U.S. v. DiBernardo, No. 87-5387

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore JOHNSON and CLARK; VINSON
Citation880 F.2d 1216
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Robert DiBERNARDO and Theodore Rothstein, Defendants-Appellees.
Decision Date21 August 1989
Docket NumberNo. 87-5387

Page 1216

880 F.2d 1216
UNITED STATES of America, Plaintiff-Appellant,
v.
Robert DiBERNARDO and Theodore Rothstein, Defendants-Appellees.
No. 87-5387.
United States Court of Appeals,
Eleventh Circuit.
Aug. 21, 1989.

Page 1218

Sara Criscitelli, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Ralph J. Schwarz, Jr., Herald P. Fahringer, New York City, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Page 1219

Before JOHNSON and CLARK, Circuit Judges, and VINSON *, District judge.

VINSON, District Judge:

This is the fourth occasion that this Court has considered an appeal involving this case. Since Robert DiBernardo and Theodore Rothstein were tried, convicted, and sentenced in 1981, the case has expanded and grown like kudzu to encompass numerous collateral issues. The issue now before us is simply whether the trial court properly granted these two defendants a new trial. The government contends that the district court abused its discretion in considering the motion for new trial, and that, even if the court could consider the motion, it did not have jurisdiction to grant appellee DiBernardo a new trial because he has been missing since June 1985. We affirm the granting of a new trial for Rothstein, but reverse and remand as to DiBernardo.

I. Factual Background

In 1977, the FBI began an undercover investigation of all major publishers and distributors of adult films and magazines throughout the United States. Special Agents Patrick Livingston and Bruce Ellavsky posed as pornographers in Miami, Florida, under false identities. These two agents contacted national distributors of pornography and ordered material which was shipped to them in Miami. This undercover operation and the resulting proceedings generally became known as "Miporn," for Miami Pornography.

Eventually, a grand jury in the Southern District of Florida returned 16 separate superseding indictments, charging individual distributors of adult materials with conspiracies involving their associates. One of the superseding indictments charged Robert DiBernardo, Theodore Rothstein, and Andrew D'Apice, the defendants in this case, with one count of conspiracy to violate the federal obscenity laws [18 U.S.C. Sec. 371], three counts of transporting obscene material in interstate commerce by means of a common carrier [18 U.S.C. Sec. 1462], and three counts of transporting obscene material in interstate commerce for sale or distribution [18 U.S.C. Sec. 1465].

The trial of DiBernardo, Rothstein, and D'Apice was scheduled to commence on May 18, 1981. On that day, the district court considered various pre-trial motions, including a motion to sever filed by DiBernardo and Rothstein on the ground that they would suffer prejudice from a joint trial because their co-defendant D'Apice was willing to provide exculpatory testimony on their behalf. D'Apice filed an affidavit stating that he would provide such testimony at a separate trial of his co-defendants, but that otherwise, he would invoke his fifth amendment privilege against self-incrimination. In their motion, the defendants proposed that D'Apice be tried as scheduled on May 18, with the trial of DiBernardo and Rothstein to follow.

The district court examined D'Apice under oath with regard to his proposed testimony. D'Apice confirmed that he would supply exculpatory testimony in a trial of Rothstein and DiBernardo alone, but that if tried with the other two defendants, he would invoke his fifth amendment privilege.

The government opposed the motion for severance, claiming that D'Apice's proposed testimony would be perjurious. Accordingly, it refused at the hearing to provide D'Apice with use immunity for his testimony at a separate trial of DiBernardo and Rothstein. However, counsel for the United States indicated that D'Apice's testimony would not be used against him in a subsequent trial. D'Apice stated that he was willing to go forward with his testimony under these conditions.

The district court then granted the motion to sever, relying on two Fifth Circuit decisions in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir.1970) and Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979).

Page 1220

(R.710) The court went on to conclude, however, that the defendants had no right to determine the order of trials, and that the trial of DiBernardo and Rothstein would proceed as scheduled. In order to protect the constitutional right of the two defendants to compel D'Apice's testimony, the district court assumed that it could grant the witness "judicial use immunity" to protect his constitutional right against self-incrimination. In so doing, the judge recognized there was doubt whether the then Fifth Circuit recognized judicial use immunity, but followed a Third Circuit decision which approved judicial use immunity. See Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980).

Thereafter, the trial of DiBernardo and Rothstein began. At the close of the government's case-in-chief, the defendants began presenting their case. D'Apice was called as a witness out of the presence of the jury, and both defendants indicated that they wanted to elicit from him answers to questions only within the scope of his affidavit. The court indicated that it intended to provide the defendants their sixth amendment right to elicit such testimony from the witness.

Counsel for D'Apice then informed the judge that his client would invoke the privilege against self-incrimination as to all matters upon which he would be questioned during this trial. Counsel explained that, in his opinion, the court had no authority to grant judicial use immunity, and, therefore, his client was not adequately protected from future use of his testimony against him. The Court questioned D'Apice, and D'Apice confirmed that he would invoke his privilege against self-incrimination as to all matters at the trial. Finding that the witness' fifth amendment concerns "are not even possibilities," given the court's prior rulings, the trial judge held D'Apice in contempt and sentenced him to 180 days imprisonment, unless he purged himself during trial. The defendants continued presentation of their case without D'Apice, but expressly noted that the continuation did not represent a waiver of "any right of our need for Mr. D'Apice's testimony." (R. 2448) D'Apice filed a notice of appeal of his contempt citation, and the trial was completed without his testimony.

At the close of all the evidence, the defendants renewed their Rule 29 motions, and all previous motions and objections. (R. 2922) These motions were denied, and the case was submitted to the jury. After three days of deliberations, the jury returned guilty verdicts on all seven counts against both defendants on June 12, 1981. (R. 3457-58) The court proceeded to adjudicate both defendants guilty, and granted the defendants thirty days in which to file post-trial motions. (R. 3460) Two further extensions were granted, giving the defendants until August 21, 1981, to file their motions.

On August 14, 1981, the defendants filed motions requesting, inter alia, a new trial pursuant to Rule 33. The motion for new trial was made "for reasons heretofore advanced at the trial." (Doc. 1137) The record does not reveal the grounds more specifically.

The defendants were sentenced by the trial court on December 7, 1981, and both defendants filed notices of appeal the same day. On December 11, their Rule 33 motion was denied. This order is not in the record.

Three days later, on December 14, this Court reversed the adjudication of contempt against D'Apice, holding that his refusal to testify was a valid exercise of his fifth amendment privilege. United States v. D'Apice, 664 F.2d 75 (5th Cir. Unit B 1981). In that opinion, we expressly rejected the concept of "judicial use immunity," declined to follow the Third Circuit's decision in Government of Virgin Islands v. Smith, supra, and noted that the granting of immunity was strictly an executive branch function. United States v. D'Apice, supra, 664 F.2d at 77.

Another major development in this case followed soon thereafter. On January 21, 1982, the government informed the district court of a problem which had developed with respect to Special Agent Livingston. Livingston had been arrested for shoplifting

Page 1221

in November 1981, and had given his "Miporn" alias to the police. The government indicated that Livingston had psychiatric problems involving an inability to distinguish between his real and undercover identities. Upon further investigation, it was revealed that concerns for the mental health of Livingston had been voiced by his superiors as early as March 1980. Livingston had been a principal witness before the Miporn grand jury and at several Miporn trials, including that of DiBernardo and Rothstein.

On February 12, 1982, a letter was sent to counsel of all defendants involved in the Miporn indictments, detailing the Livingston problem. In an order entered March 8, the district court directed all defendants to file appropriate motions with respect to this matter within 20 days. In June 1982, DiBernardo and Rothstein filed a motion denominated a "motion for new trial." (Doc. 1463) In it, they raised numerous grounds including: Livingston's testimony required re-examination of the admission of co-conspirator hearsay statements; failure to disclose Livingston's psychological problems constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); the indictment should be dismissed for use of Livingston's testimony before the grand jury; and the indictment should be dismissed for prosecutorial misconduct.

In June and September of 1982, the district judge conducted thirteen days of evidentiary hearings on the Livingston matter. On December 20, 1982, the district court entered an order dismissing the pending Miporn indictments based...

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79 practice notes
  • People v. Shoals, Nos. H008493
    • United States
    • California Court of Appeals
    • July 28, 1992
    ...evidence sufficient to grant a Rule 33 motion unless it satisfies this same five-part test." (U.S. v. DiBernardo (11th Cir.1989) 880 F.2d 1216, 6 The jury may take with them to the jury room the written instructions. (Pen.Code, § 1137.) 7 CALJIC No. 2.71 provides: "An admission is a stateme......
  • U.S. v. Novation, Nos. 95-444
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 30, 2001
    ...with regard to much of the charged criminal activity, and that the defendants who were seeking severance had no knowledge of his actions. 880 F.2d 1216, 1228 (11th Cir. 1989). We noted that such evidence incriminated the affiant and was significant to the defense because it would have speci......
  • US v. Campa, No. 01-17176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 9, 2005
    ...court; and (5) the evidence is of such a nature that a new trial would reasonably produce a new result. See United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir.1989). The newly discovered evidence is not limited to just the question of the defendant's innocence, but can include other......
  • U.S. v. Browne, No. 05-11137.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 25, 2007
    ...even under an abuse of discretion standard, errors of law receive no deference."). 30. Browne also cites to United States v. DiBernardo, 880 F.2d 1216 (11th Cir.1989), which we find unavailing. In that case, the Government appealed the decision of the district court to grant defendants a ne......
  • Request a trial to view additional results
79 cases
  • People v. Shoals, Nos. H008493
    • United States
    • California Court of Appeals
    • July 28, 1992
    ...evidence sufficient to grant a Rule 33 motion unless it satisfies this same five-part test." (U.S. v. DiBernardo (11th Cir.1989) 880 F.2d 1216, 6 The jury may take with them to the jury room the written instructions. (Pen.Code, § 1137.) 7 CALJIC No. 2.71 provides: "An admission is a stateme......
  • U.S. v. Novation, Nos. 95-444
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 30, 2001
    ...with regard to much of the charged criminal activity, and that the defendants who were seeking severance had no knowledge of his actions. 880 F.2d 1216, 1228 (11th Cir. 1989). We noted that such evidence incriminated the affiant and was significant to the defense because it would have speci......
  • US v. Campa, No. 01-17176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 9, 2005
    ...court; and (5) the evidence is of such a nature that a new trial would reasonably produce a new result. See United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir.1989). The newly discovered evidence is not limited to just the question of the defendant's innocence, but can include other......
  • U.S. v. Browne, No. 05-11137.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 25, 2007
    ...even under an abuse of discretion standard, errors of law receive no deference."). 30. Browne also cites to United States v. DiBernardo, 880 F.2d 1216 (11th Cir.1989), which we find unavailing. In that case, the Government appealed the decision of the district court to grant defendants a ne......
  • Request a trial to view additional results

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