Dunn v. United States

Decision Date04 June 1979
Docket NumberNo. 77-6949,77-6949
Citation60 L.Ed.2d 743,442 U.S. 100,99 S.Ct. 2190
PartiesRobert DUNN, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court
Syllabus

Petitioner's testimony before a grand jury in June 1976 implicated one Musgrave in various drug-related offenses, and an indictment of Musgrave followed. On September 30, 1976, petitioner recanted his testimony in an oral statement made under oath in the office of Musgrave's attorney. Musgrave then moved to dismiss his indictment, alleging that it was based on perjured testimony. At an evidentiary hearing on this motion on October 21, 1976, petitioner adopted his September 30 statement and testified that only a small part of his grand jury testimony was true. As a result, the charges against Musgrave were reduced. Petitioner was subsequently indicted for violations of 18 U.S.C. § 1623 (1976 ed., Supp. I), which prohibits false declarations made under oath "in any proceeding before or ancillary to any court or grand jury." The indictment charged that petitioner's grand jury testimony was inconsistent with statements made "on September 30, 1976, while under oath as a witness in a proceeding ancillary to" the Musgrave prosecution. At trial, the Government introduced, over petitioner's objection, pertinent parts of his grand jury testimony, his testimony at the evidentiary hearing, and his sworn statement to Musgrave's attorney. Petitioner was convicted, and the Court of Appeals affirmed. Although it agreed with petitioner that the September interview in the attorney's office was not an ancillary proceeding under § 1623, the court concluded that the October 21 hearing was such a proceeding. While acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the court construed this discrepancy as a nonprejudicial variance between the indictment and the proof at trial.

Held:

1. Since the indictment and jury instructions specified the September 30 interview as the ancillary proceeding, the Court of Appeals erred in predicating its affirmance on petitioner's October 21 testimony. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury offends the most basic notions of due process. Although the jury might well have reached the same verdict had the prosecution built its case on petitioner's October 21 testimony adopting his September 30 statement rather than on the latter statement itself, the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. Pp. 105-107.

2. As both the language and legislative history of Title IV of the 1970 Organized Crime Control Act make clear, an interview in a private attorney's office at which a sworn statement is given does not constitute a "proceeding ancillary to a court or grand jury" within the meaning of § 1623. Moreover, to characterize such an interview as an ancillary proceeding would contravene the long-established practice of resolving doubt concerning the ambit of criminal statutes in favor of lenity. Pp. 107-113.

10th Cir., 577 F.2d 119, reversed.

Daniel J. Sears, Denver, Colo., for petitioner.

Andrew L. Frey, Washington, D. C., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

Title IV of the Organized Crime Control Act of 1970, 18 U.S.C. § 1623 (1976 ed., Supp. I), prohibits false declarations made under oath "in any proceeding before or ancillary to any court or grand jury of the United States." 1 This case turns on the scope of the term ancillary proceeding in § 1623, a phrase not defined in that provision or elsewhere in the Criminal Code. More specifically, we must determine whether an interview in a private attorney's office at which a sworn statement is given constitutes a proceeding ancillary to a court or grand jury within the meaning of the statute.

I

On June 16, 1976, petitioner Robert Dunn testified before a federal grand jury under a grant of immunity pursuant to 18 U.S.C. § 6002.2 The grand jury was investigating illicit drug activity at the Colorado State Penitentiary where petitioner had been incarcerated. Dunn's testimony implicated a fellow inmate, Phillip Musgrave, in various drug-related offenses. Following petitioner's appearance, the grand jury indicted Musgrave for conspiracy to manufacture and distribute methamphetamine.

Several months later, on September 30, 1976, Dunn arrived without counsel in the office of Musgrave's attorney, Michael Canges. In the presence of Canges and a notary public, petitioner made an oral statement under oath in which he recanted his grand jury testimony implicating Musgrave. Canges subsequently moved to dismiss the indictment against Musgrave, alleging that it was based on perjured testimony. In support of this motion, the attorney submitted a transcript of Dunn's September 30 statement.

The District Court held an evidentiary hearing on Musgrave's motion to dismiss on October 21, 1976. At that hearing, petitioner, who was then represented by counsel, adopted the statement he had given in Canges' office and testified that only a small part of what he had told the grand jury was in fact true. App. 46. As a result of petitioner's testimony, the Government reduced the charges against Musgrave to misdemeanor possession of methamphetamine. See 21 U.S.C. § 844.

Petitioner was subsequently indicted on five counts of making false declarations in violation of 18 U.S.C. § 1623 (1976 ed., Supp. I). The indictment charged that Dunn's testimony before the grand jury was inconsistent with statements made "on September 30, 1976, while under oath as a witness in a proceeding ancillary to United States v. Musgrave, . . . to the degree that one of said declarations was false . . . ." App. 5-6.3 In response to petitioner's motion for a bill of particulars, the Government indicated that it would rely on the "inconsistent declarations" method of proof authorized by § 1623(c). Under that subsection, the Government must establish the materiality and inconsistency of declarations made in proceedings before or ancillary to a court or grand jury, but need not prove which of the declarations is false. See n. 1, supra.

At trial, the Government introduced over objection pertinent parts of Dunn's grand jury testimony, his testimony at the October 21 evidentiary hearing, and his sworn statement to Musgrave's attorney. After the Government rested its case, petitioner renewed his objections in a motion for acquittal. He contended that the September 30 statement was not made in a proceeding ancillary to a federal court or grand jury as required by § 1623(c). In addition, Dunn argued that use of his grand jury testimony to prove an inconsistent declaration would contravene the Government's promise of immunity, in violation of 18 U.S.C. § 6002 and the Fifth Amendment. The court denied the motion and submitted the case to the jury. Petitioner was convicted on three of the five counts of the indictment and sentenced to concurrent 5-year terms on each count.

The Court of Appeals for the Tenth Circuit affirmed. 577 F.2d 119 (1978). Although it agreed with petitioner that the interview in Canges' office was not an ancillary proceeding under § 1623, the court determined that the October 21 hearing at which petitioner adopted his September statement was a proceeding ancillary to a grand jury investigation. 577 F.2d, at 123. Acknowledging that the indictment specified the September 30 interview rather than the October 21 hear- ing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner's immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court's view, petitioner's unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government's reliance on that testimony. 577 F.2d, at 125-126.

We granted certiorari, 439 U.S. 1045, 99 S.Ct. 719, 58 L.Ed.2d 703 (1978). Because we disagree with the Court of Appeals' ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner's immunized testimony was admissible to prove a violation of § 1623.

II

A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government's proof at trial. However, reasoning that petitioner's October 21 testimony was "inextricably related" to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F.2d, at 123. The court therefore determined that the variance was not fatal to the Government's case. See Kotteakos v. United States, 328 U.S. 750, 757, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946).

In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner's statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury.4 Indeed, the October 21 testimony was introduced by the...

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