U.S. v. Prior, s. 74-3457

• Decision Date: 14 February 1977
• Docket Number: 75-3207,74-4097,Nos. 74-3457,s. 74-3457
• Citation: 546 F.2d 1254
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Frederick C. PRIOR, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Frederick C. PRIOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1254

546 F.2d 1254

UNITED STATES of America, Plaintiff-Appellant, v. Frederick C. PRIOR, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Frederick C. PRIOR, Defendant-Appellant.

Nos. 74-3457, 74-4097, 75-3207.

United States Court of Appeals, Fifth Circuit.

Feb. 14, 1977.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for the U. S.

Robert L. Floyd, James D. Little, Sherryll Martens Dunaj, Miami, Fla., for Frederick C. Prior.

Appeals from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS, ^* District Judge.

MEHRTENS, District Judge:

The government appeals from an order suppressing grand jury testimony given by defendant Frederick C. Prior (#74-3457); the defendant Prior appeals from a jury conviction on five counts of perjury under 18 U.S.C. § 1623 (#74-4097) and also appeals from the District Court's denial of a motion for new trial (#75-3207). The three appeals were consolidated.

We reverse the order suppressing Prior's grand jury testimony; affirm his conviction of perjury; and affirm the District Court's denial of the motion for a new trial.

The defendant Prior and Fred O. Dickinson were formerly law partners. Prior continued to practice law while Dickinson held public office as the Comptroller and Commissioner of Banking for the State of Florida. A grand jury was conducting an investigation into the finances, taxes and activities of Dickinson. Prior was subpoenaed to appear and produce records involving transactions between himself and Dickinson. As a result of his testimony Prior was indicted on seven counts of perjury.

The subpoena was issued April 30, 1974, directing him to appear May 3rd and to produce records relating to his transactions with Dickinson. He was advised by the United States Attorney that he was not a target of the grand jury's investigation and was desired as a "third party" witness. On May 3rd he appeared, turned over his records and was excused. He returned as a witness on May 6th, May 7th, and June 3rd, 1974.

The inquiry of Prior related to his participation in the formation of the Palm Beach Mall Bank, a state-chartered bank, for which Prior had been organizing attorney and in which he had held stock. Specifically, questions were asked concerning whether he had held any part of the stock on Dickinson's behalf; whether he had transmitted to Dickinson a portion of the profits he received when he sold the stock; and what the purpose was of a series of bills submitted by him to the Commercial Bank of Winter Park, Florida.

During his appearances Prior testified that Dickinson had never had any interest in the bank stock; that Dickinson had not assisted in making payments of interest on the loan which was obtained to pay for the stock; and that no portion of the interest payments made during the life of the loan was attributable to Dickinson. He further testified that the bills he had sent to the Commercial Bank at approximately the same times that interest became due on the loan were submitted on account of legal services that he had performed and had nothing to do with the loan.

Earlier the grand jury had heard testimony from Elmer G. Banks, president of a bank-holding company, about the Palm Beach Mall Bank. He had testified to a variety of transactions between himself, Prior and Dickinson, stating, among other things, that Prior was to hold half of his stock secretly for Dickinson and that Prior submitted statements for legal services to the Commercial Bank in amounts which would pay Dickinson's share of the interest plus Prior's income taxes thereon, which statements the bank had paid to Prior. In this manner Dickinson's interest was paid until Prior sold the stock in 1971. Midway during his May 7th testimony the Foreman read to Prior the perjury statute and it became apparent that there was at least skepticism of Prior's veracity as to his testimony. Prior, however, did not in any manner change or correct his testimony. As a result, the indictment was issued.

At a pre-trial hearing Prior moved to suppress his grand jury testimony and the documents he had produced on the ground that at neither his May nor June appearances had he been given Miranda warnings. The District Court granted the motion to suppress as it related to the June 3rd testimony and denied it as it related to the May 6th and 7th testimony. The District Court held that in his June 3rd appearance Prior was "in focus" as a target of the investigation and that United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), as it stood at the time, required an automatic suppression of the June 3rd testimony because Prior was a "putative defendant." As a result the court later granted a motion to sever Counts I and V based exclusively on June 3rd testimony, and to strike from Counts II, III and IV all portions of testimony given on June 3rd. The United States appealed from the order suppressing the June 3rd testimony.

During the trial, on Counts II, III, IV, V and VI, the government subpoenaed Dickinson, the State Comptroller, to identify and testify as custodian of that office's records. Dickinson, prior to trial, asserted that if called to testify on behalf of either party, he would assert his Fifth Amendment privilege in response to any questions except those relating to production and identification of the Comptroller's records. Pursuant to the subpoena, he appeared, produced and identified the records, answering all questions put to him concerning them. He was then excused without asserting his Fifth Amendment privilege.

At the conclusion of the trial the jury returned verdicts of guilty on each of the five counts submitted to it. Prior has appealed from the conviction and from the denial of his motion for a new trial.

Prior's Motion to Suppress Grand Jury Testimony

The District Court in ruling upon Prior's motion to suppress his grand jury testimony found that by the June 3rd session the grand jury had focused on Prior, believing that he was committing perjury and held that under Mandujano, supra, the June 3rd testimony should have been preceded by Miranda warnings, but that the earlier testimony would be admissible.

Thereafter, the United States Supreme Court in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), decided while this appeal was pending held that Miranda warnings need not be given to a grand jury witness called to testify about criminal activities in which he may have been personally involved, and that therefore the failure to give such warnings is not a basis of suppression in a subsequent prosecution for perjury, citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), in which the court had held that:

"(T)he shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances."

The court continued:

"The fact that here the grand jury interrogation had focused on some of respondent's specific activities does not require that these important principles be jettisoned; nothing remotely akin to 'entrapment' or abuse of process is suggested by what occurred here. Cf. Brown v. United States, 245 F.2d 549 (CA8 1957). Assuming, arguendo, that respondent was indeed a 'putative defendant,' that fact would have no bearing on the validity of a conviction for testifying falsely . . . Respondent was free at every stage to interpose his constitutional privilege against self-incrimination, but perjury was not a permissible option. As the Tenth Circuit has held, the law provides 'other methods for challenging the government's right to ask questions.' United States v. Pommerening, 500 F.2d 92, 100 (CA10 1974)." Mandujano, supra, at 583, 584, 96 S.Ct. at 1780.

In light of Mandujano, we reverse the order suppressing Prior's grand jury testimony given on June 3rd. See also, United States v. Yeager, 537 F.2d 835 (5th Cir. 1976); United States v. Wendling, 535 F.2d 323 (5th Cir. 1976).

Prior's Appeal from Jury Conviction

Prior first asserts that the District Court improperly struck from Counts II, III and IV of the indictment the quotation from Prior's June 3rd testimony and that by so doing the indictment was improperly amended.

It is, of course, basic law that an indictment may not be amended. Many cases have held, however, that it is not an amendment of an indictment to withdraw a portion of it from the jury's consideration, usually because of the government's inability to prove that part, and to submit the case to the jury on what remains, provided the indictment still charges an offense and the same offense originally contemplated by the indictment as returned. See Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926); Overstreet v. United States, 321 F.2d 459 (5th Cir. 1963); Thomas v. United States, 398 F.2d 531 (5th Cir. 1967); and United States v. Auerbach, 420 F.2d 921 (5th Cir. 1969).

After granting the motion suppressing the testimony given on June 3rd, the District Court correctly (indeed it had no alternative) severed Counts I and V, charging the commission of perjury on June 3rd. As to Counts II, III and IV which charged the commission of perjury on both May 7th and June 3rd, the striking of those portions quoting from the June 3rd testimony, was correct because that action merely withdrew from the jury the very evidence that the court had already ordered suppressed.

Prior next claims that the government failed to prove that he was duly administered an oath by the Foreman at the commencement of his testimony. He relies upon the certificate of the court reporter, a preprinted form describing the proceedings as a deposition. He argues that this certificate conclusively establishes that the court reporter rather than the Foreman administered the...