react to DeSalvo's testimony. In all likelihood DeSalvo earnestly endeavored to convince the jury of his veracity. Had both sides agreed in the presence of the jury that DeSalvo's testimony was false, then this might be a different case. But the sides stridently disagreed about the truthfulness of the testimony.
This reduces DeSalvo's argument to the suggestion that somehow the fact that the government called him placed questions about the truth of his testimony beyond doubt in the jury's eyes. The poverty of this argument is obvious: had DeSalvo testified for the defense, with the government eliciting the testimony that it did on cross-examination and then urging the jury to disbelieve DeSalvo's statements, defendant would not have the temerity now to suggest that his testimony was so incredible that it was incapable of influencing the jury. Materiality should not turn on who called the witness as a matter of trial strategy.
In sum, DeSalvo testified about events that of necessity occupied an important place in the jury's mind. If in fact he proffered false testimony about those events, then the testimony's relevance to the issues litigated in the Eisen trial and the fact that the parties at the time differed as to its veracity make the testimony material.
Guariglia is not, as defendant argues, to the contrary. There the Second Circuit had no trouble concluding that the fact that Guariglia's false testimony in a prior case was material. The court had already decided in that prior case that, because of the presence of Guarglia's false testimony, the convictions obtained had to be vacated. The Second Circuit made it clear that those facts presented an easy case for materiality analysis but did not enunciate any new standard of materiality that benefits defendant here.
Defendant moves severance of counts pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure and pursuant to Rule 14. Defendant makes the same argument in support of relief under both Rules: that the Mulnick, Miceli, and Pietrafessa charges should be tried separately, because trying them together will prevent the jury from focusing its attention on any one of the cases with the attention the law demands.
In support of this claim defendant again cites United States v. Doe, 819 F.2d 11, 11 (1st Cir. 1987), for the proposition that his "immunized testimony in a future appearance before the grand jury cannot be used as evidence to prove a charge of perjury in giving false testimony in his prior appearance." He fears that evidence tending to prove one instance of wrongdoing will spillover in the jurors' minds and contaminate their thinking about the other counts, constituting an improper use of later, immunized testimony to convict him of a prior act of alleged perjury.
In fact, the problem identified here by defendant is no different than that confronted in any trial in which multiple counts are tried together: namely, that the jury will improperly use evidence of one crime as evidence of bad character to resolve issues presented by other crimes presented to the jury for consideration. There is, however, no particular reason to think that the problem cannot be dealt with by the usual instructions requiring separate consideration of counts. As already noted, there is no argument made that evidence of the later testimony might be used for a purpose more panted than proving bad character, as would be the case if later testimony recounted one version of events which impeached an earlier account, or evidenced a motive for earlier perjury, or eliminated a defense of accident or mistake. Each appearance, as already noted, involved testimony about a different case. Even if the later testimony was theoretically useful to prove intent or lack of mistake, there is no reason to doubt that blanket instructions absolutely forbidding jurors from considering evidence from later appearances to resolve issues concerning earlier ones will be effective.
In all events, defendant's reliance on Doe is misplaced. While Doe indeed states that immunized testimony cannot be used in a prosecution for past perjury "merely because on both occasions the testimony had been compelled by the same immunity order," id. at 12, the federal immunity statute appears to be to the contrary.
That statute speaks of testimony compelled under "an order"; it does not speak of the number of "appearances" that a person makes pursuant to that order. 18 U.S.C. § 6002. Apfelbaum itself speaks of testimony given "during the course of the immunized testimony," 445 U.S. at 122, and "testimony from the immunized proceeding," id. at 128. Similarly, in Berardelli, a case relied on by the defense, the Second Circuit spoke of witnesses "testifying under a grant of immunity." 565 F.2d at 29. The government persuasively argues that defendant's "appearance" theory knows no limit: every entry into and exit from the grand jury room might constitute a separate "appearance." While it might yield to the facts of a particular case, the use of the life of the order to define the scope of immunity makes sense in most cases. Where an order to testify before a grand jury has no expiration date, that same order remains valid "so long as the grand jury continues its investigation." In re Di Bella, 518 F.2d 955, 958 (2d Cir. 1975).
Since DeSalvo testified during his three appearances before the grand jury under one immunity order, as a matter of law he stands indicted for multiple counts stemming from the same episode. Thus, defendant's distinction between later and earlier testimony only serves to distinguish testimony given before the grand jury from testimony given before the petit jury. Since the parties agree that this testimony was largely duplicative, it is hard to envisage a use of the later testimony before the petit jury to prove the truth of the indictment insofar as it faults DeSalvo for giving false testimony at the earlier proceeding before the grand jury which cannot be prevented by appropriate instructions.
Nothing in the Federal Rules of Criminal Procedure affords DeSalvo any greater relief. Rule 8 states:
Two or more offenses may be charged in the same indictment of information in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act of transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Defendant's "purpose at this juncture to formally raise the procedural misjoinder argument under Rule 8(a)," Def.'s Br. at 8, provides no reason to disregard the plain language of Rule 8.
Under that language, it is clear that the multiple counts here "are of the same or similar character," if not being "parts of a common scheme or plan." See United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988) (noting disjunctive character of rule). "The use of Rule 8(a) . . . inevitably involves some danger of prejudice. . . . Despite this potential for unfairness, 'Congress has authorized consolidation in the belief that public considerations of economy and speed outweigh possible unfairness to the accused.'" Id. at 1043. Where the indictment meets the requisites of the Rule, joinder under Rule 8(a) is warranted. See, e.g., United States v. Arocena, 778 F.2d 943, 949 (2d Cir. 1985) (similar character of multiple bombing attempts), cert. denied, 475 U.S. 1053, 106 S. Ct. 1281, 89 L. Ed. 2d 588 (1986).
Another court has also recently held that multiple counts of making false statements are acts "of a similar character" and refused to sever one perjury count from four others. United States v. Guariglia, 757 F. Supp. 259, 263 ((S.D.N.Y. 1991). That court also noted that the Second Circuit has found Rule 8(a) joinder appropriate "solely on the grounds of the similarity of offenses." Id. (citing United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980)). The multiple counts need only be "similar" in character, defined as "'nearly corresponding; resembling in many respects; somewhat alike; having a general likeness.'" Werner, 620 F.2d at 926 (quoting Webster's New Int'l Dict. (2d ed.)
Joinder being proper under Rule 8(a), I turn to Rule 14. That Rule provides:
If it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
"A motion for severance under Rule 14 is addressed to the discretion of the district court." Arocena, 778 F.2d at 949 (citations omitted). To prevail, a defendant seeking joinder must convince the court that he would suffer not just some prejudice, which Rule 8 allows, but "substantial prejudice." Werner, 620 F.2d at 928.
Defendant argues that the "mere presence of the allegations" in connection with the Mulnick and Pietrafesa cases will inflate the credibility of DiJoseph's testimony regarding the Miceli case. Then, in a dialectical twist, he contends that DiJoseph's testimony regarding Miceli will aid "the wholly circumstantial, weak and possibly insufficient allegations" made with respect to the Mulnick and Pietrafesa cases.
There is simply no reason to credit defendant's contention that he will suffer substantial prejudice from the joinder of claims. The facts of this case are simple and straightforward. Each instance of alleged perjury or obstruction of justice is clearly identified in the indictment. Only one defendant stands accused. A conclusory statement that the jury might "transfer" elements of one crime to another, such as defendant makes here, does not justify severance under Rule 14. United States v. Sigalow, 624 F. Supp. 499, 501 (S.D.N.Y. 1986). Additionally, the Court will instruct the jury that, to convict, it must consider the counts separately and find that the government has proven each case beyond a reasonable doubt. Id. at 501.
In United States v. Rastelli, 870 F.2d 822, 836 (2d Cir. 1989), the Second Circuit rejected defendant's argument that allowing prosecution for perjury to proceed along with RICO counts against that defendant and others impermissibly tainted or prejudiced the jury with regard to its deliberations over the perjury count. This much less complex case, involving fewer and less dramatic facts, does not present any threat of substantial prejudice from joinder. As defendant acknowledges, "separate trials, broken along the lines of each of the three [Eisen firm] cases, would be unwieldy and an unfair drain on the Court's resources," Def.'s Br. at 9.
SURPLUSAGE IN THE INDICTMENT
Defendant moves pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure to strike statements in the indictment that he considers surplusage.
Rule 7(d) allows the court "on motion of the defendant" to "strike surplusage from the indictment or information."
The government has correctly identified this circuit's standard for considering 7(d) requests.
Motions to strike surplusage from an indictment will be granted only where the challenged allegations are "not relevant to the crime charged and are inflammatory and prejudicial." . . . . "If evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken."