United States v. Ruggiero, 418

Citation472 F.2d 599
Decision Date23 January 1973
Docket NumberDocket 72-1954.,No. 418,418
PartiesUNITED STATES of America, Appellee, v. Joseph RUGGIERO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

COPYRIGHT MATERIAL OMITTED

Herald Price Fahringer, Buffalo, N. Y. (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., of counsel), for appellant.

Harold F. McGuire, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John P. Cooney, Jr., Richard Ben-Veniste, Richard J. Davis, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before LUMBARD, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

The principal issue upon this appeal by Joseph Ruggiero from a judgment convicting him, after a jury trial, of giving false testimony before a federal grand jury in violation of 18 U.S.C. § 1623,1 is whether he was denied a fair trial by reason of the failure to turn over to him a transcript of the testimony of certain other witnesses before the grand jury. Ruggiero contends that the refusal of the government to disclose the testimony and of the trial court to direct such disclosure constituted a suppression of exculpatory evidence in violation of his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree and, finding no merit in the other grounds advanced by appellant, we affirm.

The prosecution of Ruggiero, a politically active attorney, former law chairman of the New York County Republican Party and counsel to the New York State Racing Commission, arises out of testimony given by him on March 4, 1971, before a federal grand jury with respect to the purpose of a $2500 cash payment received by him in 1967 from Herbert Itkin, later a government informer, in the presence of James Marcus, former New York City Water Commissioner, and Charles Rappaport, an associate of Itkin. The indictment also charges Ruggiero with giving false testimony as to his familiarity with the name of one Jack McCarthy, a "labor consultant" to Carey Transportation, Inc. ("Carey"). The government contended and introduced evidence at trial to show that the $2500 payment was an installment of a larger sum furnished by McCarthy on the understanding that Ruggiero would pay over the $2500 to a member of the New York State Public Service Commission, James Lundy, to obtain the denial of an application by Brown Limousine Service ("Brown"), Carey's competitor, for authority to operate buses for air crews and passengers in and out of Kennedy Airport. The substance of Ruggiero's testimony, later repeated by him at trial, was that he received the $2500 solely as a fee for his own services in exerting his influence and that of Vincent Albano, Chairman of the New York County Republican Party, upon Lundy.

To understand the issues, including the significance of the specific grand jury testimony of Ruggiero which formed the basis of the prosecution, a brief summary of those facts which the jury was entitled to find from the evidence is essential. The drama opens in February or March of 1967 when Marcus and Itkin were approached by Jack McCarthy, Carey's "labor consultant," who inquired whether the Brown application could be blocked. McCarthy indicated that "there'd be $10,000 available if it could be stopped." After a preliminary approach by Itkin to Ruggiero, a meeting was held between McCarthy, Itkin, Marcus and Thomas Sheridan, an attorney for Carey, at which the details of a plan to achieve the objective in return for $10,000 were discussed. Itkin and Marcus then met with Ruggiero, who agreed to see Lundy about the matter of stopping the Brown application but expressed annoyance at their having fixed the price "before you found out how much it will cost in Albany, what Lundy will charge?" In a further talk with Itkin, Ruggiero insisted that he needed $7500 to carry out the scheme, saying "You can't pay off a commissioner a few hundred dollars. Now either get me the money or forget the deal." After talking with McCarthy, Itkin agreed to pay the $7500 demanded by Ruggiero.

A few days later Itkin and Marcus, this time joined by Rappaport, met again with Ruggiero. Thereupon Itkin passed $2500 in cash in an open envelope to Ruggiero. Itkin, urging Ruggiero to be successful, advised that Jack McCarthy was "on my neck," to which Ruggiero replied that he had dealt with "McCarthys" and would fulfill his part of the deal. However, the scheme failed. In June of 1967 the Public Service Commission granted the Brown application to the extent of awarding it the right to transport passengers by bus from Kennedy Airport, and crews by bus from major New York City airports, to designated nearby hotels.

McCarthy complained about the Public Service Commission's decision and demanded the return of the money. Ruggiero countered that he was entitled to the balance of the $7500. Though a meeting between Ruggiero and McCarthy never materialized, Ruggiero did meet with Sheridan who demanded the return of all monies. The matter ended in a stalemate.

On March 4 and 9, 1971, Ruggiero testified before a federal grand jury. The following questions and answers formed the basis of the three counts of the indictment here under consideration, on which he was found guilty:

"COUNT ONE
"Q. When Mr. Itkin originally told you how much money would be available, did you tell him that was not enough, because money had to be paid before you could do anything to block Brown? A. No, sir.
"Q. Did you ever suggest anything like that, that it was not enough, because money had to be paid before you could do anything to block Brown, — to Mr. Itkin, Mr. Marcus or Mr. Rappaport? A. Absolutely not.
"Q. Did they ever ask you to pay anybody any money to block the Brown Company? A. No, sir.
"Q. Was there ever any understanding between any of the four that I\'ve mentioned, — yourself, Mr. Itkin, Mr. Rappaport or Mr. Marcus, — for you to receive money to pass on, so that Brown Brothers would be blocked? A. No, sir.
"COUNT TWO
"Q. Did you also promise that Mr. Albano would speak to Comm. Lundy, was that part of your arrangement? A. I think it was understood that I was going to speak to Mr. Albano. In fact I think they asked me to speak to Mr. Albano, because frankly, on my own I didn\'t know Mr. Lundy that well to just call him up and speak to him.
"Q. To say in Layman\'s terms, you were being paid the twenty-five hundred dollars to exert your influence, is that correct, and the influence of Mr. Albano? A. I would have to say yes to that, Mr. Ben-Veniste.
"COUNT THREE
"Q. Do you know an individual by the name of Jack McCarthy? A. No, sir.
"Q. Ever heard the name before? A. I only read the name in the papers, if it\'s the same individual.
"Q. Ever had a conversation with Itkin in which he mentioned the name of Jack McCarthy to you? A. Not that I recall.
* * * * *
"Q. Did you ever have a conversation with Charles Rappaport in which he mentioned the name Jack McCarthy to you? A. Not that I recall.
* * * * * *
"Q. Did Mr. Itkin ever tell you that Mr. McCarthy was involved in that matter? A. No, I don\'t remember the name McCarthy until all of this was over with."

On June 14, 1972, after a five-day trial before Judge Ryan, the jury returned verdicts of guilty on the three counts and acquitted Ruggiero of charges in a fourth count. On August 17, 1972, Judge Ryan sentenced Ruggiero to concurrent terms of one year and a day on each of the three counts, from which judgment this appeal was taken.

I. The Brady Point

Both before and during the course of the trial defense counsel moved for production of exculpatory information in the government's possession, including any exculpatory grand jury testimony. The application was denied except for Ruggiero's own grand jury testimony.2 Ruggiero contends that since Lundy presumably testified before the grand jury that he had not received any money from Ruggiero, Lundy's grand jury testimony would corroborate Ruggiero's own testimony that he did not receive the $2500 "to pass on," and that Sheridan's grand jury testimony would presumably corroborate other aspects of Ruggiero's story. Therefore, Ruggiero argues that denial of access to the transcripts of the grand jury testimony of Lundy, Sheridan and Vincent Albano,3 none of whom was called by either side or testified at the trial, infringed his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This claim requires a review of the principle established by Brady.

In Brady the Supreme Court was faced with a prosecutorial suppression of crucial exculpatory evidence. Brady, charged with first degree murder, admitted his participation but asked the jury to return a verdict without capital punishment because his co-defendant Boblit had actually done the killing. The prosecutor, when requested by Brady to examine his co-defendant's several pretrial statements, purported to make them all available but withheld the one that was most important for Brady's defense, a statement by Boblit admitting that he, rather than Brady, committed the homicide. Brady was found guilty of first degree murder and sentenced to death. The Supreme Court condemned the "suppression of this confession as a violation of the Due Process Clause of the Fourteenth Amendment." 373 U.S. at 86, 83 S.Ct. at 1196.

In a recent case, Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), the Supreme Court reiterated that "the heart of the holding in Brady is the prosecution's suppression of evidence, in the face of defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment." (Emphasis supplied). In the context of the Brady requirement "any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense." Giles v. Maryland, 386 U.S. 66, 96, ...

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