# Opposition Brief — Del Toro v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 826

## Text

Page
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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 y. United States, 16 Il’. 2d 951, certiorari
denied, 273 U.S. 768_ _------- ey ae
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 F.2d 528, certio-
rari denied, 371 U.S. 911 ft __. 9-10
Hyde v. Shine, 199 U.S. 62__--- -- - Shaicee 9
Keane v. United States, 272 ed. 577 _- 10
People v. Ashby, \7 Mise. 2d 413, 154 N.Y.8.
2d 284... : : 14
People v. Ezaugi, 2 N.Y. 2d 439, 161 N.Y.S.
29d 75, 141 N.E. 2d 580 _ et ea 14
Rewis v. United States, 401 U.S. SOS ; 10
Sherman v. United States, 356 U.S. 369 i 17
Sorrells v. United States, 287 U.S. 435 ___—- 17
United States v. Crandall, 363 I. Supp. 645,
affirmed, 493 I. 2d 1401, 495 I. 2d 1369,
certiorari denied, 419 U.S. 852..--__-____- 15
United States v. Crimmins, 123 F. 2d 271___-- 11
United States v. Cuevas, 510 IF. 2d 848 7 13
United States v. DeSapio, 4385 FV. 2d 72,
certiorans denied, 402 U.S. 999__-___- 16
United States v. Deutsch, 451-1. 2d 9S, certiorari
denied, 404 U.S. 1019 Tees 16
(I)

BSS So jo——-1

exe — — f 8 2 ome z - (O° OIE DSB
3 = —— —_ PEA A EI OBE LT 6 OLA RON TINE 2 EO Pie ae,

II

Cases—Continued:

Page

United States v. Feola, No. '73-1123, decided
, March 19, POs nese cnticn an tawaan sm ee
: United States vy. Frank, 494 F.2d 145...0 16
United States vy. Gill, 490 F. 2d 233_..... 13
United States v. Johnson, 383 U.S. 169... __- aiehed.
United States v. Keitel, 211 U.S. 370____.___. 9
United States v. Koonce, 485 F. 2d 374... __. 1]
United States v. Krogh, 366 I’. Supp. 1255___- 14
United States vy. Lardiert, 506 V. 2d 319______ 13
United States v. Light, 394 F.2d 908 — __ 18
United States v. Mancuso, 485 F. 2d 275... __ 1]
United States v. Norris, 300 U.S. 564... ____- 20

United States v. Russell, 411 U.S. 423... - 17

United States v. Thompson, 366 1°. 2d 167,
certiorari denied sub nom. Campbell vy.
United States, 385 US. 973_._..._.._.____. 9

United States v. Winter, 348 FV. 2d 204,

certiorari denied, 382 U.S.955.... 12
United States ex rel. Marcus v. Hess, 317 U.S.

gs ee ee OE aD wy ke 8
United States ex rel. Nelson v. Follette, 430

Ae | * See ee it ay wits bic slang 16

Statutes and rule:

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ae Cerne ces ace de bas bk. dbo 3,14
Organized Crime Control Act of 1970, Title LV,

eres Week. 1008.50. 55 608 iL 14
aera, Act, IB‘ WSL: 0068. ic ccc 10

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FEE ILI AOR ODI IEL i EL PSEL LN

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Gu the Supreme Court of the Wnited States
' dibs Ocroser ‘TERM, 1975: ae ih
No. 74-1351 ©
WituiaM Det Toro, PETITIONER
v.
Unirep Srates oF AMERICA
No, 74-1593
Wim J. KatrMAN, PETITIONER
v.
UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OP APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW
The-opinion of the court of appeals (Pet. App.
A-1 to A-20)' is reported at 513 F. 2d 656.
JURISDICTION
The judgment of the court of appeals was entered
on February 27, 1975. By order dated March 27, 1975,

1 Al] references to “Pet. App.” are to the Appendix in No.
74-1555.

qQ)

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 (bh) was not informed until after his first appear-
anee that a grand jury witness may under, certain
cirenmstances effectively recant false) grand jury
testimony, and (¢) 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.

TORE TOA LOM Ry Mla PETG TH

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 convieted of conspiracy to defraud the
United States, in violation of 18 U.S.C. 3871; bribery
of a publie official, in violation of 18 U.S.C, 201Cb) ;
und making false statements before a federal grand
jury, in violation of 18 U.S.C, 1623. Petitioner Nauf-
Mian 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 hot 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 Kanfinan 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 IS TUS.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).

d
3
4
:
.
4
4

4

The evidence introduced at trial is set forth in
detail in the court’ of appeals’ opinion (Pet. App.
A-3 to A-8). Briefly, the evidence showed that at all
times relevant to the conspiracy charged in the indict-
ment, Pedro Morales served as Assistant Administra-
tor of the Harlem-East Harlem Model Cities Program
in New York City, a program funded and supervised
hy the United States Department of Housing and
Urban Development (HUD).’ Sometime in late Au-
wust 1972, petitioner Naufman, an attorney and veal-
estate broker, was introduced to Morales by petitioner
Del Toro for the purpose of discussing the possibility
of Morales’ leasing, on behalf of the Harlem-Kast
Harlem Model Cities Program, office space in a build-
ing for whieh Kaufman was the rental agent. (Del
Toro was the Executive Director of an East Harlem
anti-poverty 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 possi-
bility and that he would think it over.

On September 1, 1972, Morales was arrested on
charges arising out of transactions unrelated to this
case, Morales confessed to the role he had played
in those transactions, and he agreed generally to
assist in an undercover 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-? to A-10),

0

gators by tape-recordig 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 disguised
as part of the commission paid to Kaufman by the
owners of the building, that a commission agreement
was actually negotiated that included inflated per-
centage payments to Kaufman, and that Kaufman
paid Morales $900 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 jary’s investigation. After hav-
ing denied complicity in any corrupt activities, Kauf-
man was shown boxes contaiming 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 bim for money—but he insisted that he had
neither offered nor paid Morales a bribe.

Shortly after his initial appearance before the
grand jury, Kaufman met with the Assistant United
States Attorney ontside the grand jury's presence,

| Wb bly Bb aetna te eos

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

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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 offielal 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

Misie oie anes

BO oe devas

8

addition, petitioner Del ‘Toro argues (Pet. 46) 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 persons from conspiring ‘either to com-
mit any offense 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 “oflicer 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 * * *.”

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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 vy. 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 and Urban Develop-
ment™ (Pet. App. A-13 to A-14).

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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 “haf[d] a
natural * * * tendency to influence, impede or dis-
suade the grand jury from pursuing its investiga-
tion” and therefore were material. Carroll y. 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—Pervis
v. United States, 40. U.S. S08, and Heane vy. United Ntates.
272 Fed. 577 (CLA. 4). Neither case is apposite: this Court’s
decision in Reis 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: A’eane
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.

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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 fact 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 govern-
ment had an additional responsibility to inform him
that it hat& 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-

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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 United States
Attorney of his obligation to testify truthfully.
Nothing more was required. As the court stated in
United States vy. Lardicri, 506 F. 2d 319, 323 (C.A.
3) (on rehearing) :
[D]ismissing perjury indictments where the
prosecutor has not given such notice would ere-
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 BF. 2d 233,
240-241 (C.A. 7).
(c). Petitioner Kaufman further contends (Vet.
31-37) that the government had an obligation to in-
form the grand jury that Kaufman had admitted to

7 Petitioners were charged and convicted under 18 U.S.C.
1623, which provides for the recantation of false testimony as
follows: “Where, in the same continuous court or grand jury
proceeding in which a declaration is made, the person making tlhe
declaration admits such deciaration 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 IV 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 439, 161 N.Y.S. 2d 75, 141 N.E. 2d 550:
People vy. 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

a MCSE lag

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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 vy. United States, 391 U.S. 123, since
Kaufinan 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-
eantation had come, or at least, did not have long to run. Kauf-
man thereupon simply made one grudging admission, but he
failed to vecant his denial that he had bribed and agreed to
bribe Morales. Moreover, as indicated, Kaufman Jater appeared
before the Grand Jury again but made no effort to tell it the
ieuth, * °

19 TV yited Ntates vy. Crandall, 363 ¥F. Supp. 648 (W.D. Pa.).
aflirmed, 493 F. 2d 1401. 495 F. 2d 1369 (CLA. 3). certiorari denied,
419 TLS. 852. upon which petitioner Kaufman relies in support
of his argument that his admissions outside the presence of the
erand 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 recané.

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tala a AB is AP AL 2 IR ANNIE ay adh re

16

ments regarding Del Toro’ and, as a consequence,
Bruton did not preclude its introduction at trial. B.g.,
United States ec rel. Nelson vy. Follette, 430 FP, 2a
1055, 1058 (C.A. 2); United States vy. Deutsch, 451

- 2d 98, 116 (CLA. 2), certiorari denied, 404 U.S
i019.

Moreover, Kaufman’s grand jury testimony did not
fall within Bruton since such testimony was in fur-
theranee of the conspiracy in connection with which
both Del Toro and Kaufman were subsequently
charged. The trial judge found that Kaufman did not
terminate his participation in the conspiracy until
after his initial appearance before the grand jury
(Tr. 1294-1295). Kaufman’s grand jury testimony,
given only a few days after delivery of the $500
down-payment on the $15,000 bribe Kaufman 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 y. Frank, 494 F. 2d 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 whieh petitioner
Kaufman was convicted charged him with having falsely stated
to the grand jury that he had not discussed the making of a
— 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
comemeraey count charged overt acts as late as February 14,
1973. The trial judge found that Kaufman’s grand jury testi-
mony val February 2. 1973, was in furtherance of the conspiracy
(Tr. 1294-1295).

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17

the court of appeals stated, ‘ frivolous” (Pet. App.
A-20, n. 10):
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-
re ated and began to act as a government under-
cover agent.
Neither did entrapment occur with regard to the per-
jury charges against Del Toro, The fact that the gov-
ernment had tape recordings of statements that Del
Toro denied having made during his testimony be-
fore the grand jury hardly amounts to the govern-
ment’s implanting or promoting a eriminal design in
the mind of an innocent person. See Vntted States v.
Russell, 411 U.S. 423; Sherman vy. United States, 356
U.S. 369; Sorrells vy. United States, 287 U.S. 435.

6. Finally, petitioner Del Toro contends (Pet.
11-12) (a) that the trial court's review of the evi-
dence was imbalanced and (b) that its instructions
to the jury concerning the perjury charges were im-
proper because they indicated that ambiguous or even
true answers could form the basis for a perjury con-
vietion. Del Toro did not object at trial to the court’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, both contentions are unsupported by the
record.

(a). The trial transcript reveals that the trial judge
Was extraordinarily sensitive to the need to maintain

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-
ample, 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 (C.A. 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

* 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
rulieg om defense motions at the end of the case, that, having
heard Del Toro testify on his own behalf, “whatever effect
it nay have on the jury, it has satisfied me that he was, in fact.
involved in the conspiracy with Mr. Kaufman * * *” (Tr.
1293),

a] Ryne ~ en A oe aN ee ae

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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 specific falsity, this instruc-

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 bevond a reasonable doubt as to both those
propositions you should convict on such count. If you have a
reasoneble doubt on either, you must acquit.

“Two things IT want to emphasize in this regard: First. all
the answers in a particular count need not be false. Some may

20

tion was in facet anere favorable to, petitioners than
the law, required. See Broxston v. Waited, States, 409
US, 3535, United) pevenl vy. Norris, ran U,B. 364.

tbat ‘conctuston

i] [ . st it wrttor ii ta +) 4 pitas i iusSel t;)
For ‘the foregoing reasons, it is respectfully sub-
mitted that the petitions for a writ or certiorari should

be de nied.
Rosent H. Bor,

Sy ob Solicitor General.

RicHarp L. THORNBURGH, |,

Assistant Attorney General. ,
JEROME M, F Er,

JoserH 8. Davies, |
| : Attorneys.
Juty 1975. ar

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 answers is true. That is another ‘proposition alto-
wether and we are not concerned with it here.
“So let me repeat: The overall purpose of the count must ’

be to deeeive and at least one answer must be false and you
must agree among yourselves which answer that is.”

B.S. GOVERNMENT PRINTING OFFICE: 1078

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1063%3A2. Public record. Not legal advice.