U.S. v. Apfelbaum

• Decision Date: 28 April 1980
• Docket Number: No. 77-2427,77-2427
• Citation: 621 F.2d 62
• Parties: 5 Fed. R. Evid. Serv. 1273 UNITED STATES of America v. Stanley APFELBAUM, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 62

621 F.2d 62

5 Fed. R. Evid. Serv. 1273

UNITED STATES of America v. Stanley APFELBAUM, Appellant.

No. 77-2427.

United States Court of Appeals Third Circuit.

April 28, 1980.

Robert N. deLuca, U. S. Atty., Robert J. Erickson, Vincent L. Gambale, Attys., Robert E. Madden, Sp. Atty., Dept. of Justice, Washington, D. C., for appellee.

Joel Harvey Slomsky, Philadelphia, Pa., for appellant.

Before ADAMS, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This case comes before us on remand from the Supreme Court for further proceedings in conformity with its opinion reversing this court's judgment in United States v. Apfelbaum, 584 F.2d 1264 (3d Cir. 1978). See United States v. Apfelbaum, --- U.S. ----, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980).

Stanley Apfelbaum was convicted of two counts of knowingly making false material declarations before a grand jury in violation of 18 U.S.C. § 1623 (1976). Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, had appeared as an immunized witness before a federal grand jury investigating racketeering and extortion in the operation of a Philadelphia automobile dealership. On direct appeal before us, Apfelbaum presented five contentions of error: (1) that his Fifth Amendment privilege was violated when the government introduced at trial immunized grand jury testimony in addition to those statements that formed the basis of the false swearing charge; (2) that his Fifth Amendment privilege was violated because the grand jury that returned the perjury indictment was the same grand jury that heard his immunized testimony initially; (3) that the district court's jury instructions improperly shifted the burden of proof on the issue of intent to Apfelbaum; (4) that the district court erred in ruling that the government could cross-examine Apfelbaum's character witnesses with reference to a newspaper article containing charges that Apfelbaum had attempted to "fix" a case while working for the Philadelphia District Attorney; and (5) that the district court improperly permitted a constructive amendment of the indictment by allowing the government to introduce evidence of the falsity of certain grand jury testimony other than those statements specifically charged in the perjury indictment.

Reaching only the first two of Apfelbaum's contentions, we reversed his conviction. We held that the Fifth Amendment proscribed the use of any immunized grand jury testimony, at a trial for false swearing, with the exception of those false statements that formed the basis of the charge and were included in the indictment. ¹ The Supreme Court reversed our ruling and held that the use of the immunized testimony was proper. In light of this holding, we must now reach the remaining three claims of error presented by Apfelbaum on his original appeal. We conclude that none of the remaining contentions has merit, and that his conviction must therefore be affirmed.

I.

The first of Apfelbaum's remaining claims challenges the district court's use of the following jury instruction on intent:

So unless the evidence points otherwise, it is reasonable to infer and a jury may conclude that one intends the natural and probable consequences of an act which one standing in like circumstances and possessing like knowledge would reasonably have expected to result from an act knowingly done.

(tr. at 436).

Apfelbaum contends that this instruction, known as the Mann charge after United States v. Mann, 319 F.2d 404 (5th Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964), constitutes a violation of due process under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). He contends that the instruction impermissibly tends to shift the burden of persuasion to the defendant to prove that he did not have the specific intent required under the statute, and thus relieves the government of its burden to prove each element of the offense beyond a reasonable doubt.

We recently gave consideration to the Mann charge in United States v. Garrett, 574 F.2d 778 (3d Cir.) cert. denied, 436 U.S. 919, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978). We noted that the charge had an unfortunate burden-shifting tendency, but found that several additional instructions given by the court in that case had the effect of counterbalancing any tendency to improperly shift the government's burden. We thus held that "the instructions as a whole fully informed the jury of the government's burden of proof on the question of intent," 574 F.2d at 782 (emphasis in original) and did not constitute reversible error. ² Accordingly, Garrett's conviction was affirmed. To prevent jury confusion in future cases, however, and to avoid needless expenditure of judicial resources at the appellate level, we declared in Garrett that the Mann charge could not be used by the district courts of this Circuit in any trials beginning ninety days after the date of decision, March 28, 1978.

Since Apfelbaum's trial was completed in September, 1977, Garrett's prospective prohibition against a Mann instruction does not apply to his case. Thus, we must review the jury instructions as a whole, as the court in Garrett did, to determine whether the trial judge properly instructed the jury of the government's burden, or, put another way, whether the Mann charge resulted in a fatal taint. Having reviewed the charge as a whole, we find that the district court gave each of the relevant curative instructions found sufficient in Garrett to withstand reversal. See note 2 supra. Thus, like the Garrett court, we find no reversible error in the use of the Mann charge in this case.

II.

In his second remaining claim of error, Apfelbaum challenges a ruling of the district court on the permissible scope of cross-examination by the government of certain defense witnesses. Apfelbaum intended to call a number of character witnesses to testify to his excellent reputation in the community for truth and veracity. Such testimony is permitted by Fed.R.Evid. 405(a). This rule provides:

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

The government stated that if Apfelbaum called his character witnesses, it intended to cross-examine these witnesses by inquiring into their familiarity with a newspaper article appearing in the Philadelphia Inquirer on July 11, 1975. The article described charges made by an assistant district attorney in Philadelphia that Apfelbaum, administrative assistant to the Philadelphia District Attorney, had attempted to "fix" a case, and recounts Apfelbaum's flat denials of these allegations. The district court ruled that the government would be allowed to confront the witnesses with this article and to use the article in cross-examination. The ruling resulted in Apfelbaum's decision not to call the character witnesses. Apfelbaum then moved for a mistrial. The motion was denied. Apfelbaum now asserts that the trial judge's ruling constitutes reversible error. We disagree.

Rulings on the permissible scope of cross-examination in this context are within the sound discretion of the district court, and may only be reversed for abuse of that discretion. We find no abuse here. Apfelbaum offered the character witnesses to testify to his reputation for truth and veracity. The article, to the extent that it relates Apfelbaum's denial of a public accusation, concerns an event that implicates his reputation for veracity. Thus, the familiarity of these witnesses with the substance of this article is relevant to their qualifications to testify on Apfelbaum's reputation for truth and veracity. Therefore, cross-examination to determine their familiarity with the charges contained in the article is not improper per se, though, of course, careful instructions to the jury as to the appropriate use of such cross-examination would be required, if Apfelbaum had called his character witnesses and the government had cross-examined them in the proposed fashion. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). ³ We therefore hold the district court did not abuse its discretion in ruling that this cross-examination would be allowed.

III.

In his final claim of error, Apfelbaum contends that the district court improperly permitted a constructive amendment of the indictment. We do not agree.

In the indictment, Apfelbaum was charged with making two false statements to the grand jury: (1) that he had not tried to locate one Harry Brown while in Florida in December, 1975; and (2) that he had never told anyone that he had lent...