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SHARGEL v. FENTON

October 13, 1978;

Gerald L. SHARGEL, Attorney in behalf of Vincent Aloi, Petitioner,
v.
Charles E. FENTON, Warden of the Federal Penitentiary at Lewisburg, as Agent for the State of New York and Louis J. Lefkowitz, Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: GOETTEL

In this habeas corpus action under 28 U.S.C. § 2241, petitioner Aloi *fn1" seeks to vacate his New York State perjury conviction and the accompanying detainer now lodged against him. Petitioner alleges that his conviction violated both his Fifth Amendment right against self incrimination and his right to due process of law under the Fourteenth Amendment to the United States Constitution.

Aloi appeared under subpoena on November 28, 1972 before a New York County Grand Jury investigating the killing of Joseph Gallo. Upon his refusal to sign a waiver of immunity petitioner automatically received transactional immunity pursuant to New York Criminal Procedure Law § 190.40 (McKinney 1971). Following this grant of immunity, petitioner testified that he had never visited a certain apartment in Nyack, New York, allegedly the meeting place for the planning of Gallo's murder and the subsequent attempts to conceal the identity of the perpetrators. As a result of this denial, petitioner was indicted for perjury in the first degree. *fn2"

 At the perjury trial in June, 1973, a number of witnesses testified as to Aloi's presence in the Nyack apartment. In addition, the prosecution, over the objection of defense counsel, introduced into evidence almost all of Aloi's immunized grand jury testimony. Much of this material contained statements far beyond the Corpus delicti of the perjury, including many questions relating to the nature of petitioner's employment that attempted to characterize the petitioner as an organized crime figure. *fn3" The trial court allowed this material into evidence for the purpose of determining the materiality of the allegedly perjurious statement to the grand jury's investigation. Petitioner contends that the introduction of these minutes constituted both an impermissible use of compelled testimony in derogation of his Fifth Amendment right against self incrimination, and so prejudiced the jury as to make impossible a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment.

 Petitioner was convicted in New York State Supreme Court and sentenced to two and one-third to seven years imprisonment. The Appellate Division affirmed without opinion, People v. Aloi, 45 A.D.2d 819, 356 N.Y.S.2d 545 (1st Dept. 1974), and the Court of Appeals denied leave to appeal. Thereafter, Aloi petitioned in federal court for a writ of habeas corpus claiming both self incrimination and due process grounds. Judge Weinfeld found, United States ex rel. Aloi v. Arnold, 413 F. Supp. 1384 (S.D.N.Y.1976), that the due process ground had not been raised on appeal in state court and thus that there had been no exhaustion of state remedies with regard to that claim. Since he found that the due process claim was sufficiently related to the self incrimination claim so as to preclude review of either until the due process claim had been properly presented to the state court, he denied the petition without prejudice.

 Petitioner returned to the state courts to move under New York's post-conviction statute *fn4" to vacate the judgment on both self incrimination and due process grounds. He failed, however, to offer any explanation why the due process claim had not been raised on direct appeal, a failure which precluded the state Supreme Court from reviewing the claim on the merits. *fn5" The motion was denied, as was leave to appeal to the Appellate Division. Petitioner thereupon brought his second federal habeas corpus petition on the same two grounds. Judge Stewart, in Shargel ex rel. Aloi v. Arnold, No. 77 Civ. 316 (S.D.N.Y. May 27, 1977) (unreported opinion), once again found that there had been no exhaustion of state remedies because the state court had not had the opportunity to determine whether petitioner's failure to raise the due process claim on direct appeal was "justifiable," (and thus whether the motion could have been heard on the merits), and denied the petition. Whereupon petitioner once again went back to state court to file a second post-conviction motion to vacate, this time accompanied by an affidavit explaining his earlier actions. *fn6" This motion was denied, as was leave to appeal to the Appellate Division.

 Petitioner has now filed his third federal habeas corpus petition alleging the same two claims. No motion has been made by the respondents to dismiss for failure to exhaust state remedies. We agree that petitioner has finally exhausted his state remedies, and met the requirement set out in Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971) to present "the state courts with the same claim he urges upon the federal courts." See United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 (2d Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2d Cir.), Cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972). Thus, this Court may now, on petitioner's third try, reach the merits of the petition. *fn7"

 The Self Incrimination Claim

 An important function of the Fifth Amendment is to guarantee an individual's right against self incrimination by protecting him from being compelled to be "a witness against himself" in a criminal case. *fn8" The function of the grand jury is to investigate fully all potential criminal charges to insure that, "serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance." United States v. Mandujano, 425 U.S. 564, 571, 96 S. Ct. 1768, 1774, 48 L. Ed. 2d 212, 219 (1976) (plurality opinion of Burger, C. J.). On occasion, the need of a grand jury to know comes into conflict with a witness' right against self incrimination. In such a situation, as was noted by the Second Circuit in United States v. Tramunti, 500 F.2d 1334, 1342 (2d Cir.), Cert. denied, 419 U.S. 1079, 95 S. Ct. 667, 42 L. Ed. 2d 673 (1974), "(t)he accommodation between the right of the government to compel testimony, on the one hand, and the constitutional privilege to remain silent, on the other, is the immunity statute."

 In order for a grand jury to compel testimony over a claim of privilege, it is necessary that the immunity afforded be at least as insulating as the protection afforded under the Constitution. In Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 1661, 32 L. Ed. 2d 212, 222 (1971), the Supreme Court held that the federal immunity statute, 18 U.S.C. §§ 6002-3, which provides for use and derivative use immunity, is, "coextensive with the scope of the privilege itself against self incrimination." See Glickstein v. United States, 222 U.S. 139, 32 S. Ct. 71, 56 L. Ed. 128 (1911). New York's immunity statute, which provides for transactional immunity as well as that for use and derivative use, *fn9" is even more protective. As immunity is treated as having "substituted for the privilege," United States v. Mandujano, 425 U.S. at 576, 96 S. Ct. at 1776, 48 L. Ed. 2d at 222, a "witness can be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity." Id. at 575, 96 S. Ct. at 1776, 48 L. Ed. 2d at 221.

 Since the transactional immunity afforded a grand jury witness under New York law provides greater protection than does the Fifth Amendment itself, it is clear that the compelled testimony of such an immunized witness cannot be used by, "prosecutorial authorities . . . in any respect . . . (and) cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. at 453, 92 S. Ct. at 1661, 32 L. Ed. 2d at 222. *fn10" The only exception to this rule occurs when the witness perjures himself. As noted recently by the Third Circuit in United States v. Apfelbaum, 584 F.2d 1264 at 1269 (3d Cir. 1978): "Perjury however is a violation of an independent criminal statute, and as a practical matter, if immunity constituted a license to lie, the purpose of immunity would be defeated." Thus a witness, despite the grant of immunity, and without coming into conflict with the constitutional prohibition against compulsory self incrimination, United States v. Mandujano, 425 U.S. at 576-577, 96 S. Ct. at 1776-1777, 48 L. Ed. 2d at 222, *fn11" can be prosecuted for his perjurious statements before the grand jury. *fn12"

 To prove perjury against a defendant the prosecution can introduce into evidence such part of the defendant's immunized testimony as is necessary to establish the Corpus delicti of the offense. United States v. Apfelbaum, 584 F.2d 1264 at 1270; United States v. Hockenberry, 474 F.2d 247, 249 (3d Cir. 1973). Use in this manner of such limited portion of the immunized testimony is the extent to which the prosecution can go without violating the Fifth Amendment. In defining Corpus delicti the court in Apfelbaum stated, Supra, at 1270 n. 9: "(W)e define Corpus delicti to mean only the statement or statements of the defendant which the grand jury has charged to be perjurious, together with no more than that minimal testimony Essential to place the charged falsehood into its proper context." See United States v. Berardelli, 565 F.2d 24 (2d Cir. 1977); United States v. Housand, 550 F.2d 818 (2d Cir.), Cert. denied, 431 U.S. 970, 97 S. Ct. 2931, 53 L. Ed. 2d 1066 (1977); United States v. Tramunti, 500 F.2d 1334. *fn13" Beyond this minimal use, as noted in Housand, supra at 822, truthful grand jury testimony is "(not) admissible to prove perjury, for its use . . . (is) prescribed by the immunity granted."

 The respondent asserts that petitioner's grand jury testimony is admissible for any "legitimate purpose" to show that petitioner perjured himself before the grand jury. We cannot accept such a broad formulation. The court in Hockenberry, 474 F.2d at 250, stated that, "if immunity that deprived him (the defendant) of that privilege (against self incrimination) is to be, as constitutionally it must, coextensive with the privilege itself, his compelled admission of wrongdoing cannot later be used to discredit his effort to defend himself against a charge of some other wrongdoing." The extent to which immunized testimony can be introduced by the prosecution in a later proceeding is thus severely circumscribed. United States v. Apfelbaum, 584 F.2d 1264 at 1270. In Apfelbaum, the Court held that only that part of the immunized testimony which was "incorporated in Haec verba in the perjury indictment" could be considered part of the Corpus delicti, id. at 1270, n. 9, and therefore admissible. In this case, however, we see no need to limit the Corpus delicti to the same extent. We define Corpus delicti as being the perjurious statements alleged in the indictment plus the Minimal relevant and Essential other testimony necessary to be able to place the alleged perjury in its proper context. Material beyond this may not be introduced at trial, nor may it be contained in the indictment.

 In the state's prosecution against Aloi virtually the entire minutes of his immunized grand jury testimony was introduced into evidence. This material went far beyond that minimal amount of other testimony which was needed to place the alleged perjury in its proper context, and thus was not within the Corpus delicti. *fn14" It has been held that that part of the immunized testimony which is not within the Corpus delicti of the perjury cannot be used by the prosecution as substantive evidence in proving its case in chief. United States v. Apfelbaum, 584 F.2d 1264 at 1270. Nor can such testimony be used for the purpose of impeachment if the grand jury witness is later called to testify at trial. United States v. Frumento, 552 F.2d 534, at 542-543, (3d Cir. 1977); United States v. Tramunti, 500 F.2d at 1344; United States v. Hockenberry, 474 F.2d at 250. As was stated in Frumento, supra, at 543, and quoted with approval in Apfelbaum, supra, at 1270:

 
"Clearly, if a witness had invoked his Fifth Amendment privilege, the government could have no testimony available with which it might impeach his subsequent sworn statements. Were we to permit impeachment with immunized testimony we would then be affording the ...

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