U.S. v. Demopoulos, 74-1341

• Decision Date: 24 March 1975
• Docket Number: No. 74-1341,74-1341
• Citation: 506 F.2d 1171
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James G. DEMOPOULOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1171

506 F.2d 1171

UNITED STATES of America, Plaintiff-Appellee, v. James G. DEMOPOULOS, Defendant-Appellant.

No. 74-1341.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1974.

Decided Nov. 5, 1974, Rehearing en banc Denied Dec. 12,

1974, CertiorariDenied March 24, 1975, See 95

S.Ct. 1427.

George B. Collins, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., Gary L. Starkman, Michael P. Mullen, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit judges.

CUMMINGS, Circuit Judge.

Defendant was indicted in the Northern District of Illinois for violating 18 U.S.C. 1623(a), which specifically proscribes knowingly making false material declarations while a witness before a grand jury. ¹ The indictment charged defendant with making the following false declarations:

'that he did not meet in the Rex Restaurant in Chicago in or about February 1969 with Peter Boznos and Sam Crispino, that he did not receive an envelope, parcel or package from either Sam Crispino or Peter Boznos in the Rex Restaurant in Chicago in or about February 1969, and that he did not receive any money from either Sam Crispino or Peter Boznos in the Rex Restaurant in Chicago in or about February, 1969.'

After a jury trial, defendant was convicted and was sentenced to 18 months in prison. On appeal, defendant raises numerous alleged errors and asserts that considering them together, he is entitled at least to a new trial. We affirm his conviction.

Sufficiency of the Evidence

Defendant first challenges the sufficiency of the evidence. The evidence shows that in early 1969 Samuel Crispino contracted to purchase the Cafe Chablis on West North Avenue in Chicago. He was represented in this transaction by attorney Peter Boznos. Crispino made his purchase of the restaurant contingent on his procuring a liquor license. At the time that the closing was originally scheduled in mid-February 1969, he had not obtained the liquor license, although he had applied for it on January 28, 1969. The liquor license was finally issued on February 26, 1969, and the closing took place on that date.

While Crispino's license application was pending in February 1969, Boznos received an anonymous telephone call from someone who said he was a Chicago Police Department vice officer. The caller said that Crispino's liquor license application would not be approved until a $5,000 payment was made. The caller later agreed to a reduced payment of $3,000. Boznos was instructed to go to the Rex Restaurant in Chicago at midnight on a certain date to make the payment. Boznos was told that the defendant would be present at that restaurant to pick up the money.

A few days after this telephone call, Boznos and Crispino met at the Rex Restaurant. Crispino brought with him a package containing $2,000. (Why Crispino brought $2,000 when $3,000 had been agreed upon over the phone is not explained by any testimony in the record and is not relevant here.) Bozons testified that defendant joined them at their table a few minutes later. The defendant told Boznos that Crispino should put the money under the table. Crispino did so, and defendant picked it up and left the restaurant five to six minutes thereafter.

Boznos positively identified defendant as the recipient of the $2,000. Crispino described the recipient as a slender man, 5'6' to 5'7' in height, weighing 160 pounds, with black, wavy hair, about 30 to 35 years old, and appearing to be of Greek or Spanish extraction. The defendant was of Greek extraction and described himself as 35 years of age, 5'6 1/4' tall, weighing 165 to 170 pounds and having black hair. However, at the trial, when asked if the man to whom he had passed the $2,000 was in the courtroom, Crispino uncertainly selected Gregory Vlamis, a relative of defendant, who was seated in the first row of benches. Vlamis was 30 years old, 170 pounds and 5'11' tall. Crispino made it plain that he was not sure that this was the man in the Rex Restaurant.

Boznos' identification of defendant does not stand alone, for Crispino's portrait of the other person at the Rex Restaurant exactly matched defendant's self-description, even though Crispino also hesitatingly selected Gregory Vlamis as the bagman.

In our judgment, the testimony of Boznos and Crispino amply supported the verdict. It was within the jury's province and not for us to assess the credibility of the Government's principal witness, Peter Boznos.

Admissibility of Telephone Conversation

Defendant next asserts that it was reversible error for the trial court to permit the jury to consider the aforesaid telephone conversation that Boznos had with the unidentified caller seeking a $5,000 bribe in exchange for police approval of the liquor license. Defendant contends that the conversation was inadmissible hearsay. Government counsel offered this conversation not to prove the truth of the matter but 'as background operative facts to show subsequent actions of this and other witnesses' (Boznos and Crispino). This limited purpose was reiterated to the jury in the prosecutor's closing argument, and the district court gave the following limiting instruction:

'During the examination of the witness Peter Boznos, he testified concerning a phone conversation he had with an unknown individual from the Austin Police District. This conversation was admitted to allow you to understand subsequent actions which were taken by the witness Boznos and others. It was not offered for the truth of the matters contained in that phone conversation, and you are to consider that phone conversation only as it pertains to the subsequent actions of the witness Boznos and others, and you are not to consider it for the truth of anything, nor as proof of the matters asserted in that conversation.'

In this setting, it was permissible to admit the challenged testimony. See Tritsis v. Backer, 511 F.2d 1021 (7th Cir. 1974); United States v. Hickman, 426 F.2d 515 (7th Cir. 1970).

In support of his contention that the telephone conversation was hearsay used to prove the truth of its contents, defendant claims that the prosecutor could have characterized him as a bagman in the closing argument, as he did, only if the conversation was so used. This claim is simply wrong. Defendant was a lawyer without official influence on applications for liquor licenses. In light of this and since Crispino was providing $2,000 to affect favorably his application, the jury could infer entirely apart from the telephone conversation that defendant acted as a bagman for someone else when he accepted the $2,000 at midnight in the Rex Restaurant in February 1969.

Admissibility of Grand Jury Testimony

Defendant's testimony before the grand jury on August 21, 1973, was transcribed and consisted of 54 pages. Before the trial began, counsel for defendant and the Government agreed to numerous deletions in this testimony. Thus large portions of the transcript were deleted by agreement, including many whole pages. The court settled the questions of admissibility where the parties could not reach agreement. Defendant raised a uniform set of objections and asked that they be applied to each part of the transcript that he challenged. He argued that these portions of the transcript should not be admitted into evidence because they were irrelevant, immaterial and prejudicial to defendant. At the threshold of the trial and out of the presence of the jury, defense counsel made these objections to much of the non-deleted portions of the transcript, and the court sustained many of his objections, causing further deletions. The court agreed to treat defendant's objections as having been reiterated when the transcript was offered into evidence at trial.

On appeal defendant belatedly argues that the portions of the transcript relevant to whether defendant's false declarations were 'material' to the grand jury's investigation should not have been read to the jury. (See18 U.S.C. 1623(a), note 1, supra.) The apparent basis for this contention is the rule, well established in this Circuit, that the issue of materiality in a perjury charge is a question of law for the court. United States v. Rivera,448 F.2d 757, 758 (7th Cir. 1971); United States v. Parker, 447 F.2d 826, 830 (7th Cir. 1971). However, at no point in the more than 60 transcript pages of colloquy between the court and counsel with relation to the proposed deletions did defendant's counsel suggest that the portions of the transcript relevant to materiality should be treated differently than other admissible portions. Indeed, at the outset of the colloquy he specifically stated that the prosecutor might read to the jury those portions of the transcript that the court ruled admissible. In this posture, we cannot accept defendant's overdue argument that there were two kinds of admissible evidence, one for the court and jury and one for the court alone.

In Gebhard v. United States, 422 F.2d 281, 289 (9th Cir. 1970), the full transcript of defendant's testimony before the grand jury was admitted before the petit jury during his perjury trial. On review, the court concluded that there was merit in the Government's argument that 'The full transcript was admissible to show the materiality of perjured testimony to the subject matter of the grand jury's investigation.' 422 F.2d at 289. ² In this case, we need not and do not go so far as to adopt that holding as a general rule. We conclude only that the non-deleted portions of the transcript were admissible on the issue of materiality to the investigation and could, therefore, be read to the jury in the absence of any objection that they should have been considered only by the judge.

Moreover, even had the defendant properly requested that the judge alone inspect those portions of the transcript that bore on materiality, there were alternative grounds for allowing the...