United States v. Barson

• Decision Date: 06 November 1970
• Docket Number: No. 26660.,26660.
• Citation: 434 F.2d 127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph BARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 127 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph BARSON, Defendant-Appellant.

No. 26660.

United States Court of Appeals, Fifth Circuit.

November 6, 1970.

Daniel S. Pearson, Robert C. Josefsberg, Pearson & Josefsberg, P. A., Miami, Fla., for appellant.

Lloyd G. Bates, Jr., Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before PHILLIPS,^* BELL and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

We review on direct appeal conviction and sentence after trial by jury of knowingly making false statements to a federal savings and loan association. Title 18, U.S.C., Section 1014.¹ Appellant asserts two grounds of error on appeal: (1) the district court's denial of appellant's motion for examination of the grand jury testimony of three government witnesses, after their direct testimony at trial, for purposes of cross-examination; and (2) the district court's admission into evidence of business records produced by a person who was not the present custodian of those records.

The facts are not in serious dispute. In 1964 appellant, as president of Parkview Construction Company, (Parkview) asserted in a document entitled "Contractor's Affidavit for Final Payment" that all lienors (subcontractors) and suppliers of labor and materials for specified residences had been paid, in order to influence Dade Federal Savings and Loan Association (Dade Federal) to make final payments of construction loans to the company. In fact there were outstanding unpaid bills on the specific jobs referred to in the indictment. The only real issue at trial was whether appellant acted with a specific intent to mislead, deceive or cheat for the purpose of financial gain. Appellant's defense was largely a contention that he as president of a large construction company could not be charged with knowing, with respect to specific residences, whether there were bills owing to materialmen at the time when the final payment of the loan was applied for and made.

Two of the government's witnesses were Bernard Herris, the office manager at the time of the alleged false statement, and Norman Rachlin, the company's accountant. The false statements were made in early 1964. Grand jury testimony was taken in 1966, eighteen months prior to the trial. At the conclusion of Herris' testimony at trial, and prior to the completion of cross-examination, appellant moved for the production of the witness' grand jury testimony. The district court denied appellant's motion, but agreed to inspect the grand jury testimony in camera, treating it as a special case because the witness was from out of town. After inspection the court concluded there was no inconsistency between Herris' trial testimony and his grand jury testimony. On that basis he refused to require disclosure of the grand jury minutes.

Appellant made similar demands at the close of the direct examination for inspection of the grand jury testimony of the accountant Rachlin and of Laurant Wheldon, the F.B.I. agent who led the investigation of Parkview's and Barson's affairs. As to these witnesses the court refused to inspect their grand jury testimony in camera, and likewise refused to make it available to appellant without prior court inspection. Appellant contends denial of these motions constituted reversible error.

Appellant also complains that the "Contractor's affidavits for Final Payment" containing the alleged false statements should not have been received in evidence. The former official of Dade Federal through whom these documents were admitted testified that they were in his control in 1964 and were made under his supervision and in the regular course of business. However, at the time of trial the witness was no longer employed by Dade Federal and had not been so employed for five years.

INTRODUCTION OF BUSINESS RECORDS

The several "Contractor's Affidavit for Final Payment", containing the alleged false statements, were introduced through a witness who supervised their making and was custodian of them at the time they were executed. He testified that they were made in the regular course of the association's business and that he left the file such as it was when he left the employment of the association. The testimony on its face satisfies the requirements of the Federal Business Records Statute, Title 28, U.S.C., § 1732, for admission of business records. However, appellant argues that implicit in the statute is the requirement that the person producing the records be the present custodian of them.

The Second Circuit has held that the actual custodian need not testify where the requirements of the statute have been satisfied. United States v. Dawson, 2 Cir. 1968, 400 F.2d 194. Cf. United States v. Grow, 4 Cir. 1968, 394 F.2d 182; Carroll v. United States, 9 Cir. 1963, 326 F.2d 72. We believe that the view of the Second Circuit is sound and we follow it here and conclude that the point is without substance.

DISCLOSURE OF GRAND JURY TESTIMONY

Appellant maintains that under Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, a showing of "particularized need" is no longer required for inspection of grand jury testimony.² The D.C. Circuit and the Second Circuit have so held with respect to government witnesses. Harris v. United States, D.C.Cir. 1970, 435 F.2d 74; Allen v. United States, D.C.Cir. 1968, 390 F.2d 476; United States v. Youngblood, 2 Cir. 1967, 379 F.2d 365. The Fifth Circuit, however, has previously rejected this position. White v. United States, 5 Cir. 1969, 415 F.2d 292; James v. United States, 5 Cir. 1969, 416 F.2d 467; Stassi v. United States, 5 Cir. 1968, 401 F.2d 259. We do not depart from that view here.

The First Circuit has read Dennis to hold that cross-examination is particularized need. Schlinsky v. United States, 1 Cir. 1967, 379 F.2d 735. The Tenth Circuit in a case involving a fourteen month delay between the government witness' grand jury testimony and his court appearance found Dennis to be controlling and granted defendant's motion for production of the grand jury testimony Cargill v. United States, 10 Cir. 1967, 381 F.2d 849. In the instant case the delay was eighteen months.

In Menendez v. United States, 5 Cir. 1968, 393 F.2d 312, we commented that in deciding whether a case has been made for disclosure of grand jury testimony, it is the better practice for the trial judge to inspect the grand jury testimony in camera. In Nolan v. United States, 5 Cir. 1968, 395 F.2d 283, while reiterating the traditional notion that disclosure of grand jury testimony is largely a matter of trial court discretion, we framed the bounds of that discretion in terms of the need for secrecy. There we stated that the motion for disclosure should be granted where there is little need for maintaining secrecy. In James v. United States, supra, we affirmed the denial of access to grand jury minutes where the trial court had reviewed the minutes in camera and had found no inconsistencies in the testimony. In Posey v. United States, 5 Cir. 1969, 416 F.2d 545, we also affirmed the denial of access to grand jury minutes; however, in that case the government had disclosed, in compliance with the Jencks Act, all statements it had received from the witnesses in question. The defendants in Posey were tried for violation of federal civil rights statutes in the murder of three civil rights workers near Philadelphia, Mississippi in June 1964. To a considerable degree, the emphasis in Posey is in terms of the need for secrecy (or non-disclosure) to protect the lives and safety of witnesses before the grand jury in the tense circumstances involved in that particular prosecution. Considering the totally different situations presented, problems of secrecy vis a vis disclosure involved in Posey have slight application here.

The policy of protecting individuals who have given information to the grand jury with respect to the commission of crimes is a wise one. But once the individual has been called as a witness at trial and his testimony made public, this...