U.S. v. Regan
| Decision Date | 06 January 1997 |
| Docket Number | D,No. 569,569 |
| Citation | 103 F.3d 1072 |
| Parties | UNITED STATES of America, Appellee, v. Patrick REGAN, Defendant-Appellant. ocket 96-1211. |
| Court | U.S. Court of Appeals — Second Circuit |
Deborah E. Landis, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, New York City, Matthew E. Fishbein, and Craig A. Stewart, of counsel), for Appellee.
Bennett M. Epstein, New York City, (David S. Greenfield, New York City, on the brief), for Defendant-Appellant.
Before: FEINBERG, LEVAL, and PARKER, Circuit Judges.
Defendant Patrick Regan appeals from a judgment of the United States District Court, Southern District of New York (Denny Chin, Judge ), convicting him, following a jury trial, of perjury in violation of 18 U.S.C. § 1623, and sentencing him to a term of imprisonment of one year and one day, a term of supervised release of two years, and a special assessment of $100.
On appeal, Regan challenges the district court's pre-trial rulings (1) refusing to dismiss the indictment on account of the government's alleged abuse of the grand jury process, (2) precluding him from introducing at trial evidence that the government's investigation was illegitimate and that the witnesses who inspired the investigation were untrustworthy, and (3) denying his motion to call as a witness the prosecutor who interviewed him before the Grand Jury or to disqualify her from prosecuting his trial. Regan also argues that the evidence of materiality was insufficient and that the district court improperly enhanced his sentence for "substantial interference with the administration of justice."
We affirm the judgment of the district court in all respects.
In 1991 and 1992, Regan worked in the 34th Precinct Anti-Crime Unit, a plain-clothes unit of the New York City Police Department that operated in Washington Heights, Manhattan and focused largely on violent street crime.
On August 14, 1992, Regan and two other members of the Anti-Crime Unit arrested Jorge Almonte for possession of narcotics and a firearm. The Anti-Crime Unit turned Almonte over to federal authorities for prosecution representing that the arresting officers saw him with a gun in his waistband and that when they began to chase him he dropped a bag containing narcotics. When Almonte's attorney claimed that the officers were lying about the circumstances of his client's arrest, the government began to investigate whether members of the Anti-Crime Unit had lied about this and other arrests.
After interviewing the arresting officers and other witnesses, including a worker who had been installing cable in Almonte's building and had no connection to Almonte, the government developed doubts about the officers' account of events following Almonte's arrest. Because its case against Almonte depended on the testimony of these officers, the government filed a nolle prosequi and declined to prosecute the case.
On July 22, 1992, three members of the Anti-Crime Unit, including the two officers with whom Regan arrested Almonte, arrested individuals named Nieves and Abreu on guns and narcotics charges. Regan was not involved in this arrest. During the federal prosecution of Nieves and Abreu, it became apparent that those officers' accounts of this arrest were also false. As a result, the government filed a nolle prosequi and the charges were dismissed.
In the autumn of 1992, the government began an investigation, assisted by the New York County District Attorney's Office and the Special Narcotics Prosecutor's Office, to determine whether the misconduct in the Almonte and Nieves cases was part of a broader pattern within the Anti-Crime Unit. This investigation continued well into 1994.
In May 1994, the government interviewed Jose Rodriguez (Jose), a confidential informant for the Drug Enforcement Administration (DEA). Jose claimed that in December 1992 he and his brother, Ramon Rodriguez (Ramon), had met with Regan and other members of the Anti-Crime Unit about locating Almonte. Jose said that he believed that the officers wished to find Almonte in order to "set [him] up" by placing drugs on him, or for some other bad purpose. Jose's knowledge of the Almonte case and details about Regan and the other officers enhanced his credibility with the government.
Investigators then arranged for Jose to call Regan and to claim that he had located Almonte. The resulting tape-recorded telephone call suggested that Jose and Regan had previously discussed Almonte. To obtain additional corroboration for Jose's claims, the government contacted his brother Ramon, who had previously worked as a DEA informant but was "no longer considered entirely reliable."
Ramon initially denied having any information about misconduct in the Anti-Crime Unit. But in an interview on August 26, 1994, at the United States Attorney's Office, he said that he had worked as an informant for the Anti-Crime Unit, which was not authorized to use informants. Ramon also said that Regan had told him that members of the Anti-Crime Unit wanted to "plant" drugs on Almonte and had given him a photograph to assist in locating Almonte.
During this interview, investigators showed Ramon pictures of members of the Anti-Crime Unit. He was able to identify several of them by name and also to give Regan's beeper number. Ramon said that on the previous evening he had told Regan that he was to be questioned by federal authorities about the Anti-Crime Unit. He also claimed that Regan told him to lie about his relationship with the Anti-Crime Unit and instructed him to report back about the substance of his interrogation.
During this meeting, investigators told Ramon to call Regan and tape-recorded the ensuing conversation, in which Regan extensively questioned Ramon about his meeting with federal authorities, referred specifically to cases under investigation, including the Almonte and Nieves cases, and coached Ramon about how to respond to questioning.
In several subsequent tape-recorded telephone conversations during August and September of 1994, Regan asked Ramon for details of his meetings with federal authorities, including the names and positions of the individual investigators, and advised him about appropriate responses. On one occasion he specifically told Ramon not to mention his name.
At the end of August 1994, the term of the Grand Jury that had heard testimony about the Anti-Crime Unit expired. As the investigation was not complete, the government did not seek an indictment from that Grand Jury, but convened a second Grand Jury to continue the investigation. At that point, the government could not locate the cable installer who had provided the evidence demonstrating that Regan and his colleagues had lied about Almonte's arrest. As a result, the government felt that it had inadequate evidence to proceed against Regan. The government believed, however, that Regan could provide evidence about misconduct by his colleagues. It therefore decided to immunize Regan under 18 U.S.C. § 6001 et seq. and subpoena him to testify before the second Grand Jury.
Represented by counsel, Regan appeared before the Grand Jury on October 13, 1994 and October 18, 1994. Assistant United States Attorney (AUSA) Deborah Landis conducted most of the examination of Regan. AUSA Paul Gardephe was also present for most of the proceedings and sometimes questioned Regan.
During Regan's appearance on October 13, the government asked him about his use of informants and his relationship with Ramon. Among other things, Regan denied that he had spoken with Ramon about the federal investigation of the Anti-Crime Unit or about the arrests that were the subject of that investigation, that Ramon had told him that he had been subpoenaed and questioned with respect to the investigation, and that he had advised Ramon about proper responses to potential questions. Regan also denied that he had asked the Rodriguez brothers to help him locate Almonte and that Jose had told him that he had located Almonte.
During his appearance before the Grand Jury on October 18, 1994, Regan said, among other things, that he did not remember Ramon mentioning Almonte's name. Regan also said that he did not recall having a conversation with Ramon about the fact that Ramon had been interviewed by federal authorities and the Internal Affairs Bureau concerning the Anti-Crime Unit. Regan testified that "it would be no of [sic] significant importance for me whether [Ramon] was being interviewed or not."
After Regan's testimony, the government presented the successor Grand Jury with a summary of the evidence previously introduced before the first Grand Jury. Before seeking an indictment for perjury, members of the U.S. Attorney's Office met with Regan and his attorney and informed them of the nature of the investigation of the Anti-Crime Unit and the tape-recorded conversations. The AUSAs explained that Regan's lies had prevented the government from exploring before the Grand Jury the circumstances surrounding the arrest of Almonte and the alleged plot to set him up. The AUSAs allowed Regan to listen to the tapes with his attorney and made clear that they were still looking for a truthful explanation. They said that if Regan confessed his earlier falsities, they would then have additional follow-up questions for him.
After reviewing the tapes, Regan's attorney arranged to meet with the government before the scheduled Grand Jury hearing. But Regan and his attorney did not appear at the appointed time or explain their absence. Thereafter the Grand Jury issued a two-count indictment charging Regan with perjury in violation of 18 U.S.C. § 1623. The indictment alleged that Regan made "false material declarations" before the Grand Jury.
Before trial, Regan moved to dismiss the indictment and to disqualify AUSAs Landis and Gardephe, who had questioned him...
To continue reading
Request your trial
-
U.S. v. Bin Laden
...matters in question, no compelling need exists.") (citing Wallach, 788 F.Supp. at 744) (additional citations omitted)), aff'd 103 F.3d 1072 at 1083 (2d Cir.1997). The prohibition on a lawyer appearing as a witness in a case in which he is also serving as an advocate is grounded in important......
-
Carson v. Lewis
...case uncovered during the investigation." Gisondi, 72 N.Y.2d at 285, 532 N.Y.S.2d at 237, 528 N.E.2d 157; see also United States v. Regan, 103 F.3d 1072, 1081 (2d Cir.) (finding Government had "no obligation to present exculpatory material to a grand jury") (citing United States v. Williams......
-
U.S. v. Gore
...to Wells's arrest would have been admissible as "background evidence" in a trial for the narcotics sale alone. See United States v. Regan, 103 F.3d 1072, 1082-83 (2d Cir.1996) (holding that allegations of misconduct made by certain witnesses were not offered for their truth, but simply as "......
-
U.S. v. Awadallah
...but nonetheless found that "the facts of [the particular] case render[ed] the perjury trap defense inapplicable." United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.1997) (citations and quotations omitted). See also Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir.1994)("All of these cases rec......
-
Grand jury practice
...Beale, Grand Jury Law and Practice , §11:11; but see United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005); United States v. Regan, 103 F.3d 1072, 1079 (2d Cir. 1997); United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991) (all refusing to recognize this defense).] However, the presen......
-
Perjury.
...because it bore on defendant's credibility even though defendant's credibility was at issue). (89.) E.g., United States v. Regan, 103 F.3d 1072, 1081 (2d Cir. 1997) (holding false statement is material flit has the effect or tendency to impede or dissuade grand jury investigation); United S......
-
Perjury.
...because it bore on defendant's credibility even though defendant's credibility was at issue). (82.) E.g., United States v. Regan, 103 F.3d 1072, 1081 (2d Cir. 1997) (holding false statement is material if it has the effect or tendency to impede or dissuade grand jury (83.) U.S.v. Kross 14 F......
-
Perjury.
...because it bore on defendant's credibility even though defendant's credibility was at issue). (88.) E.g., United States v. Regan, 103 F.3d 1072, 1081 (2d Cir. 1997) (holding false statement is material if it has the effect or tendency to impede or dissuade grand jury (89.) United States v. ......