546 F.2d 1254 (5th Cir. 1977), 74-3457, United States v. Prior

Docket Nº:74-3457, 74-4097, 75-3207.
Citation:546 F.2d 1254
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Frederick C. PRIOR, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Frederick C. PRIOR, Defendant-Appellant.
Case Date:February 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1254

546 F.2d 1254 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellant,


Frederick C. PRIOR, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee,


Frederick C. PRIOR, Defendant-Appellant.

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

United States Court of Appeals, Fifth Circuit

February 14, 1977

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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

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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...

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