Petition — Bowman v. United States
Supreme Court brief1981
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Text
October Term, 1980
ROBERT BOWMAN,
Petitioner,
vs. A
UNITED STATES OF AMERICA, S
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
IRVING ANOLIK and |
McCORMACK & DAMIANI
Attorneys for Petitioner
225 Broadway
New York, New York 10007
(212) 732-3050
4333 LUTZ APPELLATE PRINTERS, INC.
NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363
NJ (201) 257-6850 © PA (215) 563-5587 © DC (202) 783-7288 © MA (617) 227-1133
QUESTIONS PRESENTED
1. Whether petitioner was denied a fair trial by virtue of the
fact that his conviction was obtained as a result of unexpected
and unanticipated evidence after an assurance by the prosecutor
that no such evidence existed, i.e., a document known as Exhibit
7 (Fifth Amendment, United States Constitution)?
2. Whether petitioner was improperly indicted on two
counts of perjury when in actuality the grand jury was obviously
investigating a single continuing crime and, consequently, only
one count should have been returned?
3. Whether under the doctrine of multiplicity, the nisi prius
court should have dismissed one of the two counts of the
indictment since both counts really charged only a single
offense?
4. Whether the questions posed to petitioner in the grand
jury were material to the investigation?
5. Whether the petitioner received a fair trial?
PARTIES
The .parties in the United States District Court and the
United States Court of Appeals were Robert Bowman,
defendant-appellant, petitioner herein, and the United States of
America, respondent. There have been no change in parties.
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TABLE OF CONTENTS
Cenestines “FRRRNNS iG i eb Sis ices dacka aden ssc
Parties
I COW nice cde aivne ca obugyt bese eee weberin
PE oe eo kick Reo y hee kbe kes t oe unebet ne eu
Constitutional and Statutory Provisions Involved .........
watemamh OF Te: EO AN i akdb oc ce tik Cds ciohac cade areee
e
[
I].
Reasons for Granting the Writ:
The testimony of petitioner before two separate
sittings of the grand jury was not palpably false on
its face, the nisi prius court’s denial of motions to
dismiss the indictment was, therefore, error. This is
reinforced by the fact that in any event Bowman’s
testimony was not material to the matters under
investigation by the grand jury. ..........eeeee-
Petitioner was treated unfairly by the prosecutor.
Not only was his indictment predicated upon
insufficient matter and insufficent evidence in the
grand jury to say nothing of hearsay, but in addition,
the tactics of the Government at trial prejudiced
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Bowman when they suddenly and without prior
notice produced Exhibit 7 which tended to
corroborate the testimony of the important witness
Spinale. This occurred after the prosecutor had
assured petitioner’s counsel that there were no
CHEE Sia x Ree aie bon ee bs cub a vere gee a wh peduete 19
Ill. Since the indictment herein really charged a single
offense in two separate counts, the doctrine of
multiplicity should have compelled the trial judge to
at least dismiss the second count, even assuming,
arguendo, that the first count was viable. ....... 25
A. The court erred in not granting the motions of
the defense and exacerbated this error by
refusing to charge the jury on the issue of
“value” of any item given to Bowman. ...... 29
IN a es El, apa iets mabe sine Ure oe OR ae wed eaeee 29
«
TABLE OF CITATIONS
Cases Cited:
Barbee v. Warden, 331 F. 2d 842 (4 Cir. 1964) .......... 19
Bell v. United States, 349 U.S. 81 (1955) ........cceceees 27
Blair v. United States, 250 U.S. 273, 63 L. Ed. 2d 979 ... II
Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626 ..... II
a
a
iv
Contents
Page
Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595
BUFR ok thks ees o WE ee Che Sale 00> 4cadavuewerans 15
Coopedge v. United States, 369 U.S. 438 ................ 22
Dunn v. United States, 442 U.S. 100, 99 S. Ct. 2190
(1979) see e ence eee e een e sense eeeeeeeseeseseeueees 15
Gebhard v. United States, 422 F. 2d 281 (9th Cir. 1970) .. 27
Oe Wii I CREO PS MD ace dine waacs ee. 6 Oka 6 Rose aS Som. Ll
er i 2 ese, Pe CEE iis cin ¥ te bea nee web ek eam 27
Markham v. United States, 160 U.S. 319 (1895) ......... 13
Masima v. United States, 296 F. 2d 871 (8th Cir. 1961) .. 28
Mesarosh v. United States, 352 U.S. 1 ..... cece eee eee 23
PORE: Ve TROND, SOO ie COE bo ls vb chwedenseeleveenta 19
North Carolina v. Pearce, 395 U.S. 711 (1969) ........... 26
Rewis v. United States, 401 U.S. 808 (1971) ............. 16
Sibron v. New York, 392 U.S. 40 (1968) ...........eeee- 28
Sinclair v. United States, 279 U.S. 263 (1929) ........... 10
United States v. Aloisio, 440 F. 2d 705, cert. denied,
as LT MRE boa k edd peadoevscéds cheesnnee 20
Vv
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Page
United States v. Archer, 486 F. 2d 670 (2d Cir. 1973) ....
ee kia eens Sule lean as ke walede eas « 16, 17, 18
United States v. Arcuri, 405 F. 2d 691 (2 Cir. 1968), cert.
Se Oe SPIEL Er ob Ca «Woe (vince wacavbcecccecas 20
United States v. Bass, 404 U.S. 336 (1971) .............. 16
United States v. Baum, 482 F. 2d 1325 (2 Cir. 1973) ..... 21
United States v. Benedetto, 571 F. 2d 1246 (2 Cir. 1978).. 20
United States v. Birrell, 470 F. 2d 113 (2 Cir. 1972) ...-12, 13
United States v. Cobert, 227 F. Supp. 915 (S.D. Cal.
SE Caine ah eA ae sce buns e bed dalew ose cdbeoe 15
United States v. Cook, 489 F. 2d 286 (9th Cir. 1973) .... 15
United States v. De Cicco, 435 F. 2d 478 (2 Cir. 1970) ... 20
United States v. Di Guanzia, 213 F. Supp. 232 (Ill. 1973).. 24
United States v. Dixon, Docket No. 75-1317 (2d Cir. March
SE, ETE bhi cen Nha ek sake Chek te ceee ve Rees 27
United States v. Doulin, 538 F. 2d 466 (2 Cir. 1976) ... 11, 27
United States v. Doulin, 538 F. 2d 466 (2d Cir.), cert.
ee” AAP Te. Be CAST ov caves cr tide lectacenves 10, 11
United States v. Dunn, 577 F. 2d 119 (10 Cir. 1978) ..... 15
vi
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Page
United States v. Esposito, 358 F. Supp. 1032 (N.D. IIl.
PRON Sip + Carle b nhs baled be ka Vee Cen eae twas Oe 15
United States v. Estepa, 471 F. 2d 1132 (2 Cir.) ......... 20
United States v. Freedman, 445 F. 2d 1220 (2d Cir. 1971)..
Leech urk Me bea bh NAS Y eas eka Caen hemees i0, 11, 12, 13
United States v. Gibson, 310 F. 2d 79 (2 Cir. 1962) ...... 25
United States v. Goodman, 285 F. 2d 378 (C.A. 5. 1960), .
ee ee Oe OF SO So ck cake eee ob adsmnavarces 25
United States v. Gregory, 369 F. 2d 185 (D.C. Cir. 1966).. 21
United States v. Gubelman, 571 F. 2d 1252 (2 Cir. 1978).. 20
United States v. Koonce, 485 F. 2d 374 (8th Cir. 1973) .. 16
United States v. Laikin, 583 F. 2d 968 (3 Cir. 1978) ..... 16
United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955) = 15
United States v. Laut, 17 F.R.D. 31 (S.D.N.Y. 1955) ..... 13
United States v. Lazaros, 480 F. 2d 174 (6th Cir. 1973) .. 28
United States v. Lubomski, 277 F. Supp. 713 (D.C. Ill.
IOOTR soci isar ntl Pibw edeknned ceveabb ee etek canal 25
United States v. Mancuso, 485 F. 2d 275 (2d Cir. 1973) ..
La vada bee G Uk 6 bday seve Rees eeu adhered 10, 13, 28
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United States v. Mamber, 127 F. Supp. 925(D. Mass. 1955) 28
United States v. Marchisio, 344 F. 2d 653 (2d Cir. 1965).. II
United States v. Maze, 414 U.S. 395 (1974) ............. 16
United States v. McFarland, 371 F. 2d 701 (2d Cir. 1966),
Cere; GN BOT tha POO CIGOIP EN cb cine cecscenceces 11
United States v. O’Connor, 580 F. 2d 38 ................ 20
United States v. Pastor, 419 F. Supp. 1318 (D.C.N.Y.
PE SUC EWES Sb Rhee Ae haath sb Usedweeas 20
United States v. Poole, 379 F. 2d 645 (7 Cir. 1967) ...... 19
United States v. Remington, 191 F. 2d 246 (2 Cir. 1951),
Rt GONE Re BET cs Ravkrbuse ccecdaadveseas 23
United States v. Stone, 429 F. 2d 138 (2d Cir. 1970) ..... 10
United States v. Tavoularis, 515 F. 2d 1070 (2d Cir. 1975).. 16
United States v. Taylor, 464 F. 2d 240 (2 Cir. 1972) ... 24, 25
United States v. Toscanino, 500 F. 2d 267 (2d Cir. 1974).. 16
United States v. Wall, 371 F. 2d 398 (6th Cir. 1967) ..... 15
United States v. Whitted, 325 F. Supp. 520(D.C. Neb. 1971) 24
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Statutes Cited:
Se AOE ech de CK st0 swe ndeteeaevecndwckh«nanmeyaes 2
Pe Ee ED 50 6 buh 6c c's Ud bar enenede dacs we pweeweKad 2, 14
SOM as = OP OE ko rd baka salvakios <eemdsagecobaauwes Gens 2
SN EULER. Sack be Uh cwARe hd op ehhaneeeatenuwaearn 2
United States Constitution Cited:
Err) ORME ES a cet avian’ a0 owiccie peeees nce ivnetinnd i, 2
Rules Cited:
Federal Rules of Criminal Procedure:
Be Rein hn SER anes tm Deeds Rhee cds ude aesebe s Gai 26
UE Prk UeNGAeS Ka Ge end esse Ranens Heneeeeeeuscawes 25
Other Authorities Cited:
American Bar Association Standards on the Prosecution
and Defense Function, Sections 5.6(a) and 7.5(a) ..... 20
Aus. 16 Ala Wh IDSC 8. ic a a 28
Note, Civil Disability of Felons, 53 Va. L. Rev. 403 (1967) 28
ix
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Note, Collateral Consequences of a Criminal Conviction,
RS Ves EB I ea awa PUa cece sb ecccccce 28
APPENDIX
Relevant Constitutional and Statutory Provisions ........ la
No.
Supreme Court of the United States
+
October Term, 1980
ROBERT BOWMAN,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
OPINION BELOW
The United States Court of Appeals for the Second Circuit
rendered no written opinion in its affirmance of the judgment of
conviction except that an oral opinion was articulated in open
court, the contents of which have never been reduced to writing.
The decision of the United States Court of Appeals was
rendered the 29th day of January, 1981 and the judgment of
conviction of the District Court was rendered the 30th day of
September, 1980.
JURISDICTION
(a) The judgment of the United States District Court
convicting petitioner of two counts of perjury after trial before
2
Honorable George Pratt, D.J. and a jury was rendered the 30th
day of September, 1980.
(b) By order made the 29th day of January, 1981, the
United States Court of Appeals unanimously affirmed the
judgment of conviction (Van Graafeiland, Kearse, Circuit
Judges and Bramell, D.J.).
(c) Jurisdiction to review the judgment in question by
certiorari is conferred under Title 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The constitutional provision involved is the Due Process
Clause of the Fifth Amendment of the United States
Constitution; statutory provisions involved are 18 U.S.C. §§152,
1623, 1951 (see Appendix, infra).
STATEMENT OF THE CASE
Petitioner Robert Bowman, was summoned before a grand
jury in the Eastern District of New York in October, 1979. He
was again summoned to appear before the grand jury in May of
1980. The indictment which was ultimately returned following
his second appearance before the grand jury charged him inter
alia with giving false testimony in that his answers in response to
certain questions during each appearance was false.
In May of 1980 the petitioner was allegedly given an
opportunity to “recant” certain statements which he had made in
October of 1979, but refused to do so on the grounds that he
was telling the truth.
The petitioner, we maintain, was, therefore, indicted upon
matters of which the grand jury itself was unaware until
substantially after his second appearance before the grand jury.
This is so because the Government called several witnesses such
7’.
3
as Richard Celeiro following petitioner’s second appearance
before the grand jury in an effort to establish the falsity of some
of his testimony before the grand jury.
The foreman of the grand jury, Neil Schwartz, testified that
the grand jury in October of 1979 was conducting a so-called
“John Doe” inquiry as to whether any federal crimes of arson,
bankruptcy, fraud and the like had been committed. The
investigation centered around the fruit and produce businesses,
some of which were located in Rockland County, New York.
The grand jury heard about fifty to sixty witnesses. Bowman had
been asked during his first appearance about alleged bribes
which were under investigation, but Bowman categorically
denied any knowledge of these items.
Petitioner was resummoned before the May, 1980 sitting of
that same grand jury so as to grant him an opportunity to
“recant” his testimony that he was unaware of any bribes. Since
Bowman asserted that he had been telling the truth, there was no
“recantation.”
Schwartz, the foreman, admitted that petitioner was only
being investigated for “bribes.”
In May, 1980, however, the grand jury had been informed
of a shift in emphasis of the investigation to include so-called
“RICO” violations in addition to racketeering.
In May of 1980 certain witnesses, upon whose testimony
petitioner was ultimately indicted for perjury, had not yet even
testified and, consequently, when petitioner left the grand jury in
May of 1980 there was not yet a predicate for the ultimate
indictment which was returned except for questionable evidence
from so-called cooperating Government witnesses. Later
witnesses, such as Celeiro,; were called and the aforesaid
indictment was returned.
It is obvious that unti! the later witnesses were called the
falsity of Bowman's responses were unknown and it is difficult
to understand how it can be said that he committed perjury in
May of 1980 since it is necessarily a retrospective determination.
4
At the trial itself the prosecutor conceded that the only issue
in the case was the alleged false answers of the petitioner (65).!
Archibald Malcolm Chuicchini, testifying for the
prosecution, said that he, together with his father-in-law, ran a
Farmer's Market on Congers Road and Route 304 in
Clarkstown, Rockiand County. Frank Spinale, his father-in-law,
was the manager and overseer of this business (119-123). He
stated that he had testified in the grand jury but was told that he
was not a target of its investigation. This was because he was
cooperating with the Government (124-130).
Although he stated that no promises had been made to him,
nevertheless, because of his cooperation he was not prosecuted
for certain crimes. He stated that petitioner was a building
inspector in the Town of Clarkstown and that Spinale told him
that he would have to pay the petitioner $500 in cash (128-135).
Chuicchini asserted that payments were made on at least
two or three occasions (135-136).
Bowman, Chuicchini recalled, was the building inspector,
and he admitted that there were several obvious building
violations at the time that Bowman came to his establishment
(136).
Chuicchini further conceded that he had lied, on advice of
his attorney, before the grand jury (158-159).
He further conceded that he was the ex-son-in-law of
Spinale, since he and Spinale’s daughter had divorced (160).
Chuicchini asserted that he, personally, was not present
when certain money was given to the petitioner but he was
present when money was placed into an envelope which
allegedly was turned over to the petitioner by someone else
(173).
1. Numerals in parentheses refer to pages of the official court reporter's
minutes of trial unless otherwise indicated.
ss
5
Moreover, he stated that he gave $500 to one “Valente” who
was supposed to give it to the petitioner but Chuicchini
expressed grave doubts that Valente ever paid this money to the
petitioner (181-182).
The petitioner himself never asked Chuicchini for money
while he was at “Archie’s Acres, Inc.”, although he admitted
there were several violations visible to the naked eye (201).
In October of 1976, Chuicchini asserted that he, himself,
handed the petitioner an envelope while Padovani, an employee,
was present, but this was the only time he ever handed money to
Bowman (204-206). He conceded, however, that there was
nothing in the grand jury testimony that he gave that said
anything about handing money to the petitioner, other than on
that one occasion (208-209).
In view of Chuicchini’s admitted prior perjury, the court
should not have permitted the case to go to the jury.
Chuicchini conceded that he himself had not been
prosecuted for perjury, despite his admission that he committed
perjury, supposedly on the advice of his attorney (Joseph
Perviti) (213).
On a later date, Chuicchini recalled that he gave an
envelope to Padovani which was supposed to be given to the
petitioner, but the envelope was returned undelivered (227).
Chuicchini stated that he was fairly certain that certain
moneys given to Valente were probably never turned over to the
petitioner (230).
Angelo Padovani revealed that he was presently employed
by the Parks Department and Schools of the Town of
Clarkstown, but had worked at “Archie’s Acres” as a cook. On
one occasion, he stated, he was given an envelope to give to the
petitioner (236). On another occasion, an envelope with money
in it, supposedly to be delivered to the petitioner, was never
actually delivered and had to be returned to his boss,
Chuicchini, who had given him the envelope in the first place
6
(240-245). He said that on one occasion he observed trucks come
to the premises of “Archie’s Acres” and remove virtually
everything from the premises (247-248). This testimony related
to the bankruptcy fraud committed by Chuicchini and Spinale,
and was really irrelevant to the case in chief, except that it
showed the criminal bent of the witnesses, Chuicchini and
Spinale, which is still irrelevant to this indictment.
Frank Spinale testified that he had been the father-in-law of
Archibald Chuicchini and that he hi:aself had been indicted for
racketeering and that he had made an agreement with the United
States Attorney's office that if he pleaded guilty to one count of
bankruptcy fraud, he would not otherwise be prosecuted (2.5-
2.11).
In 1974, he stated that his son-in-law, with him as ‘manager,
opened a fruit market in Rockland County known as “Archie’s
Acres” (2.14).
When that business opened he met the petitioner, who
identified himself as a building inspector and gave Bowman $500
in cash on the first day of business (2.16-2.23).
It was only on this opening day that he can be certain that
he ever gave money to the petitioner (2.25).
Although the prosecution had stated no documents were to
be offered in evidence, and thus gave no pretrial discovery,
nevertheless, the witness Spinale testified that he had “suddenly”
found a document the day before he testified, which became
“Government's Exhibit 7”, which, over objection, was ultimately
' admitted against the petitioner. These were notes allegedly made
contemporaneously, or almost contemporaneously, by Spinale
at the time of the opening of “Archie’s Acres”, which included
items of expenses embracing the $500 allegedly given to the
petitioner (2.33, 2.121, 2.134).
The court, incidentally, denied a requested continuance to
the petitioner, because of this unexpected evidence (2.122-2.124).
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7
Spinale also stated that petitioner had an interest in “Tony’s
Lobster House”, and that occasionally he took fruits and
vegetables from “Archie’s Acres” without paying therefor, to
bring to “Tony’s Lobster House” (2.127-2.130).
Richard Celeiro testified that he was a butcher and chef by
trade and that he had operated a restaurant in Rockland County
at one time (2.150-2.157). He asserted that he had had problems
with petitioner Bowman, who was the building inspector, and
that as a result of that, retained a lawyer by the name of Don
Tracy (2.157-2.158).
Allegedly the petitioner was. giving him a difficult time
about the amount of cars that could be parked at his restaurant.
Tracy allegedly told Celeiro that he would have to give $1,000 in
cash to the petitioner and, consequently, asked for a $1,500
retainer for himself and $1,000 cash supposedly for Bowman
(2.161). This money was given to Tracy in the latter’s office, but
prior to it being given, Tracy had ordered Celeiro’s wife to leave
the room (2.162).
Celeiro asserted that he later encountered Bowman, who
admitted that Tracy had given him $500 (2.171). Celeiro recalled
that Bowman had ordered him to reduce the seating capacity in
his restaurant, coupled with the difficulty in parking spaces,
which Celeiro said resulted in his ultimately going bankrupt
(2.171, 2.172).
Donna Lee Celeiro asserted that she recalled Tracy asking
her to leave the room when her husband supposedly gave him
the money for Bowman (2.236-2.237). Moreover, she asserted
that she was told by someone that Tracy “was the man to see” to
help with Bowman (2.240).
A handwriting expert by the name of Mrs. Frankel testified
concerning handwriting exemplars and doubted that certain
writings containing the name “Bowman” were in fact written as
claimed (3.181). She said the handwriting differed from
Spinale’s.
Robert Bowman, testifying in his own behalf, stated that he
had two children, was married, had spent over one and a half
years in the Army and two years in college, and had a
background as a builder. In 1970 he became a building inspector
in Clarkstown and he was responsible for the enforcement of
certain building codes (3.14). He asserted that his duties were
strictly ministerial and that he had no discretion to vary any of
the codes or zoning ordinances (3.221).
He stated that he recalled a problem at Celeiro’s restaurant
cohcerning seating capacity and parking, but that he could do
nothing about it because he had to enforce the building and
zoning ordinances strictly (3.219, 3.226, 3.228). He asserted that
Celeiro had signed an affidavit that only 140 seats would be
used, but then improperly included 200 seats in the restaurant
(3.229, 3.230).
Bowman asserted that he knew Don Tracy and had worked
with him at one time, because Tracy had been counsel to the
Zoning Board (3.256).
The petitioner categorically denied that he had received
money or anything of value from Spinale, Chuicchini, or anyone
else (3.274-3.275).
Chester Lubeck testified that he had made the applications
on behalf of Celeiro for variances and building permits (2.265).
Hartford Kittel, an F.B.I. agent specializing in handwriting,
examined “Exhibit 7”, which was the handwritten notes of the
witness Spinale, and said that it was impossible to tell when
“Bow” and “man” had been written — it could have been four
years ago or yesterday (4.159).
He also stated that there were unexplained variations in the
name “Frank Spinale” and “Frank P. Spinale” (4.161, 4.164).
Don Tracy testified for the defense and categorically denied
ever taking cash or any other money to give to Bowman, but
said he only received his own fee of $1,500 from Celeiro (3.48-
3.59).
9
David Mellon, a police officer with the Town of
Clarkstown, said that Mrs. Celeiro had complained about
certain parking problems she had. She never mentioned
anything about bribery.
Martin Pignatelli, also a police officer in Rockland County,
stated that there were many traffic complaints on Route 304
about people trying to enter and leave “Archie’s Acres”. He had
never seen the petitioner get any white envelopes in the parking
lot near the police station (3.164).
The police testimony revealed that the petitioner did not
own any restaurant in Rockland County and that they were
unaware of any restaurant in which he may have had an interest.
The petitioner himself had denied all allegations of
obtaining free produce for “Tony’s Lobster House”.
REASONS FOR GRANTING THE WRIT
I.
THE TESTIMONY OF PETITIONER BEFORE TWO
SEPARATE SITTINGS OF THE GRAND JURY WAS NOT
PALPABLY FALSE ON ITS FACE. THE WN/S/ PRIUS
COURT’S DENIAL OF MOTIONS TO DISMISS THE
INDICTMENT WAS, THEREFORE, ERROR. THIS IS
REINFORCED BY THE FACT THAT IN ANY EVENT
BOWMAN’S TESTIMONY WAS NOT MATERIAL TO THE
MATTERS UNDER INVESTIGATION BY THE GRAND
JURY.
The petitioner had been subpoenaed before a grand jury in
the Eastern District of New York in October of 1979 and then
again in May of 1980 — specifically, October 9, 1979 and May
6, 1980, respectively. The indictment indicates that the grand
jury was conducting an investigation “into possible violations of
the United States laws prohibiting bankruptcy fraud... and
other federal statutes with a purpose of determining whether any
persons had violated such statutes.” The aforesaid language
pertains to Count One of the indictment.
10
The grand jury was also inquiring as to whether the
bankrupt corporation known as “Archie’s Acres, Inc.” had been
unlawfully dissipated prior to the bankruptcy; and “in particular
whether assets had been used for illegal payments to public
officials.”
Count Two of the indictment differed from Count One. in
that it declares that the grand jury was investigating “prohibiting
false declarations before a grand jury” and “obstruction of
commerce by extortion”.
On both of his appearances before the grand venire, the
petitioner testified completely and was asked on both occasions
whether he had accepted money from certain individuals
including Angelo Padovani, Archie Chuicchini, Frank Spinale
and Richard Celeiro. In all circumstances Bowman categorically
denied that he had done so.
It is not disputed that very little testimony before the grand
jury had been adduced incriminating the petitioner until after his
second appearance.
Since the May 6, 1980 appearance before the grand jury was
to determine whether petitioner had lied during the October 9,
1979 appearance, it was improper and immaterial to discuss with
him anything concerning extortion, “RICO” violations, or the
like, since that was never the subject of his subpoena nor of the
investigation about which he was testifying in October of 1979.
It appears, from the record, that many witiesses testified
after the last appearance of the petitioner before the grand jury.
' Materiality is an essential element to be established by the
Government in proving the offense charged in each count of the
indictment. United States v. Mancuso, 485 F. 2d 275, 280 (2d
Cir. 1973); United States v. Stone, 429 F. 2d 138, 140 (2d Cir.
1970); United States v. Freedman, 445 F. 2d 1220, 1227 (2d Cir.
1971). It is also clear that the materiality of the allegedly false
declarations is strictly a matter of law to be determined by the
court. Sinclair v. United States, 279 U.S. 263, 298-99 (1929);
United States v. Doulin, 538 F. 2d 466, 470 (2d Cir.), cert.
denied, 429 U.S. 895 (1976); United States v. McFarland, 371 F.
2d 701, 703 n.3 (2d Cir. 1966), cert. denied, 387 U.S. 906 (1967);
United States v. Marchisio, 344 F. 2d 653, 665 (2d Cir. 1965).
The Second Circuit has established clear standards for
making determinations with respect to the materiality of
allegedly false statements:
“We do not believe and it is not seriously argued,
’ that every knowingly false statement under oath
is perjurious, for such a ruling would eliminate
the materiality requirement. /n order for a
knowingly false statement to be material... it
must be shown that a truthful answer would have
been of sufficient probative importance so that at
a minimum further fruitful investigation would
have occurred.” United States v. Freedman, 445
F. 2d at 1226-27 (citations omitted) (emphasis
added).
It is, of course, true that no grand jury, including those
which examined petitioner, is granted an unlimited charter.
Thus, a grand jury may not conduct an investigation in the
nature of a meddlesome inquiry (Hale v. Henkel, 201 U.S. 43).
Its powers are ultimately “subject to the supervision of a
judge,” (Branzburg v. Hayes, 408 U.S. 665, 688, 33 L. Ed. 2d
626).
On the other hand, a realistic appraisal of the grand jury’s
task compels recognition of the fact that at least at the outset,
the eventual scope and direction of its inquiry is often only
hazily perceived and tentatively defined (Blair v. United States,
250 U.S. 273, 282, 63 L. Ed. 2d 979).
In United States v. Doulin, 538 F. 2d 466 at 469, 470 (2 Cir.
1976), the court explained:
“It is in keeping with the grand jury’s
historic function as a shield against arbitrary
accusations to call before it persons suspected of
12
criminal activity, so that the investigation can be
complete. This is true whether the grand jury
embarks upon an inquiry focused upon
individuals suspected of wrongdoing, or is
directed at persons suspected of no misconduct
but who may be able to provide links in a chain
of evidence relating to criminal conduct of
others, or is centered upon broader problems of
concern to society. It is entirely appropriate
indeed imperative—to summon individuals who
may be able to illuminate the shadowy precincts
of corruption and crime. (Emphasis added.)
United States v. Mandujano, 425 U.S. 564, 96 S.
Ct. 1768, 1775, 48 L. Ed. 2d 212 (1976).
The Congressional decision to restrict the
coverage of §1623 to ‘false material
declaration{s] thus reflects an accommodation of
two competing values: It is designed to give the
grand jury the latitude necessary to perform its
salutary role while at the same time safeguarding
the rights of the individual against state
encroachment. To effectuate these twin goals, the
now well-settled test of maturity, first expressed
by this court in Carroll v. United States, 16 F.2d
951, 953 (2d Cir.), cert. denied, 273 U.S. 763, 47
S. Ct. 477, 71 L. Ed. 880 (1927), is whether the
perjurious testimony has ‘a natural effect or
tendency to influence, impede or dissuade the
grand jury from pursuing its investigation.’ A
conviction under §1623 may therefore be
sustained upon a showing that a truthful answer
to the grand jury’s question could conceivably
have furthered its inquiry by providing ‘an
evidentiary stone in the larger edifice.’ United
States v. Mancuso, 485 F. 2d 275 (2d Cir. 1973).”
In United States v. Freedman, 445 F. 2d 1220, 1227 (2 Cir.
1971), and United States v. Birrei!, 470 F. 2d 113, 115, n.1 (2
Cir. 1972), the Government was required to prove that further
13
fruitful investigation would have occurred had a truthful answer
been given in order to carry out its burden to establish
materiality.
While neither Freedman nor Birrell specifically referred to
grand jury proceedings, there is no reason why the same
standards should not be maintained. (cf, United States v.
Mancuso, 485 F. 2d 275 at 280.)
We maintain further that the indictment fails to allege any
material connection except as a conclusion between the
testimony sought from the petitioner and the “matters directly in
issue”.
The failure to allege any such material connection, except as
a conclusion or to “tie” the allegedly false statements to the
“matters directly in issue” is necessarily “fatal” to a subsequent
prosecution for such allegedly false statements (United States v.
Freedman, 445 F. 2d at 1227).
The conclusory allegation that the testimony concerning
payments allegedly made to petitioner were material is clearly
insufficient.
“{I}t ‘is undoubtedly necessary that it should
appear on the face of the indictment that the false
allegations were material to the matter in
issue. ... The facts set forth as falsely . .. sworn
to should be sufficient in themselves to show such
materiality.’” United States v. Laut, 17 F.R.D.
31, 35 (S.D.N.Y. 1955) (emphasis added) [citing
Markham v. United States, 160 U.S. 319, 325
(1895)].
“Such facts may ‘not be left to surmise or to be
reached by way of inference or argument.’ And,
where false statements charged are not even
probably material, the indictment may be
dismissed without putting defendant to the mere
ceremony of trial.” 17 F.R.D. at 35-36 (citations
omitted) (emphasis added).
14
The perjury in this case is not spelled out at all by a
comparison of Bowman’s testimony on October 9, 1979, before
the grand jury and his subsequent appearance on May 6, 1980.
If there is perjury at all. it necessarily had to rest upon
dichotomies and discrepancies between his testimony on those
two dates.
Apparently recognizing that no viable indictment could be
sustained predicated upon a comparison of Bowman's testimony
on his two appearances before the grand jury, the prosecutor
called witnesses subsequent to Bowman’s appearance and
elicited testimony from cooperating witnesses, such as Richard
Celeiro, that he had in fact received payments from them. This,
we maintain, was unfair and also was not within the predicate of
the grand jury’s investigation as spelled out in Bowman's
October 9, 1979 and May 6, 1980 appearances. In fact, the grand
jury obviously had no such testimony before it on October 9,
1979 or May 6, 1980, and, consequently, the indictment which
charges that the witness gave false testimony on those dates
cannot be supported by anything extant in the grand jury
minutes up to May 6, 1980.
Thus, we perceive the subsequent testimony of such
witnesses as Celeiro and others to have been matters ancillary to
the grand jury investigation of Bowman.
_ Since the indictment and the proof at trial both concerned
petitioner’s testimony in his two appearances before the grand
jury, we maintain that a conviction cannot be sustained by virtue
of testimony adduced subsequent to the petitioner's last
appearance before the grand jury, within the meaning of 18
U.S.C. §1623.
Both the language and legislative history of the statute
indicate that Congress contemplated a more formal proceeding
than that which occurred here. The petitioner received no notice
that there had been testimony contrary to his allegations, since
there had been no such testimony up to that time. We maintain,
therefore, that this indictment does not come within the meaning
15 :
and congressional intent of 18 U.S.C. §1623 [Dunn v. United
States, 442 U.S. 100, 99-S. Ct. 2190 (1979), reversing United
States v. Dunn, 577 F. 2d 119 (10 Cir. 1978)].
Moreover, since the grand jury had, presumably, received
no evidence between October 9, i979 and May 6, 1980
contradicting petitioner, coupled with the fact that the questions
asked on the two different occasions were objectively not the
same because presumably they involved two different
investigations, the petitioner was giving “literally truthful”
answers [Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595
(1973)].
Under Bronston v. United States, 409 U.S. 352 (1973) the
Supreme Court concluded that if the questions asked, leading to
the allegedly perjurious answer, are not specific or if multiple
interpretations can be drawn from the questions, there can be no
perjury. See also, United States v. Cook, 489 F. 2d 286 (9th Cir.
1973); United States v. Wail, 371 F. 2d 398 (6th Cir. 1967);
United States v. Esposito, 358 F. Supp. 1032 (N.D. Ill. 1973);
United States v. Cobert, 227 F. Supp. 915 (S.D. Cal. 1964);
United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955).
In Bronston, the Court declared:
“Whether an answer is true must be determined
with reference to the question it purports to
answer, not in isolation. An unresponsive answer
is unique in this respect because its
unresponsiveness by definition prevents its
truthfulness from) being tested in the context of
the question — unless there is to be speculation
as to what the unresponsive answer ‘implies’”
(409 U.S. 355 n.3).
The Supreme Court then went on to stress:
“The burden is on the questioner to pin the
witness down to the specific object of the
questioner’s inquiry (citing authority)” (409 U.S.
at 360).
16
As was held in United States v. Laikin, 583 F. 2d 968 (3 Cir.
1978), the Government cannot argue around a mistake it could
have voided by proper procedures and proper predicates for the
questions that were put to petitioner.
In United States v. Koonce, 485 F. 2d 374 (8th Cir. 1973),
the court concluded that the Government must prove the
materiality of a defendant's statement before the grand jury at
the time of the indictment.
The court then went on to state:
“Essentially, we are left with the allegations of
the indictment, unsupported by proof at the trial.
{ A] general allegation of materiality is sufficient
and it is not necessary to encumber the
indictment with, what would amount to be, the
Government's argument why it believes the
statements were material. The Government, if it
wishes to sustain its case, must prove, upon the
trial of the case, why and how these particular
statements were material’’’ (citing
authorities). (485 F. 2d at 37). (Emphasis
ours.)
Here the Government had the duty of proving beyond a
reasonable doubt the materiality of the question the petitioner
allegedly answered falsely since the materiality was not apparent
from the questions themselves. This was never accomplished.
Recently, the Supreme Court of the United States, and
other circuits have brought a halt to the alarming trend of
overextending federal criminal jurisdiction. United States v.
Maze, 414 U.S. 395 (1974); United States v. Bass, 404 U.S. 336
(1971); Rewis v. United States, 401 U.S. 808 (1971); United
States v. Tavoularis, 515 F. 2d 1070 (2d Cir. 1975); United
States v. Toscanino, 500 F. 2d 267 (2d Cir. 1974); United States
v. Archer, 486 F. 2d 670 (2d Cir. 1973).
This Court in Archer lashed out at federal prosecutors who
contrived federal jurisdiction in order to herd their victims into
17
‘federal court, admonishing them against these tactics. In Archer,
the court recognized:
“There is no evidence that, at the time of the
February 1972 meeting, the federal law
enforcement officers had any information that
the supposed corruption of the Queens County
District Attorney's office involved violations of
the Travel Act, 18 U.S.C. §1952; the hope was
rather that if the playing of the Bario-Murano
scenario would induce corrupt activity, some
interstate or foreign element might occur or, if
not, might be injected. Today there is widespread
concern whether the federal criminal law has not
outrun reasonable bounds...” (486 F. 2d at
677).
In dealing with the Archer case, the court noted:
“Although §207 of the Commission's Proposed
Code, entitled ‘Discretionary Restraints on
Exercise of Concurrent Jurisdiction,’ includes
among the cases where ‘a substantial federal
interest exists’...it is not clear that this
comprehends the case where federal investigators
have no reason to suspect any violation of federal
law. Even if the proposed code section was
intended to cover such cases, we are not sure we
‘would agree that the federal interest should
extend that far” (486 F. 2d at 678).
Significantly, the court stressed in Archer:
“While responsibility for keeping federal criminal
investigations and prosecutions within the
bounds appropriate on the assumptions inherent
in a federal system should rest, in the first
instance, with United States Attorneys... , we
are not prepared to say that, absent
Congressional limitation, a federal court may
never dismiss a prosecution as an abuse of federal
power...” (/d.)
18
The Government never sought certiorari in Archer.
Although in Archer the court reversed on other grounds,
this language bears directly on the case at bar. The court did
stress after carefully cataloging all the recent decisions where
federal jurisdiction was based on flimsy grounds to say the least:
“Manufactured federal jurisdiction is even more
offensive in criminal than in civil proceedings
(citing authority). [It] ‘is a reflection on the
federal judicial system and brings it into
disrepute”” (486 F. 2d at 682).
Accordingly, the court concluded that the telephone calls
utilized in Archer were “insufficient to transform this sordid,.
federally provoked incident of local corruption into a crime
against the United States” (486 F. 2d at 683).
Despite the court’s carefully designed warning, Judge
Friendly’s melancholy forecast has all too soon been fulfilled.
This case, more than any other, confirms our worst suspicions of
how federal jurisdiction can be grossly overextended and the
powers of federal grand juries grievously abused.
19
PETITIONER WAS TREATED UNFAIRLY BY THE
PROSECUTOR. NOT ONLY WAS HIS INDICTMENT
PREDICATED UPON INSUFFICIENT MATTER AND
INSUFFICIENT EVIDENCE IN THE GRAND JURY TO
SAY NOTHING OF HEARSAY, BUT IN ADDITION, THE
TACTICS OF THE GOVERNMENT AT TRIAL
PREJUDICED BOWMAN WHEN THEY SUDDENLY AND
WITHOUT PRIOR NOTICE PRODUCED EXHIBIT 7
WHICH TENDED TO CORROBORATE THE TESTIMONY
OF THE IMPORTANT WITNESS SPINALE. THIS
OCCURRED AFTER THE PROSECUTOR HAD ASSURED
PETITIONER’S COUNSEL THAT THERE WERE NO
EXHIBITS.
The witness Spinale had made a deal with the Government
and was permitted to plead guilty to reduced charges in
exchange for his cooperation.
The preparation for trial was preceded by discovery
motions and representations were made to defense counsel that
there were no exhibits. So, it was like “a bolt out of the blue”
that the petitioner was suddenly confronted with an alleged
written memo by the Government's witness Spinale indicating
that he had made a $500 payoff to Bowman several years earlier.
To. say that this was “trial by ambush” would be an
understatement. It was, in addition, obvious that Spinale had
fabricated this item because he claimed to have blundered across
it a day or so before he was to testify despite the fact that he had
allegedly previously turned over everything he knew about the’
case.
We submit that the prosecutor should not have introduced
the exhibit and that a full hearing should have been held before
it was admitted [see Napue v. Illinois, 360 U.S. 264 and United
States v. Poole, 379 F. 2d 645 (7 Cir. 1967)]. Indeed, some
courts have granted new trials to defendants even where the
prosecutor was unaware of the falsity of the evidence [see Barbee
v. Warden, 331 F. 2d 842 (4 Cir. 1964)]. The use of evidence
20
which appears to be false or manufactured is contrary to the
American Bar Association Standards on the Prosecution and
Defense Function [Sections 5.6(a) and 7.5(a)].
As we have indicated previously, the prosecution had little
hard evidence at all of perjury when the petitioner testified the
second time before the grand jury on May 6, 1980. The fact that
they may have had, and of necessity only could have had,
hearsay declarations about possible perjury on the second count
is insufficient to have warranted an indictment. In this circuit,
the law is clear that where better evidence is available, it is not
permissible for the prosecution to use hearsay. in the case at bar,
they could have had the testimony of the witnesses such as
Celeiro, which they did not have at the time of the second
appearance by Bowman before the grand jury.
Accordingly, we maintain that under such cases as United
States v. Estepa, 471 F. 2d 1132 (2 Cir.), United States v.
Aloisio, 440 F. 2d 705, cert. denied, 404 U.S. 824 (7 Cir.), and
United States v. Arcuri, 405 F. 2d 691 (2 Cir. 1968), cert. denied,
395 U.S. 913, the procedures followed here were improper.
: The incisive opinion of Judge Weinstein in United States v.
Arcuri in the District Court, 282 F. Supp. 347, is extremely
instructive, especially since the court affirmed it. See also,
United States v. Pastor, 419 F. Supp. 1318 (D.C.N.Y. 1976).
In addition, it appears herein that during the grand jury
proceedings, the prosecutor, in essence, impugned the
truthfulness, of the witness testifying and thus prejudiced the
petitioner. The result was to characterize the petitioner in
essence as a “bad man”, thereby encouraging the indictment.
[See United States v. O’Connor, 580 F. 2d 38; United States v.
Benedetto, 571 F..2d 1246 (2 Cir. 1978); United States v.
Gubelman, 571 F. 2d 1252 (2 Cir. 1978); and United States v.
DeCicco, 435 F. 2d 478 (2 Cir. 1970)].
With respect to the sudden adduction of Exhibit 7, we
believe that it is not believable that Spinale suddenly blundered
across this material.
‘ 21
We maintain that it is not conceivable that this evidence
was unknown to the prosecutor. It was, frankly, consistent with
the conduct of the grand jury proceeding to have adduced this at
trial. Similar types of what we describe as “unfair tactics” were
employed.
In United States v. Gregory, 369 F. 2d 185 (D.C. Cir. 1966),
the Court cf Appeals aptly condemned such tactics, referring to
them as an “evidential harpoon”:
“... The volunteering of inadmissible
testimony prejudicial to the defendant has been
condemned time and again by both state and
federal courts. For example, in Wright v. State,
Okl. Cr. App., 325 P. 2d 1089, 1093 (1958),
where a law enforcement officer injected this type
of prejudicial testimony, not twice as here, but
only once, the court stated:
‘This type of testimony has often been referred to
as an “evidential harpoon” that has been wilfully
jabbed into the defendant and then jerked out by
an admonition to the jury not to consider the
same. This court has never condoned, but often
criticized a witness being intoxicated with
eagerness in an all out effort to obtain a
conviction. ... Officers must be aware that an
overzealous attitude is, in most instances,
detrimental to the prosecution and often results
in a retrial of the case at considerable expense to
the state.’ "2
Furthermore, this also smacked of a trial “by ambush”
which the court has condemned time and again. In a case argued
by the writer of this brief, United States v. Baum, 482 F.2d 1325
(2 Cir. 1973), the court aptly observed that a reversal was
warranted when the prosecutor suddenly revealed certain
testimony which had not been disclosed to the defense
previously and which in essence smacked of a trial “by ambush”.
2. Here an experienced prosecutor did this.
22
“The failure to reveal Greenhalgh’s identity until
he was presented as a witness, confronted the
trial judge with the hard choice of interruption of
the trial or denial to the defense of a reasonable
opportunity of meeting the severe impact of this
aspect of the prosecutor’s evidence. Such tactics
were condemned, and called for the reversal in
United States v. Kelly, 420 F. 2d 26, 29 (2d Cir.
1969). In the language of Judge Smith ‘The
course of the government smacks too much of a
trial by ambush, in violation of the rules.’ To 'be
sure, Baum’s attorney did not make a very
forceful showing in the district court of what
cross-examination or rebuttal material he could
secure. But in a case so close as this, we would
rather give the defendant the benefit of the doubt
than let the Government reap even a slight
possibility of benefit from what we regard as a
lack of candor unworthy of a prosecutor.
Here, no reason for nondisclosure was advanced
by the government. Greenhalgh’s testimony was
crucial to the prosecution; it was equally crucial
to the defense. Cf. Roviaro v. United States, 353
U.S. 53, 60, 77 S. Ct. 623, | L. Ed. 2d 639 (1957);
United States ex rel. Wilkins, 326 F.2d 135, 140
(2d Cir. 1964)” (emphasis ours).
See too, Coopedge v. United States, 369 U.S. 438, where
the Supreme Court of the United States cautioned (id. at 449):
“When society acts to deprive one of its members
of life, liberty or property, it takes its most
awesome steps. No general respect for, nor
adherence to, the law as a whole can well be
expected without need for prompt, eminently fair
and sober criminal law procedures. The methods
we employ in the enforcement of our criminal
law have aptly been called the measures by which
the quality of our civilization may be judged.”
(Emphasis ours.)
23
In Mesarosh v. United States, 352 U.S. 1, 9, 14, the
Supreme Court reminded prosecutors that the federal courts
have supervisory powers over the conduct of criminal trials.
Thus, the Supreme Court declared:
“This is a federal criminal case, and this Court
has supervisory jurisdiction over the proceedings
of the federal courts. If it has any duty to
perform in this regard, it is to see that the waters
of justice are not poiluted. Pollution having
taken place here, the condition should be
remedied at the earliest opportunity.”
We have pointed out previously in this brief that the crime,
if any, committed by the witness Bowman, was a local
transgression at the most. The testimony about an alleged
payment to him, or payments to him, really had no place in this
grand jury proceeding. The grand jury was investigating “RICO”
violations, but did not tell that to Bowman. Indeed, they had
indicated that they were investigating only bankruptcy fraud,
and in that connection, possible bribery to public officials. In
addition, they were perhaps investigating an arson. There was no
indication, as suddenly appeared on the second occasion when
Bowman was subpoenaed to testify, that the inquiry related to
other subject matter.
In United States v. Remington, 191 F. 2d 246 (2 Cir. 1951),
cert. denied, 343 U.S. 907, this Court held that it was an abuse
of the process to convene a grand jury for the purpose of
intimidating a witness. There is no doubt that in the case at bar
the testimony of Bowan could not have related to bankruptcy
fraud or “RICO” violations or the like. They were trying to get
him to say that illegal payments had been made, and they were
quite certain that he would repeat his testimony of his October
appearance, and yet he was summoned before a second grand
jury, we submit solely to harass and intimidate him. The
testimony sought was wholly irrelevant to the matter under
investigation, as we have previously detailed.
The petitioner was questioned during the case about a
number of personal aspects of his life, which we believe were
calculated to prejudice the jurors against him. This, we submit,
24
warrants dismissal of the indictment [United States v. Whitted,
325 F. Supp. 520 (D.C. Neb. 1971); and United States v.
DiGuanzia, 213 F. Supp. 232 (Ill. 1973)].
We maintain further that the evidence in the case at bar was
insufficient to have warranted presentment to the jury at all. The
court should have dismissed it on the grounds of irrelevancy and
insufficiency of evidence and on the other grounds alleged
herein. This would be in accord with this court’s decision in
United States v. Taylor, 464 F. 2d 240 (2 Cir. 1972).
In Taylor, this court explained, inter alia, at 242:
“It is, of course, a fundamental of the jury
trial guaranteed by the Constitution that the jury
acts, not at large, but under the supervision of a
judge. See Capital Traction Company v. Hof, 174
U.S. 1, 13-14, 19 S. Ct. 580, 43 L. Ed. 873 (1899).
Before submitting the case to the jury, the judge
must determine whether the proponent has
adduced evidence sufficient to warrant a verdict
in his favor. Dean Wigmore considered, 9
Evidence § 2494 at 299 (3d ed. 1940), the best
statement of the test to be that of Mr. Justice
Brett in Bridges v. Railway Co. [1874] L.R. 7
H.L. 213, 233:
[A]re there facts in evidence which if
unanswered would justify men of ordinary reason
and fairness in affirming the question which the
Plaintiff is bound to maintain?
It would seem at first blush—and we think
also at second—that more ‘facts in evidence’ are
needed for the judge to allow men, and now
women, ‘of ordinary reason and fairness’ to
affirm the question the proponent ‘is bound to
maintain’ when the proponent is required to
establish this not merely by a preponderance of
the evidence but, as all agree to be true in a
criminal case, beyond a reasonable doubt.
Indeed, the latter standard has recently been held
25
to be constitutionally required in criminal cases.
In re Winship, 397 U.S. 358, 361-364, 90 S. Ct.
1068, 25 L. Ed. 2d 368 (1970). We do not find a
satisfying explanation in the Feinberg opinion
why the judge should not place this higher
burden on the prosecution in criminal
proceedings before sending the case to the jury.”
In the case at bar, we submit that the trial court had ample
reason to grant the timely motion made by defense counsel
under the Taylor case, to preclitde this case from going to the
jury altogether.
SINCE THE INDICTMENT HEREIN REALLY
CHARGED A SINGLE OFFENSE IN TWO SEPARATE
COUNTS, THE DOCTRINE OF MULTIPLICITY SHOULD
HAVE COMPELLED THE TRIAL JUDGE TO AT LEAST
DISMISS THE SECOND COUNT, EVEN ASSUMING,
ARGUENDO, THAT THE FIRST COUNT WAS VIABLE.
Three terms are often used and confused in connection with
criminal joinder, and these are “misjoinder, duplicity, and
multiplicity”. Misjoinder is the inclusion in a single indictment
of offenses or defendants that Rule 8 does not permit to be
joined. [United States v. Goodman, 285 F. 2d 378, 379 (C.A. 5,
ee cert. denied, 366 U.S. 930].
Duplicity is the joining in a single count of two or more
distinct and separate offenses. [United States v. Gibson, 310 F.
2d 79, 80 (2 Cir. 1962)].
Multiplicity is the charging of a single offense in several
counts [United States v. Lubomski, 277 F. Supp. 713, 716, n.2
(D.C. Ill. 1967).
The record is replete with arguments and motions by the
defense that a single charge was warranted and that the
indictment was multiplicitious, because really only one act of
perjury could be alleged.
26
While we strenuously maintain that no perjury was spelled
out because the petitioner’s answers on both occasions were
consistent and the record before the grand jury on May 6, 1980
showed no contradiction, we nevertheless submit that under any
circumstances only one count was warranted. The petitioner
stated that he received no payments (bribes) from anyone and
that covered the entire gamut of the questioning. The refinement
of that question and answer by dissecting it into several different
questions, all pertaining to the same issue, did not warrant the
adding of any counts.
That Bowman was prejudiced by the multiple counts is seen
from the fact that his fines were consecutive rather than
concurrent, which is one aspect of punishment. The entire thrust
of the questioning was aimed at determining whether Bowman
received a bribe or bribes. His categorical answer that he did not
covered the entire gamut of questioning.
The vice of multiplicity is the charging of a single crime in
multiple counts. This is a violation of Rule 4 of the Federal
Rules of Criminal Procedure because of misjoinder of counts.
The virtue of that rule is that it diminishes the probability of
double punishment and the obliquy of multiple charges for the
same alleged misconduct. [North Carolina v. Pearce, 395 U.S.
711 (1969)].
Thus it was a substantial error of due process proportions
for the trial court to compel petitioner to proceed to trial under
fragmented charges. The prejudice derives from the fact that the
duplication of charges always magnifies criminal liability in the
eyes of the jury.
The concurrency of prison sentences notwithstanding, may
very well have impelled the court to impose a more severe
sentence because of the multiple counts and, as we have already
indicated, resulted in a double fine.
The legal realm of multiplicity is sparsely populated with
legal authorities. For instance, this Court has charted a course
across virtually every province of the criminal law and yet it has
27
not spoken on the subject of multiplicity.3 A sustained judicial
neutrality on this crucial issue is bound to sponsor further abuse.
This case, more than any other, offers the court an excellent
opportunity for taking corrective action. :
The test applied by our courts to determine the number of
separate criminal offenses that can be carved out of a single
transaction is whether the same evidence is required to sustain
each charge. If not, then the fact that a number of charges relate
to and grow out of one transaction does not make a single
offense where two are defined by statute. Bell v. United States,
349 U.S. 81 (1955); In re Snow, 120 U.S. 274 (1887).
Prosecutors should not be allowed to scramble or garble
their questions in such a fashion so as to proliferate perjury
charges, as demonstrated in this case. In 1970, the Ninth Circuit
came directly to grips with this issue in Gebhard v. United
States, 422 F. 2d 281 (9th Cir. 1970), dealing with the famous
Friar’s Club fraud in Los Angeles. There the court, in a
locomotive opinion, that cuts straight through the ambiguities of
multiplicity, stressed in unmistakable language:
“On the other hand, we do not think it proper
that the government bludgeon a witness who is
lying by repeating and rephrasing the same
question, thus creating more possible perjury
counts” (422 F. 2d at 289-90).
After illustrating the counts it found to be multiplicitious,
the court decreed: ,
“We are of the opinion that only one count in
each of these groups should be allowed to stand.
Otherwise a prosecutor could run up a possible
perjury sentence indefinitely merely by repeating
the same question. Single punishment for a single
lie should suffice” (422 F. 2d at 290).
3. In United States v. Dixon, Docket No. 75-1317 (2d Cir., March 12,
1976), the court was on the verge of finding the duplication of SEC charges in
mail fraud counts as multiplicitious but avoided that determination by
dismissing the mail fraud counts because of insufficient proof. But see United
States v. Doolan, supra.
28
The Sixth and Eighth Circuits have come to the same
conclusion, holding that the offense of perjury may not be
compounded by thé repetitious asking of the same question.
United States v. Lazaros, 480 F. 2d 174 (6th Cir. 1973); Masinia
v. United States, 296 F. 2d 871 (8th Cir. 1961).
The major reason that the prosecution should be required
to make a selection among multiplicitious counts is to promote
an efficient trial and avoid the risk that a “prolix pleading may
have some psychological effect upon a jury by suggesting to it
that defendant has committed not one but several crimes”.
United States v. Mamber, 127 F. Supp. 925, 927 (D. Mass.
1955).
Our case fits well within these authorities. For the evidence
needed to convict under each of these counts was identical.
Accordingly, petitioner has met the test dealing with
multiplicity and is entitled to a reversal.*
The trial court's failure to dismiss the superfluous counts of
this indictment gravely prejudiced the petitioner and must have
influenced the court when it imposed sentence, authorizing a
reversal of petitioner's conviction. United States v. Mancuso,
485 F. 2d 275 (2d Cir. 1973). Surely, the policy served by the
rule against-multiplicity would be better promoted if the court
struck down such defective indictments. Otherwise, the doctrine
against multiplicity will become a myth. For all these reasons,
the petitioner's judgment of conviction should be reversed and a
new trial should be granted.
4. Although admittedly there is less anxiety and ordeal when the blows of
criminal accusation are delivered at once, one can hardly say that one is not
unduly punished, hurt or embarrassed when a defendant receives several
convictions. The collateral effects of a conviction, independent of the sentence,
are many and varied. See Note, Collateral Consequences of a Criminal
Cc —a 23 Va. L. Rev. 929 (1970); Note, Civil Disability of Felons, 53 Va.
L. Rev. 403 (1967); Sibron v, New York, 392 U.S. 40 (1968). Nor are the
harmful consequences eradicated by the vacation of other sentences. For
several states permit the use, for purposes of credibility of a witness, of a
verdict of guilty upon which no judgment has been entered or sentence passed.
See Annot., 14 A.L.R. 3d 1272 (1967). Moreover, even if no other disability
were incurred, there is always an extra stigma imposed upon one’s reputation.
29
A. The court erred in not granting the motions of the defense
and exacerbated this error by refusing to charge the jury on the
issue of “value” of any item given to Bowman.
While we maintain that the court erred in several respects in
refusing to grant the several motions of the defense to dismiss
the indictment entirely, and, short of that, to dismiss one count
to avoid multiplicity, the court exacerbated the prejudice to
Bowman by refusing to charge the jury on the question of value
of any item he may have received. For example, there was some
testimony that the petitioner had received produce in the forms
of fruits, vegetables, or cold cuts, on one or more occasions. In
fact, Bowman indicated that he may have accepted “cold cuts”.
This however, should not have remained in the case on the
question of perjury since the indictment was obviously addressed
to payments of money of more than de minimus amounts (5.150-
5.154; 13la-136a).
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
IRVING ANOLIK
McCORMICK and DAMIANI
Attorneys for Petitioner
la
APPENDIX
RELEVANT CONSTITUTIONAL AND STATUTORY
PROVISIONS
1. Due Process Clause of the Fifth Amendment:
“No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval iorces,
or in the Militia, when in actual service in time of
War or public danger; nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.”
2. 18 U.S.C. §152, Concealment of assets; false oaths and
claims; bribery: :;
“Whoever knowingly and _ fraudulently
conceals from a custodian, trustee, marsha!, or
other officer of the court charged with the
control or custody of property, or from creditors
in any case under title 11, any property belonging
to the estate of a debtor; or
Whoever knowingly and fraudulently makes
a false oath or account in or in relation to any
case under title 11; or
Whoever knowingly and fraudulently makes
a false declaration, certificate, verification, or
statement under penalty or perjury as permitted
under section 1746 of title 28, United States
Code, in or in relation to any case under title 11;
or
2a
Relevant Constitutional and Statutory Provisions
Whoever knowingly and fraudulently
presents any false claim for proof against the
estate of a debtor, or uses any such claim in any
case under title 11, personally, or by agent,
proxy, or attorney, or as agent, Pivxy, or
attorney; or
Whoever knowingly and fraudulently
receives any material amount of property from a
debtor after the filing of a case under title I1,
with intent to defeat the provisions of title 11; or
Whoever knowingly and fraudulently gives,
offers, receives or attempts to obtain any money
or property, remuneration, compensation,
reward, advantage, or promise thereof, for acting
or forebearing to act in any case under title 11; or
Whoever, either individually or as an agent
or officer of any person or corporation, in
contemplation of a case under title 11 by or
against him or any other person or corporation,
or with intent to defeat the provisions of title I1,
- knowingly and fraudulently transfers or conceals
any of his property or the property of such other
person or corporation; or
Whoever, after the filing of a case under title
‘11 or in contemplation thereof, knowingly and
fraudulently conceals, destroys, mutilates,
falsifies, or makes a false entry in any document
affecting or relating to the property or affairs of a
debtor; or
Whoever, after the filing of a case under title
11, knowingly and fraudulently withholds from a
custodian, trustee, marshal, or other officer of
the court entitled to its possession, any recorded
3a
Relevant Constitutional and Statutory Provisions
information, including books, documents,
records, and papers, relating to the property or
financial affairs of a debtor.
Shall be fined not more than $5,000 or
imprisoned not more than five years, or both.”
. 18 U.S.C. §1623, False declarations before grand jury or
“(a) Whoever vader oath (or in any
declaration, certificate, verification, or statement
under penalty of perjury as permitted under
section 1746 of title 28, United States Code) in
any proceeding before or ancillary to any court
or grand jury of the United States knowingly
makes any false material declaration or makes or
uses any other information, including any book,
paper, document, record, recording, or other
material, knowing the same to contain any false
material declaration, shall be fined not more than
$10,000 or imprisoned not more than five years,
or both.
(b) This section is applicable whether the
conduct occurred within or without the United
States.
(c) An indictment or information for
violation of this section alleging that, in any
proceedings before or ancillary to any court or
grand jury of the United States, the defendant
under oath has knowingly made two or more
declarations, which are inconsistent to the degree
that one of them is necessarily. false, need not
specify which declaration is false if—
(1) each declaration was material to the
point in question, and
>
4a
Relevant Constitutional and Statutory Provisions
(2) each declaration was made within the
period of the statute of limitations for the
offense charged under this section.
In any prosecution under this section, the falsity
of a declaration set forth in the indictment or
information shall be established sufficient for
conviction by proof that the defendant while
under oath made irreconcilably contradictory
declarations material to the point in question in
any proceeding before or ancillary to any court
or grand jury. It shall be a defense to an
indictment or information made pursuant to the
first sentence of this subsection that the
defendant at the time he made each declaration
believed the declaration was true.
(d) Where, in the same continuous court or
grand jury proceeding in which a declaration is
made, the person making the declaration admits
such declaration to be false, such admission shall
bar prosecution under this section if, at the time
the admission is made, the declaration has not
substantially affected the proceeding, or it has
not become manifest that such falsity has been or
will be exposed.
(e) Proof beyond a reasonable doubt under
this section is sufficient for conviction. It shall
not be necessary that such proof be made by any
particular number of witnesses or by
documentary or other type of evidence.”
4. 18 U.S.C. §1951, Interference with commerce by threats
or violence.
“(a) Whoever in any way or degree
obstructs, delays, or affects commerce or the
movement of any article or commodity in
5a
Relevant Constitutional and Statutory Provisions
commerce, by robbery or extortion or attempts
or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything
in violation of this section shall be fined not more
than $10,000 or imprisoned not more than twenty
years, or both.
(b) As used in this section—
(1) The term ‘robbery’ means the
unlawful taking or obtaining of personal
property from the person or in the
presence of another, against his will, by
means of actual or threatened force, or
violence, or fear of inquiry, immediate or
future, to his person or property, or
property in his custody or possession, or
the person or property of a relative or
member of his family or of anyone in his
company at the time of the taking or
obtaining.
(2) The term ‘extortion’ means the
obtaining of property from another, with
his consent, induced by wrongful use of
actual or threatened force, violence, or
fear, or under color of official right.
(3) The term ‘commerce’ means
commerce within the District of
Columbia, or any Territory or Possession
of the United States; all commerce
between any point in a State, Territory,
Possession, or the District of Columbia
and any point outside thereof; all
commerce between points within the same
State through any place outside such
’*
°°.
6a
Relevant Constitutional and Statutory Provisions
State; and all other commerce over which
the United States has jurisdiction.
(c) This section shall not be construed to
repeal, modify or affect section 17 of Title 15,
sections 52, 101-115, 151-166 of Title 29 or
sections 151-188 of Title 45.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.