Appeal from Judgment of Conviction after jury trial in the United States District Court for the Southern District of New York, Arnold Bauman, Judge, finding defendant guilty of making false declarations before a court in violation of 18 U.S.C. § 1623.
Kaufman, Chief Judge, Mansfield and Mulligan, Circuit Judges.
This is an appeal from a judgment of conviction entered on February 27, 1974, in the United States District Court, Southern District of New York, after a jury trial before Hon. Arnold Bauman, United States District Judge. The appellant, Carmine Tramunti, was convicted of six counts of giving false testimony under oath in violation of 18 U.S.C. § 1623. A seventh count was dismissed prior to trial. After an eight-day trial, the jury found Tramunti guilty on October 25, 1973, and, on February 27, 1974, Judge Bauman sentenced Tramunti to concurrent terms of five years imprisonment on each count.
The six counts charged Tramunti with lying when he testified, as a witness on his own behalf, in a 1971 trial where he was a defendant in a conspiracy, mail fraud and stock fraud case, United States v. Aloi, 70 CR. 967 (the "Imperial trial"). Tramunti was acquitted in that case but was convicted below of lying in the Imperial trial when he denied knowing and meeting five of the alleged co-conspirators in the Imperial scheme: Michael Hellerman (count 1), John Kelsey (count 2), Murray Taylor (count 3), Vincent Gugliaro (count 4) and Philip Bonadonna (count 5). The sixth count of which he was convicted charged that he had lied when he denied meeting with some of the alleged co-conspirators at Gatsby's Restaurant, where the Imperial stock fraud deal was discussed.
On the trial below, Hellerman, a self-confessed securities swindler, testified for the Government and stated that he had been introduced to Tramunti by John Dioguardi, and that prior to the Imperial trial he had met Tramunti on at least six occasions at various night clubs and restaurants, including the Royal Box Club at the Americana Hotel, where he attended a show with Kelsey and their wives. This testimony was corroborated in part by four other witnesses. Kelsey, another self-confessed stock swindler, also testified that he had been at the Gatsby luncheon, the meeting covered in count 6, with Tramunti, Taylor, Bonadonna, Dioguardi and two men named "Vinnie". A Government exhibit, a photograph taken by an FBI agent, showed Tramunti and Gugliaro leaving a restaurant following the Fusco wedding reception in 1965.
No question of insufficiency of evidence has been raised on this appeal except with respect to count 4 involving Tramunti's acquaintanceship with Gugliaro. It is urged that as a matter of law the FBI photograph showing the two men leaving a large wedding reception at the same time is insufficient evidence to establish that they knew each other.
The sufficiency of the Government's case, however, is not to be determined by the photograph alone. After the Government rested, the defendant's motion for a judgment of acquittal under Fed. R. Crim. P. 29, which permits the entry of a judgment of acquittal for insufficiency of the evidence, was denied. The defense then proceeded to present its case. The sufficiency of the evidence supporting count 4 must therefore be considered in conjunction with the evidence presented by the defense. United States v. Pui Kan Lam, 483 F.2d 1202, 1208 n. 7 (2d Cir. 1973); United States v. Arcuri, 405 F.2d 691, 695 n. 7 (2d Cir. 1968), cert. denied, 395 U.S. 913, 23 L. Ed. 2d 227, 89 S. Ct. 1760 (1969). In the Imperial trial, Tramunti had testified that he had no recollection of ever having been at the restaurant in question and did not know of any wedding reception having been held there. On his direct examination below, Tramunti's memory improved to the point that he was able to recall that several hundred people were at the reception. On cross-examination (during the course of which the Government confronted Tramunti with his earlier testimony), he recalled that he was present and was able to identify both himself and Gugliaro in the photograph. He still denied having met or spoken to Gugliaro. The jury, having listened to Tramunti's testimony and having heard his prior testimony about the wedding given at the Imperial trial, may well have believed that his denial that he knew Gugliaro was a fabrication. This was clearly a permissible inference, Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952) (L. Hand, J.), and, in view of his conviction, the inferences to be drawn must be considered in the light most favorable to the Government. United States v. Candella, 487 F.2d 1223, 1228 (2d Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1563, 39 L. Ed. 2d 872 (1974); United States v. Marrapese, 486 F.2d 918, 921 (2d Cir. 1973), cert. denied, 415 U.S. 994, 94 S. Ct. 1597, 39 L. Ed. 2d 891 (1974). Furthermore, the evidence on this count must be viewed in light of the totality of the Government's case, since one fact may gain color from others. United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972); United States v. Monica, 295 F.2d 400, 401-02 (2d Cir. 1961), cert. denied, 368 U.S. 953, 82 S. Ct. 395, 7 L. Ed. 2d 386 (1962). We therefore cannot conclude that the evidence with respect to count 4 was insufficient to justify the verdict.
The cross-examination of Tramunti provides the basis for the principal argument made on this appeal. In 1966, Tramunti was subpoenaed as a witness before a federal grand jury. He refused to answer any questions, pleading the fifth amendment. Pursuant to 18 U.S.C. § 1406,*fn1 a court order was obtained compelling his testimony but granting him immunity from the use of his testimony against him in any court. This grant of use immunity, as Judge Bauman found, was not known either to defense counsel below, who had never previously represented Tramunti, or to Government counsel in this trial. On his cross-examination in this case, the Government read to Tramunti and asked him to account for his sworn testimony before the 1966 grand jury that he did not know what John Dioguardi, his friend of more than 20 years, did for a living and that he could not remember any of his own occupations of some two or three years before. Tramunti did recall at the trial below that Dioguardi was associated with Jard Products, and further did testify as to what his own occupations had been in 1963 and 1964. (On redirect examination, Tramunti testified that he did not know Dioguardi's occupation in 1966, but learned about it between 1966 and 1971). There is no question but that this evidence was relevant -- the Government was seeking to impeach Tramunti's credibility as a witness on trial (by showing his ability to remember on this trial facts which he could not remember in 1966), and also to demonstrate prior similar acts (i.e., his wilful and intentional giving of false trial testimony in the 1971 Imperial case, which was the basis of his present indictment, was preceded by similar conduct before the grand jury).
Counsel for Tramunti objected to the admission of this evidence on trial on the ground of remoteness, and, on a post-trial motion under Fed. R. Crim. P. 33, on the ground that the 1966 grand jury evidence was inadmissible because of the use immunity which was provided by § 1406 and by the self-incrimination clause of the fifth amendment of the Constitution. The immunity issue remains the major argument on this appeal. Judge Bauman, in a decision read into the record, denied the post-trial motion for a new trial.
A. Applicability of Indiviglio
The court below held initially that since defense trial counsel had failed to make a specific, timely objection to the allegedly immunized testimony, even though the defendant's constitutional rights were involved, the error would not be noticed under United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 15 L. Ed. 2d 663, 86 S. Ct. 887 (1966). The court went on to state that, absent specific objection, the use of the evidence here did not amount to an injustice of sufficient magnitude to warrant invocation of the plain error rule.*fn2 United States v. Bryant, 480 F.2d 785 (2d Cir. 1973).
We cannot agree that Indiviglio is applicable here. In that case, experienced trial counsel had objected to the introduction into evidence of statements made by the defendant on the ground that he had been illegally brought into the country by federal agents. The objection was overruled. On appeal, it was argued that the statements had been admitted in violation of the defendant's sixth amendment right to counsel under Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), and, Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964). These decisions had been handed down by the Supreme Court in May and June, 1964, and the defendant's trial was conducted in October, 1964. In Indiviglio, this court twice commented upon the fact that experienced trial counsel should have been expected to note these opinions and evaluate their relevance. 352 F.2d at 279, 281. In United States v. Bryant, supra, also relied upon by the trial court, the appellant urged that a tape played at a trial before a jury should not have been admitted because the recording was inaudible. No objection was made on this ground either before or after the tape was played to the jury. We held that the appellant was not entitled as a matter of right to raise the issue on appeal. 480 F.2d at 789.
To the extent that Indiviglio is based on a theory of waiver, we do not think it controls, for we can find no waiver here. It is not disputed that trial counsel was actually unaware that the Tramunti 1966 grand jury testimony was immunized. Although trial counsel here was experienced and able, he had not represented Tramunti before. The Government argues that the appellant himself, the unwilling witness, obviously must have known that he was the beneficiary of whatever immunity he was granted. Although Tramunti is hardly a stranger in the criminal courts, we are loathe to attribute to him the legal sophistication necessary to appreciate, particularly while the subject of a vigorous cross-examination, the circumstances under which he testified in 1966, seven years before. As Judge Bauman noted on sentencing, Tramunti has lived his "adult life entirely outside the law". His appearance in criminal proceedings was hardly of such moment that he could be reasonably expected to recall readily what, if any, cloak of immunity he was wearing in 1966. See United States ex rel. Raymond v. Illinois, 455 F.2d 62, 66-67 (7th Cir. 1971), cert. denied, 409 U.S. 885, 34 L. Ed. 2d 141, 93 S. Ct. 103 (1972).
The Government argues, however, that Indiviglio does not rest upon the waiver theory; rather, the Government contends, it is bottomed upon the realization that the defense and the Government will inevitably suffer innocent lapses in perception during a trial which will preclude the court from noticing and correcting errors, and where the prejudice is so substantial as to result in fundamental unfairness, only then is a new trial warranted. Here, Judge Bauman found that no such grave injustice warranting invocation of the plain error rule occurred. It is also argued that the error is not "plain" since the immunity question involved here is "close."
We do not agree. As we have noted, this court in Indiviglio did emphasize that defense counsel should have made the objection on trial since he ought to have been familiar with previously decided major cases in the Supreme Court upon which his subsequent appellate position was based. In Bryant, the inaudibility of the tapes was again immediately determinable at trial and this factor was noted on the appeal. Two additional cases are cited on appeal by the Government to establish that a "close" legal question does not constitute plain error, United States v. Manning, 448 F.2d 992, 1000, 1002 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 30 L. Ed. 2d 548, 92 S. Ct. 541 (1971), and United States v. Wright, 466 F.2d 1256, 1259 (2d Cir. 1972), cert. denied, 410 U.S. 916, 35 L. Ed. 2d 279, 93 S. Ct. 973 (1973). Manning involved the question of probable cause for making an arrest and seizure of narcotics in an apartment occupied by the appellant. On appeal, appellant urged for the first time that even if probable cause existed, the agent did not make a "sufficient announcement" to justify kicking the apartment door open. While the point is not mentioned explicitly in the opinion, it seems obvious that this was a case in which the issue on appeal could well have been made below. There was no suggestion whatsoever that the facts or the law involved came as any surprise to trial counsel. Wright is even less supportive of the Government's position. There, the appellant for the first time on appeal raised the question of the constitutionality of the federal wiretap statute. In relying upon Indiviglio, this court specifically noted the "striking" failure of the appellant to raise the issue on trial, particularly since counsel had reserved the right to raise the wiretap issue pending discovery but failed to move to suppress after receiving it. 466 F.2d at 1259.
In short, the "close question" approach taken in both of these cases in refusing to apply the plain error rule was in a setting of inadvertence or neglect on the part of trial counsel below. The case before us is markedly distinguishable. Not only was there no inadvertence or neglect on the part of trial counsel, but, in addition, the Government was culpable for the failure of trial counsel to make the appropriate specific objection. There is no suggestion that the Government deliberately suppressed the fact of appellant's 1966 immunity. It was found below and is not contested by appellant that trial counsel for the Government was as ignorant as defense counsel. However, the reason for the Government's lack of knowledge, as revealed in its affidavit on the Rule 33 motion below, was that the grand jury transcript upon which it relied failed to disclose that the Tramunti testimony was immunized. Since the Government obviously intended to use the 1966 transcript in the trial below, we do not think it unreasonable to expect that it should have made the inquiry before the trial rather than after, when it was advised by defense counsel that he believed the testimony may have been immunized. The grand jury transcript was available to the Government, and if it intended to use it and knew or should have known that the testimony recorded therein had been immunized, this should have been brought to the attention of defendant's counsel in order to permit the raising of the specific question.
What we have here, in sum, is the reverse of Indiviglio -- the failure to use a reasonable degree of care, in our view, was the fault of the Government and not of defense counsel. The perjury charges here were not based on the 1966 grand jury testimony but on the testimony given in the Imperial trial of 1971. We cannot expect clairvoyance on the part of defense counsel,*fn3 nor, as we have indicated, legal acumen on the part of the defendant. By the same token, we do not think that the "close question" approach of Manning and Wright to the plain error doctrine is appropriate here. The appellant claims a serious infringement of fifth amendment and statutory rights which are fundamental in our system of criminal jurisprudence. Moreover, this important issue was raised by defense counsel at the earliest possible ...