U.S. v. Levine, 82-1604

• Decision Date: 22 February 1983
• Docket Number: No. 82-1604,82-1604
• Citation: 700 F.2d 1176
• Parties: 12 Fed. R. Evid. Serv. 1269 UNITED STATES of America, Appellee, v. William E. LEVINE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1176

700 F.2d 1176

12 Fed. R. Evid. Serv. 1269

UNITED STATES of America, Appellee, v. William E. LEVINE, Appellant.

No. 82-1604.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1982.

Decided Feb. 22, 1983.

Thomas E. Dittmeier, U.S. Atty., Larry D. Hale, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Robert C. Babione, Acting Federal Public Defender, East St. Louis, Ill., for appellant.

Before BRIGHT and ARNOLD, Circuit Judges, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

William L. Levine appeals his conviction for theft from the United States Mail, a violation of Title 18, Section 1708, United States Code. Appellant was found guilty by a jury in the District Court for the Eastern District of Missouri. ¹

On appeal, Levine argues (1) that the trial court erred in denying his motion to dismiss the indictment on the ground of government misconduct during the grand jury proceedings which deprived him of the exercise of independent discretion by that body; (2) that the district court abused its discretion in not excluding a pre-trial statement made by appellant which was not disclosed to the defendant until shortly before trial; and (3) that the district court erroneously denied appellant's motion regarding the admissibility of prior convictions. For the reasons discussed below, we affirm the rulings of the district court.

Background

On February 26, 1982, an officer of the American Bank of Rolla discovered a man apparently rifling through the mail in the bank's post office box in the Rolla, Missouri, post office. Upon examining the contents of the box, only third-class mail remained in the box. The bank officer observed the man carrying mail into a white car. Another witness noted the Illinois license number on the car. The license number was traced to appellant and the description of the car from witnesses at the scene matched that of the car registered under that license number. Appellant was subsequently located in Cahokia, Illinois, and questioned regarding the incident.

Early the morning of February 26, prior to the incident described above, post office employees had placed several direct deposit retirement checks in American Bank's post office box. These items of mail were not in the box when the bank officer examined the box. One of those checks was made payable to Kenneth Asher in the amount of $155.00. The check had been mailed from Columbia, Missouri, on February 25, 1982, and has never been delivered to the American Bank or to Mr. Asher. Appellant was indicted by a grand jury for the theft of the Asher check from the mail. He plead not guilty and was subsequently found guilty of the charges by a jury.

Actions Before the Grand Jury

The appellant argues that the district court should have dismissed the indictment against him because of government misconduct during the grand jury proceedings. The abuses alleged are that evidence inadmissible at trial was presented (the postal inspector witness stated that appellant had plead guilty to mail theft and had refused to talk to officers and asked to talk to an attorney), erroneous information was presented (the witness testified that in 1978 appellant had been convicted of mail theft but he had actually plead guilty to possession of mail), and evidence negating guilt was not presented (the grand jury was not informed that appellant had asserted an alibi). The appellant argues that these actions combined to undermine the independence and objectivity of the grand jury.

The disputed grand jury testimony occurred when, after direct testimony, one juror asked the witness, Postal Inspector Gary W. Heil, if the officers had any priors on Mr. Levine, the appellant. The witness replied that Levine had been arrested twice before for mail theft. When asked if there were prior convictions, the witness stated Levine had plead guilty to mail theft in 1978. The appellant argues that information concerning prior convictions should not have been presented to the grand jury and that this information given was false in that he had plead guilty to possession of mail matter that year, instead of mail theft. The government asserts that it was not improper to present prior conviction information and that the error made in the testimony was minor, especially in light of the fact that Levine did have two prior convictions for mail theft.

When one of the grand jurors asked Inspector Heil what Levine had to say about the incident, the inspector answered that Levine had declined to talk and wanted an attorney present. Appellant argues that it was improper to tell the grand jury that he had refused to talk and that the statement was an error because Levine had asserted an alibi. The government states that this witness, who had not been involved in the initial questioning when Levine raised the alibi, was not aware of the asserted alibi and his failure to inform the grand jury of the asserted alibi was not an attempt to conceal this information but merely a mistake. Even if they had known of the appellant's asserted defense, the government argues that it is not obligated to present exculpatory evidence to the grand jury.

The appellee correctly asserts that the rules of evidence, which limit, inter alia, the use of prior convictions and the information that an accused refused to talk to officers, are not applicable to federal grand jury proceedings. Rule 1101(d)(2), Fed.R.Evid. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974) ("[The grand jury's] operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials."). The grand jury can act solely on testimony which in trial would be incompetent evidence, e.g., hearsay evidence. United States v. Costello, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); United States v. Neff, 525 F.2d 361 (8th Cir.1975); United States v. Powers, 482 F.2d 941 (8th Cir.1973), cert. denied, 415 U.S. 23, 94 S.Ct. 1426, 38 L.Ed.2d 479 (1974). Even the exclusionary rule for evidence obtained through unlawful search and seizure is not applicable to grand jury proceedings. United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 622, 38 L.Ed.2d 561 (1974); Travestad v. United States, 418 F.2d 1043, 1048 (8th Cir.1969), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); West v. United States, 359 F.2d 50, 59 (8th Cir.), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).

In the spirit of the Supreme Court decisions and our prior decisions, we find no misconduct in informing the grand jury of prior convictions or of the appellants refusal to talk to law enforcement officers, especially when the information was given in response to questions by jurors. See also, United States v. Camproeale, 515 F.2d 184, 189 (2nd Cir.1975) (Grand jury's knowledge of defendant's prior criminal record does not preclude its filing of an indictment.)

We have earlier stated that "absent some evidence of gross purposeful deception by the prosecutor, an indictment legally valid on its face will not be overturned because it is possible that some of the evidence presented to the grand jury may have permitted an erroneous adverse inference ...." United States v. Cady, 567 F.2d 771, 776 (8th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). Appellant has not claimed that the indictment before us is invalid on its face.

Two statements made by Inspector Heil before the grand jury were incorrect, but there is no claim that either the witness or the prosecutor was aware at the time that the information was erroneous.

Many Circuit Courts of Appeals have addressed the question of the effect of perjured testimony on a grand jury indictment. Although these are not precisely on point because appellant is alleging erroneous, or at the most negligent, statements, they are helpful in our analysis of the problem.

The Ninth Circuit Court of Appeals has consistently held that "dismissal of an indictment is only required in extreme situations, as where the prosecutor knowingly presents perjured testimony." United States v. Tham, 665 F.2d 855, 863 (9th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982); United States v. Thompson, 576 F.2d 784, 786 (9th Cir.1978); United States v. Samango, 607 F.2d 877, 882 (9th Cir.1976); United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978) ("We believe that the rule ... [is] that only in a flagrant case, and perhaps only where knowing perjury, relating to a material matter, has been presented to the grand jury should we dismiss an otherwise valid indictment returned by an apparently unbiased grand jury. To hold otherwise would allow a minitrial as to each presented indictment contrary to the teachings of Mr. Justice Blackmun in Costello ....") ²

The First Circuit, although not adopting a precise rule, did require that even perjured testimony must be material in order to justify a dismissal of an indictment on the basis of perjured testimony. United States v. Flagerty, 668 F.2d 566, 584 (1st Cir.1981).

The Fifth Circuit has indicated that absent perjury or government misconduct an indictment is not flawed simply because it is based on testimony which later turns out to be questionable, United States v. Sullivan, 578 F.2d 121, 124 (5th Cir.1978), and that without perjury, misstatements before the grand jury by a government agent witness which are not material to the offense charged are not sufficient to warrant dismissal of an indictment. United States v. Cathey, 591 F.2d 268, 272-73 (5th Cir.1979).

Under the rulings of the Second Circuit, where the government knows that perjured testimony has been given to the grand jury and the testimony was material to grand jury deliberations, the prosecutor should act to correct any possible...