U.S. v. Romano

• Decision Date: 11 August 1978
• Docket Number: No. 78-1046,78-1046
• Citation: 583 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Fred ROMANO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

583 F.2d 1

UNITED STATES of America, Appellee, v. Fred ROMANO, Defendant, Appellant.

No. 78-1046.

United States Court of Appeals First Circuit.

Argued May 1, 1978.

Decided Aug. 11, 1978.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for defendant, appellant.

James J. Graham, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., and Charles E. Chase, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The question raised in this appeal from a criminal conviction is whether the Government's evidence was obtained in violation of the use immunity that had earlier been granted to the defendant, Ferdinand (Fred) Romano, under 18 U.S.C. §§ 6001-6005. Twice in the spring of 1976, Romano had testified under an order of immunity in sessions of the Senate Subcommittee on Spending Practices, Efficiency, and Open Government a subdivision of the Senate Committee on Government Operations regarding the practices of G & G Packing Co., Inc., and Blue Ribbon Frozen Food Corp., Inc., sister companies that supplied the Department of Defense with over a million dollars worth of beef. Thereafter, Romano was tried and convicted by a jury on 27 counts of conspiring with other officers of G & G and Blue Ribbon to purchase for supply to the military a lesser grade of beef than required to satisfy military meat inspectors; giving or offering a thing of value to military meat inspectors; and concealing a material fact concerning the quality of the meat, in violation of 18 U.S.C. §§ 201(f), 371, 1001 and 1002.

Before trial, the district court held a three-day hearing in response to Romano's motion to dismiss the indictment or suppress evidence on the ground that the Government's evidence was obtained in violation of his immunity grant, See 18 U.S.C. § 6002. ¹ After the hearing, the court denied Romano's motion, and subsequently reaffirmed its decision in a Memorandum and Order entered on December 14, 1977, after verdict was rendered. The court ruled that "the United States had met the heavy burden imposed by Kastigar v. United States, 406 U.S. 441, 460-62 (92 S.Ct. 1653, 32 L.Ed.2d 212) (1972), and had shown that the source of the evidence that the Department of Justice intended to use in the Romano prosecution originated from sources completely independent of Romano's immunized Senate testimony." The district court also found that a proffer of evidence made in October 1975 by Romano's counsel to members of the Subcommittee in order to obtain a grant of immunity was not the source of any evidence relied on by the Government either before the grand jury or at the trial, and, additionally, that the information contained in the proffer was not insulated from Government use by the terms of § 6002 or the Kastigar decision. On appeal, Romano vigorously assails these rulings. We affirm.

I

At trial the Government's evidence revealed the following. Blue Ribbon and G & G were in the business of supplying meat to the Department of Defense, under government contracts. They were owned by Harry Goldberg and David Frank Goldberg, who also had a substantial role in day-to-day operational decisions. Appellant Romano and one Frank Ravasini served respectively as general manager and assistant general manager of G & G. Stephen Goldberg, son of Harry Goldberg, ordered and purchased beef to be processed at G & G. Edward Kehl and William Johnson were appointed quality control representative and foreman of general help at G & G after it began operations in the spring of 1974. G & G, a Massachusetts firm, did preliminary processing of raw beef, which was sent to Blue Ribbon in Connecticut for further processing before it was shipped to the military.

During the latter half of 1974, Romano, Harry Goldberg, David Frank Goldberg, and Frank Ravasini determined to increase G & G's profits by substituting ungraded and inferior cuts of beef for those specified by the Department of Defense. Bribes were arranged between G & G and Charles Reidinger, an Army officer in charge of assigning inspectors to the G & G plant, and Manuel Pacheco, Nadja Hoyer-Booth, and Sharon Dalton, three inspectors. In 1974 and 1975, those officers received cash payments, meat, liquor, clothing, and other offerings in kind in return for less than rigorous examination at the plant. The Government, in the meanwhile, paid G & G over $895,000 more than the meat it received was worth.

Testifying against Romano at trial were both Goldbergs, who had earlier pleaded guilty to similar charges, Johnson, Edward Kehl, and the inspectors Hoyer-Booth and Pacheco. ² Additionally there was expert testimony and documentation that the meat supplied by Romano's company was below specification. No defense was offered. On November 17, 1977, after a four-day trial, the jury returned verdicts against Romano on 27 counts.

Over two years before Romano was tried and convicted, the Senate Subcommittee on Spending Practices had begun an inquiry into military procurement practices. The Subcommittee was helped in its preliminary investigative work by a branch of the Department of Defense called "Defense Investigative Services" (DIS). The investigation was enlarged in September 1975, when James J. Graham of the Department of Justice's Fraud Division began a parallel investigation looking towards prosecution of the participants in the fraud. The Department of Justice received the cooperation of the DIS unit which was doing field work in Boston and Connecticut.

On October 8, 1975, Romano was subpoenaed before a public session of the Subcommittee with his counsel, James J. Sullivan, of Boston. Asserting his fifth amendment right, he refused to testify. ³ Later that day, Sullivan and the attorneys for the Goldbergs conferred with Senators Chiles and Weicker, chairman and a ranking member of the Subcommittee, about the possibility of arranging for their clients to testify before the Subcommittee in return for a grant of use immunity. The detail and scope of the proffer made by Sullivan on behalf of Romano at this lobby meeting is not disputed; but the proffer was, at best, a "general" one outlining Romano's willingness to testify about some practices of G & G including the substitution of inferior for the specified cuts. ⁴

The following day, October 9, 1975, Senators Chiles and Weicker met with Graham and told him of the proffers. On November 13, 1975, the Committee voted to request an order of immunity for Romano in order that he could be compelled to testify. The Department of Justice, through Graham, urged that the Subcommittee not seek immunity, explaining that the prosecutorial task would be complicated by an immunity grant. An order was nonetheless sought and on November 25, 1975, the District Court for the District of Columbia entered an order under 18 U.S.C. § 6005 conferring immunity and compelling Romano's testimony. ⁵ The Subcommittee agreed to hold the order in abeyance at least until receiving a statement from Attorney General Levi formally articulating the Justice Department's position on the matter.

In a letter to the Subcommittee, drafted by Graham and signed on December 24, 1975, the Attorney General expressed "the strongest objection" to a grant of immunity at that time, counting among his reasons that "the proffer . . . is very general in nature and may implicate only low-level government employees" and that "because of the close relationship established by your Subcommittee with our investigators, proof that the immunized testimony was never used to develop future cases against witnesses could present serious litigation problems, if not an absolute bar to prosecution." He further stated that "the meat packing investigation is just beginning in response to the referral of your Subcommittee and certain scientific tests" and cautioned that the heavy burden of the prosecutor to show independent legitimate sources and freedom from taint "presents no small hurdle in light of the established and documented relationship between the Subcommittee and its staff and our investigators, the Defense Investigative Service. Certification or sealing of the evidence is an insufficient safeguard here, since the investigation is still at an early stage."

The Subcommittee accordingly delayed hearing the testimony of Romano. In early April 1976, a grand jury began investigation of Romano and was presented with depositions of Pacheco and Reidinger and the testimony of Hoyer-Booth, Johnson and Kehl. Romano's testimony was finally scheduled for a closed executive session of the Subcommittee on April 29, 1976. Graham drafted and circulated a memo dated April 19, 1976, alerting his staff and the DIS staff to the upcoming testimony, and directing them to avoid all access or contact with any reports, personal or journalistic, of the testimony. On April 25, 1976, two DIS employees assigned to Romano's case drafted a memo summarizing the case against Romano as it stood before any testimony was taken: the memo refers to testimony of Edward Kehl and interviews with Hoyer-Booth as well as other unnamed sources, and details the substitution of cuts and bribery with which Romano was subsequently charged. On April 27, 1976, two days before Romano's scheduled testimony, the Department of Justice through the Attorney General received a packet of materials from Senators Chiles and Weicker, outlining "all evidence and 'leads' gathered by the subcommittee, particularly information which may not yet have come to the attention of the Justice Department, and which may suggest criminal wrongdoing by Mr. Romano."

Finally, on April 29, 1976, Romano testified before the Subcommittee. A press conference on the subject of the hearings, covering the evidence accumulated to date, was held by the Subcommittee on May 7, 1976, and received "fairly...