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United States v. Peden

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: January 19, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
GERALD PEDEN, DEFENDANT-APPELLANT

Moore, Feinberg and Mulligan, Circuit Judges.

Author: Per Curiam

Gerald Peden appeals from his bribery conviction following a jury trial in the United States District Court for the Southern District of New York, Thomas F. Croake, J. At trial evidence was presented relating to three alleged conspiracies and a number of alleged substantive violations involving a taxpayer representative and several Internal Revenue Service special agents, including Peden. Following completion of the Government's case, Judge Croake dismissed five of the nine counts against Peden; the jury convicted him on two of the remaining four counts, acquitting him on the other two.*fn1

On appeal, Peden's principal argument is that the practice in the Southern District of not recording statements made by the Assistant United States Attorney to the grand jury when no witness is in the room unfairly deprives a defendant of the opportunity to learn of any improper remarks.*fn2 We have only recently reiterated that recordation of grand jury testimony of witnesses "as a matter of course certainly is the better procedure," see United States v. Cramer, 447 F.2d 210, 214 (1971), cert. denied, 404 U.S. 1024, 92 S. Ct. 680, 30 L. Ed. 2d 674 (1972), and we see no good reason why the same observation would not also apply to statements by the prosecutor.*fn3 However, in Cramer we affirmed a conviction despite the failure to record the testimony of witnesses before the grand jury. It follows almost a fortiori that the non-recordation of prosecutorial statements in the same context is also an insufficient ground for reversal. As we stated in Cramer, the most appropriate forum for consideration of proposed changes in current grand jury procedures is either the Advisory Committee on Criminal Rules or the Circuit Council.*fn4

Peden also asserts that he was prejudiced by the refusal of the court below to grant separate trials on each of the alleged conspiracies. A motion for severance is addressed to the discretion of the trial court, United States v. Adams, 434 F.2d 756, 758 (2d Cir. 1970), and we find no abuse here.

Affirmed.

Disposition

Affirmed.


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