U.S. v. Scrimgeour, 80-5205

• Decision Date: 12 February 1981
• Docket Number: No. 80-5205,80-5205
• Citation: 636 F.2d 1019
• Parties: 1980-81 Trade Cases 63,794 UNITED STATES of America, Plaintiff-Appellant, v. William C. SCRIMGEOUR, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1019

636 F.2d 1019 1980-81 Trade Cases 63,794 UNITED STATES of America, Plaintiff-Appellant,
v.
William C. SCRIMGEOUR, Defendant-Appellee. No. 80-5205. United States Court of Appeals,
Fifth Circuit.
Unit B Feb. 12, 1981.

Page 1020

Charles C. Murphy, Jr., Atty., Antitrust Div., U.S. Dept. of Justice, Atlanta, Ga., John J. Powers, III, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Joseph Mincberg, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN, FAY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

The Government appeals from the district court's dismissal of a five-count indictment charging William Scrimgeour with knowingly making false material declarations before a grand jury in violation of 18 U.S.C.A. § 1623. ¹ The district court granted Scrimgeour's motion to dismiss the indictment, ruling that prosecution was barred by the recantation provision of 18 U.S.C.A. § 1623(d). ²

Scrimgeour made material declarations under oath before a grand jury and subsequently reappeared and admitted those declarations to be false. He first testified before the grand jury, which was investigating price fixing in the southern Florida bond paper market, on June 16, 1977. His testimony contradicted that given by a prior witness, David Boynton, who had testified that Scrimgeour attended price fixing meetings. For that reason, Scrimgeour was twice warned by the Government attorney of the penalty for perjury and given an opportunity to change his answers. Scrimgeour declined at that time to change his testimony. On July 27, 1977, Michael Nachwalter, Scrimgeour's attorney at that time, contacted a Government attorney concerning Scrimgeour's possible perjury and requested that the Government provide a copy of Scrimgeour's grand jury testimony. That request was refused on the ground

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that grand jury proceedings are secret under Fed.R.Crim. P. 6(e). On August 12, 1977, Nachwalter again requested that the Government attorneys allow Scrimgeour to view a transcript of his testimony, but the Government again refused on the ground that a court order would be required under Rule 6(e).

On September 15, 1977, another witness, Joe Lincks, reappeared before the grand jury and testified, in contradiction to Lincks' prior testimony given in March 1977, that Scrimgeour had attended price fixing meetings. A few hours after Lincks testified on September 15, Scrimgeour's counsel called a Government attorney and stated that he knew that Lincks had been a "songbird" before the grand jury. In October 1977, Scrimgeour's new attorney, James Hogan, contacted Government counsel and stated "that Scrimgeour had lied" and that he "wanted him to go back to the grand jury and straighten it out." Hogan also requested a copy of the grand jury transcript but the Government again refused on the ground that a court order would be required under Rule 6(e). Hogan then filed a motion to compel disclosure of the transcript, which was granted on November 7, 1977, after a hearing on that motion. At that hearing Hogan conceded that "even if we appear and recant under 1623 the Government can still indict him for perjury under 1621 and 1623 if they so wish...." Later that day on November 7, Scrimgeour reappeared before the grand jury, admitted his prior false statements, and corrected his testimony.

The grand jury before which Scrimgeour made his false statements and then recanted expired in December 1977, without returning an indictment for price fixing. However, a second grand jury did return an indictment in September 1978, to which Scrimgeour and other defendants pleaded nolo contendere.

The district court dismissed the perjury indictment on the basis of 18 U.S.C.A. § 1623(d), which provides that a person who recants or admits that he has made false declarations shall not be prosecuted for those declarations, "if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed." The district court held that "or" must be read in the disjunctive and not in the conjunctive, i. e., if either of the two conditions of Section 1623(d) is satisfied, recantation bars prosecution. The district court decided in the alternative that both conditions were satisfied and thus prosecution of Scrimgeour was barred.

The United States Court of Appeals for the District of Columbia Circuit held in United States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2922, 64 L.Ed.2d 811 (1980), that the word "or" in 18 U.S.C.A. § 1623(d) means "and." That court reviewed the legislative history of Section 1623 and concluded that Congress intended that a defendant be required to satisfy both conditions of subsection (d). ³ This Circuit specifically reserved this precise issue in United States v. Beasley, 550 F.2d 261, 266 (5th Cir.), cert. denied, 434 U.S. 863, 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977).

We are persuaded by Moore. Our reading of the legislative history convinces us that the court in Moore was correct in determining that despite the formulation of Section 1623(d) grammatically, the intent of Congress was that a defendant must satisfy both conditions of that subsection. ⁴

The central purpose of Congress in enacting Section 1623 was to encourage truth telling to the maximum extent possible, at every step of the witness' testimony. ⁵ The Moore court turned to legislative history after determining that a literal interpretation of Section 1623(d) was unsatisfactory

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because it would frustrate Congress' overriding goal in enacting that section by allowing a perjurer to avoid prosecution by merely recanting before his perjury adversely affected the proceeding, even after his perjury had been exposed. ⁶

Section 1623(d) was modeled on a New York statute ⁷ and congressional treatment of the recantation provision reveals that the New York version was basically incorporated into Section 1623(d). ⁸ The Moore court reasoned that Congress would not have enacted a version of the recantation statute which differed so greatly from the New York version without explaining its intent and reasons in so doing. ⁹ On the basis of its examination of the legislative history, the Moore court concluded that "Congress did not countenance in Section 1623(d) the flagrant injustice that would result if a witness is permitted to lie to a judicial tribunal and then, upon only learning that he had been discovered, grudgingly to recant in order to bar prosecution." ¹⁰

We must keep in mind several basic principles that relate to the construction of criminal statutes: A federal criminal statute should be construed narrowly in order to encompass only that conduct that Congress so intended to criminalize. Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979); United States v. Dudley, 581 F.2d 1193, 1197 (5th Cir. 1978). Although a criminal statute must be strictly construed, it must not be construed so strictly as to defeat the clear intention of the legislature. Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498...