Petition — Scrimgeour v. United States

| Ulfice-Supreme Court, U.S.

ris Dp

80-1957 MAY 12 1981

ALEXANDER L. STEVAS,

CLERK =

NO.

in the

Supreme Court

of the

United States

October Term, 1980

WILLIAM C. SCRIMGEOUR,

Petitioner,

VS.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES J. HOGAN

950 South Miami Avenue

Miami, Florida 33130

JOSEPH MINCBERG

950 South Miami Avenue

Miami, Florida 33130

(305) 377-8291

- QUESTION PRESENTED

Whether the word “or” in the recantation provision

of the federal perjury statute (18 U.S.C. §1623) should

be given its normal, ordinary disjunctive meaning.

INDEX

Page

Question Presented ................ ried veed’s i

id vies pes toveevedcvedvsceccesees 2

MCL d kia de nea e se evearesevnnneses 2

Statutory Provisions Involved ................. 2

Statement of the Case .................0.0005 3

Reasons for granting the writ .................. 4

1. The Decision Below Raises an Important

Issue of Statutory Construction Involving

the Recantation Provision of the Federal

Perjury Statute. ...............0000005. 4

CSG Ae ea R Oe Asc ed nr seeedereeesecens 8

CITATIONS

CASES: Page

American Bankers Insurance Company

of Florida v. United States,

265 F.Supp. 67, 74 (S.D. Fla. 1967) ........... 6

CITATIONS (Continued)

CASES:

Ex parte Collett,

337 U.S. 55, 61, 69 S.Ct. 944, 947,

98 L.Ed. 1207, 1211 (1949) ........cuceeeeee,

Flora v, United States,

357 U.S. 63, 65, 76 5.Ct. 1079, 1081,

Daa POUR og Sikc cv bs bedoveciusonen

Perrin v. United States,

444 U.S. 37, 42, 100 S.Ct. 311, 314,

62 L.Ed.2d 199, 204 (1980) ...............06.

Philbrook v. Glodgett,

421 U.S. 707, 713, 95 S.Ct. 1893, 1898,

44 L,.Ed.2d 525, 683 (1975) ...................

TVA v. Hill,

437 U.S. 153, 184, 98 S.Ct. 2279, 2296,

op gs eee eee ere

United States v. Moore,

613 F.2d 1029 (D.C. Cir. 1979),

cert. denied, ____U.S.___,

100 S.Ct. 2922, 64 L.Ed.2d 811 (1980) .........

United States v. Second National Bank

of North Miami,

502 F.2d 535, 540 (5th Cir. 1974),

cert. denied, 421 U.S. 912,

95 S.Ct. 1567, 43 L.Ed.2d 777 (1975) ...........

CITATIONS (Continued)

Page

OTHER AUTHORITIES:

United States Code:

py SD verre erererri Tiree 3

ge PET T Te eee 2, 3, 4,7

By IE thc ceas ccd enpseve nes 3

Title 28, Section 1264(1) ..........ccceceene 2

NO.

in the

Supreme Court

of the

United States

October Term, 1980

WILLIAM C. SCRIMGEOUR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

William C. Scrimgeour respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on February

12, 1981 and March 16, 1981.

OPINION BELOW

The opinion of the Court of Appeals is reported at

636 F.2d 1019 (5th Cir. 1981) and is reproduced in the

Appendix hereto.

JURISDICTION

The original judgment of the Court of Appeals

was entered on February 12, 1981. Petitions for rehearing

and rehearing en banc were denied on March 16, 1981,

and reported at 642 F.2d 1210 (5th Cir. 1981). The mandate

of the Fifth Circuit was issued on March 26, 1981, a

copy of which is reproduced in the Appendix hereto.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 18, Section 1623(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.

STATEMENT OF THE CASE

A five-count indictment was returned against the

Petitioner, alleging that he made false, material

declarations while giving testimony before a federal

grand jury, in violation of 18 U.S.C. §1623.

Petitioner invoked the recantation provision of

the statute (§1623(d)) and claimed the prosecution to be

barred. The district court agreed and dismissed the

indictment. The district court held that “or” must be

read in the disjunctive and not in the conjunctive, <e.,

if either of the two conditions of Section 1623(d) is

satisfied, recantation bars prosecution.’

The Government appealed, pursuant to Title 18,

United States Code, §3731, from the order of dismissal.

The Court of Appeals for the Fifth Circuit reversed

and held, inter alia, that the word “or” contained in the

recantation provision of the federal perjury statute

must be given a conjunctive reading notwithstanding

the normal disjunctive interpretation normally placed

upon the word “or.”

‘Alternatively, the district court decided that both conditions

were satisfied and thus prosecution was barred.

*A copy of the Fifth Circuit's opinion is included in the Appendix

to this Petition.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW RAISES AN

IMPORTANT ISSUE OF STATUTORY

CONSTRUCTION INVOLVING THE

RECANTATION PROVISION OF THE

FEDERAL PERJURY STATUTE.

This case presents an important and recurring

problem of statutory construction and interpretation.

Although our jurisprudence has developed “principles

of statutory construction” to aid the ascertainment of

legislative will and meaning, these principles are rarely

applied uniformly and definitively. The case at bar

dramatically illustrates the inconsistent application of

statutory construction principles.

The recantation provision of the federal perjury

statute (§1623(d)) bars prosecution if, at the time the

declarant’s admission of falsity 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.” The Fifth Circuit, in this case, and the

Court of Appeals for the District of Columbia, in United

States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979), cert.

denied, ___ U.S. __, 100 S.Ct. 2922, 64 L.Ed.2d 811 (1980),

held that “or” means “and” in §1623(d). So, then, with

this conjunctive reading, a defendant must satisfy both

conditions of the provision before recantation is complete.

However, oft-cited principles of statutory construction

undermines the result reached below.

The wording of subsection (d) is plain, clear, and

unambiguous. That being the case, a basic canon of

statutory construction applies: the words of a statute

should be interpreted as taking their ordinary and

plain meaning. Perrin v. United States, 444 U.S. 37, 42,

100 S.Ct. 311, 314, 62 L.Ed.2d 199, 204 (1980). A

concomitant principle is that the overriding duty of a

court when interpreting a statute is to give effect to

the intent of the legislature. Flora v. United States, 357

U.S. 63, 65, 78 S.Ct. 1079, 1081, 2 L.Ed.2d 1165 (1958);

Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893,

1898, 44 L.Ed.2d 525, 533 (1975). Moreover, the most

important manifestation of legislative intent is the

statute’s plain language. United States u Second National

Bank of North Miami, 502 F.2d 535, 540 (5th Cir. 1974),

cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777

(1975).

We are further taught that where statutory language

is clear nd unequivocal, it is not necessary to resort to

interpretative devices such as legislative history. This

Court has long supported this reluctance to review

legislative history when the words of a statute are

plain on its face. In Ex parte Collett, 337 U.S. 55, 61, 69

S.Ct. 944, 947, 93 L.Ed. 1207, 1211 (1949), this Court

declared:

“Petitioner's chief argument proceeds not

from one side or the other of the literal

boundaries of §1404(a) but from its legislative

history. The short answer is that there is no

need to refer to the legislative history where

the statutory language is clear. The plain word

and meaning of a statute cannot be overcome

by a legislative history which, through strained

processes of deduction from events of wholly

ambiguous significance, may furnish dubious

bases for inference in every direction. Gemsco,

Inc., v. Walling, 1945, 324 U.S. 244, 260, 65

S.Ct. 605, 89 L.Ed. 921, 933. This canon of

construction has received consistent adherence

in our decisions.”

See also, TVA v. Hill, 437 U.S. 153, 184, 98 S.Ct.

2279, 2296, 57 L.Ed.2d 117 (1978).

Perhaps the best description of the inter-workings

of these principles is contained in American Bankers

Insurance Company of Florida v. United States, 265

F.Supp. 67, 74 (S.D. Fla., 1967), where Judge Atkins

explained:

“There exists in federal statutory

construction, as in ordinary speech, a

presumption that language is to be given its

normal natural and usual meaning, one that is

commonly accepted and understood. Where

the meaning of a statutory provision is clear,

that language is the sole indication of legislative

intent. Courts may not then resort to legislative

history to aid in ascertaining Congressional

intent. The statute, read with common sense,

will be held to mean simply what it says and

will be enforced as written. The consequence

of such presumption is to foreclose any inquiry

into legislative intent unless the language in

question is ambiguous in meaning or subject

to more than one reasonable interpretation.”

Despite the clear and plain meaning of subsection

(d) and those principles of statutory construction discussed

above, the court below relied heavily upon legislative

history to give a conjunctive meaning to the provision.

In so doing, the Fifth Circuit recognized that “... the

Supreme Court has given somewhat inconsistent

instructions concerning the propriety of use of legislative

history where the meaning of the words is plain on the

face of the statute.” 636 F.2d at 1023. There is, indeed,

no guidance for the courts below with respect to the

use of interpretative devices such as legislative history

when, in fact, the words of a statute are plain and clear.

This case demonstrates that reviewing courts are free

to rely upon interpretative aids beyond the plain words

of a statute, which can support a desired interpretation.

The danger and pitfalls of such an approach, such as

judicial rewriting of statutes, are obvious and this Court

can clearly signal its disapproval before it becomes

entrenched in our jurisprudence.

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the Fifth

Circuit.

Respectfully submitted,

JAMES J. HOGAN

JOSEPH MINCBERG

950 South Miami Avenue

Miami, Florida 33130

/s| JOSEPH MINCBERG

JOSEPH MINCBERG

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the above and foregoing was served, this 11th day of

May, 1981, upon CARL W. MULLIS, III, Attorney,

United States Department of Justice, Atlanta, Georgia

30309.

/s/ JOSEPH _MINCBERG

JOSEPH MINCBERG

Appendix

UNITED STATES of America,

Plaintiff-A ppellant,

v.

William C. SCRIMGEOUR,

Defendant-Appellee.

No, 80-5205.

United States Court of Appeals,

Fifth Circuit.

Unit B

Feb. 12, 1981.

The Government appealed from dismissal by the

United States District Court for the Southern District

of Florida, William M. Hoeveler, J., of indictment charging

defendant with knowingly making false material

declarations before a grand jury. The Court of Appeals,

Frank M. Johnson, Circuit Judge, held that: (1) evidence

indicated that defendant was aware when he recanted

that the Government realized that he had testified

falsely before the grand jury, and thus recantation

statute did not bar his perjury prosecution, and (2) the

Government did not deprive defendant of due process

of law in permitting him to recant without warning him

that his recantation would be to no avail because the

Government intended to prosecute him for perjury

whether or not he recanted.

App. 1

Reversed and remanded.

1. Statutes —241(1)

A federal criminal statute should be construed

narrowly in order to encompass only that conduct that

Congress so intended to criminalize.

2. ‘Statutes —241(1)

Although a criminal statute must be strictly

construed, it must not be construed so strictly as to

defeat clear intention of the legislature.

3. Statutes —189

Although, in interpretation of statutory language,

reference should first be made to plain and literal meaning

of tlhe words, overriding duty of a court is to give effect

to intent of the legislature.

4, Perjury —15

Recantation bars prosecution for knowingly making

false material declarations before grand jury only when

defendant has satisfied both conditions of recantation

stattute, notwithstanding statute’s use of word “or”

ratlher than word “and” in describing the conditions. 18

U.S.C.A. §1623(d).

5, Perjury —15

In prosecution for knowingly making false material

declarations before a grand jury, evidence indicated

App. 2

that defendant was aware, when he recanted his

testimony, that the Government realized that he had

testified falsely before the grand jury, and thus recantation

of his testimony would not bar the prosecution. 18

U.S.C.A. §1623(d).

6. Perjury —15

The Government is not required to affirmatively

act to inform a perjurer that his perjury is manifest. 18

U.S.C.A. §§ 1623, 1623(d).

7. Constitutional Law —265

Grand Jury —36.7

There is no constitutional requirement that the

Government inform a grand jury witness that he is a

potential defendant, nor does due process require that

the Government warn a grand jury witness that he is a

target of grand jury's investigation. U.S.C.A. Const.

Amend. 5.

8. Constitutional Law —265

The Government is not required by due process

principles to inform a grand jury witness of his statutory

right to recant. 18 U.S.C.A. §1623(d), U.S.C.A. Const.

Amend. 5.

9. Constitutional Law —265

The Government did not deprive defendant of due

process of law by permitting defendant to recant his

App. 3

grand jury testimony without warning him that his

recantation would be to no avail because the Government

intended to prosecute him for perjury whether or not

he recanted it. 18 U.S.C.A. §1623(d); U.S.C.A. Const.

Amend. 5.

Appeal from the United States District Court for

the Southern District of Florida.

Before MORGAN, FAY and FRANK M. JOHNSON,

Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

The Government appeals from the district court's

dismissal of a five-count indictment charging William

Scrimgeour with knowingly making false material

declarations before a grand jury in violation of 18 U.S.C.A.

§1623.' The district court granted Scrimgeour’s motion

to dismiss the indictment, ruling that prosecution was

'18 U.S.C.A. §1623 provides in pertinent part:

(a) Whoever under oath... in any proceeding before or

ancillary to any court or grand jury of the United States

knowingly makes any false material declaration . . . shall

be fined not more than $10,000 or imprisoned not more

than five years, or both....

App. 4

barred by the recantation provision of 18 U.S.C.A.

§1623(d).”

Scrimgeour made material declarations under oath

before a grand jury and subsequently reappeared and

admitted those declarations to be false. He first testified

before the grand jury, which was investigating price

fixing in the southern Florida bond paper market, on

June 16, 1977. His testimony contradicted that given

by a prior witness, David Boynton, who had testified

that Scrimgeour attended price fixing meetings. For

that reason, Scrimgeour was twice warned by the

Government attorney of the penalty for perjury and

given an opportunity to change his answers. Scrimgeour

declined at that time to change his testimony. On July

27, 1977, Michael Nachwalter, Scrimgeour’s attorney

at that time, contacted a Government attorney concerning

Scrimgeour's possible’ perjury and requested that the

Government provide a copy of Scrimgeour’s grand jury

testimony. That request was refused on the ground

that grand jury proceedings are secret under Fed.R.

Crim. P. 6(e). On August 12, 1977, Nachwalter again

requested that the Government attorneys allow

Scrimgeour to view a transcript of his testimony, but

"18 U.S.C.A. §1623(d) provides in pertinent part:

(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.

App. 5

the Government again refused on the ground that a

court order would be required under Rule 6(e).

On September 15, 1977, another witness, Joe Lincks,

reappeared before the grand jury and testified, in

contradiction to Lincks’ prior testimony given in March

1977, that Scrimgeour had attended price fixing meetings.

A few hours after Lincks testified on September 15,

Scrimgeour’s counsel called a Government attorney

and stated that he knew that Lincks had been a “songbird”

before the grand jury. In October 1977, Scrimgeour’s

new attorney, James Hogan, contacted Government

counsel and stated “that Scrimgeour had lied” and that

he “wanted him to go back to the grand jury and

straighten it out.” Hogan also requested a copy of the

grand jury transcript but the Government again refused

on the ground that a court order would be required

under Rule 6(e). Hogan then filed a motion to compel

disclosure of the transcript, which was granted on

November 7, 1977, after a hearing on that motion. At

that hearing Hogan conceded that “even if we appear

and recant under 1623 the Government can still indict

him for perjury under 1621 and 1623 if they so wish...

.” Later that day on November 7, Scrimgeour reappeared

before the grand jury, admitted his prior false statements,

and corrected his testimony.

The grand jury before which Scrimgeour made his

false statements and then recanted expired in December

1977, without returning an indictment for price fixing.

However, a second grand jury did return an indictment

in September 1978, to which Scrimgeour and other

defendants pleaded nolo contendere.

App. 6

The district court dismissed the perjury indictment

on the basis of 18 U.S.C.A. §1623(d), which provides

that a person who recants or admits that he has made

false declarations shall not be prosecuted for those

declarations, “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.” The district court held that

“or” must be read in the disjunctive and not in the

conjunctive, ie., if either of the two conditions of Section

1623(d) is satisfied, recantation bars prosecution. The

district court decided in the alternative that both

conditions were satisfied and thus prosecution of

Scrimgeour was barred.

The United States Court of Appeals for the District

of Columbia Circuit held in United States v. Moore, 613

F.2d 1029 (D.C. Cir. 1979), cert. denied, _U.S._ ,100S.Ct.

2922, 64 L.Ed.2d 811 (1980), that the word “or” in 18

U.S.C.A. §1623(d) means “and.” That court reviewed

the legislative history of Section 1623 and concluded

that Congress intended that a defendant be required

to satisfy both conditions of subsection (d).’ This Circuit

specifically reserved this precise issue in United States

v. Beasley, 550 F.2d 261, 266 (5th Cir.), cert. denied, 434

U.S. 863, 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977).

We are persuaded by Moore. Our reading of the

legislative history convinces us that the court in Moore

was correct in determining that despite the formulation

of Section 1623(d) grammatically, the intent of Congress

*613 F.2d at 1039-40.

App. 7

was that a defendant must satisfy both conditions of

that subsection.‘

The central purpose of Congress in enacting Section

1623 was to encourage truth telling to the maximum

extent possible, at every step of the witness’ testimony.®

The Moore court turned to legislative history after

determining that a literal interpretation of Section

1623(d) was unsatisfactory because it would frustrate

Congress’ overriding goal in enacting that section by

allowing a perjurer to avoid prosecution by merely

recanting before his perjury adversely affected the

proceeding, even after his perjury had been exposed.°

Section 1623(d) was modeled on a New York statute’

and congressional treatment of the recantation provision

reveals that the New York version was basically

incorporated into Section 1623(d).° The Moore court

‘For an exhaustive discussion of the legislative history of

Section 1623(d), see Moore, supra, 613 F.2d at 1039-45.

*See Moore, supra, 613 F.2d at 1040, 1043.

*Id. at 1041.

"N.Y. Penal Law §210.25 (McKinney 1965).

*Moore, supra, 613 F.2d at 1042. During legislative hearings

on the recantation provision of Section 1623(d), the Justice Department

offered an interpretation of that section which expressly paralleled

the conjunctive preconditions contained in the New York statute.

See id. at 1042 & n. 130. However, certain remarks during the

legislative hearing indicate that there was some awareness that

the proposed recantation legislation differed from the New York

statute. See id, at 1042 & n.107.

App. 8

reasoned that Congress would not have enacted a version

of the recantation statute which differed so greatly

from the New York version without explaining its intent

and reasons in so doing.’ On the basis of its examination

of the legislative history, the Moore court concluded

that “Congress did not countenance in Section 1623(d)

the flagrant injustice that would result if a witness is

permitted to lie to a judicial tribunal and then, upon

only learning that he had been discovered, grudgingly

to recant in order to bar prosecution.”"

[1, 2] We must keep in mind several basic principles

that relate to the construction of criminal statutes: A

federal criminal statute should be construed narrowly

in order to encompass only that conduct that Congress

so intended to criminalize. Dunn v. United States, 442

"The court stated:

Had so drastic a departure from the New York statute as a

switch from combinational to alternative satisfaction of its carefully

developed preconditions been really intended, we believe Congress

would have said so. Had Congress actually intended a nearly

complete overruling, in the practical sense, of the Supreme Court's

longstanding pronouncement on the serious drawbacks of recantation

in the quest for truth, we would expect a much fuller explanation,

Had Congress, after making crystal clear its purpose to promote

truthtelling to the hilt, intended the almost wide-open door to

prevarication that disinjunctive [sic] construction of the statutory

preconditions would furnish, it hardly would have failed to elucidate

its logic.

613 F.2d at 1042-43,

"Jd, at 1043,

App. 9

U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979);

United States v. Dudley, 581 F.2d 1193, 1197 (5th Cir.

1978). Although a criminal statute must be strictly

construed, it must not be construed so strictly as to

defeat the clear intention of the legislature. Barrett u

United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46

L.Ed.2d 450 (1976); Huddleston v. United States, 415

US, 814, 831, 94 S.Ct. 1262, 1271, 39 L.Ed.2d 782 (1974);

United States v. Cook, 384 U.S. 257, 262-63, 86 S.Ct.

1412, 1414-15, 16 L.Ed.2d 516 (1966). “The principle of

strict construction ‘does not mean that every criminal

statute must be given the narrowest possible meaning

in complete disregard of the purpose of the legislature.’ ”

United States v. Levy, 579 F.2d 1332, 1337 (5th Cir.

1980), cert. denied, 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d

471 (1979), quoting United States v. Bramblett, 348 U.S.

503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955).

[3] A basic canon of statutory construction is that

words should be interpreted as taking their ordinary

and plain meaning. E. g., Perrin vu. United States, 444

U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199, 204

(1980). Although in interpretation of statutory language

reference should first be made to the plain and literal

meaning of the words, the overriding duty of a court is

to give effect to the intent of the legislature. Flora v,

United States, 357 U.S. 63, 65, 78 S.Ct. 1079, 1081, 2

L.Ed.2d 1165 (1958); United States vu. Second National

Bank of North Miami, 502 F.2d 535, 539 (5th Cir. 1974),

cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L..Ed.2d 777

(1975). A statute should ordinarily be interpreted according

to its plain language, unless a clear contrary legislative

intention is shown, United States v. Apfelbaum, 445

U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250, 257

App. 10

(1980). Although words should ordinarily be given their

plain and ordinary meaning, that meaning must be in

accord with the intent of the legislature. United States

v. Cook, supra, 384 U.S. at 262-63, 86 S.Ct. at 1414-15;

United States v. Mississippi Valley Co., 364 U.S. 520,

550, 81 S.Ct. 294, 309, 5 L.Ed.2d 268 (1961); Rainwater

v. United States, 356 U.S. 590, 593, 78 S.Ct. 946, 949, 2

L.Ed.2d 996 (1958); United States vu. Corbett, 215 U.S.

233, 242, 30 S.Ct. 81, 84, 54 L.Ed. 173 (1909); United

States v. Bryant, 563 F.2d 1227, 1230 (5th Cir. 1977),

cert, denied, 435 U.S. 972, 98 S.Ct. 1616, 56 L.Ed.2d 65

(1978). A court must construe a federal statute so as to

give effect to the intent of Congress. Train v. Colorado

Public Interest Research Group, Inc., 426 U.S. 1, 9-10,

96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); Philbrook v.

Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44

L.Ed.2d 525 (1975); United States v. American Trucking

Assns., 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed.

1345 (1940); Johnson v, Southern Pacific Co., 196 U.S. 1,

18, 25 S.Ct. 158, 161, 49 L.Ed. 363 (1904); Craig u Finch,

425 F.2d 1005, 1008 (5th Cir. 1970).

“A criminal statute should be fairly construed in

accordance with the legislative purpose behind its

enactment.” United States v. Levy, supra, 579 F.2d at

1337, citing United States v. Turley, 352 U.S. 407, 77

8.Ct. 397, 1 L.Ed.2d 430 (1957). See Hattaway vu. United

States, 304 F.2d 5, 8-9 (5th Cir. 1962). Criminal statutes

are not to be interpreted in such a manner as to defeat

or disregard the legislative purpose. See United States

v. Culbert, 435 U.S. 371, 379, 98 S.Ct, 1112, 1116, 55

L.Ed.2d 349 (1978); Barrett u United States, 423 U.S.

212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976); United

States vu. Corbett, supra, 215 U.S. at 242, 30 S.Ct. at 84,

App. 11

The Supreme Court has given somewhat inconsistent

instructions concerning the propriety of use of legislative

history where the meaning of the words is plain on the

face of the statute." In TVA wv. Hill, 437 U.S. 153, 184

n.29, 98 S.Ct. 2279, 2296 n.29 57 L.Ed.2d 117 (1978), the

Court noted that, where the words of the statute are

plain and unambiguous on the face of the statute, there

is “ordinarily” no need to resort to legislative history.

See Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947,

93 L.Ed. 1207 (1949); Glenn vu United States, 571 F.2d

270, 271 (5th Cir. 1978). However, the Court has clearly

held that consideration of legislative history is proper

in determination of the meaning of words used in statutes,

even where the meaning of the words appears to be

plain. “When aid to construction of the meaning of

words, as used in the statute, is available, there certainly

can be no ‘rule of law’ which forbids its use, however

clear the words may appear on ‘superficial examination. ”

Train v. Colorado Public Interest Research Group, Inc.,

supra, 426 U.S. at 10, 96 S.Ct. at 1942, quoting United

States vu. American Trucking Assns., supra, 310 U.S. at

543-44, 60 S.Ct. at 1063-64.

The Supreme Court has looked beyond the plain

meaning of the words used in a statute to the purpose

of the act where that meaning produced an unreasonable

result “plainly at variance with the policy of the legislation

as a whole.” United States u American Trucking Assns.,

supra, 310 U.S. at 543-44, 60 S.Ct. at 1063-64 (footnotes

omitted). Where the policy of the act is at such variance

with the plain meaning of the words of the statute, the

"See Church of Scientology v United States Department of

Justice, 612 F.2d 417, 420-22 (9th Cir. 1979).

App. 12

Court has followed the purpose of the statute rather

than the literal words. /d. See Medler v. United States,

Bureau of Reclamation, 616 F.2d 450, 453 (9th Cir. 1980);

Church of Scientology v. United States Department of

Justice, 612 F.2d 417, 422 (9th Cir. 1979); United States

v. Tex-Tow, Inc., 589 F.2d 1310, 1313 (7th Cir. 1978).

The strict construction principle governing

interpretation of criminal statutes “cannot provide a

substitute for common sense, precedent and legislative

history.” United States v. Standard Oil Co., 384 U.S.

224, 225, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). The canon

that penal statutes should be strictly construed “is not

an inexorable command to override common sense and

evident statutory purpose.” United States v. Cook, supra,

384 U.S. at 262, 86 S.Ct. at 1414, quoting United States

v. Brown, 33 U.S. 18, 25, 68 S.Ct. 376, 379, 92 L.Ed. 422

(1948),

Although as a general rule the use of a disjunctive

in a statute indicates that alternatives were intended,

Quindlen v. Prudential Insurance Co. of America, 482

F.2d 876, 878 (5th Cir. 1973), where a strict grammatical

construction of the word “or” would frustrate legislative

intent, “or” has been read to mean “and.” De Sylva v.

Ballantine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed, 1415

(1956). The Supreme Court has stated that “[cjanons

of construction ordinarily suggest that terms connected

"See, e. g., Travelers Ins. Co. vu. Norton, 24 F.Supp. 243, 246

(S.D.N.Y. 1938). Conversely, the word “and” has been read to mean

“or.” E. g., Union Central Life Ins, Co. v. Skipper, 115 F.69, 72 (8th

Cir, 1902); United States v. Cumbee, 84 F.Supp. 390, 391 (D.Minn.

1949); United States v, Mullendore, 30 F.Supp. 13, 15 (N.D.OkI.

1939), app. dismissed, 111 F.2d 898 (10th Cir. 1940).

App. 13

by a disjunctive be given separate meanings, unless

the context dictates otherwise ....” Reiter v. Sonotone

Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d

931 (1979).

The recantation provision of Section 1623(d) is an

exception to the remaining subsections of Section 1623.

The rule of strict construction also applies to exceptions

or provisions of a criminal statute which exempt conduct

otherwise within a statute and the exception is to be

strictly construed against the defendant seeking to

invoke its protection. United States vu. Scharton, 285

U.S. 518, 521-22, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932);

Moore, supra, 613 F.2d at 1044-45, See United States v.

An Article of Drug... “Bentex Ulcerine,” 469 F.2d 875,

878 (5th Cir. 1972), cert. denied, 412 U.S. 938, 93 S.Ct.

2772, 37 L.Ed.2d 397 (1973). The defendant must show

that he is within an exception. McKelvey v. United

States, 260 U.S. 353, 356-57, 43 S.Ct. 132, 133-34, 67

L.Ed. 301 (1922); Green, Moore & Co. v. United States,

19 F.2d 130, 131 (5th Cir.), cert. denied, 275 U.S. 549, 48

S.Ct. 86, 72 L.Ed. 420 (1927).

[4] The conjunctive reading of Section 1623(d)

comports with accepted principles of statutory

construction and is supported by the underlying

congressional intent. We have determined that Congress

did not intend to allow a perjurer to avoid prosecution

by merely recanting before his perjury adversely affected

a grand jury proceeding, even after his perjury had

already been exposed. Therefore, we hold that recantation

bars prosecution only when the defendant has satisfied

both conditions of Section 1623(d).

App. 14

The district court found that the second condition

of Section 1623(d) — “it has not become manifest that

such falsity has been or will be exposed” — was satisfied

by Scrimgeour. The district cour} seemed to suggest

that Scrimgeour had no awareness that his lies had

been or would be exposed to the Government because

the Government attorneys never revealed to Scrimgeour

that they believed that his testimony was false and

never informed him that they were considering bringing

a perjury indictment against him. The court also reasoned

that there was a basic inconsistency in the Government's

position that perjury was manifest, and its attempts to

prevent Scrimgeour from obtaining his testimony and

its lack of communications to Scrimgeour concerning

its intention to prosecute him for perjury.

[5] On the basis of our review of the record, we

conclude that the district court erred to the extent of

180 degrees in its determination that Scrimgeour was

not aware when he recanted on November 7, 1977, that

the Government realized that he had testified falsely

before the grand jury.

Scrimgeour was twice warned during the June 16,

1977, proceeding in which he testified falsely that there

were severe penalties for perjury and was given the

opportunity to then change his testimony. In July

Scrimgeour’s attorney contacted Government counsel

and mentioned Scrimgeour’s possible perjury. Only a

few hours after one witness, Lincks, testified in

September, Scrimgeour’s attorney called a Government

attorney and stated that Scrimgeour knew that Lincks

had been a “songbird” before the grand jury. During

that conversation, Scrimgeour's attorney stated that it

App. 15

was unfair to immunize culpable individuals “and then

indict smaller fish like Bill Scrimgeour ... .” Additionally,

at the hearing on the motion to disclose the grand jury

transcript, which was held earlier on the same day that

Scrimgeour reappeared before the grand jury,

Scrimgeour’s counsel acknowledged the possibility of a

perjury indictment and the Government attorney stated

that Scrimgeour was a target of the grand jury's

investigation.

Knowledge that an antitrust indictment was probable

demonstrates Scrimgeour’s awareness that the

Government had evidence that directly contradicted

his false testimony. Further, Scrimgeour’s attorney's

statement to Government counsel about a possible perjury

indictment manifests that Scrimgeour's false testimony

had been exposed to the Government.

The Government was under no obligation to furnish

Scrimgeour with a copy of his transcript. Indeed, a

court order is required under Fed.R.Crim. P. 6(e) for

App. 16

disclosure by the Government of a grand jury transcript.”

Scrimgeour’s lack of access to his grand jury transcript

until the day of his reappearance is not inconsistent

"Fed.R.Crim. P. 6(e) provides in pertinent part:

(2) [AJn attorney for the government ... shall not disclose

matters occurring before the grand jury, except as otherwise

provided for in these rules....

(3) Exceptions. (Subsections (A) and (B) refer to disclosure

to government attorneys and personnel].

(C) Disclosure otherwise prohibited by this rule of matters

occurring before the grand jury may also be made —

(i) when so directed by a court preliminarily to or in

connection with a judicial proceeding; or

(ii) when permitted by a court at the request of the

defendant, upon a showing that grounds may exist for a

motion to dismiss the indictment because of matters occurring

before the grand jury.

If the court orders disclosure of matters occurring before

the grand jury, the disclosure shall be made in such manner,

at such time, and under such conditions as the court may

direct.

This Court has assumed that a court order is a prerequisite

for disclosure of a grand jury transcript by the Government to

declarants. United States v. Fuentes, 432 F.2d 405, 408 (5th Cir.

1970), cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 822

(1971). “The decision whether to disclose grand jury testimony is

committed to the sound discretion of the trial court.” Jd. The

Government relied repeatedly on Fed.R.Crim. P. 6(e) in declining

to release the transcript of Scrimgeour's testimony. Scrimgeour's

counsel indicated to the Government an awareness that he could

file a motion for an order compelling disclosure of the transcript.

App. 17

with the purposes of Section 1623(d). The lack of a

transcript does not frustrate the purposes of that section.

United States v. Clavey, 578 F.2d 1219 (7th Cir. 1978)

(per curiam) (en banc), vacating 565 F.2d 111 (7th Cir.

1977), cert. denied, 439 U.S. 954, 99 S.Ct. 351, 58 L.Ed.2d

345 (1978) (affirming, without en banc opinion because

of equally divided en banc court, district court opinion

which held that a district court’s refusal to release to a

defendant a transcript of his grand jury testimony did

not bar prosecution under a Section 1623(d)).

[6] The Government is not required to affirmatively

act to inform a perjurer that his perjury is manifest."*

“It has been argued that a prosecutor unfairly limits a declarant’s

ability of recanting by making his perjury manifest as soon as it is

given. United States v. Del Toro, 513 F.2d 656, 666 (2d Cir.), cert.

denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975).

"United States v. Swainson, 548 F.2d 657, 663 (6th Cir.), cert.

denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977) (witness

heard transcript of two contradicting witnesses); United States v.

Del Toro, 513 F.2d 656, 665-66 (2d Cir. 1975) (defendant was warned

that he was a grand jury target and that he might be subject toa

perjury prosecution); United States v. Mazzei, 400 F. Supp. 17, 19

(W.D.Pa. 1975) (Government advised defendant t! »t it considered

answers untrue and would seek perjury indictment); United States

uv, Mitchell, 397 F.Supp. 166, 176-77 (D.D.C.). aff'd sub nom. United

States v. Haldeman, 559 F.2d 31 (1976), cert. denied, 431 U.S. 933,

97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (Government informed defendant

that, based on testimony of witnesses who appeared subsequent

to defendant's appearance, defendant was grand jury target);

United States vu. Crandall, 363 F.Supp. 648, 655 (W.D.Pa. 1973),

aff'd without opinion, 493 F.2d 1401, 495 F.2d 1368, 1369 (3d Cir.),

cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 83 (1974)

(Government showed defendant draft indictment on underlying

offense).

App. 18

Developments other than direct confrontation by the

Government can make exposure manifest. See United

States v. Krogh, 366 F.Supp. 1255, 1256 (D.D.C. 1973).

Although the manifest element may have been more

explicit in some cases involving this issue, none of

those cases mandate affirmative Government action to

inform the defendant that exposure is manifest."

Because we hold that a defendant must satisfy

both conditions of Section 1623(d) in order to be protected

from prosecution for perjury, and that Scrimgeour failed

to satisfy the second condition, we do not reach the

issue whether, at the time Scrimgeour recanted, his

false testimony had substantially affected the grand

jury proceeding.

Scrimgeour argued to the district court that his

indictment should be dismissed on the ground of violation

of due process, but the district court found it unnecessary

to resolve this issue in light of its conclusion that

prosecution was barred by Section 1623(d). The district

court stated that it had serious reservations about the

fairness of the Government's action in permitting

Scrimgeour to recant without warning him that his

recantation would be to no avail because the Government

intended to prosecute him for perjury whether or not

he recanted. The court reasoned that the purpose of

Section 1623(d)— including recantation of false testimony —

would be frustrated if a witness could expressly invoke

that section and yet still be prosecuted. Finally, the

court stated that “[ijf the government wants the benefit

of recanted testimony pursuant to 1623(d), it must pay

the statutory price and forego prosecution.

App. 19

[7] There is no constitutional requirement that

the Government inform a grand jury witness that he is

a potential defendant. United States v. Washington,

431 U.S. 181, 186-89, 97 S.Ct. 1814, 1818-20, 52 L.Ed.2d

238 (1977). Nor does due process require that the

Government warn a grand jury witness that he is a

target of the grand jury’s investigation. United States

v. Crocker, 568 F.2d 1049, 1053-56 (8d Cir. 1977). In

Crocker the Government misled the defendant by telling

him that he was not a target of the investigation, yet

the perjury indictmen’ was held to be valid despite a

due process challenge. Crocker relied on two Supreme

Court cases, United States v. Wong, 431 U.S. 174, 97

S.Ct. 1823, 52 L.Ed.2d 231 (1977), and United States v.

Washington, supra, 431 U.S. at 181, 97 S.Ct. at 1814,

stating that those cases “rejected the contention that

there was a due process obligation to do anything more

than inform the witness of the dangers of testifying

falsely by administering an oath.” 568 F.2d at 1055."

[8] The Government is not even required by due

process principles to inform a grand jury witness of his

statutory right to recant. See United States v. Crocker,

supra, 568 F.2d at 1055-56; United States v. Anfield, 539

F.2d 674, 679 (9th Cir. 1976); United States v. Lardieri,

497 F.2d 317, 321 (3d Cir. 1974), on rehearing, remand

withdrawn and judgment affirmed, 506 F.2d 319 (1974);

United States v. Cuevas, 510 F.2d 848, 851-52 (2d Cir.

1975).

“Wong held that a grand jury witness under investigation

who was later indicted for perjury was not entitled to be warned

of her Fifth Amendment privilege prior to her grand jury testimony.

App. 20

Scrimgeour’s attorney acknowledged to Government

attorneys at the hearing on the motion to compel

disclosure of the grand jury transcript that Scrimgeour

could be indicted for perjury “even if we appear and

recant ....” This statement demonstrates that Scrimgeour

was aware that his recantation might be to no avail,

i.e., that Section 1623(d) is not an automatic bar to

prosecution for perjury.

[9] We conclude that the Government did not

deprive Scrimgeour of due process of law. Because

Scrimgeour failed to satisfy the conditions of Section

1623(d) and since he was not denied due process, dismissal

of the indictment was erroneous.

REVERSED and REMANDED.

App. 21

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

March 16, 1981

MEMORANDUM TO COUNSEL OR PARTIES LISTED

BELOW:

No. 80-5205

UNITED STATES OF AMERICA

-v$-

WILLIAM C. SCRIMGEOUR

(District Court No. 79-20-CR-WMH)

The following action has this day been taken in the

above case;

1 AN EXTENSION OF TIME has been granted

to and including

O for filing appellant’s/petitioner’s brief.

O for filing appellee’s/respondent’s brief.

© for filing reply brief.

QO) for filing petition for rehearing.

© Motion to consolidate granted.

App. 22

({) Motion to supplement or correct the record

granted.

C) Motion for leave to file supplemental brief

granted.

a) Motion for leave to file brief amicus curiae is

granted.

() Joint motion as to time for filing briefs granted.

X) Order enclosed has been entered.

0

GILBERT F, GANUCHEAU, Clerk

ee: Mr. John J. Powers, III

Mr. Joseph Mincbert

BY: /s/ Laura M. Young

Deputy Clerk

App. 23

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

NO. 80-5205

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILLIAM C. SCRIMGEOUR,

Defendant-A ppellee.

U.S. COURT OF APPEALS

FILED

MAR 16 1981

GILBERT F. GANUCHEAU

CLERK

Appeal from the United States District Court for the

Southern District of Florida

ON PETITIONS FOR REHEARING AND PETITIONS

FOR REHEARING EN BANC

(Opinion 2/12/81, 5 Cir., 198. ,__E_ F.2d).

(March 16, 1981)

Before MORGAN, FAY, and FRANK M. JOHNSON,

JR., Circuit Judges.

App. 24

PER CURIAM:

(X) The Petition for Rehearing are DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the Petition for

Rehearing En Banc is DENIED.

( ) The Petitions for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

Judges who are in regular active service not having

voted in favor of it (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the Petitions

for Rehearing En Banc are also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ (copy illegible)

United States Circuit Judge

CLERK'S NOTE:

(copy illegible) 41 PRAP AND LOCAL

FILE 17 FOR STAY OF THE

MANDATE

App. 25

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

March 26, 1981

Mr. Joseph I. Bogart, Clerk

U.S. District Court

P.O. Box 010669

Flagler Station

Miami, FL 33101

NO. 80-5205

UNITED STATES OF AMERICA

vs.

WILLIAM C. SCRIMGEOUR

(D. C. No. 79-20-CR-WMH)

Dear Mr. Bogart:

(X) Enclosed is a certified copy of the judgment of this

Court in the above case issued as and for the mandate.

( ) Enclosed is a certified copy of the Rule 21 Decision

in the above case issued as and for the mandate.

( ) The Court having denied the motion for stay

of mandate, enclosed is a certified copy of the

judgment of this Court in the above case issued as

and for the mandate. See attached notice.

App. 26

( } Having received from the Clerk of the Supreme

Court a copy of the order of that Court denying

certiorari, I enclose a certified copy of the judgment

of this Court in the above case, issued as and for

the mandate.

( ) We have received a certified copy of an order of

the Supreme Court denying certiorari in the above

cause. This Court’s judgment as mandate having

already been issued to your office, no further order

will be forthcoming.

Enclosed herewith are the following additional documents:

(X) Copy of the Court’s opinion.

( ) Original record on appeal or review. (TO BE

RETURNED LATER)

(X) Original exhibits. (1 box-under sep. cover) (1

env. to be returned later)

( ) Bill of Costs approved by this Court.

Sincerely,

GILBERT F. GANUCHEAU, Clerk

By /s/ Brenda Hauck

Deputy Clerk

Encl.

ce: Messrs. John J. Powers, III

Peter De La Cruz

Mr. Joseph Mincberg

App. 27