U.S. 409 (1976) -........... 38
Investigation Before April 1975 Grand Jury, In re,
403 F.Supp. 1176 (D.C. Cir. 1975), vacated 500
F.26 G00 (D.C. Cie.) HRS? sac aeee 22
Jones v. United States, 362 U.S. 257 (1960) —........ 39
Kastigar v. United States, 406 U.S. 441 (1972) ...... 20
Kotteakos v. United States, 328 U.S. 750 (1946) ....
aisbarcipeamaisolea Sen ie cam ciaa tain 2, 27, 88-20, 40; 30;:51
Lefkowitz v. Turley, 414 U.S. 70 (1973) -.............. 34
Malloy v. Hogan, 378 U.S. 1 (1964) ~...........02222..... 33
Marchetti v. United States, 390 U.S. 39 (1968) .... 21
McCarthy v. Arndstein, 266 U.S. 34 (1924) _........ 34
Milanovich v. United States, 365 U.S. 551 (1961)
Miranda v. Arizona, 384 U.S. 436 (1966) ..........
scatshipoinsisives easingnivenivieuiveiieiaanebal ane aea ein Bi, 22, 21, 33
Murphy v. Waterfront Commission, 378 U.S. 52
CI9RS) .~anesstnae <vvoxshinss a Ghadiee tt idiaaaaariaes 35
Ofiver, In re, 333 U.S. 257 (1948) .onccccecccccccccseecess 29
v.
Page
Schlinksy v. United States, 379 F.2d 735 (1st Cir.
| EES LOLA ae POCA 02a SNORE PS PURRRONDNE DNDN = Cd 55
Singleton v. Wolf, 428 U.S. 106 (1976) ............ 37, 38
Slochower v. Board of Higher Education, 350 U.S.
Re ANN Bx died es etd blek cabo Mbycacaeies harsds octouncatian 21, 34
Spevack v. Klein, 385 U.S. 511 (1967) .............. 33, a9
Uniform Sanitation Men v. New York, 392 US.
gg SIAR pe EI SR GE Sl Rl OO mR 34
United States v. Aloisio, 440 F.2d 705 (7th Cir.
CT esa eaids oinblaleutsbaeadestanaminier 55
United States v. Barash, 365 F.2d 395 (1966) ......
AOS EEE el TEN AD Bee dO CR OO Ey EE 49, 50
United States v. Basurto, 497 F.2d 781 (9th Cir.
REARS RIE REN en i RE RRR ENTS 56
United States v. Battisti, 486 F.2d 961 (6th Cir.
Re ERSTE TCR pete FES an eae Ss RIN 55, 56
United States v. Brown, 555 F.2d 407, cert. den.
Ni RRR Piet a a a A OAR a eR 51
United States v. Chanen, 549 F.2d 1306 (9th Cir.
gest oA ON FOR sa AEE See PR No ee MODUL 56
United States v. Cianchetti, 315 F.2d 584 (2d Cir
BR EREER CARS DP Teg PEE SERIET RE A A aC OOE cee No D bo
United States v. Cramer, 447 F.2d 210 (2d Cir
a ld be caeectisten ete ctaticpudeoel wi guntie |
United States v. DeMarco, 401 F.Supp. 505 (C.D.
ae dh ced ocenibtbcainbebuocmsiact duals 56
United States v. Fairchild, 505 F.2d 1378 (Sth Cir.
es RR RENE TER IR es Rp on eee EE 23
Vi.
Page
United States v. Gallo, 394 F.Supp. 310 (D.Conn.
ROPER lice Sunni sdatanieccaccladpantumeniatoncacagatvonoeeabeokinn 56
ID vast onitiashoeiienismmnnaialdienkintsasontaeiantien Ramos | Abe
United States v. Gramolini, 301 F.Supp. 31 (D.C.
Be ED Ssmatpicouastisicrbigshadtonesbicamaaiuan indy DaabApsacnauhicn 56
United States v. Grunewald, 233 F.2d 556, Frank
J. dissenting, reversed 353 U.S. 391 (1957) ......
Cater ate Ga a 2 Tee 16, 23, 24, 32,43, 35
United States v. Hale, 422 U.S. 171 (1975) ...... 16, 24
United States v. John, 408 F.2d 1134 (8th Cir.
| GREE IR By Soe Sete AB ep ea Mey NO ad eee 55
UII cai liiin casa teLitasesceliakctltmintmaccmeedscoaeos aan caaiea ata 54
United States v. Messitte, 324 F.Supp. 334 (S.D.
SR 0 0 pCR CEASE Ae SORE MODOC AD 56
United States v. Morrison, 535 F.2d 223 (3rd Cir. ,
| Sa CEES REET RANG Re RL 30
PERRIER FANT RETA: Bie A ey RIM a TE 17
United States v. Nixon, 418 U.S. 683 (1974)
United States v. Peden, 472 F.2d 483 (2d Cir.
aki in Maeva cdaekses tenshaiagssodieav gaskets aa, 36
United States v. Price, 474 F.2d 1223 (1973) ....54, 55
United States v. Shepherd, 576 F.2d 719 (7th Cir.
1978), rhg. den. (1978), cert. den. 99 S.Ct. 158
LEIA ARR See EE OS ODS SE eet ae RPS 51
eR SRE RTE er Ses me
Vii.
Page
United States v. Thomas, 488 F.2d 334 (6th Cir.
SUEY vcegacsccscsictitietcsdbdpenerebaieeauesaplantcnede aan 30
United States v. Thoresen, 428 F.2d 654 (1970) .... 54
United States v. Tomaiolo, 249 F.2d 683 (2d Cir.
BPI T Ds psccid scum davessbeneblchs-cceccieenadiietente rae eee 17
United States v. Williams, 464 F.2d 927 (8th Cir.
RIPPED: wncciiniscs civedinh pl vscaplibiosteaneabincess cures es alcantimnecesinER teenth 17
Washington v. Texas, 388 U.S. 14 (1967) ........ 29, 30
Webb v. Texas, 409 U.S. 95 (1972) ....20....00022..2.... 29
Wood v. Georgia, 370 US. 374 CREF scnsiedl ssaeesibn 56
Rules
Federal Rules of Criminal Procedure, Rule 6(d) .... 55
Statutes
United States Code, Title 18, Secs. 130-141 00.0... 3
United States Code, Title 18, Sec. 664 -...0.....000002.... 4
United States Code, Title 18, Sec. 1962 .............. 2 45
United States Code, Title 18, Sec. 1962(c) ............ 4
United States Code, Title 18, Sec. 6002 ..........00...... 20
United States Code, Title 18, Sec. 6003 ........0000...... 20
United States Code, Title 26, Sec. 7206(1) ............ 4
United States Code, Title 28, Sec. 1254(1) 200000... 2
United States Code, Title 29, Sec. 436 ....00022222200.... 4
United States Code, Title 29, Sec. 439 2000000000000... 4
United States Code, Title 29, Sec. 501 (c) 2.002000... 4
Viii.
United States Constitution, Fourth Amendment ......
United States Constitution, Fifth Amendment ..........
idinckiubeiana aaa 11, 13, 14, 15, 19, 20, 21, 22,
ROP er hel tas erm Pa 26, 29, 30, 31, 33, 34, 35, 36, 37,
United States Constitution, Sixth Amendment ..........
Textbooks
ABA Project on Standards for Criminal Justice,
Standards Relating to the Prosecution Function,
§35(c) (Approved Draft) -..........-.-----.--.--:--:---0-°
Louis, “Constitutional Rights and the Misuse of
Standing,” 14 Stanford Law Review, p. 433
CIID in sass dnsccsnciaschaccdanneccnedecekcbeisobenanparaeuneapeets
8 Moore’s Federal Practice, §6.02(2), p. 611
(Clee Bid., 1969) ....--....-<.cconssnsencnncceverncnesnenessoses
Note, “Standing To Assert Constitutional Jus
Tertii,” 88 Harvard Law Review, pp. 423, 425
ORO ecvsitncsccsnnteth cibcessdonicendpencseisicntalinedcpeugiunsines
Scott, “Standing in the Supreme Court—A Function-
al Analysis,” 86 Harvard Law Review, p. 645
CFE Den sscaticecinse vice segpiinionie Genbnanataheschcmeananieisibs
Settler, “Standing to Assert Constitutional Jus Tertii
In the Supreme Court,” 71 Yale Law Journal, p.
SD CEDURES wnccniccceccsgntttnpecemeasalicladiccemitiocanns
23
40
56
36
56
36
36
IN THE
Supreme Court of the United States
October Term, 1979
pe ROSA
BERNARD G. RUBIN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.
Opinions Below.
The initial opinion of the court of appeals is reported
at 559 F.2d 975 (Sth Cir. 9/22/77). A copy of
that opinion is attached in our Appendix (App. A).
Thereafter, upon confession of error by the Solicitor
General, this entire matter was remanded to the court
of appeals. See ........ Ue SE apee; , 99 S.Ct. 67 (1978).
The second opinion of the court of appeals is reported
at 591 F.2d 283. A copy of that opinion is attached
in our Appendix (App. B).
On June 1, 1979, the court denied both the govern-
ment and petitioner's respective Petitions for Rehearing.
On June 13, 1979, the court of appeals denied a
petition for stay of mandate. Petitioner filed a motion
to recall the mandate of June 27, 1979.
ce, ee
Jurisdiction.
The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. §1254(1).
Questions Presented.
1. Whether the impeachment of defense witnesses
by eliciting and commenting upon their prior invocation
of the privilege against self-incrimination before a fed-
eral grand jury is error of constitutional magnitude,
or is simply a violation of evidentiary canons, subject
only to the lesser harmless error standard of Kotteakos
v. United States, 328 U.S. 750, 764-75 (1946), rather
than the constitutional harmiess error standard of Chap-
man v. California, 386 U.S. 18 (1967).
2. Whether petitioner’s entire convictions should
have been reversed due to the improper exclusion of
critical state of mind evidence.
3. Whether the Indictment should have been dis-
missed for failure to record the grand jury proceedings,
despite timely pre-indictment request.
Summary of Proceedings.
After a two week jury trial in the United States
District Court for the Southern District of Florida,
petitioner was convicted on 103 counts of a 10%
count indictment. The indictment was multifaceted, but
stemmed from two different government theories. The
first 86 counts dealt with allegations that petitioner,
a union official, had engaged in multiple duplicate
billings to the union entities and trust funds. Correla-
tively, two income tax evasion counts were predicated
on the theory that petitioner had failed to report the
monies obtained from the allegedly improper reimburse-
ment.
aii
Similarly, five racketeering counts (See 18 U.S.C.
§$130-141) rested upon the alleged duplicate billings,
contending that the acts constituted racketeering. °
The duplicate billing counts constituted approximate-
ly $55,000 of the monies allegedly embezzled. The
vast buik of the monies alleged embezzled, i.e., approxi-
mately $330,000, were contained in the two counts
(Counts 87 and 88) which contended that petitioner
engaged in unauthorized salary increases, not pursuant
to the respective union constitution and thus, according
to the government’s theory, not in accordance with
the law.
In our initial appeal to the court of appeals, we
urged inter alia that the trial court had improperly
excluded critical testimony relating to petitioner’s men-
tal state. The court pretermitted review by invocation
of the concurrent sentence doctrine.
We thereafter urged in a supplemental petition for
rehearing that the court had improperly invoked the
concurrent sentence doctrine in this case. Upon the
candid confession of error by the solicitor General,
the matter was remanded to the court of appeals.
Upon remand, the court of appeals accepted our
argument that indeed, the trial court had improperly
excluded critical evidence pertaining to the salary in-
crease counts and thus reversed those two counts. The
court, however, rejected our contention that petitioner's
entire conviction should be reversed because the jury
’ was deprived of critical state of mind evidence which
may easily have affected their consideration of peti-
tioner’s state of mind on the other counts. We deal
with these issues infra.
sailed
Statement.
On October 2, 1975, after a two-week jury trial
in the United States District Court for the Southern
District of Florida (Honorable Peter T. Fay, presiding),
petitioner was convicted on 103 counts of a 105 count
Indictment charging embezzlement (29 U.S.C. §501(c);
18 U.S.C. §664), racketeering (18 U.S.C. §1962(c)),
false statements on tax returns (26 U.S.C. §7206(1))
and failure to keep labor union records (29 U.S.C.
§§$436 and 439).
At the time of the alleged offenses,’ petitioner was
an official of the Laborer’s International Union of
North America (“LIU”). He was President of the
Southeast Florida Laborer’s District Council, President
of Local 666 of the Concrete Products and Material
Yard Workers, Business Manager of LIU Local 478,
and Special International Representative (R. 1-2).
Counts 1 through 86 alleged separate instances of
embezzlement from the labor organizations and trust
funds. The gist of these offenses was that petitioner
had engaged in multiple duplicate billings to the respec-
tive entity for expenses incurred. The government’s
theory was that petitioner embezzled the monies of
the respective labor organizations or employee welfare
benefit plan by causing the entity to pay for alleged
1We do not expect the government to dispute our contention
that on October 3, 1977, petitioner resigned all his union and
trust fund positions and that in modification of his bond pending
the resolution of this Petition consented to the imposition of
proscriptions restraining him from exercise of control over any
labor union or trust fund affairs or receipt of any monies
or property from any union or trust fund.
*“R” is a reference to the Clerk’s Record. Reference solely
to number will hereinafter be used as a reference to the Re-
porter’s Transcript.
AE
items(s) of expenses knowing that the expense had
been paid or would be paid by another labor organiza-
tion (and/or employee welfare benefit plan).
Correlatively, Counts 97-99 alleged false subscribing
of federal income tax returns for the calendar years
1972, 1973 and 1974, respectively (R. 127-129). The
government’s theory was that the excess reimbursement
received from the multiple billings was not disclosed
on petitioner’s federal income tax returns.
Counts 87 and 88 alleged that during the approxi-
mate four year period covered by the Indictment,
petitioner embezzled $178,701.00 and $150,330.00
from Local 666 and the District Council, respectively,
by causing the respective labor organization “to pay
him unauthorized salary increases.” (R. 123).°
Counts 89 through 96 alleged that appellant failed
to keep adequate union records (R. 124-126).
Counts 100-105 alleged that appellant conducted
the activities of the respective labor unions and trust
funds through a pattern of racketeering activity in
violation of 18 U.S.C. §1962 (R. 130-141).*
8The government’s theory on these counts was that petitioner
had engaged in criminal conduct by failing to follow the pro-
cedures prescribed by the local union and district council con-
stitutions for raising salaries. Petitioner contended that his sal-
aries were raised pursuant to these constitutions and that in
any event, the responsible officers and delegates had properly
delegated authority to him to set all salaries. On appeal, peti-
tioner argued that the jury was erroneously instructed inter
alia on civil fiduciary standards which effectuated strict liability
in this criminal case. The court of appeals invoked the con-
current sentence doctrine to refuse to review petitioner’s conten-
tions (/d. at 990, f.n. 14, App. A). Upon remand from this
Court, the court of appeals accepted our argument that critical
evidence had been improperly excluded.
*The “racketeering activity” alleged was the various acts of
embezzlement charged in Counts | through 89 (R. 130-141).
sti
With respect to the “multiple” billing counts (Counts
1 through 86) petitioner did not challenge the govern-
ment’s contention that the various vouchers, airline
tickets, charge card expenditures, etc., admitted into
evidence by the government constituted requests for
overlapping expenses. —
On the “multiple billing” trust fund counts, the gov-
ernment introduced evidence that on the various trust
funds each trustee would receive advances to attend
educational conferences occurring one or two times
per year (R.T. 287, 305-306, 402). In each instance,
petitioner was voted the monies that he received (R.
298, 407). :
The management trustees related that they had been
advised by both the trust fund attorney and the trust
administrator that if they did not spend the full allotted
amount, they did not have to return the excess but
should report any excess on their income tax returns
(296, 300, 419, 582-583, 621-622).°
The trusts’ administrator, who served all the respec-
tive trust funds, issued the advances to petitioner with
the knowledge that petitioner was receiving multiple
advances (394-395).
In his defense, petitioner conceded the existence of
his practice of multiple reimbursement. Petitioner de-
tailed without contradiction that he would invariably
cash the reimbursement checks; the proceeds would
be received in cash and would not be deposited to
any savings account, checking account or investment
(1176-1179). Additionally, petitioner would cash most
*Petitioner was also informed by the trust fund's attorney
that any excess could be spent for legitimate union purposes
(1220, 1215).
1, a
of his personal salary checks received from Local 478,
which proceeds were used for his personal living ex-
penses (1179).°
Petitioner explained that he spent the cash generated
by the multiple reimbursements for union-oriented ac-
tivities, primarily organizing expense.‘ As_ petitioner
explained (1175-1176):
Ever since late ’68, 69 when our organizations
reached financial strength, 1 accumulated this cash.
I always accumulated a cash fund and was always
spending cash.
* * *
I was on salary from two different organizations
which is proper in the labor movement. I saw
no impropriety with drawing expenses from each
one of the organizations on which I was on salary.
Each time I drew expenses from the organizations,
each organization was getting a full measure of
service.
I was representing each organization and drew
reimbursed expenses. The excess of the reimbursed
Petitioner argued that this supported his defense that he
used the monies obtained from multiple reimbursements for
union-oriented purposes. He coniended that if, indeed, he consid-
ered the proceeds from the union-expense money as his own,
he would not have needed to cash the salary checks for his
own personal expenses.
7Petitioner described examples: He would give cash to the
organizers. If the union wanted to organize a subcontractor,
in order to induce people into the union, the organizers would
go into the shop and pick out one, two or three people they
considered to be leaders in that subcontractor’s organization
and seek to enlist their help. These “independent contractors”
would seek remuneration for their services in enlisting people
to join the union. The organizer would pay $20-$30 for each
person signed up (1171-1172). '
por hae
expenses was converted into cash and this cash
was used to organize the unorganized.
To my belief, there was never a cent of cash
received from these reimbursed expenses that was
not spent for the benefit of the Union with which
I am involved.
Petitioner described how cash was paid out during
strikes because the striking employees could not receive
unemploment benefits and had no other sources of
income (1174).
Petitioner also testified that he paid large amounts
of cash to entertain contractors (1182). Because he
was dealing with executives of multi-million dollar cor-
porations, he tried to deal with them on their own
level (1189). Similarly, by cultivating friendships with
other union officials and entertaining them, he could
enlist their aid when it would be beneficial to the
union'( 1183-1186).
With respect to the trust fund conferences, petitioner
believed that they were one of the greatest encouragers
of peaceful, harmonious labor-management relations.
Whenever he received excess cash reimbursement, the
cash went into his cash organization fund (1207-1211).
Petitioner believed that this provided the ultimate bene-
fit to the member.”
Prior to the first conference attended by petitioner,
the attorney for the trust funds advised him that it
would be proper to receive advances from each fund
‘Petitioner described, for example, how a $4,000 cash expend-
iture for organizing at the Aventura Project, a high rise project
in Miami, Florida, resulted in the acquisition of approximately
40 members. As a result, the trust fund would receive $104,000
per year in contributions in return for the $4,000 spent to
acquire the new members (1213-1214).
cote
and that if there were excess reimbursement, the money
could properly be spent on legitimate union purposes
(1220, 1215). Petitioner was aware that the attorney,
and indeed the administrator, were also voted advances
from each fund on which petitioner was a_ trustee
(1227, 1229).
It was stipulated that petitioner disclosed all amounts
he received from salary and reimbursed expenses from
each labor organization on the LM-2 reports filed with
the Department of Labor (1232-1233).
Several individuals corroborated petitioner’s expendi-
ture of cash for union-oriented purposes. We argue
infra that the government committed constitutional error
in cross-examining District Council organizers Kenton
L. Wells and Jack Gordon. For. purposes of cohesive-
ness, the summary of the testimony of those witnesses
is found in a latter portion of this statement of fact
(infra at pp. 12-15).
Larry Feder, an organizer for Local 666, estimated
that since 1971, petitioner had provided him with $35,-
000 to $40,000 in cash for organizational expenditures
(1582-1583). Feder described these expenditures which
included large cash outlays during a three month strike
at the Carriage House Hotel in Miami Beach (1564-
1584). Feder also observed petitioner entertaining with
cash and carrying large amounts of cash. When Feder
questioned petitioner as to the wisdom of carrying
around large ainounts of money, petitioner told him
that during the course of his daily routine, which
included entertaining and organizing. it was necessary
to have large amounts of cash (1571-1572).°
*Feder testified that this conversation occurred at Capra’s
Restaurant in Miami and that petitioner paid cash for enter-
(This footnote is continued on next page)
oe
Several laborers corroborated significantly lesser ex-
penditures of cash. One Lucius Smith not only observed
petitioner spend cash on several occasions, but also
personally received $2,400 which he then used to enlist
others to help him in organizing (1628-1632). Jake
Wright, a Local 478 business agent and District Council
organizer, testified that in addition to the cash monies
he had observed petitioner spend on many occasions,
he had received $2,000 in cash to pay for organizing.
He paid this cash to one Ulysses C. Edwards (1677-
1680). Edwards corroborated Wright’s testimony
(1698-1700).
Jerry Schwartz, Executive Vice President of the
County National Bank of North Miami, where petitioner
maintained both personal and union accounts, recalled
that he had often observed petitioner present checks
for cashing. When Schwartz asked petitioner to deposit
the checks rather than cash them, petitioner told him
that he needed the cash (1654-1655). Schwartz also
recalled that in 1971 he was contemplating constructing
a building project as a non-union project and when
he spoke to petitioner, he was advised that petitioner’s
union was establishing a fund for organizing and would
strike the project (1656).
Petitioner’s expenditures of cash for entertaining was
also corroborated by Joseph Fanti, a contractor, and
Ralph DeMeo, a contractor and President of the Florida
Home Builders Association. Each testified that during
the many years they had known him, petitioner had
taining that evening (1572). Vincent Bruno, the owner of
Capra’s, called as a government witness, testified that on many
occasions petitioner would come to the restaurant with union
people and pay the bill with cash rather than charging it to
the union (824-826). These bills would range from $70.00
to $150.00 (828).
ean | ae
entertained them on many occasions; each had seen
petitioner expend cash for this purpose (1549-1557;
1706-1715).
On appeal, petitioner urged inter alia that the trial
court committed constitutional and evidentiary error
by allowing the prosecutor to elicit the prior invocation
of the Fifth Amendment by two witnesses and that
the prosecutor egregiously compounded the error by
his closing argument."*
Two extremely important defense witnesses were
union organizers Kenton Wells and Jack Gordon. The
government’s cross-examination and closing argument
impugning the credibility of these two witnesses form
the basis of our argument of error.
Wells, a District Council organizer and co-Mayor
of the City of Opa-Locka, Florida, testified that as
an organizer, he would attempt to solicit men to join
the organization (1504).
With respect to the organizing of one specified con-
struction project, petitioner provided him with at least
$5,000 in cash (1509-1510). For other union purposes,
In addition to the arguments presented here, petitioner
also argued that the conviction should be reversed because
of (1) the exclusion of highly important evidence due to an
incorrect view that the evidence constituted hearsay; (2) the
deprivation of a fair trial by the improper use and subsequent
jury instruction on codified federal civil law on fiduciary re-
sponsibility and exculpatory resolutions; (3) improper convic-
tion of “racketeering” under 18 U.S.C. $1962; (4) the im-
propriety of the order of forfeiture of petitioner’s union and
trust fund positions; (5) the failure to allow an adversary
hearing into allegations that the government's case was the
product of illegal activity; and (6) the attendance of unauthor-
ized persons before the grand jury. The court rejected the
latter four contentions; the court determined to apply the concur-
rent sentence doctrine to foreclose consideration of the former
two issues.
=) hae
petitioner had provided him with approximately $7,000
over the previous five years (1510-1513). Additionally,
he observed petitioner spend large amounts of cash
on entertaining for union purposes (1506, 1516-1517).
Wells explained that in organizing a plant, it is neces-
sary to pick out the key people to be influential in
bringing other people into the membership. Sometimes
it is necessary to compensate these people for their
work (1513). Most often these people are paid by cash
(1513-1514); it is also necessary to pay their bills
while they are working (1514). Wells also explained
that he paid cash provided by petitioner for work
lists, addresses and telephone numbers (1514).
Jack Gordon, an organizer for Local 666 and the
District Council, testified that over the past four years
he had incurred entertainment expenses of approxi-
mately $150.00 per month at the Jockey Club and
that petitioner gave him the required cash to pay
these bills. Additionally, petitioner would reimburse
him in cash for out-of-pocket expenses of approximately
$1,500.00 per year (1616). Thus, over the past four
years petitioner had provided him with approximately
$13,000.00 in cash (1617)."
Prior to the cross-examination of Wells, defense coun-
sel approached the bench in an effort to avert the
problem (1518-1519):
Mr. Flax |defense counsel]: Your honor, we
have another one of these anticipated problems.
"Gordon explained that the reimbursement for out-of-pocket
expenses of approximately $1,500 per year was incurred for
entertainment of contractors, meals, hotel rooms and football
tickets.
ital Bisse
Rather than have the question asked, it is my
understanding that Mr. Wells took the Fifth
Amendment in the grand jury. Am I correct?
Mr. Steinberg [Prosecutor]: That’s correct.
Mr. Flax: I want to inquire just how we are
going to go into it. I think it is highly improper.
I don’t want to just stand up and object. I do
want to try to head if off.
Mr. Steinberg: I intend to go into it. I intend
to ask him if he answered those questions in
any different manner on the previous occasion.
The Court: I will overrule the objection.
Thereafter, the prosecutor commenced his cross-
examination of the witness by eliciting that Wells had
invoked the Fifth Amendment before the federal grand
: 12
jury
"The relevant portions of the examination were as follows
(1519-1524):
[1519]
Mr. Steinberg: Q. Mr. Wells, I notice that Mr. Flax asked
you your occupation.
A. Yes, sir.
Q. Have you ever given a different response on a previous
occasion?
A. Not that I know of as far as my occupation. No I
don’t.
* * *
Q. Did you testify in the Federal Grand Jury on April
29, 1976, Sir?
. This year?
That’s correct.
No, Sir, I didn’t.
You did not?
I came before the Federal Grand Jury.
Were you asked this question:
“Q. What is your occupation?”
A. I was asked that question.
O>PO>o>
* * *
[1521]
Q. After you gave your address were you asked your oc-
cupation?
A. Yes.
(This footnote is continued on next page)
aoe ae
Similarly, over objection, the prosecutor elicited from
Jack Gordon that he had previously refused to testify
(1622-1623).
The guise under which the prosecutor elicited the
invocation of the Fifth Amendment by these witnesses
was that the refusal to testify at the grand jury was
inconsistent with testifying as a defense witness at
trial. Then, in closing argument the prosecutor argued
(1911).
Jack Gordon, Mr. Jack Gordon—you saw him
sitting up there. He is another one of the fat
cats. He is living off the sweat of these laborers.
You heard how much money he was getting, and
when he was given an opportunity to testify at
th: grand jury, what did he do? He refused to
testify about the same matters. Why?
If his testimony would have exculpated Mr.
Rubin, it would have meant that we would not
be here today. Why would he not have offered
it? Why would he not have told us?
Q. Did you give the same response that you gave Mr.
ax?
A. No, Sir. I took the Fifth Amendment.
Mr. Flax: May we approach the bench, Your Honor?
The following colloquy occurred at the bench (1521-1522):
Mr. Rosenfield: Your Honor, I would suggest that because
the man answered the question before the grand jury that
he refused to answer on the ground that it might tend
to incriminate him, this would be improper and highly
prejudicial. There is nothing inconsistent about a witness
trying to invoke the Fifth Amendment in front of a grand
jury and testifying here. There is nothing inconsistent about
that at all. This kind of questioning is improper.
* * *
The Court: I have overruled your objection. You can cer-
tainly bring out that he refused to testify before the grand
jury. I think that is proper cross-examination.
With the Court’s express sanction, the prosecutor then con-
tinued to elicit that Wells had never told the government about
the cash received from petitioner (1523-1524).
— =
He never told the government about any cash
pool. He had an opportunity and he submitted
bills for organizing.
Addressing himself to Kenton Wells, the prosecutor
argued to the jury (1914):
Now, Mr. Kenton Wells,
* *
What did he do when he got to the grand
jury and was given an opportunity to testify about
Mr. Rubin? If he had something to exculpate
Mr. Rubin, to say Mr. Rubin was a good guy,
he did the right thing, he followed the law, why
did he not say it? Why did he not say it?
Why is he a willing witness now and not a willing
witness then?
Defense Counsel moved for a mistrial based on the
improper comment on the exercise of the Fifth Amend-
ment by these witnesses (1959). The motion was denied
(ibid.).
In rebuttal argument the prosecutor reiterated his
same theme (2043-2044)."*
Now, Mr. Rosenfield also said that they had
witnesses come in here and tell us about this
money and where it went and you cannot disbelieve
them. I would argue with that. This is what a
jury is for, and that is what the Judge will tell
you a jury is for. You are here to judge the
credibility of these witnesses. You use your com-
mon sense. You use every test you use to test
the credibility of your friends, your neighbors,
The defense, however, did not in any manner address
itself in closing argument to the prior invocation of the Fifth
Amendment by the witnesses.
val RR
people you do business with, your insurance
people. Use your common sense.
If you ask a man something last year about
something that happened before that and he refuses
to tell you, he refuses to tell you about that,
why is it changed a year later when he is here
a year later testifying for Mr. Rubin on the witness
stand and all of a sudden he is a volunteer?
Why does it change?
You ask yourself, if you ask a man a question
a year ago and he says, “X,” and then he comes
here to this witness stand under oath and says,
“Y,” you judge for yourself. You are the judge
of the credibility of these witnesses. You do not
have to accept what the Government witnesses
say at face value. You do not have to accept
what the defense witnesses say at face value. You
are the sole judges of the credibility of these
witnesses. I cannot tell you whether they lied
or not. That is not my decision. Mr. Rosenfield
cannot tell you that. That is your decision. You
use the fact you have at hand to determine wheth-
er they were credible and if they have a motive,
if they have a motive for testifying.
On appeal, the Fifth Circuit validated petitioner’s
claim that the impeachment of these witnesses was
error. The court considered that argument to be a
“most troubling challenge to the validity of the convic-
tion . . .” (559 F.2d at 979, App. A). Drawing
upon the teachings of this Court in Grunewald vy.
United States, 353 U.S. 391 (1975); United States
v. Hale, 422 U.S. 171 (1975) and Doyle v. Ohio,
426 U.S. 610 (1976), the court concluded that the
a.
district court had “violated evidentiary canons by per-
mitting such impeachment.” (559 F.2d at 979, App.
A). The court specifically held (/d. at 983, App.A):
A defense witness’s prior refusal to supply testi-
mony to a grand jury before which he had a
reasonable belief that he might be a defendant
himself has no proper significance as impeachment
evidence. Use of the evidence for that purpose
risks prejudice. Accordingly, we hold that the
government may not attempt to impeach a defense
witness by eliciting such a prior refusal to testify
before a grand jury | Footnote omitted. |
Aligning itself with the Eighth Circuit decision in
United States v. Williams, 464 F.2d 927 (8th Cir.
1972) and the Second Circuit decisions in United
States v. Glasser, 443 F.2d 994 (2d Cir. 1971); United
States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957°
and United States v. Natale, 526 F.2d 1160 (2d Cir.
1975), the court nevertheless adopted a_ perspective
not voiced by those other Circuits—by concluding that
the error was not of a constitutional nature, thus allow-
ing the harmfulness ot be assessed under the lesser
standard of Korteakos v. United States, 328 U.S. 750,
764-765 (1946) rather than the stricter standards ap-
plied to constitutional error. Chapman v. California,
386 U.S. 18 (1967)."*
M4No other circuit has drawn such a distinction. In United
States v. Williams, supra, the Court rejected the government's
contention of harmless error without discussion as to the standard
employed by the court. Similarly, neither Glasser, Tomaiolo
nor Natale focused on this aspect.
a:
In weighing the purported harmfulness of the im-
peachment, the court apparently carefully avoided opin-
ing upon the result it would reach if it were determined
that the constitutional harm'ess error standard was
applicable. In applying the less stringent Kotteakos
standard, the court concluded that on balance the error
was probably not sufficiently harmful to require re-
versal. We argue infra that the court applied on erro-
neous standard in assessing the error’s potential harmful-
ness and should have applied the standard applicable
to constitutional violations. Moreover, we urge that
irrespective of the applicable standard, the prejudicial
impact of the prosecutor’s actions require the granting
of the Petition for Writ of Certiorari and reversal
of the Court of Appeals’ decision.
—)
ARGUMENT.
I
THE COURT OF APPEALS ERRED IN CONCLUDING
THAT THE PROSECUTOR’S MISUSE OF THE PRIOR
INVOCATION OF THE FIFTH AMENDMENT BE-
FORE THE GRAND JURY BY IMPORTANT DEFENSE
WITNESSES WAS NOT ERROR OF CONSTITUTION-
AL DIMENSION.
A. The Court Below Correctly Conciuded That the
Cross-Examination and Comment Upon the Prior
Exercise of the Fifth Amendment Was Error.
As a preliminary matter, we present a brief analysis
of the nature of the error which occurred below. We
then turn to a consideration of the proper standard
to be employed in assessing the prejudicial impact.
The error which was permitted by the district court
was not the result of an inadvertent or isolated act
of the federal prosecutor. The defense attempted to
avert the error; indeed, the defense asserted the proper
legal objections prior to the interjection of the impermis-
sible evidence. The prosecutor, with the express sanction
of the court, made a considered judgment not only
to elicit the prior invocation of the Fifth Amendment
by these witnesses, but also to vigorously argue to
the jury the precise inference which the law wisely
condemns. Moreover, the prosecutor’s own determina-
tion of the importance of destroying the credibility
of these particular witnesses is reflected in his statement
to the jury.concerning witness Gordon (1911):
If his testimony would have exculpated Mr. Rubin,
it would have meant that we would not be here
today. Why would he not have offered it? Why
would he not have told us? | Emphasis added. }
a ae
In our view, the prosecutor’s vociferous reliance on
these witnesses’ prior invocation of the Fifth Amend-
ment in order to destroy their credibility totally deprived
petitioner of a fair trial.
Proper analysis requires the initial recognition that
the government did not at any time purport to claim
in the courts below that either witness improperly as-
serted his personal privilege against self-incrimination
when he appeared as a witness before the grand jury.
There is no suggestion in this record—nor could there
be—that at the time the witnesses appeared before
the grand jury that their respective assertions of privi-
lege were anything but proper and for their own per-
sonal protection.’ It is an elementary principle of
our jurisprudence that the privilege is purely personal;
it cannot legitimately be asserted to protect or shield
others from inquiry into their affairs. The notion that
the “public has right to everyone’s evidence,” Kastigar
v. United States, 406 U.S. 441, 443 (1972), is firmly
imbedded.
When the government's interest in acquiring testi-
mony conflicts with the witness’s privilege against self-
incrimination, the government is entitled to obtain im-
munity for the witness, thus removing the witness’s
fear of self-incrimination and securing the witness’s
testimony. See 18 U.S.C. $$6002, 6003.
The court of appeals reached the same conclusion in ob-
serving (559 F.2d at 982, App. A):
“Insofar as the record reveals, the two witnesses also could
have been justified in the conclusion that they were being
interrogated for the express purpose of supplying evidence
against themselves. They, of course, could invoke the privi-
lege properly only to avoid incriminating themselves: the
government has never levied the charge that either improp-
erly claimed the protection of the fifth amendment.”
a
Even if the government does not desire to grant
immunity, nevertheless where persons improperly invoke
the Fifth Amendment for protection of others, the
government is still not without remedy. Since the privi-
lege does not exist to protect others, but exists only
where there is a “ ‘real and appreciable’ and not merely
‘imaginary and unsubstantial’ hazard of self-incrimina-
tion,” Marchetti v. United States, 390 U.S. 39, 48
(1968), the government has the power to seek contempt
sanctions for those who improperly assert the testimonial
privilege. Although the privilege “guarantees the right
to remain silent absent immunity,” Garner v. United
States, 424 U.S. 648, 96 S.Ct. 1178, 1182 (1976),
nevertheless:
[u|nless the government seeks testimony that will
subject its maker to criminal liability, the constitu-
tional right to remain silent absent immunity does
not arise. An individual therefore properly may
be compelled to give testimony, for example, in
a noncriminal investigation of himself. See e.g.
Gardner v. Broderick, 392 U.S. 273, 278 (1968).
Garner, supra. The Fifth Amendmen® cannot be used
to shield third persons. Couch v. United States, 409
U.S. 322, 328 (1973): Hale v. Henkel, 201 USS.
43 (1906). A prospective grand jury witness, who
is unsure of the depth and scope of the grand jury
investigation, has the constitutional prerogative of pro-
tecting himself by assertion of the privilege. “The privi-
lege serves to protect the innocent who otherwise might
be ensnared by ambiguous circumstances,” Slochower
v. Board of Higher Education, 350 U.S. 551, 557-
558 (1956).
When these witnsses appeared before the grand
jury and invoked the Fifth Amendment, if the invoca-
tion of the privilege was improperly oriented to shield
petitioner rather than for personal protection, the gov-
ernment had the power to compel the testimony—by
attempting to invoke the contempt sanction. As the
Garner court stated (424 U.S. 628, 96 S.Ct. 1178,
n.11):
As we have noted, the privilege is an exception
to the general principle that the Government has
the right to everyone’s testimony. A corollary to
that principle is that the claim of privilege ordinar-
ily must be presented to a “tribunal” for evalua-
tion at the time disclosures are initially sought.
This early evaluation of claims allows the Govern-
ment to compel evidence if the claim is invalid
or if immunity is granted and therefore assumes
that the government obtains all the information
to which it is entitled.
There was simply no suggestion made to the trial
court that at the time these witnesses invoked their
Fifth Amendment privileges that there was anything
improper about their respective assertions of privilege.
If the government believed otherwise, the remedy was
to seek the court’s aid to compel answers to specific
questions. See Hoffman v. United States, 341 USS.
479, 71 S.Ct. 814 (1951); Cf. In re Investigation
Before April 1975 Grand Jury, 403 F.Supp. 1176
(D.C. Cir. 1975), vacated 500 F.2d 600 (D.C. Cir.
1976)."°
‘In In re Investigation, 19 witnesses acting on the advice
of an attorney with potentially conflicting interests invoked the
Fifth Amendment to even innocuous questions, and the district
court disqualified the attorney, requiring separate representation.
The Court of Appeals vacated the disqualification order and
instructed the government to cure any suggestion of impropriety
by challenging any unwarranted claims of privilege.
an
One of the essential vices of the error committed
by the government was its total failure to offer any
evidence that there was anything improper about the
witnesses’ assertion of their privilege. Yet, the only
way in which the argument that the government made
would acquire any probative force whatsoever, would
be if the invocation of the privilege at the grand
jury stage by the witnesses was unjustifiable. “|T]o
be admissible, keeping silence must be much more
than ambiguous.” United States v. Fairchild, 505 F.2d
1378, 1383 (Sth Cir. 1975). Moreover, in closing
argument, the prosecutor truly perverted justice when
he invited the jury to join him in speculation as to
why the witnesses would have invoked the Fifth Amend-
ment before the grand jury, then later testify at peti-
tioner’s trial. The prosecutor asked the jury to infer
that they acted to shield petitioner at the grand jury
stage. The record, of course, was totally devoid of
any such evidence, and indeed every permissible infer-
ence is to the contrary.
In Grunewald v. United States, 353 U.S. 391
(1957), reaching the conclusion that the invocation
of the privilege lacked probative value as impeachment
of trial testimony, the Court “emphasized anew that
one of the basic functions of the privilege is to protect
innocent men.” (Emphasis in original) 353 U.S. at
421, and that (id. at 422):
{T]he Fifth Amendment claim was made before
a grand jury where the witness was a compelled
and not a voluntary witness; where he was not
represented by counsel; where he could summon
no witnesses; and where he had no opportunity
to cross-examine witnesses testifying against him.
These factors are crucial in weighing whether a
silidinicit
plea of the privilege is inconsistent with later
exculpatory testimony on the same questions, for
the nature of the tribunal which subjects the wit-
ness to questioning bears heavily on what infer-
ences can be drawn from a plea of the Fifth
Amendment. [citation omitted]. Innocent men are
more likely to plead the privilege in secret proceed-
ings where they testify without advice of counsel
and without opportunity for cross-examination,
than in open court proceedings, where cross-exami-
nation and judicially supervised procedure provide
safeguards for the establishing of the whole as
against the possibility of merely partial truth.
The Grunewald majority rested the decision on evi-
dentiary grounds. Nevertheless, four members of the
Court would have rested the decision squarely on consti-
tutional grounds (353 U.S. at 425-426).
Then, in United States v. Hale, 422 U.S. 171 (1975),
the Court rejected the government’s contention that
it could permissibly cross-examine a defendant by elicit-
ing his prior silence at the time of arrest. Resolving
the issue on evidentiary grounds, the Court concluded
that “|i]f the Government fails to establish a threshold
inconsistency between silence . . . and later exculpatory
testimony at trial, proof of silence lacks any significant
probative value and must therefore be excluded.” (/d.,
at 176).
Finally, only last term, in Doyle v. Ohio, 426 U.S.
610, 96 S.Ct. 2240 (1976), the Court reached the
issue left open by Hale and concluded that it was
error of constitutional magnitude to allow a state prose-
cutor to impeach a testifying defendant by inquiry
as to the defendant’s post-arrest silence. The Court
recognized that silence in the wake of Miranda warnings
ae ae
(Miranda v. Arizona, 384 U.S. 436 (1966)) is “in-
solubly ambiguous” (96 S.Ct. at 2244).
The court below properly rejected the government’s
argument that the prosecutor’s cross-examination and
closing argument were permissible. Relying upon this
Court’s teachings as well as the decisions of the Second
and Eighth Circuits, the court recognized the invalidity
of the government’s reasoning (559 F.2d at 983):
The conclusion ... that a defense witness’s
prior silence before a grand jury and trial testi-
mony exculpating the defendant lack sufficient
inconsistency to justify impeachment use of the
silence is well-founded. Grunewald teaches that
the many factors that may lead an_ individual
to remain silent before the grand jury make it
impossible to draw any reasonable inference that
a subsequent protestation of his own innocence
has been fabricated. Assuming a reasonable belief
at the time of the witness’s grand jury appear-
ance that he himself may be a defendant, any
suggestion of inconsistency between his silence and
subsequent testimony exculpatory of someone else
can certainly be no stronger.
In our view, it was no less “fundamentally unfair”
to allow the prosecutor here to benefit from the prior
invocation of the privilege by these witnesses than in
Doyle where this Court recognized the fundamental
unfairness attendant to the inquiry into silence following
Miranda warnings.
There is simply no justification for allowing the
- inquiry and argument sanctioned by the trial court.
This entire area of inquiry and argument was patent
error striking right to the very essence of petitioner's
a ee
defense at this jury trial. The court in no way inter-
fered with this approach by the government despite
fervent objection. Moreover, no cautionary instruction
was given, nor could one have cured the egregious
error. We turn, then, to a consideration of the standards
to be applied in assessing the harmfulness of the error
which occurred.
B. The Court Applied an Erroneous Standard by Con-
cluding That the Error Was Merely Evidentiary
and Did Not Rise to Constitutional Proportion.
The court of appeals committed serious error in
concluding that a prosecutor may elicit a prior invoca-
tion of the Fifth Amendment before a grand jury by
important defense witnesses, and thereafter comment
upon the exercise of that privilege as indicative of
the defendant’s guilt without running afoul of any con-
stitutional protection.
The reasoning that constitutional values were not
involved allowed the court to escape the application
of the harmless error standard enunciated by this Court
in Chapman v. California, 386 U.S. 18 (1967), which
would have required the court to conclude that the
error was harmless “beyond a reasonable doubt.” In-
stead, the court below applied the less stringent standard
of Kotteakos v. United States, 328 U.S. 750 (1946)
in attempting to calculate the harmlessness of the error.
This case thus presents to this Court an issue of
critical importance. If, as the court below contends,
there is no constitutional bar to the impeachment use
of protected silence, then there is no bar to the un-
checked proliferation in the state courts of such im-
peachment tactics. As this Court noted in Burgett v.
Texas, 389 U.S. 109, 113-114 (1967):
a sal
The states are free to provide such procedures
as they choose, including rules of evidence, pro-
vided that none of them infringes a guarantee
in the federal Constitution.
See also, Dutton v. Evans, 400 U.S. 74 (1970); Cali-
fornia v. Green, 399 U.S. 149 (1970).
The danger to the exercise of the privilege against
self-incrimination, if the decision of the court below
is permitted to stand, is best illustrated by the recent
decision in Doyle v. Ohio, supra, in which this Court
concluded that the use of a defendant’s post-arrest
silence to impeach was indeed a constitutional violation
and not merely a breach of evidentiary rules; this
constitutional holding was finally necessitated by the
failure of state courts consistently to exclude such evi-
dence based on evidentiary canons. The Doyle court
specifically reserved the question of whether constitu-
tional error would obtain upon the use of post-arrest,
post-Miranda warning silence to impeach a defense
witness rather than the defendant (426 U.S. at 6).
The acceptance of the expedient rule adopted below
will thus put this Court’s sub silentio imprimatur on
a practice which would allow state prosecutors to call
all potential defense witnesses before a grand jury,
advise them that they are targets of an investigation,
thus obtaining an invocation of the privilege against
self-incrimination and thereafter proceed, secure in the
realization that if those persons appear as defense wit-
nesses, the prosecutor may permissibly seriously impugn
their credibility by eliciting and commenting upon their
prior invocation of the privilege. Cf. Glasser v. United
States, supra. Moreover, federal prosecutors will be
secure in the knowledge that they too may engage
a, ae
in the condemned practice and will not be, reversed
upon appeal unless the defense successfully persuades
the appellate court that the error affected the verdict
under reviewing standards less strict than the applicable
standard for constitutional violations.
In our view, the error of such a practice rises to
constitutional dimensions and is equally repugnant to
constitutional values irrespective of whether the forum
is state or federal. Because of the exceptional impor-
tance of this issue—and the wide-ranging impact which
its resolution will have on the conduct of both state
and federal trials within the Nation—this case presents
a paradigmatic one for granting the Petition for Writ
of Certiorari.
The decision below reflects an ill-advised determina-
tion that requires remedial action by this Court. The
potential for abuse of the rule adopted below is mani-
fest. The court ignored this potential in observing (559
F.2d at 984, n.7):
Beyond the unfairness of exploiting a claim
of the privilege, we cannot conclude that the grand
jury silence of a defense witness is so utterly
lacking in probative value yet highly charged with
prejudicial potential that its use merits universal
constitutional condemnation.
Adherence to notions of fundamental fairness strong-
ly suggests that this is not a proper area to allow
disparate rules throughout the states. Uniform condem-
nation of the practice is constitutionally required.
The error committed below was of far greater import
than a simple violation of evidentiary canons. The
tactic used by the prosecutor in the instant case is
inextricably intertwined with the right to a fair trial
=
and right to the unhampered production of witnesses
in one’s defense that is at the very core of the Fifth
and Sixth Amendment guarantees. This Court recently
reaffirmed this primal constitutional value in United
States v. Nixon, 418 U.S. 683, 711 (1974):
The right to the production of all evidence at
a criminal trial similarly has constitutional dimen-
sions. The Sixth Amendment explicitly confers
upon every defendant in a criminal.trial the right
“to be confronted by the witnesses against him”
and “to have compulsory process for obtaining wit-
nesses in his favor.” Moreover, the Fifth Amend-
ment also guarantees that no person shall be de-
prived of liberty without due process of law. It
is the manifest duty of the court to vindicate
those guarantees and to accomplish that it is essen-
tial that all relevant and admissible evidence be
produced.
Indeed, so important is the petitioner’s constitutional
right to freely call witnesses so that live testimony
may be presented on his behalf, that the Court has
stated:
Few rights are more fundamental than that of
an accused to present witnesses in his own de-
fense.
Chambers v. Mississippi, 410 U.S. 284 (1973), citing
Webb v. Texas, 409 U.S. 95, 98 (1972); Washington
v. Texas, 388 U.S. 14, 19 (1967); Jn re Oliver, 333
U.S. 257 (1948)."
'TAs explained by the Court in Washington v. Texas (388
U.S. at 19):
The right to offer the testimony of witnesses and to
compel their attendance if necessary is in plain terms the
right to present a defense, the right to present the defend-
(This footnote is continued on next page)
—
If a witness’s rights can be trampled upon with
impunity, as they were here, the ability of a defendant
to obtain witnesses on his behalf will be necessarily
and seriously impaired, particularly in a case such
as this where the witnesses’ testimony is important
to the defendant and where the witnesses have the
option to testify or to continue to assert their Fifth~
Amendment right to remain silent. In such situations,
the power to subpoena witnesses is not sufficient to
ensure the defendant’s ability to present his case. A
defendant is utterly dependent upon the witnesses’ co-
operation in agreeing to testify. Thus, it has been
consistently held that the government may not impair,
directly or indirectly, the willingness of potential wit-
nesses to freely testify on behalf of the defense. See
United States v. Thomas, 488 F.2d 334, 336 (6th Cir.
1973) (government agent’s threat of prosecution “inter-
fered with any free and unhampered determination
the witness might have made as to whether to testify
and if so, as to the content of such testimony” and
thus required a new trial); United States v. Morrison,
535 F.2d 223, 228 (3rd Cir. 1976) (prosecutor’s
intimidation in an unnecessary interview “interfered
with the voluntariness of the | witnesses’| choice [wheth-
er or not to testify] and infringed defendant’s consti-
tutional right to have [witnesses’|] freely given testi-
mony”); Bray v. Paton, 429 F.2d 500, 501 (4th Cir.
1970) (state’s arrest and intimidation of defense witness
requires a new trial); United States v. Smith, 478
ant’s version of the facts as well as the prosecution’s to
the jury so that it may decide where the truth lies. Just
as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony,
he has the right to present his own witnesses to establish
the defense. This right is a fundamental element of due
process of law.
ae
F.2d 976 (D.C. Cir. 1973) (prosecutor violated Fifth
Amendment by warning witness that he might be in-
criminating himself; such warning is calculated to in-
timidate witness from testifying).
Plaintly, witnesses who are aware that their invoca-
tion of the Fifth Amendment before the grand jury will
be publicly revealed and used to discredit them will
be reluctant or unwilling to voluntarily take the witness
stand: why should such witnesses stand and expose
themselves to the public ignominy and threat to their
own livelihood which revelation of their conduct before
the grand jury would surely entail? For these reasons,
the court below seriously erred in analyzing the constitu-
tional problems solely in terms of the witnesses’ right
to remain silent. Violation of the witnesses’ right to
claim the privilege in secrecy here leads inevitably
to a violation of the petitioner’s own constitutional
right—his right to call witnesses on his own behalf
who are not discouraged from testifying by fear of
government action which may cause them to be publicly
discredited and professionally disgraced.
The federal courts cannot shirk from the constitu-
tional condemnation of a practice which so invidiously
infringes upon a basic right.
The Court Erred in Denying Standing to Petitioner Who Is
Asserting His Own Constitutional Right as Well as Those
of His Witnesses.
In order to fully protect constitutional rights, the
petitioner must be allowed to assert his witnesses’ rights
under the circumstances of this case. We commence
with the proposition that the impeached witnesses suf-
fered infringement of their constitutional rights. Use
of a witness’s prior claim of his Fifth Amendment
ro.” , Soe
privilege against self-incrimination to discredit his subse-
quent testimony is surely an error with “grave constitu-
tional overtones.” Grunewald v. United States, 353
U.S. 391, 423 (1957) (invalidating such practice on
non-constitutional grounds); indeed, as Justice Black
stated, concurring in an opinion in which four Justices
joined:
“IT can think of no special circumstances that
would justify use of a constitutional privilege to
discredit or convict a person who asserts it. The
value of constitutional privileges is largely de-
stroyed if the person can be penalized for relying
on them. It seems peculiarly incongruous and inde-
fensible for courts which exist and act only under
the Constitution, to draw inferences of lack of
honesty from invocation of a privilege deemed
worthy of enshrinement in the Constitution.” 353
U.S. at 426.
While the panel below did not directly deal with
the constitutional violation suffered by the witnesses
here, it is noted that use of the witnesses’ constitutional-
ly protected prior silence would also violate the consti-
tutional principle enunciated in Doyle v. Ohio, supra,
—that it would be “fundamentally unfair and a depriva-
tion of due process” to allow the arrested person’s
silence to be used to impeach an explanation subse-
quently offered at trial, 426 U.S. at 618. The court
concluded (559 F.2d at 984; App. A):
“That same unfairness may be present whenever
the government attempts to exploit a proper invo-
cation of the privilege. The factors found intoler-
able in Doyle might be thought to extend to
the witnesses’ silence in the face of grand jury
questioning.”
ee,
-
That the “factors found intolerable in Doyle” do
indeed extend to a witness’s silence before the grand
jury, is clear from a review of the principles and
precedents governing Fifth Amendment analysis.
Witnesses testifying before a grand jury are not
only entitled but are encouraged to rely on the secrecy
of those proceedings. See, e.g., Branzburg v. Hayes,
408 U.S. 665 (1972). Plainly, the witnesses here,
Wells and Gordon, were entitled to the reasonable
expectation that their invocation of the Fifth Amend-
ment before the grand jury would temain secret—
indeed, that it could not be made public even if they,
themselves, were indicted and took the stand in defense.
Grunewald v. United States, 353 U.S. 391 (1957).
Had these witnesses, at the time of their grand jury
_ appearances, been forewarned that their exercise of the
right to remain silent would be used against them—not
for any compelling governmental purpose, nor for any
probative evidentiary value,’* but merely for the pur-
pose of impugning their credibility and damaging their
reputations — surely, their right to assert the privilege
would have been rendered “costly.” See Spevack vy.
Klein, 385 U.S. 511, 515 (1967).
This Court has repeatedly held that the state may
not unnecessarily exact a price for assertion of the
“grand privilege,”’’; the prohibited costs have never
been restricted to criminal sanctions. In Spevack v.
Klein, 385 U.S. at 515, the Court noted that:
18The Panel below explicitly found the disclosure of the
witnesses’ silence has “no proper significance as impeachment
evidence.” (559 F.2d at 983).
19See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964); Griffin
v. State of California, 380 U.S. 609 (1965).
iia.
In [the Fifth Amendment] context, “penalty” is
not restricted to fine or imprisonment. It means
as said in Griffin v. State of California, 380
U.S. 609 . . . the imposition of any sanctions
which makes assertion of the Fifth Amendment
privilege “costly.”
Within the context of that case, the Court held
that:
The threat of disbarment and the loss of profes-
sional standing, professional reputation and of live-
lihood, are powerful forms of compulsion to make
a lawyer relinquish the privilege. That threat is
indeed as powerful an instrument of compulsion
as “the use of legal process to force from the
lips of the accused individual the evidence nec-
essary to convict him.” (/d.). {Emphasis added].*°
Nor is the threat of discharge the only “cost” which
can unduly burden the exercise of the Fifth Amendment
privilege. In Lefkowitz v. Turley, 414 U.S. 70 (1973),
the sanction of disqualification from state contracts
was held impermissible. In McCarthy y. Arndstein,
266 U.S. 34 (1924), the state’s valid interest in mar-
shalling and distributing the assets of bankrupts was
held not to prevail over the protection of the privilege.
The constitutional justification for refusing to permit
the government to unnecessarily make “costly” the ex-
ercise of the Fifth Amendment right, has been framed
in a variety of terms. Doyle v. Ohio, supra, found
See also Slochower v. Board of Education, 350 U.S.
551 (1956); Garrity v. State of New Jersey, 285 U.S. 493
(1967); Gardner v. Broderick, 392 U.S. 273 (1968); and
Uniform Sanitation Men v. New York, 392 U.S. 280 (1968)
(state may not burden the Fifth Amendment right by threat
of loss of employment).
~ ati anager on coe
—
it “fundamentally” unfair and a “deprivation of due
process” to extend with one hand the privilege of
silence, while placing, with the other hand, a price
upon that silence (id. at 618). Miranda v. Arizona,
384 U.S. 436 (1966) indicated that the Fifth Amend-
ment demarcated the “right to a private enclave where
[one] may lead a private life” (id. at 460) (quoting
United States v. Grunewald, 233 F.2d 556, 581 (Frank,
J. dissenting, reversed 353 U.S. 391 (1957) ).”"
Whatever terms are used, however, it is clear that
threats that the government will publicly advertise a
witness’s invocation of the Fifth Amendment privilege—
and thus damage his credibility and reputation—works
a compulsion against and exacts a heavy penalty for
the assertion of that privilege. In the words of Doyle,
it is “fundamentally unfair” to assure witnesses before
the grand jury that they may avail themselves of the
Fifth Amendment protection in secret and then to gra-
tuitously publicize that assertion at an open trial. In
the language of Miranda and Griswold, these witnesses
had a justifiable and constitutionally protected expecta-
tion that the government would refrain from needlessly
invading the domain of privacy which they demar-
cated before the grand jury.
Indeed, just as occurred in Spevack, supra, Wells
and Gordon have been forced to suffer “loss of profes-
sional standing [and] professional reputation” and they
21See also Boyd v. United States, supra, 116 U.S. at 630;
Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964);
Griswold v. Connecticut, 381 U.S. 479 (1965) noted that “The
Fifth Amendment in its self-incrimination clause enables the
citizen to create his own privacy which government may not
force him to surrender to his detriment.” (id. at 484).
-
pa ae
face the very real possibility that their jobs as union
officials will be endangered.”
No justification for imposing this burden on the
exercise of constitutional rights exists; indeed, the pen-
alty was here exacted in a procedure which the court
below found impermissible even from an evidentiary
viewpoint.
The Petitioner Has Standing to Raise the Witness’s
Constitutional Rights in This Case.
Here, despite the plain infringement upon the wit-
nesses’ constitutional rights, the court of appeals held
that no constitutional issue could be raised in this
case. The court justified this conclusion by reference
to the general and oft-repeated “rule” that one person
may not object to the violation of another person’s
rights. This “rule” however, is one which as many
commentators have noted, is riddled with exceptions.
See, Note, “Standing To Assert Constitutional Jus
Tertii,” 88 Harvard Law Review 423, 425 (1968);
Settler, “Standing to Assert Constitutional Jus Tertii
In the Supreme Court,” 71 Yale Law Journal 599
(1962); Scott, “Standing in the Supreme Court—A
Functional Analysis,” 86 Harvard Law Review 645
(1973) and Louis, “Constitutional Rights and the Mis-
use of Standing,” 14 Stanford Law Review 433 (1962).
Indeed, the principle that one has no standing to
vindicate another’s constitutional right is “only a rule
of practice.” Barrows v. Jackson, 346 U.S. 249, 257
*2Although it appears that this Court itself has never resolved
this issue, lower courts have held that there is no constitutional
right to employment and private employers may therefore dis-
charge employees for exercising Fifth Amendment rights. See,
e.g., Cary v. Westinghouse Electric Corporation, 178 N.Y. 2d
846, affirmed, 190 N.Y. 2d 1103 (1958).
a
(1953) which “like any general rule should not be
applied when its underlying justifications are absent.”
Singleton v. Wolf, 428 U.S. 106, 114 (1976).
In Singleton, the court reviewed the factors which
justify or may even make imperative the court’s permit-
ting a litigant to raise another’s rights. First, there
must be a concrete injury to the litigant sufficient
to create a “Case or Controversy” within the meaning
of Article III. Second, the court must analyze whether
“the enjoyment of the right is inextricably bound up
with the activity the litigant wishes to pursue” so that
the court “can be sure that construction of the right
is not unnecessary in the sense that the rights enjoy-
ment will be unaffected by the outcome of the suit.”
428 US. at 115.
Third, the court must consider whether the relation-
ship between the litigant and the person whose rights
are asserted makes the litigant “fully or very nearly
as effective a proponent of the right as the latter”
(ibid.). Finally, the court must look to the ability
of the third party to assert his own rights. If there
is “a genuine obstacle to such assertion . . . the party
who is in court becomes, by default, the right and
justifiable proponent” (id. at 116).
Applications of these principles to the instant case
must result in finding that the petitioner here had
standing to raise the constitutional infringement suffered
by the witnesses Wells and Gordon. First, there is
no question that the petitioner, threatened with loss
of liberty through a criminal conviction, has a “case
and controversy.” Second, the witnesses’ enjoyment of
their Fifth Amendment right is, as fully discussed above,
seriously “affected” if they can be discredited by being
a eee
forced to reveal, in violation of the guaranteed secrecy
of grand jury proceedings, that they exercised their
constitutional right against self-incrimination. In _ this
respect, the witnesses’ “enjoyment” of their right is,
in fact, utterly dependent upon the outcome of this
case. Third, considering the impact on the petitioner,
it witnesses called on his behalf are successfully im-
peached by the government, the petitioner is surely
as effective a proponent of the rights at issue here
as the witnesses themselves could be. Fourth, and most
importantly, unless the petitioner here is permitted to
raise the witnesses’ constitutional rights in this case,
there is, in fact, absolutely no way the witnesses them-
selves can vindicate those rights. The instant case is
stronger in this respect than Singleton where the third
parties (women seeking abortions) could themselves,
albeit with difficulty, bring suit to assert their own
rights. Here, no ameliorative suit is possible; indeed,
in the recent case of /mbler v. Pachtman, 424 US.
409 (1976), this Court squarely held that the prosecu-
tor is absolutely immune from civil suit for acts such
as those at issue here, taken by him in the course
of pursuing a criminal prosecution and in presenting
the government’s case at trial. Consequently, under
Singleton, the defendant here is literally “by default,
the right’s best—if not only available proponent.””
28The petitioner here thus not only satisfies the requirements
of the plurality opinion in Singleton, but also meets the more
stringent test the concurrent dissent would require. In his con-
curring opinion, Justice Stevens indicated that to have stand-
ing it was probably also necessary that the litigant raising
another’s constitutional right have his own constitutional claim
as well. As will be discussed below, the petitioner here does
indeed have his own constitutional claim. Moreover, the dissent-
ers in Singleton stated that third party standing should be
barred except where it was otherwise virtually impossible for
the third party to vindicate his right—as it would be here.
a
Further, the total lack of civil remedy available
to the witnesses in this case distinguish this case from
those in which standing has been denied to defendants
who seek to raise the Fourth Amendment rights of
persons other than themselves. A non-defendant victim
of an illegal search and seizure, while without the
defendant’s remedy of suppression of tainted evidence,
may nevertheless vindicate his own Fourth Amend-
ment rights through the vehicle of his suit for damages
(see, e.g., Bivens v. Six Unknown Federal Agents,
403 U.S. 388 (1971)) or by the implication of criminal
penalties for unlawful surveillance. Indeed, in denying
standing to a defendant to object to evidence obtained
in violation of another’s Fourth Amendment rights,
the Court has pointed to the availability of criminal
penalties to vindicate the victim’s rights. Alderman
v. United States, 394 U.S. 165, 175 (1969). An addi-
tional distinguishing factor is that “no rights <«f the
victim of an illegal search are at stake when evidence
is offered against another party.” Alderman v. United
States, supra, at 174; in the instant case, of course,
the witnesses’ rights were directly violated by impeach-
ing them in trial as the court of appeals, at least
implicitly, recognized. Finally, as the Court pointed
out in Jones v. United States, 362 U.S. 257, 261
(1960), evidence from an illegal search is not “inher-
ently unreliable or prejudicial,” but violation of the
constitutional rights at issue here does, in fact, result
in precisely such inherently unreliable and highly preju-
dicial effects—specifically, the improper inference of
guilt from the mere exercise of the right to remair
silent.
Nor is this case controlled by the cases holding
that the petitioner may not object if the witness is
uaiiiinn
incorrectly ordered to answer a question despite a
valid Fifth Amendment claim and the witness then
incriminates himself along with the petitioner, @.g.,
Bowman v. United States, 350 F.2d 913, 916 (9th
Cir. 1965). In such a situation, the witness at least
will be able to exclude his improperly obtained testi-
mony in any subsequent prosecution that might follow,
but the witnesses in this case who did nor incriminate
themselves by remaining silent will under no circum-
stances have any remedy. If the petitioner in this case
cannot assert the rights of his witnesses, then those
rights will simply be forfeited.
The Court of Appeals Misapprehended the Prejudice
Suffered by Petitioner.
As we have demonstrated above, the court of appeals
should properly have applied the stricter test applicable
to constitutional error. Nevertheless, irrespective of the
test applied, the circumstances present here demonstrate
sufficient prejudice to require the action of this Court
to reverse the judgment of conviction.
The careful distinction drawn by the court of appeals
as to the applicability of the Kotteakos standard indi-
cates the court’s grave concern as to whether the error
could have infected the jury’s verdict. Moreover, the
approach adopted by the court strongly suggests the
court’s unwillingness to conclude that the error was
harmless beyond a reasonable doubt. In our view, a
determination that the error was harmless is clearly
erroneous irrespective of the standard employed. The
court’s rationalization that the Gordon-Wells testimony
is cumulative to the testimony of other defense witnesses
is highly disingenuous. This Court has recognized that
a reviewing court is not required to cast a stoic eye
= on
upon the proceedings, but rather, may use common
sense in appraising the actual issues raised by the
proceedings. Ashe v. Swenson, 397 U.S. 436 (1970).
In the instant case, the jury would assuredly not have
credited the defense by quantitatively counting peti-
tioner’s corroborative witnesses. Here, the prosecutor
sabotaged the entire line of defense by vigorously argu-
ing that two of the defense’s crucial witnesses were
fabricating their testimony. If the jury accepted the
prosecutor’s argument, it defies logical analysis to con-
clude that they would not assume that the other corrob-
orative witnesses were similarly part of the fabricated
defense.** A fortiori, the prejudice where the prosecutor
has argued that all the union-employed defense witnesses
were “cronies” of petitioner, who “was the goose that
laid the golden egg.” A careful reading of the prosecu-
tor’s argument points up the utter unfairness of the
situation which he created by his improper conduct.
There was simply no way that petitioner could fairly
defend the prosecutor’s allegations that the witnesses
had fabricated their story. It defies common experience
to suggest that the jury would not have been misled
by this nonprobative yet highly prejudicial argument.
The fundamental unfairness here flows not only to
Wells and Gordon, who suffer the public ignominy,
loss of reputation and perhaps livelihood by having
their earlier invocations of the privilege exposed at
*4Thus, in a bank robbery case, if five defense witnesses
provide a consistent alibi defense, yet because of improper im-
peachment of two witnesses the jury concludes that those two
witnesses were perjuring themselves, it is incredible to suggest
that the assessment of the credibility of those witnesses does
not “spillover” and infect the jury’s deliberative processes and
evaluation of the credibility of the other witnesses who similarly
supported the theory of the defense.
— we
this public trial. The primary impact of the unfairness
and prejudice is suffered by petitioner—as the prosecu-
tor fully intended. Patently, the purpose of the cross-
examination and argument was to destroy petitioner's
defense. The totally improper criteria adopted by the
prosecutor deprived the petitioner of the opportunity
to have the jury evaluate his good faith unaffected
by the improper suggestion that the jury could reject
the defense because petitioner and his “cronies” fabri-
cated the defense as evidenced by the witnesses’ prior
refusal to exculpate petitioner at the grand jury.
It does little credit to our courts as symbols of
justice to comb the entire record to suggest that the
jury may have discredited the witnesses for other rea-
sons. In this case, because of the sanction of the
trial court, the prosecutor's strongest argument impugn-
ing the witnesses’ credibility was the argument which
this court must now condemn. Assuredly, the jury
could not be presumed to have ignored the prosecutor's
argument in assessing the credibility of these two im-
portant witnesses. It is similarly illogical to assume
that the jury could have credited any other corrobora-
tive witnesses after accepting the prosecutor’s argument
that Wells and Gordon had fabricated their testimony
on petitioner’s behalf subsequent to their grand jury
appearances.
Moreover, our argument of prejudice is even stronger
now that the court below recognized that important
state of mind evidence was improperly excluded. As
we argue infra, the “spillover” prejudice caused by
the exclusion of this relevant testimony, plainly elevates
the prejudice on the duplicate billing counts.
— =
Petitioner’s Entire Conviction Should Be Reversed Due to the
Improper Exclusion of Highly Probative State of Mind
Evidence.
Upon remand by this court (99 S.Ct. 67, 1978),
the court below determined that the trial court had
improperly prohibited the admission of exculpatory testi-
mony proffered by petitioner. Concluding that the ex-
cluded testimony “would have significantly helped es-
tablish [petitioner’s| defense” the Panel reversed the
two counts of the conviction which represented the
vast proportion of the monies allegedly embezzled, 591
F.2d 278, 283.” Nevertheless, without explicating
its reasoning, the court affirmed the remaining counts
without focusing on whether the admission at trial
of the wrongfully excluded testimony could have af-
fected the jury’s evaluation of petitioner's intent on
the remaining counts—for which criminal intent was
a necessary requisite.
In our view, the court could not have properly
concluded with requisite certainty that the excluded
testimony only would have affected the jury’s considera-
tion on Counts 87 and 88, the salary increase counts.
Petitioner was charged with specific intent crimes.
He adamantly defended each charge by contending
that he lacked criminal intent. Thus, he defended the
duplicate billing and income tax counts by contending
that his intent was union-oriented and he did not divert
the funds to his personal use. Despite the fact that
these counts formed the vast numerical majority of
the counts contained in the indictment, and the vast
majority of the documentary evidence, nevertheless,
“Specifically, of the $384,331 allegedly embezzled, $329,031
was contained in the two counts upon which the Court reversed
the convictions.
a
the two now reversed counts contained the vast propor-
tion of the monies allegedly embezzled and indeed,
much of the testimony at trial was devoted to the
salary increase counts. At trial, the government vigor-
ously contended that petitioner's evil intent could be
gleaned from the allegedly unlawful manner by which
he raised his salary. The prosecutor made no effort
to segregate the intent element among specific counts.
Thus, the prosecutor commenced his argument (R.T.
1871-1872) ]:
Now, what we have to construct for you in
this case, basically, is the intent of the man at
the time he did the acts he is charged with doing.
That does not mean the intent of the man as
he sat on the witness stand and testified in this
trial. That means the intent of the man as he
did the acts that the Government has charged
he did.
There are certain ways to do that, and among
those ways is for the jury to pick out items of
intent in the exhibits and in the testimony that
you have heard and seen.
First of all, I think we should discuss the money
that we have been talking about, the hundreds
of thousands of dollars of money that we have
been talking about in this case, and I think you
should decide for yourselves whose money is that.
That is the money of every member of these
labor unions. That is their money. The money
in the unions is theirs. The money in the trust
fund ‘is theirs. The money is not Mr. Rubin's
money. It is the money of every member who
ever contributed his dues, his assessments, his in-
itiation fee. That is whose money it is.
=
The prosecutor devoted a significant portion of his
closing argument to the salary increase counts. The
prosecutor vigorously argued that petitioner flagrantly
acted in his own self interest, contrary to the law.
For example:
|R.T. 1876-1877 |
Well, what gives him the right not to take
the oath of the constitution as every other union
leader does?
Of course, he says that his locals are different.
Local 666 is different. So he takes it upon himself
to interpret the constitution, the union constitution,
to fit his local unions.
Of course, he also told you that he interpreted
the federal statutes differently that required mem-
bers of the union to receive a notice when they
would vote in an election.
Who is he to interpret the federal laws and
interpret the constitution for his own benefit?
* * &
Now getting back to the salary, you can see
for yourselves. You can see the articles of the
constitution and what they say about disbursing
money and receiving a salary. There is no question
about it. It is in there in black and white. It
was read on the stand. It is there in black and
white.
* * *
[R.T. 1879]
The members have a right to vote. This is
their money. Mr. Rubin and his cronies, who
make a fortune off the sweat of these laborers,
they cannot exculpate him.
eee
ioe” ee
Now, if you will think about this and analyze
it to a bank president—that is another person
who holds money in trust for people who put
money into a bank, similar to Mr. Rubin—the
money is not his. He is holding that money in
trust.
You will hear the Judge’s instructions. He is
a fiduciary. He holds the money in trust for other
people. It is not his money.
Now, can you imagine a president of a bank
increasing his salary seven times over a four-
year period without any authorization from any-
one? Inconceivable. That is not his money either,
and I do not care whether he built that bank
or not. That is not his money in there. He might
have built the bank, but it is not his money.
* * &
The Government put on the International Repre-
sentative from the International Union. He told
you some interesting things. The constitution, the
union constitution, governs these unions, 478, 666
and the District Council, and the International
Constitution is the only thing they go by. They
cannot go by their own rules and regulations.
Pe),
You know the old saying, “Power corrupts, and
absolute power corrupts absolutely,” and when
he got absolute power, he was corrupted.
He thought, when he got this money, “Those
are my unions, my money. I will use it any
way I want to.”
You heard him testify. That is not the law.
That is not the facts. He even wanted to shift
the blame to the labor-union members.
“Why did they not ask me? No one asked
me. No one questioned me.”
Now, I ask you, is a member of these labor
unions, a common laborer, going to come up
to Bernard Rubin, the most powerful labor leader
in Florida, and say, “Mr. Rubin, have you raised
your salary this year? How many times, sir?
Can I vote on it? Mr. Rubin, are you double-
billing my union? Mr. Rubin, are you writing
checks out to yourself without keeping any
record?”
Similarly, the jury instructions were constructed in
a manner that would necessarily “spill over” to preju-
dice fair and déscrete consideration once the jury had
concluded that petitioner was guilty on the salary in-
Moreover, in his argument, as described supra and crease counts. Thus, on the salary increase counts
below, the prosecutor intermeshed the intent require- the jury was instructed inter alia:
ment for the salary increase counts with the other [R.T. 2071-2073 |
counts (R.T. 1949-1950): The members of a labor organizatiqg are the
He said that he felt he was only powerful real owners of the money and property of such
when he flashed a roll of money. If he used organizations and are entitled to a full accounting
this money for anything, anything to do with of all transactions involving such money and
the unions at all, he used it to build his own property. Because union funds belong to the mem-
personal power. That is what he used it for. bers, they should be expended only in the further-
iitiithiead
ance of their common interest. A union treasury
should not be managed as though it were a
private property of the uaion officers, however
well-intentioned such officers may be, but as a
fund governed by fiduciary standards.
Section 501 of Title 29 does not prohibit
any union officer or employee from receiving a
bona fide expense account or bona fide salary
in the furtherance of union interests. What is
prohibited is the charging on union books of
false and fictitious items of expense under the
guise of expense accounts or the receipt of an
unauthorized salary.
%*
You should remember that a labor union oper-
ates under its own constitution, rules and by-
laws which are enforceable in court.
Labor organizations are required by law to
adopt and file constitutions and by-laws. This is
required by Title 29, United States Code, Section
431. Moreover, Section 501 of Title 29 declares
that officers of a union occupy positions of trust
and have a duty to the union and its members
to expend union money in accordance with the
union constitution and by-laws.
Under the terms of this section, Sectio: 501,
of the United States Code Title 29, the defendant,
Bernard G. Rubin, had a separate fiduciary duty
to each labor organization of which he was either
an officer or an employee. That duty, or position
of trust, encompassed the responsibility of holding
the moneys, funds and assets of each organization
solely for the benefit of that organization and
its members. Further, that position of trust in-
co ae
cluded the duty to manage, invest and spend the
moneys, funds and assets of each organization
in accordance with its constitution and by-laws
and any resolutions of the governing bodies
adopted thereunder, and not for personal or even
other union purposes. Any breach of this fiduciary
duty, where the requisite unlawful intent is proved
is a violation of Title 29, United States Code,
Section 501(c).
In our view, under the circumstances present here,
it is plainly impossible to conclude that the exclusion
of critical evidence bearing upon petitioner's intent
with respect to the salary increase counts could not
have affected the jury’s consideration and determination
of guilt on the remaining counts. This case went to
the jury in a posture that necessarily would have pro-
duced a verdict of guilt on the salary increase counts.
Since the critical evidence bearing upon petitioner’s
state of mind was excluded, the jury necessarily would
have found petitioner guilty. Having found that peti-
tioner wrongfully and criminally raised his salary, it
is simple to understand that the jury’s evaluation of
guilt on the salary increase counts would spill over
to their consideration of the remaining counts.
The issue we posit here—the “spill over” prejudice
caused by the exclusion of rélevant testimony was
considered by the Second Sircuit in United States v.
Barash, 365 F.2d 795 (1966). In Barash, the Court
concluded that the trial court had improperly limited
impeachment evidence proffered by the defense relative
to certain counts of the indictment. Despite the fact
that the proffered impeachment did not relate to the
remaining counts under attack, the remaining counts
were nevertheless reversed because the Court “was far
ilies.
from certain that the restriction” on the impeachment
of the Chief Government witness “did not have a
spill-over effect on |the remaining] counts” (365 F.2d
at 403).
In Barash, however, unlike the instant case, the
defendant was allowed to introduce part of the exculpa-
tory evidence, and indeed even a portion in summation,
before the trial court restricted the effort (id. at 401).
The Court nevertheless reversed due to the non-cumula-
tive and important nature of the impeachment material.
In the instant case, however, the same result should
follow a fortiori. Here petitioner was completely de-
prived of the opportunity of presenting the exculpatory
testimony. Moreover, the jury was provided with a
prosecutorial argument and indeed jury instructions
which were calculated to intermesh and “spill over”
and thus could only produce a guilty verdict under
the circumstances.
At this juncture, the proper standard of review is
the test enunciated in Kotteakos v. United States, 328
U.S. 750 at 764-769 (1946):
If, when all is said and done, the conviction is
sure that the error did not influence the jury,
or had but very slight effect, the verdict and
the judgment should stand, except perhaps where
the departure is from a constitutional norm or
a specific command of Congress. . . But if one
cannot say, with fair assurance, after pondering
all that happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error, if is impos-
sible to conclude that substantial rights were not
affected. The inquiry cannot be merely whether
A ane
. Py mes
ee
es see
there was enough to support the result, apart from
the phase affected by the error. It is rather,
even so, whether the error itself had substantial
influence. If so, or if one is left in grave doubt,
the conviction cannot stand.
See also United States v. Shepherd, 576 F.2d 719,
at 723 (7th Cir. 1978), rhg. den. (1978), cert. den.
99 S.Ct. 158 (1978).
In our view, our argument is strengthened by the
fact that on direct appeal of petitioner’s convictions,
the court of appeals accepted our view that the govern-
ment had improperly impeached defense witnesses on
the duplicate billing counts, the counts presently under
attack.”®
The extent of the prejudice which occurred as a
result of the improper impeachment of these defense
witnesses is plainly incalculable. It is now manifest
that serious error affected both the salary increase
counts and the duplicate billing counts (and according-
ly, the remaining counts, all of which were dependent
upon those two theories). The jury was improperly
instructed and the prosecutor’s argument was improper.
It seems to us that under the circumstances there is
“no guarantee” (Cf. United States v. Brown, 555 F.2d
407, cert. den. 435 U.S. 951; see also Milanovich
v. United States, 365 U.S. 551 (1961)) that the
jury would have reached the same result on any count
if petitioner had been afforded a truly fair trial at
which (1) he could have presented all relevant and
important evidence of intent; (2) the jury was properly
*6The other counts, i.e., the racketeering counts, tax evasion
and failure to keep records counts necessarily must stand or
fall directly in relation to the disposition of the duplicate billing
counts.
ae Wee
instructed on each count, particularly as related to
proper indicia of intent and (3) the prosecutor’s sum-
mation did not include inflammatory, prejudicial and
erroneous elements relying upon patently improper cri-
teria to bring about a guilty verdict on each count.
We urge that in the context of the present reversal
of the salary increase counts, it would be simply unfair
to conclude that petitioner received a fair trial. The
proper disposition is to reverse for a new trial on
all counts to afford petitione: a fair trial et which
petitioner will be able to fairly put his state of mind
before a properly instructed jury, unhindered by im-
proper impeachment and argument by the prosecutor.
II
THE DECISION BELOW SQUARELY CONFLICTS WITH
THE DECISIONS OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT WITH RE-
SPECT TO FAILURE TO RECORD GRAND JURY
PROCEEDINGS DESPITE TIMELY PREINDICTMENT
REQUEST.
At the initial stages of the grand jury proceedings
in this matter, petitioner filed a “MOTION TO RE-
CORD ALL PROCEEDINGS BEFORE THE FEDER-
AL GRAND JURY”: (R. 434-435). As part of
the motion, counsel, on behalf of petitioner, offered
to pay “all added expenses necessitated by such recorda-
tion” (ibid.).
“7Specifically, counsel requested the recordation of:
A. The entire testimony of all witnesses;
B. All remarks and comments of the prosecutors of
any nature whatsoever; and
C. All instructions of law, general or special, given
to said grand jury (R. 434).
PE
_. oe
In support of the motion to record, counsel pointed
out that the record demonstrated that the prosecutor
in the instant case was overzealous and that there
was reason to justifiably fear prosecutorial miscon-
duct.”
The district court denied the motion, without opinion
(R. 450).
Subsequent to the Indictment, as part of the pre-
trial motions, petitioner moved to dismiss the Indictment
for failure to record the grand jury proceedings, despite
request (R. 333-344). This motion was also denied.
On appeal, petitioner contended that under the cir-
cumstances, the court improperly refused to require
recordation. The court of appeals concluded that while
“the far better practice is to record grand jury proceed-
ings, including the comments of the prosecutor, .. .
[n]evertheless there remains no constitutional or statu-
tory requirement of recording.” (559 F.2d at 988,
App. A). While the court “[a]ssum[ed| a defendant's
substantive right to dismiss an indictment based on
prosecutorial misconduct so flagrant as to deny funda-
mental fairness”, the court determined that it could
not “regard [petitioner’s} speculation as a sufficient
demonstration of need to require reversal for the district
court’s failure to require recording, to order production
of existing grand jury records, or to conduct a hearing
inquiring into the prosecutor's action.” (/bid.).
The court of appeals thus digressed from the rule
established by the United States Court of Appeals for
28Counsel relied upon pleadings filed in the district court,
and an ex parte letter written by the prosecutor to a district
judge accusing petitioner and his attorney (not present counsel)
of obstruction of justice. That letter and present counsel's re-
sponse are found at Appendix D and Appendix E, respectively.
yom,” ee
the Ninth Circuit in United States v. Thoresen, 428
F.2d 654, 666 (1970) and United States v. Price,
474 F.2d 1223, 1225 (1973). In Thoresen, the court
asserted that the proper time to request recordation
was at the pre-indictment stage of the proceedings:
[T]he fact that a particular discovery procedure
is “permissive rather than mandatory” does not
mean that permission may be arbitrarily denied.
Where a defendant, anticipating future grand jury
proceedings involving himself, gives notice in ad-
vance that he will seek a transcript of the pro-
ceedings if the indictment is returned and offers
to pay the expenses of having a reporter in at-
tendance or shows inability to pay, a sound exer-
cise of discretion would ordinarily call for the
granting of a motion that a reporter be in attend-
ance.
In the later case of United States v. King, 478
F.2d 494, 507 (9th Cir. 1973), the court characterized
the government’s failure to record grand jury testimony
as “arrogant” and cautioned (at 508):
We repeat our previous warnings however; the
Government is courting disaster when it fails to
record grand jury proceedings and the judges
should exercise their discretion to require such
recording.
In United States v. Price, supra, the court established
the rule now applicable in the Ninth Circuit.
We adhere to the principles stated in Thoresen,
and we now implement them by holding that
the district court must exercise its discretion in
passing upon a preindictment motion for recorda-
tion of grand jury proceedings and that a district
a a
court abuses its discretion in denying the motion
of parties situated as were appellants, in absence
of a Government showing that it has a legitimate
and compelling interest to be served by non-
recordation. The Government cannot meet its
burden by resort to the secrecy rubric. Secrecy
of grand jury proceedings is not jeopardized by
recordation. The making of a record cannot be
equated with disclosure of its contents, and dis-
closure is controlled by other means.
The court below refused to follow the lead of the
Ninth Circuit. Thus, there exists a significant conflict
which requires this Court’s resolution.
Rule 6(d) of the Federal Rules of Criminal Pro-
cedure provides in pertinent part:
“[A] stenographer or operator of a recording de-
vice may be present while the grand jury is in
session...”
The developing law is now legion that it is better
practice to record. United States v. Peden, 472 F.2d
483 (2d Cir. 1973); United States v. John, 408 F.2d
1134 (8th Cir. 1975); United States v. Cianchetti,
315 F.2d 584, 591 (2d Cir. 1963); United States
v. Cramer, 447 F.2d 210, 214 (2d Cir. 1971); United
States v. Battisti, 486 F.2d 961 (6th Cir. 1973);
Schlinksy v. United States, 379 F.2d 735, 740 (1st
Cir. 1967); United States v. Aloisio, 440 F.2d 705
(7th Cir. 1971).
From the standpoint of justice, there is simply no
compelling reason not to require recordation of all
the proceedings, including the prosecutor’s comments.
Where, as here, there is prima facie evidence of a
zealous prosecutor, there can be no sound reason to
daliicn
deny recordation. The strong policy underlying recorda-
tion was stated forcefully by the Honorable Judge
Pettine of Rhode Island in United States v. Gramolini,
301 F.Supp. 31, 41-42 (D.C.R.1. 1969). See also
United States v. Battisti, 486 F.2d 961 (6th Cir. 1973)
(rejection of government challenge to a local district
court rule requiring recordation ).
Emerging from the present line of cases is the firm
notion that there are no disadvantages in requiring
recordation. Recordation can only serve to further the
ends of justice.
Moreover, there is no reason to distinguish between
recordation of testimony of witnesses and recordation
of the comments of the prosecutor. United States v.
Messitte, 324 F.Supp. 334 (S.D.N.Y. 1971); United
States v. Peden, 472 F.2d 583, 584 (2d Cir. 1973).
See ABA Project on Standards for Criminal Justice,
Standards Relating to the Prosecution Function, §35(c)
(Approved Draft); See also 8 Moore’s Federal Practice
at 46.02(2), p. 611 (Cipes Ed., 1969).
The court of appeals correctly assumed a defendant's
substantive right to dismissal of an indictment where
flagrant prosecutorial misconduct denied fundamental
fairness. See United States v. Basurto, 497 F.2d 781
(9th Cir. 1974); Wood v. Georgia, 370 U.S. 374,
390 (1962): United States v. Chanen, 549 F.2d 1306
(9th Cir. 1977); United States v. Gallo, 394 F.Supp.
310 (D.Conn. 1975); United States v. DeMarco, 401
F.Supp. 505 (C.D. Cal. 1975). The court’s conclusion
that petitioner’s contentions were “speculation” demon-
=
strates the need for the prophylactic rule which we
espouse and which is now the law in the Ninth Circuit.
Since prosecutorial misconduct can rise to sufficient
proportions to require dismissal of an indictment, it
necessarily follows that recordation is essential to vindi-
cate the right. If the prosecutor's comments are not
recorded, as here, any suggestion of prejudice is neces-
sarily speculative. Moreover, the court below engaged
in circular reasoning in concluding that petitioner
had not made a sufficient demonstration of prejudice
to require production of the existing grand jury records
or to require a hearing. Manifestly, by escaping recorda-
tion of his comments, the prosecutor renders any dis-
closure of the other recorded proceedings, or indeed,
a hearing, entirely meaningless.
Fundamental fairness dictates that a prosecutor not
be given free rein to inflame or prejudice a grand
jury. It is beyond contradiction that a prosecutor holds
a high place in the esteem of lay grand jurors and
the chance of improper influence is high, even if based
on good intentions. If a prosecutor knows that his
comments are on the record and subject to review,
the only possible effect would be to further the interests
of justice.
In our view, the court below seriously erred in
not requiring recordation, where there was colorable
overzealousness and a timely preindictment request.
This Court’s review is thus necessary to establish a
rule of uniform application on this matter of extreme
importance to the administration of justice.
= =
Conclusion.
For the foregoing reasons, it is respectfully requested
that the Petition for Writ of Certiorari be granted.
Respectfully submitted,
RICHARD L. ROSENFIELD,
Attorney for Petitioner.
FLAX AND ROSENFIELD,
Of Counsel.
=
APPENDIX A.
UNITED STATES of America, Plaintiff-Appellee,
v. Bernard G. RUBIN, Defendant-Appellant. No. 76-
1143.
United States Court of Appeals, Fifth Circuit.
Sept. 22, 1977.
Appeal from the United States District Court for
the Southern District of Florida.
Before GOLDBERG and HILL, Circuit Judges and
KERR,* District Judge.
GOLDBERG, Circuit Judge:
Bernard G. Rubin appeals from his conviction of
charges relating to his role in the financial operations
of several southern Florida laborers’ organizations. Ap-
pellant is a Special International Representative of the
Laborers’ International Union of North America. He
is President of the Southwest Florida Laborers’ District
Council (hereinafter “District Council”), an umbrella
organization supervising several locals. He is President
of the Concrete Products & Material Yard Workers
Local #666, Business Manager of Local #478, and
a trustee of several labor trust funds.
Following a two week trial a jury found appellant
guilty of 103 counts of the 105 count indictment
charging embezzlement of union and employee welfare
benefit plan funds, 29 U.S.C. § 501(c), 18 U.S.C.
§ 644; racketeering, 18 U.S.C. § 1962(c); false state-
ments on income tax returns, 26 U.S.C. § 7206(1):
and failure to keep labor union records, 29 U.S.C.
$§ 436, 439. The court imposed concurrent sentences
*Senior District Judge of the District of Wyoming, sitting
by designation.
en, Wile
on all counts up to a maximum of five years imprison-
ment. The court levied fines totalling $50,000.00 on
five different counts. Finally, the court ordered appel-
lant to forfeit all his union and trust fund positions
as well as his right to seek such positions in the
future.
;
Eighty-six counts of the indictment charged appellant
with embezzling funds from the various unions and
trust funds by submitting to those entities duplicate
expense vouchers, mostly for travel and entertainment,
thereby receiving multiple reimbursements for expenses
incurred. With respect to each expense covered by
the indictment, appellant had sent a voucher to each
of two or more of the organizations and received
reimbursement. The government credited one reimburse-
ment of each expense as legitimate, charging embezzle-
ment only on the duplications. Appellant did not deny
the fact of these many multiple reimbursements. Rather,
he maintained that he employed the duplicate billing
system to create a cash fund he needed for additional
union related expenses. Rubin asserted that he had
understood his power of the purse in the various or-
ganizations to encompass accumulating such a fund
and making such expenditures. Numerous defense wit-
nesses testified that he had spent large amounts of
cash in past organizing drives and in entertaining man-
agement.
Additionally, the indictment charged appellant with
two counts of embezzlement through granting himself
over $300,000 in unauthorized salary increases as an
officer of local 666 and the District Council. The
charges of inadequate recordkeeping largely related to
required documentation of union treasury disburse-
ments. The tax counts charged false subscribing of
ae,
income tax returns, in that appellant received substantial
income in excess of the amount reported. Finally, on
the basis of the embezzlement allegations appellant
was charged with conducting or participating in the
conduct of the union organizations through a pattern
of racketeering activity.
On appeal Rubin proffers several claims of error.
We agree with appellant’s contention that two of his
defense witnesses should not have been cross-examined
regarding their prior refusals to testify before a grand
jury, but we find the error harmless in the circum-
stances. We reject appellant’s remaining claims of error
in the conviction. Finally, though we think the district
court properly ordered Rubin to forfeit the positions
he presently holds, we must reverse its order that
he forfeit his right to seek such offices in the future.
I. Defense Witnesses’ Silence Before the Grand Jury.
Appellant’s most troubling challenge to the validity
of the conviction relates to the government’s attempt
to impeach two defense witnesses by eliciting on cross-
examination their prior refusals to testify before a
grand jury. We conclude that the trial court violated
evidentiary canons by permitting such impeachment.
In light of the cumulative nature of the witnesses’
testimony, the substantial proper impeachment of these
and all other defense witnesses, and the inherent im-
plausibility of appellant’s defense theory, however, we
cannot conclude that the error here requires reversal.
Kenton Wells, an organizer for the District Council,
and Jack Gordon, an organizer for the District Council
and local 666, were two of eight witnesses who corrob-
orated appellant’s story that during the relevant years
he had handed out large amounts of: cash to subordi-
a
nates for use in organizing campaigns and had spent
large amounts of cash entertaining management figures.
Appellant testified these expenditures required a large
cash fund which he maintained through the multiple
billing of the various union entities for yet other ex-
penses. Rubin claimed he had understood that accumu-
lating funds in this manner and disbursing them for
general organizing purposes fell within the authority
granted him by the District Council and local 666.
The defense witnesses, Wells and Gordon among them,
corroborated only the fact of numerous disbursements
for organizing and entertaining. They gave no testimony
regarding the source of Rubin’s funds.
In an effort to impeach the testimony of Wells
and Gordon through proof of a prior inconsistent act,
the prosecution brought out on cross-examination the
witnesses’ previous refusals to testify before the federal
grand jury investigating the activities of southern
Florida laborers’ organizations. Of Wells the govern-
ment inquired as follows:
Q. Without respect to the exact date, sir, did you
appear twice before the Federal Grand Jury?
A. Yes, sir.
Q. Were you asked questions concerning your labor-
union activities and Mr. Rubin?
A. Yes, sir.
Q. Did you refuse to testify on both of those oc-
casions?
A. Yes, sir, I did. (T. 1522-23).
At one time during the colloquy, set out in its entirety
in the margin,’ Wells volunteered that he “had taken
1Q. Mr. Wells, I notice that Mr. Flax asked you your
occupation.
A. Yes, sir.
Sasllibok
the Fifth Amendment.” (T. 1521). Similarly, the fol-
lowing exchange took place during the cross-examina-
tion of Jack Gordon:
Q. Mr. Gordon, did you appear at the Federal
Grand Jury on May 27, 1975?
Q. Mr. Gordon, did you appear at the Federal
Grand Jury on May 27, 1975?
A. I don’t remember the date. I appeared there,
yes, at the grand jury.
Q. Did you ever refuse to testify?
A. Yes, I did. (T. 1622-23).
Q. Have you ever given a different response on a pre-
vious occasion? 1
P A. Not that I know of as far as my occupation. No, I
on’t.
Q. Do you remember testifying to a Federal Grand Jury
on April 29, 1975?
MR. ROSENFIELD: Can I have a copy of that, Counsel?
P ie STEINBERG: I don’t have extra copies, Mr. Rosen-
ield.
A. Yes, I do, 1975.
MR. ROSENFIELD: Before he inquires, I would like an
opportunity to take a look at the document.
MR. STEINBERG: It’s not part of discovery, Your Honor.
I only have one copy. It’s not discovery.
THE COURT: Let him look over your shoulder or read
what you are reading.
MR. ROSENFIELD: That is fine.
I object to the characterization as not being discoverable.
It is now discoverable.
BY MR. STEINBERG:
Q. Did you ever give a different response Jn a previous
occasion, Mr. Wells?
A. Not that I know of, sir.
Q. Did you testify in the Federal Grand Jury on April
29, 1975, sir?
This year?
That’s correct.
No, sir, I didn’t.
You did not? .
I came before the Federal Grand Jury.
Were you asked this question:
“Q. What is your occupation?”
(This footnote is continued on next page)
OPOPrO>y
essai
The trial court overruled defense counsel’s objections
to both these lines of inquiry. As part of his discussion
of the defendant’s case during closing argument, the
prosecutor commented on the testimony of Wells and
Gordon, plainly stating that he saw a contradiction
between their corroboration of appellant’s exculpatory
story and their refusals to speak to the grand jury.
A. Improper Impeachment Under Evidentiary Guide-
lines
Appellant asserts that admission of the witnesses’
silence before the grand jury, exacerbated by the prose-
cutor’s reference during argument, was error. We agree
A. I was asked that question.
Q. Did you give the same response that you gave to Mr.
Flax?
A. I gave my address at that time, sir, 836 West Drive.
Q. After you gave your address, were you asked your occu-
pation?
A. Yes.
Q. Did you give the same response that you gave Mr.
Flax?
A. No, sir. I took the Fifth Amendment.
MR. FLAX: May we approach the bench, Your Honor?
THE COURT: Come right up.
(Side-bar conference: )
MR. ROSENFIELD: Your Honor, I would suggest that
because the man answered the question before the grand jury
that he refused to answer on the ground that it might tend
to incriminate him, this would be improper and highly prejudicial.
There is nothing inconsistent about a witness’ trying to invoke
the Fifth Amendment in front of a grand jury and testifying
here. There is nothing inconsistent about that at all. This kind
of questioning is improper.
I would suggest that before counsel be allowed to inter-
rogate him with respect to that document, that I be allowed
to take a look at it.
THE COURT: I have overruled your objection. You can
certainly bring out that he refused to testify before the grand
jury. I think that is proper cross-examination.
I do not think we need fifty questions to do it. If he
refused to answer all the questions, I think we can bring that
out and then drop it.
—
that under well-established evidentiary principles the
impeachment was improper.
1. The Requirement of Inconsistency Between
Silence and Testimony
[1, 2] In United States v .Hale, 422 U.S. 171,
95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975), the
Supreme Court reiterated the governing principles:
A basic rule of evidence provides that prior in-
consistent statements may be used to impeach
MR. STEINBERG: Fine.
(Side-bar conference concluded. )
BY MR. STEINBERG:
Q. Mr. Wells, were you called to testify before the Federal
Grand Jury on two occasions, October 29, 1974, and April
29, 1975?
A. Sir, I could not possibly swear to that because I don’t
have anything at all to tell me what time I went up
there. You could ask me a question of that nature and I can’t
tell you exactly what date or when those specifics took place.
Q. Without respect to the exact date, sir, did you appear
twice before the Federal Grand Jury?
A. Yes, sir.
Q. Were you asked questions concerning your labor-union
activities and Mr. Rubin?
A. Yes, sir.
Q. Did you refuse to testify on both of those occasions?
A. Yes, sir, I did.
Q. Mr. Wells, during any of those occasions did you tell
the grand jury or the Government about this fund of cash
that you were receiving?
MR. ROSENFIELD: I will object to that, Your Honor.
He testified he has not testified before. Any other question
he would be incompetent to answer. He said he did not testify.
THE COURT: I think this question has two parts and
I will sustain the objection. I think he has answered that part
dealing with the grand jury. I am not so sure he answered
the part dealing with the Government, if that means someone
other than the grand jury.
THE WITNESS: Would you repeat the question, sir.
BY MR. STEINBERG:
Q. Mr. Wells, I will rephrase the question.
Have you ever told the Government before about this cash
that you were receiving from Mr. Rubin to organize?
A. I don’t recall telling the Government anything, sir. (T.
1519-24).
neiullleies
the credibility of a witness. As a preliminary mat-
ter, however, the court must be persuaded that
the statements are indeed inconsistent. 3A J. Wig-
more, Evidence § 1040 (Chadbourne rev. 1970).
If the Government fails to establish a threshold
inconsistency between silence . . . and later ex-
culpatory testimony at trial, proof of silence lacks
any significant probative value and must therefore
be excluded.
See also Grunewald v. United States, 353 U.S. 391,
418-19, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In
Hale, the Court concluded that a defendant's silence
in the circumstances following arrest and Miranda
warnings lacked the requisite inconsistency with his
exculpatory trial testimony and that such silence was
therefore inadmissible for impeachment purposes. More
recently the Court has held that the impeachment use
of a defendant’s post-arrest, post-Miranda warning si-
lence violated the due process clause. See Doyle v.
Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91
(1976).
For present purposes we limit our analysis to the
evidentiary framework employed in Hale. Into that
framework we must place, not a defendant, but a
defense witness and, not the circumstances of a post-
arrest police interrogation, but those of the grand jury
room. The question before us is whether the prior
silence of a defense witness before the grand jury
conveys the threshold inconsistency with the witness’s
exculpatory trial testimony that is necessary to permit
the use of the silence to impeach the testimony. We
hold that it does not.
aii
2. Silence and the Grand Jury
Grunewald vy. United States, supra, precludes any
suggestion that silence before the grand jury is more
probative than silence following arrest. In the circum-
stances of Grunewald, the Supreme Court squarely
rejected the argument that the defendant’s invocation
of the pivilege against self-incrimination before the
grand jury had “involved such inconsistency with any
of his trial testimony as to permit its use against
him for impeachment purposes.” 353 U.S. at 419,
77 S.Ct. at 981.
To reach that conclusion the Court placed significant
reliance on factors always attendant upon appearing
before a grand jury:
[T]he Fifth Amendment claim was made before
a grand jury where [defendant] was a compelled,
and not a voluntary, witness; where he was not
represented by counsel; where he could summon
no witness; and where he had no opportunity
to cross-examine witnesses testifying against him.
These factors are crucial in weighing whether a
plea of the privilege is inconsistent with later
exculpatory testimony on the same questions, for
the naiure of the tribunal which subjects the wit-
ness to questioning bears heavily on what infer-
ences can be drawn from a plea of the Fith
Amendment. Innocent men are more likely to
plead the privilege in secret proceedings. where
they testify without advice of counsel and without
opportunity for cross-examination, than in open
court proceedings, where cross-examination and
judicially supervised procedure provide safeguards
a es
for the establishing of the whole, as against the
possibility of merely partial, truth.
Id. at 422-23, 77 S.Ct. at 983 (citation omitted ).
The Court also emphasized that the grand jury had
considered the defendant a potential target for indict-
ment at the time of his appearance. Therefore “it
was quite natural for him to fear that he was being
asked questions for the very purpose of providing evi-
dence against himself,” and “quite consistent with inno-
cence for him to refuse to provide evidence which
could be used by the Government in building its incrimi-
nating chain.” /d. at 423, 77 S.Ct. at 983.
Both the general nature of grand jury proceedings
and the particular situation of the defendant thus fed
the Court’s conclusion that his invocation of the privi-
lege had been “wholly consistent -vith innocence” and
consequently inadmissible to impeach the defendant's
exculpatory trial testimony. See ia. at 421-22, 77 S.Ct.
963. Given the risk that the jury had drawn an infer-
ence of gu'!t from the exercise of the privilege, the Court
found the crror in admitting the evidence for impeach-
ment purposes prejudicial. See, id. at 423-24, 77 S.Ct.
963.
When Wells and Gordon appeared before the grand
jury investigating the laborers’ unions of southern Flor-
ida, they faced the same uncertainties and pressures
that Grunewald found inherent in the grand jury's
secret ex parte proceedings. Insofar as the record re-
veals, the two witnesses also could have been justified
in the conclusion that they were being interrogated
for the express purpose of supplying evidence against
themselves. They of course could invoke the privilege
properly only to avoid incriminating themselves; the
_: we
government has never levied the charge that either
improperly claimed the protection of the fifth amend-
ment.
The government bears the burden of establishing
the threshold inconsistency necessary to admit impeach-
ment evidence. See United States v. Hale, supra, 95
S.Ct. at 2136. So long as a grand jury witness has
properly invoked the privilege against self-incrimination,
the “insoluble ambiguity” of his silence, See Doyle,
supra, 96 S.Ct. at 2244, precludes demonstration of
that requisite inconsistency. Accordingly, the predicate
for impeachment use of Wells’ and Gordon’s grand
jury silence was lacking.
3. Prior Silence of a Defense Witness
|3| That we are concerned with the testimony
of defense witnesses, rather than a defendant, neither
renders inapplicable for requirement of threshold incon-
sistency nor provides any additional basis for concluding
that the requirement was here met. The Eighth Circuit
has squarely applied Grunewald in the witness context.
See United States v. Williams, 464 F.2d 927 (8th
Cir. 1972). Drawing on Grunewald’s description of
the nature of grand jury proceedings, the court in
Williams rejected the argument that the refusal of
a defense witness to testify before a grand jury was
inconsistent with his trial corroboration of the defend-
ant’s exculpatory story. The court concluded that the
improper impeachment had been prejudicial where the
single defense witness’s corroboration had been critical,
and it reversed the conviction. Similarly, the Second
Circuit has stated that where a witness, who is later
to supply exculpatory testimony for a criminal defend-
ae ae
ant, has a reasonable belief at the time of a grand
jury appearance that he may be a defendant himself,
. It is perfectly*consistent with innocence and
with nonincriminatory answers to particular ques-
tions to refuse to answer any question at all.
United States v. Tomaiolo, 249 F.2d 683, 691 (2d
Cir. 1957).
See also United States v. Natale, 526 F.2d 1160 (2d
Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724,
48 L.Ed.2d 193 (1976); United States v. Glasser,
443 F.2d 994, 1004-06 (2d Cir.), cert. denied, 404
U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).*
The conclusion of these two courts that a defense
witness’s prior silence before a grand jury and trial
testimony exculpating the defendant lack sufficient in-
consistency to justify impeachment use of the silence
is well-founded. Grunewald teaches that the many
factors that may lead an individual to remain silent
before the grand jury make it impossible to draw
any reasonable inference that a subsequent protestation
of his own innocence has been fabricated. Assuming
a reasonable belief at the time of the witness’s grand
jury appearance that he himself may be a defendant,
any suggestion of inconsistency between his silence
and subsequent testimony exculpatory of someone else
can certainly be no stronger.
*Natale and Glasser are concerned more directly with the
prejudicial impact of explicit attempts to elicit from a defense
witness the fact that he previously exercised the fifth amend-
ment privilege, rather than the lack of probative impeachment
value in witness's prior silence. Therefore these cases do not
explore the issue of consistency between grand jury silence
and exculpatory trial testimony. The opinions do cite Williams
and Tomaiolo with approval, however, and they make clear
that a defense witness’ prior silence before a grand jury is
not a proper subject of cross-examination in the Second Circuit.
=,
4. The Potential for Prejudice
As against the complete lack of probative value
in the defense witness’s refusal to testify before the
grand jury, impeachment by that silence runs some
risk of two varieties of prejudice. First, where the
jury learns that the witness’s silence was an exercise
of the privilege against self-incrimination, there is a
danger the jury will improperly infer guilt on the
part of the witness and, depending on the circumstances,
transfer that inference to the defendant. See United
States v. Natale, supra; United States v. Glasser, supra.
Second, without an understanding of the uncertainties
a witness faces in testifying before a grand jury, a
juror may well attribute undue significance to the fact
a witness offered no response to the prosecutor’s ques-
tions before that tribunal and may thereupon disbelieve
the witness’s trial testimony. To allay any such tendency
would require the defense somehow to instruct the
petit jury on the difficulties of testifying before a
grand jury, an abstract digression that would at best
district the jurors and at worst unduly emphasize the
issue of silence, exacerbating any tendency to draw
the improper substantive inference that the witness
was hiding guilt that may taint the defendant.*
%In a similar vein the D.C Circuit has held that a prosecutor
cannot attempt to impeach a defense witness by eliciting on
cross-examination that the witness had not testified at the de-
fendant’s preliminary yo. See United States v. Huff, 143
U.S.App.D.C. 163, 442 F.2d 855 (1971). Given the many
reasons for the defense not to put on evidence at such a
hearing, the court found the witness's failure to testify there
of little if any probative value. The court also recognized that
a jury might tend to find significance in the failure to testify.
Rather than require defense counsel to combat that prejudicial
tendency with a demonstration of the general nature of prelim-
inary hearings and the particular considerations that governed
the hearing in question, the court prohibited the impeachment
use of a witness's failure to testify at a preliminary hearing.
ice
[4] A. defense witness’s prior refusal to supply testi-
mony to a grand jury before which he had a reasonable
belief that he might ‘be a defendant himself has no
proper significance as impeachment evidence. Use of
the evidence for that purpose risks prejudice. According-
ly, we hold that the government may not attempt to
impeach a defense witness by eliciting such a prior
refusal to testify before a grand jury.*
B. The Constitution Inviolate
[5] Appellant argues that the impeachment use of
the prior silence of Wells and Cordon not only violated
the rules of evidence, but also transgressed constitu-
tional boundaries staked out in Doyi: v. Ohio, supra.
Doyle did elevate to a constitutional level the Court’s
earlier holding that impeachment use of a defendant’s
post-arrest, post-Miranda warning silence was improper
as an evidentiary matter. See United States v. Hale,
supra. Because we find that the Court’s reasons for
being party to that particular ascension do not transfer
to the situation before us, we reject appellant’s claim
of constitutional error.
Certainly the Doyle Court reaffirmed the recognition
in Hale of the inherent ambiguity of post-arrest silence.
However, the Court expressly noted that its considera-
tion of the lack of probative value of the Ohio defend-
ants’ silence was unnecessary to its constitutional hold-
ing. Id. 96 S.Ct. at 2444-45 n. 8. Rather, that holding
followed from the fundamental unfairness of employing
" 4This holding of course does not apply to the type of situa-
tion discussed in United States v. Fairchild, 505 F.2d 1378
(Sth Cir. 1975), and noted in Doyle v. Ohio, supra, 96 S.Ct.
at 2245 n. 11, in which the defendant (here, a defense witness)
has conveyed the impression that he affirmatively cooperated
with the government in all matters relating to the case.
ae ee
a person’s invocation of the right against self-incrimina-
tion to his disadvantage as he stands trial.
Justice Powell’s majority opinion described that un-
fairness in the context presented by Doyle of post-
Miranda warning silence:
. while it is true that the Miranda warnings
contain no express assurance that silence will carry
no penalty, such assurance is implicit to any per-
son who receives the warnings. In such circum-
stances, it would be fundamentally unfair and
a deprivation of due process to allow the arrested
person’s silence to be used to impeach an ex-
planation subsequently offered at trial.
Id. 96 S.Ct. at 2245.°
That same unfairness may be present whenever the
government attempts to exploit a proper invocation
of the privilege, whether or not preceded by explicit
warnings of the right to remain silent. Thus, whatever
the ultimate validity of the proposition that Miranda-
type warnings are required in the grand jury room,
see United States v. Washington, ........ am?) Seco ‘
97 S.Ct. 1814, 52 L.Ed.2d 238 (1977): United States
Se td 5p) Seen , 97 S.Ct. 1823, 52 L.Ed2d
231 (1977); United States v. Mandujano, 425 US.
564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), the
factors found constitutionally intolerable in Doyle might
be thought to extend to a defendant’s silence in the
face of grand jury questioning.
*The Court went on to quote with approval from Justice
White’s concurrence in the judgment in United States y. Hale,
supra, 95 S.Ct. at 2139. “Surely Hale was not informed here
that his silence, as well as his words, could be used against
him at trial.” Doyle, supra, 96 S.Ct. at 2245.
|
ee
We need not resolve this question today. A defendant
cannot com" .in where the prosecutorial abuse is of
another’s exercise of the constitutional privilege against
self-incrimination.® That privilege is a personal one.
It is established that a defendant may not object to
the violation of another person’s privilege. See Doyle,
supra, 96 S.Ct. at 2248 (Stevens, J., dissenting) and
cases cited. Thus a defendant cannot complain of
any Doyle-type unfairness that might be seen in im-
peachment of a defense witness by a prior refusal to
testify before a grand jury.’
C. Error Harmless
[6] Because we have found the error in impeaching
Wells and Gordon by their grand jury silence to be
nonconstitutional, the strict guidelines set out in Chap-
man v. United States, 547 F.2d 1240, 1249-50 (Sth
Cir. 1977), for testing the harmlessness beyond a
reasonable doubt of a Doyle violation are inapplicable.
Rather we must apply the test of Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248,
90 L.Ed. 1557 (1946):
*Doyle itself specifically reserved the question whether con-
stitutional error would obtain upon the use of post-arrest, post-
Miranda warning silence to impeach a defense witness sather
than the defendant.
"Note that in United State v. Sobell, 314 F.2d 314 (2d
Cir. 1963), the court opined that on the assumption the Grune-
wald holding achieved constitutional dimensions, those constitu-
tional implications would be limited to the person whose claim
of the privilege was used against him.
Beyond the unfairness of exploiting a claim of the privilege,
we cannot conclude that the grand jury silence of a defense
witness is so utterly lacking in probative value yet highly charged
with prejudicial potential that its use merits universal constitu-
tional condemnation. We need not forecast whether the use
of such evidence might in some particular case be so critically
prejudicial as to rise to the level of a due process violation.
The case at bar, however, is not such a case.
ae a
~~ ant anton
ee tee oe
—-
a, aoe
if [we] cannot say with fair assurance,
after pondering all that happened without stripping
the erroneous action from the whole, that the
judgment was not substantially swayed by the
error, it is impossible to conclude that substanial
rights were not affected. The inquiry cannot be
merely whether there was enough to support the
result, apart from the phase affected by the error.
It is rather, even so, whether the error had sub-
stantial inijuence, If so, or if one is left in grave
doubt, the conviction cannot stand.
See United States v. Constant, 501 F.2d 1284, 1289
(Sth Cir. 1974), cert. denied, 420 US. 910, 95 S.Ct.
830, 42 L.Ed.2d 840 (1975).*
[7,8] Oft times the alleged heinousness of a crime
provides the judicial vehicle for a finding of harmless
error. That factor, however, is never an appropriate
consideration. Here, in reading and examining the rec-
ord, we have attempted to strain out the quality of
the alleged crime and to confine our attention to
the residue of its basic actual underpinnings. The
nature of the crime has not entered our evaluation
of the evidence, which we find to be overwhelmingly
convictive. Cognizant that “harmless-error rules can
work very unfair and mischievous results”, Chapman
v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827,
17 L.Ed.2d 705 (1967), we are nevertheless convinced
that the improper impeachment of Wells and Gordon
tainted appellant’s trial at most to such a marginal
*Kotteakos continues to provide the standard for iudging
nonconstitutional errors in this circuit. See, ¢.g., United States
v. Martinez, 536 F.2d 1107 (Sth Cir. 1976): United States
v. Jennings, 527 F.2d 862 (Sth Cir. 1976): United States
v. Harbolt, 491 F.2d 78 (Sth Cir. 1974); United States v.
Resnick, 488 F.2d 1165 (Sth Cir. 1974).
:
poe: | We
extent that the judgment must be affirmed under the
above standard.
The government presented an extremely powerful,
if circumstantial, case against the appellant. Largely
unchallenged documentary evidence established that ap-
pellant made it a common practice to bill identical
expenses, chiefly travel and entertainment, to each of
local 666, local 478, the District Council, and the
ILU, and to obtain full reimbursement from each.
The vast majority of the reimbursement checks were
cashed by Rubin at a savings and loan association;
a few were deposited in an account Rubin maintained
there. Similar documentation established that when at-
tending a conference on behalf of the various employee
welfare benefit plans of which he was a trustee, Rubin
would obtain from each organization the amount it
had set to cover an individual’s full expenses at the
conference.
None of the entities to which appellant addressed
his duplicate billing had any notice of his reimbursement
from other sources. Indeed, the government established
that in local 666, the constitution of which required
two signatures on all checks from the union treasury,
Secretary-Treasurer Henry signed all checks in blank.
Appellant, president and business manager of 666,
supplied the payee and amount.
Appellant did not deny the fact of multiple billing.
Rather, he attempted to show that his actions were
unaccompanied by the intent requisite to convictions
under 29 U.S.C. § 501(c).” Rubin claimed that organ-
*On the contents of that intent requirement, see United
States v. Ottley, 409 F.2d 667 (2d Cir. 1975); United States
v. Silverman, 430 F.2d 106 (2d Cir. 1970).
Se Me ee E *
bien
izing drives and the maintenance of relationships with
management required him to keep a large cash fund
at the ready. He testified that in a campaign to unionize
laborers at a particular plant, he had frequently had
to give a subordinate organizer as much as several
thousand dollars cash to compensate workers helping
in the drive and to entertain others. Checks were
too slow and cumbersome in the brief duration of
a campaign; laborers traditionally preferred cash. Cash
would frequently be required by the establishment xt
which, over lunch or a drink, prospective members
were encouraged to join. Cash was sometimes necessary
to cover workers’ emergency needs during a strike.
Finally, cash was an important part of appellant’s efforts
to entertain management. Rubin testified of the impor-
tance of maintaining an “image of affluence.” He related
that he attempted always to carry four or five thousand
dollars in cash, with which he could pick up large
bills.
Appellant explained that he had employed the mul-
tiple billing practice to generate this cash. He testified
that local 666 and the District Council had authorized
him to make whatever expenditures from the union
treasury he deemed in the interest of the organization.
He had concluded that this authorization legitimized
the multiple billing and the use of the cash fund
for general organizing and maintenance of relations
with management. As for the employee welfare benefit
plans, Rubin testified that a lawyer had advised him
that it was legal to receive conference expense advances
from more than one entity, so long as any excess
over actual expenses was spent on union business.
On cross-examination, Rubin testified that he main-
tained no records of the cash fund or disbursements
ee
from it. Moreover, the government’s evidence contained
material responsive to appellant’s story. The annual
reports of each relevant entity, required by the Labor-
Management Reporting and Disclosure Act of 1959,
29 U.S.C. §§ 401-531, showed the amount of expenses
that entity had reimbursed, but the cash fund and
the disbursements from it never appeared. The govern-
ment introduced evidence tending to show that an
audit of any individual organization involved would
not have disclosed the multiple reimbursements. Finally,
the government documented a multitude of expenditures
not included in the indictment that appellant had not
covered out of any cash fund, but for which he had,
instead, received reimbursement.
Suffice it to say that after appellant told his story
the government’s case remained extremely strong. Ac-
cording to his own testimony, appellant had the legiti-
mate authority to draw a check on one of the union
treasuries whenever organizing or entertaining expenses
created the need for cash. Instead he generated cash
by copying assorted bills and charging them two to
four times over to various entities.
The witnesses called by appellant corroborated only
one aspect of his story: the fact of numerous and
large cash expenditures by Rubin, either as disburse-
ments to subordinates for organizing or as payments
by himself in entertaining. Including Wells and Gordon,
eight witnesses testified to this effect, six from the union
ranks and two contractors.
Larry Feder. an organizer for local 666, was perhaps
the chief union witness. He testified that over tue
relevant years he had received between $35,000 and
$40,000 cash from Rubin for organizing expenses. Ad-
x
oe |
ditionally, he had witnessed Rubin spend large amounts
of cash at dinners with management.
The government attacked Feder’s credibility in
numerous ways. As with all the organizers who testified
the government established the large salary received
by Feder at appellant’s direction. Feder aumitted he
had kept no records of any of the thousands of dollars
he claimed to have received. Most importantly, the
government offered the testimony of Department of
Labor Agent William Gamble, who had interrogated
Feder regarding the money he received as an organizer,
specifically inquiring how his expenses were paid. Feder
had told Gamble that expenses were reimbursed upon
the submission of receipts. No mention was made of
ever receiving cash from appellant. The prosecutor
repeatedly emphasized Feder’s statement to Gamble
in his closing argument.
Jake Wright, a district council organizer, offered
similar testimony, accounting for approximately $6,000
cash received from appellant. On cross-examination,
Wright first testified that he thought he had told Agent
Gamble about the cash payment in response to questions
Gamble asked about organizing expenses. A review
of his statement to Gamble refreshed his recollection
to the contrary. Moreover, the government brought
out Wright’s grand jury testimony that he did not
know what Rubin did in his union offices. Again,
the prosecutor emphasized this impeachment material
in argument.
Besides Wells and Gordon, the defense called two
other union witnesses of relatively minor importance.
A laborer from local 478 testified that he had received
$2400 cash from appellant for work in an organizing
iis.
campaign. A shop steward from local 478 testified
that he had received $1,000 cash from Jake Wright
in each of two campaigns.
Wells and Gordon each accounted for around $13,-
000 cash received from Rubin for organizing expenses,
though Wells testified at greater length and in more
detail. Apart from any effect of the impeachment by
grand jury silence, Wells's testimony at many points
lacked credibility in its own right. On direct he at-
tempted to explain the absence of receipts for his
organizing expense. Wells testified that when an or-
ganizer takes a recruit out to lunch, he cannot impress
the prosepct if he has to obtain a receipt. Wells further
testified that he did sometimes manage to collect re-
ceipts, but that these were frequently lost when his
wife washed his clothes. The prosecutor pointed to
Well’s lack of credibility as well as his grand jury
silence in argument. Apart from Gordon's grand jury
silence, the government attacked his testimony only
as it did that of each organizer—with the facts that
appellant controlled his salary and that Gordon had
kept no records of the cash he received from Rubin.
In short, the defense put on four union witnesses
of significance in the effort to corroborate the fact
of union related cash expenditures by appellant. With
the possible exception of Gordon, who testified most
briefly of the four, each faced sharp attack from the
government apart from the impeachment use of Wells’s
and Gordon’s grand jury silence. The prosecutor empha-
sized those attacks in closing arguitent at least as
forcefully as the references to the sile1ce of Wells and
Gordon.”
We reject the claim that the prosecution s argument tended
to lump all the defense witnesses under the: refusal of Wells
[9] The jury’s verdict rests on either of two lines
of reasoning. Given the strength of the government's
case, the jury could well have believed the defense
witnesses’ testimony that Rubin made many large cash
payments related to union activities and still have con-
cluded that Rubin knew the multiple reimbursments
were unauthorized or that the multiple reimbursements
were unrelated to any such cash payments, sufficient
for them to find violations of 29 U.S.C. § 501(c).
That Rubin was a good union man is no defense
to the requirement of a modicum of accountability
for moneys expended for the union. The embezzlement
Statute imposes no penny pinching requirements, but
neither does it afford blanket exculpation for open-
handedness and benignity in the spending process. The
jury could easily have concluded that union activities
require big spending and that Rubin was a free spender,
but still have believed that he knew accumulating funds
by duplicate billing was unauthorized and that the
funds so accumulated were not benignly employed.
In that case the improper impeachmeni obviously had
no impact.
Alternatively, the jury may have disbelieved all or
part of the testimony regarding Rubin’s cash expendi-
tures. We find nothing in the cross-examination or
argument regarding the grand jury silence of Gordon
and Wells that would have any significant tendency
to impugn the ‘testimony of Feder and Wright. To
the extent the jury disbelieved the latter pair, we are
and Gordon to testify. When read in context, each of the
references to their grand jury silence is accompanied by distinct
references to the statements given to Agent Gamble by Feder
and Wright that were inconsistent with their trial testimony
and to Wright's inconsistent statement to the. grand jury.
scien
confident they did so on the basis of the substantial
proper impeachment of the two.
Thus it appears that at most the improper impeach-
ment tended to discredit Gordon's brief comments and
Well’s testimony, not without substantial independent
implausibility. The effect of that tendency must have
been slight. There was no defensive attempt to match
the total allegedly embezzled sums to the expenditures
related by the witnesses. Each individual witness did
not occupy a linchpin position. Thus the possibility
that the jury believed Feder and Wright but rejected
the defense because of the improper impeachment of
Gordon and Wells is remote. Moreover, given the sum
of Gordon’s and Wells’s testimony, the possibility is
equally slim that the jury disbelieved the remaining
defense witnesses but would have accepted the defense
absent the improper impeachment. In light of the bal-
ance of the evidence and the place of Wells and
Gordon in the defensive lineup, we cannot conclude
that the erroneous impeachment use of their refusal
to testify before the grand jury was prejudicial under
the Kotteakos standard."' Were that balance any dif-
ferent or the testimony of Wells and Gordon of any
more apparent importance, different considerations
"Appellant does not and could not claim that the single
— reference during Wells's testimony to the privilege against
self-incrimination prejudiced him by creating a substantive in-
ference of Wells's guilt that transferred to the defendant. See
United States v. Natale, supra; United States v. Glasser, supra.
That reference, though volunteered by Wells, was certainly fore-
seeable by the tor. The government cannot escape blame
for any prejudice that might have arisen. Nevertheless it is
clear that no such prejudice did arise. The government at trial
consistently showed that the subordinates knew nothing of appel-
lant’s financial machinations; there was in the circumstances
no suggestion to the jury of the witnesses’ involvement in crimi-
nal behavior related to the charge against appellant.
ee ne
=.=
would obtain. As this record stands, however, we harbor
nothing approaching a “grave doubt” that the error did
not exert a substantial influence on the jury. We think
it clear that the error was harmless.
Il. Other Claims
We may readily dispose of appellant's remaining
attacks on the validity of his conviction.
A. Failure to Record Grand Jury Proceedings
Appellant complains that the prosecutor's comments
to the grand jury were not recorded. The trial court
denied motions to require recording of the grand
jury proceedings and to dismiss the indictment for fail-
ure to do so. The government did record the testimony
of witnesses before the grand jury.
[10] The far better practice is to record grand
jury proceedings, including the comments of the prose-
cutor. See United States v. Peden, 472 F.2d 583 (2d
Cir. 1972). Nevertheless there remains no constitutional
or statutory requirement of recording. See United States
v. Flanagan, 445 F.2d 263 (Sth Cir. 1971), United
States v. Howard, 433 F.2d 1 (Sth Cir. 1970). Accord-
ingly, the failure to do so, standing alone, provides
no predicate for reversal.
[11] A defendant may nevertheless obtain what
grand jury records do exist or receive a hearing on
what, has transpired in the grand jury room upon
a showing of need. See United States v. Tucker, 526
F.2d 279, 282 (Sth Cir. 1976); United States v. How-
ard, supra, 433 F.2d at 2-3. That showing, however,
must include more than unsubstantiated, speculative
assertions of impropricties in the proceedings.
a
[12] Appellant’s only allegation of prosecutorial
misconduct in the grand jury proceedings themselves
is that the prosecutor concentrated his questioning of
several witnesses on their conversations with their own
or appellant’s lawyers. From this appellant argues that
the prosecutor improperly misinformed the grand jury
that Rubin was obstructing the investigation. Assuming
a defendant's substantive right to dismiss an indictment
based on prosecutorial misconduct so flagrant as to
deny fundamental fairness, we cannot regard appellant's
speculation as a sufficient demonstration of need to
require reversal for the district court's failure to require
recording, to order production of existing grand jury
records, or to conduct a hearing inquiring into the
prosecutor’s action.
B. Electronic Surveillance Claim
[13, 14] Appellant also claims that the trial court
improperly handled his suggestion that government
agents had conducted illegal electronic surveillance of
his office. Under 18 U.S.C. § 3504(a)(1), a defendant
by asserting a claim of such surveillance requires the
government to affirm or deny its occurrence.”
This court has made clear that a “mere assertion”
by a criminal defendant claiming surveillance of himself
is sufficient without supporting evidence to trigger the
government's obligation to affirm or deny. See United
States v. Tucker, 526 F.2d 279, 282 (5th Cir. 1976).
However, we have also announced adherence to the
1218 U.S.C. § 3504(a)(1) reads in full as follows:
Upon a claim by a party aggrieved that evidence is inadmis-
sible because it is the primary product of an unlawful
act or because it was obtained by the exploitation of an
unlawful act, the opponent of the claim shall affirm or
deny the occurrence of the alleged unlawful act.
I a ae
a, , Nee
requirement that the assertion of surveillance be a
“positive statement that unlawful surveillance has taken
place.” /d."* An allegation that it “may” have occurred
will not suffice.
Appellant failed to meet this requirement. Like the
claimant in Tucker, he filed a motion alleging only
a suspicion of surveillance, that he had “reason to
believe” someone had eavesdropped on conversations
in his office. The statutory provision for discovery
of illegal surveillance is a salutary one; it is not too
much, however, to require a positive representation
of such surveillance before the government’s obligation
to respond arises. In any event that requirement is
already the law of this circuit.
[15] In passing we caution the government against
further use of the form of limited response it did
offer below. While an unadorned denial of illegal sur-
veillance may suffice to meet the barest, most general
accusation, that response must unequivocally deny the
occurrence of illegal surveillance, apart from any ques-
tion whether evidence against the defendant was ob-
tained thereby. While such a general denial may have
been the intended import of the government’s statement
here that “no illegal activities were used to gain evidence
concerning Bernard Rubin”, the ambiguity created by
the negative pregnant would render this response inade-
quate.
C. Racketeering Instruction
[16] Lastly Rubin objects to the district court’s
instructions defining the racketeering offense set out
in 18 U.S.C. § 1962(c). That section of the Organized
Crime Control Act of 1970 provides:
There is no requirement that the allegation be sworn.
Py. eae
It shall be unlawful for any person employed
by ... any enterprise engaged in. . . interstate
or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enter-
prise’s affairs through a pattern of racketeering
activity. ...
The statute defines “racketeering activity” to include
the offenses of embezzlement from union funds and
employee welfare benefits plans. 18 U.S.C. § 1961(1).
A “pattern of racketeering activity’ comprehends two
or more such offenses within a ten year period. 18
U.S.C. § 1961(5).
Appellant’s concern is the requirement of § 1962(c)
that the offender conduct or participate in the conduct
of an enterprise’s affairs, here the affairs of the unions
and the benefit plans, through a pattern of racketeering
activity. He contends that the statute requires the gov-
ernment to prove that he acquired or maintained his
labor union control by virtue of acts of embezzlement,
or that those acts somehow furthered his ability to
participate in or conduct the affairs of the enterprises.
The government maintains that to convict under the
racketeering statute the jury need only have found
two offenses during the course of appellant’s employ-
ment with one of the organizations.
Then District Judge Fay steered a middle course.
Tracking the language of the statute, he instructed
the jury that the government had to prove that
“through” the two or more offenses, the defendant
participated in the conduct of affairs of the various
union entities. Judge Fay rejected appellant’s only sug-
gestion for incorporating his reading of the statute
into the instructions, which was to include a statement
ss, wan
that “through” means “by means of”. The judge also
rejected an instruction proposed by the government
along the lines of its interpretation of § 1962(c).
The language of § 1962(c) is less than pellucid,
and appellant’s attempt to illumine has appeal. The
“Statement of Findings and Purpose” that introduces
the Organized Crime Control Act of 1970 contains
some suggestion that Congress primarily concerned itself
with the use of racketeering activity to gain and main-
tain positions in legitimate business and labor organi-
zations. See Pub. L. No. 91-452, 84 Stat. 922 (1970),
reprinted in [1970| U.S. Code Cong. and Ad. News
1073. The Ninth Circuit has emphasized the importance
to a § 1962(c) prosecution of establishing a substantial
nexus between the prohibited activity and the conduct
of the enterprise’s affairs in United States v. Campanale,
518 F.2d 352 (9th Cir. 1975). On the other hand,
one court has found the statute satisfied by two or
more offenses committed in the course of employment
with the relevant enterprises, so long as the offenses
are themselves related. See United States v. Stofsky,
409 F.Supp. 609 (S.DN.Y. 1973), affd. 527 F.2d
237 (2d Cir. 1975).
We find it unnecessary to attempt definitive resolu-
tion of this issue. Assuming some required relationship
between the proscribed acts and the maintenance of
union position, we find the trial court’s instructions
sufficient to convey that meaning. At least we cannot
find reversible error in the failure to add the proffered
words “by means of”. Appellant’s definition might have
emphasized the nexus, but would have added little
content to the definition of so common a word as
“through.” The evidence was certainly sufficient to sup-
mal, Ee
port a conclusion that appellant’s embezzled funds
served his position in the union organizations.
[17] Having found no prejudicial error in the pro-
ceedings that culminated in appellant’s conviction, we
affirm that judgment. Appellant has, however, raised
a substantial objection to one aspect of his sentence,
to which we now turn.”
{lIl. Forfeiture of Union Offices
[18-20] Upon appellant’s conviction of the rack-
eteering charges, the district court issued an order pur-
suant to 18 U.S.C. §°1963(a) that Rubin forfeit his
offices in the various unions and employee welfare
benefit plans. Additionally, the court ordered forfeiture
in perpetuity of the right to hold any such office.
Appellant challenges these orders as beyond the in-
tended reach of the forfeiture sanction.
Part of the Organized Crime Control Act of 1970,
(hereinafter the “Act”), 18 U.S.C. § 1963(a) provides:
Whoever violates any provision of section 1962
. Shall forfeit to the United States... (2) any
interest in, security of, claim against, or property or
contractual right of any kind affording a source of
influence over, any enterprise which he has es-
tablished, operated, controlled, conducted, or par-
'4Appellant raised four other claims of error. We reject
as meritless the claim relating to discovery of an Internal Reve-
nue Service file and that relating to the presence before the
grand jury of Department of Justice Organized Crime and Rack-
eteering Strike Force attorneys. Two claims, one asserting that
the trial court improperly excluded certain defense evidence
as hearsay and one challenging the court’s instructions on the
fiduciary duties of a union official under 29 U.S.C. § 501(a),
were raised pertinent to the embezzlement counts that charged
unlawful salary increases. We need not reach these claims be-
cause of the operation of the concurrent sentence doctrine.
ticipated in the conduct of, in violation of section
1962.
The question before us is whether appellant’s various
offices are “interests”, “securities”, “claims”, or “proper-
ty or contractual right of any kind”, within the meaning
of § 1963(a). Given Congress’ clear intent to use
every possible means to separate those found guilty
of racketeering activity and their confeder
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