The opinion of the court was delivered by: WEINFELD
The defendant Gerassimos Vinieris, found guilty on all three counts in which he was named in an indictment with others, moves pursuant to Rule 29 Fed. R. Crim. P., after the discharge of the jury for judgment of acquittal or for a new trial under Rule 33. He contends: (1) as to all three counts the Government failed to carry its burden of proof that it made no use, direct of indirect, of his immunized testimony before the Grand Jury as required under United States v. Kastigar;1 (2) as to Count Five, interstate transportation of stolen property, there was no evidence upon which the jury could have found that any illegal act of the defendant occurred from, through or into the Southern District of New York as the venue statute requires; and (3) as to Count One, the conspiracy count, there was insufficient credible evidence that defendant was a participant in the conspiracy. We consider each of these contentions separately.
THE CLAIM WITH RESPECT TO THE USE OF IMMUNIZED TESTIMONY
Prior to trial, Vinieris moved to dismiss the indictment upon the ground that it and the evidence to be used against him at trial were obtained through the use of his immunized testimony before the Grand Jury on July 13 and 22, 1983. In considering that motion, it was recognized that while the Government was free to prosecute him it had "the affirmative duty to prove that the evidence it proposes to use against him upon the trial is derived from a legitimate source wholly independent of Vinieris's compelled testimony."
The court observed that
[w]hether or not [this burden is met by the Government] may require a hearing, or the trial itself may establish the Government's position and obviate the need for a hearing. Whether or not a hearing is required in the instant case, it would best be deferred until after the trial. . . at which time a proper evaluation could be made as to whether in fact the evidence offered was obtained from wholly independent sources. . . Accordingly, Vinieris may renew his motion for a "taint" hearing after the trial, if necessary.
After a trial of nearly four weeks' duration, Vinieris moves to vacate the conviction upon a claim that the Government failed to sustain its burden under Kastigar. Upon a consideration of the defendant's renewed argument in support of his contention and a complete review of the entire trial transcript consisting of more than 2500 pages of testimony, the Court concludes that the Government has sustained its burden of proof.
Vinieris's claim of the use of "tainted" evidence upon the trial is directed toward two items of evidence. First, he contends that financial information derived and complied from nine bank accounts and five certificates of deposit maintained by him in his name and the names of his mother, wife, and a corporation of which he was the controlling stockholder, showing that he made net deposits in excess of $500,000 between February 9 and June 10, 1983 -- that is, from about the time Vinieris picked up, as the Government charges, two trunks containing a portion of the stolen Sentry money at the Iakovidis residence to the day he was first questioned by FBI agents -- was obtained and interpreted by the government on the basis of Vinieris's immunized testimony. Specifically, Vinieris claims that, although the government may have subpoenaed the bank records before he gave his immunized testimony, it developed the significant information from his immunized testimony so that, as his counsel argued, "the cash flow from those accounts only became apparent as a result of the immunized testimony."
With respect to this alleged taint by the use of the bank records, the Court interrupted the trial proper and conducted a hearing outside the presence of the jury. The evidence established that although the Government received documents from the bank on a continuing basis after Vinieris testified under a grant of immunity, these records were obtained pursuant to two Grand Jury subpoenas served on June 14 and 20, 1983, several weeks before Vinieris appeared before the Grand Jury on July 13, 1983 and, after asserting his Fifth Amendment privilege, was granted immunity and testified.
FBI Agent Walter Carroll, who analyzed the bank records upon which the summary charts and his interpretation of the evidence were based, swore that he never read Vinieris's Grand Jury testimony. He further swore that apart from the bank records themselves -- the first of which he received from FBI Agent Coleman, who was in charge of the investigation, and the rest of which he thereafter obtained directly from the bank -- he received no information whatsoever from any Assistant United States Attorney, any FBI Agent, or any other governmental individual, and that he prepared the materials and summary charts in reliance solely upon those documents.
At the conclusion of that hearing, during which Carroll was cross-examined by defense counsel, the court ruled that the Government had sustained its Kastigar burden beyond a reasonalbe (reasonable) doubt and that the financial information was admissible.
Nothing has been presented on this post-verdict motion that requires reconsideration and change of that ruling or a further hearing.
The second item of evidence which the defendant challenges relates to the Grand Jury testimony of E.T. Barwick and Mr. & Mrs. Max Crawford, none of whom was called as a trial witness by the Government or the defendant. Vinieris contends that his immunized testimony led to the disclosure of the identity of these witnesses and so to their Grand Jury testimony, of which he claims the Government made direct or indirect use against him or which he claims was otherwise prejudicial to him. His challenge with respect to E.T. Barwick can readily be disposed of since it appears that as of June 10, 1983, more than a month before Vinieris gave his immunized testimony to the Grand Jury, Vinieris had already informed FBI agents of his business dealing with E.T. Barwick.
With respect to the Crawfords, it does appear that their names were obtained by the Government during the course of Vinieris's immunized testimony. However, the Government denies the use, direct or indirect, in any respect, of their Grand Jury testimony. It categorically denies that their Grand Jury testimony was the source of any evidence or any information that led to evidence that played any part in the investigation or in the case presented against defendant.
The Crawfords' Grand Jury testimony is not before the Court. Although the defendant asserts he was without knowledge of the substance of their testimony, he claims that it must have been the source of or led to evidence or information used by the Government, the nature of which is not stated. Vinieris contends that without access to the Grand Jury minutes he cannot specify matters to substantiate his claim. The Government's response is twofold: first, having decided not to call the Crawfords as trial witnesses, it was not required to provide the defendant with their Grand Jury testimony either under Rule 16 of the Federal Rules of Criminal Procedure or 18 U.S.C. § 3500;
and second, it urges that at no time either before or during the trial did defendant make any showing of a "particularized need" for disclosure of their Grand Jury testimony as required under Rule 6(e).
The Crawfords were no strangers to Vinieris. They were his close personal friends. He and his counsel were aware in advance of trial that they had testified before the Grand Jury. As witnesses, they were under no restraint from disclosing the nature or substance of their testimony.
Defense counsel had interviewed them "at length"
and made no motion to obtain their Grand Jury testimony as permitted under Rule 6(3)(C)(i).
Now the defendant argue that he was foreclosed from using the Crawfords' testimony upon the trial proper because, asserting he was unaware of the nature of their Grand Jury testimony,
these potential witnesses were "compromised so that they could not. . . by used as witnesses by the defendant" and the Government by reason of its knowledge of their Grand Jury testimony was able to "anticipate possible defenses."
Vinieris further contends that he refrained from calling the Crawfords as character witnesses because their Grand Jury testimony might have been used by the Government for purposes of cross-examination. Upon argument of this motion, counsel stated that after an extensive interview of the Crawfords he was of the view "[t]hey would have been wonderful character witnesses" but decided not to call them since, without knowing their precise Grand Jury testimony, to do so "would have just opened a Pandora's box."
This claim is pure conjecture and without substance. The fact is that, after the Government rested, at no time did the defendant indicate that he proposed to call the Crawfords to testify, whether as character witnesses or otherwise, and was deterred from doing so because he lacked knowledge as to the nature of their Grand Jury testimony. Nor did Vinieris make any application to the Court to obtain the minutes of the Crawford's Grand Jury testimony. In response to this court's questioning on the argument of the motion, counsel gave vague answers as to what the substance of the Crawfords' proposed trial testimony might have been. There is not an iota of factual matter before the Court to suggest the nature of evidence that the Crawfords could have offered that was foreclosed from use upon the trial.
In sum, the claim made upon the argument of this motion that Vinieris was precluded upon the trial from calling the Crawfords as witnesses because they had previously been questioned before the Grand Jury is specious. The decision not to call them was a calculated and deliberate act made by experienced counsel. Indeed, counsel acknowledged that his decision not to call the Crawfords as trial witnesses was also due to "their obvious reluctance to become involved," from which he concluded "it was just clear they would make very frightened and very poor witnesses."
Nor is there anything before the Court even suggesting how the Government's catergorical representation that none of the evidence if offered upon the trial in support of ...