U.S. v. Kopel, 76-1601
| Decision Date | 19 April 1977 |
| Docket Number | No. 76-1601,76-1601 |
| Citation | 552 F.2d 1265 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Saul KOPEL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick A. Tuite, Allan A. Ackerman, Chicago, Ill., for defendant-appellant.
Samuel K. Skinner, U.S. Atty., Robert T. McAllister, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, PELL and WOOD, Circuit Judges.
On January 8, 1976, a four count indictment was returned against the appellant. Count I of that indictment charged that the appellant had wrongfully used his position as a Chicago police officer to unlawfully obtain from a retail liquor dealer various sums of money, in violation of 18 U.S.C. § 1951. Count II charged that the appellant had extorted money from another retail liquor dealer in violation of 18 U.S.C. § 1951. 1 Count III charged that, on March 1, 1972, the appellant had knowingly made false material declarations while under oath as a witness before the Special February 1971 Grand Jury, in violation of 18 U.S.C. § 1623. Count IV charged that, on January 29, 1975, the appellant had knowingly made false material declarations while under oath as a witness before the Special March 1974 Grand Jury, in violation of 18 U.S.C. § 1623.
Following a jury trial, the defendant was convicted on one count of extortion and on both perjury counts. He received an 18-month sentence on Count I, and concurrent sentences of 9 months each on Counts III and IV, the latter to run consecutive to the sentence on the extortion count. On appeal, the appellant challenges the use of his grand jury testimony, asserts impermissible joinder of separate and distinct extortion charges with separate and distinct perjury charges, claims the denial of his Sixth Amendment right to a speedy trial, and contends that the evidence to support the conviction was insufficient.
The defendant contends that the trial court committed prejudicial and reversible error in allowing the reading into evidence of his grand jury testimony and in allowing a transcript of that testimony to be taken to the jury room as an exhibit. The portion of the grand jury transcript admitted into evidence reflected the facts that Kopel was the subject of investigation, that he was given full Miranda warnings, and that he consulted with his attorney prior to answering the crucial questions which were the subject of the perjury counts. At trial, the defendant objected that the transcripts included two requests to go out to talk to his attorney, and that the matters relating to Kopel's consulting with his attorney were neither relevant nor material. Under Fed.R.Evid. 103(a)(1), 2 the defendant has preserved for review only the question relating to consultation with counsel.
The trial record contains the following portions of the grand jury transcript of January 29, 1975 BY MR. MULLEN (Assistant United States Attorney):
Q I want you to know that if you feel the need to consult with your attorney at any time today, you need only indicate that desire and I will ask the Foreman to excuse you for that purpose. Do you understand that, sir?
A Yes, sir.
Q Other than crippled children and boy scouts, retirement parties, promotional events, have you ever received any money from any taverns or any retail liquor distributors in the Seventh Police District?
BY MR. MULLEN:
Q Would you read back again the pending question. Listen very carefully, Mr. Kopel and indicate whether you understand that question.
(Question read.)
BY THE WITNESS:
A Can I speak to my attorney for a moment?
BY MR. MULLEN:
Q Certainly.
Q Do you recall the pending question, sir?
A Yes, sir.
Q Would you answer it, please?
A Other than pensions, retirement parties, social events, promotional and other fund raising events, I did not accept any monies or gratuities from any liquor establishments or taverns.
Q Did you ever receive any monies from any business establishment in connection with your police duties or another policeman's official duties?
A Will you have her repeat that?
(The question was read back by the court reporter as follows:
A Could you be a little more specific.
BY MR. MULLEN:
Q No, do you understand the question?
A No, I don't.
Q Would you want to consult with your attorney?
A Yes, please.
Q Do you recall the pending question, sir?
A Yes, sir.
Q Would you answer that question.
A My answer is, none that I recall.
Essentially, the issue is the extent to which this court will follow the holding of Gebhard v. United States, 422 F.2d 281, 289 (9th Cir. 1970). In that case, the full transcript of the 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. Id. at 289. In United States v. Demopoulos, 506 F.2d 1171, 1177 (7th Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975), this court determined that it was unnecessary to adopt that holding as a general rule but concluded that the non-deleted portions of the transcript there in issue were admissible on the issue of materiality and could be read to the jury in the absence of any objection that they should have been considered only by the judge. Moreover, we concluded that the unexcised portions bore on the issues of knowledge and wilfulness, so that alternative grounds existed for allowing the jury to consider the challenged portions. See id.
The defendant contends that by in effect inviting the jury to speculate on the reason that Kopel consulted with his attorney, the Government prejudiced and misled the jury. Noting that Kopel had received governmental assurances that he had a right to attorney consultation, the defendant argues that the prosecutor may not then "turn the table" and present an assertion of this right to the jury as evidence of guilt. The defendant further submits that his consultation admitted of myriad interpretations and was "insolubly ambiguous" under the rationale of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that the rationale of Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), requires this court to reverse the conviction by condemning a procedure whereby the Government has penalized Kopel for consulting with his attorney after having informed him that he had a right to do so.
We agree with the Government that the fact that Kopel left the room in order to consult with his attorney was highly relevant. We do not agree with the defendant's assertion that Kopel's exercise of his right to consult counsel has no tendency to prove or disprove the perjury charges against him. The evidence showing the consultation tended to prove that Kopel's statements were made in a deliberate fashion rather than as the result of inadvertence and mistake. That Kopel conferred with his attorney regarding straightforward questions regarding his receipt of monies as a police officer tended to show that he was being very careful in answering the simple questions and that his answers were made wilfully and knowingly. There was no insoluble ambiguity.
Of course, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed.R.Evid. 403. In the instant case, we find no basis for concluding that exclusion of that portion of the grand jury transcript which highlighted Kopel's consultation with his counsel was a preordained result of the balancing of probative force with prejudicial impact.
We cannot agree with Kopel that he was entrapped in a manner comparable to that disclosed in Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). In that case, the defendants were informed that they could rely on their privilege against self incrimination, but were subsequently convicted for contempt because of their failure to answer certain questions. The Court stated that sustaining the judgment "would be to sanction an indefensible sort of entrapment by the State convicting a citizen for exercising a privilege which the State had clearly told him was available to him." 360 U.S. at 426, 79 S.Ct. at 1260. Here, the jury did not convict the defendant for the exercise of his right to consult with counsel outside the grand jury room. Instead, it convicted the defendant for knowingly and wilfully making false material statements.
We also are of the opinion that merely because an Assistant United States Attorney gives a grand jury witness permission to consult with his attorney during the course of his testimony there is not thereby created some sort of an estoppel. The general rule is that the Government is not to be estopped in its governmental functions. See generally In re Daley, 549 F.2d 469 (7th Cir. 1977). We fail to see any reason for not here applying the general rule.
In this case, the record establishes that the prosecutor conducted the grand jury in accordance with law. See United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), rev'd, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). At no time did the prosecutor intimate that the evidentiary holding of Gebhard...
To continue reading
Request your trial
-
United States v. Wilson
...U.S. ___, 103 S.Ct. 735, 74 L.Ed.2d 957 (1983); United States v. Adams, 434 F.2d 756, 758 n. 3 (2d Cir.1970). Accord United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir.), cert. denied, 434 U.S. 970, 98 S.Ct. 520, 54 L.Ed.2d 459 (1977); United States v. Johnson, 478 F.2d 1129, 1131 (5th 78......
-
U.S. v. Berardi
...States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979); United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir.), cert. denied, 434 U.S. 970, 98 S.Ct. 520, 54 L.Ed.2d 459 Berardi advances two arguments in support of his claim of pre......
-
U.S. v. Aleman
...of the same gun evidence in separate trials. There has been no "strong showing of prejudice" as to either defendant. United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir.), Cert. denied, 434 U.S. 970, 98 S.Ct. 520, 54 L.Ed.2d 459 (1977). Other reviewing courts lend support to our view that ......
-
U.S. v. Raineri
...14 relief only if the trial court has abused its discretion or committed plain error affecting substantive rights. United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir.), cert. denied, 434 U.S. 970, 98 S.Ct. 520, 54 L.Ed.2d 459 (1977). Such a reversal would entail finding "that the facts an......
-
How the pretrial process contributes to wrongful convictions.
...2001) (holding severance motion properly denied where defendant failed to show "severe or compelling" prejudice); United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir. 1977) ("The defendant must make a 'strong showing of prejudice" in order to support a claim of prejudicial (104.) United St......