U.S. v. Niederberger

• Decision Date: 05 May 1978
• Docket Number: No. 77-1575,77-1575
• Citation: 580 F.2d 63
• Parties: UNITED STATES of America v. Cyril J. NIEDERBERGER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 63

580 F.2d 63

UNITED STATES of America v. Cyril J. NIEDERBERGER, Appellant.

No. 77-1575.

United States Court of Appeals Third Circuit.

Argued Jan. 4, 1978.

Decided May 5, 1978.

Thomas A. Livingston, Dennis J. Clark, Pittsburgh, Pa., for appellant.

Blair A. Griffith, U. S. Atty., Craig R. McKay, Edward J. Schwabenland, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

Before ROSENN and HIGGINBOTHAM, Circuit Judges, and BARLOW, District Judge. ^*

OPINION OF THE COURT

BARLOW, District Judge.

Cyril J. Niederberger, an employee of the Internal Revenue Service (I.R.S.), appeals his conviction on six counts of a ten-count indictment. The indictment charged Niederberger with accepting illegal gratuities from Gulf Oil Corporation (Gulf) in the form of five golfing trips paid for by Gulf. ¹ Each golf trip provided the predicate for two counts in the indictment, the odd-numbered counts alleging violations of 18 U.S.C. § 201(g) (1970) ² and the even-numbered counts alleging violations of 26 U.S.C. § 7214(a)(2) (1970). ³

Niederberger seeks reversal on a variety of grounds. The principal arguments, however, are addressed to the trial court's refusal, first, to grant Niederberger's motion for severance; second, to compel the Government to provide use immunity for certain potential defense witnesses; third, to dismiss the indictment on the basis of duplicity; fourth, to dismiss the indictment for its failure to allege facts which constitute a federal offense; and, fifth, to strike the testimony of a prosecution witness who, prior to trial, had destroyed the rough notes upon which he based his testimony. Additionally, Niederberger contends that the evidence presented by the prosecution was insufficient to support a judgment of conviction.

However, following our careful consideration of all the issues raised by the appellant, we must affirm the judgment of the trial court in all respects.

The facts, briefly summarized are as follows: During the period between 1971 and 1974, Niederberger was employed by the I.R.S. in its Pittsburgh office as a large case manager. This position required Niederberger to supervise a group of revenue agents assigned to audit certain corporate income tax returns filed by Gulf. Among Niederberger's responsibilities were the development and final approval of the audit plan, which is a detailed outline of the specific procedures to be utilized during the course of a particular audit. During the development of an audit plan, Niederberger was empowered to make all final decisions regarding the scope and depth of the areas of corporate taxation which were to be reviewed in the audit.

Further, in his position as the large case manager for Gulf, Niederberger had occasion to supervise the audits of Gulf's tax returns for the years 1960 through 1970 inclusive. Following the completion of a particular year's audit, representatives of Gulf would confer with Niederberger's staff to discuss the tax adjustments which the revenue agents determined were required by the audit. In each instance Gulf agreed to pay the proposed additional assessment without resort to available administrative appellate procedures.

During the same period that Niederberger was serving as the case manager for the Gulf audits, he accepted from Gulf and at Gulf's expense several golfing junkets at various resorts. More precisely, in January of 1973, Niederberger spent four days at In August and September of 1973, Niederberger and his wife spent four days at the Seaview Country Club in Absecon, New Jersey, in the company of, among others, Mr. Fred W. Standefer, Gulf's Vice-President of Tax Administration. The Niederbergers' expenses at Seaview were billed to Mr. Arthur V. Harris, who listed his billing address as the Gulf Oil Building, Pittsburgh, Pennsylvania. Counts V and VI of the indictment embody this trip.

the Doral Country Club in Miami Beach, Florida, in the company of Mr. John F. Fitzgerald who, at that time, was the Manager of Federal Tax Compliance for Gulf. Niederberger's entire bill was transferred to Fitzgerald's account, which was subsequently charged to Fitzgerald's American Express card. This trip provided the basis for Counts III and IV of the indictment.

In April of 1974, Niederberger spent four days at the Del Monte Lodge in Pebble Beach, California, in the company of both Fitzgerald and Standefer. Again, Fitzgerald charged Niederberger's bill to his American Express card. Counts VII and VIII of the indictment reflect this trip.

Two months later, in June of 1974, Niederberger and his wife were guests of Fitzgerald for five days at the Desert Inn and Country Club in Las Vegas, Nevada. This trip underlies Counts IX and X of the indictment.

SEVERANCE

Prior to trial and pursuant to Fed.R.Crim.P. 14, ⁴ Niederberger moved unsuccessfully to limit the trial below to those offenses charged in any two counts contained in the indictment which had, as their common denominator, the location of one of the five golfing vacations. He urges on this appeal that the joinder of all ten counts in the indictment substantially prejudiced his right to a fair trial in that the jury was presented with evidence relating to all five golfing trips and could not, therefore, properly separate and distinguish the evidence with respect to each individual count.

Initially, it is settled that a district court's disposition of a Rule 14 severance motion will not be disturbed in the absence of a clear showing of an abuse of discretion. United States v. Somers, 496 F.2d 723, 730 (3d Cir.), Cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). The burden placed upon the appellant here to demonstrate such abuse is a heavy one. Id.; see United States v. Rosa, 560 F.2d 149, 154 (3d Cir.), Cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977) (severance of defendants).

Moreover, joinder of offenses in one indictment is expressly permitted by Fed.R.Crim.P. 8(a). ⁵ Here the joinder was clearly permissible since the crimes charged were all of the same or similar character. Thus, our inquiry must focus on whether the record below suggests that, by virtue of the joinder, the appellant's right to a fair trial was sufficiently prejudiced so as to warrant the relief provided by Rule 14.

The obvious purpose of Rule 8(a)'s liberal joinder provision is to promote judicial and prosecutorial economy by the avoidance of multiple trials. United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977), Cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978). To accept the appellant's view here would clearly violate the intent of Rule 8(a) in that his motion implicitly proposed that at least two and perhaps as many as five separate trials would be required to prosecute all ten counts of the indictment. Given the obvious burden Furthermore, no substantial prejudice has been demonstrated. The appellant merely asserts that the jury would be incapable of sifting through and separating the evidence and applying it to the appropriate counts of the indictment. This assessment is belied by the fact that the jury's verdict acquitted Niederberger of four of the ten counts. That result establishes beyond question that the jury was capable of evaluating the evidence relating to each separate count.

imposed upon the prosecution and the trial court in terms of both time and expense, such a result would be as intolerable as it is unnecessary. That is especially true here because the evidence in any subsequent trial would be largely duplicative of that presented in the initial trial. See United States v. Taylor, 334 F.Supp. 1050, 1056 (E.D.Pa.1971), Aff'd 469 F.2d 284 (3d Cir. 1972).

Accordingly, we are satisfied that the joinder of offenses in a single indictment failed, in any sense, to infringe upon Niederberger's right to a fair trial, and consequently we find no abuse of discretion in the district court's resolution of the Rule 14 application.

IMMUNITY FOR PROSPECTIVE DEFENSE WITNESSES

Niederberger's second contention is directed to the district court's refusal to require the Government to seek use immunity, pursuant to 18 U.S.C. § 6002, ⁶ for the proposed defense witnesses, Fitzgerald and Standefer, the two Gulf employees instrumental in providing Niederberger with the gratuities underlying the indictment. The appellant maintains that without a grant of immunity both men would have refused to testify on his behalf. Thus, Niederberger argues, the failure of the court to compel a grant of immunity denied him his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process.

The rule in this Circuit is clear; a trial court has no authority to provide use immunity for a defense witness. United States v. Morrison,535 F.2d 223, 228-29 (3d Cir. 1976); United States v. Berrigan, 482 F.2d 171, 190 (3d Cir. 1973). ⁷ Similarly, except in an extraordinary circumstance which was not present below, a trial court cannot compel the Government to offer such immunity to a prospective witness. Morrison, supra,535 F.2d at 229.

Moreover, there was no affirmative showing, as required by § 6002, that either Fitzgerald or Standefer would have refused to testify if called as defense witnesses. Accordingly, we conclude that the trial court's denial of the immunity request did not offend defendant's Fifth or Sixth Amendment rights.

DUPLICITOUSNESS

The indictment charges, in the odd-numbered counts, that Niederberger did "accept, receive and agree to receive a thing of value" from Gulf. In the even-numbered counts, Niederberger is alleged to have received a "fee, compensation and reward" from Gulf. The appellant insists that, because of the conjunctive phrasing of the indictment, he is charged with three distinct offenses in each count, in violation of Fed.R.Crim.P. 8(a). ⁸ Thus, Niederberger contends, the trial court erred when it denied his motion to dismiss the indictment for duplicitousness.

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