# Petition — Rubin v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0504%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 864

## Text

——

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 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 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 confederates from
the enterprises they had conducted through such activ-
ity, we find no basis in language or policy for exclud-
ing those offices appellant presently holds from the
reach of the forfeiture provision. The terms of that
provision, however, cannot reach appellant’s right to
seek and reattain such offices. That right, moreover,
is independently regulated by provisions of the federal
labor statutes. Accordingly, we modify the forfeiture
order entered below, restricting its application to appel-
lant’s incumbent status in the enumerated offices.

As a criminal statute, § 1963 “must be strictly con-
strued, and any ambiguity must be resolved in favor
of lenity.” United States v. Enmons, 410 U.S. 396,
411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973).
This canon has particular application to forfeiture stat-
utes. See Baca v. Commissioner, 326 F.2d 189 (Sth
Cir. 1964). Indeed, the forfeiture of a portion of an
individual’s property as a consequence of a criminal
conviction was unknown to the federal criminal law
until the passage of § 1963.'° Such a penal foray
bespeaks a need for circumspection.

‘Unlike in rem forfeiture proceedings against contraband
or articles put to unlawful use, § 1963 operates against the
person of the defendant and includes within the punishment
for his crime forfeiture of a portion of his estate. Such a
provision, while known to the common law of England and

(This footnote is continued on next page)

ae, SS

That circumspection nevertheless must give fair heed
to the clear congressional intent to increase the variety
and strength of federal prosecutorial weapons designed
to root out and keep out the influence of organized
crime in legitimate business and labor organizations.
Congress found the traditional criminal sanctions of
imprisonment and fine wanting in the effort against
infiltration by organized crime. Incarcerating individuals
could remove them from the operation of victimized
organizations. So long as those individuals retained
or could transfer economic leverage over the organiza-
tions, however, removing them to prison often resulted
only in the rule of proxy or in the promotion of
junior members of organized crime. As the Senate
Judiciary Committee stated, “What is needed here
are new approaches that will deal not only with indi-
viduals, but also with the economic base through which
those individuals constitute such a serious threat.” S.
Rep. at 78 (1969); see also Measures Relating to
Organized Crime: Hearings on §.30 and Related Pro-

the colonies, is foreign to the federal criminal law. The 91st
Congress recognized that, in passing § 1963, it was partially
repealing a statute passed by the First Congress, which in
its present form provides that: “No conviction or judgment
shall work corruption of blood or forfeiture of estate.” 18
U.S.C. § 3563. See United States v. Mandel, 408 F.Supp.
679 (D.Md. 1976); S.Rep. 91-617, 91st Cong., Ist Sess 79-
80 (1969), hereinafter S.Rep.); 116 Cong.Rec. 35205, 35208
(remarks of Rep. Mirka, Rep. Ryan).

Besides the unprecedented nature of the forfeiture sanction,
the uncertain reach of “patterns of racketeering activity”—the
gravamen of a § 1962 offense—requires interpretive caution
in this area. See Part II. A., supra. While addressed to organized
crime, the Act is not limited in application to members of
that undertaking. See United States v. Campanale, supra. Indeed,
while we readily conclude appellant was properly convicted under
the racketeering provisions we intend to intimate no finding
or sense of any kind that he is or has been affiliated with
what might be labeled organized crime.

SO De we

eee een

aun. Sra

posals Before the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee, 91st
Cong., Ist Sess. 112 (1969) (statement of Attorney
General) (hereinafter “Senate Hearings”); Organized
Crime Control: Hearings on §.30 and Related Propos-
als Before Subcommittee No. 5 of the House Judiciary
Committee, 91st Cong.2d Sess. 107 (Statement of Sen.
McClellan) (hereinafter “House Hearings”); 116 Cong.
Rec. 35193 (1970) (remarks of Rep. Sisk).

The criminal forfeiture provision is one attempt to
destroy that economic base. Thus Congress clearly con-
templated forfeiture of any ownership or investment
type of interest a defendant might hold in an organiza-
tion he had conducted through a pattern of racketeer-
ing activity. It is just such an interest that would
not otherwise terminate with incarceration and would
enable a defendant and/or his confederates to maintain
control of an organization.

The question is whether that language of § 1963(a)
—interest, security, claim, property or contract right—
should be extended beyond such financial interests to
elective or appointive management positions such as
those held by appellant. The scope of the statute is
indeed without precise boundaries.’* Appellant’s man-
agement positions do not present the same problem
regarding perpetuation of control that ownership in-
terest create.

Judge Fay below explicitly noted the ambiguity in the
statute:

I would want the record to show that this is apparently

_a@ gray area. It’s difficult to say that the statute is precise

or specific, because when it taiks in terms of forfeiting

something to the Government, you would ordinarily think

of money or property, or something of that sort. (R.
821-22).

pa?

Nonetheless we conclude that appellant’s entitlement
under the organic documents of the various entities
to serve the remainder of his terms of office falls
within the language of the statute. So far as the record
demonstrates, his rights under the charter and con-
stitutions of the various organizations to serve out
his terms of office are as contractual in nature as
an employee’s rights under an employment agreement
for a term of years, terminable for cause. The terms
of the forfeiture provision reach beyond any narrow
definition of capital investment, embracing “property
or contractual right of any kind.” The Senate Judiciary
Committee wrote that the language “is designed to
accomplish a forfeiture of any interest of any type
in the enterprise . . . .” S.Rep. at 79. While such
open-ended intent cannot legitimate extension of the
sanction beyond the statute’s plain terms, limited to
their reasonably foreseeable scope, neither can it be
disregarded.

[21] Construing § 1963 to encompass the positions
appellant holds also accords with congressional intent.
First, retention of a management position, even in
absentia, could permit a defendant convicted under
the racketeering provisions to continue to exert an
influence over an enterprise. Moreover, although Con-
gress’ primary concern in enacting the forfeiture pro-
vision was eradicating organized crime’s economic base,
which more readily translates into ownership interests,
it also intended forfeiture fully to serve the broader
goal of legally separating persons who run an enterprise
through the defined racketeering activity from the enter-
prise itself. See S.Rep. at 79. Although applying

"Senator McClellan. a sponsor of the provision, explained
to the House subcommittee that the forfciture sanction would

te

Pe a

§ 1963 to appellant’s offices may serve only this broader
goal and be unrelated to eliminating self-perpetuating
economic power, there remains no reason to conclude
that those offices lie outside the sanction’s reach.

[22] In short, a reasonably cautious interpretation
of the language of the forfeiture provision brings within
its reach the right under an organization’s charter to
serve out a specified term in an elective or appointive
management position of substantial influence. Such an
interpretation serves the policies identified by Congress
in enacting the statute. Because both those conditions
are satisfied, the order that appellant forfeit his present
positions in the various union entities is proper.’*

The forfeiture sanction, however, can have no proper
effect on appellant’s right in the future to seek union
office, including those offices he must now give up.
That right to run for and hold office is not something
appellant as an individual has acquired or maintained
with respect to the various union entities; it is the
same right possessed by all members of all unions.
In no sense a contractual or property right held by
the individual against. a union, the right to seek union
office is rather guaranteed by federal statute. See 29
U.S.C. 481(e). The language of the new penal statute
does not extend to such a right.

Moreover, the forfeiture provision itself contains no
prophylactic ban on reacquisition of the same interest

“punish the criminal appropriately by forfeiting to the govern-
ment his ill-acquired interests ... and directly aid the business
community by expelling him from the legitimate business he
abused.” House Hearings at 107.

'SThat those offices cannot be meaningfully transferred to
the United States is of no moment. 18 U.S.C. § 1963(c)
provides that a forfeited interest not exercisable by the United
States shall terminate.

ae, ae

as that forfeited. Nothing in § 1963 prevents an in-
dividual from investing funds in an enterprise in which
he has had to forfeit a previous investment. Such
an interpretation does not rob the sanction of its de-
terrent effect, which results from the heavy financial
loss that can be visited by a forfeiture order. See
Senate Hearings at 388 (statement of Assistant Attor-
ney General Will Wilson). Even in the context of
a management position, forfeiture without restriction
on reentry removes from the convicted defendant the
advantages of incumbency.

Finally, restricting the operation of the sanction to
presently-held interests is supported by the fact that
Congress specifically attended to the problem of reac-
quisition in the civil remedies of § 1964. Included
among those remedies are injunctions against a de-
fendant conducting in the future the same type of
enterprise he conducted through racketeering activity
in the past. That powerful measure was rightfully ad-
dressed to the district court’s equitable discretion and
not made a part of the forfeiture sanction that attaches
automatically upon conviction under § 1962.

The analysis thus far would apply to a distinction
between any presently-held interest and the right to
regain that interest. Limiting forfeiture to the former,
makes particular sense in the context before us, more-
over, because labor code provisions independently regu-
late appellant's right to seek union office in the future.

Assuming appellant’s embezzlement convictions be-
come final, it will be unlawful for him to serve as
an officer of a labor organization or a trustee of
an employee welfare benefit plan. 29 U.S.C. $§ 504,
1111. That ban continues for five years following the

conclusion of imprisonment, subject to the discretion
of the Board of Parole to lift the restraint. Nowhere
in the legislative history of the Organzied Crime Control
Act of 1970 does there appear a reference to this
restraint on the right to seek union office, which at-
taches upon conviction of many of the offenses included
in the 1970 Act’s definition of racketeering activity.

We do not réad the criminal forfeiture provision
as imposing a permanent ban on reacquisition of any
covered interest. The statute creates no rule of per-
petuity. It has a limited temporal reach with which
we have no right, no power, to tamper. In any case
we cannot find in § 1963 any authority to impose
the radical measure of a lifetime ban on holding union
office when that statute was passed completely without
regard to the five year ban in existence at the time
of enactment. Insofar as the district court ordered
appellant to forfeit his right to seek and hold office
in the labor organizations and employee welfare benefit
plans, that order must be reversed. Appellant’s rights
in that regard are committed to the operation of 29
U.S.C. §§ 504, 1111.

CONCLUSION

The judgment of conviction is AFFIRMED. The
order of forfeiture is AFFIRMED AS MODIFIED.

ee
APPENDIX B.

United States of America, Plaintiff-Appellee, v.
Bernard G. Rubin, Defendant-Appellant. No. 76-1143.

United States Court of Appeals, Fifth Circuit.
March 15, 1979.

Appeal from the United States District Court for the
Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF
THE UNITED STATES

Before GOLDBERG and HILL, Circuit Judges and
KERR*, District Judge.

GOLDBERG, Circuit Judge:

Following a jury trial in United States district court,
Bernard J. Rubin was convicted of 103 counts charging
him with embezzlement of union and employee welfare
benefit plan funds, racketeering, income tax evasion,
and failure to keep labor union records. The sentences
on all counts were to run concurrently. Rubin appealed
his convictions to this court, and we affirmed. United
States v. Rubin, 559 F.2d 975 (Sth Cir. 1977). We
held that 101 of his convictions were either free of
error or unaffected by any errors committed by the
trial judge. The sentences on his other two convictions
were not longer than, and were to run concurrently
with, his sentences on some of the 101 counts we
examined; we therefore declined to review those con-
victions, something we thought we were entitled to
do under the concurrent sentence doctrine. That doc-
trine is frequently stated as follows: the existence of
one valid conviction may make unnecessary the review

*Senior District Judge of the District of Wyoming, sitting
by designation.

he.” SE

of other convictions when concurrent sentences have
been given. See Hirabayashi v. United States, 320
U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

Rubin successfully petitioned the United States Su-
preme Court for a writ of certiorari, claiming that
we had improperly invoked the concurrent sentence
doctrine. The Supreme Court vacated our judgment
remanding the case to us for-“further consideration
in light of the position asserted by the Solicitor General
in his supplemental brief.” Rubin v. United States,
sanpioks US. ........, 99 S.Ct. 67, 58 L.Ed.2d 102 (1978)
(mem). In that brief, the Solicitor General argues
that we should not have applied the concurrent sentence
doctrine because there is a substantial likelihood that
the two unreviewed convictions will adversely affect
Rubin’s parole. Upon consideration of the information
provided by the Solicitor General, we agree that in
this case our application of the concurrent sentence
doctrine was improper. We will explain why we should
not have applied the doctrine in the following section.

I.

The United States Supreme Court has called the
concurrent sentence doctrine “a rule of judicial con-
venience.” Benton v. Maryland, 395 U.S. 784, 791,
89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We have
stated that in deciding whether or not to apply this
rule of judicial convenience, we should consider whether
the defendant will suffer adverse collateral consequences
from the unreviewed convictions. See United States
v. Binetti, 547 F.2d 265, 269 (Sth Cir. 1977): Govern-

‘ment of the Canal Zone vy. Fears, 528 F.2d 641,

644 (5th Cir. 1976): United States v. Strickland, 509
F.2d 273, 274 (Sth Cir. 1975). Despite such state-

cay We

ments, we have often applied the doctrine mechanically
without really considering the adverse consequences.
Because it may have been unclear in our past cases,
we now expressly hold that a court may not apply
the concurrent sentence doctrine at least in the situation
where there is a significant likelihood that the defendant
will suffer adverse collateral consequences from the
unreviewed conviction.’

Rubin claims that he has established such a signifi-
cant likelihood of adverse collateral consequences. Spe-
cifically, he says that the two unreviewed convictions
increase the amount of time he must serve in prison
before he can be paroled. Those two convictions were
for embezzling a total of approximately $330,000.
Among the convictions we reviewed and found valid
were 84 other embezzlement counts involving a total
of approximately $55,000.° Rubin claims that the
amount he is said to have embezzled will affect the
date on which he is paroled.

To determine if Rubin’s assertions are correct, we
look to the United States Parole Commission guidelines.
The Parole Commission uses these guidelines to deter-
mine how long a prisoner serves before being released
on parole. See 18 U.S.C. § 4206 (1976): 28 C.F.R.

‘Our holding clearly does not invalidate the concurrent sen-
tence doctrine. It only indicates that it may be applied less
frequently. Although we conclude that Rubin has established
a significant likelihood of adverse collateral consequences from
his unreviewed convictions, we express no opinion about what
other circumstances wif fall within this limitation on the con-
current sentence doctrine.

“The 84 embezzlement convictions we reviewed charged Rubin
with taking multiple reinibursements for expenses. The 2 convic-
ions we did not review charged Rubin with embezzlement by
taking unauthorized salary increases. The remaining 17 convic-
tions we found valid were for racketecring, income tax evasion,
and failure to keep union records.

ee

acta

§ 2.20 (1978). Although the Parole Commission may
depart from its guidelines “[w]here the circumstances
warrant,” 28 C.F.R. § 2.20(c) & (d) (1978), it
almost always follows them in any given case. See,
e.g., Ruip v. United States, 555 F.2d 1331, 1333
(6th Cir. 1977); United States v. Salerno, 538 F.2d
1005, 1007 (3d Cir. 1976). Under the guidelines,
the customary length of time an offender serves is
determined in part by the offense severity rating the
Parole Commission assigns to the offense or offenses
for which a prisoner is incarcerated.’ The severity rating
for the offense of embezzlement is based on the amount
of money embezzled. The possible classifications are
“low moderate” (less than $1,000 embezzled), “mod-
erate” ($1,000 to $19,999), “high” ($20,000 to $100,-
000), and “very high” ($100,000 to $500,000). 28
C.F.R. § 2.20 (1978).

In assigning this severity rating, the Parole Commis-
sion looks to the “actual offense behavior” that can
reliably be established. United States Parole Commis-
sion Research Unit Guideline Application Manual
(Nov. 1977). Since the offenses for which the prisoner
is incarcerated are deemed reliably established, the Pa-
role Commission automatically considers those convic-
tions. Jd. Thus, in Rubin’s case, the Parole Commission
will consider all 86 embezzlement convictions. Because

828 C.F.R. § 2.20(b). The recommended range of time to
be served before parole is also based on the prisoner’s personal
characteristics. Jd. The Parole Commission assigns each prisoner
a “salient factor score” based on the following characteristics:
number of prior convictions, number of prior incarcerations,
age at first commitment, parole and probation history, employ-
ment history, history of heroin or opiate dependence, and whether
the commitment offense invelved auto theft or checks. United
States Parole Commission Research Unit, Guideline Application
Manual (Nov. 1977).

oe, ae

more than $200,000 is involved, it will assign these
parole offenses a “very high” severity rating. If, how-
ever, the Parole Commission did not consider the two
unreviewed counts, only $55,000 would be involved.
The Parole Commission would then assign the parole
offenses only a “high” severity rating and would be
likely to parole Rubin sooner.

It does not necessarily follow, however, that we
should have reviewed the other two convictions. When
a defendant is convicted on several counts, one of
which is reversed on appeal, the Parole Commission
will not automatically drop the reversed count from
its consideration in determining the offense severity
rating. Because the Parole Commission looks to the
“actual offense behavior” which can be reliably estab-
lished, it will still consider a reversed conviction in
determining the offense severity rating, if the reversal
was on grounds not relating to guilt or innocence."
However, if the court of appeals reverses one of the
prisoner’s convictions on grounds relating to guilt or
innocence, then the reversal does indicate that the
conviction is not reliably established, and the Parole
Commission would not consider it in determining the
offense severity rating.

The two claims of error Rubin raised in the court
of appeals were related to his guilt or innocence of

‘Accordingly, we may apply the concurrent sentence doctrine
to avoid reviewing counts not challenged on grounds relating
to guilt or innocence without worrying that we will prolong
the period of time the prisoner must serve before being released
on parole. This is so because if we reverse a conviction on
grounds unrelated to guilt or innocence, the Parole Commission
will give the conviction the same weight it gives to a conviction
we affirm. We wish to note that although we rely on the
Parole Commission's practices to determine whether or not we
should apply the concurrent sentence doctrine, we are not, by
our reliance, endorsing those practices,

Soe Ae

the two unreviewed embezzlement convictions. There-
fore, if we had reviewed and reversed those convictions,
we must assume that the Parole Commission would
not consider them in determining the severity rating
for Rubin’s parole offenses. If the Parole Commission
omitted those convictions in determining the offense
severity rating, it would drop the rating from a “very
high” to a “high” severity. And since under the Parole
Commission guidelines the recommended term of incar-
ceration increases as the offense severity rating in-
creases,” there is a significant likelihood that the two
unreviewed convictions will lengthen Rubin's incarcera-
tion.

We, therefore, hold that we should not have applied
the concurrent sentence doctrine in this case. In so
holding, we bow not only to the hierarchical position
of the Supreme Court, but to its superior wisdom
as well. We will now consider the points of error Rubin
raised with respect to the two unreviewed convictions.

Il.

The two counts we did not review charged Rubin
with embezzlement in his position as a labor organizer
by taking unauthorized salary increases, with knowledge
that the increases were unauthorized, in violation of
29 U.S.C. § SO1(c)." Rubin argues that the indictment

‘For example if Rubin were to receive a “very good” personal
characteristics rating, the recommended period of incarceration
would be 26-36 months if the offense severity rating were
“very high” and only 16-20 months if the offense severity
rating were “high”.

“The section provides, “Any person who embezzles . . . any
of the moneys . . . of a labor organization of which he
is an officer . . . shall be fined not mere than $10,000

or imprisoned for not more than five years, or both.” 29
U.S.C. § 501 (c) (1976).

pee Er

and the jury instructions may have erroneously caused
the jury to conclude that the mere taking of unauthor-
ized salary increases, without knowledge that they were
unauthorized, constitutes a § ~01(c) embezzlement of-
fense. He claims that the indictment equated the two,
and he argues that the jury’s mistaken belief may
have been reinforced by the judge’s instructions to
the jury on Rubin’s fiduciary duties under 29 U.S.C.
§ 501(a).’

We completely agree with Rubin that the mere taking
of unauthorized salary increases does not consitute
a § 501(c) violation. Criminal intent is an element
of a § S5O0l(c) offense. See, e.g., United States v.
Goad, 490 F.2d 1158 (8th Cir. 1974). One must
willfully take the salary increases, with knowledge that
the increases are not authorized according to the
Union’s constitution and bylaws, to violate § 501(c).
United States v. Goad, 490 F.2d at 1165. See also,
United States v. Nell, 526 F.2d 1223, 1233 (Sth
Cir. 1976) (approving Goad).

We do not agree, however, that the indictment or
jury instructions indicated otherwise. The indictment
specified that Rubin had to act “unlawfully, knowingly,
and willfully” to violate § 501(c). And even assuming
the indictment was somewhat unclear on the criminal
intent requirement, the jury instructions would have
dispelled any confusion. The judge’s charge carefully
explained the elements of the offense, emphasizing sev-
eral times the intent requirement and outlining what

?This section provides that the officers of a labor organiza-
tion have the duty “to hold its money . . . solely for the
benefit of the organization ... and expend the same in ac-
cordance with its constitution and bylaws and any resolutions
of the governing bodies adopted thereunder.” 29 U.S.C. § 501
(a) (1976).

ee te

conduct would constitute the necessary intent. See tran-
script vol. [IX pp. 2065-73.

Rubin also complains of the judge’s instruction that
Rubin had a fiduciary duty under § 501(a) not to
spend the Union’s money in unauthorized ways. We
conclude that this instruction would not have confused
the jury, since the judge further instructed that Rubin
would not have violated § 501(c) unless he breached
this fiduciary duty with the requisite criminal intent.
We therefore conclude that Rubin’s contentions as to
the indictment and jury instructions are without merit.

Rubin also argues that the trial court improperly
excluded as hearsay certain proffered testimony. To
decide whether the testimony was inadmissible hearsay,
some background information is necessary. One of Ru-
bin’s defenses in this case was lack of criminal intent.
He claimed that because he interpreted the unions’
constitutions as allowing the salary increases, he was
unaware that the increases were actually unauthorized.
The constitutions, however, appear clearly to mandate
a different procedure for obtaining salary increases
from the procedure followed by Rubin. To explain
why he nonetheless believed the salary increases were
authorized, Rubin testified that his understanding was
that the constitutions were not to be interpreted literally.
Rubin wanted to explain further that both present
and past presidents of the unions, those individuals
given the duty of interpreting the constitutions, had
told him that the constitutions were flexible, living
documents that could be interpreted to fit the needs
of a particular local. The trial judge excluded this
testimony as hearsay.

The Federal Rules of Evidence define hearsay as
“a statement, other than one made by the declarant

pas" thee

while testifying at the trial or hearing, offered ‘in evi-
dence to prove the truth of the matter asserted.” Fed.
R.Evid. 801 (emphasis added). As Rubin explained
at trial, he did not offer the statements to prove the
truth of the matter asserted, but instead to prove that
he had heard them and to establish their effect on
his state mind. See Dutton v. Evans, 400 U.S. 74,
88, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Thus,
Rubin’s proffered testimony was not hearsay, and be-
cause it was relevant to his state of mind, it should
have been admitted. See Fed.R.Evid. 401 & 402.

Since the trial court allowed Rubin to testify to
his understanding of what the constitutions meant, the
government argues that the excluded testimony would
have been cumulative only. Thus, the government claims
that the, trial court’s exclusion of the testimony consti-
tutes harmelss erro

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0504%3A1. Public record. Not legal advice.