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UNITED STATES v. DE SALVO

May 29, 1992

UNITED STATES OF AMERICA
v.
FRANK De SALVO, Defendant.


SIFTON


The opinion of the court was delivered by: CHARLES P. SIFTON

SIFTON, District Judge.

 This decision considers defendant's omnibus pretrial motion requesting various forms of relief including dismissal of the superseding indictment. The motion is denied for the reasons hereinafter set forth.

 The indictment charges defendant with twelve counts of perjury, 18 U.S.C. § 1623(a), and obstructing justice, 18 U.S.C. § 1503.

 This case is related to the prosecution of seven persons associated with the law firm Morris P. Eisen, P.C. ("Eisen firm") for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. (the "Eisen case"). That case established to a jury's satisfaction that the defendants committed various forms of fraud in bringing numerous personal injury lawsuits.

 Defendant DeSalvo was an attorney at the Eisen firm from 1981-1983, a period during which certain acts charged in the prior RICO case occurred. The instant indictment charges that DeSalvo committed perjury when he testified before grand and petit juries regarding three Eisen firm cases: Mulnick, Miceli, and Pietrafessa.

 Defendant's history of giving testimony is not in dispute. A state grand jury subpoenaed DeSalvo to appear on September 11, 1987 in connection with an investigation into law firms' misdeeds. DeSalvo received transactional immunity in exchange for that testimony. See N.Y. CPL § 190.40(2). Defendant alleges that as a result of this immunized testimony the prosecution developed "critical leads" to evidence now offered against him, including the testimony of Steven DiJoseph and Paul Winton.

 Thereafter, a federal grand jury also subpoenaed DeSalvo. He gave testimony on September 14, 1989, after receiving a grant of immunity pursuant to 18 U.S.C. § 6002. At this time DeSalvo testified about two Eisen firm cases, Mulnick and Wise v. Benenson. In particular, he denied knowing that his cousin, Matthew Norrito, was a witness for the Eisen firm in both those cases. He also informed the grand jury about the venue of the Wise case. After this appearance the grand jury subpoenaed the records from Wise. Defendant contends that the grand jury relied on these records to support the indictment he now confronts insofar as it relates to the Mulnick case. DeSalvo also testified as to the address of his former wife, Elizabeth Falcetta, who has for many years contended that defendant engineered a sham lawsuit involving her son.

 At the conclusion of the September 14 session the grand jury excused DeSalvo but warned him that it might recall him for further questioning.

 DeSalvo returned to the grand jury on September 20. At that time he testified about the Miceli case, which he had tried. Before the grand jury DeSalvo denied any knowledge of a false investigation mounted by an Eisen firm colleague and two firm-employed investigators (one of whom was the son of Geraldine Morganti, who was herself convicted of violating RICO in the previous trial), which resulted in the exclusion of certain testimony favorable to the defense in that case.

 DeSalvo last appeared before the grand jury on November 9, 1989. He testified about the Pietrafesa case. He denied knowing that a witness in that case, Helen Gaimari, was Gerladine Morganti's mother as well as the grandmother of Susan Morganti, who DeSalvo had dated.

 On December 20, 1990, the United States called DeSalvo before the petit jury hearing the Eisen RICO case. Defendant testified, under a compulsion order, consistently with his prior grand jury statements with respect to Mulnick, Miceli, and Pietrafessa. The government, believing and explaining to the jury that this testimony was false, used it to illustrate the brand of illegality stocked by the Eisen firm.

 Defendant moves for the following relief:

 
(1) Dismissal of the superseding indictment under Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972);
 
(2) dismissal of the obstruction of justice counts under Kastigar ;
 
(3) dismissal of counts stemming from compelled testimony before the petit jury;
 
(4) severance of counts pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure and United States v. Doe, 819 F.2d 11 (1st Cir. 1987);
 
(5) severance of counts pursuant to Rule 14 of the Federal Rules of Criminal Procedure;
 
(6) striking of surplusage in the indictment pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure;
 
(7) elimination of allegations based on statements that are literally true under Bronston v. United States, 409 U.S. 352, 34 L. Ed. 2d 568, 93 S. Ct. 595 (1973);
 
(8) a bill of particulars pursuant to Rule 7(f) of the Federal Rules of criminal Procedure; and
 
(9) a pretrial ruling as to the admissibility of the grand jury testimony of Geraldine Morganti in light of United States v. Salerno, 937 F.2d 797 (2d Cir. 1991), cert. granted, No. 91-872 (Jan. 21, 1992).

 DISMISSAL OF INDICTMENT DUE TO GRAND JURY'S ALLEGED USE OF IMMUNIZED TESTIMONY

 Where a person invokes his fifth amendment privilege against self-incrimination a court may nevertheless compel his testimony,

 
but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except for a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

 18 U.S.C. § 6002. This statute "is coextensive with the privilege against self-incrimination" embodied in the fifth amendment. Kastigar v. United States, 406 U.S. 441, 453, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). Kastigar imposes on the prosecution "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 461.

 Defendant contends that the grand jury investigation that returned the instant indictment depended upon his prior state and federal immunized testimony. Noting the statutory exception to the immunity rule in a prosecution "for perjury, giving a false statement, or otherwise failing to comply with the [compulsion] order," 18 U.S.C. § 6002, defendant nevertheless contends that this exception does not permit the use of immunized statements made at one time to buttress claims that statements made on other occasions are allegedly false. The fact that DeSalvo testified on several different occasions animates his argument.

 The prosecution correctly points out that United States v. Apfelbaum, 445 U.S. 115, 63 L. Ed. 2d 250, 100 S. Ct. 948 (1980), eviscerates defendant's argument. In that case the Supreme Court considered whether § 6002's perjury exception applied only to the false statements made before a judicial tribunal, or whether it extended to allow use of all otherwise immunized testimony in a prosecution for perjury or false swearing. The Court, opting for the broader approach, held that the statute --

 
makes no distinction between truthful and untruthful statements made during the course of the immunized testimony. Rather, it creates a blanket exemption from the bar against the use of immunized testimony in cases in which the witness is subsequently prosecuted for making false statements.

 Id. at 122. The Court found that "Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony" and that such a construction comported with the fifth amendment. Id. at 123 & 131. Thus the Court permitted use of immunized grand jury testimony "in order to put the charged statements in context and to show that [the defendant] knew they were false." Id. at 119. As the perjury exception is "complete," only "the otherwise applicable rules of evidence" limit the use of immunized testimony in a perjury prosecution. Id. at 131-32. This reasoning, of course, applies as much to evidence gathered from "leads" provided by otherwise immunized testimony as it does to the immunized testimony itself.

 DeSalvo, citing United States v. Doe, 819 F.2d 11 (1st Cir. 1987), argues that Apfelbaum has no application here because DeSalvo testified not once but several times. That is a misreading of Doe. Even assuming that it accurately reflects the law of this Circuit, Doe simply holds that "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." Id. at 11. That statement derives from the language in Apfelbaum, that,

 
"even allowing truthful and untruthful immunized testimony in a subsequent perjury prosecution 'the exception would still be regarded as "narrow," once it is recognized that the testimony remains inadmissible in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his Fifth Amendment privilege absent the grant.'"

 United States v. Seltzer, 794 F.2d 1114, 1120 (6th Cir. 1986) (quoting Apfelbaum, 455 U.S. at 128), cert. denied, 479 U.S. 1054, 93 L. Ed. 2d 979, 107 S. Ct. 927 (1987). This timing issue was summarized by the Seventh Circuit:

 
The exception in the immunity statute allows the use of immunized testimony only in prosecutions for future perjury [i.e., perjury committed subsequent to the grant of immunity], future false statements and future failure to comply with the immunity order, not for past acts.

 In the Matter of Grand Jury Proceedings of August, 1984, 757 F.2d 108, 113 (7th Cir. 1984) (citations omitted), cert. denied, 471 U.S. 1018, 105 S. Ct. 2025, 85 L. Ed. 2d 306 (1985). Defendant's citation to the Apfelbaum dissents, which criticize the majority for its reaching the issue, only highlights Apfelbaum 's authority for the use of immunized testimony to prove perjury occurring after immunity is conferred. In all events, even assuming that DeSalvo's three appearances before a federal grand jury under the same compulsion order constitute three separate grand jury proceedings, see Doe, 819 F.2d at 12, (an assumption with which I disagree, infra), defendant has not pointed to any perjury alleged in the indictment which will be shown to be perjurious by reference to inconsistent or other statements made in subsequent immunized testimony. As defendant's own description of the substance of his testimony at each grand jury appearance demonstrates, each session concerned different Eisen firm cases. Hence, it is apparent that perjury at one session will not be proved by immunized testimony given later.

  Defendant does not add much by citing to case law -- principally United States v. Berardelli, 565 F.2d 24 (2d Cir. 1977) -- that the Apfelbaum Court observed to be on the other side of the circuit split which prompted the Court to grant certiorari in Apfelbaum. See Apfelbaum, 445 U.S. at 119 n.5. The Second Circuit decided Berardelli a rule holding that only false statements given under a grant of immunity may be "used to prove . . . a later perjury." Berardelli, 565 F.2d at 28. As a result, the court permitted use of prior immunized testimony only where a judge "independently determined that the immunized testimony was false." Id. at 29. Apfelbaum, as already discussed, permitted the use of truthful as well as false statements given under immunity in a perjury prosecution. After Apfelbaum, there need be no showing that the unimmunized statements are false when they are used to prove perjury.

 Nor does defendant's citation of United States v. Cameron, 231 U.S. 710, 58 L. Ed. 448, 34 S. Ct. 244 (1914), support his position. That case indeed held that immunized testimony given at one time may not be used to establish perjury occurring later. It turned, however, on Section 860 of the Revised Statutes, in force at the time the allegedly perjurious statements were made. That statute read:

 
No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any Court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.

 This absolute prohibition on the use of evidence with a limited proviso where the prohibition would otherwise exempt the witness from prosecution for perjury differs significantly from the provision of section 6002 creating an exception from the prohibition where perjury is alleged to have occurred after the evidence is given.

 Defendant also contends that the government made impermissible use of immunized state grand jury testimony. He alleges that the United States relied on that testimony to develop leads, including at least two witnesses -- Winton and DiJoseph -- whose testimony has supported the indictment in this case and is likely to be used against DeSalvo at trial.

 For reasons already discussed, had DeSalvo given this testimony before a federal grand jury, under Apfelbaum the grand jury certainly could have used this testimony as evidence of a later perjury. Consequently, the only as yet unresolved issue is whether the fact that DeSalvo testified under a state grant of immunity alters the analysis.

 New York law confers automatic transactional immunity on those compelled to testify with the exception for perjury in the proceeding in which the testimony is compelled. See N.Y. CPL § 190.40. That immunity does not, however, provide so broad a shield to the defendant in this case as appears.

 Testimony given before a state grand jury under a state grant of transactional immunity enjoys only use of derivative-use immunity in federal court. United States v. Gallo, 863 F.2d 185, 190 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989). The court reached that conclusion despite the fact that at the time of state grand jury testimony (1968) both state and federal statutes provided transactional, rather than use, immunity for compelled testimony. Gallo, decided after Kastigar upheld the constitutionality of use immunity, thus demonstrates that federal courts will confer on state-immunized testimony no more protection than the fifth amendment demands. Since use immunity does not, as a matter of constitutional law, extend to prosecutions for perjury committed after the immunity was conferred, Apfelbaum, supra, the grand jury was free to use so much of the state grand jury testimony as was relevant and information derived from it in returning the instant indictment alleging perjury committed after the immunity was conferred.

 Accordingly, even if the federal grand jury in fact relied on the state-immunized testimony to develop leads for proving that later statements were false, it has not overstepped constitutional bounds.

 Finally, defendant requests a hearing to determine if a person likely to be called at trial as a witness against him, Steven DiJoseph, was exposed to DeSalvo's immunized testimony before the federal grand jury and tainted thereby. In support of this request, defendant cites United States v. North, 910 F.2d 843 (D.C. Cir. 1990), cert. denied, 114 L. Ed. 2d 477, 111 S. Ct. 2235 (1991). North, however, did not involve a prosecution for perjury, and thus the doctrine of use immunity applied with full force.

 That distinction makes North inapplicable here. The D.C. Circuit reasoned that a witness' exposure to a defendant's immunized testimony might render his testimony inadmissible under Kastigar because, like the defendant's own testimony, it "is also evidence that is to be considered by the grand jury or the trial jury. When the government puts on witnesses who refresh, supplement, or modify that evidence with compelled testimony, the government uses that testimony to indict and convict. The fact that a government violates the fifth amendment in a circuitous or haphazard fashion is cold comfort" to the accused. Id. at 860. In short, this "most expansive reading of the Fifth Amendment to date regarding the evidentiary use of immunized testimony," United States v. Helmsley, 941 F.2d 71, 82 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 409, 112 S. Ct. 1162 (1992), maintained that a witness exposed to a defendant's immunized testimony may, however subtly and indirectly, place that immunized evidence before a grand or petit jury through his own testimony. Because § 6002's perjury exception made the immunized testimony in the instant case a proper subject for grand jury examination, defendant's argument that its indirect admission through DiJoseph must pass a more demanding test must be rejected.

 DISMISSAL OF OBSTRUCTION OF JUSTICE COUNTS

 Defendant moves to dismiss the indictment's six counts of obstruction of justice, 18 U.S.C. § 1503, because they rest on evidence inadmissible ...


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