United States v. Allison

• Decision Date: 02 February 1973
• Docket Number: No. 72-1454.,72-1454.
• Citation: 474 F.2d 286
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy P. ALLISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 286 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Roy P. ALLISON, Defendant-Appellant.

No. 72-1454.

United States Court of Appeals, Fifth Circuit.

February 2, 1973.

John C. Ciolino, George M. Leppert, New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Patrick C. McGinity, Mary Williams, Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before RIVES, WISDOM and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case involves the use of a defendant's grand jury testimony by the prosecution in its case in chief against him in a criminal trial. Because we find no theory of evidence that will support the admission of the entire 160 page transcript of the testimony given by defendant before the grand jury, we reverse and remand for a new trial.

Defendant Roy P. Allison, a Police Juror of St. Tammany Parish, Louisiana supervised the parish clean-up work necessitated by the devastation of Hurricane Camille in 1969. Because the parish had been declared a disaster area, the United States Government reimbursed the parish for clean-up expenditures. In a two count indictment, Allison was charged (1) with conspiring to defraud the United States, in violation of 18 U.S.C.A. § 371, by submitting to the St. Tammany Police Jury accounting statements that fraudulently overstated the amount of labor, time, equipment, and personnel employed in cleaning hurricane debris from the public roads of the parish, and (2) with knowingly and willfully submitting a false accounting to the United States Corps of Engineers, in violation of 18 U.S.C.A. § 1001. He was found guilty by a jury on both counts and was sentenced to two years in prison on each count, with the sentences to run consecutively.

The procedure the Government followed in this case appears to be novel. At the trial, early in the presentation of the Government's case, two prosecuting attorneys read into evidence, before the jury, the complete transcript of Allison's testimony before the grand jury, one attorney representing the United States Attorney, and the other representing the answering defendant Allison. The transcript was replete with prejudicial and irrelevant evidence. In rapid-fire fashion, Allison was several times asked complex, multifaceted questions about his hurricane clean-up activities but was not given time to answer. In response to many other questions from the United States Attorney, Allison frequently replied that he did not know or did not remember the requested information. All of this testimony — the unanswered questions and the answers that revealed nothing but uncertainty, lack of knowledge, or failure of memory — was read to the jury.

The harmfulness of this procedure is readily apparent. Without regard to any answers which he may have given that would tend to prove some relevant fact at issue in the trial, it gave the Government an opportunity to put before the jury many questions left unanswered by Allison, questions that may have been improper and objectionable in an adversary proceeding, and to demonstrate to the jury Allison's uncertainty and inconsistency as to information that was either irrelevant, or, if relevant, could not be proved by his answers. Much of the testimony would have little probative force except to prove Allison's uncertainty about facts that the Government thought he ought to be certain about. This approach to the use of the testimony was revealed on oral argument of this appeal when the Government argued that the testimony "was put into evidence to show how he could not remember various relevant facts, was inconsistent, etc." and that the "grand jury testimony showed how uncertain Allison was about many aspects of these transactions."

At the threshold, it is quite apparent that whether or not Allison knew or could remember particular facts, or was uncertain or inconsistent, at the time he testified before the grand jury, is fundamentally irrelevant to the Government's case in chief. Allison's behavior before the grand jury is simply not logically connected to, and can therefore have no bearing upon, the ultimate proof required of the Government. His demeanor and his ability or inability to answer the questions propounded to him by the United States Attorney have no probative value for proving he committed the crimes charged. The Government has cited no case which states otherwise, either by explicit holding or by dictum.

Whether the grand jury testimony could be used in rebuttal to impeach Allison's trial testimony need not be decided here. Allison had not testified when this evidence was admitted, and we are persuaded that his decision to testify at the trial may have been precipitated in part by the harmful implications of his grand jury testimony or, in view of the unanswered questions, his lack of testimony.

The controlling issue in this case is that of relevancy. Allison makes no broad attack on the general admissibility of grand jury testimony. He does not argue that the testimony was inadmissible because it was secret. The Government, though, argues as if the decision as to secrecy or nonsecrecy under Rule 6(e), F.R.Crim.P., determines admissibility. Such reasoning amounts to a legal non sequitur. Simply because evidence may be disclosed under Rule 6 (e) does not make it otherwise admissible. Further, he admits that the hearsay rule does not prevent the admission of grand jury testimony for impeachment, as an admission, or for the purpose of proving perjury. Under proper circumstances, grand jury testimony may be admitted under the prior reported testimony exception to the hearsay rule. See 2 F. Wharton, Criminal Evidence §§ 470-92 (12th ed. 1955); C. McCormick, Evidence §§ 230-38 (1954). Finally, the case has no self-incrimination ramifications. Because Allison testified...