Cargill v. United States

• Decision Date: 06 September 1967
• Docket Number: No. 8566.,8566.
• Citation: 381 F.2d 849
• Parties: O. A. CARGILL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

381 F.2d 849 (1967)

O. A. CARGILL, Appellant, v. UNITED STATES of America, Appellee.

No. 8566.

United States Court of Appeals Tenth Circuit.

August 11, 1967.

Rehearing Denied September 6, 1967.

Leslie L. Conner, Oklahoma City, Okl. (James M. Little, Leslie L. Conner, Jr., O. A. Cargill, Jr., and David Cargill, Oklahoma City, Okl., with him on the brief), for appellant.

David A. Kline, First Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., with him on the brief), for appellee.

Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

Appellant was indicted on three counts for perjury, was convicted by a jury, and takes this appeal. The charges stemmed from his answers to questions asked during his appearance before a federal grand jury in 1964. In Count I the questions concerned his knowledge of $150,000 withdrawn from Selected Investments Corporation by a Hugh A. Carroll; in Count II his knowledge of a person named "Pierre Laval" or of a story about him; and in Count III appellant is charged with falsely denying having any financial transactions with Justices of the Oklahoma Supreme Court.

Considering Counts I and II above, it appears from the record that the strongest evidence against appellant was the testimony of witnesses Carroll and N. S. Corn. Carroll was a former officer of Selected Investments Corporation, and Corn a former Justice, or supernumerary, of the Oklahoma Supreme Court. The testimony of Carroll during trial was that appellant Cargill had fabricated the "Pierre Laval story" to explain the disposition of the $150,000 withdrawn from Selected Investments actually used to "pay" certain justices for a favorable decision from the Oklahoma Supreme Court. Appellant represented witness Carroll in the Selected Investments bankruptcy proceedings in March 1958, where Carroll testified regarding the $150,000 and Pierre Laval. Witness Corn testified during the trial below as to financial transactions that he had had with appellant.

It appears that witness Carroll decided to "tell the truth" a day or so before he, Carroll, appeared before the federal grand jury investigating income tax law violations. Carroll appeared before the grand jury on April 6, 1964, a day before appellant appeared. Carroll was granted immunity from further federal or state prosecutions before he testified to the grand jury.

In December 1964, some eight months after appellant appeared before the grand jury, witness Corn, who was then serving a federal sentence, made a lengthy deposition implicating appellant in the Oklahoma Supreme Court bribery scandal and asserting appellant's financial dealings with justices of the court. It appears that Corn, who had pleaded nolo contendere to a charge of income tax evasion, was also granted immunity from further federal or state prosecution.

The federal grand jury which indicted appellant met again in February 1965, some nine or ten months after appellant's last appearance before the grand jury, and about one or two months after Corn made his deposition.

The appellant urges, among other things, that he was improperly denied by the trial court the transcripts of the grand jury testimony of the witness, Hugh A. Carroll, which he requested for cross-examination of the witness, and we should reverse on Counts I and II for this reason.

The record shows on this issue that appellant prior to his trial below, and pursuant to rule 6(e) of the Federal Rules of Criminal Procedure, moved for the production of a copy of his own testimony, and also the testimony of Hugh A. Carroll and others, given before the grand jury. The trial court granted this motion only as to appellant's own testimony. A motion was also made before trial under the Jencks Act for the production of certain statements.

Appellant during the course of his trial, and more particularly after the direct examination of the principal witness for the United States, Hugh A. Carroll, and before his cross-examination, made a request for the production of certain documents, transcripts, and statements. Appellant's attorney then asked whether the District Attorney "has any statements or copies of statements from this witness at any time so that we may examine them for the purpose of cross-examining this witness?" Thereafter, and still before cross-examination, there was an extended discussion of the type of statements sought by the appellant, and a request was then made for a transcript of the testimony of the witness before the grand jury "* * * concerning the matters he has testified to here, before the grand jury on, I believe, April 6, 1964, which certainly we would not have access to." This request referred to the witness Carroll, and a subsequent request was made specifically for the grand jury testimony of this witness. The United States Attorney stated that the grand jury testimony was "not producible under 3,500 * * *." The court responded, "I'll sustain an objection as to the grand jury testimony at this time * * *." Discussion was had as to transcripts of other proceedings had in open court. The appellant then again requested the grand jury transcript of the testimony of the witness, and the court again sustained the objection of the Government to its production. The attorney for the appellant asked that the court examine the testimony of the witness Carroll given before the grand jury, and the court did so. The cross-examination of Carroll then proceeded at some length. At its conclusion, and after redirect and recross-examination, and after a discussion of other issues with the jury excused, the court said:

"I might say to you, gentlemen, with respect to this matter of the grand jury transcript that was requested yesterday, that I examined the pages of it ahead of the testimony of the defendant, Mr. Cargill, first hundred and seventy some odd pages of it, and I did that last night, and there\'s no occasion for changing any ruling based upon that that I know of, because there\'s no reference to anything other than income tax violations."

From the requests made by the attorney for the appellant, it appears that it began as a request for Jencks-type statements for the purpose of cross-examining the witness Carroll, and was later during the course of the discussions among the attorneys and with the court expanded to include a specific request for the grand jury transcript of witness Carroll's testimony for the same purpose.

From its statement and the action taken by the trial court, it appears that the court understood the purpose of the request to be for the grand jury testimony to cross-examine Carroll. The ruling of the trial court was in June 1965 which was about a year before the Supreme Court's decision in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (June 20, 1966), which considered the production of grand jury testimony of witnesses. The appellant urges that the trial court's ruling was reversible error under Dennis and otherwise.

The Supreme Court opinion in Dennis begins with a reference to the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts," citing United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077, and notes further that when the disclosure is made, "it is to be done discretely and limitedly." The opinion continues with a reference to rule 6(e) of the Federal Rules of Criminal Procedure and states that disclosure is proper after the jury's functions are ended. The Court retains the requirement that "particularized need" be shown in order that the secrecy may be lifted, but holds in effect that such need is shown when the defense states that it wishes to use the transcript for the purpose of impeaching a witness, to refresh his recollection, or to test his credibility. Thus the Court as far as cross-examination is concerned has removed most, if not all, of the substance from the particularized need requirement, although it has retained the term. Under this opinion, it appears that the defense is entitled to the grand jury transcript of the witness's testimony when the jury's functions are ended, and when the request is made...