United States v. Hockenberry, 72-1425.

Citation474 F.2d 247
Decision Date21 February 1973
Docket NumberNo. 72-1425.,72-1425.
PartiesUNITED STATES of America v. James D. HOCKENBERRY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Louis Lipschitz, Philadelphia, Pa., and Stanton D. Levenson, Watzman, Levenson & Snyder, Pittsburgh, Pa., for appellant.

Richard L. Thornburgh, U. S. Atty., James A. Villanova and Kathleen K. Curtin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

Before SEITZ, Chief Judge, and HASTIE and HUNTER, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

James Hockenberry, a former county detective, has taken this appeal from his conviction of making a false material declaration under oath before a grand jury in violation of the recently enacted section 1623 of Title 18, United States Code. 84 Stat. 932. Hockenberry had testified before the grand jury only under judicial compulsion after he had been granted immunity under section 2514 of Title 18, United States Code. We must decide whether the trial judge committed reversible error in admitting into evidence against the accused at his perjury trial a truthful statement he had made to the grand jury on the same occasion as the alleged false statement but unrelated to it.

The indictment charged Hockenberry with falsely swearing to the grand jury that he had no knowledge of or connection with bribes or payoffs to county detectives by persons engaged in unlawful gambling and prostitution. At his trial he took the stand in his own defense and denied any such knowledge or connection. In an effort to discredit him as a witness, the prosecution cross-examined him, over objection, about other unrelated parts of his testimony before the grand jury. Part of the cross-examination was as follows:

"Q. Well, do you recall appearing before the Grand Jury on the 16th of March, 1971, and my questioning you about certain returns on search warrants that you have executed under oath?
"A. I recall that, yes.
"Q. You do recall?
"A. Yes.
"Q. Do you recall testifying that there were at least two instances that you had executed a sworn return on those search warrants, and the information in it was false?"

Then, after an objection had been overruled, the prosecution read two excerpts from Hockenberry's grand jury testimony in which he admitted that on occasion, in the course of his work as a detective, he had signed affidavits wherein he falsely asserted personal knowledge of facts upon which search warrants were being sought.

It was the contention of the prosecution that appellant's admission before the grand jury — stating that on occasion he signed false affidavits to obtain search warrants — could be introduced to impeach him as a witness. The prosecution reasoned that this evidence was relevant and competent to show a "pattern of deceit" and thus discredit Hockenberry's denial at trial that he had lied to the grand jury about the unrelated matter of accepting bribes from criminals.

Assuming that the law of evidence would permit such impeachment, there is a separate question whether this use of admissions made before the grand jury violated the immunity under which the admissions had been compelled. Hockenberry originally had refused to testify before the grand jury, claiming Fifth Amendment privilege. He then was granted immunity under 18 U.S.C. § 2514 and ordered to testify. The admissions here in question were part of that testimony.

After prescribing a procedure for compelling testimony, section 2514 continues as follows:

". . . No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section."

In this case appellant's statements before the grand jury, truthful admissions of prior wrongdoing compelled under grant of immunity, certainly were used against him, since they were used to impeach his credibility as an accused person testifying in his own defense. Attempting to justify this disallowance of immunity, the government has found it necessary to argue that the use made of Hockenberry's otherwise immunized testimony comes within the exception stated in the above quoted concluding provision of section 2514. The government reads that exception as meaning that, in a prosecution for perjury allegedly committed in the course of testimony required pursuant to section 2514, the statutory immunity does not cover either the allegedly false...

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16 cases
  • United States v. Turk, 74-3626.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 8 Marzo 1976
    ......Turk relies on United States v. Hockenberry, 3 Cir. 1973, 474 F.2d 247, which held that an immunized witness' truthful statement to a grand jury could not be used to impeach him as a witness ......
  • U.S. v. Tramunti, 1102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Julio 1974
    ...and properly found to be inadmissible in the subsequent perjury proceeding. The distinction is clearly drawn in United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), which cites Kastigar and which emphasizes that the immunity is for truthful But quite apart from any question of self-in......
  • U.S. v. Apfelbaum, 77-2427
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 10 Agosto 1978
    ...in this court's precedents, See United States v. Frumento, 552 F.2d 534, 542-43 (3d Cir. 1977) (en banc); United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), we hold that grand jury testimony which is compelled under a grant of immunity may be utilized only as the Corpus delicti of a......
  • U.S. v. Frumento, 76-1251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 Marzo 1977
    ...threat of a perjury prosecution, as it is implicated in half of Pisciotta's supposed dilemma, is real enough. In United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), this Court held quite apart from any question of self incrimination, a witness who testifies before a grand jury is req......
  • Request a trial to view additional results

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