Opposition Brief — Del Toro v. United States

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CITATIONS

Cases:

Bronston v. United States, 409 U.S. 352_____ 20

Bruton v. United States, 391 U.S. 123_______- 15,16

Carroll vy. United States, 16 ¥’. 2d 951, certiorari

eee, Bae Ui Pee ik 10-11

Dennis v. United States, 384 U.S. 855_______- 9

Haas v. Henkel, 216 U.S. 462_------._-- 9

Hammerschmidt v. United States, 265 U.S. 182_- 9

Harney v. United States, 306 I. 2d 523, certio-

rari denied, 371 U.S. 911__......______-- 9-10

ude v. Bates, 100 UB. G8... 20.4 ce. 9

Keane vy. United States, 272 Ved. 577________ 10

People v. Ashby, 17 Misc. 2d 413, 184 N.Y.S.

DR ipiekcncs censuses connecter ake 14

People v. Ezaugi, 2 N.Y. 2d 439, 161 N.Y/S.

i Bee Fens ee 14

Rewis vy. United States, 401 U.S. 808_________ 10

Sherman v. United States, 356 U.S. 369_____- 17

Sorrells v. United States, 287 U.S. 435______ 17

United States v. Crandall, 363 VF’. Supp. 648,

affirmed, 493 IF. 2d 1401, 495 IF. 2d 1369,

certiorari denied, 419 U.S. 852____________ 15

United States vy. Crimmins, 123 F. 2d 271_____ 11

United States v. Cuevas, 510 F. 2d 848_____- 13

United States v. DeSapio, 435 F. 2d 272,

certiorari denied, 402 U.S. 999___..______ 16

United States v. Deutsch, 451 IF’. 2d 98, certiorari

Se She I iene Sek oe nck 16

5S88-895—75——-1 ”

2

Mr. Justice Marshall extended the time for filing the

petitions for a writ of certiorari to and including

April 28, 1975. The petition in No, 74-1351 (Del

Toro) was filed on April 26, 1975; and the petition

in No. 74-1353 (Kaufman) was filed on April 28,

1975. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioners’ convictions for perjury

and conspiracy to defraud the United States are

defective because their convictions for bribery were

reversed.

2, Whether in order to find petitioners guilty of the

conspiracy charged in the indictment the government

was required to prove that petitioners acted with an

‘‘anti-federal” intent.

3. Whether a person may be convicted of perjury

under 18 U.S.C. 1623 on the basis of materially false

statements made to a federal grand jury if such person

(a) was not informed prior to his first appearance

before the grand jury that the government had evi-

dence of certain prior statements made by such person

and (b) was not informed until after his first appear-

ance that a grand jury witness may under, certain

circumstances effectively recant false grand jury

testimony, and (c) if the grand jury was not informed

that such person had admitted during plea negotia-

tions with an Assistant United States Attorney that

he had testified falsely before the grand jury.

3

4. Whether portions of certain grand jury testimony

were introduced at trial in violation of the petitioner

Del Toro’s right of confrontation.

5. Whether petitioner Del Toro was entrapped as

a matter of law.

6. Whether the trial court’s review of the evidence

and its instructions concerning the perjury charges

were proper.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioners were convicted of conspiracy to defraud the

United States, in violation of 18 U.S.C. 371; bribery

vf a public official, in violation of 18 U.S.C. 201(b);

and making false statements before a federal grand

jury, in violation of 18 U.S.C. 1623.’ Petitioner Kauf-

man was sentenced to concurrent terms of four years’

imprisonment. Petitioner Del Toro was sentenced to

imprisonment for concurrent terms of one year and

one day. The court of appeals reversed the bribery

convictions on the ground that the person bribed

was not a “public official,” as that term is defined

in 18 U.S.C. 201(a). It affirmed the convictions on

all other counts (Pet. App. A-1 to A-20).

?The jury found petitioner Kaufman guilty on three counts

of perjury, three other counts having been dismissed on the

ground that Kaufman had subsequently recanted the false testi-

mony forming the basis of those counts. See 18 U.S.C. 1625(d).

The jury found petitioner Del Toro guilty on five counts of

perjury; he was acquitted on a sixth count of perjury, and a

seventh count had been dismissed at the close of all the evi-

dence (Pet. App. A-3).

4

The evidence introduced’ at’ trial is! set forth. in

detail in ‘the 'coutt’ of ‘uppeals’ opinion (Pet. App.

A-3 to A-8). Briefly, ‘the evidence showed that ‘at all!

times relevant to the conspiracy charged in the itidict-

ment, Pedro Morales served as Assistant Administra-

tor of the Harlem-East' Harlent Model Cities Program

in New York City, a pregram fiinded and supervised

hy the United States Department of Housing: and

Urban Development (HUD). Sometime in late Au-

sust 1972, petitioner Khufman, an attorney and real-

estate broker, was ititroduced to Morales by petitioner’

Del Toro for the purpose of discussing the possibility

of Morales’ leasing, on behalf of the Harlem-East

Harlem Model Cities Program, office space in a build-

ing for ‘which Kaufman was the rental agent. (Deb

Toro was the Executive Director of an East Harlem

anti-peverty agency.) At one point’ during the meet-

ing, Morales told Kaufman that before leasing the

building Kaufman would have to pay him a bribe.

Kaufman stated that he had been aware of that toes

bility and that he avould think it over. ,

On September 1, 1972, Morales was’ arrested ‘on

charges arising out of transactions unrelated to this

case. Morales confessed to the tole he ‘had play ed

in those transactions, and he agreed generally to

assist in an under¢over capacity in a joint federal-

city investigation into official corruption in the Model

Cities Program. Morales, subsequently aided investi-

* The undisputed evidence at trial showed that 80 percent

ef the salaries of Model Cities personnel and 100 percent of

the other expenses incurred in the operation of Model Cities

programs are paid with federal funds (Pet. App. A-9 to A-10).

5

gators by tape-recording conversations with various

individuals having dealings with him in his capacity’

as a Model Cities administrator. Several of those

conversations involved petitioners Del Toro and

Kaufman, and the tape recordings revealed that

Kaufman agreed to pay Morales $15,000 if Morales

leased the building for which Kaufman was the rental:

agent, that the $15,000 payment was to be disgnised’

as part of the commission paid to Kaufman by the

owners of the building, that a commission agreement

was actually negotiated that inchided inflated per-

centage payments to Kaufman, and that Kaufman’

paid! Morales $500 in cash to bind their agreement:

On February 2, 1973, Kaufman was called before

a federal grand jury investigating official corruption

in the Model Cities Program. Before testifying, he

was advised of his rights and of the fact that he was

a target of the grand jury's investigation. After hav-’

ing denied complicity in any corrupt activities, Kauf-

man was shown boxes containing the tape recordings

that had been made by Morales. The Assistant United

States Attorney then reminded Kaufman that he Was

testifying under oath and that he was subject to pros-

ecution for perjury should he be lying. He also asked

Kaufman if he wished to change any of his prior

testimony, but Kaufman declined to do so. Kanfman

did admit subsequently, however, that Morales had

asked ‘him for moneybut’ he insisted ‘that he had’

neither offered nor paid Morales a bribe.

‘Shortly: ‘after his’ initial appearance before’ ‘the

grand! juty, Katifman tiiet with the Assistant’ United

States ‘Attorney otitside’ the grand jury’s’ présence!

6

The prosecutor again advised Kaufman of his consti-

tutional rights, and also read relevant portions of the

perjury statute (18 U.S.C. 1623) to him, pointing out

specifically that the statute permits a witness to recant

false grand jury testimony under some circumstances

but that recantation is not effective once the fact of

perjury has become *‘manifest.’’ The prosecutor then

told Kaufman that tapes existed of certain of his con-

versations with Morales, whereupon Kaufman ad-

mitted having offered to bribe Morales but continued

to deny that he had actually paid Morales $500 as a

down-payment on the bribe. Kaufman subsequently

offered to cooperate with the government in return for

complete immunity from prosecution, and he did in

fact cooperate until it had become apparent to him

that the government was not prepared to grant him

full immunity from prosecution in exchange for his

cooperation, At no point during his two appearances

before the grand jury, following his initial appear-

ance, did he make an effort to correct his prior false

testimony.

On February 16, 1973, petitioner Del Toro was

called before the grand jury and, prior to testifying,

was also informed of his rights and of the fact that he

was a target of the grand jury’s investigation. Del

Toro testified that he knew that arrangements had

been made for Kaufman to receive a brokerage fee in

connection with the lease by Morales of office space on

behalf of the Harlem-East Harlem Model Cities Pro-

gram. He also testified that he was aware that payoffs

were not uncommon among public officials. He denied

knowing of any offer of a bribe or payment to

7

Morales, however, or of having participated in any

way in any such transaction. In a subsequent appear-

ance before the grand jury, Del Toro declined to

change his earlier testimony although he did admit

that he had introduced Kaufman and Morales and

that he had been present at their first meeting. He

maintained, however, that he had been in a different

part of the room when Kaufman and Morales had

discussed the possibility of Morales’ leasing office

space in the building for which Kaufman was the

rental agent.

ARGUMENT

Two points about this case are clear beyond doubt:

both petitioners repeatedly lied under oath before a

federal grand jury and both participated in a scheme

to bribe an official of a Model Cities Program. Press-

ing various contentions, all of which were considered

and rejected by Judge Gurfein in his opinion for him-

self and Judges Friendly and Feinberg, petitioners

now seek to have this Court upset their convictions.

We will deal below with each of the issues petitioners

have raised, but it is significant that in regard to not

a single one of those issues does there exist a conflict

among the circuits and, indeed, petitioners do not

allege otherwise. In these circumstances, there is noth-

ing in this case that would make it worthy of further

review by this Court.

1. Both petitioners contend (Kaufman Pet. 13-23;

Del Toro Pet. 4-6) that because their bribery convic-

tions were reversed their convictions for conspiracy to

defraud the United States must also be reversed. In

588-895—75——-2

EVEN Sy

6

The prosecutor again advised Kaufman of his consti-

tutional rights, and also read relevant portions of the

perjury statute (18 U.S.C. 1623) to him, pointing out

specifically that the statute permits a witness to recant

false grand jury testimony under some circumstances

but that recantation is not effective once the fact of

perjury has become *‘manifest.’’ The prosecutor then

told Kaufman that tapes existed of certain of his con-

versations with Morales, whereupon Kaufman ad-

mitted having offered to bribe Morales but continued

to deny that he had actually paid Morales $500 as a

down-payment on the bribe. Kaufman subsequently

offered to cooperate with the government in return for

complete immunity from prosecution, and he did in

fact cooperate until it had become apparent to him

that the government was not prepared to grant him

full immunity from prosecution in exchange for his

cooperation, At no point during his two appearances

before the grand jury, following his initial appear-

ance, did he make an effort to correct his prior false

testimony.

On February 16, 1973, petitioner Del Toro was

‘alled before the grand jury and, prier to testifying,

was also informed of his rights and of the fact that he

was a target of the grand jury’s investigation. Del

Toro testified that he knew that arrangements had

been made for Kaufman to receive a brokerage fee in

connection with the lease by Morales of office space on

behalf of the Harlem-East Harlem Model Cities Pro-

gram. He also testified that he was aware that payoffs

were not uncommon among public officials. He denied

knowing of any offer of a bribe or payment to

7

Morales, however, or of having participated in any

way in any such transaction. In a subsequent appear-

ance before the grand jury, Del Toro declined to

change his earlier testimony although he did admit

that he had introduced Kaufman and Morales and

that he had been present at their first meeting. He

maintained, however, that he had been in a different

part of the room when Kaufman and Morales had

discussed the possibility of Morales’ leasing office

space in the building for which Kaufman was the

rental agent.

ARGUMENT

Two points about this case are clear beyond doubt:

both petitioners repeatedly led under oath before a

federal grand jury and both participated in a scheme

to bribe an official of a Model Cities Program. Press-

ing various contentions, all of which were considered

and rejected by Judge Gurfein in his opinion for him-

self and Judges Friendly and Feinberg, petitioners

now seek to have this Court upset their convictions.

We will deal below with each of the issues petitioners

have raised, but it is significant that in regard to not

a single one of those issues does there exist a conflict

among the circuits and, indeed, petitioners do not

allege otherwise. In these circumstances, there is noth-

ing in this case that would make it worthy of further

review by this Court.

1. Both petitioners contend (Kaufman Pet. 13-23;

Del Toro Pet. 4-6) that because their bribery convic-

tions were reversed their convictions for conspiracy to

defraud the United States must also be reversed. In

588-895—7T5-———2

SO RTE ID HMDS

8

addition, petitioner Del 'Toro argues (Pet. 4-6) that

reversal of the bribery count requires the reversal of

his perjury convictions.

(a). Petitioners were charged and convicted of brib-

ery under 18 U.S.C. 201(b), which proscribes the giv-

ing or promising of anything of value to any “public

official” with the intent to influence an official act.‘

The court of appeals reversed petitioners’ conviction

for bribery, holding that Pedro Morales was not a

federal “public official,’ as that term is defined in 18

U.S.C, 201(a). The court’s decision in this regard was

thus based on statutory interpretation and even if

it was correct (but see United States ex rel. Marcus v.

Hess, 317 U.S. 537), it does not follow that petitioners’

conspiracy and perjury convictions must also be

reversed.

The conspiracy statute that petitioners were con-

victed of having violated (18 U.S.C. 371) prohibits

two or more ‘ from conspiring ‘‘either to com-

mit any off against the United States, or to de-

fraud the United States, or any agency thereof in any

manner or for any purpose * * *” (emphasis added).

Under Section 371, there was no need to find that

Morales was a federal “public official.” The federal

government financed 100 percent of the cost of the

Harlem-East Harlem Model Cities Program and 80

*The term “public official” is defined in pertinent part in

Section 201(a) as an “officer or employee or person acting for

or on behalf of the United States, or any department, agency

or branch of Government thereof, * * * in any official function,

under or by authority of any such department, agency, or branch

of Government * * *.”

os PTE REN: PNR CESS

9

percent of its salaries, and supervised its activities in

part. The concern of the United States that the pro-

gram be free of corruption, through conspiracies such

as that entered into by petitioners, was therefore

scarcely “indirect and insignificant” as petitioner

Kaufman alleges (Pet. 23).° See the opinion below

(Pet. App. A-14).

It is well settled, moreover, that in regard to a

charge of illegally conspiring to defraud the United

States, within the meaning of 18 U.S.C. 371, it is

irrelevant that the means chosen may not them-

selves have violated a federal criminal statute or

that overtures were not made directly to an em-

ployee of the federal government. See Haas v. Hen-

kel, 216 U.S. 462, 479-480; Dennis v. United States,

384 U.S. 855, 860-861. See also Hammerschmidt v.

United States, 265 U.S. 182, 188; United States v.

Keitel, 211 U.S. 370, 394; Hyde v. Shine, 199 U.S. 62,

81; see also United States v. Johnson, 383 U.S. 169,

173; United States v. Thompson, 366 F. 2d 167, 169-

173 (C.A. 6), certiorari denied sub nom. Campbell v.

United States, 385 U.S. 973; Harney v. United States,

° The conspiracy count of the indictment charged petitioners

with having conspired “to defraud the United States and its

departments and agencies in connection with the performance of

its lawful governmental functions by obstructing and hindering

the United States Department of Housing and Urban Devel-

opment in the impartial, fair and honest distribution of federal

funds and by depriving the United States of the faithful and

honest services of employees of the New York City Model

Cities Administration which was, at all times relevant to this

indictment, funded and supervised in substantial part by the

United States Department of Housing anc Urban Develop-

ment” (Pet. App. A-13 to A-14).

10

306 F. 2d 523, 526-527 (C.A. 1), certiorari denied, 371

U.S. 911°

(b). There is nothing to petitioner Del Toro’s con-

tention (Pet. 4-6) that his perjury convictions must

be reversed because the reversal of his conviction

for bribery rendered his false statements imma-

terial. The grand jury before which Del Toro ap-

peared was engaged in a ‘‘continuing investigation

into possible corrupt practices of Model Cities per-

sonnel and some who dealt with them’’ (Pet. App.

A-16). Both petitioners materially misrepresented

during their appearances before the grand jury their

respective roles in precisely the type of conspiracy

properly the focus of the grand jury’s investigation.

Those deliberate lies under oath certainly “ha[d] a

natural * * * tendency to influence, impede or dis-

suade the grand jury from pursuing its investiga-

tion” and therefore were material. Carroll v. United

* Petitioner Del Toro cites no contrary authority to support

his contention that a conspiracy to defraud the United States,

under 18 U.S.C. 371, was not established since the means used

to further the conspiracy (that is, the bribery of Pedro

Morales) did not violate a federal criminal statute. Petitioner

Kaufman cites two cases in support of the contention—Rewis

v. United States, 401 U.S. 808, and Keane v. United States,

272 Fed. 577 (C.A. 4). Neither case is apposite: this Court's

decision in Fewis turned on the language used by Congress

in the Travel Act, 18 U.S.C. 1952, and did not involve the

conspiracy statute under which petitioners were charged; Aeane

involved a conspiracy to defraud a military post exchange

that was not within the purview of 18 U.S.C. 371, under which

petitioners were charged, since the exchange had not been

authorized by Congress, Congress had not appropriated any

funds to operate the exchange and the federal government was

not responsible for either the contents of the exchange or

any obligations incurred in the exchange’s operation.

11

States, 16 F. 2d 951, 953 (C.A. 2), certiorari denied,

273 U.S. 763; see also United States v. Koonce, 485

F. 2d 374, 380-381 (C.A. 8); United States v. Man-

cuso, 485 F. 2d 275, 280-282 (C.A. 2).

2. Petitioner Kaufman also argues (Pet. 23-27)

that the jury was not adequately instructed that in

order to find petitioners guilty of the conspiracy

charged in the indictment the government was re-

quired to prove that petitioners were aware that the

federal government was substantially involved in the

operation of the Model Cities Program. Kaufman

did not object to the court’s instructions to the jury,

and he is precluded from doing so now. Rule 30,

Fed. R. Crim. P. In any event, Kaufman’s con-

tention that the court’s careful instruction (see

Tr. 1514-1523) was inadequate because it did not

require the jury to find that petitioners had acted

with an ‘‘anti-federal intent” rests entirely on the

rule in United States v. Crimmins, 123 F. 2d 271

(C.A. 2), which this Court recently rejected in United

States v. Feola, No. 73-1123 (decided March 19,

1975).

3. Petitioner Kaufman contends (Pet. 27-41) that

his perjury convictions must be reversed because (a)

he was not informed prior to his first appearance

before the grand jury that the government had evi-

dence of certain prior statements made by him, (b)

he was not informed until after his first appearance

that a grand jury witness may under certain cir-

cumstances effectively recant false grand jury testi-

mony, and (c) the grand jury was not informed

before indicting him for perjury that he had ad-

12

mitted during plea negotiations with an Assistant

United States Attorney that he had testified falsely

before the grand jury.

(a). As noted earlier, before Kaufman began testi-

fying before the grand jury he was advised of his

rights and of the faet that he was a target of the

grand jury’s investigation. In the process of taking

his oath, he was also advised that he had a duty to

testify truthfully. After he had begun testifying,

moreover, the Assistant United States Attorney re-

peated the latter admonition and informed him that

he was subject to prosecution for perjury should it be

discovered that he was not testifying truthfully.

Kaufman's contention (Pet. 28-31) that the gevern-

ment had an additional responsibility to inform him

that it had evidence of his involvement in the con-

spiracy and bribery under investigation is without

merit. As the court below correctly stated (Pet. App.

A-15) :

There is no duty on the prosecution to tell

a Grand Jury witness what evidence it has

against him or to give him repetitive warnings

that it is his duty to tell the truth when he has

sworn upon his oath to tell the truth. It is not

an unfair dilemma to put upon a prospective

defendant to require him to claim privilege or

to tell the truth. * * *

Accord: United States v. Winter, 348 F. 2d 204, 210

(C.A. 2), certiorari denied, 382 U.S. 955.

(b). Neither did the government have a duty to

inform Kaufman during his initial appearance before

the grand jury that a witness may under certain cir-

13

cumstances effectively “recant’’ false grand jury

testimony,’ which is to say that he may lie with im-

punity so long as he subsequently admits he has done

so. Again, petitioner had been sworn and had been

repeatedly reminded by the Assistant U nited States

Attorney of his obligation to testify truthfully.

Nothing more was required. As the court stated in

United States v. Lardicri, 506 F. 2d 319, 323 (C.A.

3) (on rehearing) :

[D]ismissing perjury indictments where the

prosecutor has not given such notice would cre-

ate a new impediment to successful perjury

prosecutions, thereby jeopardizing the deterrent

effect Congress specifically sought to establish

by rendering perjury convictions easier to ob-

tain. The statutory history, therefore, does not

reveal a Congressional intent that prosecutions

be dismissed where such warnings are not

given.

Accord: United States v. Cuevas, 510 F. 2d 848, 851-

852 (C.A. 2); United States v. Gill, 490 FP. 2d 233,

240-241 (C.A. 7).

(c). Petitioner Kaufman further contends (Pet.

31-37) that the government had an obligation to in-

form the grand jury that Kaufman had admitted to

t Petitioners were charged and convicted under 18 U.S.C.

1623, which provides for the recantation of false testimony ®-

follows: “Where, in the same continuous court or grand jury

proceeding in which a declaration is made, the person making tlre

declaration admits such declaration to be false, such admission

shall bar prosecution under this section if, at the time the ad-

mission 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.”

14

an Assistant United States Attorney, following his

first appearance before the grand jury, that some of

his grand jury testimony had been false. This is a

rather remarkable assertion. It amounts to a claim

that petitioner could not be prosecuted for perjury

because the prosecutor did not inform the grand jury

that petitioner had admitted committing perjury

when he testified.

In any event, petitioner Kaufman’s admission that

he had lied under oath occurred outside the presence

of the grand jury and was not therefore an effective

recantation under 18 U.S.C. 1623(d). United States

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

Moreover, following his initial appearance before

the grand jury, Kaufman was informed of the recan-

tation provision in 18 U.S.C. 1623 (Kaufman Pet.

11). But during his subsequent appearances he made

no effort to take advantage of any opportunity he

may have had to correct his earlier testimony,’ appar-

£18 U.S.C. 1623(d) was adopted by Congress in modified

form from the New York Penal Code, § 210.25 (McKinney, 1967).

and was enacted as part of Title [V of the Organized Crime Con-

trol Act of 1970, 84 Stat. 932. Under New York law, an effective

recantation cannot occur outside the presence of the grand jury.

People v. Ezaugi, 2 N.Y. 2d 4389, 161 N.Y.S. 2d 75, 141 N.E. 2d 580;

People v. Ashby, 17 Mise. 2d 413, 184 N.Y.S. 2d 284 (Sup. Ct.).

*Since Kaufman did not effectively recant his false grand

jury testimony, there is no need to consider here whether by the

time he admitted to the Assistant United States Attorney that

he had testified falsely it had become “manifest” that “such

falsity [had] been or [would] be exposed” or whether his false

statements had “substantially affected” the grand jury’s inquiry.

In either event, recantation would not then have been permitted

under 18 U.S.C. 1623(d). The court of appeals did note in this

i en at

15

ently, as the court of appeals found (Pet. App. A-18),

on advice of counsel after his plea negotiations with

the prosecutors had broken down and his brief period

of cooperation with the government had come to an

end. (Nothing in the record supports Kaufman’s sug-

gestion that he did not disclose to the grand jury

the extent of his false testimony because he assumed

that his admissions to the Assistant United States

Attorney constituted an effective recantation under 18

U.S.C. 1623(d).)”°

4. Petitioner Del Toro contends (Pet. 6-8) that the

introduction at trial of portions of Kaufman’s grand

jury testimony violated the rule announced by this

Court in Bruton v. United States, 391 U.S. 123, since

Kaufman did not testify at trial. As the court below

held (Pet. App. A-20), the testimony to which Del

Toro objects did not contain any inculpatory state-

regard, however, that (Pet. App. A-19): “[T]he prosecutor's

placing of boxes of tape recordings on the table in the

Grand Jury room [during Kaufman’s initial appearance before

the grand jury] should have indicated that the time for re-

cantation had come, or at least, did not have long to run. Kauf-

man thereupon simply made one grudging admission, but he

failed to recant his denial that he had bribed and agreed to

bribe Morales. Moreover, as indicated, Kaufman later appeared

before the Grand Jury again but made no effort to tell it the

tomh...? * 2"

10 United States vy. Crandall, 363 F. Supp. 648 (W-.D. Pa.),

affirmed, 493 F. 2d 1401, 495 F. 2d 1369 (C.A. 3), certiorari denied,

419 U.S. 852, upon which petitioner Kaufman relies in support

of his argument that his admissions outside the presence of the

grand jury represented an effective recantation (Pet. 34-35, note),

is of little assistance to him because in that case the defendant

was not recalled before the grand jury and he thus was not given

any opportunity to recant.

16

ments’ regarding: Del Toro * and, as ia consequenee,

Bruton did not preclude its introduetion at trial. £.g.,

United States ex rel. Nelson v. Follette, 430 F, 2d

“ea 1058: (C.A. 2); United States v. Deutsch, 451

. 2d 98; 116 (CA. my; cortionart denied, 404 U.S.

sie | tf]

‘Moreover, Kaufman’s ‘estlan’ jury testimony did not

fall within Bruton since sueh testimony was in fur-

therance of the conspiracy in connection with which

both Del Toro and Kaufman were swhsequently

charged. The trial judge found that Kaufman did not

terminaté his participation in'‘the ¢onspiracy until

after his initial appear. before the grand jury

(Tr. 1294-1295). Kaufman’s grand jury testimony,’

given only a few days after delivery of the $500

down-payment ot the $15,000 br ‘the K Kaufinan had

agreed to give to’ Morales, plainly constituted an effort

on, Kaufman’s; part to prevent the government from

halting the conspiracy before it had reached fruition."*

See, e.g., United States vy. Frank, 494 F, 24.145, 155-

156 (C.A.. 2); United States. v. DeSapio, 435 F. 2d

272, 283-284 (C.A. 2), certiorari denied, 402 U.S. 999,

5. Petitioner Del Toro’s contention, (Pet, 8-10)

that he was entrapped as a matter of law is, as

‘\ Indeed, one of, the perjury counts, on which petitioner

Kaufman was conyicted gharged him with having falsely, stated

to the grand jury that he had not discussed the making of a

bribe with either Morales or Del Toro.

© The indictment charged a conspiracy: that began on Aug-.

ust 1, 1972, and continued until the indictment was filed. The

conspiracy count. changed overt, acts as late as February 14,

1973. The trial judge found that Kaufman’s grand jury testi-

mony of February 2, 1973, was in furtherance of the conspiracy

(Tr. 1294-1295).

peer

17

the court of appeals manieied ‘* frivolous” - App..

wpaigas ens | iio eink ue (i 9

“The initial meeting between: Kaufman and

Morales was arranged by Del Toro: and he

[Del Toro] was told by Kaufman to carry the

message to, Morales that Kaufman would split

$50,000 less taxes with Morales in exchange

_ for the lease. All this occurred before Septem-

ber 1, 1972, the time when Morales was ar-

rested and began to’ ec as a _ ebrimnentt' under-

cover agent.”

Neither! did éntrapiineit occur with: regard to the pers

jury charge 8 against Del Toto. The fact that ‘the’ gov-

evtirhent’ had ‘tape récordings of stiitements: that Del

Tord’ denied hi ving made during: his ‘testimony be-

fore the erand jury hardly ' amounts ‘to the: govern-

ment’s implanting or ‘promoting a eriminal design in

the mind of an innocent ‘person. See United States Vv.

Riassell, 417° U.S. 423; Shermin v. United States, 356

US: 369! Sortells ¥. | United States, 287 U.S. 485.

6. Finally, petitioner’ ‘Del Toro ‘eontends ’ (Pet.

11-12) (a) hat the trial court's review of the evi-

dence was imbalanced and (b) that its instructions

to the jury concerning the perjury char ges were im-

proper because’ they indicated that ambiguous or ev en

frne answers could form the basis for a’ perjury con-

viction. Del Toro did not object at. trial to the eourt’s

charge to the jury, however, and he is therefore pre-

cluded from doing so now. Rule 30, Fed. R. Crim. P.

In any event, ee contentions are sarge nqurE by ee

record.

a The trial. lt obs reveals that the trial judge

was extraordinarily. sensitive to ~ anaes to maintain

vil) anid al af gi { ott mi boeviovs

4 rates |

ee Rt Ces

bitch LAE RPE er eee

18

a completely fair and impartial attitude and to re-

frain from imposing his view of the facts on the jury.

The trial judge cautioned the jury at length, for ex-

anrple, that it alone was the judge of the facts and

that it should not rely upon what it might perceive as

his own reactions to the evidence (Tr. 1499-1500). ‘To

the extent that he did summarize the contentions of

the prosecution and the defense, the judge accorded

petitioner Del Toro’s contentions far more than

“casual mention” (Del Toro Pet. 11). Indeed, in “se-

lecting that evidence which would most likely aid the

jury in putting the case in perspective,” United States

v. Light, 394 F. 2d 908, 911 (CLA, 2), the trial judge

chose to discuss *‘the arguments advanced by and on

behalf of Del Toro” to illustrate his instructions on

the law of conspiracy (Tr. 1517-1519). In that con-

nection, and contrary to petitioner Del Toro’s asser-

tion (Pet. 12), the court did not assume that the

initial meeting between Morales, Del Toro and Kauf-

man occurred in August, 1972, as contended by the

government, but expressly informed the jury that

*Del Toro places it between December ‘71 and Febru-

ary 72" (Tr. 1517). Moreover, the trial judge empha-

sized Del Toro’s claim “that all he intended to do was

get Morales off his back and that he never did or

intended to do any of the things he told Morales

about” (Tr. 1518). By comparison, the court merely

*s Petitioner Del Toro's suggestion (Pet. 12) that the trial judge

entertained doubts about the sufficiency of the evidence of his

guilt fails to take account of the judge's statement, made in

ruling on defense motions at the end of the case, that, having

heard Del Toro testify on his own behalf, “whatever effect

it may have on the jury, it has satistied me that he was, in fact,

involved in the conspiracy with Mr. Kaufman * * *° (Tr.

12938).

19)

stated that it was the government's position that peti-

tioner “knowingly acted as intermediary in the nego-

tiations” between Kaufman and Morales (Tr. 1518).

Thus, the court’s marshalling of the evidence was fair.

(b). Petitioner Del Toro’s contention (Pet. 10-11)

that the trial judge’s instructions to the jury con-

cerning the perjury charges were improper because

they indicated that ambiguous or even true answers

could form the basis for a perjury conviction is flatly

contradicted by the record. At no time did the trial

judge erroneously inform the jury that an ambiguous

or true answer might support a perjury conviction ;

rather, he correctly charged that any given perjury

count might properly include ambiguous, or even

true, answers but that perjury might nevertheless be

made out so long as the overall purpose was to de-

ceive and at least one answer contained in the count

was in fact false.“ By imposing upon the govern-

ment the obligation of establishing general deception

in addition to actual and specitie falsity, this mstrue-

“The trial judge instructed the jury concerning the perjury

counts in pertinent part as follows (Tr. 1529-1530) :

“What you should do is to take each count and ask your-

selves two basic questions with respect to them. First, was

the overall purpose of the witness to mislead the Grand Jury

by the answers given in that count, was that the overall pur-

pose of the witness? If not, if the answer to that is no, that’s

the end of the matter. If so, are there one or more answers

in that count that are both false and were known to the

witness to have been false at the time he gave such answers?

If you are satisfied beyond a reasonable doubt as to both those

propositions you should convict on such count. If you have a

reasonable doubt on either, you must acquit,

“Two things I want to emphasize in this regard: First, all

the answers in a particular count need not be false. Some may

PT ATCA

a aoe e bad ae Tee ey ee i PRO IE

20

tion ‘was jn fact snore favorable; to, petitioners than

the daw) required. See ‘Broxston.v. Lauted, States, 409

USe 3525) United; —_ ¥., Nonris, 300, UB: 564, .

GT eiséd ‘eit yfys d geonste gaia if » Poo *) of tf r mit

ito! Tits

or ‘the foregoing Teasous, it' is “HSpdet Phy! sub-

‘ae that the petitions for: aw rit ‘of certion ari should

t ty ~fh"D i. j . ij ”

{

be denied. ; ,

6) 0 Resprt AL Bohs, PoP 9

Hole ale sto. ~Solieitor General.»

yo tet RicHarp L. PHORNBURGH, |

Assistant Attorney General.

JEROME M, FErr,,

__ JoserH §. Dav IES,

] ! '

ios a Altoineys.’

PE et |

t iiein erate

be ambiguous . or even true, This, the first element, is satis-

fied if the overall purpose of the testimony set forth in the

count was to deceive. However, at least one! answer, and you

must. agree among, yourselves as, to which one, at least one

answer must be actually false. It’s no crime, at least not the

crime of perjury, to give misleading testimony if each of the

individual! ‘ahswets is trae: ‘That is another ‘proposition | alto-

gether and we are not concerned with it here.

“So let’ me repeat! The overall purpose of ‘the count must

be to deceive and at least one answer must be false and you

must agree among yourselves which answer that is.”

ea

5.5. GOVERNMENT PRIBTING OFFICE: 1078