U.S. v. D'Auria, 561
| Decision Date | 02 March 1982 |
| Docket Number | No. 561,D,561 |
| Citation | 672 F.2d 1085 |
| Parties | 10 Fed. R. Evid. Serv. 106 UNITED STATES of America, Appellee, v. Michael D'AURIA, Defendant-Appellant. ocket 81-1266. |
| Court | U.S. Court of Appeals — Second Circuit |
Harvey Stone, New York City (Schlam, Stone & Caro, New York City, of counsel), for defendant-appellant.
Vivian Shevitz, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.
Before FEINBERG, Chief Judge, and LUMBARD and MANSFIELD, Circuit Judges.
Michael D'Auria appeals from a judgment of the Eastern District of New York, entered by Judge Charles P. Sifton after a jury trial, convicting him of one count of making false declarations before a grand jury in violation of 18 U.S.C. § 1623. 1 D'Auria's principal argument on appeal is that he made a timely offer to the prosecution to go before the grand jury and recant his false testimony, and that the prosecution's failure to allow him to do so bars his prosecution under § 1623. Because we find that D'Auria made no offer to recant and because we find no merit in any of his other contentions, we affirm the judgment of conviction.
Michael D'Auria is a former Justice of the New York State Supreme Court who was active in the Nassau County Republican Party, having served as Chairman of the Oyster Bay Republican Committee from 1965 to 1968. In 1971 he resigned from his judgeship in the face of charges of misconduct and in 1974 he was disbarred. In April 1980 he was called before a federal grand jury of the Eastern District of New York to testify pursuant to an immunity order as part of the grand jury's ongoing investigation into payments that had been made by the insurance agency of Richard B. Williams & Sons, Inc. ("the Williams Agency") to D'Auria and to other Nassau County Republican political figures. The Williams Agency served as the insurance broker for Nassau County and certain of its political subdivisions and D'Auria was called partly because as Oyster Bay Republican Chairman he had been responsible for the Agency's receiving that town's business.
At the time D'Auria was called to testify the principal targets of the grand jury investigation were Richard A. Williams (herein sometimes referred to as "Williams, Jr.") D'Auria's first appearance before the grand jury occurred on April 24, 1980, after he had been granted immunity. Before that appearance Assistant U. S. Attorney Lawrence Silverman informed D'Auria's attorney, Raymond Grunewald, that the grand jury was investigating "any and all payments made by the Williams Agency...." The first thing that Silverman said to D'Auria when he made this appearance was that
who was then managing the Williams Agency, the son of the then-deceased Richard B. Williams (referred to herein as "Williams, Sr."), and Joseph Margiotta, the Chairman of the Nassau County Republican Committee. The grand jury was examining possible mail fraud, Hobbs Act, and other criminal violations that may have been committed by these and other individuals as part of an alleged "kick back" scheme involving the Agency's brokerage commissions from Nassau County municipalities.
"this Grand Jury is conducting an investigation into the sharing of insurance premiums and commissions in Nassau County and disbursements made by the Richard B. Williams & Son Insurance Agency, and its predecessors."
Silverman further advised D'Auria that under the grant of immunity nothing he said would be used against him except that if he failed to testify truthfully he could be prosecuted for perjury.
D'Auria was shown three checks that had been made out to him in 1966, 1967 and 1968 by the Williams Agency. These checks had been shown to Mr. Grunewald before his client's appearance, thus alerting D'Auria that he would be asked about them. He explained that he had received the checks in payment for legal work he had done for the Williams Agency. Upon being shown two other checks, one written in 1973 and the other in 1974 (both of which his attorney had also seen), he explained that the 1973 check for $3,694 was in part a payment for legal services he had performed and the balance of $2,500 a gratuity, and that the 1974 check was in payment for tables he had purchased for a marina in which he and Williams, Sr., who had since died, had business interests. The following exchange then took place:
D'Auria also denied that he had ever asked anyone to intercede with Williams, Sr. in order to persuade him to make disbursements to D'Auria. Silverman later testified at trial that after hearing D'Auria's answers he spoke to Grunewald in the hall outside the grand jury room and informed him that he believed the testimony to be perjurious. Grunewald never specifically denied that he was told this.
In June of 1980, two months after the first D'Auria appearance, Williams, Jr. agreed to cooperate with the government. He then revealed (among other things) evidence of a series of indirect payments by the Williams Agency to D'Auria that added up to approximately $16,000, the bulk of which were made between 1971 and 1975. Williams explained that, after D'Auria had been forced to resign his judgeship and had fallen on harder times, D'Auria approached him and asked to be put on a list of persons to whom payments were being made out of insurance premiums received from Nassau County. Williams referred D'Auria to Margiotta, who apparently approved the request. Thereafter the Williams Agency paid, at D'Auria's instruction, various bills that he and certain of his relatives incurred. These payments included the payment of bills D'Auria had incurred at the Huntington Yacht Club and payment of insurance premiums owed to the Williams Agency by D'Auria or by businesses controlled by D'Auria's relatives, including his wife. Williams also revealed that before these indirect payments had begun and while D'Auria was still on the bench the Agency had made indirect payments of several thousand dollars in co-brokerage commissions to him.
These commissions came from clients that D'Auria, a non-broker, and a former D'Auria partner, who was a broker, had referred to the Williams Agency. They were split with D'Auria even though under New York State Insurance Law a broker may not share commissions with a non-broker. N.Y. Insurance Law § 188 (McKinney 1966).
Armed with this information the government called D'Auria back before the grand jury. He appeared on August 7, 1980, and was asked more specific questions:
After a question about direct cash payments he was asked:
Later he was asked:
He further testified:
In response to questions about whether he had ever asked Margiotta and two other Nassau County Republican leaders, Ralph Marino and James Picken, to arrange for Williams to make payments to him, D'Auria stated that he might have asked Marino to help him get legal work from Williams but that he had never asked him to arrange for unearned payments, and that he had never asked Margiotta or Picken to help him get unearned payments.
After D'Auria completed this testimony on this second appearance before the grand jury, Silverman, according to his later trial testimony, informed Grunewald that he believed that D'Auria had committed perjury by denying that payments on his behalf had been made and by denying that he had asked certain Republican Party officials to intervene with Williams on his behalf. Silverman also testified that he told Grunewald that he would recommend that D'Auria be indicted for perjury. Grunewald claims that Silverman told him only that he felt that D'Auria was lying.
Grunewald next "debriefed" D'Auria, informing him (at the very least) that Silverman believed that he had lied. The next morning, August 8, Grunewald telephoned Silverman. Grunewald testified that he told Silverman that D'Auria had not understood the "thrust of (the) inquiry," not realizing On October...
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