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In re Kitchen

decided: April 27, 1983.

IN THE MATTER OF FRANK KITCHEN, A WITNESS SUBPOENAED BEFORE THE GRAND JURY


Appeal from order of district court holding grand jury witness in civil contempt under 28 U.S.C. § 1826(a) for willful disobedience of order to give truthful, nonevasive answers to questions posed before grand jury. Appellant argues that procedures below deprived him of due process and that government failed to prove by clear and convincing evidence that his claim of memory failure was false and evasive.

Feinberg, Chief Judge, Lumbard and Meskill, Circuit Judges. Lumbard, Circuit Judge, concurring and dissenting.

Author: Feinberg

FEINBERG, Chief Judge:

In a little over four months this court has been presented with three different appeals from judgments of the United States District Court for the Eastern District of New York holding in civil contempt under 28 U.S.C. § 1826(a) (1976) witnesses who claimed not to remember the information sought by a grand jury. In this most recent appeal, as in In re Bongiorno, 694 F.2d 917 (2d Cir. 1982) and In re Weiss, 703 F.2d 653 (2d Cir. 1983), the witness contends that the government failed to prove by clear and convincing evidence that his testimony was false and evasive. Appellant also raises serious challenges to the procedures below, contending that they violated his due process rights. For the reasons stated below, we reverse the judgment of the district court.

I. FACTS

A. Background

This case arises out of a grand jury investigation of whether officials of a corporation ("the Corporation") paid a "politically active lawyer," see In re John Doe Corp., 675 F.2d 482, 484 (2d Cir. 1982), the sum of $96,500 as part of a conspiracy to bribe a state official to resolve a dispute over a tax liability in the Corporation's favor.*fn1 Appellant Kitchen is and was at all relevant times manager of one of the Corporation's regions. The government believes that the bribe was discussed at a meeting in February 1977 ("the February meeting"), attended by the chairman of the Corporation ("the Chairman"), Kitchen's superior ("A"), Kitchen's subordinate ("B") and Kitchen himself. In the spring of 1977, the Corporation began an internal investigation of questionable practices called the Business Ethics Review. As part of this investigation, many employees, including Kitchen, filled out questionnaires. On his questionnaire, dated September 1, 1977, Kitchen originally checked off "no" in response to the question whether he had any knowledge of any payoffs or bribes "to settle any dispute with any government (such as tax disputes . . .)". But after an interview with a corporation attorney ("C") on October 18, 1977, Kitchen changed his answer to "yes" and attached the following explanation:

On about May 26, 1977, I attended [the February meeting] with [the Chairman, A and B]. During the course of the meeting, I surmized that a payment was going to be made to a state official for favorable treatment in a . . . tax liability case. . . .

C has testified before the grand jury, with the aid of notes he made during the interview, that Kitchen told him that he based this surmise on the fact that at the meeting there was discussion of hiring an expensive New York lawyer with an Italian name, and that entertainment was involved. C also testified that Kitchen told him that he had discussed the bribe separately with both B and A after the February meeting, and that A had told him not to worry about it.

The Chairman A and B are all targets of the grand jury investigation and have refused to testify. Kitchen, on the other hand, has been granted use immunity pursuant to 18 U.S.C. § 6003. The government wants him to give testimony that will implicate his superiors in the bribe conspiracy, but he has not done so. However, this is not the first snag in the grand jury's investigation. The Corporation originally refused to turn over to the grand jury documents produced during the Business Ethics Review, and directed its employees, including C and Kitchen, not to testify about the Review, on the ground that this evidence was protected by the attorney-client privilege and work-product immunity. Judge Sifton entered judgments of contempt against the Corporation in January 1982 and against Kitchen in February 1982. The judgment against the Corporation was affirmed in March 1982, In re John Doe Corp., supra, whereupon the Corporation produced the documents and C and Kitchen ceased to assert any privilege. At this point, by testifying as outlined above, C apparently so far redeemed himself as to become the prosecutor's witness against Kitchen. Kitchen's testimony, on the other hand, failed to satisfy the prosecutor, who contends that Kitchen's answers to questions about the February meeting, the supposed subsequent conversation with A and the interview with C are false and evasive and therefore contemptuous.

B. Kitchen's Testimony

Kitchen has maintained from the time of his first testimony before the grand jury on the subject, in January 1982, until his final appearance on March 22, 1983, that he remembers very few details of the meeting in February 1977. He has testified repeatedly and unequivocally, however, that although the "tax situation" was discussed, no bribe or payoff was mentioned. He testified that he first learned that a bribe might be paid from a subsequent discussion with his subordinate, B, who informed him that B had received authorization to pay a bribe at the February meeting. Kitchen stated that he was shocked by this information, and that he "wanted to stay away from [the bribe]." Kitchen has also repeatedly testified that he does not recall discussing the bribe with A. After being confronted with C's testimony and notes about the interview on October 18, 1977, he admitted that he was convinced that he must have talked to A, but continued to maintain that "I am telling the truth, I cannot recall whether I did or not."

Finally, Kitchen has testified that he does not remember any details of his interview with C, except that he "would have told him the truth" and that he was asked to amend his Business Ethics questionnaire. He explained that he originally did not mention the bribe on his questionnaire because he wanted to avoid involvement with the affair. When he did amend the questionnaire at C's prompting, the statement he gave was, he told the grand jury, inaccurate in two respects: first, in stating that the February meeting took place in May, a mistake he made in consulting his expense vouchers to fix the date; and second, in failing to explain that his surmise about what went on at the meeting was prompted by his discussion with B, in which B told him explicitly that a bribe was authorized at the meeting.

C. The Contempt Proceedings

On March 22, 1983, the prosecutor, Kitchen and Kitchen's counsel appeared before Judge Henry Bramwell. The prosecutor requested that the judge direct Kitchen "not to give any false, evasive or equivocal answers during the course of his testimony this afternoon." In particular, the prosecutor wanted Kitchen to reconcile his inability to recall what happened at the February meeting and whether or not he talked to A about the bribe with the evidence of his interview with C. After denying Kitchen's attorney's requests that, among other things, the government be required to give him copies of the grand jury transcript and to specify the answers considered false or evasive, Judge Bramwell ordered Kitchen to "make a good faith effort to answer questions posed to you . . . [and to] give clear and positive answers before the Grand Jury," and not to "give false, evasive or equivocal answers." Kitchen then returned to the grand jury and testified substantially as outlined above.

Thereafter, dissatisfied with this attempt by Kitchen to comply with the court order, the prosecutor moved by order to show cause for a judgment of civil contempt. On March 30, 1983, the matter was again heard by Judge Bramwell. The defense raised several procedural points. First, Kitchen's attorney again requested that the government set out the specific answers it considered contemptuous, and the government agreed to do so. Second, defense counsel requested that he be supplied with transcripts of C's grand jury testimony, since it appeared that the government would rely upon it to prove the falsity or evasiveness of Kitchen's testimony. The government agreed to supply Kitchen with the relevant portions of C's testimony, but successfully urged the court to consider all of it, including those portions not supplied to the defense, despite the defense's protestations that this infringed Kitchen's right to confrontation. Finally, Kitchen's attorney sought the right to call witnesses. The court stated that no witnesses would be required on April 1, when the hearing was scheduled to resume, but did not make any final ruling on the request.

At the April 1 hearing, the government called C as its only witness. C, relying on the notes he took during his interview with Kitchen, testified substantially as he had before the grand jury. At the close of direct examination, the court informed Kitchen's counsel that

[C] has been, as I see it, forthright and open, and I am not looking for you to test his credibility on this situation here, because . . . what he has given us is basically consistent with what the ...


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