Petition for Writ of Certiorari — Machen v. United States

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Suprema Covi, v §,

FILER

jUL 23 1990

JOSEPH F. SFANIGL, JR,

No. 89-

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

ROBERT B. MACHEN,

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT B. MACHEN

Pro Se

1418 South 21 Street

Arlington, VA 22202

(703) 920-3091

July 21, 1990

eS Woes ee

QUESTIONS PRESENTED

1. Did the trial court abuse its

discretion in denying petitioner's 28

U.S.C. 2255 Motion by holding that no

violation of petitioner's statutory rights

under 18 U.S.C. 6002-6003 occurred even

though the government used the compelled

immune testimony of petitioner to gain his

conviction. Although the United States

Court of Appeals for the Fourth Circuit

found no error in the trial court's denial

of relief on the issue, the Court of

Appeals for the District of Columbia gave

an opposite ruling in United States v.

Oliver North. The North case was reversed

for lack of a full hearing on the issue of

whether or not the government used immune

testimony.

Ha Did the trial court abuse its

discretion in denying petitioner's 28

U.S.C. 2255 Motion alleging ineffective

assistance of counsel so serious as to

deprive the petitioner of a fair trial

when petitioner showed that counsel's

performance was seriously deficient and

that petitioner's defense was prejudiced?

3. Did the trial court abuse its

discretion in denying petitioner's 28

U.S.C. 2255 Motion alleging that perjury,

which was known to be false by the

prosecutor, was used to gain the

indictment and conviction of the

petitioner?

PARTIES TO THE PROCEEDING

The parties before this Court are the

same as those identified in the caption of

this petition.

iii

TABLE OF CONTENTS

Questions Presented ......e««. -« i

Parties to the Proceeding ..... iii

Papse GE AUGtMOTSCieS.« « « « 6 6 6 @ vi

Opinions Below ..«+s++s++eeeereee 2

Rog © ae a cr er ee 2

Constitutional and Statutory

Provisions Involved ...... 2

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

Issue I . «© «se see © © © © @ © © 22

Issue II ..«+s«-ees cee eee se 34

Issue III ..«+s«-e«-e-ceeee eee e 43

Reasons for Granting the Writ... 57

Comeiusiom ..«sc«ereee vv nvestese 58

Certificate of Service ....... 59

Appendices

A - United States Court of Appeals,

Fourth Circuit Decision dated May 22,

1990. [Page A-1]

B - United States Court of Appeals,

Fourth Circuit Decision dated April 26,

1990. [Page A-3]

C - United States District Court,

Fourth Circuit Order dated September 5,

1990. [Page A-5]

D - United States Court of Appeals,

Fourth Circuit Decision November 8,

1988. [Page A-21]

TABLE OF AUTHORITIES

CASES

Alcorta v. Texas,

335 U.B. 26 (i987) « © 6 8 8 8

Berger v. United States,

295 U.S. 78, 55 S.Ct. 629,

79 L.Ed. 1314 (1935) ... 43,

Communist Party v. Subversive

Activities Control Board,

351 U.S. 115, 70 S.Ct. 663,

100 L.Bd. 1003 . . « «© « © « «

In re Sealed Case,

794 P.424 179 (B.C. Cik.)

cert den. 479 U.S. 924 (1986)

Kastigar v. United States

406 U.S. 441 (1972) .... 22,

33, 35,

Massie v. Firestone,

134 Va. 450,

114 S.E. 652 (1922) .....

Mooney v. Holohan

294 U.S. 103 (1935) ......

Napue v. Illinois,

360 U.S. 264, 79 S.Ct. 1173,

3 L.Ed.2d 1217 (1959) ....

Strickland v. Washington,

466 U.S. 668, 80 L.Ed.2d 674,

104 S.Ct. 2052 (1984) .... .

26,

36,

34,

28,

United States v. Anzalone,

555 F.2d 317 (2d Cir. 1977) .

United

States v. Crowson,

828 F.2d 1427 (1987),

cert. den. 109 S.C. 87 (1988)

United States v. Garrett

797 F.2d 656

(8th Cir. 1986) * . el * . . *

United States v. Gerace,

576 F.Supp. 1185

(D.NJ 1983) . . * . . *. . .

United

States v. Hampton

775 F.2d 1479

(llth Cir. 1985) ...+4. «

United States v. Hinton,

543

F.2d 1002 (2d Cir.)

dert den. 429 U.S. 980 (1976)

United

648

United

482

United

423

United

352

United

555

States v. Kember

F.2d 1354 (D.C. Cir. 1980)

States v. McDaniel

F.2d 305 (8th Cir. 1973)

States v. McGowan,

F.2d 413 (4th Cir. 1970)

States v. Mesarosh

OU.8. 2 (A9SG) © ee eo ee

States v. Nemes,

F.2d 51 (2d Cir. 1977) .

vii

24,

23,

United States v. Rinaldi,

808 F.2d 1579

(D.C.

= TO

United States

712 F.2d 891 (3d Cir. 1983) .... 24

Vv.

United States v.

680 F.2d 903 (2d Cir. 1982) .... 29

United States

678 F.2d 856 (10th Cir. 1982) ... 29

Vv.

United States v.

740 F.2d 727 (9th Cir. 1984) ... 28

1987) ... . . 25, 27, 30

Semkiw

Tantalo,

Veery,

Zielezinski,

CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment

18 OG eBeCe

18 U.S.C.

OTHER

5, U.S. Constitution. . Passim

Amendment 6, U.S. Constitution ... 3, 34

6002

6003

. . . . . . 3e Ve 36, 57

. . . . . . . . . . be 57

Treasury Regulation 230 ........ 48

viii

No. 89-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

ROBERT B. MACHEN,

Petiticner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner, Robert B. Machen,

respectfully prays that a writ of cer-

tiorari issue to review the judgment of

the Fourth Circuit in this proceeding

entered on April 26, 1990, with the Peti-

tion for Rehearing denied on May 22, 1990.

OPINIONS BELOW

The trial court's opinion is shown in

the Appendix at A-5. The opinion of the

Fourth Circuit Court of Appeals is

unpublished, and included in the Appendix

at A-3. The Order denying rehearing,

entered on May 22, 1990, is included in

the Appendix at A-l.

JURISDICTION

The final judgment of the Fourth

Circuit Court of Appeals was entered on

May 22, 1990, in the form of an Order

denying rehearing. This Court's

jurisdiction is invoked pursuant to 28

U.8.C. Section 1257.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This case involves United States Con-

stitution Amendment Five, "No person shall

be . . . deprived of life, liberty, or

property, without due process of law. ..

"ana the right to effective assistance of

counsel clause of the Sixth Amendment to

the Constitution of the United States.

Federal Statute 18 U.S.C. 6002

provides:

***no testimony or other

information compelled under the

order (or any other information

directly or indirectly derived

from such testimony or other

information) may be used against

the witness in any criminal case

except for a prosecution for

perjury, giving a false statement,

or otherwise failing to comply

with the order.

STATEMENT OF THE CASE

Criminal proceedings in which the

petitioner, Robert B. Machen, became

involved began with a visit to

petitioner's law office by an investigator

with the Internal Security Division of the

Internal Revenue Service on March 20,

1984. Petitioner was served with a

subpoena for a variety of his law office

a 28 U.S.C. 2255 Motion. The trial court

denied the motion on September 5, 1989.

The Court of Appeals for the Fourth

Circuit denied the appeal on April 26,

1990, and the Motion for a Rehearing was

denied on May 22, 1990.

The United States District Court for

the Eastern District of Virginia,

Alexandria Division, empaneled Grand Jury

84-2. One Grand Jury 84-2's target was

Mark Kellogg (M.K.). The original

question concerning M.K. was whether or

not he received a fee from the Hill Estate

and, if so, did he have a conflict of

interest. In the course of the

investigation, through the guidance and

urging of an Assistant U.S. Attorney

[AUSA] and an IRS agent named Rice,

petitioner became a "target" of the Grand

Jury investigation. Unaware he was a

"target," petitioner appeared before Grand

Jury 84-2 pursuant to a subpoena and Order

of Immunity. On 1 November 1985, the

District Court discharged Grand Jury 84-2

which had not indicted petitioner.

In September 1987, Grand Jury 87-2

indicted petitioner on six counts.

Despite the Order of Immunity under which

petitioner appeared and 18 U.S.C. 6002-

6003, no perjury or false declaration

count was involved. On October 7, 1987, a

Superseding indictment replaced the

original six-count indictment with seven

counts. There followed an active motions

practice respecting discovery, dismissals,

and continuances. At no time, however,

did counsel for the defense file a motion

to compel the government to show that the

evidence it intended to use at trial was

other than the compelled immune testimony.

The use of the compelled evidence was

prohibited by 18 USC 6002-6003.

The case went to trial on Monday,

December 7, 1987. The court denied

defense motions for continuance based on

the death of defense [expert] witness's

father. On Monday, December 7, the

government presented its case in chief.

On Tuesday, the defense put on its case.

The trial Court permitted arguments on

Wednesday. On Thursday, the jury returned

its verdict. On January 8, 1988,

petitioner was sentenced and the trial

court denied petitioner's first FRCrP Rule

33 motion wherein after trial an

independent witness, William Bundren,

Esquire, came forward after he learned of

petitioner's conviction and presented

evidence to show that he was present when

Dorothy Machen instructed Rosenbrook

before January 30, 1984, to correct the

records that were alleged by Rosenbrook to

have been changed after the grand jury

issued its subpoena on March 20, 1984. On

January 15, the trial court denied

petitioner's second Rule 33 Motion. Four

independent witnesses presented testimony

(by affidavit) to show that petitioner was

not in his office on the date of the

alleged incident and could not have

instructed Rosenbrook to alter the records

as she alleged. The January 8, 1988,

motion, along with the case in chief, was

appealed to the Circuit Court of Appeals

for the Fourth Circuit. On July 15, 1988,

the trial court dismissed petitioner's

third Rule 33 Motion, without prejudice.

Petitioner presented evidence to show that

the Thacher records that were alleged by

Rosenbrook to have been misappropriated,

secreted away and destroyed by petitioner,

were in fact kept by Thacher and produced

after the government's case was presented.

A petition for a Writ of Certiorari was

—

filed and subsequently denied on March 6,

1989. The sole issue was whether or not

petitioner's Fifth Amendment rights were

violated by permitting the jury to be told

that petitioner invoked a Fifth Amendment

claim when testifying before the grand

jury.

Facts

Susan Rosenbrook, the chief witness

for the Government, testified that

following the issuance of a Grand Jury

subpoena on March 20, 1984, petitioner

instructed her to change the law office

overhead account 1983 (receipts) summary

sheet. The summary sheets were simply the

totals of the quarterly receipts and

payments into and out of the overhead

account (no daily or quarterly entries

were in question). She also testified

that on the same day petitioner

misappropriated, secreted away, and

| eG Oooo

destroyed the original copies of the

records that had been provided to the

second law partner on a routine basis for

the 1982 and 1983 calendar years.

Additionally, she testified that

petitioner instructed her on the same day

to add white out to cover the initials MK

found on four checkbook stubs (the

checkbook stubs were yellow). She further

claimed that petitioner had on more than a

dozen but less than a hundred times

following her interview with Investigator

Rice on March 27, 1984, petitioner asked

her to change the entire set of overhead

account records. This, as shown below,

would be the same records kept by Judge

Swersky since the morning of March 24,

1984. Rosenbrook and the government did

not know that Swersky had absolute

possession and control of the records from

March 24, 1984, until they were turned

over to the government on January 30,

1985. Rosenbrook even went so far as to

testify that petitioner had invited her to

his house to make changes to the entire

set of records (not knowing at the time of

her testimony of Swersky's having the

records). Following the presentation of

the government case and during the

defense's case, when the government

learned that Swersky had retained the

entire set of records from March 24, 1984,

to January 30, 1985, and thereafter the

government had possession of the records,

Assistant U.S. Attorney Melson then began

an attempt to show by his questioning and

theorizing--Wasn't it possible for the

alleged act to have taken place on March

21, 1984? Later he claimed to the jury

and argued without evidence to support his

statement that the alleged claims

testified by Rosenbrook did take place on

March 21, 1984. (See, however, the after-

discovered evidence shown below that

completely negates the claim of the

government. )

Rosenbrook, however, testified on

cross examination that she had told

Investigators Rice and Anderson on June

25, 1984, that petitioner didn't instruct

her to alter the records in response to

their specific questions on that point.

Investigator Anderson falsely denied

having been at the June 25, 1984, meeting

and Rice did not report her response but,

instead, falsely reported in his

memorandum that Rosenbrook had claimed

that she had said that Machen had asked

her to alter the summary sheets.

Petitioner, by contrast, denied having

ever instructed Rosenbrook to change the

records, add any whiteout to any checkbook

stubs and denied taking or destroying

Thacher's records.

On June 7, 1984, petitioner,

through his attorney Alfred Swersky,

turned over to the Government copies of

all the information which was later turned

over to the Grand Jury on January 30,

1985. The information provided included

the 1983 corrected summary sheets and the

cancelled checks containing the same

information found on the checkbook stubs

before Rosenbrook put the whiteout on the

stubs. Petitioner and his wife and book-

keeper, Dorothy, testified that Dorothy

found that Susan Rosenbrook had made a

transposition error in the 4th quarter

1983 overhead account records. Susan

Rosenbrook was advised by Dorothy prior to

January 30, 1984, to make the correction

so that the records would correctly

reflect an accurate accounting of the

overhead records. The error was dis-

———ea=—eoeoe==

covered by Dorothy Machen as she prepared

to file petitioner's business license tax

before January 31, 1984. A certified copy

of the business license application filed

January 30, 1984, was introduced into

evidence to show that the corrected

amounts were reported on petitioner's

taxes.

Susan Rosenbrook readily admitted

during her earlier interviews that she had

made mathematical changes to the records.

Rice reported that she claimed that the

correction and white outs were made during

the weekend of March 24, 1984. During a

different interview, Rice reported that

she claimed to have made the changes on

March 26, 1984. On February 5, 1985, she

made a sworn written statement that said

the changes were made on March 22, 1984.

When pressed at trial during cross

examination, Rosenbrook admitted that she

| 15

could not say on which date the alleged

incidents took place.

During trial, petitioner produced

evidence to show that on March 21, 1984,

he was in Warrenton, Virginia, taking

depositions all day; on March 22, 1984,

he was in the Bethesda Naval Hospital and

had 37 x-rays taken, each marked with the

date and time; and on Friday, March 23,

1984, he was in trial all day with clients

waiting for him when he arrived at 8:00

a.m. and finally all the overhead account

records were turned over to his attorney

on March 24, 1984, at 8:30 a.m. and at no

time thereafter did petitioner ever see

the records except to pass them from his

attorney to the U.S. Attorney just prior

to the grand jury hearing of January 30,

1985.

The former U.S. Attorney for the

Eastern District of Virginia, Brian

Gettings, testified as Mark Kellogg's

attorney he reviewed the records in the

late afternoon of March 22, 1984. Judge

Alfred Swersky testified that he received

the records at 8:30 a.m. on Saturday,

March 24, 1984, and kept the records until

turned over to the Grand Jury on January

30, 1985. Petitioner's defense was not

only had he not requested that the records

be changed nor had he destroyed the

records but he had no opportunity to

instruct Rosenbrook to change the

documents between the time the subpoena

was issued and his turnover of the records

to his attorney. Petitioner's claim was

that any alleged requested change to the

records after they were shown to Kellogg's

attorney (Mr. Gettings) or turned over to

his own attorney for retention would be

incredibly unbelievable.

After trial, William Bundren, an

attorney who at one time worked in the

office with Dorothy Machen, swore by

affidavit that he heard Dorothy Machen

instruct Susan Rosenbrook to make

necessary changes to the 1983 overhead

account records as he prepared and

discussed with Dorothy Machen the

preparation of his business license tax

which also had to be filed by January 3l,

1984.

As stated above, Susan Rosenbrook

admitted that petitioner "didn't instruct

her to make changes to the records" (after

March 20, 1984) but "she got that

impression," and even though Rosenbrook

testified that she told Investigators Rice

and Anderson the same statement on June

25, 1984, the Government argued to the

jury (but had no presentation of evidence

to support the argument) that the changes

were made on March 21, 1984. After trial

and sentencing, both Dorothy Byers and

James Byers swore by affidavit that they

were in petitioner's office due to an

uncancelled appointment between 7:40 a.m.

and 9:45 a.m. on March 21, 1984. They

swore that petitioner was out of his

office and were told after 9:00 a.m. by

the secretary petitioner was working on

the "Culpeper Case" in Warrenton,

Virginia, which was approximately 60 miles

from petitioner's office. The time

covered by the Byers's testimony was

during the time the changes were alleged

to have been requested and made and the

Thacher records were alleged to have been

Misappropriated, secreted away and

destroyed. The court instructed the jury

that the government did not have to prove

with specificity the date the alleged

incident took place.

Professor Mark Kellogg, the person

under investigation, testified during a

Grand Jury appearance while under an Order

of Immunity that he had caught Susan

Rosenbrook adding white out to the check-

book stubs and in no uncertain terms

required her to stop making the white outs

and leave the checkbook stubs alone. Mark

Kellogg further testified that petitioner

was not in the office and did not return

to the office for a “couple of days" after

he (Kellogg) had caught Rosenbrook adding

the white out to the checkbook stubs.

Mark Kellogg was not, however, called as a

defense witness by trial counsel.

Mary Keough also read about

petitioner's conviction and came forward

and verified by affidavit that she was in

petitioner's office before he arrived on

March 23, 1984. She also stated that she

went to court and was in court with him

all day and saw him go to another office

after 4 p.m. when he did not return with

her to his office on Friday, March 23,

1984.

According to the sworn affidavit of

Mary B. Cusick, who also came forward

after trial, she was present on March 23,

1984, at approximately 5:15 p.m. when

petitioner returned to his office and Mark

Kellogg told petitioner about and showed

Machen the checkbook stubs that had been

whited sut by Susan Rosenbrook. Mary

Cusick we on the say that there was much

swearing and yelling as the white outs

were pointed out to petitioner.

The Court, upon being presented the

affidavits described above as newly dis-

covered evidence, found that it was

cumulative and impeaching and that

impeachment of Government witnesses by

evidence that is discovered after trial is

inadmissible.

Issue I

To better understand the

significance of counsel's failure to file

a motion to compell the government to show

that their evidence was independent of the

immune testimony and to dismiss the first

six counts of the superseding indictment

as a violation of petitioner's Fifth

Amendment right under Kastigar v. United

States, 406 U.S. 441 (1972) and 18 U.S.C.

6002-6003, the following is submitted.

In Kastigar, the Supreme Court

broadly held that any direct or indirect

use against a defendant of testimony given

under a grant of immunity violates the

Fifth Amendment and is prohibited. The

"heavy burden" squarely rests with the

prosecution "to prove that the evidence it

proposes to use is derived from a

legitimate source wholly independent of

the compelled testimony." Kastigar, 406

U.8. at 460, 661; Implementing this

requirement, courts routinely require that

the prosecution produce evidence to

establish that all the evidence presented

to the grand jury, and all the evidence

utilized at trial, was derived from

legitimate, independent sources. See

United States v. Nemes, 555 F.2d 51, 55

(2d Cif L977) (government must

"demonstrate that the evidence presented

to the federal grand jury and to the trial

jury was derived from sources wholly

independent of immunized testimony"). To

make this showing, the prosecution must

"systematically establish an independent

source for each and every item of evidence

which may have been considered by the

indicting grand jury," United States v.

Hampton, 775 F.2d 1479, 1488 (llth Cir.

(1985) (emphasis supplied), or which was

introduced at trial. See In re Sealed

Case, 791 F.2d 179, 182 (D.C. Cir.), cert

denied, 479 U.S. 924 (1986); United States

v. Semkiw, 712 F.2d 891 (3d Cir. 1983).

In a significant majority of jurisdictions

(see United States v. Garrett, 797 F.2d

656, 663-64 (8th Cir. 1986); United States

v. Semkiw, 712 F.2d 891, 894-95 (3d Cir.

1983); United States v. Hinton, 543 F.2d

1002 (2d Cir.), cert. denied, 429 U.S. 980

(1976); United States v. McDaniel, 482

F.2d 305, 311 (8th Cir. 1973); United

States v. Gerace, 576 F.Supp. 1185 (D.NJ

1983); cf. United States v. Kember, 648

F.2d 1354, 1363 (D.C. Cir. 1980) (citing

McDaniel and noting that exposure by

prosecutor meant “use admittedly had been

made" of immunized testimony), the

government must also show that all

Significant decisions by prosecutors,

grand jurors, or jurors were unaffected by

immunized testimony (often referred to as

nonevidentiary use). As the government

bears the burden of proving that evidence

"was free of taint and independently

derived, [the court] may not infer

findings favorable to it on these

questions." United States v. Rinadli, 808

F.2d 1579, 1583 (D.C. Cir. 1987).

The foregoing requires that the

counts of the indictment other than

perjury be dismissed as a matter of law.

The Unitec States government made the

decision to compel testimony and other

information from petitioner in January of

1984 and then to indict and try him in

1987 for the matters as to which he had

previously testified. Given the

widespread use of immunized testimony by

choice of the government, the broad use

and derivative use of immunized testimony

by the grand jury, the prosecutors, the

jurors, and the witnesses, violation of

Kastigar was inevitable. Petitioner

submits that it was impossible as a matter

of law for the government to make the

requisite showing that no use had been

made of that testimony "in any respect"

(Kastigar, 406 U.S. at 453 (emphasis in

original), in securing his conviction, or

that defendant "is in substantially the

same position” (Id. at 462) as if his

testimony had not been compelled.

The prosecution was required to

come forward in an adversary evidentiary

hearing to attempt to meet the heavy

burden imposed upon it by the Fifth

Amendment, the immunity statute, Kastigar,

and implementing case law. These

authorities require that the counts of the

indictment must be dismissed unless the

government can meet its extraordinary

burden of proving an absence of direct or

indirect "use" of petitioner's testimony,

with the defense having a fair opportunity

to test the government's showing in a

proper adversarial posture. Shown below

are the essential components of such an

inquiry.

Witnesses Critical to the Inquiry

(a) Grand Jury and Trial Witnesses

- When the government introduces in the

grand jury or at trial the testimony of a

witness exposed to immunized testimony, it

must make a witness-by-witness, item-by-

item showing of the independent sources

for all the evidence presented by the

witness, and the court must make specific

findines as to the sources of that

evidence. See United States v. Rinadli,

808 F.2d at 1583-84. The purpose of such

an inquiry is to assure that the testimony

was not derived from listening to

immunized testimony, influenced in any way

by (or the product in any way of) the

immunized testimony, or the result of

questions based on immunized testimony.

To try to meet its burden, the

government must call as witnesses at an

adversarial hearing each of the witnesses

who testified at trial or before the grand

jury and attempt to prove either that they

were not exposed to the immunized

testimony or that they made no direct or

indirect use of petitioner's immunized

testimony in their testimony before the

grand jury or at trial.

(b) Grand Jurors - Courts of

appeals uniformly have held that the Fifth

Amendment, the federal use immunity

statute, and Kastigar prohibit use of

immunized testimony by the grand jury.

See United States v. Garrett, 797 F.2d 656

(8th Cir. 1986); United States v. Hampton,

775 F.2d 1479 (llth Cir. 1985); United

States v. Zielezinski, 740 F.2d 727 (9th

28 "

Cir. 1984); United States v. Tantalo, 680

F.2d 903 (2d Cir. 1982); United States v.

Veery, 678 F.2d 856 (10th Cir. 1982);

United States v. Anzalone, 555 F.2d 317

(2d Cir. 1977). In some courts exposure

to immunized testimony requires dismissal

(see Tantalo, Anzalone), whereas other

courts reject this per se rule; but even

these courts require that the government

make an item-by-item showing of the

independent sources of all evidence

presented to the grand jury and that the

government demonstrate that no “use” has

been made in the decision to indict. In

this case, in which the grand jurors

inevitably were exposed to petitioner's

immunized testimony by virtue of the

government's decision to use petitioner's

testimony and documents to continue its

investigation and present evidence to the

grand jury by the investigator's use of

the compelled testimony, the government

must call each of the grand jurors as

witnesses to permit the court to determine

the extent of their exposure both inside

and outside the grand jury room and to

prove, with full adversarial testing, that

they made no use of the testimony to which

they were exposed in reaching their

decision to indict.

established that a defendant's immunized

testimony may not be used against him

directly or indirectly at trial. See

United States v. Rinaldi, supra. The

government must therefore prove that no

"use" had been made of petitioner's

immunized testimony by jurors at trial.

Particularly in this case, where the

government made the decision to provide to

the jury petitioner's unredacted grand

jury testimony, the government bears the

burden of proving that the jurors were not

exposed to that immunized testimony before

or during trial or, if they were, that

they made no "use" of that immunized

testimony in their deliberations. To do

so the government Must call the jurors as

witnesses to try to prove, ina formal

adversarial proceeding, that there has

been no violation of petitioner's

constitutional or statutory rights by

virtue of juror exposure to immunized

testimony.

(d) Prosecutors - The clear

majority of courts prohibit the

"nonevidentiary" use of immunized

testimony against a defendant. This term

includes "assistance in focusing the

investigation, deciding to initiate

prosecution, refusing to plea bargain,

interpreting evidence, planning cross-

examination, and otherwise generally

planning trial strategy." United States

v. Crowson, 828 F.2d 1427, 1430 (th Cir.

1987), cert. denied, 109 S.Ct. 87 (1988).

To attempt to meet its burden, the

government must present as witnesses at an

adversarial hearing each member of the

prosecutorial staff who assisted in the

investigation or prosecution of this case,

to enable the court to determine the

extent of his or her exposure to

petitioner's immunized testimony, and to

attempt to prove that none made any use of

that testimony either as an investigatory

lead to evidence (i.e., in deciding whom

or what to subpoena, what questions to

ask, whom to immunize, or whom to call as

a government witness), or in a

nonevidentiary way.

Documents Critical to the Inquiry

Counsel should have required the

government to show that each government

exhibit was independent of the immunized

testimony of petitioner. Counsel should

have specifically requested that the iRS

investigators' notes, memorandums,

interview reports and internal files of

the IRS, and any comparable file

maintained by the IRS or any other

agencies or other entities involved in the

investigation or prosecution be produced

to show that they were independent of the

immunized testimony.

For the foregoing reasons, counsel

for the defendant (petitioner) should have

presented a motion to the court for

dismissal of the counts of the indictment

or, in the alternative, to request an

inquiry which was mandated by the Fifth

Amendment, Kastigar, and the federal use

immunity statutes. _

Issue II

Counsel for the defendant

(petitioner) did not provide reasonably

effective assistance as guaranteed by the

Sixth Amendment. Counsei's errors were so

serious as to deprive the defendant of a

Saas @8i6s. 626. but for counsel's

professional errors, the results would

have been different. The list of errors

shows that the petitioner was deprived of

a fair trial.

In Strickland v. Washington, 466

U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052

(1984), the court held that the

defendant's claim that counsel's

assistance was so deficient as to require

reversal of a conviction must show two

components. First, the defendant must

show that counsel's performance was

deficient. This requires showing that

counsel made errors so serious that

counsel was not functioning as the

"counsel" guaranteed by the Sixth

Amendment. Second, the defendant must

show that the deficient performance

prejudiced the defense. This requires

that counsel's errors were so serious as

to deprive the defendant a fair trial, a

trial whose result is reliable.

The errors that are enumerated

below show that counsel made errors so

serious that he was not functioning as

counsel.

(1) Counsel did not request or

demand that the government comply with 18

U.S.C. 6002 and/or 6003 and the holdings

in Kastigar v. United States, 406 U.S.

441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972),

and prove to the court that the evidence

to be presented at trial was independent

of the evidence gained as a result of the

Immunity Order.

OOO

(2) Counsel did not object to the

admission of the immune testimony when

presented by the government for use at

trial, in violation of 18 U.S.C. 6002-6003

and Kastigar, supra.

(3) Counsel did not even respond to

the court's invitation to settle the issue

of immunity when invited to do so when the

court, in response to the motion of

acquittal, stated that it was troubled by

the fact that the defendant (petitioner)

was being prosecuted following a grant of

immunity and asked counsel to argue the

point. Counsel did not respond to the

court's invitation to argue.

The use and admissibility of the

immune testimony without objection was the

cornerstone of the government's case

against petitioner. Without the use of

the immune testimony for its

investigation, indictment, and trial of

petitioner, the government would have been

unable to make a case, get an indictment

or gain the conviction of petitioner.

This case meets every requirement for

ineffective assistance of counsel set

forth in Strickland v. Washington, 466

U.S. 668, at 687.

No clearer evidence of

ineffectiveness of counsel can be shown

than the failure of counsel to require the

government to comply with a statute

designed to protect the rights of the

accused or the holdings of the United

States Supreme Court requiring absolute

action by the government plus a specific

invitation by the court to raise and argue

the Leann al immunity. The trial record

is void of any effective action to protect

petitioner's statutory rights which were

also guaranteed by the holdings of the

United States Supreme Court.

(4) Counsel failed to call

petitioner's only exculpatory witness

(Kellogg), who saw Rosenbrook whiting out

the checkbook stubs and knew that

petitioner was out of town working on

another case and, contrary to her

testimony, petitioner was not in the

office instructing her to alter the

records or misappropriate, secret away and

destroy the Thacher records.

(5) The defense attorney failed to

introduce evidence showing the contra-

dictory prior inconsistent statements of

the government chief witness, Susan Rosen-

brook, whereby:

a) While under oath Rosenbrook

claimed to have made alterations to the

records 1 March 26, 1984, two days after

the records were turned over to

petitioner's attorney.

b) On another occasion she

claimed under oath the records were

altered on March 22, 1984, (while

petitioner was in the hospital) yet she

claimed petitioner was present and

directed her to make the changes.

c) The suppressed records showed

that the U.S. Attorney and IRS

investigators knew that Rosenbrook made no

claim of a change before March 26, 1984,

and verified that petitioner took the

records home with him on the weekend of

March 24, 1984.

d) Argument (without objection)

by AUSA Melson that the changes took place

on March 21, 1984, even though no evidence

was presented to show the acts took place

on March 21, 1984.

(6) Counsel failed to be

knowledgeable of routine procedures

required to be known of a reasonably

competent attorney practicing before the

federal court system, such as, when a

motion for new trial was made, based on

newly discovered evidence (violation of

Department of Justice policy by failure to

adhere to the requirements of the Attorney

General Manual), the trial court ruled

that any person practicing before the

federal courts would have knowledge of the

Attorney General's Manual and as such,

diligence would have brought out the

violation prior to or during the trial.

(7) Counsel for the defendant in

trial preparation did rely heavily upon

the expert witness's testimony to explain

the records in question and repeatedly

requested that the court continue the case

until the expert witness could testify.

Following the trial and during the

preparation for the appeal, it was learned

that counsel for the defendant voluntarily

permitted the non-appearance of the expert

witness whose father had been buried

during the week preceding the trial of the

defendant.

(8) Counsel failed to argue to the

jury that Rosenbrook had made a judicial

admission (Massie v. Firestone, 134 Va.

450, 114 S.E. 652 (1922)) whereby the

witness can rise no higher than her own

testimony. Rosenbrook stated in cross

examination that petitioner “didn't”

instruct her to alter the documents and

testified that she had so advised the

grand jury investigator on June 25, 1984.

(9) As stated by the court, counsel

failed to exercise due diligence and

interview the after-discovered witnesses

who were able to present independent evi-

dence that petitioner was not in his

office at the time of the alleged

incident.

“Totkha + ._ | oan vo | - ass a54 14 .

LC UnSedl Ltaiiea to exercise aue cgiisiiligqence

' Be > Yr r YY > - Pr ++ _ a.

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Issue III

The petitioner's due process rights

were violated when perjury, material to

the issues in the case and known to the

prosecution, was used by the government to

gain the indictment and conviction of the

defendant in violation of Berger v. United

States, 295 U.S. 78, 55 S.Ct. 629, 79

L.Ed. 1314 (1935), and United States v.

Mesarosh, 352 U.S. 1 (1956).

The dignity of the United States

Government will not permit the conviction

of any person on tainted testimony, so

said the United States Supreme Court in

Mesarosh v. United States, 352 U.S. l, l

L.Ed. 2d 1, 77 L.Ed. 1 (1956). The court,

in finding that a conviction was tainted

by perjury, ruled that there could be no

other just result than to award the

petitioner a new trial.

In the line of cases starting with

Mooney v. Holohan, 294 U.S. 103 (1935),

and moving in content through Alcorta v.

exas, 335 U.S. 28 (1957), Napue v.

Illinois, 360 U.S. 264, 79 §.Ct. 1173, 3

L.Ed.2d 1217 (1959), the Surpeme Court of

the United States has held that the

prosecutors have a fundamental duty not to

suborn perjury (Mooney), not to use

evidence known to be false (Alcorta) and

to correct state witnesses who lie

(Napue). Each of these duties protects

the individual defendant. Most

Significant is the protection against

perjury or the possibility of perjury that

strikes at the heart of the judicial

system in its role as the finder of truth.

When the prosecutor involves himself in

perjury, he lends official sanction to the

fraud.

In Berger v. United States, 295

U.S. 78-89 (1935) the court held that it

is as much the duty of a prosecrting

attorney to refrain from improper methods

calculated to bring about a wrongful

conviction as it is to use every

legitimate means to bring about a just

one. In Berger, at 87, the court held

that:

The United States Attorney is the

representative not of an ordinary

party to a controversy, but of a

sovereignty whose obligation to

govern impartially is as

compelling as its obligation to

govern at all; and whose interest,

therefore, in a criminal

prosecution is not that it shall

win a case, but that justice shall

be done. As such, he is in a

peculiar and very definite sense

the servant of the law, the

twofold aim of which is that guilt

shall not escape or innocence

suffer. He may prosecute with

earnestness and vigor--indeed, he

should do so. But, while he may

strike hard blows, he is not at

liberty to strike foul ones.

The court held in Communist Party v.

Subversive Activities Control Board, 351

U.S. 115, 124, 70 &.Ct. 663, 666 [100

45 |

L.Ed. 1003], that:

"The untainted administration of

Justice is certainly one of the

most cherished aspects of our

institutions. Its observance is

one of our proudest boasts. .. .

[flastidious regard for the honor

of the administration of justice

requires the Court to make certain

that the doing of justice be made

so manifest that only irrational

or perverse claims of its

disregard can be asserted.

In U.S. v. McGowan, 423 F.2d 413 (4th

Cir. 1970), in ruling that the appellant

was prejudiced by the denial of an

Opportunity to examine the Grand Jury

testimony, the Court held that if the

witness's earlier testimony is

inconsistent with his trial affirmations,

the truth of the witness's previous

evidence is not at stake and any variance

is usable only to shake later testimony.

The records of this case clearly show

the following specific acts of misconduct

whereby the government used perjury to

gain a conviction.

Both Assistant U.S. Attorneys,

Justin Williams and Kenneth Melson, were

present at trial and, in violation of

their constitutional duty to represent the

government ethically, violated their duty.

SPECIFIC ACTS OF MISCONDUCT WHICH HAVE

NEVER BEEN DENIED BY THE GOVERNMENT

Perjury Condoned by the Prosecution

1. Justin Williams and Kenneth

Melson, Assistant United States Attorneys,

knew that the Thacher records had not been

misappropriated, secreted away and

destroyed by petitioner but, instead, knew

from Thacher's grand jury testimony that

Thacher had retained the alleged stolen

records in his possession and that Kenneth

Melson as well as Investigators Anderson

and Rice had seen those records on October

18, 1984. Williams, who read the 1984

Thacher grand jury testimony to the 1987

grand jury, did therefore know that the

Thacher records had not been stolen and

destroyed, as testified to by Rosenbrook.

Williams and Melson, however, condoned the

perjury of Susan Rosenbrook and used the

known perjured testimony of Rosenbrook to

gain petitioner's conviction.

2. Williams and Melson knew that

Durkin, the IRS supervisor, was presenting

perjured testimony to the jury when Durkin

claimed that the actions taken by Kellogg

were prohibited by the IRS when, in fact,

Treasury Regulation 230 permitted the

action taken by Mark Kellogg.

3. Williams knew that Investigator

Rice presented perjured testimony to the

trial jury when Rice testified that he had

not received the overhead summary sheets

and whited out checkbook stubs on June 7,

1984. Williams knew that during

Investigator Rice's first grand jury

appearance, Rice testified on three

separate occasions that petitioner had

provided the changed summary sheets and

whited out checkbook stubs on June 7,

1984.

4. Williams, during Investigator

Rice's second grand jury appearance,

attempted to have Rice retract his earlier

grand jury testimony when he (Rice)

admitted on three occasions that the

government had received the 1983 summary

sheets and whited out checkbook stubs.

Melson knew that Rice was presenting

perjured testimony to the jury when Rice

testified that he had not received the

overhead summary sheets and stubs on June

7, 1984.

5. Williams and Melson knew that

Investigator Albert C. Anderson presented

perjured testimony when Anderson testified

to the jury that he had not been involved

in the investigation of Kellogg and/or

petitioner after March 20, 1984.

6. Williams knew that he was

knowingly presenting evidence that would

mislead the jury when he permitted Melson

to claim during closing argument that

petitioner had not presented to the

government the corrected summary sheets

and the whited out checkbook stubs on June

7, 1984.

7. Williams knew that he was

making a false claim to the court when he

argued to the court the admissibility of

an alleged prior consistent statement of

Rosenbrook under 801(d)(1)(B) and this was

known by Melson. Williams knew from the

October 16, 1984, investigative report of

Rice that Rosenbrook had told Thacher

about her whiting out the checkbook stubs

after Kellogg had caught her in the act

and before she alleged that the changes to

the summary sheets were made. Williams

therefore knew that Rosenbrook's motive to

fabricate arose before she made her

statement to Thacher, yet Williams

Suppressed the memorandum and falsely

argued to the court that Rosenbrook had no

motive to fabricate when the alleged

statements were made. Williams further

knew that by his false reversal of the

facts in the case he was misleading the

court.

8 (a). The prosecutors knew that

Investigator Rice perjured himself before

the grand jury when Rice testified that

Mark Kellogg wanted to represent the Hill

Estate before the IRS in an audit

situation. The secretly recorded

telephone conversation by the IRS between

Durkin of the IRS and Kellogg shows that

Kellogg stated that he did not and would

not represent the Hill Estate before the

IRS.

(b) The prosecutors knew that

Investigator Rice also perjured himself

before the grand jury when Rice testified

that Mark Kellogg did represent the Hill

Estate before the IRS in an audit

situation.

9. Williams did perjure himself

when he submitted his altered affidavit to

the United States Court of Appeals for the

Fourth Circuit in lieu of a true copy of

the affidavit he originally. filed with the

U.S. District Court for the Eastern

District of Virginia, Alexandria Division.

Williams had at that time been accused of

prosecutorial misconduct of intimidating a

defense witness.

10. The prosecution knew that

Thacher was presenting perjured testimony

to the jury when Thacher claimed that he

was not present when Investigators Rice

and Anderson interviewed Machen on March

20, 1984.

11. Williams did know that his

closing argument was based on Thacher's

false claim that the Thacher records were

identical to the admitted records. Melson

knew that the said Thacher records were

not identical to those introduced at trial

but failed to correct Thacher's perjured

testimony.

Ze The prosecution knew that

Rosenbrook presented perjured testimony to

the jury when she testified that Machen

had instructed her to change the summary

sheets for 1983, misappropriated, secreted

away and destroyed the Thacher records and

instructed her to add white out to the

overhead account checkbook stubs, all on

the same day, because Kellogg, whom the

prosecutor had neutralized as a defense

witness, had, while under an order of

immunity before the grand jury, testified

he had caught Rosenbrook adding white out

to the overhead account checkbook stubs

and that petitioner was nowhere near the

office as petitioner was out of town when

he (Kellogg) caught Rosenbrook whiting out

the checkbook stubs.

13. The prosecution knew that

Thacher was presenting perjured testimony

to the jury when Thacher changed his trial

testimony from his grand jury testimony.

Thacher's grand jury testimony was that he

was present when the IRS conducted its

interview with Machen and that IRS

Investigator Anderson had said that he

would telephone petitioner if the subpoena

of March 20, 1984, was to be honored.

Williams knew that Thacher's denial at

trial was false when Thacher denied that

he was present during the interview and

that Anderson had advised petitioner that

he (Anderson) would call him if the

government would execute on the March 20,

1984, subpoena.

14. The prosecution knew that

Thacher had retained the original copies

of his records and that petitioner had not

misappropriated, secreted away and

destroyed Thacher's records as Susan

Rosenbrook falsely claimed. Williams, in

spite of his personal knowledge that

Rosenbrook had made a false claim, did

falsely argue to the jury that petitioner

had taken Thacher's records.

15. Melson knew from the

memorandums of contact made by Rice and

suppressed by the government that

Rosenbrook and Rice reviewed the records

together on June 25, 1984, and Williams

admitted on November 20, 1987, that the

records were received in June/July 1984.

16. Melson did condone the perjury

of Justin Williams when he argued before

the U.S. Court of Appeals for the Fourth

Circuit that Justin Williams could defend

himself against the allegation that

Williams had submitted an altered

affidavit to the Fourth Circuit in lieu of

the affidavit that Williams submitted to

the U.S. District Court.

17. Thacher knew that petitioner

had not misappropriated, secreted away and

destroyed the Thacher records but falsely

claimed to the jury at trial that his

records were identical to the admitted

records when, in fact, he knew his

statement was false.

18. Thacher perjured himself when

he denied that he was present during the

IRS interview between Anderson, Hackney

and Machen on March 20, 1984.

19. Thacher perjured himself when

he changed his testimony at trial to say

—

that he was not present during the

interview between Anderson, Hackney and

Machen on March 20, 1984, when, in fact,

he knew that he was present during the

interview.

20. Both Melson and Williams knew

that when Melson acted as a prosecutor

after being present during petitioner's

grand jury appearance, he was using

petitioner's compelled testimony and the

other information gained as a result of

the immunity order compelling production,

in violation of both 18 U.S.C. 6002-6003

and Kastigar v. United States, supra.

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari to

instruct the Court of Appeals on the issue

of how to use immune testimony, to show

that perjury known to the prosecution will

not be tolerated and that in criminal

trials counsel must be diligent to protect

the constitutional rights of the accused.

CONCLUSION

For the foregoing reasons, the

Petition for a Writ of Certiorari should

be granted.

Respectfully Submitted,

1418 South 2] Street

Arlington, VA 22202

703 920-3091

July 21, 1990

CERTIFICATE OF SERVICE

I hereby certify that on this 2lst day

of July 1990, I have caused copies of the

accompanying Petition for a Writ of

Certiorari to be served by first-class

mail, postage prepaid, to the following:

William C. Bryson

Acting Solicitor General

U.S. Department of Justice

10th & Pennsylvania Ave., N.W.

Room 5614

Washington, D.C. 20530

Justin W. Williams, Esquire

Assistant U.S. Attorney

1101 King Street

Suite 502

Alexandria, VA 22314

29///

Machen

Robert B,

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Filed

May 22, 1990

No. 89-6842

UNITED STATES OF AMERICA

Plaintiff - Appellee

Vv.

ROBERT B. MACHEN

Defendant - Appellant

On Petition for Rehearing with Suggestion

for Rehearing In Banc

— ee ee ee eee ee ee ee ee ee ee oe

The appellant's petition for rehearing

and suggestion for rehearing in banc were

submitted to this Court. As no member of

this Court or the panel requested a poll

on the suggestion for rehearing in banc,

and

As the panel considered the petition

for rehearing and is of the opinion that

it should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

Entered at the direction of Judge

Chapman with the concurrence of Judge

Sprouse and Judge Wilkins.

For the Court,

/s/John M. Greacen

Clerk

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-6842

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT B. MACHEN,

Defendant - Appellant.

Appeal from the United States District

Court for the Eastern District of

Virginia, at Alexandria. Albert V. Bryan,

Jr., Chief District Judge. (CR No. 87-

234-A; C/A No. 8°-981-AM)

Submitted: March 15, 1990

Decided: April 26, 1990

Before SPROUSE, CHAPMAN, and WILKINS,

Circuit Judges.

Affirmed by unpublished per curiam

opinion.

Robert B. Machen, Appellant Pro Se.

Justin W. Williams, Assistant United

States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding

precedent in this circuit. See 1.0.P.

36.5 and 36.6.

PER CURIAM:

Robert B. Machen appeals from the

district court's order refusing relief

under 28 U.S.C. Section 2255. Our review

of the record and the district court's

opinion discloses that this appeal is

without merit. Accordingly, we affirm on

the reasoning of the district court.

United States v. Machen, CR No. 87-234-A;

1989). We dispense with oral argument

because the facts and legal contentions

are adequately presented in the materials

before the Court and argument would not

aid the decisional process.

AFFIRMED

Appendix C

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA )

)

-V- ) CRIMINAL NO.

) 87-234-A

ROBERT B. MACHEN ) CIVIL ACTION NO

Defendant. ) 87-981-AM

ORDER

For the reasons set forth in the

Memorandum Opinion this day filed, it is

ORDERED that the motion of the

defendant pursuant to 28 U.S.C. Section

2255 to vacate, set aside or correct the

sentence imposed on January 8, 1988, is

denied.

/s/Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

September 5th, 1989

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA

)

-V- ) CRIMINAL NO.

) 87-234-A

ROBERT B. MACHEN ) CIVIL ACTION NO

Defendant. ) 87-981-AM

MEMORANDUM OPINION

This action is before the court on the

defendant's motion pursuant to 28 U.S.C.

Section 2255 to set aside, vacate, or

correct the sentence of imprisonment

imposed on January 8, 1988. That sentence

was imposed following a jury conviction of

the defendant on December 10, 1987, on

three counts of a seven-count superseding

indictment. The convictions were for

obstruction of justice in violation of 18

U.S.C. Section 1503 (Counts I and VI) and

tampering with a witness in violation of

18 U.S.C. Section 1512 (Count IV). The

defendant was found not guilty on Count V,

A-6

another witness tampering count, and a

mistrial was ordered on Counts II and III

(obstruction of justice counts) and Count

VII (perjury) after the jury was unable to

agree on those counts. Counts II, III and

Vil were then dismissed without prejudice

on motion of the United States. On

January 8, 1988, the defendant was

sentenced to imprisonment for 12 months

each on Counts I, IV and VI, to run

concurrently. In addition, fines

totalling $10,000 were imposed.

The defendant appealed and his

convictions were affirmed in an

unpublished opinion of November 8, 1988

(No. 88-5012). In the meantime motions

for a new trial had been denied on January

15, 1988 and July 15, 1988. Following the

November 8, 1988 affirmance, this court

again denied a motion for a new trial on

A-7

The present motion was

filed on July 3, 1989. The government has

responded and the defendant has filed a

reply to that response.

The defendant bases his motion on six

rounds:

1. Counsel for the defendant did not

provide reasonably effective assistance as

—T - _ > : 7, ~ . A = ] ~

quaranteeqa DY tne Satta Amenament.

but for counsel's professional errors, the

results would have been different. The

list of errors shows that the defendant

was deprived of a fair trial.

2. The defendant's due process rights

were violated when perjured testimony

(material to the issues in the case and

known to the prosecution) knowingly was

used by the aovernment to gain the

>»

indictment and conviction of the

defendant. See Berger v. United States,

295 U.S. 78, (1935); Mesarosh v. United

States, 352 U.S. 1 (1956).

3. The government failed to provide

exculpatory information as required by

Brady v. Maryland, 373 U.S. 83 (1963), and

United States v. Agurs, 427 U.S. 97

(1976), material which was required to be

produced by an order of the court.

4. The defendant's due process rights

were violated when the prosecution used

the defendant's legislatively immunized

testimony presented to the grand jury and

his claim of a Fifth Amendment privilege

to infer guilt and impeach his credibility

in a subsequent criminal trial. See

Portash v. New Jersey, 440 U.S. 450

(1979); Grunewald v. United States, 353

U.S. 391 (1956).

————————

5. The defendant's due process rights

were violated when the defendant was

provided production act immunity as well

as use immunity and thereafter prosecuted

for the act of producing the subpoenaed

documents when he was not convicted of

perjury, making a false statement, or

failing to comply with the order of

immunity. See 18 U.S.C. Sections 6002 and

6003; Kastigar v. United States, 406 U.S.

441 (1972.

6. The defendant's due process rights

were violated when the prosecution

violated Justice Department policy by

compelling the appearance of a grand jury

target and thereafter prosecuting the

target for the compelled testimony given

under the Order of Immunity and subpoena.

See United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954); Service

A-10

——————————————————

Vv. Dulles, 354 U.S. 363 (1957),

Grounds 2 through 6 must be dismissed

because they were raised On direct appeal

by the defendant. A comparison of the

defendant's brief on appeal with his

Present motion makes this abundantly

Clear, In ground 2, the defendant

complains ‘of the Prosecution's knowing use

of the perjured testimony of witnesses

Thatcher, Rice, Durkin and Rosenbrook.

What the defendant has done in his motion

is take the same witnesses whose testimony

he sought to discredit as false in his

unsuccessful appeal brief, ana added that

the testimony was not Only false but that

the Prosecutors knew it to be Such,

Although not as emphatically, the

defendant had already asserted this in the

appeal brief as to Thatcher (Issue VIII),

Rosenbrook (Issue XVII), Anderson (lssue

A-1l

O'S sy ih

XVIII) and Durkin (Issue Rams

Ground 3 asserts a failure to provide

exculpatory evidence. Taie, of course,

was the subject of Issue VI on appeal, and

covered the role of Kellogg as well as

Rosenbrook. Little is added in ground 3.

Ground 4 addresses the immunity issue

which was the same issue covered by Issue

III in the appeal brief.

Ground 5 questions the immunity grant

followed by the Prosecution, a subject

addressed in Issues I and ITI in the

appeal brief.

Ground 6 asserts the violation of

Department of Justice policy in

“Prosecuting the defendant. It is in

almost the identical language of Issue XII

of the appeal brief.

In each ground the defendant has

elaborated on basically the same issue,

A-12

though perhaps more articulately than as

argued on appeal. Defendant is mistaken

when he asserts, as he does in his reply

brief, that these issues were not

considered by the Court of Appeals in its

November 8, 1988 decision. The court

simply, as it stated, found them unworthy

of discussion. In any event, those

matters which the defendant has added to

the matters previously raised would not

have altered the outcome of the trial and

do not persuade the court that the

defendant's due process right to a fair

trial has been violated.

Ground 1 asserts that trial counsel

rendered the defendant ineffective

representation. Given that counsel

secured an acquittal on four out of seven

counts, the assertion would seem facially

suspect, but since the issue cannot

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——

ordinarily be addressed on direct appeal

(and was not on the appeal in this case),

it must be addressed now.

A litany of perceived omissions on the

part of trial counsel are presented by the

defendant. Most of these relate to such

things as failure to object to certain

testimony or argument- of government

counsel, failure to ask for a particular

instruction, failure to pursue a

particular line of cross-examination and

failure to pursue certain pretrial

procedures. None of these, alone or in

combination, amount to anything but

hindsight, and the omissions do not amount

to a showing that counsel's performance

fell below the range of competence

demanded of attorneys in criminal cases so

as to be deficient within the meaning of

Strickland v. Washington, 466 U.S. 668,

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689 (1984).

Nor does counsel's performance drop

below that range when the few specific

instances which warrant discussion are

considered. Principal among these is the

asserted failure of trial counsel to

insist that, in light of the previously

granted production immunity, the

government prove that evidence to be

presented at trial had a _ source

independent of that gained as a result of

the immunity grant. The defendant relies

on Kastigar v. United States, 406 U.S. 441

(1972), on this issue. Even assuming that

such a burden exists where the immunity is

the limited one of production, the direct

appeal in this matter forecloses it as

constituting ineffective representation.

The issue was raised and thoroughly

briefed by the defendant's brief on

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appeal. Indeed it is the first issue

presented there. The Court of Appeals

was, as with most of the other issues

raised on appeal, unpersuaded; further,

there is no indication that consideration

by the Court of Appeals was rejected

because it was not raised at trial. It

would be singular to find ineffective

representation for failure to press an

issue which the Court of Appeals has

decided was without merit. The so-called

Kastigar issue had its day in this case.

Nor can trial counsel be faulted for

the failure to call Kellogg as an

exculpatory witness. Kellogg was an

uncertain quantity. Neither the defense

nor the prosecution could be sure of what

he would say if called. It is not known,

even today, what his testimony would have

been, or if he would have testified at

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all. The court's observation of the

defendant, himself a practicing attorney,

during the trial and in pretrial

proceedings, satisfies the court that he

was an active participant in planning the

strategy of the tried. zt is

inconceivable to the court that if the

defendant had thought Kellogg would have

proved helpful at trial, the defendant

would not have insisted that he be called.

Kellogg had come out at trial as the

possible "bad guy" in the whole affair,

one whom, it was suggested, was

responsible for the defendant's plight.

It was easier to do this if he was not

there to deny it. Sensible trial strategy

would be to stay away from him, which is

exactly what was done.

The failure to introduce certain

evidence to contradict the witness

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Rosenbrook is asserted as an attorney

omission. A thorough attack was made on

her credibility, an attack which was

apparently sufficient to justify an

acquittal on Count V. To require more

impeaching evidence on pain of being

ineffective is to ask too much of counsel.

As indicated before, taking into

account all of the omissions listed by the

defendant, singly or in combination, the

court does not find that, but for them,

there is a reasonable probability that the

result in the case would have been

different. Thus, in addition to finding

no deficiency in trial counsel's

performance, the court concludes that the

defendant has not met the eeedudice

showing required by Strickland, supra at

p. 694. This, after all, as to those

counts on which the defendant was found

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guilty, was not a close case. He had a

fair trial during which he was represented

by diligent, competent and effective

counsel - he is entitled to no more.

The motion to vacate, set aside or

correct his sentence will be denied.

/s/Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

September 5th, 1989

cee:

| Appendix D

UNITED STATES COURT OF APPEALS

For the Fourth Circuit

No. 88-5012

UNITED STATES OF AMERICA

Plaintiff - Appellee

Vv.

ROBERT B. MACHEN

Defendant - Appellant

Appeal from the United States District

Court for the Eastern District of

Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge. (CR-87-234-A)

Argued: October 13, 1988

Decided: November 8, 1988

Before RUSSELL and WILKINS, Circuit

Judges, and HAYNSWORTH, Senior Circuit

Judge.

Stephen A. Armstrong for Appellant.

Kenneth Melson, First Assistant United

States Attorney (Henry E. Hudson, United

States Attorney; Justin W. Williams,

Assistant United States Attorney on

brief) for Appellee.

PER CURIAM:

The defendant, a lawyer, was

convicted of obstruction of justice and

witness tampering. He brought the case

here with the assertion of nineteen

separate claims of error.

The defendant received referral of a

tax case from an agent of the Internal

Revenue Service. The agent also provided

assistance in the processing of the case,

in violaticin of rules of the Service.

Because of an investigation of the Revenue

Agent, the defendant instructed his

bookkeeper to alter some financial

records. The altered documents were later

submitted to a grand jury. Asked, on

cross-examination, whether the documents

were originals, Machen responded with a

claim of his privilege against self-

incrimination.

| During the trial, Machen testified

that he had wished to explain the altered

documents to the grand jury. In response,

the prosecution introduced evidence of the

fact that, before the grand jury, he had

claimed his Fifth Amendment privilege.

Having cut off his cross-examination

before the grand jury by his claim of his

Fifth Amendment privilege, the defendant

may not claim, before the trial jury, that

he had wished to tell his whole story to

the grand jury. If he makes such a claim

during the trial, evidence of the fact of

his claim of his Fifth Amendment privilege

becomes admissible. Robinson v. United

States, 108 S.Ct. 864, 866 (1988).

None of the other eighteen

contentions deserve mention.

AFF LRMED.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.