U.S. v. Apfelbaum
| Decision Date | 10 August 1978 |
| Docket Number | No. 77-2427,77-2427 |
| Citation | 584 F.2d 1264 |
| Parties | UNITED STATES of America v. Stanley APFELBAUM, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Joel Harvey Slomsky, Philadelphia, Pa., for appellant.
Robert E. Madden, Sp. Atty., Dept. of Justice, Robert N. deLuca, U. S. Atty., E. D. Pa., Philadelphia, Pa., Robert J. Erickson, Vincent L. Gambale, Attys., Dept. of Justice, Washington, D. C., for the U. S.
Before ADAMS, WEIS and GARTH, Circuit Judges.
This appeal calls upon us to examine the contours of the permissible use by the Government of immunized grand jury testimony where that testimony does not constitute the Corpus delicti or core of a defendant's false swearing indictment. In resolving this issue, we recognize the tension created by the conflicting interests between the power of a grand jury to compel testimony and a witness's privilege against self-incrimination. Following the teaching of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and the precepts established in this court's precedents, See United States v. Frumento, 552 F.2d 534, 542-43 (3d Cir. 1977) (en banc); United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), we hold that grand jury testimony which is compelled under a grant of immunity may be utilized only as the Corpus delicti of an indictment for perjury or for false swearing. See 18 U.S.C. § 6002.
On December 13, 1976 and January 3, 1977, Stanley Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, appeared as an immunized witness before a federal grand jury. 1 The grand jury was investigating criminal activities (including racketeering and extortion) alleged to be involved in the operation of a Chestnut Hill automobile dealership in Philadelphia.
In response to questioning before the grand jury, Apfelbaum made two series of statements which served as the basis for his subsequent false swearing indictment and conviction. In his December 13th grand jury testimony He denied that he had tried to locate one Harry Brown in Fort Lauderdale, Florida during the month of December 1975. 2 Then, on December 13, 1976 and again on January 3, 1977, Apfelbaum testified before the grand jury that He did not recall telling F.B.I. agents that he had loaned $10,000 to Brown. The grand jury which heard these two statements returned an indictment against Apfelbaum which charged him with two counts of wilfully and knowingly making false material declarations before a grand jury in violation of 18 U.S.C. § 1623. 3
With respect to Apfelbaum's "locating Brown," paragraph 5 of Count One of the indictment recited Apfelbaum's grand jury testimony. That testimony and the charging clause of the indictment follow:
Q. It's my understanding you went down to Florida in December of 1975, approximately the 5th of December.
A. That's right. That's what I said before.
Q. Now, at that time did you see Mr. Brown?
A. No. I told you I went down there for a fishing trip, not fishing trip, to look at a boat for Dr. Slawek and then go to Puerto Rico.
Q. And you only stayed in Florida about three days?
A. About three or four days, something like that. I'm not sure exactly. Don't hold me to three or four. It was around that. I spent a total time of about two weeks between the two, including flight time and so on.
Q. When you were down there, did you call up Harry Brown to talk to him?
A. No.
Q. Did you know he was down there?
A. I heard he was down there. Somebody had said he was down there.
Q. Did you do anything to attempt to contact Mr. Brown when you were down there?
A. Not that I remember. I don't think I knew where he was at.
Q. Well, how did you find out where he was at eventually?
A. Somebody had told me about it and I don't know who, but they told me he was down in Florida.
Q. Okay. By this time, had the papers reported that Harry Brown was missing?
A. I don't believe so. I don't know. I'm not sure. I'm trying to recollect. I don't know whether they said he was missing or not.
Q. So, in December, when you were down there, you're sure you didn't try to contact Harry Brown; is that correct?
A. Yeah, Yeah.
Q. Did you try to locate Harry Brown when you were down there?
A. No.
Q. You're sure?
A. Positive.
Q. Now, did you tell anyone that you were trying to locate Harry Brown in Florida?
A. Not that I remember.
Q. And, you know, you were on your vacation and you were looking at the boats, so you weren't running around trying to find somebody you didn't know where they were, is that correct?
A. Yeah.
Q. And you would remember that?
A. Yeah, I think I would.
Whereas, in truth and fact, as Stanley Apfelbaum then well knew, he had tried to locate Francis Harry Brown, aka Harry Brown, in Florida, during December of 1975.
With respect to Apfelbaum's failure to recall his loan discussion with the F.B.I., paragraphs 4 and 5 of Count Two of the indictment recited Apfelbaum's grand jury testimony. That testimony and the charging clause follow:
Q. Did you ever tell anyone that you had lent any money to Harry Brown or Marvin Greenblatt?
A. No, sir.
Q. Did you ever tell anyone that you had been involved in a loan to Harry Brown or Marvin Greenblatt?
A. No, sir.
Q. You never told anyone that you had been involved in any kind of loan to Harry Brown?
A. No.
Q. Did you ever tell the F.B.I. you denied last week that you told anyone you had lent money to Harry Brown?
A. That's right.
Q. You denied that?
A. How could I lend money when I don't have any money myself, Mr. Friedman?
Q. So, you didn't tell the F.B.I. or anyone that you had lent money to Harry Brown?
A. No, sir.
Q. Is that right?
A. That's right.
Q. Now, sir, in 19 what, 1975 and 1976, did you have $10,000?
A. Did I what?
Q. Have $10,000?
A. I told you I didn't have $10,000.
Q. And, you didn't lend $10,000 to Harry Brown, is that right?
A. No, sir.
Q. And, you testified that way last week.
A. Yeah.
Q. You testified last week that you never told anyone that you had lent $10,000 to Harry Brown; is that right?
A. That's right, sir.
Q. Okay. And, you still persist in that testimony?
A. Uh-huh. How can I lend it to him when I didn't have it? I had to go to the bank and borrow money myself.
Q. You still persist in that testimony?
A. Yes, sir.
Q. You never told the F.B.I. that you lent Harry Brown $10,000; is that right?
A. If I did, it was ridiculous.
Q. Did you tell them that?
A. I don't know. I don't think I did.
Q. Do you have any recollection of telling them that?
A. No, no sir.
Whereas, in truth and fact as Stanley Apfelbaum then well knew, he (Stanley Apfelbaum) had told someone, to wit, agents of the Federal Bureau of Investigation, that he (Stanley Apfelbaum) had lent ten thousand dollars ($10,000) to Harry Brown. 4
At the trial upon the indictment, the Government produced evidence in support of its charges that Apfelbaum's statements to the grand jury were false. 5 In addition, the Government produced evidence that Apfelbaum knew his statements were false. In proving its case in chief, the Government introduced a series of excerpts taken from the transcript of Apfelbaum's immunized grand jury testimony. The immunized testimony introduced at trial related to a range of topics relevant to the prosecution's case. These included Inter alia (1) the degree of friendship between Apfelbaum and Brown (App. 96a-98a); (2) the circumstances surrounding Apfelbaum's discovery of, and visit to, Brown in Florida in 1976 (App. 107a, 110a, 124a-29a); (3) whether Apfelbaum and Brown discussed any loan transactions while in Florida (App. 112a); (4) whether Brown "patted down" Apfelbaum for weapons during his visit, or merely hugged him (App. 113a); (5) Apfelbaum's denial that he ever engaged in financial transactions with the Chestnut Hill dealership other than a $500 loan (App. 114a); (6) Apfelbaum's denial that he ever co-signed a loan for Brown (App. 115a); (7) a statement that Apfelbaum was introduced to one John Orem by Harry Brown (App. 116a). 6 Apfelbaum objected to the introduction of this testimony. 7
The jury returned a verdict of guilty on both counts of false swearing. Apfelbaum was sentenced to concurrent terms of two years in prison. His appeal charges, among other alleged errors, that the fifth amendment's privilege against self-incrimination precluded the admission at trial of his immunized grand jury testimony. It is to that issue that we turn.
The fifth amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The privilege "assures that a citizen is not compelled to incriminate himself by his own testimony, . . . (and) usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer." Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972).
A competing constitutional interest however is that a duly constituted grand jury, "an integral part of our constitutional heritage" whose "historic office has been to provide a shield against arbitrary or oppressive action," United States v. Mandujano, 425 U.S. 564, 571, 96 S.Ct. 1768, 1774, 48 L.Ed.2d 212 (1976) (plurality opinion of Burger, C. J.), has the "right to every man's evidence" to fulfill its historic office. Kastigar v. United States, 406 U.S. at 443, 92 S.Ct. 1653; See United States v. Mandujano, 425 U.S. at 571, 96 S.Ct. 1768. This "right" necessarily includes the authority to compel the attendance and the testimony of witnesses. Id.; United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Kastigar v. United States, 406 U.S. at 443, 96 S.Ct. 1653. Yet the power to compel testimony is necessarily limited by the privilege against self-incrimination. Id. at 346, 92 S.Ct. 1653; See United States v. Mandujano, 425 U.S. at 573, 96 S.Ct. 1768; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195,...
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