U.S. v. Page

• Decision Date: 02 January 1987
• Docket Number: 84-1628,Nos. 83-2257,s. 83-2257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William C. PAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 723

808 F.2d 723

UNITED STATES of America, Plaintiff-Appellee, v. William C. PAGE, Defendant-Appellant.

Nos. 83-2257, 84-1628.

United States Court of Appeals, Tenth Circuit.

Jan. 2, 1987.

Rehearing Denied, Feb. 4, 1987.

Carl Hughes (Michael Gassaway, also of Hughes, Nelson & Gassaway, Oklahoma City, Okl., and Warren Gotcher, McAlester, Oklahoma, with him on the brief), for defendant-appellant.

Wesley C. Fredenburg, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, LOGAN, and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Defendant, William C. Page, was convicted by a jury of engaging in racketeering activities affecting interstate commerce, in violation of 18 U.S.C. Sec. 1962(c), and of obstructing, delaying, and affecting interstate commerce by means of extortion under color of official right as an assistant district attorney and as a special district judge, in violation of 18 U.S.C. Sec. 1951.

In this appeal defendant raises the following claims of pretrial error: (1) the government failed to correct misstatements to the grand jury and to present exculpatory evidence to the grand jury; (2) the government's affidavit in support of a wiretap authorization contained misrepresentations warranting suppression of incriminating tapes; (3) the government withheld Brady ¹ and Jencks Act ² material; and (4) the court erred in not conducting an in camera inspection of alleged Jencks Act material. Defendant also argues that the government's use of hypothetical questions assuming his guilt during cross-examination of his character witnesses is reversible error, and that, in any event, the trial court should have granted him a new trial based on newly discovered evidence. We reject all of these arguments.

Richard Riley was a client of defendant Page before defendant became an assistant district attorney. During an investigation by the Oklahoma Bureau of Narcotics (OBN), Riley sold methamphetamine to two OBN undercover agents and boasted to them that he could get cases "fixed" through then Assistant District Attorney Page. In an attempt to discover if Riley's claim was true, one of the agents asked Riley if defendant could get narcotics charges against his girlfriend, Marilyn Nicolai, dismissed. This was a fictitious charge, and "Nicolai" actually was an OBN undercover agent. Riley stated that he could fix the case for $500.

Riley called defendant to discuss the Nicolai charge on several occasions. Unbeknownst to defendant, the FBI recorded one of those conversations, in which defendant appears to have agreed to fix the case in exchange for a "car payment." "Car payment" appeared to be a code that Riley and defendant used to refer to bribes. Throughout the trial, defendant claimed that Riley had agreed to make car payments for defendant to pay past attorney fees that he owed.

At trial Riley was the government's principal witness. He testified to several instances in which he claimed he had paid defendant to intervene in pending criminal matters. These incidents allegedly occurred while defendant was an assistant district attorney and a special district judge. Evidence also suggested that defendant was aware that Riley was selling illegal drugs and that he provided Riley with information about investigations of Riley to protect him. Finally, there was evidence that defendant accepted payments from people other than Riley in exchange for fixing cases.

I

A

Defendant claims that his indictment should be dismissed because of the prosecutor's misconduct before the grand jury, specifically because the prosecutor allowed the grand jury to consider false testimony. This allegation arises from Riley's request that defendant provide him with photographs of undercover agents who Riley feared were investigating him. Defendant provided Riley with photographs, but these were not photographs of actual undercover agents. During the grand jury proceedings, however, FBI agent West testified that defendant had in fact given Riley photographs of undercover agents. Although the prosecutor knew this testimony was inaccurate, he said nothing to the grand jury. ³

We may dismiss an indictment only if the prosecutorial misconduct is so flagrant that there was "some significant infringement on the grand jury's ability to exercise independent judgment." United States v. Pino, 708 F.2d 523, 530 (10th Cir.1983). Dismissal of an indictment after a conviction is essentially a prophylactic measure, designed more to deter prosecutorial misconduct before the grand jury than to protect a particular defendant's rights. United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir.1982). We will dismiss an indictment despite a subsequent conviction only in rare instances. If a petit jury has knowledge of the same misstatement made to the grand jury and nonetheless finds a defendant guilty beyond a reasonable doubt, it is unlikely that the error before the grand jury, which must find only probable cause, was prejudicial. See Talamante v. Romero, 620 F.2d 784, 791 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980); see also United States v. Mechanik, --- U.S. ----, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986).

In Talamante v. Romero, 620 F.2d 784 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980), we refused to dismiss an indictment that was partially based on perjured testimony because (1) the misstatement was exposed at trial, (2) the defendant cross-examained the perjurer, and (3) the evidence did not clearly absolve the defendant. Id. at 790-91. In the instant case, defendant had the opportunity at trial to cross-examine Riley and he testified himself about the photographs. In addition Riley, who received the photographs from defendant, testified at trial that they were not authentic. Despite this unrefuted testimony concerning the photographs' lack of authenticity, the jury convicted defendant. We are convinced accordingly that this evidence would not have affected the grand jury's finding of probable cause. The record does suggest that defendant provided Riley with false photographs because he did not want to endanger the undercover agents, but this does not negate the substantial evidence that defendant was willing to fix cases in exchange for money.

This clearly is not a case involving abuse, bad faith, or vindictiveness. Instead the prosecutor's failure to correct Agent West's testimony was, at worst, an oversight. The extraordinary remedy of dismissal of the indictment is not called for here. Cf. United States v. Hogan, 712 F.2d 757, 761-62 (2d Cir.1983) (dismissing indictment when prosecutor characterized defendant as a "real hoodlum," repeatedly elicited false evidence, and speculated on defendant's connection with other crimes).

B

Defendant also asserts that the prosecution failed to present exculpatory evidence to the grand jury. He argues that the prosecution should have presented his tax returns and cancelled checks, and the testimony of R.J. Melton to the grand jury. The government counters that a prosecutor has no duty to disclose exculpatory evidence.

There are two views concerning the duty of a prosecutor to present exculpatory evidence to a grand jury. Some courts have held that there is no such duty. See, e.g., United States v. Adamo, 742 F.2d 927, 937-38 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985); United States v. Sears Roebuck & Co., 719 F.2d 1386, 1394 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984); see also United States v. Civella, 666 F.2d 1122, 1127 (8th Cir.1981) (prosecutor need not disclose facts that constitute a defense). These courts have reasoned that, because a grand jury is asked to determine probable cause rather than guilt or innocence, exculpatory evidence need not be presented. See Sears, 719 F.2d at 1394.

Other courts have stressed the importance of the grand jury hearing all relevant information and therefore have imposed a duty on the prosecutor to present exculpatory evidence. The Second and Seventh Circuits have suggested that, although a prosecutor need not present all conceivably exculpatory evidence to the grand jury, it must present evidence that clearly negates guilt. United States v. Flomenhoft, 714 F.2d 708, 712 (7th Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984); United States v. Ciambrone, 601 F.2d 616, 622-23 (2d Cir.1979). This is the better, and more balanced rule, which we adopt. Under this standard the prosecutor is not obliged to ferret out and present every bit of potentially exculpatory evidence. But when substantial exculpatory evidence is discovered in the course of an investigation, it must be revealed to the grand jury. This promotes judicial economy. If a fully informed grand jury cannot find probable cause to indict, there is little chance the prosecution could have proved guilt beyond a reasonable doubt to a fully informed petit jury.

Applying this standard to the instant case, we find no error because the evidence defendant claims should have been presented to the grand jury was not clearly exculpatory. Defendant complains primarily about the prosecution's failure to show the grand jury checks from Riley to defendant marked as "attorney fees," and tax returns reflecting those payments as income from attorney's fees. That the checks were labeled attorney's fees was consistent with the prosecution's theory of the case, that Riley was paying defendant to fix cases under the guise of paying attorney's fees incurred while defendant was in private practice. The jury evidently agreed. Because this evidence was not clearly exculpatory, we find the draconian remedy of dismissal of the indictment inappropriate here. ⁴

II

Defendant argues that the tape recordings of his telephone conversations must be suppressed because of a defect in the prosecution's affidavit in support of a wiretap...