U.S. v. DeSalvo

• Decision Date: 08 April 1994
• Docket Number: D,No. 650,650
• Citation: 26 F.3d 1216
• Parties: UNITED STATES of America, Appellee, v. Frank DeSALVO, Defendant-Appellant. ocket 93-1330.
• Court: U.S. Court of Appeals — Second Circuit

Page 1216

26 F.3d 1216

UNITED STATES of America, Appellee, v. Frank DeSALVO, Defendant-Appellant.

No. 650, Docket 93-1330.

United States Court of Appeals, Second Circuit.

Argued Dec. 22, 1993.

Decided April 8, 1994.

Richard E. Mischel, New York City, for defendant-appellant.

Faith E. Gay, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Emily Berger, Asst. U.S. Atty., of counsel), for appellee.

Before: TIMBERS, WINTER and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Frank DeSalvo appeals from a judgment entered in the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge ) convicting him, after a jury trial, of four counts of perjury, in violation of 18 U.S.C. Sec. 1623(a), and four counts of obstructing justice, in violation of 18 U.S.C. Sec. 1503. Judge Sifton sentenced DeSalvo to 30 months in prison, which reflected a three-level enhancement for causing a "substantial interference with the administration of justice." U.S.S.G. Secs. 2J1.2(b)(2) & 2J1.3(b)(2).

In this appeal, DeSalvo challenges the manner in which the government used his prior immunized testimony. DeSalvo argues that the government violated the federal immunity statute and the Fifth Amendment's self-incrimination clause when it used some of his immunized testimony to prove that other "noncontemporaneous" immunized testimony was false. DeSalvo also challenges the sentencing enhancement.

We affirm.

BACKGROUND

In the early 1980s, Frank DeSalvo was a trial lawyer with the now infamous personal injury firm of Morris J. Eisen, P.C. The Eisen firm dishonored the legal profession by routinely bribing witnesses and manufacturing evidence to win lawsuits or exact favorable settlements. After a federal trial, seven of the firm's lawyers, investigators and administrators were convicted on racketeering charges. See United States v. Eisen, 974 F.2d 246 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993).

Although DeSalvo himself was not prosecuted along with his colleagues, his central role as an Eisen insider did not escape the attention of the federal prosecutors. DeSalvo's conviction stems from false testimony he gave under oath during the investigation and prosecution of the Eisen defendants. The facts surrounding DeSalvo's testimony are largely undisputed.

A. DeSalvo's State and Federal Testimony

In September 1987, a New York state grand jury was empaneled to investigate the Eisen firm. It then compelled DeSalvo's testimony under a grant of transactional immunity. See N.Y.C.P.L. Sec. 190.40(2). DeSalvo appeared and testified about his background and employment with the Eisen firm, and about his participation as a trial lawyer in one Eisen case. DeSalvo was not charged with lying before the state grand jury.

Two years later, a federal grand jury subpoenaed DeSalvo to testify in a federal investigation of the firm. Pursuant to 18 U.S.C. Sec. 6002, Judge Eugene Nickerson granted DeSalvo immunity "as to all matters about which he may be interrogated before the [Eisen] Grand Jury." In all, DeSalvo appeared three times before the Eisen federal grand jury in the fall of 1989. On each occasion, he denied complicity in the Eisen firm's crimes.

In his first federal grand jury appearance on September 14, DeSalvo claimed that it was pure coincidence that his cousin testified as an eyewitness on behalf of Eisen clients in two unrelated personal injury cases.

In his second appearance, one week later, in testimony about a different case, DeSalvo denied colluding with two firm investigators who, during a personal injury trial, fabricated an account of a defense witness's whereabouts. This account persuaded the trial judge that the witness was available to be called and thus his deposition testimony should be excluded.

In his third and final appearance before the Eisen grand jury, DeSalvo denied ever knowing that a witness who testified in yet another of his cases was the mother of the Eisen firm's office manager.

In August 1990, the federal grand jury indicted the Eisen defendants, not including DeSalvo. The government, however, called DeSalvo to testify at the Eisen trial. DeSalvo appeared on December 20, 1990, and declined to answer the questions put to him, asserting his Fifth Amendment privilege against self-incrimination. In response, Judge Sifton entered a second federal immunity order pursuant to 18 U.S.C. Sec. 6002,

                covering "all matters about which [DeSalvo] may be interrogated at the [Eisen] trial."   DeSalvo's trial testimony essentially tracked his federal grand jury testimony
                

B. The Proceedings Below

Following the government's successful prosecution of DeSalvo's colleagues, a federal grand jury indicted DeSalvo for perjury and obstruction of justice in connection with the testimony he gave during his three appearances before the federal grand jury (the "Eisen grand jury") and the trial jury (the "Eisen trial jury"). The government maintained that DeSalvo had repeatedly lied when he denied participating in any wrongdoing at the Eisen firm.

Before trial, DeSalvo moved to dismiss the indictment under the principles of Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972) (government has the burden to show that the evidence it proposes to use "is derived from a legitimate source wholly independent of the compelled testimony"). DeSalvo essentially argued that the federal grand jury which indicted him for perjury and obstruction should not have been presented with his prior state and federal immunized testimony. DeSalvo claimed that since his indictment alleged perjury committed on four separate occasions (i.e., three appearances before the Eisen grand jury and one appearance before the Eisen trial jury), there was a danger that the grand jury weighing the perjury charges against him might have considered immunized testimony he gave in one appearance to prove the falsity of testimony he gave in another appearance. He also claimed that the government improperly used evidence derived from his immunized state grand jury testimony to indict him for lying before the federal grand and trial juries. The district court (Sifton, J.) dismissed DeSalvo's multifaceted argument, and denied DeSalvo's request for a Kastigar hearing, on the authority of United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980). See United States v. DeSalvo, 797 F.Supp. 159 (E.D.N.Y.1992).

The federal immunity statute expressly permits immunized testimony to be used in "a prosecution for perjury." 18 U.S.C. Sec. 6002. Relying on the Supreme Court's interpretation of the perjury exception in Apfelbaum, Judge Sifton reasoned that "only 'the otherwise applicable rules of evidence' limit the use of immunized testimony in a perjury prosecution." DeSalvo, 797 F.Supp. at 163 (quoting Apfelbaum, 445 U.S. at 131-32, 100 S.Ct. at 957-58).

Accepting arguendo DeSalvo's premise--i.e., that the three appearances before the same grand jury under the same immunity order constituted three separate grand jury proceedings--Judge Sifton nevertheless rejected DeSalvo's claim of prejudice because DeSalvo could point to no statement in the indictment that the government would prove perjurious by reference to inconsistent testimony given at another time. 797 F.Supp. at 163. Finally, Judge Sifton saw no reason why the government could not use leads derived from DeSalvo's state grand jury testimony to prove perjury committed before the federal juries. Accordingly, Judge Sifton denied DeSalvo's motion. The jury convicted DeSalvo on four counts of perjury and four counts of obstruction.

In calculating DeSalvo's sentence under the Sentencing Guidelines, Judge Sifton raised DeSalvo's base offense level from 12 to 15 because he found that DeSalvo's perjury and obstruction "resulted in substantial interference with the administration of justice." U.S.S.G. Secs. 2J1.2(b)(2) (obstruction of justice); 2J1.3(b)(2) (perjury). Specifically, Judge Sifton found that DeSalvo's perjury and obstruction caused a substantial expenditure of government resources that would not have been needed had DeSalvo testified truthfully from the start.

DeSalvo now appeals.

DISCUSSION

I. Use of Immunized Testimony

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Consistent with the constitutional guarantee, a court may compel testimony under a grant of immunity so long as the testimony, and any Analysis begins with United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980), where the Supreme Court endeavored to harmonize the varying approaches taken by the lower courts as to the permissible uses of a witness's immunized testimony in a perjury prosecution. The Court rejected the view of the Seventh and Third Circuits, which had held that only the "corpus delicti " or "core" of the false statements charged in the perjury indictment could be used against the witness. 445 U.S. at 119-20, 100 S.Ct. at 951-52. The Court also rejected the approach of our Court, typified by United States v. Berardelli, 565 F.2d 24, 28 (2d Cir.1977), which had held that false immunized statements were admissible in a perjury prosecution, but truthful immunized statements were not. 445 U.S. at 119 n. 5, 100 S.Ct. at 951 n. 5. In sweeping terms, the Court held that in a perjury prosecution, "neither the [immunity] statute nor the Fifth Amendment requires that the admissibility of immunized testimony be governed by any different rules than other testimony." 445 U.S. at 117, 100 S.Ct. at 957.

                evidence derived therefrom, is not thereafter used against the witness "in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."  18 U.S.C. Sec. 6002 (emphasis added).  See Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661.

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