Appeal from a judgment of the Eastern District of New York convicting appellant of making false declarations under oath in violation of Title 18 U.S.C. § 1623(a) when he testified as a witness in the trial of a criminal case. The principal claim on appeal is that the indictment should be dismissed because the prosecutor misled the grand jury by failing to reveal that appellant had been coerced by threats against his life into giving false testimony.
Before Friendly, Mansfield and Meskill, Circuit Judges.
Richard C. Ciambrone appeals from a judgment of the Eastern District of New York entered on May 8, 1978, convicting him of three counts of an indictment charging him with making false declarations under oath in violation of 18 U.S.C. § 1623(a)*fn1 when he testified in December 1976 as a witness in a criminal case before the same court in a case entitled United States v. Harry Blasich, No. 76 Cr. 536.
Ciambrone was convicted after a jury trial before Judge Thomas C. Platt. His principal contentions here are that the indictment against him should have been dismissed because (1) the prosecutor misled the grand jury which indicted him by failing to reveal in response to grand jurors' questions that appellant had been coerced by threats against his life into giving the alleged perjurious testimony at the Blasich trial, and (2) the district court refused to order the recording of the proceedings before the grand jury, including all remarks by the Assistant U.S. Attorney. In addition appellant claims that the district court erred (1) in refusing to direct the Government to disclose the identity of an informer who had advised it of reports of threats against appellant before he testified in the Blasich case, (2) in its instructions to the jury regarding appellant's duty to notify law enforcement authorities regarding any such threats, and (3) in failing to state its reasons for imposing a five-year sentence. We affirm.
The present case arose out of appellant's involvement with Harry Blasich in the distribution of methamphetamines. On January 23, 1976, appellant, then on parole as the result of an earlier narcotics conviction, was arrested by agents of the Drug Enforcement Administration (DEA) and charged with conspiracy to distribute methamphetamines. Recognizing that the Government wanted to obtain evidence against someone higher up in the chain of distribution appellant agreed, after questioning by agents and by Assistant U.S. Attorney Samuel Dawson, to cooperate in making a criminal case against his supplier, Harry Blasich. Appellant's hope, of course, was that the charge against himself would be reduced and that he would receive leniency from the court. During the discussions with the DEA agents appellant was advised that if he should be successful in providing evidence leading to the indictment of Blasich he might be required to testify against Blasich and that in anticipation of such a possibility the Government was prepared to protect him by offering him the opportunity to participate in its Witness Relocation Program, under which Ciambrone and his family would be moved to another city and provided with housing, a different name and an opportunity to find a job.
At the outset, proceeding under the surveillance of DEA agents, appellant went to his home and obtained methamphetamines he kept there and turned them over to the DEA. On April 12, 1976, after being fitted out with a body tape recorder, he successfully negotiated the purchase and acquisition of two pounds of methamphetamines from Blasich, who was subsequently indicted for this transaction. The negotiation and transfer of the narcotics took place in Ciambrone's automobile after Blasich had driven it onto and off the Brooklyn Belt Parkway, engaging in several maneuvers designed to protect against detection. Immediately before Ciambrone and Blasich took off in the auto DEA agents inspected the interior of the car. Upon Ciambrone's return from his brief motor safari with Blasich the agents found a two-pound bag of methamphetamines in the trunk of his car which had not been there at the time of the earlier inspection. Ciambrone said he had agreed to buy the drug from Blasich for $11,000 and that Blasich had put the package in the trunk. This evidence was corroborated by the tape to the extent that it recorded statements by appellant and Blasich regarding the amount of the purchase price and the slam of the trunk door. However, the tape was ambiguous regarding the subject matter of the transaction because Blasich and Ciambrone used the term "turquoise" instead of amphetamines or drugs. Three days later Ciambrone paid Blasich $800 toward the $11,000 purchase price.
Thereafter appellant became disenchanted with his role. He slackened in his collaboration with the DEA agents, who were seeking to perfect the case against Blasich, and took to criticizing the agents, refusing to cooperate with them and indicating resentment at "being labelled a stool pigeon."
When the DEA learned in September 1976 that it would be required to turn over to Blasich's counsel the tapes recording appellant's April 12 purchase of the drugs from Blasich, it again sought to induce appellant to be relocated under its program but he refused. In October 1976 the DEA was told by the FBI that one of its informants had learned that appellant had been threatened by two Blasich emissaries, who told appellant that he would be "taken care of" after the trial regardless of which way he testified. Upon being confronted with this information by the DEA agents, appellant denied that any such threat had ever occurred.*fn2
By November 1976 appellant ceased cooperating with the DEA. He expressed resentment at that agency's having identified him as the informant who had helped it obtain evidence against Blasich and stated that he would "screw the agents." Thereupon he withdrew his offer to plead guilty to the January 1976 drug conspiracy charge, went to trial on that charge and was acquitted on December 3, 1976.
Upon being called by the Government to testify at the Blasich trial during the week of December 6, 1976, appellant, taking a "cocky, arrogant" attitude, advised Assistant U.S. Attorney Kramer, who was in charge of that case, that he was going to testify that his tape-recorded conversations with Blasich in April 1976 had been concerned with the purchase of turquoise stones and not with methamphetamines. He further told Kramer that he had not been threatened in any way. As a witness called by the Government at the Blasich trial he carried out his own threat. After being granted immunity he deliberately gave false material testimony to the effect that the two pounds of methamphetamine hydrochloride allegedly purchased by him from Blasich on April 12, 1976, had been planted upon him by DEA Agent Chellino with instructions to state, when he returned from his negotiations with Blasich, that he had "received this package from Harry Blasich." Appellant further testified falsely that he in fact had negotiated with Blasich for the purchase of turquoise stones. Judge Weinstein, before whom the Blasich case was being tried, concluded, "Either there has been a crime committed by the members of the DEA or this witness has perjured himself." He directed that the matter be investigated and that Ciambrone be held in custody overnight.
On December 7, 1976, before the completion of the Blasich trial, the Government filed a complaint with a U.S. Magistrate charging Ciambrone with violating Title 18 U.S.C. § 1623 by giving false testimony at that trial. Ciambrone was released on bail fixed by Judge Mishler as $500 in cash, with a personal recognizance bond of $5,000. Notwithstanding appellant's false testimony the jury found Blasich guilty of possession of methamphetamines with intent to distribute. Shortly thereafter the Government indicated that it would seek a perjury indictment against appellant. On December 27, 1976, Ciambrone was again arrested, this time for failure to appear before the Magistrate for a preliminary hearing and for violation of parole. On January 7, 1977, he submitted his affidavit in support of an application for bail, reciting in detail the story of his cooperation with the DEA and his participation as a witness in the Blasich trial. At no point did this affidavit state that he gave any testimony at the Blasich trial under duress or as the result of any threats to his life.*fn3
On January 18, 1977, appellant's counsel, upon being informed by Assistant U.S. Attorney Lee A. Alderstein that the Government would be presenting evidence shortly to a grand jury with respect to the perjury charge, sought an order from the court directing the U.S. Attorney (1) to record all testimony and remarks of Government representatives, including the prosecutor, in the presentation of the case to the grand jury, (2) to refrain from characterizing evidence to the grand jury, and (3) to advise the grand jurors of all elements of the offense for which an indictment was to be sought, including various defenses. Appellant's attorney acknowledged that he had discussed with the Government the possibility of affording Ciambrone the opportunity to testify before the grand jury and that the order was relevant to the defenses that Ciambrone, when he made allegedly false statements under oath at the Blasich trial, (1) "believed them to be true" and (2) "was acting under duress." In response, Assistant U.S. Attorney Bernard J. Fried wrote a letter to Judge Bramwell, a copy of which was sent to appellant's counsel, taking the position that while it was the practice of his office to record all testimony of grand jury witnesses, the Government was not obligated, in view of this Court's decision in United States v. Peden, 472 F.2d 583 (2d Cir. 1973), to record the remarks of a prosecutor. He further stated that, although a defendant had no right to appear before a grand jury or to present evidence favorable to the defense, the Government would,
"in accordance with our usual practice when a defendant requests to appear before the Grand Jury, . . . invite defendant Ciambrone to do so. Furthermore, we will, of course, advise the Grand Jury of all the elements of the offense or offenses for which an indictment is sought, and we will invite counsel for defendant Ciambrone to submit such written instructions as he may deem appropriate. If upon review, we concur with the appropriateness of this submission, it will be presented to the Grand Jury."
Finally, the letter opposed any order directing the Assistant U.S. Attorney to refrain from characterizing evidence put before the grand jury.
On January 27, 1977, Judge Bramwell denied the defendant's motion. An attempted interlocutory appeal by Ciambrone to this court was denied on February 2, 1977. On February 3, 1977, evidence was presented by Assistant U.S. Attorney Adlerstein to a grand jury which returned the indictment against Ciambrone. Appellant did not appear and his counsel did not present to the Assistant U.S. Attorney any written instructions for submission to the grand jury.
Prior to the trial of the present case appellant, upon being furnished with a transcript of the relevant portions of the grand jury proceedings leading to his indictment, moved to dismiss the indictment on the ground that the Government had withheld evidence of threats to appellant despite inquiries by grand jurors as to why appellant would have lied under oath "if he knew he was going to get taped," to which the Assistant U.S. Attorney responded that appellant and Blasich were "friends" without advising the grand jury of reports from an informant that appellant's life had been threatened. Judge Bramwell denied the motion, stating that the Government was not required either to speculate regarding what was going on in appellant's mind or to present possible defenses. The court further observed that no formal defense had been interposed and that there was no reason for the Government to indicate any credence in possible threats to appellant's life.
The present case was tried before Judge Platt in March 1978. In support of the perjury charges the Government relied principally on the testimony of the DEA agents regarding appellant's initial cooperation, his brief automobile trip with Blasich on April 12, 1976, from which he returned with two pounds of methamphetamines, which he said he had bought from Blasich for $11,000, the tape recordings of that trip and of the down payment on April 15, 1976, Ciambrone's disaffection, his refusal to be relocated, his repeated denials that he had been threatened, and his false testimony at the Blasich trial to the effect that he had not purchased the two ...