U.S. v. Berardelli

• Decision Date: 13 October 1977
• Docket Number: D,No. 1274,1274
• Citation: 565 F.2d 24
• Parties: UNITED STATES of America, Appellee, v. Arthur BERARDELLI, Defendant-Appellant. ocket 77-1132.
• Court: U.S. Court of Appeals — Second Circuit

Page 24

565 F.2d 24

UNITED STATES of America, Appellee, v. Arthur BERARDELLI, Defendant-Appellant.

No. 1274, Docket 77-1132.

United States Court of Appeals Second Circuit.

Argued June 10, 1977.

Decided Oct. 13, 1977.

Neal J. Hurwitz, New York City (Lawrence S. Bader, Segal & Hundley, New York City, of counsel), for defendant-appellant.

Jacob Laufer, Sp. Asst. U. S. Atty., Eastern District of New York, New York City (David G. Trager, U. S. Atty., Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N. Y., Peter D. Sudler, Sp. Asst. U. S. Atty., Eastern District of New York, of counsel), for appellee.

Before FRIENDLY, TIMBERS and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Appellant Berardelli appeals from a judgment entered in the United States District Court for the Eastern District of New York after a two-day trial before Judge Bartels and a jury. He was found guilty of criminal contempt for refusing to testify at a criminal trial after being granted immunity and ordered to answer by Judge Bartels. We affirm the conviction.

I. FACTS.

In late July of 1973, Berardelli was awaiting sentencing in two cases, Indictment Nos. 73 Cr. 471 and 73 Cr. 747, pending before Judges Carter and Gurfein of the Southern District. He was also awaiting trial on a third indictment, 73 Cr. 929, and was a defendant in a pending jury trial, United States v. Marando, Indictment No. 73 Cr. 79, which was pending before Judge Motley of the Southern District. In these cases, Berardelli and others were charged with mail and securities fraud. Shortly before the jury returned with its guilty verdict in Marando, counsel indicated that Berardelli "would be amenable to developing a cooperative relationship with the Government." After several interviews, the government decided that Berardelli would be of significant value in connection with the prosecution of Paul "Big Paul" Castellano, Angelo Scarpulla, Paul "Little Paul" Castellano and others for loansharking. Berardelli agreed to testify in this and other matters, and the government agreed to bring his cooperation to the attention of Judges Carter, Gurfein and Motley and to dismiss the Indictment in 73 Cr. 929. The government also gave Berardelli an informal promise of immunity in connection with his own loansharking activities, on the condition that he cooperate fully. Further, it was understood that the security of the Federal Witness Protection Program would be afforded to Berardelli and his family.

The Indictment in 73 Cr. 929 was dismissed, Judges Carter and Gurfein imposed only probationary sentences, and Judge Motley imposed a two-year sentence in the Marando case. The convictions in Marando were affirmed by this Court. 504 F.2d 126. Berardelli's petition for a writ of certiorari was denied. 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974). The government joined in an unsuccessful motion for reduction of sentence made prior to Berardelli's surrender. It arranged for an expedited parole hearing, at which a Special Attorney from the Justice Department personally appeared and informed the parole board of Berardelli's cooperation. Special arrangements were made to preserve Berardelli's security while he was incarcerated, and after he was released he was placed in the Witness Protection Program, which he left voluntarily.

Berardelli testified before State and Federal Grand Juries and was interviewed by investigatory agents and prosecutors on numerous occasions. As a result of information he gave, search warrants were executed and both court-ordered and consensual electronic surveillance was conducted all in connection with the loansharking operation. On June 30, 1975, Indictment 75 Cr. 521 was filed in the Eastern District. It charged Castellano and others with operating an illegal loansharking enterprise, and it was based principally upon Berardelli's anticipated testimony. On one occasion Berardelli changed his mind about testifying, but after a brief period he changed it back again and reaffirmed his willingness to testify.

On November 8, 1976, after a jury had been impaneled, the Castellano case began before Judge Bartels. Two days later, Berardelli was called as the government's second witness and sworn. In response to the government's first question, he invoked his Fifth Amendment privilege against self-incrimination. ¹ The government then sought and obtained from Judge Bartels an order of immunity under 18 U.S.C. § 6003. Berardelli persisted in his refusal to testify, even under the order of immunity, despite a direct order of the court to do so. He was found in civil contempt and was remanded for the duration of the trial or until he purged himself of the contempt. He was produced again on November 15, but he again refused to testify. As a result, the government failed to make out a prima facie case against the Castellano defendants, and the indictments had to be dismissed.

On November 17, 1976, Judge Bartels issued an order directing Berardelli to show cause why he should not be held in criminal contempt. The trial began on November 29, and the jury returned a verdict of guilty the next day. A sentencing hearing was conducted on February 9, 1977, and on March 4 Judge Bartels sentenced Berardelli to a five-year prison term. Berardelli is on bail pending this appeal.

II. THE GRANT OF IMMUNITY.

Berardelli's principal claim is that his refusal to testify was justified because the immunity granted to him under 18 U.S.C. § 6002 ² was inadequate, on the facts of this case, to protect his rights under the Fifth Amendment. Specifically, he claims that if he had given truthful testimony at the Castellano trial, it would have been inconsistent with his testimony before the Grand Jury. Berardelli's fear was that the government would use his truthful, immunized testimony against him in a prosecution for either (1) perjury or making a false declaration before the Grand Jury, 18 U.S.C. §§ 1621, 1623(a), ³ or (2) making a declaration before the Grand Jury that was inconsistent with his testimony at the Castellano trial, 18 U.S.C. § 1623(c). ⁴ These prosecutions would be allowed, he argues, under the exception in the immunity statute for prosecutions for perjury and giving false statements. See note 2. We hold that Berardelli's fears were illusory and, therefore, that his refusal to testify was unjustified.

Berardelli's first argument is based on an unduly broad reading of the exception in § 6002. That exception was included to make it clear that false testimony given under a grant of immunity was not immunized. See United States v. Housand, 550 F.2d 818, 822 (2d Cir. 1977); United States v. Tramunti, 500 F.2d 1334, 1344-46 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). The immunity grant is only intended to protect those who testify truthfully. See United States v. Tramunti, supra,500 F.2d at 1342. A witness' truthful testimony, given under a grant of immunity, may not be used to prove either a later perjury, Cameron v. United States, 231 U.S. 710, 718-24, 34 S.Ct. 244, 58 L.Ed. 448 (1914), or, as here, an earlier perjury, United States v. Alter, 482 F.2d 1016, 1028 (9th Cir. 1973). Thus, Berardelli had all the protection to which he was constitutionally entitled in connection with any lies he may have told to the Grand Jury. He was, of course, not entitled to any immunity from prosecution for any lies he might have told at the Castellano trial. Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128 (1911); United States v. Tramunti, supra, 500 F.2d at 1343.

The possibility of an "inconsistent declarations" prosecution is more troublesome. The immunity statute excepts prosecutions for "giving a false statement," see note 2, and, under § 1623, which proscribes the making of "false declarations," it is unnecessary for the government to prove which of two inconsistent declarations was false. § 1623(c). If the government could have used Berardelli's truthful trial testimony to prove an "inconsistent declarations" case, then his apprehensions would not have been illusory, and his refusal to testify would have been justified. We hold that the immunity statute would not have permitted the use of Berardelli's trial testimony unless it were first shown to be false. Therefore, we conclude that Berardelli's refusal to testify was not excused.

If the immunity statute created an exception for "false declarations" prosecutions, it would cover a prosecution for making "inconsistent declarations." Instead, § 6002 creates an exception for "perjury (and) giving a false statement." We think it is clear from this language that Congress intended to reach only those who lie when testifying under a grant of immunity. Because a prosecution for making an inconsistent declaration would not require proof that the testimony given under the grant of immunity was false, such a prosecution is not included in the exception and would be barred by the immunity statute. Accord, United States v. Patrick, 542 F.2d 381, 384-86 (7th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).

United States v. Tramunti, supra, does not require a different result. In that case, a criminal defendant elected to take the stand in his own defense. We held that his prior Grand Jury testimony, which had been given under a grant of use immunity eight years earlier, had properly been used to impeach his credibility. It had not been discovered that the prior testimony was immunized until after the trial. At that point, the trial judge had the benefit of hindsight in determining that the prior Grand Jury testimony was in fact false. Nothing in the Tramunti decision suggests that the result in that case would be the same if it could not have been independently determined that the immunized testimony was false. In United States v. Moss, 562 F.2d 155, 164-165 (2d Cir. 1977), this Court treated the Tramunti decision as being thus limited. The Third Circuit...