Opposition — Scrimgeour v. United States

F

No, 80-1957

Office - me oak US.

AUG 18 198!

ALEXANDER L. STEVAS,

| CLER

|

On the Supreme Court of the Hnited Sitntos

OcTOBER TERM, 1980

WILLIAM C., SCRIMGEOUR, PETITIONER

VY

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

WILLIAM F. BAXTER

Assistant Attorney General

JOHN J. Powers, Ill

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner’s admission that his previous grand

jury testimony was false barred his prosecution for false

statements under the recantation provision of 18 U.S.C.

1623(d).

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Association of Bitumirous Contractors v.

Andrus, 581 F.2d 853 ....ccceeeeeeseeeeeens C

Barrett v. United States, 423 U.S. 212 .......... 7

Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostook R.R., 389 U.S. 327 .... 5

De Sylva v. Ballentine, 351 U.S. 570 ........... 7

Great Atlantic & Pacific Tea Co. v. FTC,

106 F. 2d 667, cert. denied, 308 U.S. 625 .... 7-8

People v. Ezaugi, 2 N.Y.2d 439, 141

A & F MR A A Sb errr 6,9

Union Insurance Co. v. United States,

FE Ee POE FED eRe aka chUKaSCawoccence 7

United States vy. An Article of Drug. . . “Bentex

Ulcerine,” 469 F. 2d 875, cert. denied,

DER PED wou deiele oF dG d4eH) 6 Whe knsces cece 8

United States v. Crandall, 363 F. Supp. 648,

aff'd without opinion, 493 F. 2d 1401,

495 F. 2d 1369, cert. denied, 419 U.S.

DPR exeibiwh owes cochpegeddeddcvavierccepes 9

IV

Page

Cases—(Continued):

United States v. Culbert, 435 U.S. 371 ......5.5: 7

United States v. Earth Sciences, Inc.,

POEs GE ON ccedvvsdedicesecccecsocsecese 7

United States v. Fisk, 70 U.S. (3 Wall.) 445 ..... 7

United States v. Moore, 613 F. 2d 1029,

cert. denied, 446 U.S. 954 .......... 4, 5, 6-7, 10

United States v. Scharton, 285 U.S. 518 ........ 7

United States v. Standard Oil Co.,

PE MIME ceded vb sevetndstoccecredeceese 7

Constitution, statutes and rule:

United States Constitution, Fifth

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SD a EE Ad ccdecca canst tcscunesvens 1,4,5

SP is BOM) cc decdevevccvcccaveccovcese 7

OB Cin HOD b-o'c bec be secvésovcoes 2, 4, 5, 7,8

Be MPs, DODO 2 Sh.b ect Cdbboccceducececcoese 6

N.Y. Penal Law § 210.25 (McKinney 1965) ...... 6

SE ERY GU MEOD oclcccnccvecdedboacces 2-3,9

Miscellaneous:

H.R. Rep. No. 91-1549, 91st Cong., 2d Sess.

CRRFEP pens eaveccestecerecvasadveccccerces 6

S. Rep. No. 91-617, 91st Cong., Ist Sess.

(TROP) co cpcsoneetevecscoeveccenetocstcveces 6

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-1957

WILLIAM C., SCRIMGEOUR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATESAN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-21) is

reported at 636 F. 2d 1019.

JURISDICTION

The judgment of the court of appeals was entered on

February 12, 1981 (Pet. App. 1), and a petition for rehear-

ing was denied on March 16, 1981 (Pet. App. 24-25). The

petition for a writ of certiorari was filed on May 12, 1981.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

On January 11, 1979, petitioner was indicted in the Uni-

ted States District Court for the Southern District of Flor-

ida on five counts of knowingly making false material dec-

larations before a grand jury, in violation of 18 U.S.C. 1623.

On petitioner’s motion, the district court dismissed the

2

indictment, holding that prosecution was barred by the

recantation provision of the statute, 18 U.S.C. 1623(d),

which provides that a person who admits that he has made

false declarations will not be prosecuted for those declara-

tions “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 expo-

sed.” The court of appeals reversed and remanded for trial

(Pet. App. 4-5, 21).

1. The factual context of petitioner’s indictment is de-

scribed in the opinion of the court of appeals (Pet. App.

4-7). Briefly, a grand jury in the Southern District of Flor-

ida was convened in 1976 to investigate price fixing in the

southern Florida bond paper market (id. at 5). Petitioner,

the general manager of Southern Paper Company, first

testified before the grand jury on June 16, 1977 (ibid.). Prior

to petitioner's initial grand jury appearance, David Boyn-

ton, the division manager of Virginia Paper Company, had

revealed to government attorneys that petitioner had

attended price fixing meetings (ibid.). However, petitioner

testified before the grand jury that no one had discussed

prices at the meetings described, and he refused to change

his testimony even after he hac! twice been warned of the

penalty for perjury (ibid.).'

On July 27, 1977, Michael Nachwalter, who was then the

attorney for petitioner and Southern Paper Company, con-

tacted a government attorney concerning petitioner's pos-

sible perjury and requested a copy of his grand jury testi-

mony (Pet. App. 5). This request was refused on the ground

that grand jury proceedings are secret under Fed. R.

'Prior to his testimony, petitioner was advised of his rights (R. 26-28).

He stated that he was represented by counsel for Southern Paper

Company, but further stated that he had not informed counsel that he

had been subpoened (R. 27).

3

Crim. P. 6(e) (Pet. App. 5). A written request for a copy of

the transcript was later denied by government counsel on

August 17, 1977, on the ground that disclosure was prohi-

bited absent a court order (id. at 5-6).

In the meantime, the grand jury investigation made no

progress until September 15, 1977, when Joe Lincks, the

branch manager of MAC Papers, Inc., appeared before the

grand jury. Lincks testified, in contradiction to earlier tes-

timony that he had given in March 1977, that petitioner had

attended price fixing meetings (Pet. App. 6). A few hours

after Lincks had testified, petitioner’s counsel called a

government attorney and stated that he knew that Lincks

had been a “songbird” (ibid.).

In October 1977, petitioner’s new attorney, James

Hogan, stated to government counsel “that Scrimgeour had

lied” and that he “wanted him to go back to the grand jury

and straighten it out” (Pet. App. 6). After the government

again refused petitioner's request for a copy of the grand

jury transcript without a court order, Hogan moved to

compel disclosure of the transcript (ibid.). After a hearing

on the motion, disclosure was granted on November 7,

1977. Hogan conceded at the hearing that “even if we

appear and recant under 1623 the Government can still

indict [Scrimgeour] for perjury under 1621 and 1623 if they

so wish * * *”"(ibid.). On the same day, petitioner appeared

again before the grand jury and read a prepared statement,

in which he admitted that his prior statements were false

and corrected his former testimony (ibid.).?

In December 1977, the month following petitioner's

recantation, the grand jury expired without returning an

indictment for price fixing (Pet. App. 6). In September

2When petitioner was questioned at the conclusion of his prepared

statement, he invoked his Fifth Amendment privilege against self-

incrimination (R. 109-110).

4

1978, a second grand jury returned price fixing indictments,

to which petitioner and other defendants pleaded nolo con-

tendere (ibid.). On January 11, 1979, the second grand jury

also returned the present indictment charging petitioner

with knowingly making false material declarations in viola-

tion of 18 U.S.C. 1623.

2. The district court dismissed the indictment. The court

first concluded (Pet. App. 7) that a witness successfully

recants prior false testimony if he satisfies either of the two

conditions specified in 18 U.S.C. 1623(d). Turning to the

particular facts of this case, the district court then con-

cluded that petitioner had satisfied both conditions (Pet.

App. 7).3

The court of appeals reversed. Relying on the District of

Columbia Circuit’s analysis of the legislative history of 18

U.S.C. 1623(d) in United States v. Moore, 613 F. 2d 1029,

1039-1045 (1979), cert. denied, 446 U.S. 954 (1980), the

court of appeals concluded (Pet. App. 14) that a witness

may not successfully recant prior false testimony unless he

satisfies both statutory conditions. The court of appeals

held (id. at 15-16) that petitioner had not successfully

recanted his testimony within the meaning of the statute

because he had failed to satisfy the requirement that recan-

tation occur before it becomes manifest that the prior false

testimony “has been or will be exposed.” Thus, petitioner’s

prosecution for making false statements was not barred by

the recantation provision of 18 U.S.C. 1623(d).

ARGUMENT

Petitioner contends (Pet. 4-7) that the court of appeals

erred in holding that both statutory preconditions, that the

The district court also suggested that dismissal of the indictment was

warranted on due process grounds because the government allowed

petitioner to recant his testimony without warning him that a perjury

indictment would be sought. The court of appeals rejected this finding

(Pet. App. 20-21), and petitioner has not raised this issue in his petition.

5

false testimony has not substantially affected the proceed-

ing and that it has not become manifest that the falsity of the

statement has been or would be exposed, must be satisfied

before a witness can invoke the recantation provision as a

bar to prosecution under 18 U.S.C. 1623. This claim was

properly rejected by the court below. Moreover, this Court

has only recently declined to review this question in United

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

denied, 446 U.S. 954 (1980). There is no conflict among the

circuits, and further review is therefore unwarranted.

1. We note at the outset that the decision of the court of

appeals places petitioner in the same position that he would

have been in if the district court had denied his motion to

dismiss, in which case petitioner would have had no right to

an interlocutory appeal. Review by this Court is unneces-

sary at the present juncture because petitioner has not yet

been tried. In the event that he is acquitted, the issue that he

secks to raise here will be moot. On the other hand, if he is

convicted and his conviction is affirmed, he will again be

able to seek review in this Court with respect to this and any

other issue that he might have. See Brotherhood of Loco-

motive Firemen & Enginemen v. Bangor & Aroostook

R.R., 389 U.S. 327, 328 (1967).

2. At all events, the court below correctly held that a

witness must meet both conditions set forth in Section

1623(d) if he is to benefit from the bar to prosecution

established in this section. Although the statute uses the

word “or” to connect the two preconditions, the court of

appeals properly determined that the clear legislative intent

of the section requires that the two preconditions be read in

the conjunctive.

Section 1623 was enacted to encourage witnesses to tes-

tify truthfully before courts and grand juries. To accom-

plish this purpose, Congress facilitated perjury prosecutions

by eliminating rigid common-law requirements such as the

two-witness and direct-evidence rules, thereby lowering the

6

government's burden of proof. See 18 U.S.C. 1623(e); S.

Rep. No. 91-617, 91st Cong., Ist Sess. 57-59 (1969).4 At the

same time, Congress saw fit to include as part of the statu-

tory scheme a limited right to retract prior false testimony.

H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. 47-48 (1970).

This provision, permitting recantation, was based on New

York law (N.Y. Penal Law § 210.25 (McKinney 1965)),

which allows recantation only if it occurs before the false-

hood substantially affects the proceeding and before it

becomes manifest that the falsity will be exposed. See Peo-

ple v. Ezaugi,2 N.Y.2d 439, 141 N.E.2d 580, 161 N.Y.S.2d

75 (1957). Despite Congress’ avowed intention to follow the

New York statute (see S. Rep. No. 91-617, supra, at 150;

H.R. Rep. No. 91-1549, supra, at 47-48), it nevertheless

placed the word “or” between the two preconditional

clauses, rather than the word “and” used in the New York

law. However, as the District of Columbia Circuit recog-

nized in United States v. Moore, supra, 613 F. 2d at 1042-

1043, this unexplained change was clearly not intended to

work the dramatic departure from New York law that

petitioner suggests (see Pet. 4-7). In Moore, the court noted

(613 F. 2d at 1042-1043; footnotes omitted):

Had so drastic a departure from the New York sta-

tute 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 com-

plete overruling, in the practical sense, of the Supreme

Court’s longstanding pronouncement on the serious

drawbacks of recantation in the quest for truth, we

‘The Senate Report states (S. Rep. No. 91-617, supra, at 58, quotinga

1967 report of the President's Crime Commission) that“ ‘[lJessening of

rigid proof requirements in perjury prosecutions would strengthen the

deterrent value of perjury laws and present a greater incentive for

truthful testimony.’ ”

7

would expect a much fuller explanation. Had Con-

gress, after making crystal clear its purpose to promote

truthtelling to the hilt, intended the almost wide-open

door to prevarication that disinjunctive construction

of the statutory preconditions would furnish, it hardly

would have failed to elucidate its logic.

Congress certainly did not intend to foster a situation in

which a perjurer could effectively bar his prosecution once

his false testimony had been discovered merely by admitting

to the falsity of that which the government already knew to

be false. Yet this would be the result of a disjunctive reading

of the statute. In these circumstances, the court below was

correct in reading the statute in light of its legislative history

and commonsense meaning. See United States v. Culbert,

435 U.S. 371,379 (1978); Barrett v. United States, 423 U.S.

212, 218 (1976); United States v. Standard Oil Co., 384

U.S. 224, 225 (1966); see also De Sylva v. Ballentine, 351

U.S. 570, 573 (1956) (“or” read as “and”); United States v.

Earth Sciences, Inc., 599 F. 2d 368, 375-376 (10th Cir. 1979)

(same); Association of Bituminous Contractors v. Andrus,

581 F. 2d 853, 862(D.C. Cir. 1978) (same); Union Insurance

Co. v. United States, 73 U.S. (6 Wall.) 759, 764 (1867)

(same); United States v. Fisk, 70 U.S. (3 Wall.) 445, 447

(1865) (same). The conjunctive reading of “or” is both

grammatically permissible and reasonable in Section

1623(d)’s context of defining an exception to the offense.‘

The court’s reading of the statute also comports with the

maxim that exceptions to statutes should be construed

narrowly. United States v. Scharton, 285 U.S. 518, 521-522

5The question presented concerns the construction of a section carv-

ing out an exception to a substantive offense, not the section stating the

substantive offense. Thus, there can be no argument here that 18 U.S.C.

1623(d) must be given the interpretation petitioner urges, despite the

compelling indications of congressional intent to the contrary, in order

to avoid the possibility of punishing someone who did know what the

os proscribed. Here, petitioner's testimony clearly violated 18 U.S.C.

1623(a).

(1932); Great Atlantic & Pacific Tea Co. v. FTC, 106 F.2d

667, 674 (3d Cir. 1939), cert. denied, 308 U.S. 625 (1940); see

also United States v. An Article of Drug ... “Bentex

Ulcerine,” 469 F. 2d 875, 878 (Sth Cir. 1972), cert. denied,

412 U.S. 938 (1973).

3. It is also clear, as a matter of fact, that petitioner did

not satisfy either precondition to invoking the protection

afforded by 18 U.S.C. 1623(d). As the court of appeals

found, it had become manifest to the petitioner prior to his

attempted recantation that his testimony before the grand

jury was known to be false and would be exposed (Pet. App.

16-18).6 During the June 16, 1977, grand jury proceeding in

which petitioner testified falsely, he was twice warned about

the severe penalties for perjury, and he was given an oppor-

tunity to change his testimony (id. at 5). Petitioner's attor-

ney mentioned his possible perjury in a conversation with

government counsel in July 1977 (ibid.), and petitioner's

attorney told government counsel in September 1977 that

petitioner knew that Lincks had been a “songbird” (id. at

15). At the hearing on the motion to disclose the grand jury

transcript, petitioner’s new attorney noted the possibility of

a perjury indictment when he remarked that even if peti-

tioner reappeared and recanted before the grand jury, “the

Government can still indict him for perjury under 1621 and

1623 if they so wish * * *” (id. at 6). At the same hearing,

government counsel stated that petitioner was a target of

the grand jury’s investigation (id. at 16). Petitioner was

therefore aware that the government had evidence that

directly contradicted his false testimony, and the statements

made by petitioner's attorney, concerning a possible perjury

indictment, confirmed that it had become manifest that

petitioner's falsity had been exposed (ibid.).

‘Petitioner does not seek review of the finding of the court of appeals

that it had become manifest that the falsity of his testimony had been

exposed.

9

Petitioner's false testimony also substantially affected the

grand jury investigation. Five months elapsed between peti-

tioner’s false testimony and his admission that this testi-

mony was false (Pet. App. 5-6). When petitioner reappeared

before the grand jury, only one month remained in the term

of the grand jury. The lapse of time is a critical element in

estimating the “substantial affect” of a false declaration.

United States v. Crandall, 363 F. Supp. 648, 654-655

(W.D. Pa. 1973), aff'd without opinion, 493 F. 2d 1401, 495

F. 2d 1369 (3c Cir.), cert. denied, 419 U.S. 852 (1974)

(attempted recantation untimely because of two-month

delay); see also People v. Ezaugi, supra, 2 N.Y.2d at 443,

141 N.E.2d at 583, 161 N.Y.S. 2d at 78 (court emphasized

the importance of a prompt recantation). The lengthy delay

in this case was clearly sufficient to affect the proceedings

substantially. See United States v. Crandall, supra, 363 F.

Supp. at 654-655.’ Moreover, petitioner's original testi-

mony, if it had been truthful, would have helped to narrow

the focus of the investigation, even if it had not resulted in

an immediate indictment. Instead, his false testimony con-

tradicted Boynton’s testimony, the only testimony then

available concerning price fixing. As a result, the govern-

ment was required to prolong the investigation in an

attempt to resolve the conflict in testimony. Thus, petition-

er’s false testimony contributed directly to the need for a

second grand jury. To hold a that deliberate misleading of a

grand jury that is not corrected until five months later does

not produce a substantial affect would frustrate the purpose

’Furthermore, petitioner did not request a court order to obtain

access to the transcript until five months after his false testimony,

although the government correctly refused to disclose the transcript

without such an order, and petitioner's counsel understood that he

could move the district court to order the government to disclose the

transcript (GX | at 2). See Fed. R. Crim. P. 6(e).

10

of the statute to encourage truthful testimony at all times by

every witness. United States v. Moore, supra, 613 F. 2d at

1043.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

WILLIAM F. BAXTER

Assistant Attorney General

Joun J. Powers, Ill

Alttorney

AuGust 1981

DOJ-1981-08