# Petition — Scrimgeour v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 878

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2141%3A1. Public record. Not legal advice.