Appeal from a judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, convicting appellant after a jury trial of perjury before a federal grand jury, 18 U.S.C. § 1623. Reversed and remanded for a new trial.
Friendly and Mansfield, Circuit Judges, and Bartels, District Judge.*fn*
MANSFIELD, Circuit Judge:
After a jury trial in the Southern District of New York before Judge Morris E. Lasker defendant Michael Camporeale was on November 22, 1974, adjudged guilty of the charge of having committed perjury before a federal grand jury in violation of 18 U.S.C. § 1623 and sentenced to six months imprisonment to be followed by two years probation. He seeks a new trial, principally on the ground that the district court clerk, despite a stipulation of counsel to the contrary, permitted the jury during its deliberations to have unredacted minutes of his grand jury testimony, which included a reference to his prior criminal record. We reverse and remand for a new trial.
On November 17, 1972, appellant testified under a grant of immunity, 18 U.S.C. § 6001, et seq., before a federal grand jury investigating the operation of certain illegal gambling businesses, 18 U.S.C. § 1955, and more specifically his association with the gambling activities of various persons, including Louis Visconti and David Weygant. Repeatedly appellant denied any recollection of having met Visconti or Weygant. On January 18, 1973, the same grand jury filed an indictment containing three counts, two of which charged various persons (including Visconti and Weygant) with operation of an illegal gambling business, 18 U.S.C. § 1955, and conspiracy, 18 U.S.C. § 371. The third count, which named Camporeale alone, charged that in his November 17, 1972, testimony before the grand jury he committed perjury when he testified that he could not remember having seen or met Visconti and Weygant, photographs of whom had been shown to him in the grand jury room.
At trial the Government adduced evidence that appellant had met Visconti on some 12 occasions between February 10, 1972, and May 8, 1972, including eye-witness testimony of five FBI agents and several photographs of such meetings that occurred on February 22 and February 23, 1972. Several FBI agents testified to a meeting between Visconti, Weygant and appellant on May 8, 1972, which was corroborated by Weygant, who further testified that this meeting was followed by others at which he and the appellant were present.
Camporeale did not take the stand in his own defense. He sought, however, to prove that he was under the influence of methadone on the day of his allegedly perjurious grand jury testimony by calling as a witness Addi Corradi, who testified that during the period from May 24, 1971, through April 9, 1974, Camporeale had been her patient at a Mt. Vernon methadone clinic. However, not having the relevant hospital records with her, she was unable to state whether he took methadone on November 17, 1972, the date of his grand jury testimony in question.
During the trial the transcript of Camporeale's three grand jury appearances, including his November 17, 1972, testimony, was received in evidence upon the stipulation of counsel for both sides, accepted by the court, to the effect that certain material would be "deemed not proper for the jury to see" and "expunged." The testimony to be excluded, an excerpt of which is printed in the margin,*fn1 confirmed the fact that Camporeale had been arrested four times, had stolen an automobile when he was 15 years old, and had been convicted in 1968 of possession of heroin, for which he received a six months sentence, and twice in 1970 for petty larceny for which he received $50 fines.
At the close of his instructions Judge Lasker gave the jury the customary advice that during its deliberations it might send for and consider whatever exhibits had been received. He then requested counsel to "make yourselves comfortable in the benches" while he prepared for commencement of another trial. Five minutes later, counsel for both sides having absented themselves from the courtroom, the judge, who had retired to his chambers or robing room, received a written request from the jury for "defendant's testimony before the Grand Jury which was read to us in court." Judge Lasker directed the clerk to give the marshal the requested grand jury testimony and exhibits for transmission to the trial jury, with the added instruction:
"You are going to have to get the attorneys. There was something they wanted to cut out of the Grand Jury minutes.
"When you bring them back let them assist you in getting all this stuff together."
Thereupon the court clerk, without first consulting with counsel, transmitted to the jury the transcripts of Camporeale's grand jury testimony, which had not been redacted and included the portion referring to his prior criminal record.*fn2 Upon learning what had happened during their absence from the courtroom the prosecutor and defense counsel, according to defense counsel's affidavit, "agreed that it would not be fruitfull [sic] to ask the Court or the clerk of the Court to remove the Grand Jury minutes from the jury room."
Within 40 minutes after its request for the grand jury minutes and within a shorter period after it received them the jury returned a verdict of guilty. Camporeale's post-trial motion to set aside the verdict on the ground that the jury had before it improper and prejudicial grand jury testimony with respect to his prior criminal record was denied by Judge Lasker on the ground that the error was waived by defense counsel's failure to move or object upon ...