U.S. v. Brown

• Decision Date: 13 June 1978
• Docket Number: No. 77-5607,77-5607
• Citation: U.S. v. Brown, 574 F.2d 1274 (5th Cir. 1978)
• Parties: 78-2 USTC P 9550 UNITED STATES of America, Plaintiff-Appellee, v. George F. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1274

574 F.2d 1274

78-2 USTC P 9550

UNITED STATES of America, Plaintiff-Appellee, v. George F. BROWN, Defendant-Appellant.

No. 77-5607.

United States Court of Appeals Fifth Circuit.

June 13, 1978.

Rehearing and Rehearing En Banc Denied Aug. 10, 1978.

E. Drew McKinnis, Baton Rouge, La., for defendant-appellant.

Donald L. Beckner, U. S. Atty., Darrell D. White, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before SKELTON ^*, Senior Judge, and FAY and RUBIN, Circuit judges.

SKELTON, Senior Judge.

The appellant, George F. Brown, was indicted by a Federal Grand Jury in Baton Rouge, Louisiana for receiving $15,000 from Dixie Brewing Company in 1974 and $15,000 from Falstaff Brewing Company in 1975, in connection with the passage of legislation by the Louisiana Legislature favorable to breweries, and failing to report such payments on his income tax returns, all in violation of 26 U.S.C. § 7206(1). ¹

Appellant was not a member of the Legislature, but was the Executive Director of the Beer Industry League of Louisiana and, as such, was in a position to influence legislation relative to breweries. These payments were first investigated by a Federal Grand Jury in New Orleans in connection with a conspiracy indictment (not involved in this appeal) returned against appellant and others. Later, the Government sent an agent before a Federal Grand Jury in Baton Rouge who summarized the evidence presented to the Grand Jury in New Orleans. No other witness appeared before the Baton Rouge Grand Jury. Thus, the indictment in the instant case was based solely on hearsay testimony, which is one of the circumstances complained of by appellant in this appeal.

The appellant was tried before a jury on a two-count indictment involving the two payments, and was found guilty on both counts by the jury. He was sentenced by the court on each count to a term of three years on condition that he be confined in a jail-type institution for 180 days, with suspension of the remainder of the sentence, to be followed by probation for 3 years beginning with his release from confinement, the sentences to run concurrently. The appellant then appealed to this court. We affirm, subject to the remand of a part of the case to the trial court with instructions, as set forth below.

The appellant filed pre-trial motions for discovery and to dismiss the indictment in which he complained of the indictment being based on hearsay evidence, and also alleging that the integrity of the grand jury proceedings had been impaired by the following incidents and circumstances:

(1) Failure to advise indicting grand jury that the witness Gregg had given inconsistent testimony in his two appearances before earlier grand jury in New Orleans;

(2) Failure to advise grand jury that the witnesses whose statements had been summarized before them had been immunized;

(3) That the summarized witnesses' statements did not support the facts alleged in indictment, and;

(4) That no substantial evidence was presented to grand jury to warrant the indictment.

The court issued a Reciprocal Uniform Discovery Order but denied the motion to dismiss the indictment.

Appellant's argument that the indictment should be dismissed because it is based on hearsay evidence is unpersuasive. By its very nature, the grand jury process is not an adversary proceeding. Its function is merely to determine if there is probable cause which warrants the defendant's being bound over for trial. A defendant has no right to require that the Government present all available evidence at this proceeding. The grand jury proceeding is a one-sided affair. The defendant is protected from such one-sidedness when, at the trial on the merits, he is "accorded the full protections of the Fifth and Fourteenth Amendments" and is "permitted to expose all of the facts bearing upon his guilt or innocence." United States v. Chanen, 549 F.2d 1306, 1311 (9 Cir. 1977).

Our decision in United States v. Cruz, 478 F.2d 408 (5 Cir. 1973) is dispositive of this argument. In that case we held that an indictment based on hearsay evidence is valid, saying:

"Grand Jury Hearsay

The appellants contend that their grand jury indictment was invalid because it was based on the hearsay testimony of one investigating FBI officer rather than on direct testimony of informant-witnesses whom the government could have summoned to testify. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Court considered and rejected the contention that an indictment based exclusively on hearsay evidence is constitutionally invalid. This reasoning has been followed on many occasions by this court. See, e. g., United States v. Bird, 456 F.2d 1023 (5th Cir. 1972); United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Howard, 433 F.2d 1 (5th Cir. 1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971)."

"While the presentation of hearsay testimony of an investigating officer in lieu of readily available testimony by direct witnesses is by no means a preferred procedure, it is neither unconstitutional nor inherently wrong. In the absence of some showing that the integrity of grand jury proceedings has been impaired, an indictment even if based exclusively on such testimony will not be overturned on appeal." 478 F.2d 410-411.

We hold that the trial court did not abuse his discretion in denying appellant's Motion to Dismiss the indictment even though it was based exclusively on hearsay evidence.

The complaint of appellant that the failure to advise the indicting grand jury that the witness Gregg had given inconsistent statements to another grand jury, and that witnesses whose statements were summarized for the grand jury had been granted immunity, bear on the credibility of such witnesses and is without merit. The Government is under no duty to present to a grand jury evidence bearing on the credibility of witnesses. This very question was decided adversely to appellant's contention by the Ninth Circuit Court of Appeals in United States v. Chanen, 549 F.2d 1306, 1311 (9 Cir. 1977) in which the court held;

"In Loraine v. United States, 396 F.2d 335 (9th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968), the defendant moved to dismiss the indictment on grounds that the prosecutor, in his presentation to the grand jury, wilfully suppressed evidence that would undermine the credibility of three crucial witnesses before the grand jury. Apparently, one witness had a criminal record and was then under indictment in several other cases; another witness had been charged with embezzlement; the last had been enjoined from dealing in securities. We held that

'the trial court did not err in refusing to invalidate a federal indictment because the Government did not produce before the grand jury all evidence in its possession tending to undermine the credibility of the witnesses appearing before that body. Loraine was accorded the full protections of the Fifth and Fourteenth Amendments, when, at the trial on the merits, he was permitted to expose all the facts bearing upon his guilt or innocence.' "

In the instant case, appellant was furnished a list of all the witnesses, except Gregg, who had been granted immunity, two months before the trial. There was some evidence that appellant knew before the trial began that Gregg had been granted immunity. In any event, appellant knew of his immunity during the trial and thoroughly cross-examined him with reference to it. As to Gregg's prior inconsistent statements, appellant had every opportunity to present them to the jury and, in fact, did so. Appellant has not shown that he was prejudiced by the foregoing incidents. We find no error in this phase of the case. The appellant was given the full protections of the Fifth and Fourteenth Amendments when he was allowed to develop at the trial all of the facts bearing on his guilt or innocence.

Appellant's arguments that the summarized statements of the witnesses did not support the facts alleged in the indictment, and that no substantial evidence was presented to the grand jury to warrant the indictment, are unpersuasive. In United States v. Cruz, supra, we held:

"Taking a different approach, the appellants argue that their indictments were invalid because the grand jury did not have before it any probative evidence, either hearsay or direct, upon which to base the indictments. However, the majority opinion in Costello also squarely rejected the contention that appellate courts may review the sufficiency of evidence supporting an indictment. 350 U.S. at 363, 76 S.Ct. at 408-409. The appellants' reliance on the concurring opinion of Mr. Justice Burton in Costello and on dicta in the pre-Costello opinion of this court, Friscia v. United States, 5 Cir., 63 F.2d 977, 980, cert. denied, 289 U.S. 762, 53 S.Ct. 797, 77 L.Ed. 1505 (1933), is misplaced. We will not review the sufficiency of the evidence, if any, supporting the grand jury indictments in this case. See Cohen v. United States, 436 F.2d 586 (5th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2215, 29 L.Ed.2d 684 (1971); United States v. Gower, 447 F.2d 187 (5th Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88 (1971)." 478 F.2d 408 at 412.

See also United States v. Calandra, 414 U.S. 338, 344-345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United State v. Boerner, 508 F.2d 1064, 1068 (5 Cir. 1975); and United States v. Newcomb, 488 F.2d 190, 192-193 (5 Cir. 1974).

Accordingly, we will not review the sufficiency of the evidence before the grand jury on which the indictment was based.

The appellant complains that the court erred in refusing to grant a mistrial or a continuance at the beginning of the trial based on the fact that he was not furnished a transcript of his testimony and that of certain prospective Government witnesses before...