U.S. v. Martino

• Citation: 825 F.2d 754
• Decision Date: 05 August 1987
• Docket Number: No. 86-1505,86-1505
• Parties: UNITED STATES of America, Appellant, v. Leonard L. MARTINO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 754

825 F.2d 754

UNITED STATES of America, Appellant, v. Leonard L. MARTINO.

No. 86-1505.

United States Court of Appeals Third Circuit.

Argued April 6, 1987.

Decided Aug. 5, 1987.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr. (argued), Asst. U.S. Atty., Chief of Appeals, Gregg Vance Fallick, Ronald K. Noble (argued), Asst. U.S. Attys., Philadelphia, for appellant.

Irving M. Green (argued), New Kensington, for appellee.

Before SLOVITER and BECKER, Circuit Judges, and FISHER, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The district court characterized a grand jury subpoena issued to an undercover agent in the pseudonym under which he was working as "a spurious order" of court which "obviously exceeds the bounds of propriety," and, exercising its supervisory power, dismissed two counts of an indictment returned by the grand jury and suppressed conversations with the agent. In what appears to be a case of first impression, we must decide whether the district court's order should be affirmed.

I. Facts

Leonard L. Martino, a former member of the Pennsylvania legislature, and Charles Caputo, the former Executive Director of the State Government Committee of the Pennsylvania House of Representatives (now deceased), were indicted by a federal grand jury in a sixteen-count indictment on charges of perjury, obstruction of justice and conspiracy in violation of 18 U.S.C. Secs. 1621, 1503, and 371. The indictment arose out of a five-year multinational FBI undercover operation called "Operation Gallstone".

Beginning in 1982 and continuing until February 1985, Martino and Caputo met with FBI Special Agent Jim Vaules, who was using the pseudonym "Wayne Hess". Vaules pretended to be engaged in the insurance business. The government contends it has numerous recorded conversations during which Martino and Caputo requested payments from Vaules for members of the state legislature to procure issuance of a license to an undercover company to write insurance in Pennsylvania, discussed padding of the insurance company's books to inflate its balance sheet, and represented that they could procure a furlough for a federal prisoner in return for campaign contributions to members of the United States Congress.

In late January and early February 1985, the FBI interviewed Martino and Caputo about their conversations and activities with "Hess". The FBI and the prosecutor, who did not advise Martino and Caputo that their conversations with "Hess" had been recorded, concluded that Martino and Caputo lied in their interview about their relationship with "Hess" and their lack of knowledge of requests for money for bribes and political influence for public officials.

On January 25, 1985, three grand jury subpoenas were issued, for Martino, Caputo, and in the undercover agent's pseudonym of "Wayne Hess". On January 30, 1985, Vaules, acting as "Hess", informed Martino that he had received a grand jury subpoena, although Vaules did not actually pick up the "Hess" subpoena until sometime between February 4, 1985 and February 8, 1985. Caputo and Martino were served with their subpoenas on February 4 and 6 respectively. Martino's and Caputo's subpoenas were returnable on February 11, 1985. The "Hess" subpoena was returnable on February 25, 1985.

According to the government, Martino and Caputo contacted "Hess" to inform him of their interview with the FBI, and had several conversations with him in advance of their grand jury appearances in which they told "Hess" what to say before the grand jury and about the false testimony that they planned to give.

Martino, who is a lawyer, appeared before the grand jury on February 11, 1985. He was apprised of his right to remain silent, but he testified. Martino and Caputo met with "Hess" immediately following their grand jury appearances. According to the government, at that time "Hess" showed his subpoena to Martino and Caputo. ¹ Martino and Caputo allegedly informed "Hess" of the testimony they gave and told him what he should say.

On April 22, 1985, the grand jury returned a sixteen count indictment against Martino and Caputo. Count one of the indictment charged the defendants with conspiracy to procure and commit perjury and to obstruct justice by testifying falsely to the grand jury and attempting to induce "Hess" to testify falsely. Count two of the indictment charged Martino and Caputo with the substantive act of obstructing justice based on the same facts alleged in count one of the indictment. The remaining fourteen counts charged the defendants with perjury before the grand jury. ²

On June 13, 1985, Caputo filed an omnibus pre-trial motion in which Martino joined. Caputo's motion alleged, inter alia, prosecutorial misconduct in issuing the "sham" subpoena to Vaules in the pseudonym of "Wayne Hess," and sought dismissal of the indictment. In the alternative, the defendants sought suppression of their February 11, 1985 grand jury testimony.

The district court filed a memorandum and an order of April 28, 1986, modified by an order of May 1, 1986, dismissing counts one and two of the indictment. The district court's memorandum stated that the court was exercising its supervisory power to dismiss the two counts of the indictment on the ground that issuance of the subpoena in the pseudonym "Wayne Hess" was prosecutorial misconduct which reflects upon the integrity of the judicial process. United States v. Caputo, 633 F.Supp. 1479, 1490-92 (E.D.Pa.1986). The district court also suppressed all evidence of any conversations between the defendants and "Hess" which took place on or after January 25, 1985, the date of issuance of the subpoena to "Wayne Hess", on the ground that the subpoena was a significant factor in bringing about those conversations. Id. The district court denied the government's motion for reconsideration and consideration of new evidence on the issue of lack of prejudice. App. at 94-99.

The government appeals. This court has jurisdiction of the appeal under 18 U.S.C. Sec. 3731.

II. Discussion

A. The District Court's Rationale

In dealing with alleged improper conduct of prosecutors which is not challenged under statutes directed to the particular conduct, see, e.g., 18 U.S.C. Sec. 2518 (procedures for wiretapping), or case precedent disapproving that particular conduct, see, e.g., Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (entrapment); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (withholding exculpatory material), the courts have analyzed the challenged conduct either under the rubric of prosecutorial misconduct, see United States v. Birdman, 602 F.2d 547, 559 (3d Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980), or outrageous government conduct establishing a due process defense, United States v. Twigg, 588 F.2d 373, 377 (3d Cir.1978). In this case, although the district court denominated the issuance of the subpoena in the pseudonym of "Wayne Hess" as prosecutorial misconduct, and expressly eschewed reliance on the due process defense, the court's discussion and underlying rationale implicate the due process defense recognized in this circuit.

In analyzing the district court's ultimate conclusion, it is necessary first to review those charges made by the defendants that the district court rejected. In support of their motion for dismissal of the indictment or suppression of their grand jury testimony, defendants first argued that the government attempted to ensnare them in a "perjury trap", contending that "the government brought [them] before the grand jury with the sole or primary purpose of extracting perjured testimony from them." 633 F.Supp. at 1485-86 (footnote omitted). They argued that this trap was furthered when the prosecutor handed them copies of their FBI interview reports in lieu of answering their questions as to why they had been subpoenaed.

The district court found that "[t]here is no evidence on which to base a finding that the prosecutor gave defendants their FBI interview reports in order to induce them to testify falsely and in a manner consistent with the reports." 633 F.Supp. at 1487. Further, the district court found that it was not the government's sole or primary purpose to extract perjured testimony from the defendants. Instead, the court found that while the prosecutor recognized that defendants might perjure themselves, the prosecutor's statements to the grand jury showed he recognized that defendants might provide information about the pending investigation. Id. Because the district court accepted as a fact that "[d]efendants' answers to [questions by the prosecutor] could have produced information about the extent of defendants' involvement in political corruption, if any, as well as information about certain public officials who were suspected of taking bribes," id. (footnote omitted), the court rejected defendants' perjury trap argument.

Defendants also argued in the district court that it should exercise its supervisory power to dismiss the indictment because they were not notified of their target status. Again, the district court rejected this contention. Although it concluded that defendants were targets who should have received warning pursuant to Department of Justice Internal Guidelines which provide for notification of grand jury witnesses of their target status ³, the court held that the failure to follow such guidelines in this case did not warrant dismissal of the indictment. 633 F.Supp. at 1488-90. It relied in large part on this court's opinion in United States v. Crocker, 568 F.2d 1049, 1053-56 (3d Cir.1977), where we refused to suppress false grand jury testimony even when the government prosecutor misled defendant as to his target status. The district court also noted, 633 F.Supp. at 1489-90, that in United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1820, 52 L.Ed.2d 238 (1977), the...