U.S. v. Housand

• Citation: 550 F.2d 818
• Decision Date: 25 February 1977
• Docket Number: No. 185,D,185
• Parties: UNITED STATES of America, Appellee, v. John Anthony HOUSAND, Appellant. ocket 76-1156.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 818

550 F.2d 818

UNITED STATES of America, Appellee, v. John Anthony HOUSAND, Appellant.

No. 185, Docket 76-1156.

United States Court of Appeals Second Circuit.

Argued Sept. 21, 1976.

Decided Feb. 25, 1977.

William H. Clendenen, Jr., New Haven, Conn. (David M. Lesser and Clendenen & Lesser, New Haven, Conn., of counsel), for appellant.

Peter R. Casey, III, Special Atty., U.S. Dept. of Justice, Washington, D.C. (Peter C. Dorsey, U.S. Atty., D. Connecticut, New Haven, Conn., of counsel), for appellee.

Before HAYS, TIMBERS and GURFEIN, Circuit Judges. ^*

GURFEIN, Circuit Judge:

Appellant John Anthony Housand stands convicted of conspiring to violate 18 U.S.C § 1001 and § 1503 (18 U.S.C. § 371) and of three counts of making false declarations before a grand jury. ¹ Andrew Bucci was tried along with Housand only on the conspiracy count. He is not involved in this appeal. Housand appeals.

Appellant Housand let himself out for hire in May 1972 to kill Daniel LaPolla, a prosecution witness against a quartet who had been indicted for the theft of M-16 rifles from a Rhode Island armory. ² Housand did not complete his assigned task himself, but LaPolla was, nevertheless, killed by a bomb planted directly by the quartet themselves. The United States indicted the quartet, each of whom was convicted of conspiring to deprive LaPolla of a civil right, death resulting (18 U.S.C. § 241), attempting to impede and intimidate a witness (18 U.S.C. § 1503), and using a dynamite bomb to commit a felony (18 U.S.C. § 844(h) and (i). The four were sentenced to life in prison.

It was Housand's role in the prosecution of the quartet to testify at two trials in the District of Connecticut, in late 1973 and early 1974, that, at a meeting with the quartet and their lawyer, Andrew Bucci, he had let himself out for hire in May 1972 to kill LaPolla for $5,000. At the time of his testimony, Housand was a State prisoner in North Carolina. He was then granted parole by the State, and was relocated by the Federal Government under an assumed name.

On November 13, 1974, Housand appeared at the office of the United States Attorney in New Haven in the company of Bucci and another lawyer and recanted his sworn testimony. Housand told the United States Attorney that there had been no such May 1972 meeting as he had described and that no one had ever approached him to kill LaPolla. He added that certain Government agents and attorneys had known his story was false, but had encouraged his false testimony. On December 6, 1974, Housand repeated his recantation under oath before the Grand Jury.

Then the pendulum swung back, and Housand told an Assistant United States Attorney and federal agents that his trial testimony was actually true, and that he had been induced to recant by the lawyer Bucci so that the quartet would get a new trial. He said that Bucci had promised him a number of things, including $25,000 upon his release if he should be imprisoned because of his recantation.

The Grand Jury indicted appellant on December 11, 1974, but this indictment was dismissed on the Government's motion and a superseding indictment filed, charging him with the crime above stated. Housand was tried and convicted on this indictment before a jury (Clarie, J.), resulting in this appeal.

At the trial the Government produced the various agents and attorneys whom Housand had named as knowing that his trial testimony was false. Each unequivocally denied such knowledge.

Housand testified in his own behalf. He admitted that his recantation and his Grand Jury testimony concerning it were false. He testified that he had recanted out of fear of Andrew Bucci, but he did not testify to specific threats. In rebuttal, the Government produced witnesses who testified that Housand had said, before his recantation, that he would recant unless the Government paid him certain moneys which he felt the Government owed him. And, as we have seen, Housand himself admitted that he was offered $25,000.

Housand sought to elicit testimony, in his defense, from Joseph N. Crisafi, who refused to answer on a claim of Fifth Amendment privilege, and who was sustained in his claim of privilege.

On appeal Housand raises the following points:

(1) That the ruling on Crisafi was prejudicially erroneous. (2) That the charge to the jury on the elements of the defense of coercion erroneously barred the jury from finding that appellant had been "coerced" to make a false recantation. (3) That appellant was denied his constitutional right to a speedy trial. (4) That the perjury counts were fatally defective because the questions posed to Housand before the grand jury were imprecise. (5) That the Government's use of Housand's statements of February 14, 18 and 19, 1975 violated the Sixth Amendment. (6) That appellant had ineffective assistance of counsel. (7) That the charge to the jury failed to specify each element of the substantive offense claimed to be the object of the conspiracy.

Finding no prejudicial error, we affirm.

I

Crisafi had voluntarily testified before the Grand Jury which indicted appellant in December 1974. That indictment was later dismissed. Crisafi testified before the Grand Jury again on January 31, 1975, this time after receiving a grant of immunity. ³

When Crisafi was summoned by appellant to testify at his trial, he claimed his privilege against self-incrimination. The prosecutor had given Judge Clarie the January 31, 1975 Grand Jury testimony of Crisafi, after his immunization, but, apparently through inadvertence, had not given the judge the December 1974 testimony, elicited before he was granted immunity.

Judge Clarie sustained the claim of privilege and denied the defense request that Crisafi be compelled to testify.

When called to the witness stand, Crisafi was represented by counsel. Crisafi indicated that he had had some prior discussion with appellant's counsel and had advised him that he preferred not to testify. Appellant's counsel then asked a series of general questions relating to Crisafi's Grand Jury testimony and it is to such questions that the witness responded by invoking his Fifth Amendment privilege. No questions were asked directly concerning any knowledge he might have on the issue of coercion. Instead, counsel stated that "that's all I can ask him, if the Court please. Obviously he is not going to answer any inquiry with respect to what he said before the Grand Jury, and he'll invoke the Fifth in respect to whether or not it is truthful. That's all, thank you." ⁴

It was unmistakably clear that the only crime with regard to which Crisafi was asserting his privilege was perjury. Judge Clarie and defense counsel recognized this, and is evident from the colloquy in which counsel conceded that a witness who had received immunity cannot be "immunized from perjury." No request was made for the further immunization of Crisafi. ⁵

The Grand Jury testimony of Crisafi was ordered sealed by the trial judge. We have read it to see what Judge Clarie had before him when he made his ruling. ⁶

We sympathize with and admire the trial judges who, in the heat of trial, are suddenly confronted with the most delicate constitutional issues and decide them with only their sound legal intuition and their general store of memory to guide them. In this case, none of the lawyers was of any real help to Judge Clarie. But we believe that he found the right answer.

The issue raised involved the relationship between the constitutional privilege against self-incrimination, the immunity statutes and the crime of making false declarations. ⁷

The classic cases are those in which the defendant had been prosecuted for a perjury committed after immunity has been conferred. It is the constitutional horn-book rule that perjury committed under an immunity grant does not make the perjurer immune from prosecution for the perjury, even if the particular immunity statute does not have an exception for perjury prosecutions. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950); Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969); Edelstein v. United States, 149 F. 636 (8th Cir. 1906); VIII Wigmore on Evidence § 2282 at p. 512. One of the grounds for this conclusion is that the immunity granted relates to past crimes and that the perjury is itself a new crime with respect to which no immunity was conferred. We have recently adopted this rationale in United States v. Tramunti, 500 F.2d 1334, 1344 (2d Cir.), cert. denied , 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974); see also United States v. Pappadio, 346 F.2d 5, 8 (2d Cir. 1965).

In Tramunti the defendant was convicted of giving false testimony under oath in violation of 18 U.S.C. § 1623. The perjury alleged was that Tramunti, while on trial as a defendant in a conspiracy, mail fraud and stock fraud case, lied when he took the stand concerning meetings with co-conspirators. On cross-examination at his false statement trial, Tramunti was confronted with Grand Jury testimony that he had given five years before, in 1966, after he had been granted immunity (though the fact that immunity had been granted did not surface until after the trial). The prior testimony was used to impeach Tramunti's credibility (by showing his ability to remember facts on this trial which he could not remember in 1966). The question was whether the testimony was properly usable, even though a literal application of the statute and the constitutional implication of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), appeared to make it non-usable. We held that there was no error in allowing its use for impeachment, relying on the doctrine that perjury is excluded from the grant of immunity, and on the fact that this testimony was perjurious. We recognized that the basis for the decision was that the...