Petition — St. Clair v. United States

83-1108

No.

In the Supreme Combos cure

OF THE

United States

Octoser Term, 1983

MicuaeEt J. Sr. Cuarr,

Petitioner,

Vs.

Usitep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Joun W. Kexer

COUNSEL OF RECORD

Kexker & Brockett

Davw J. Mgeapows

CuristopHer J. Hunt

807 Montgomery Street

San Francisco, CA 94133

Telephone: (415) 391-5400

Counsel for Petitioner

BOWNE OF SAN FRANCISCO, INC. * 190 NINTH ST. * S.F.. CA 94103 © (415) 864-2300

QUESTIONS FOR REVIEW

(1) Is a perjury indictment deficient because it presents

two different truth allegations, one of which does not

directly contradict the alleged falsehood?

(2) Was the prosecutor required to rebut petitioner’s

prima facie case of bad faith misjoinder under Rule 8,

Federal Rules of Criminal Procedure, and if so, does the

harmless error rule apply?

PARTIES BELOW

At trial, the parties were Petitioner St. Clair, Respon-

dent United States. and Victor Cowley, whose case was

joined with Petitioner's before trial and whose conviction

was reversed by the Ninth Cireuit Court of Appeals. Peti-

tioner is filing Notice pursuant to Rule 19.6 that Mr. Cowley

has no interest in the outcome of this Petition.

ii

TABLE OF CONTENTS

Page

0 cceredehitensacpagnsnicentsceeennevacsenninahttes i

a entensnneinanensscsoeanactonne i

Nee eae ciscnrnnseecepanssuseenscssesanwocss 1

Statement of jurisdiction ............. a eaalchaalikdacdiacisietheeemedenes 1

Constitutional provisions, statutes, rules ........................ 1

Nee as sbendsedeseuaatens 2

rep ecer bel aaaicatirtnimadcnsarcvoensocestecococe 3

A. The court should grant the petition to decide

whether a perjury indictment with two different

truth allegations, one of which does not directly

contradict the alleged falsehood, is deficient ... 3

(1) The deficiency of the indictment .................... 6

(2) The trial jury verdict in this perjury case

cannot stand because it cannot be deter-

mined whether the verdict rested upon an

impermissible or permissible basis .............. 9

B. The court should grant the petition to set stand-

ards for bad faith misjoinder under Rule 8, Fed-

eral Rules of Criminal Procedure ........................ ll

TN 12

(2) A rule of per se reversal should apply in

eases of retroactive misjoinder under Rule

a schesewtanbnaboasenus 16

iii

APPENDIX TABLE OF CONTENTS

Ruling

Decision of United States Court of Appeals for the

Ninth Cireuit, United States v. Cowley and St.

Clair, filed November 15, 1983. .................00.....sscsceese.

District Court Opinion on Pretrial Motion for Sever-

ance re supereeding indictment ....................-.:ceccs00e

District Court Opinion on Rule 29 Motion on Count 2

of superceding indictment ...0....0.......2....ccccceeeeeeeeeenes

District Court Opinion on Rule 29 Motion for Dis-

missal on conspiracy charged in superceding in-

RII sc sccinsre nish diecsaniisigasitcgetiveciddesnabedhentagaiuasedbabiiasstemactdipanisaes

District Court Opinion on Motion for Severance after

granting of Rule 29 Motion for Dismissal of con-

I Giceccenncnstnsnessinicnccutacviniestniebldiandaniaenainacata

iv

TABLE OF AUTHORITIES CITED

Cases

Page

Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968),

cert. denied, 400 U.S. 965 (1970) 2000... 17

Blackledge v. Perry, 417 U.S. 21 (1974) 202 .. 13

Bronston v. United States, 409 U.S. 352 (1973)........ passim

Oe Bl ie ee) | econ ee 7

Mandujano v. United States, 425 U.S. 564 (1976) ........ 4

McElroy v. United States, 164 U.S. 76 (1896)... 17

Schaffer v. United States, 362 U.S. 511 (1960) 200000... 12

Stirone v. United States. 361 U.S. 212 (1960) 000. 7

United States v. Adams, 581 F.2d 193 (9th Cir.), cert.

denied, 439 U.S. 1006 (1978) 0.0.00... eee eee eeee 12,13

_United States v. Aiken, 373 F.2d 294 (2d Cir.), cert.

denied, 380 U.S. SEB (1967)... .encccccnnccccoccsncccccscoceces i2,15

United States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980),

cert. denied, 449 U.S. 1111 (1981) 0. 17

United States v. Bell, 623 F.2d 1132 (5th Cir. 1980) ... 11

United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982) 17

United States v. Cash, 522 F.2d 1025 (9th Cir. 1975) ... 10

United States v. Chapin, 515 F.2d 1274 (D.C. Cir.),

cert. denied, 423 U.S. 1015 (1975)... ll

United States v. Chinchic, 655 F.2d 547 (4th Cir. 1981) 17

United States v. Cook, 489 F.2d 286 (9th Cir. 1973),

modifying 497 F.2d 753 (9th Cir. 1972) —....................5, 10

United States v. Corbitt, 675 F.2d 626 (4th Cir. 1982) .. 16

United States v. Crocker, 568 F.2d 1049 (3d Cir. 1977)..8, 10

United States v. Daniels, 437 F.2d 656 (D.C. Cir. 1970) 17

United States v. Dennis, 625 F.2d 782 (8th Cir. 1980). 16

United States v. DeRosa, 670 F.2d 889 (9th Cir.), cert.

denied, sub nom. Bertman v. United States, ...... U.S.

‘alii Se Fi Fe eee

v

Tasie or AvTnorities Crrep

CASES

Page

United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir.

United States v. nis 442 U. s. 100 (1979) . sie iciaeaieaniiooe 4

United States v. Eagleston, 417 F.2d 11 (10th Cir.

II Fins i incresitechSee cSait ne nim chase Tostiaadlpedesuldelieaasstanneeenaa ee 17

United States v. Finucan, 708 F.2d 838 (1st Cir.

III et tl ane slpepsscdnaiilnsinncocisheidigests ni laeaeeaeaSeaaaE passim

United States v. Franks, 511 F.2d 25 (6th Cir.), cert.

ee, Se Se, OE CROCE eine teen 17

United States v. Friedman, 445 F.2d 1076 (9th Cir.

a ee 18

United States v. Graci, 504 F.2d 411 (3d Cir. 1974) ..... 17

United States v. Hatcher, 680 F.2d 438 (6th Cir. 1982) . 17

United States v. Jines, 536 F.2d 1255 (8th Cir.) cert.

es SIP WF lis UD CUD icnenccinitninitnisesitncnsiiascigtaactlpentincces 17

United States v. Kabbaby, 672 F.2d 857 (11th Cir.

II doar tg sacadiscecan'obcseiobieaunssaanbitnesigalicnamgpeeeaadaaeD 12,17

United States v. Lattimore, 215 F.2d 847 (D.C. Cir.

| ES anemones tar Meese re Bs SAT 8

United States v. Lattimore, 127 F. Supp. 405 (D.D.C.),

aff’d, 232 F.2d 334 (D.C. Cir. 1955) ...................0..c.-ccee- 10

United States v. Levine, 546 F.2d 658 (Sth Cir. 1977) . 12

United States v. Long, 534 F.2d 1097 (3d Cir. 1976) ... 11

United States v. Matthews, 589 F.2d 442 (9th Cir.

1978), cert. denied, 440 U.S. 972 (1979) ........--.......... 6, 11

United States v. Ong, 541 F.2d 331 (2d Cir. 1976), cert.

Pc ee Bt BT) yp nner ee eee 12,15

United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973),

cert. denied, 416 U.S. 988 (1974) 20. eect 17

United States v. Ricard, 563 F.2d 45 (2d Cir. 1977),

cert. denied, 435 U.S. 916 (1978) .....................ccsecesceeneeee 16

Pao

vi

Tasie or AvuTHoriTies CrTep

Cases

Page

United States v. Satterfield, 548 F.2d 1341 (9th Cir.

1977), cert. denied, 439 U.S. 840 (1978) ...00000 17

United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980) . 17

United States v. Slawik, 548 F.2d 75 (3d Cir. 1977)........ 7,10

United States v. Spector, 326 F.2d 345 (7th Cir. 1963) .. 17

United States v. Stewart Clinical Laboratory, Inc., 652

os hl | Se eee Ie 7

United States v. Thurnhuber, 572 F.2d 1307 (9th Cir.

(gti A ae PR SSCA A OS TR Se OD cele CES: A 13, 16

United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978) passim

United States v. Turbide, 558 F.2d 1053 (2d Cir.), cert.

denied, 434 U.S. 934 (1977) ........ lias Opa eed hb ae 17

United States v. Turkette, 632 F.2d 896 (1st Cir. 1980)

Rev'd on other grounds, 452 U.S. 576 (1981) ............. 17

United States v. Wall, 371 F.2d 398 (6th Cir. 1967) -..... 10

Vitello v. United States, 425 F.2d 416 (9th Cir.), cert.

denied, 400 U.S. 822 (1970) 02... dihd scainest saacsabeseneiaans 10

Wong v. United States, 431 U.S. 174 (1977) .00 4

STATUTES AND AUTHORITIES

Sn ne passim

SR A st adceocobp an eeedumaelcocca NN 1

Federal Rules of Criminal Procedure, Rule 8(b) ...... passim

Federal Rules of Criminal Procedure, Rule 14 ............ 16,17

Wright & Miller, Federal Practice and Procedure,

NE TI focal wcsovrnncenscseapmsdespntosagneligstaseshasieetiieae 17, 18

In the Supreme Court

OF THE

United States

Octosper Term, 1983

Micuag J. St. Cuarr,

Petitioner,

vs.

Unitep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals was

certified for publication but has not yet been published.

it can be found at Appendix (App.) A-1. Relevant rulings

in the district court are found at App. A-19-26 and were

not reported.

STATEMENT OF JURISDICTION

Judgment was entered by the Ninth Circuit Court of

Appeals on November 15, 1983. Jurisdiction in the United

States Supreme Court is granted by 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES, RULES

Section 1623 of Title 18, United States Code, is set out

in full at App. A-27.

a 9

Rule 8(b), Federal Rules of Criminal Procedure states:

(b) Joinder of Defendants. Two or more defendants

may be charged in the same indictment or information

if they are alleged te have participated in the same

act or transaction or in the same series of acts or

transactions constituting an offense or offenses. Such

defendants may be charged in one or more counts

together or separately and all of the defendants need

not be charged in each count.

STATEMENT OF THE CASE

This Petition seeks review of a judgment of the United

States Court of Appeals for the Ninth Circuit affirming

the conviction of Petitioner Michael J. St. Clair for one

count of violating 18 U.S.C. 4 1623, knowingly making false

material statements to a Grand Jury.

On May 10, 1982, an indictment was filed charging Peti-

tioner Michael J. St. Clair with three counts of violations

of 18 U.S.C. § 1623, and charging Co-Defendant Victor

Cowley with two violations of 18 U.S.C. § 1623. St. Clair

and Cowley moved to sever, and the District Court granted

the motion.’

Thereafter, the government filed a superseding indict-

ment charging, in Count 1, that St. Clair and Cowley

conspired to obstruct justice and violate Section 1623.

‘For purposes of this Petition, the record may be described

briefly. Petitioner has requested certification and transmittal of rele-

vant portions of the record in the Court of Appeals pursuant to

Rule 19. Those portions will provide all background. They consist

of the Appellants’ Joint Excerpt of Record, the Reporter's Trans-

cript on Appeal (hereafter “R.T.”) on file with that court, and St.

Clair’s Opening and Reply Briefs and the Brief of Appellee United

States.

St. Clair was charged in Counts 2 and 3, and Cowley was

charged in Count 4, with making false declarations in vio-

lation of 18 U.S.C. § 1623.

Defendants renewed their motion for severance, claiming

the conspiracy count was unsupported by evidence and was

an attempt to circumvent the earlier severance motion and

moved to dismiss. The trial judge denied these motions.

App. A-20. A jury trial followed.

At the close of the government’s case, the trial judge

dismissed the conspiracy count but denied the Defendants’

motions for severance. App. A-22-26. After presentation of

the Defendants’ evidence, the jury returned a verdict of

guilty against St. Clair and Cowley.

St. Clair was sentenced to 18 months imprisonment and

a fine of $10,000 on each count, the prison terms to be

served concurrently. Both appealed timely. The Court of

Appeals reversed Cowley’s conviction and St. Clair’s con-

viction on Count 3, and aflirmed St. Clair’s conviction on

Count 2. App. A-1%.

ARGUMENT

A. The Court Should Grant the Petition to Decide

Whether a Perjury Indictment With Two Different

Truth Allegations, One of Which Does Not Directly

Contradict the Alleged Falsehood, is Deficient.

The charging allegations of the superseding indictment

in this case raise fundamental problems for pleading and

proof of perjury cases. Not since Bronston v. United

States, 409 U.S. 352 (1973), has the Supreme Court con-

4

sidered such problems.’ Since Bronston was decided, the

courts of appeals have evidenced differing interpretations

of the scope and meaning of the decision outside of its

narrow factual setting. This case offers this Court an

opportanity to confront the two important issues raised

herein and to clarify the law in this complicated and

important area of federal criminal practice.

The testimony quoted in Count 2 of the superseding

indictment concerns two cashier’s checks made out to the

Templeton Company. Count 2 reads in relevant part:

Q. Now, are you familiar with these two checks?

Do you recognize them?

A. Yes.

Q. How do you recognize them?

A. As I indicated to you earlier, they appear to be

checks that were given to me in a sealed envelope

by Mr. Templeton and he asked if I would deposit

them.

The above testimony of Michael J. St. Clair, as he

then well knew and believed, was false, in that James

W. Paige caused the Templeton checks to be delivered

to Michael J. St. Clair. The checks were not given

to Michael J. St. Clair by “Mr. Templeton.”

The truth paragraph contains two distinct statements

which may be read as truth allegations. The first alleges

falsehood “in that James W. Paige caused the Templeton

*The Court has discussed the meaning of an “ancillary” proceed-

ing as used in § 1623(a), United States v. Dunn, 442 U.S. 100

(1979), and what warnings must be given grand jury witnesses

prior to their testimony. Wong v. United States, 431 U.S. 174

(1977); Mandujano v. United States, 425 U.S. 564 (1976).

5)

checks to be delivered to Michael J. St. Clair.” Grammati-

cally, that statement constitutes a distinct truth allegation.

In perjury prosecutions, where both the examiner’s

questioning and the phrasing.in the indictment are exam-

ined critically and construed strictly, see Bronston v.

United States, supra, 409 U.S. at 360-62; United States v.

Tonelli, 577 F.2d 194 (3d Cir. 1978), the clear grammatical

import of language should not be distorted.’

The second sentence, i.e. that Templeton did not give

the checks to St. Clair, is a second possible truth allega-

tion, which may be read in three different ways: as pure

surplusage; as qualifying or amending the “caused by

Paige” truth allegation; or as a separate and distinct sec-

ond truth allegation. .

The ambiguity in this truth allegation flows entirely

from the Grand Jury’s choice of wording. Rather than

stating that Paige gave the checks to St. Clair, the grand

jury chose to write that Paige “caused the Templeton

checks to be delivered” to St. Clair. So worded, the

“caused by Paige” trnth allegation is not necessarily incon-

sistent with St. Clair’s Grand Jury testimony.‘

To resolve the ambiguity, the Court of Appeals for the

Ninth Circuit stated: “The first sentence is merely prefa-

*See United States v. Cook, 497 F.2d 753, 767-69 (9th Cir. 1972)

(Ely, J. dissenting) (opinion adopted by the panel following Brons-

ton, 489 F.2d 286, 287 (9th Cir. 1973) ).

‘The Grand Jury's choice of wording was deliberate. The truth

6

tory to the second, which clearly states the gist of the truth

allegation—that the checks were not given to St. Clair

by Mr. Templeton.” App. A-9. The court acknowledged

that the government could have drafted the truth allega-

tion “with greater precision,” but concluded, reading the

truth paragraph as it did, that the indictment was suff-

cient. App. A-9.

The Ninth Cireuit’s ruling raises two distinct issues,

both of which deserve resolution by this Court. The first

is whether the problem created by multiple truth allegations

can be avoided by reading the allegations together without

improperly amending the indictment. The second is whether

the deficient indictment can be cured by a jury verdict, and

if so, whether the jury must be instructed that they must

be unanimous as to a particular truth allegation in order

to convict.

(1) The Deficiency of the Indictment

This Court, in Bronston v. United States, supra, 409 U.S.

at 359, noted with approval the historical observation that

“the English law ‘throws every fence around a person

accused of perjury,’ and concluded that the law requires

“that the perjury statute is not to be loosely construed.”

Id. at 360. The crime of perjury has historically been at-

tended by safeguards not generally available in other

criminal prosecutions. /d. at 359-61."

*The pleading and proof requirements under § 1623 have never

been passed on by this Court. Circuit courts have held that § 1623

is a species of perjury requiring the additional safeguards applied to

those accused of that crime. United States v. Tonelli, supra, 577

F.2d at 198 n. 3; United States v. Matthews, 589 F.2d 442, 444 (9th

Cir. 1978), cert. denied, 440 U.S. 972 (1979).

7

The indictment in this case raises a problem of interpre-

tation of the two truth allegations. The Court of Appeals

read them together, without citing any authority and with-

out acknowledging the danger that such a reading differs

from that of the Grand Jury. While clerical errors can be

corrected and surplusage in an indictment can be ignored

by a trial judge, courts cannot rewrite material allegations

in an indictment, either literally or through interpre-

tation. To do so constitutes an improper amendment which

in effect usurps the constitutional role of the Grand Jury.*

In a perjury case, it is imperative that the indictment spell

out on its face wherein the Grand Jury believed the wit-

ness’s falsity lay; neither trial judge nor petit jury can

inject their inferences into the indictment.’

Accordingly, the indictment must set out the defendant's

allegedly perjurious statement, specify in what respect the

Grand Jury defines the statement to be false, and the two

must irreconcilably clash :

No guesswork is tolerated and the indictment must set

out the allegedly perjurious statements and the objec-

tive truth in stark contrast so that the claim of falsity

is clear to all who read the charge.

United States v. Tonelli, supra, 577 F.2d at 195."

"See Stirone v. United States, 361 U.S. 212, 215-19 (1960) (ma-

terial allegation cannot be added); Ex parte Bain, 121 U.S. 1, 9-13

(1887) (material allegation cannot be deleted); United States v.

Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807 (9th Cir. 1981)

(material non-trivial variance in proof from theory specified in

indictment requires per se reversal of conviction ).

"See Stirone v. United States, 361 U.S. 212, 215-17 (1960); United

States v. Slawik, 548 F.2d 75, 83-86 (3d Cir. 1977); United States

v. Tonelli, supra, 577 F.2d at 195-98.

*Accord, United States v. Finucan, 708 F.2d 838, 847 (Ist Cir.

1983); United States v. Slawik, 548 F.2d 75, 84 (3d Cir. 1977);

|

8

Clearly, if the “Templeton” truth allegations were not in

the indictment, the indictment would fail under these stan-

dards. The allegation that Paige caused the Templeton

checks to be delivered to St. Clair does not irreconcilably

clash with the statement that Templeton actually handed

the checks to St. Clair in a sealed envelope. To draw the

inference that there is such a clash (by construing the

allegation to mean Paige delivered the checks) is not log- |

ically compelled but is necessary to salvage the indictment.

But to do so not only would result in conviction for “im-

plicit” perjury, barred by Bronston,’ it also would contra-

dict the clear record in this case that the Grand Jury delib-

erately chose not to allege that Paige delivered the checks.

This defect cannot be sidestepped. The Court of Appeals’

reading of the truth allegation, which in effect reads out the

“caused by Paige” truth allegation and focuses on the |

“Templeton” allegation, contradicts all of these teachings.

It simply ignores the Grand Jury’s clear statement that St.

Clair’s testimony was false “in that James Paige caused

the Templeton checks to be delivered to Michael J. St.

Clair.”

This case then presents important questions concerning

United States v. Crocker, 568 F.2d 1049, 1059-60 (3d Cir. 1977);

United States v. Lattimore, 215 F.2d 847, 854-55 (D.C. Cir. 1954)

(en banc). See also 18 U.S.C. § 1623(c) (requiring “irreconcilably

contradictory” declarations for application ).

*See 409 U.S. at 359; United States v. Finucan, 708 F.2d 838,

848 (1st Cir. 1983).

the extent to which the courts can ignore the Grand Jury’s

'

ae e

9

allegations in perjury cases, and what limits are to placed

on purposeful prosecutorial vagueness in charging perjury.

These issues are likely to arise more often than the “literal

truth” issue raised in Bronston and are equally deserving

of the Court's attention and direction. A determination

that the indictment was deficient raises an additional! issue

—whether the jury verdict cures the defect—one not

reached by the Court of Appeals. Relevant federal appel-

late case authority is conflicting and unclear.

(2) The Trial Jury Verdict in this Perjury Case Cannot

Stand Because it Cannot be Determined Whether the

Verdict Rested upon an Impermissible or Permissible

Basis

The wording of the truth allegation presents the situa-

tion where the jury, or part of it, may have convicted St.

Clair because it found beyond a reasonable doubt that

Paige caused the checks to be delivered to St. Clair (an

impermissible ground), and/or the jury, or part of it, con-

vieted St. Clair because it found beyond a reasonable doubt

that Templeton did not give the checks to St. Clair (a per-

missible ground). The Court of Appeals did not consider

this issue.

Because there was a general verdict form, and no specific

instructions on this point,’ the record does not disclose

which of the variety of bases for conviction the jury chose.

The jury was given a standard unanimity instruction and

instructed that the government had to prove that while

testifying before a Grand Jury “the defendant made one

or more false declarations as charged in the indictment.”

©The instructions are reported at R.T. October 25, 1982.

10

(Emphasis added.) In other words, the jurors were in-

structed that they could find St. Clair guilty of perjury if

they found one of the statements in the falsehood para-

graph to be true. This misleading direction amplified rather

than cured the defect in the indictment.

Circuit courts are uncertain and divided as to whether

reversal is required if the reviewing court is unable to

determine from the record in a perjury prosecution whether

the conviction rested upon a permissible or impermissible

ground. Some courts have held that, where the question

before the Grand Jury is ambiguous and susceptible of two

interpretations, and where the witness’s answer is false

only if the question is interpreted in one way, the indict-

ment is deficient."* Where one interpretation of a question

makes the response non-material, and the other makes it

material, some courts have required the Grand Jury at

least to specify the interpretation relied upon and have

found failure to do so to be grounds for dismissing an in-

dictment.** Other courts have held that a witness's under-

"United States v. Tonelli, supra, 577 F.2d at 200 (3d Cir. 1978);

United States v. Cash, 522 F.2d 1025, 1028-29 (9th Cir. 1975);

United States v. Cook, 489 F.2d 286 (9th Cir. 1973), approving

opinion at 497 F.2d 753, 762 (9th Cir. 1972) (Ely, J. dissenting);

United States v. Wall, 371 F.2d 398, 399-400 (6th Cir. 1967); United

States v. Lattimore, 127 F. Supp. 405, 410-11 (D.D.C.), affd, 232

F.2d 334 (D.C. Cir. 1955); see Vitello v. United States, 425 F.2d

416, 425 (9th Cir.), cert. denied, 400 US. 822 (1970) (Ely, J. dis-

senting), see also Bronston v. United States, supra, 409 U.S. at

361-62.

"United States v. Slawik, 548 F.2d 75, 83 (3d Cir. 1977); United

States v. Crocker, 568 F.2d 1049, 1056-57 and n. 7 (3d Cir. 1977).

11

standing of a question where the question is ambiguous can

be left to the jury to decide, at least where the prosecution’s

interpretation is plausible.”

Because the phrasing of the truth allegations was am-

biguous here, the only instruction that would assure that

the defect in the indictment was “cured” would require the

jury to find unanimously that both truth allegations were

proved, an instruction that was not given.

The Court should decide, then, whether in a perjury case

the usual presumptions of regularity of a jury verdict can

override an indictment’s deficiencies absent specific instruc-

tions geared to assure jury verdict based on a permissible

ground,

B. The Court Should Grant the Petition to Set Standards

for Bad Faith Misjoinder Under Rule 8, Federal Rules

of Criminal Procedure

This case confronts the Court with a common problem

in trial courts: how to counter the temptation of prosecu-

tors to charge multiple defendants with conspiracy solely

for the purpose of joinder. This is an important issue in

the administration of federal criminal justice generally,

and it is one which has divided the courts of appeal that

have considered it.

“United States v. Finucan, 708 F.2d 838, 848 (Ist Cir. 1983);

United States v. Bell, 623 F.2d 1132, 1136 (5th Cir. 1980); United

States v. Matthews, 589 F.2d 442, 445 (9th Cir. 1978); United States

v. Long, 534 F.2d 1097, 1101 (3d Cir. 1976); United States v. Cha-

pin, 515 F.2d 1274, 1281 (D.C. Cir.), cert. denied, 423 U.S. 1015

(1975).

12

Under Schaffer v. United States, 362 U.S. 511 (1960),

joinder under Rule 8(b), Federal Rules of Criminal Pro-

cedure, is proper where a conspiracy involving the joined

defendants is charged. The temptation to charge a con-

spiracy simply to permit joinder becomes great when

joinder would otherwise be improper, difficult to uphold, or

has been defeated by the granting of a severance motion.

But what happens when, at the end of the Government’s

case, it becomes apparent that the evidence does not sup-

port conspiracy and the charge is dismissed? Without

direction from this Court, the courts of appeal have decided

that where the conspiracy count was charged in bad faith,

a Rule 29 dismissal establishes a retroactive misjoinder

under Rule 8(b)."*

Important questions presented by this case are (1) what

standard courts should apply to determine when a con-

spiracy count has been charged in bad faith to permit

joinder and (2) when bad faith is shown, whether mis-

joinder should be tested by the harmless error rule.

(1) Standard for Review

As discussed above, the purpose of any standard for

determining if there has been retroactive misjoinder is to

prevent prosecutors from bringing a conspiracy charge to

“United States v. Kabbaby, 672 F.2d 857, 860 (11th Cir. 1982);

United States v. DeRosa, 670 F.2d 889, 897 n. 10 (9th Cir.), cert.

denied, . US. , 103 S.Ct. 353 (1982); United States v. Adams,

581 F.2d 193, 197 (9th Cir.), cert. denied, 439 U.S. 1006 (1978);

United States v. Levine, 546 F.2d 658 (5th Cir. 1977); United States

v. Ong, 541 F.2d 331, 337 (2d Cir. 1976), cert. denied, 429 U.S.

1075 (1977); United States v. Aiken, 373 F.2d 294, 299 (2d Cir.),

cert. denied, 389 U.S. 833 (1967).

13

join otherwise misjoined or severed defendants. Thus, the

statement of the general rule is that the addition of “a

conspiracy count merely to bypass the requirements of

Rule 8(b)” is bad faith.”

That the conspiracy in this case was charged merely

to permit joinder is made clear by the record. The prose-

cutor brought the conspiracy charge only after severance

had been granted. The trial court granted separate trials

when defendants brought severance motions based on the

original indictment. In response, the government filed a

superseding indictment against the same two defendants

charging conspiracy to obstruct justice and commit perjury,

and substantive violations of 18 U.S.C. § 1623. At the time

it filed its superseding indictment, the government had no

evidence to support the conspiracy count which it did not

have originally.

The defendants renewed their motions for severance,

arguing that there was insufficient evidence to support a

conspiracy conviction and that the charge was brought to

bypass the trial court’s severance order. In its Opposition

to the renewed severance motion, the government insisted

that it was not required to disclose its reasons for bringing

the conspiracy count, and that the only limitation on prose-

cutors’ selection of charges in a superseding indictment is

the rule against prosecutorial vindictiveness. The prose-

cutor stated that one reason he added the conspiracy count

“United States v. Adams, 581 F.2d 193, 197 (9th Cir.), cert.

denied, 439 U.S. 1006 (1978).

“See, e.g., Blackledge v. Perry, 417 U.S. 21, 27-29 and n. 7 (1974);

United States v. Thurnhuber, 572 F.2d 1307, 1310-11 (9th Cir. 1977).

14

in the superceding indictment was that he preferred to try

St. Clair and Cowley togetler.’’ The motion was denied

because conspiracy was charged. App. A-20.

After the district court granted defendants’ Rule 29

motion on the conspiracy count, the defendants renewed

the severance motion. The court denied the motion, stating

that the “case” was not brought in bad faith, and that he

saw no evidence of prejudice to either defendant. App.

A-25-26. The Court of Appeals stated: “It appears that

the government did not act in bad faith, as it had a reason-

able expectation that sufficient proof of a conspiracy would

be forthcoming at trial.” App. A-6.

The first issue for the Supreme Court on this Petition

is whether the “reasonable expectation” standard is the

appropriate means for weeding out cases of prosecutorial

bad faith. The Court has not considered the question, and

the lower courts are uncertain as to how to apply it.

Courts which have discussed retroactive misjoinder have

always been faced with the situation in which a conspiracy

count is dismissed at the close of the government’s case,

after defendants have been joined because of a conspiracy

charge included in the original indictment. In the context

of such cases, courts have developed a somewhat objective

standard by which to determine governmental bad faith:

whether the prosecutor had a reasonable expectation prior

‘R.T. September 10, 1982, 8:20-22,

15

to trial that he could prove his case."* On its face, this

determination requires a difficult retrospective judgment

which it would be better to avoid if possible.

This case presents no need for that retrospective judg-

ment. Here the prosecutor added a conspiracy charge to

reunite for trial already severed defendants. Despite op-

portunities to explain why the superseding indictment was

brought—at the time the defendants moved for severance

before trial and at the time the defendants moved for sev-

erance after the trial court dismissed the conspiracy count

at the close of the government’s case—the government

never supplied any alternative explanation for why the

conspiracy count was added other than solely for the pur-

pose of joining St. Clair with Cowley. This procedural

record is prima facte evidence that the government did

“add a conspiracy count merely to bypass the requirements

of Rule 8(b).” In response, the trial court should have put

the burden on the government to explain its actions so the

court could review them.

Putting the burden on the government to explain its

actions is not a novel requirement. It is a reasonable and

often-applied solution to problems arising out of the need

**Thus, in this more common situation, the court must examine

the evidence presented at trial, with any other submissions or

explanations from the prosecutor justifying the conspiracy charge,

to determine whether there was sufficient evidence to make an

expectation of conviction reasonable. See, e.g., United States v. Ong,

541 F.2d at 337-38 (2d Cir. 1976), cert. denied, 429 U.S. 1075

(1977); United States v. Aiken, supra, 373 F.2d 294, 299 (2d Cir.),

cert. denied, 389 U.S. 833 (1967).

16

to balance the interests of the defendant with traditional

prosecutorial discretion."

The danger of prosecutorial abuse of Rule 8(b) by charg-

ing a conspiracy solely for joinder requires that this Court

establish a prophylactic rule. Where two or more defend-

ants’ trials are severed, and the government thereafter

brings a superseding indictment charging conspiracy, the

trial court should require the government to explain its

purpose to permit the court to rectify the misjoinder prior

to trial, Otherwise prosecutors are permitted virtually a

free hand, limited only by the trial court's discretion under

Rule 14. Should the government explain its rationale suf-

ficiently to rebut the prima facie case created by the proce-

dural record, the case may then be treated like cases where

the conspiracy is charged in the original indictment.

(2) A Rule of Per Se Reversal Should Apply in Cases

of Retroactive Misjoinder Under Rule 8(b)

The circuits are deeply divided over whether the harm-

less error rule applies to cases of misjoinder under Rule

8(b). The more traditional rule, followed by a majority

of circuits, has been that misjoinder under Rule 8(b) re-

quires reversal per se in order to make meaningful the

"See, e.g., United States v. Thurnhuber, 572 F.2d 1307, 1310 (9th

Cir. 1977) (vindictive prosecution; prosecutor supplies affidavit ex-

plaining government's actions); United States v. Dennis, 625 F.2d

782, 793-94 (8th Cir. 1980) (speedy trial; same); United States v.

Ricard, 563 F.2d 45, 48 (2d Cir. 1977), cert. denied, 435 U.S. 916

(1978) (prosecutor explains decision to bring superseding indict-

ment and demonstrates no connection between defendant's decision

to reject the proposed plea agreement and prosecutor's decision to

bring superseding indictment); see also United States v. Corbitt,

675 F.2d 626, 630 (4th Cir. 1982) (prosecutor explains new indict-

ment brought soon after new evidence became available ).

17

distinction between Rule 8 and motions for severance un-

der Rule 14. Wright & Miller, Federal Practice and Pro-

cedure, Criminal $145, at 29 (1982). Other circuits,

including the Ninth,” have applied the harmless error

rule.” And some circuits appear to be uncertain and take

a middle road.** Even in circuits applying the harmless

error rule, courts have often stated that it applies only if

all or substantially all of the evidence submitted at the

joint trial would have been admissible in separate trials.*

See United States v. Bledsoe, 674 F.2d 647, 657-58 (8th Cir.

1982); United States v. Kabbaby, 672 F.2d 857, 860 (11th Cir.

1982); United States v. Turkette, 632 F.2d 896, 906 and n. 35 (Ist

Cir. 1980), rev'd on other grounds, 452 U.S. 576 (1981); United

States v. Diaz-Munoz, 632 F.2d 1330, 1336-37 (5th Cir. 1980);

United States v. Graci, 504 F.2d 411, 414 (3d Cir. 1974); United

States v. Reynolds, 489 F.2d 4, 6 (6th Cir. 1973), cert. denied, 416

U.S. 988 (1974); United States v. Eagleston, 417 F.2d 11, 14 (10th

Cir. 1969); United States v. Spector, 326 F.2d 345, 351 (7th Cir.

1963); see also McElroy v. United States, 164 U.S. 76, 81 (1896).

“United States v. Satterfield, 548 F.2d 1341, 1346 and n. 3 (9th

Cir. 1977), cert. denied, 439 U.S. 840 (1978). The Court of Appeals

in this case incorrectly applied the “abuse of discretion” standard

under Rule 14, Federal Rules of Criminal Procedure. App. A-6.

See United States v. Seidel, 620 F.2d 1006, 1014-1015 (4th Cir.

1980); United States v. Turbide, 558 F.2d 1053, 1061-63 (2d Cir.),

cert. denied, 434 U.S. 934 (1977); United States v. Jines, 536 F.2d

1255, 1256 (8th Cir.), cert. denied, 429 U.S. 942 (1976).

See United States v. Hatcher, 680 F.2d 438, 441-42 (6th Cir.

1982); Baker v. United States, 401 F.2d 958, 973-74 (D.C. Cir.

1968), cert. denied, 400 U.S. 965 (1970).

“See, e.g., United States v. Chinchic, 655 F.2d 547 (4th Cir.

1981); United States v. Ajlouny, 629 F.2d 830, 843 (2d Cir. 1980),

cert. denied, 449 U.S. 1111 (1981); United States v. Seidel, 620 F.2d

1006, 1009-17 (4th Cir. 1980); United States v. Satterfield, 548 F.2d

1341, 1346 (9th Cir. 1977), cert. denied, 439 U.S. 840 (1978);

United States v. Franks, 511 F.2d 25, 29-30 (6th Cir.), cert. denied,

422 U.S. 1042 (1975); United States v. Daniels, 437 F.2d 656, 661

(D.C. Cir. 1970).

18

This is a problem which circuit courts will regularly face.

St. Clair contends that the harmless error has no place in

the context of errors under Rule 8. Trial court decisions

under Rule 8 are subject to de novo review, raising only

issues of law.” Such review loses its teeth when trial

court decisions are upheld because prejudice is not per-

ceived at the appellate level.”

**See United States v. Friedman, 445 F.2d 1076 (9th Cir. 1971);

Wright & Miller, supra, § 145 at 527 and n. 16.

*°Should the Court grant an opportunity for full briefing, St. Clair

will argue in more detail concerning the prejudice he suffered as

a result of joinder. Certainly a great deal of evidence was introduced

at trial that would not have been absent joinder: Cowley’s Grand

Jury testimony, the endless and divergent expert testimony concern-

ing the handwriting (which took up over a third of the trial testi-

mony ), and testimony concerning Cowley moving documents. There

is additionally the evidence admitted against St. Clair based on the

dismissed conspiracy charge or on Count 3 which was reversed on

appeal, and the evidence concerning a Santa Barbara postmark that

the Court of Appeals found to be inadmissible. App. A-15. Collec-

tively, this evidence created substantial unwarranted prejudice to

St. Clair at trial. The government's case was circumstantial except

for the testimony of an admitted perjurer, whom even the trial judge

found to be lacking in trustworthiness and whose financial incentives

for lying were substantial.

19

CONCLUSION

The Petition for Writ of Certiorari should be granted

and the judgment reversed.

Respectfully submitted,

Joun W. KeKer

COUNSEL OF RECORD

Davin J. Meapows

CHRISTOPHER J. Hunt

Kexker & Brockett

807 Montgomery Street

San Francisco, CA 94133

January, 1984

(Appendix follows)

United States Court of Appeals

For the Ninth Circuit

No. 82-1741

82-1742

D.C. No. CR 82-265-EFL

United States of America

Plaintiff-Appellee,

vs.

Victor Cowley and Michael St. Clair,

Defendants-Appellants.

OPINION

Argued and submitted—August 10, 1983

Filed—November 15, 1983.

Appeal from the United States District Court

for the Northern District of California

Eugene F’. Lynch, District Judge, Presiding

Before: TUTTLE,* PREGERSON, and REINHARDT,

Circuit Judges.

PREGERSON, Circuit Judge:

Appellants St. Clair and Cowley were convicted of vio-

lating 18 U.S.C. § 1623 for willfully and knowingly making

material false declarations before a grand jury (perjury).

St. Clair was convicted under counts 2 and 3; Cowley was

convicted under count 4. Both appeal their convictions. St.

Clair’s conviction is affirmed as to count 2 and reversed as

to count 3. Cowley’s conviction is reversed.

*Hon. Elbert Tuttle, Senior United States Circuit Judge for the

Eleventh Circuit, sitting by designation.

«A

A-2

FACTS

St. Clair conducted business in the field of international

finance as Channe! Associates, located in Santa Barbara.

Cowley was employed in that business. In late 1979 or early

1980, James Paige, controller of Holland Oil Company, tele-

phoned St. Clair and explained that he wanted two cashier’s

checks to be cashed abroad. St. Clair agreed to cash the

checks for a $25,000 fee. On February 11, 1980, Paige pur-

chased two cashier’s checks from a San Francisco bank, one

for $432,946.44 and another for $670,051.00 and, at St.

Clair’s suggestion, designated “Templeton Company” as

payee. On the same day, Paige flew to Santa Barbara and

delivered the checks to St. Clair. On February 27, 1980, St.

Clair and Cowley flew to Anguilla in the British West

Indies, where St. Clair made an initial $50 deposit in a

“Templeton Company” account at the International Invest-

ment Bank. On February 28, St. Clair and Cowley deposited

the two cashier’s checks in the Templeton account and in-

structed the bank manager to send a deposit receipt to a

Mr. Andrew Templeton at a Tokyo address.

When problems arose in clearing the checks, the bank

manager from the International Investment Bank tried un-

successfully to contact Mr. Templeton. He attempted to call

Templeton and sent a cable and a letter to his address in

Tokyo, but was never able to locate or reach him. The

manager testified that before the two cashier’s checks

cleared he received two letters purporting to be from Mr.

Templeton, one of which bore a “Santa Barbara” postmark.

When the checks finally cleared in April 1980, St. Clair ad-

vised Paige that the money was in a Swiss bank account.

The pivotal factual dispute centers on Andrew Temple-

ton’s role in the banking transaction. Appellants contend

that while they were at the airport on the island of Antigua,

A-3

they happened to meet Templeton, who, after learning that

they were on their way to Anguilla, asked them if they

would deposit the contents of an envelope at the Inter-

national Investment Bank. Cowley contends that he first

met Templeton at that meeting, while St. Clair testified

that he had met Templeton once previously in Nassau. The

government contends that Templeton does not exist except

as a fictional character in a money laundering scheme de-

vised by appellants and Paige. There was evidence indi-

cating that no one by the name of Templeton arrived in

Anguilla between December 1, 1979 and April 30, 1980. The

evidence, however, did show that on February 27, 1980,

St. Clair and Cowley entered Anguilla Island by air. On

that date an account in the name of the Templeton Com-

pany was opened at the International Investment Bank.

The first deposit was $50.00. The next day the two cashier’s

checks were deposited in that account.

In December 1981, St. Clair and Cowley were subpoenaed

to appear before a federal grand jury investigating Hol-

land Oil Company. Shortly after appearing, they were

jointly indicted for perjury in connection with their grand

jury testimony. They moved for separate trials, and their

motions were granted. Thereafter, the government went

before the grand jury and obtained a superseding indict-

ment charging appellants under 18 U.S.C. § 371 with con-

spiracy to obstruct justice and to make false statements to

a grand jury. The superseding indictment also charged

appellants with substantive perjury violations. Appellants

again moved for severance, but their motions were denied.

After the government presented its case, the court granted

appellants’ motions for judgment of acquittal on the con-

spiracy count. Appellants again moved for severance but

A-4

were unsuccessful. At the conclusion of a seven-day trial,

the jury found St. Clair guilty of two counts of perjury

and Cowley guilty of one count of perjury.

In these consolidated appeals, appellants contend that

their convictions should be reversed because (1) they were

prejudicially misjoined; (2) the prosecutor’s questions

were ambiguous, and therefore their answers were not per-

jurious; (3) it was error to admit hearsay testimony con-

cerning the Santa Barbara postmark; and (4) they were

unlawfully denied the opportunity to examine statements

made by Paige, the key government witness, to the Fed-

eral Bureau of Investigation (FBI).

STANDARD OF REVIEW

In reviewing the trial court’s rulings on misjoinder, ad-

mission of hearsay testimony concerning the Santa Bar-

bara postmark, and Paige’s statements to the FBI, we are

governed by the abuse of discretion standard.' In reviewing

the perjury counts, we apply a de novo standard.’

‘The standard of review for determining whether a severance

motion should have heen granted under Fed. R. Crim. P. 14 is abuse

of discretion. United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.

1982); United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.),

cert. denied, 449 U.S. 856 (1980). The standard of review of a dis-

trict court's ruling to admit evidence over a hearsay objection is

abuse of discretion. United States v. Perlmuter, 693 F.2d 1290, 1293

(9th Cir. 1982) citing United States v. Burreson, 643 F.2d 1344,

1349 (9th Cir.), cert. denied, 454 U.S. 847 (1981). A trial judge’s

ruling that the government need not produce a witness's statement

under the Jencks Act will not be overturned on appeal absent a

clear showing of abuse of discretion. United States v. Augenblick,

393 U.S. 348, 355 (1969); United States v. Singh, 628 F.2d 758, 765

(2d Cir.), cert. denied, 449 U.S. 1034 (1980).

*The standard of review when examining a perjury indictment is

de novo; the central question is whether the jury could conclude

“beyond a reasonable doubt that the defendant understood the

MISJOINDER

The trial court originally ruled that defendants were

misjoined under Fed. R. Crim. P. 8(b)* and ordered a

severance. The government then filed a superseding indict-

ment charging appellants with conspiracy to obstruct

justice and to make false statements to a grand jury in

violation of 18 U.S.C. 4 371. The addition of the conspiracy

count to the earlier perjury counts made joinder proper

under Rule 8(b). The appellants’ renewed motion for sev-

erance was denied. However, at the close of the govern-

ment’s ease, the district court granted appellants’ motion

for judgment of acquittal on the conspiracy count. Appel-

lants again moved for severance. The district court denied

the motion on two grounds. The court found no evidence

of bad faith on the government’s part in bringing the addi-

tional conspiracy charge and also concluded that appellants

suffered no prejudice as a result of the joinder.

Appellants contend that bringing a conspiracy charge

after the court granted severance is prima facie evidence

question as did the government and that, so understood, the

defendant's answer was false.” United States v. Matthews, 589 F.2d

442, 445 (9th Cir. 1978), cert. denied, 440 U.S. 972 (1979); see

United States v. Cook, 489 F.2d 286 (9th Cir. 1973).

*Fed. R. Crim. P. 8(b) states that “[t]wo or more defendants may

be charged in the same indictment or information if they are alleged

to have participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or offenses.”

Fed. R. Crim. P. 14 states that

[i]f it appears that a defendant or the government is pre-

judiced by a joinder of offenses or of defendants in an indict-

ment or information or by such joinder for trial together, the

court may order an election or separate trials of counts, grant a

severance of defendants or provide whatever other relief justice

requires.

A-6

of the government’s bad faith requiring reversal of their

convictions. From a review of the record, however, we

are unable to say that the trial judge abused his discre-

tion when he denied severance. It appears that the gov-

vernment did not act in bad faith, as it had a reasonable

expectation that sufficient proof of a conspiracy would be

forthcoming at trial. See United States v. Ong, 541 F.2d

331, 337 (2d. Cir. 1976), cert. denied, 429 U.S. 1075 (1977).*

Further, appellants argue that they were prejudiced by

the joinder so as to require reversal.

The party seeking reversal of a decision denying

severance under Rule 14 has the burden of proving

“clear,” “manifest,” or “undue” prejudice from the

joint trial. (Citations omitted.) Such a party must

show more than that a separate trial would have given

him a better chance for acquittal. (Citations omitted.)

‘United States v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980),

provides an additional basis for upholding the district court's

severance order. There we said;

Our circuit has refused to find the action of the prosecutor in

reindicting a defendant vindictive where the charges contained

in the second indictment expose the defendant to no greater

risk of punishment than did those contained in the first indict-

ment. ( Citations omitted. )

Id. at 1357. ;

In the instant case, the first indictment charged St. Clair with

three counts and Cowley with two counts of violating 18 U.S.C.

§ 623. Each count carried a maximum penalty of five years impris-

onment or a $10,000 fine, or both. The superseding indictment

charged St. Clair with two counts and Cowley with one count of

violating section 1623. In addition, each defendant was named in

the conspiracy count, 18 U.S.C. § 371, which also carried a maxi-

mum penalty of five years imprisonment or a $10,000 fine, or both.

Thus, each defendant was exposed under the superseding indict-

ment to no greater risk of punishment than under the original

indictment.

A-7

He must also show violation of one of his substantive

rights by reason of the joint trial: unavailability of

full cross-examination, lack of opportunity to present

an individual defense, denial of Sixth Amendment con-

frontation rights, lack of separate counsel among

defendants with conflicting interests, or failure prop-

erly to instruct the jury on the admissibility of evi-

dence as to each defendant. (Citations omitted.) In

other words, the prejudice must have been of such

magnitude that the defendant was denied a fair trial.

(Citations omitted.) Clearly, this is not an easy burden

to meet.

The prime consideration in assessing the prejudicial

effect of the joint trial is whether the jury can reason-

ably be expected to compartmentalize the evidence as

it relates to separate defendants, in view of its volume

and the limited admissibility of some of the evidence.

(Citations omitted.) The prejudicial effect of evidence

relating to the guilt of co-defendants is generally held

to be neutralized by careful instruction by the trial

judge. (Citations omitted.)

United States v. Escalante, 637 F.2d. 1197, 1201 (9th. Cir.),

cert, denied, 449 U.S. 856 (1980).

Appellants have not shown the requisite prejudice. Their

stories were similar, thus the risk of the jury confusing

the evidence with respect to each appellant was minimal.

No violation of a substantive right by reason of a joint

trial was shown. Furthermore, during the course of the

trial, the judge was careful to give limiting instructions

advising the jury that certain evidence was admitted only

against a particular defendant. We therefore conclude

that the trial judge did not abuse his discretion when he

denied severance.

A-8

PERJURY COUNTS

Appellants contend that the perjury counts are fatally

flawed for two reasons: (1) the prosecutor’s grand jury

questions, restated in the indictment, are ambiguous; and

(2) the statements in the indictment’s truth paragraph are

not in stark contrast with appellants’ answers before the

grand jury. For the reasons set forth below, we affirm the

conviction on Count 2 and reverse on Counts 3 and 4.

Bronston v. United States, 409 U.S. 352 (1973), clearly

states the basic ingredient of a successful perjury prosecu-

tion: “Precise questioning is imperative as a predicate for

the offense of perjury.” Jd. at 362. Stated another way:

“The burden is on the questioner to pin the witness down

to the specific object of the questioner’s inquiry.” 7d. at

360. Moreover, as the Third Cirenit correctly cautioned:

“No guessing is tolerated and the indictment must set out

the allegedly perjurious statements and the objective truth

in stark contrast so that the claim of falsity is clear to all

who read the charge.” United States v. Tonelli, 577 F.2d

194, 195 (3d Cir. 1978). With these precepts in mind, we

examine each count separately,

Count 2—St. Clair

At the grand jury hearing, St. Clair identified two cash-

ier’s checks, one for $670,051, the other for $432,947—both

made out to the Templeton Company. He was then asked

the questions and gave the answers repeated in Count 2

of the superseding indictment.

Q. Now, are you familiar with these two checks?

Do you recognize them?

A. Yes.

A-9

(). How do you recognize them?

A. As I indicated earlier to you, they appear to be

checks that were given to me in a sealed envelope by

Mr. Templeton and he asked if I would deposit them.

The truth paragraph in the indictment states:

The above testimony of Michael J. St. Clair, as he

then well knew and believed, was false, in that James

W. Paige caused the Templeton checks to be delivered

to Michael J. St. Clair. The checks were not given to

Michael J. St. Clair by a “Mr. Templeton.”

St. Clair contends that the first sentence of the truth

paragraph does not contradict his testimony because that

sentence could be understood to mean that Paige did not

personally deliver the checks but instead caused them to

be delivered by Mr. Templeton and, as so understood, the

first sentence contradicts the second. However, the truth

paragraph must be read as a whole. The first sentence is

merely prefatory to the second, which clearly states the

gist of the truth allegation—that the checks were not given

to St. Clair by Mr. Templeton. St. Clair testified to the

contrary—that Mr. Templeton gave him the checks. Al-

though the government could have drafted the truth para-

graph with greater precision, it does, in our view, suffi-

ciently set out the allegedly perjurious statement and

objective truth with stark contrast. Bronston, 409 U.S. at

362; Tonelli, 577 F.2d at 195.

Count 3—St. Clair

St. Clair appeared before the grand jury on January 7,

1982, and produced four documents: a copy of a check for

$25,000 from Jack Holland & Son, Inc., a letter to St. Clair

a

/

A-10

from a lawyer named Hernand, a copy of a letter sent by

St. Clair to the managing director of the bank in Anguilla,

and a teletype from the managing director to St. Clair.

After identifying these documents, St. Clair was asked the

questions and gave the answers repeated in Count 3 of the

superseding indictment.

Q. Other than these four items, ...do you have

any other records in any way relating to Mr. Paige,

Dalziel, Zenith Petroleum, Jack Holland, Jr., Perlman,

Templeton Company?

A. Nothing.

Q. Have you prior to date of service of the sub-

poena any other records relating to those records,

entities or persons?

A. No.

After St. Clair’s grand jury appearance, a search war-

rant was executed at the premises of Channel Associates.

A file, entitled “St. Mawr, Paid Bills” was found. “St.

Mawr” was an entity created by James Paige with which

Channel had business dealings. Templeton Company sta-

tionery was also found. On that basis, the truth paragraph

of Count 3 charged:

The above testimony of Michael J. St. Clair as he then

well knew and believed was false, in that Michael J.

St. Clair had possession or control of other documents,

not produced to the Grand Jury, relating to James W.

Paige and “The Templeton Company.”

Appellant St. Clair argues that his responses do not con-

stitute perjury because the questions were ambiguous. He

argues convincingly that the first question can reasonably

be understood to ask him whether he had the described

A-11

documents with him in the grand jury room, making his

answer literally true. Contrary to the government’s asser-

tion, the question that follows does not clear up the am-

biguity since it is also phrased in the present tense.

The government concedes that there is a grammatical

error in the second question, but contends that the second

question clarifies the first. The government argues that, if

the second question indeed referred to documents St. Clair

had with him in the grand jury room, then the examiner

would be asking the same question twice. The government

seems to argue that St. Clair’s interpretation is implausible

because it would mean the examiner was redundant. This

argument is unpersuasive since examiners often repeat a

question.

The ambiguity of the second question arises from the

inquiry, “[h]ave you prior to date of service of subpoena

any other records. .. ?” This ill-phrased question, which

seems to refer to both the present and past, can reasonably

be interpreted as asking the witness: Did you have any

other records prior to date of service of subpoena? Or as

asking him: Do you now have other records that you had

prior to the date of service of subpoena? The fact that

documents relating to Paige and the Templeton Company

were found at the premises of Channel Associates after St.

Clair’s grand jury appearance does not establish that St.

Clair had those records before the date of service of sub-

poena or that he had them on his person or under his

control when he appeared before the grand jury. In short,

there is no stark contrast between the allegedly perjurious

statements and the truth allegations. This being so, we rule

that a jury could not conclude beyond a reasonable doubt

A-12

that St. Clair understood the question as did the govern-

ment to call for records that he might have had prior to the

date of service of subpoena and that so understood, appel-

lant’s answer was false. Therefore, the conviction may not

stand. United States v. Matthews, 589 F.2d 442, 445 (9th

Cir. 1978), cert. dented, 440 U.S. 972 (1979).

Count 4—Cowley

Before the grand jury Cowley was asked the following

questions and gave the following answers stated in Count 4

of the indictment.

Q. Now, you were introduced to Mr. Templeton by

Mr. St. Clair?

A. That’s correct.

Q. Did you have a conversation? Did the three of

you have a conversation at that time?

A. Yes. A brief one, ves.

Q. In the course of the conversation, were you

asked, or Mr. St. Clair asked, to do something?

A. Yes.

Q. What were you asked to do?

A. We were asked if we were going—it came up in

the conversation that we were going to Anguilla, and

we were asked if we would take something with us to

Anguilla.

Q. What were you asked to take to Anguilla?

A. An envelope to be deposited or to be given to a

bank in Anguilla.

Q. To whom was the envelope given?

A. Mr. St. Clair.

The truth paragraph of Count 4 states:

The above testimony of Victor J. Cowley, as he then

well knew and believed, was false, in that he then well

A-13

knew and believed that James W. Paige caused the

Templeton checks to be delivered to Michael J. St.

Clair. He knew the checks purportedly contained in

the envelope referred to were not given to Michael

James St. Clair by a “Mr. Templeton.”

Appellant Cowley argues that this count is defective in

that the truth paragraph does not state the converse of his

grand jury testimony. That testimony concerns an envelope

given to St. Clair. The thrust of the truth paragraph relates

to checks. Though Cowley talked about an envelope to be

given to a bank, there is not one word about checks in his

grand jury testimony quoted in Count 4. The examiner

should have been more precise in his questioning. “It is the

responsibility of the lawyer to probe. ... If a witness

evades, it is the lawyer’s responsibility to recognize the

evasion and to bring the witness back to the mark, to flush

out the whole truth with the tools of adversary examina-

tion.” Bronston, 409 U.S. at 358-59. The questioner was not

precise. He failed “to pin the witness down to the specific

object of the questioner’s inquiry. Jd. at 360. Count 4 fails

to set out in “stark contrast” the allegedly false statements

and the objective truth. Tonelli, 577 F.2d at 195. Therefore,

the conviction is reversed. See United States v. Slawik, 548

F.2d 75, 83 (3d Cir. 1977).

ADMISSION OF TESTIMONY CONCERNING THE

POSTMARK

The trial judge allowed the managing director of the

International Investment Bank in Anguilla to testify, over

objection, that he had received two letters purporting to be

from a Mr. Templeton, one of which bore a Santa Barbara

postmark. The letters were never produced at trial.

A-14

Appellants raise two objections to the admission of the

banker's testimony. First, they contend that because the

postmark was not authenticated at trial, the trial judge

abused his discretion by admitting the testimony about it.

Second, appellants argue that the postmark was an out of

court statement offered te prove the truth of the matter it

asserted—i.e., that the postmark was hearsay. See Fed. R.

Evid. 801. They contend that since the postmark did not fall

within any of the exceptions to the hearsay rule, the trial

judge abused his discretion by admitting the banker’s testi-

mony for this additional reason. Finally, appellants claim

that the admission of the testimony was not harmless and

constituted reversible error.

We will address each of these contentions in order. First,

we hold that the proponent of the banker's testimony, the

government, was not required to authenticate the postmark

as such. Fed. R. Evid. 901(a) states:

The requirement of authentication or identification

as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the mat-

ter in question is what its proponent claims.

(Emphasis added).

If the government had offered the envelope bearing the

postmark into evidence, it would have been required to pro-

vide circumstantial evidence that the matter in question—

the envelope bearing the postmark—was authentic. In this

ease, however, the government sought to introduce testi-

mony about the postmark, not the postmark itself. Live tes-

timony from the witness stand requires no extrinsic evi-

dence of authenticity.

A-15

Second, we do agree, on the other hand, that the testi-

mony was inadmissible hearsay. Fed. R. Evid. 801(c) de-

fines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” The

postmark meets this definition. Although a machine affixes

the mark, a postal official is responsible for setting the

machine and causing the letters to pass through it. The

postmark is thus the postal official’s written assertion that

the letter passed through his hands at the Santa Barbara

post office on a particular day. Because the government

offered the testimony about the postmark to prove that the

letter was mailed from Santa Barbara—exactly what the

mark asserts—the postmark is hearsay.

Unlike most hearsay, however, the postmark is very re-

liable; there is little risk of misperception or fabrication on

the part of the postal official. Even though it does not easily

fit into any of the enumerated hearsay exceptions, see Fed.

R. Evid. 803(1)-(23), the postmark’s circumstantial guaran-

tees of trustworthiness make it a perfect candidate for Fed.

R. Evid. 803(24), the so-called “expanding exception”:

A statement not specifically covered by any of the

foregoing exceptions but having equivalent circum-

stantial guarantees of trustworthiness, if the court de-

termines that (A) the statement is offered as evidence

of a material fact; (B) the statement is more probative

on the point for which it is offered than any other

evidence which the proponent can procure through rea-

sonable efforts; and (C) the general purposes of these

rules and the interests of justice will best be served by

admission of the statement into evidence. However, a

statement may not be admitted under this exception

A-16

unless the proponent of it makes known to the adverse

party sufficiently in advance of the trial or hearing to

provide the adverse party with a fair opportunity to

prepare to meet it, his intention to offer the statement

and the particulars of it, including the name and ad-

dress of the declarant.

(Emphasis added).

In this case, the government did not give the appellants

advance notice of its intention to offer the banker’s testi-

mony about the postmark into evidence. Therefore, al-

though we find that the testimony could have fallen within

Fed. R. Evid. 803(24), the lack of notice made it inadinis-

sible hearsay.

Nevertheless, we hold that the error in admission was

harmless. Since there was abundant evidence, aside from

the testimony about the postmark, to support the jury’s

conclusion that Templeton did not exist, we find that the

trial judge’s admission of the testimony does not merit

reversal.

PAIGE’S STATEMENTS TO THE FBI

St. Clair and Cowley filed discovery motions seeking,

among other things, statements that Paige, the key govern-

ment witness, made to the FBI. The government objected

to disclosure of the statements contending that they were

irrelevant and submitted them to the district court for in

camera inspection. The district judge stated preliminarily

that the documents were irrelevant, but reserved his final

ruling until after Paige testified. Appellants never renewed

their motions and the reports were never disclosed. The

appellants now contend that any statement made by Paige

A-17

is relevant to their case and therefore should have been pro-

duced under 18 U.S.C. § 3500(b), the Jencks Act.°

Pursuant to 18 U.S.C. § 3500(b), a defendant is entitled

to receive, upon motion, “any statement... of the witness

in the possession of the United States which relates to the

subject matter as to which the witness ha: testified.” 18

U.S.C. § 3500(¢) provides for an in camera inspection pro-

cedure.

The defense is not automatically entitled to production

of all statements in the possession of the government made

by a prosecution witness. The Jencks Act requires disclo-

sure of only statements related to the witness’s direct testi-

mony. United States v. Jones, 612 F.2d 453, 456 (9th Cir.

1979) cert. dented, 445 U.S. 966 (1980); Untted States v.

Knowles, 594 F.2d 753, 755 (9th Cir. 1979). If the govern-

ment contends that all or part of a statement is unrelated

to the witness’s testimony, then an im camera inspection and

excision by the district judge is a sound method for render-

ing Jencks Act material available to the defense. United

States v. Jones, 612 F.2d at 456.

In this case, the trial court examined the materials in

camera and did not find them to be relevant to appellants’

trial.

‘Appellants also requested the statements pursuant to Brady v.

Maryland, 373 U.S. 83, 87 (1963). Under Brady, a defendant is

entitled to any exculpatory evidence in the possession of the govern-

ment. Id. at 87-88. Here the government contended that Paige’s

statements to the FBI were unrelated to the witness’s testimony con-

cerning appellants and gave the statements to the trial court for an

in camera inspection. An in camera inspection is a sound approach

to a Brady inquiry. United States v. Jones, 612 F.2d 453, 456 (9th

Cir. 1979) cert. denied, 445 U.S. 966 (1980).

A-18

Furthermore, this court has independently reviewed

Paige’s statements to the FBI and it does not appear that

anything in the statements pertains to either of the appel-

lants or the “Templeton” transactions,

CONCLUSION

Based on the above discussion, St. Clair’s conviction on

Count 2 is affirmed; his conviction on Count 3 is reversed.

Cowley’s conviction on Count 4 is reversed.

AFFIRMED IN PART AND REVERSED IN PART.

A-19

In the United States District Court

For the Northern District of California

Before: The Heaerable Bageee F. Lynch

No. CR-82-0265 EFL

United States of America,

Plaintiff,

vs.

Michael J. St. Clair and Victor J. Cowley,

Defendants.

REPORTER’S TRANSCRIPT

Friday, October 8, 1982

R.T. 40 :5-41:3

Mr. Treman: Your Honor, since I’m joining in that

motion on behalf of Mr. St. Clair, let me indicate to the

court that, in my opinion, there may not be any cases

on it, but there is a very strong due process on it.

What occurred in this case, the way it appears, is that

the government elected not to proceed on the conspiracy

until your Honor considered and ruled in favor of the

defense motion. Then they filed a conspiracy count to the

grand jury, which did only one thing: it went around

your Honor’s ruling.

According to the government’s posture on the case, the

only thing that has been accomplished by filing that count

is to circumvent your Honor’s ruling. And I think that

A-20

that is a due process right, once a defendant has established

as a matter of case law in this case, which is what your

Honor’s decision was, a particular position with regard to

trial.

For the government to go back and to go around that

proceeding—

The Court: I cannot say that. And I do not say it when

I deny the motion. Otherwise, I would be hamstringing the

government in many things.

1 think the government has a right to take a look at

their case and make changes. And this is one that they

have done; and I do not say that they deliberately did

it for no other reason than to get around my ruling.

All right.

A-21

In the United States District Court

For the Northern District of California

No. CR-82-0265 EFL

The United States of America,

Plaintiff,

vs.

Michael J. St. Clair and Victor J. Cowley,

Defendants.

REPORTER'S TRANSCRIPT ON APPEAL

Thursday, October 21, 1982

R.T. 1067 :16-20

Mr. Treman: I make the same Rule 29 motion with

regard to the perjury count concerning the handling of

the checks by Mr. Templeton.

I’m not going to argue that.

The Court: Ill deny that motion.

A-22

In the United States District Court

For the Northern District of California

No. CR-82-0265 EFL

The United States of America,

Plaintiff,

Vs.

Michael J. St. Clair and Victor J. Cowley,

Defendants.

REPORTER’S TRANSCRIPT ON APPEAL

Monday, October 25, 1982

The Court: Yes, I am prepared to grant the motion

under Rule 29 for dismissal on the charges of conspiracy

and then I'll state my reasons for the record so that they

will be clear.

The government proposes three grounds as to why this

motion should be denied. The third ground stated is the

very close association between the two defendants; the

fact that they are partners, work in the same small office

together and clearly had access one to the other after the

29th of December and after subpoenas were served and,

of course, that they were also involved in the alleged

crimes and that it’s reasonable to expect that they would

talk, and I don’t disagree with that.

A-23

I think it’s reasonable to expect they would talk. How-

ever, even the government agrees this standing alone is

not sufficient, so therefore to get over that the government

proposes two other reasons that should be taken in con-

junction with reason number three.

Reason number one is they told the same story and an

elaborate one at that, and I reread the transcript and

the letters, et cetera, and although they told essentially

the same story about meeting Templeton, the elaborate-

ness is quite between the two of them.

The elaborateness comes from Mr. St. Clair. Mr.

Cowley’s story is not really elaborate at all.

I guess probably one should stop at the bank in light of

the fact that this evidence is they brought the letter to the

bank for deposit.

So you have to step back from that. They both describe

‘Templeton slightly different, but there wasn’t any question

they told the same story about Templeton.

But the elaborateness isn’t as clear. St. Clair is far, far

more elaborate and Cowley isn’t elaborate regarding

Templeton.

The second ground is the statement given to Mr. Page

[sic] 15 months before. Clearly on conspiracy the evidence

has to be that they intended to do it before this grand jury

at that time and how much weight one should give to a

statement 15 months before that, when there was no grand

jury, when they were talking apparently about the FBI,

I question in light of taking the whole thing together.

A-24

Therefore, it seems clear to me that the case is essen-

tially built on suspicion and surmise. Perhaps good sus-

picion, because of number three, and surmise, but not

sufficient under the cases which go into a detailed state-

ment, analysis of the United States versus Bufalino, which

we have here talked about in some detail. Okay.

A-25

In the United States District Court

For the Northern District of California

No. CR-82-0265 EFL

The United States of America,

Plaintiff,

VS.

Michael J. St. Clair and Victor J. Cowley,

Defendants.

REPORTER'S TRANSCRIPT ON APPEAL

Monday, October 25, 1982

R.T. 1175:18-1176:12

Okay. L’ll deny the motion for severance. I see no evi-

dence, really, that the government did not bring this in

good faith at all. Merely because I am granting a Rule 29

motion does not mean that it is in bad faith.

Therefore, | must look at the government’s case and I

have done so and in my opinion they have not brought the

case in bad faith.

Their real problem at the end of the case, at the end,

now that that’s all in, while they have a very strong argu-

ment in number three, the close association, et cetera, that’s

not enough under the case law, and the other two argu-

ments they have, while there is some evidence, in my

opinion taken as a whole are not sufficient.

A-26

But I see no evidence that they brought it in bad faith

at all.

Furthermore, in addition I see no evidence of prejudice

to Mr. St. Clair or—excuse me, to Mr. St. Clair and/or

Mr. Cowley, and therefore | deny the motion, and in doing

so I cite United States versus Benny Ong, 541 Fed Re-

porter 2nd, page 331. Okay.

A-27

CONSTITUTIONAL PROVISIONS, STATUTES, RULES

18 U.S.C. § 1623 reads:

(a) Whoever under oath (or in any declaration, certifi-

cate, verification, or statement under penalty of perjury

as permitted under section 1746 of title 28, United States

Code) in any proceeding before or ancillary to any court

or grand jury of the United States knowingly makes any

false material declaration or makes or uses any other infor-

mation, including any book, paper, document, record, re-

cording, or other material, knowing the same to contain

any false material declaration, shall be fined not more than

$10,000 or imprisoned not more than five years, or both.

(b) This section is applicable whether the conduct oc-

curred within or without the United States.

(c) An indictment or information for violation of this

section alleging that, in any proceedings before or ancillary

to any court or grand jury of the United States, the de-

fendant under oath has knowingly made two or more

declarations which are inconsistent to the degree that one

of them is necessarily false, need not specify which dec-

laration is false if—

(1) each declaration was material to the point in ques-

tion, and

(2) each declaration was made within the period of

the statute of limitations for the offense charged under

this section.

In any prosecution under this section, the falsity of a

declaration set forth in the indictment or information shall

be established sufficient for conviction by proof that the

A-28

defendant while under oath made irreconcilably contradic-

tory declarations material to the point in question in any

proceeding before or ancillary to any court or grand jury.

It shall be a defense to an indictment or information made

pursuant to the first sentence of this subsection that the

defendant at the time he made each declaration believed

the declaration was true.

(d) Where, in the same continuous court or grand jury

proceeding in which a declaration is made, the person mak-

ing the declaration admits such declaration to be false,

such admission shall bar prosecution under this section if.

at the time the admission is made, the declaration has not

substantially affected the proceeding, or it has not become

manifest that such falsity has been or will be exposed.

(e) Proof beyond a reasonable doubt under this section

is sufficient for conviction. It shall not be necessary that

such proof be made by any particular number of witnesses

or by documentary or other type of evidence.