U.S. v. Alessio

• Decision Date: 14 January 1976
• Docket Number: 74--1550,Nos. 73--2904,s. 73--2904
• Citation: 528 F.2d 1079
• Parties: UNITED STATES of America, Appellee, v. Dominic ALESSIO, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1079

528 F.2d 1079

UNITED STATES of America, Appellee, v. Dominic ALESSIO, Appellant.

Nos. 73--2904, 74--1550.

United States Court of Appeals Ninth Circuit.

Jan. 14, 1976.

Rehearing and Rehearing En Banc Denied Feb. 24, 1976.

Thomas P. Nugent (argued), of Haskins, Lewis, Nugent & Newnham, San Diego, Cal., for appellant.

Richard S. Stolker, Atty. (argued), U.S. Dept. of Justice, Washington, D.C., for appellee.

OPINION

Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, ^* District Judge.

WOLLENBERG, District Judge:

Appellant Dominic Alessio and Anthony Santiago were charged in a three-count indictment returned December 7, 1972. Appellant was charged in Court One with having given items of value to Santiago with the corrupt intent to influence official acts of Santiago, in violation of 18 U.S.C. § 201(b). Count Two charged appellant with giving these items of value to Santiago 'for and because of official acts performed by and to be performed by' Santiago, in violation of 18 U.S.C. § 201(f). Count Three charged Santiago with receiving these same items of value 'for and because of official acts' performed and to be performed, in violation of 18 U.S.C. § 201(g). Santiago pleaded guilty to Count Three and subsequently testified on behalf of the United States at appellant's trial. A jury acquitted appellant on the first count and convicted him on the second.

FACTS

Anthony Santiago was Camp Administrator at the Lompoc Prison Camp (hereinafter 'the Camp'), a minimum security institution for federal prisoners. Appellant's father John Alessio was an inmate at the Camp from approximately May 1971 until February 12, 1972, having been convicted of income tax evasion. As Camp Administrator, Santiago was in a position to confer upon inmates of the Camp certain benefits, including trips off the Camp premises.

In June 1971 Santiago and his family left for a vacation in Las Vegas and San Diego. During this vacation many hotel bills, restaurant bills, and other expenses incurred by Santiago were paid by appellant and by Maurice Friedman, another inmate at the Camp. Appellant's payments to, or on behalf of, Santiago form the basis of the bribery conviction.

A number of issues are raised on appeal, not all of which merit or will receive discussion. Appellant's principal claims are:

1) The government improperly failed to seek immunity for certain defense witnesses and the court improperly failed to grant the immunity in the absence of a motion from the government.

2) The evidence was insufficient to support the judgment.

3) The indictment was invalid because the prosecuting attorneys were not authorized to seek the indictment from the grand jury.

4) The jury was improperly exposed to prejudicial publicity during the trial.

None of these claims has merit, and the judgment will therefore be affirmed.

IMMUNITY FOR PROSPECTIVE DEFENSE WITNESSES

Appellant's most interesting argument on appeal is that he was denied important Fifth and Sixth Amendment rights by the government's refusal to seek immunity for prospective defense witnesses pursuant to 18 U.S.C. § 6001 et seq. At trial appellant unsuccessfully asked the government to invoke the immunity statute, supra, to compel the testimony of three witnesses whose testimony he claimed was crucial for his defense: Maurice Friedman, Daniel Morgan, a Camp correctional officer, and Roy Goddard, formerly a Camp case worker. It has repeatedly been held by this Court that the government may not be compelled to seek a grant of immunity for a prospective defense witness. United States v. Bautista, 509 F.2d 675, 677 (9th Cir. 1975); Cerda v. United States, 488 F.2d 720 (9th Cir. 1973); United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972). It was noted in Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966), however, that a defendant might be denied due process if the government uses its authority to seek immunity for its own witnesses, but declines to do so on behalf of the defendant. 361 F.2d at 534 n. 1. The problem was raised only hypothetically by the court in Earl because, like in United States v. Bautista, supra, the government had secured none of its own witnesses through a grant of immunity. In the present case the government sought and obtained immunity for one prosecution witness. Appellant claims the government's refusal to exercise on behalf of the defense its authority to seek immunity for witnesses denied him due process under the Fifth Amendment, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and denied him his Sixth Amendment right '(i)n all criminal prosecutions . . . to have compulsory process for obtaining witnesses in his favor . . ..' Further discussion of the facts is necessary to understand the Court's resolution of this issue.

Maurice Friedman, one of the persons whose testimony appellant hoped to obtain through a grant of immunity, was an inmate at the Camp. Friedman and appellant's father were close friends at the Camp; they roomed together and were frequently seen together. Appellant claims Friedman would have corroborated appellant's testimony that appellant provided gifts and other amenities to Santiago solely at Friedman's request, that such requests are routinely made in the gaming industry Friedman and appellant were involved in, and that it was a common business practice in that industry to comply with such requests. Appellant's argument here is that the government's refusal to seek immunity to obtain Friedman's testimony denied appellant valuable exculpatory evidence because the testimony would have shown that the gifts and other amenities given Santiago by appellant were solely in response to requests from Friedman and not for or because of official acts to be done by Santiago as charged in the indictment.

Daniel Morgan, another person whose testimony appellant sought to obtain through a grant of immunity was a Camp correctional officer who appellant claims would have testified he twice took appellant's father on trips off Camp premises, that he had no knowledge that appellant's father was prohibited from traveling off Camp premises, and that in the past he had given other inmates the same allegedly favored treatment received by appellant's father.

Roy Goddard, the third prospective witness for whom appellant sought immunity, was a former Camp case worker who appellant claims would have testified that a furlough request made by appellant's father was processed in the normal manner and that appellant's father, therefore, did not receive special treatment from Camp officials.

It has long been recognized that the Executive Branch of government 'has exclusive authority and absolute discretion to decide whether to prosecute a case . . ..' United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974), and authorities cited therein; Smith v. United States, 375 F.2d 243 (5th Cir. 1967), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). The right to compulsory process under the Sixth Amendment must be exercised consistent with the government's power to determine which cases will be prosecuted. This power has its roots in the Executive's constitutional duty to take care that the laws of the United States be faithfully executed. U.S.Const. Art. II, Sec. 3; United States v. cox, 342 F.2d, 167, 171 (5th Cir. 1965), cert. denied sub nom. Cox v. Hauberg,381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). To interpret the Fifth and Sixth Amendments as conferring on the defendant the power to demand immunity for co-defendants, potential co-defendants, or others whom the government might in its discretion wish to prosecute would unacceptably alter the historic role of the Executive Branch in criminal prosecutions. Of course, whatever power the government possesses may not be exercised in a manner which denies the defendant the due process guaranteed by the Fifth Amendment. The footnote in Earl v. United States, supra, on which appellant relies heavily says no more than this. The key question, then, is whether appellant was denied a fair trial because of the government's refusal to seek immunity for defense witnesses.

We are not convinced that appellant was denied a fair trial in this case. The testimony sought by appellant was cumulative of the testimony of other witnesses. The jury had before it all the facts and claims appellant intended to elicit from the witnesses for whom he sought immunity. The trial was not rendered unfair because of the absence of these witnesses' testimony, and appellant was therefore not denied due process.

SUFFICIENCY OF THE EVIDENCE

Appellant claims the evidence was insufficient to show a violation of 18 U.S.C. § 201(f) and that the language of the statute failed to advise appellant of what conduct would constitute a violation. The acts charged in the indictment in this case are a violation of the federal bribery statute that was revised in 1962. Section 201(f) has consistently been...