U.S. v. DiGilio

• Decision Date: 10 August 1976
• Docket Number: Nos. 75-2218-75-2220,No. 75-2220,No. 75-2219,No. 75-2218,75-2218,75-2219,75-2220,s. 75-2218-75-2220
• Citation: 538 F.2d 972
• Parties: UNITED STATES of America v. John DiGILIO et al., Appellant inAppeal of Harry LUPO, inAppeal of Peter SZWANDRAK, in
• Court: U.S. Court of Appeals — Third Circuit

Page 972

538 F.2d 972

UNITED STATES of America v. John DiGILIO et al., Appellant in No. 75-2218.

Appeal of Harry LUPO, in No. 75-2219.

Appeal of Peter SZWANDRAK, in No. 75-2220.

Nos. 75-2218-75-2220.

United States Court of Appeals, Third Circuit.

Argued April 8, 1976.

Decided June 7, 1976.

As Amended June 21, 1976.

As Amended Aug. 4, 1976.

Rehearing and Rehearing En Banc Denied July 19, 1976.

Dissenting Opinion Aug. 10, 1976.

Richard A. Green, Rowley & Scott, Katherine L. Boland, on the brief, Washington, D. C., Seymour Margulies, Brigadier & Margulies, Robert Margulies, on the brief, Jersey City, N. J., for John DiGilio.

Frederick P. Hafetz, Goldman & Hafetz, New York City, for Harry Lupo.

Thomas S. Higgins, Asst. Federal Public Defender, D. N. J., Newark, N. J., for Peter Szwandrak.

Jonathan L. Goldstein, U. S. Atty., James A. Plaisted, Asst. U. S. Atty., Newark, N. J., for appellee.

Before CLARK, ^* Associate Justice, and GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

These are consolidated appeals from judgments of conviction and sentence. Appellants John DiGilio (No. 75-2218), Harry Lupo (No. 75-2219) and Peter Szwandrak (No. 75-2220) were indicted, with three other persons not parties to this appeal for violations of 18 U.S.C. §§ 371 and 641. The indictment charged that the defendants conspired to defraud the United States (Count I), and converted to their own use "records of the United States; that is, photocopies of official files of the Federal Bureau of Investigation, of a value in excess of $100.00" (Count II). Two of the defendants, George Kuczynski and Irene Klimansky (now Irene Klimansky Kuczynski), pleaded guilty to the conspiracy count of the indictment and were severed from the trial. The Kuczynskis testified for the government at the trial of the four remaining defendants. One of the defendants, John Grillo, was acquitted at trial on both counts.

A jury found DiGilio, Lupo and Szwandrak guilty on both counts. The jury, however, found Lupo guilty only of theft of property of a value under $100. He was sentenced, therefore, in accordance with the proviso in the third paragraph of § 641 ¹ on the substantive count, and in accordance with the second paragraph (misdemeanor) of § 371 ² on the conspiracy count. ³ DiGilio and Szwandrak received felony sentences on both the conspiracy and substantive counts. ⁴ Each appellant contends that his conviction should be reversed because the conduct charged in the indictment and proved at trial was not a crime proscribed by § 641. Each defendant also urges that there were trial errors with respect to the court's charge and its rulings admitting and failing to suppress evidence, which warrant a new trial. Defendants DiGilio and Szwandrak contend that even if their judgments of conviction should be affirmed, they should be resentenced pursuant to the lower range of sanctions prescribed in the proviso to § 641. Finally, DiGilio argues that he should not have been tried at all because he was incompetent to stand trial. We conclude that defendants DiGilio and Szwandrak must be resentenced, but that prior to resentencing the district court must hold a hearing to determine (1) whether DiGilio was competent to stand trial throughout the proceedings in the district court and (2) whether he is competent to be resentenced.

I. THE FACTS

The evidence at trial tended to show that from the fall of 1971 through the spring of 1972 DiGilio, acting first through Lupo and Szwandrak and later through Grillo, procured the unauthorized copying of documents in the FBI files. The documents which were copied related to an investigation of alleged criminal activity by DiGilio. The unauthorized copies were made by Irene Klimansky, a clerk-typist in the Newark, New Jersey office of the FBI, during her working hours and with government paper and copying equipment. The original records were returned by Klimansky to the proper files. She delivered the copies of the documents to her then-fiance, George Kuczynski. Kuczynski delivered the copies from time to time to DiGilio's intermediaries, who paid him from $25 to $100 for each delivery. On one occasion Kuczynski received a $200 payment, but this was not related to the delivery of any specific group of documents, and was described as a Christmas bonus. There were multiple deliveries of copies from Klimansky to Kuczynski. Kuczynski broke down some of the deliveries from Klimansky into smaller components, in an effort to get more money from DiGilio. Thus there were more deliveries from Kuczynski to DiGilio's intermediaries than from Klimansky to Kuczynski. The evidence did not connect a payment in excess of $100 to any particular delivery. Nor was there evidence that DiGilio arranged with Kuczynski for the delivery in installments of a previously identified group of documents or records. During the apparent life of the conspiracy, however, over $1000 was funneled to Kuczynski through DiGilio's intermediaries.

Most of the above-recited facts were stipulated by the defendants. In addition, Kuczynski's testimony at trial identified Szwandrak as the initial intermediary from DiGilio, and tended to incriminate DiGilio, Grillo and Lupo as conspirators, and DiGilio as the source of payments and the ultimate recipient of the contraband copies. Kuczynski testified that he passed on documents both to Szwandrak and to Grillo. The remainder of the government's case consisted of statements made to various FBI agents by Lupo and Szwandrak, to which more particular reference will be made in Parts IV and V of this opinion.

II. THE § 641 VIOLATION

The second count of the indictment charges that the defendants converted to their own use "records of the United States; that is, photocopies of official files of the Federal Bureau of Investigation . . . ." The statute under which they were indicted provides:

"Whoever . . . converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States . . . shall be fined . . . or imprisoned . . . ."

The defendants urge that the facts set forth above do not fall within § 641, because that section does not apply where, as here, the government was not deprived of the use of the information contained in the records. They contend that unauthorized copies of government records are not themselves "records" within the meaning of the statute, and that the unauthorized transmission of information is not proscribed by § 641. They assert that at most, the government lost exclusive possession of the information contained in its confidential records, and that Congress never intended § 641, which is essentially a larceny statute, to protect the governmental interest in exclusive possession of information. Reminding this court of the celebrated cases of Anthony Russo and Daniel Ellsberg ⁵ and, of more recent vintage, the Daniel Schorr affair, ⁶ defendants argue that the government's expansive interpretation of § 641, if accepted, would pose serious, perhaps fatal, first amendment, vagueness and overbreadth problems.

The government, on the other hand, is of the view that the misappropriation of information falls within § 641's sanction. It places principal reliance on Judge Friendly's opinion in United States v. Bottone, 365 F.2d 389 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966), holding that the microfilming of a scientific process with equipment owned by the thieves, and the asportation of those copies violated 18 U.S.C. § 2314. ⁷ See also United States v. Seagraves, 265 F.2d 876 (3d Cir. 1959); United States v. Lester, 282 F.2d 750 (3d Cir. 1960), cert. denied, 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368 (1961).

It is not necessary to accept the government's thesis in its entirety to hold that in this case a § 641 violation was established. This case does not involve memorization of information contained in government records, or even copying by thieves by means of their own equipment. Irene Klimansky availed herself of several government resources in copying DiGilio's files, namely, government time, government equipment and government supplies. ⁸ That she was not specifically authorized to make these copies does not alter their character as records of the government. A duplicate copy is a record for purposes of the statute, and duplicate copies belonging to the government were stolen. See United States v. Friedman, 445 F.2d 1076, 1087 (9th Cir. 1971); see also United States v. Rosner, 352 F.Supp. 915, 922 (S.D.N.Y.1922), modified, 485 F.2d 1213 (2d Cir. 1973). ⁹

We do not, by resting upon the narrower ground that a technical larceny has been proved, intend to imply a rejection of the government's broader interpretation of § 641. In Chappell v. United States, 270 F.2d 274 (9th Cir. 1959), the Ninth Circuit refused to hold that misappropriation of an airman's labor to paint private houses during duty hours fell within the statute, because theft of labor or intangibles was not in the nature of a larceny offense. Compare Burnett v. United States, 222 F.2d 426 (6th Cir. 1955). Much can be said in favor of the government's argument that Chappell v. United States, supra, is inconsistent with the interpretation of § 641 by the Supreme Court in Morissette v. United States, 342 U.S. 246, 269 n. 28, 72 S.Ct. 240, 253, 96 L.Ed. 288 (1952):

"The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions."

But since there was an asportation of records owned by the United States we need not in this case decide whether appropriation of information alone falls within § 641. ¹⁰ The statute gives fair warning that at a minimum, it proscribes all larceny-type offenses. The indictment charges such an offense, and the government proved such an...