United States v. Thayer

• Citation: 214 F. Supp. 929
• Decision Date: 19 February 1963
• Docket Number: Crim. A. No. 16839.
• Parties: UNITED STATES of America, Plaintiff, v. Sylvester A. THAYER, Defendant.
• Court: U.S. District Court — District of Colorado

214 F. Supp. 929

UNITED STATES of America, Plaintiff, v. Sylvester A. THAYER, Defendant.

Crim. A. No. 16839.

United States District Court D. Colorado.

February 19, 1963.

Lawrence M. Henry, U. S. Atty. for Dist. of Colorado, Michael C. Villano, Asst. U. S. Atty. for Dist. of Colorado, Denver, Colo., for plaintiff.

Peter James Little and Richard D. Law, Denver, Colo., for defendant.

DOYLE, District Judge.

By Indictment returned on February 27, 1962, defendant was charged with six counts of perjury. The allegations common to all the counts are: that on April 19, 1961, Thayer appeared before a competent tribunal, the United States Securities and Exchange Commission, acting through a competent officer, and was administered an oath; that an inquiry was then being conducted concerning the activities of the Mount Olympus Beryl-Yltrium-Fluorspar Mining Corporation; and possible violations of the Securities Act of 1933 and of the Securities Exchange Act of 1934.

The indictment further alleges that it was material to the investigation to ascertain whether the defendant knew of the offer and sale of securities of the Mount Olympus Corporation and whether he had made representations to prospective purchasers of stock and induced other persons to offer and sell this stock. Further allegations are that the defendant appeared before the officer of the Securities and Exchange Commission and testified falsely.

Count I described the alleged false testimony as arising from the question whether the defendant told a Mr. Cordova that this company would pay dividends of twenty-two cents ($0.22) a year on the first of the year. Defendant denied that he had made any such representation and then launched into an immaterial explanation.

Counts II through VI inclusive, are substantially similar to Count I, except that each of these latter counts specifies a particular question which was asked the defendant and quotes also his answer, which in each instance is a denial.

At the conclusion of the case Count IV of the Indictment was withdrawn. The jury returned verdicts of guilty as to Counts I, II, III and V. A verdict of not guilty was returned on Count VI.

Defendant has now filed a motion for a new trial which questions: 1) the sufficiency of the authority of the officer of the Securities and Exchange Commission who made the investigation on which the indictment is predicated; 2) the materiality of the questions asked; 3) possible prejudice of the jury; 4) adequacy of the warning which the officer gave the defendant prior to his testimony.

There have been oral arguments and at the conclusion of this hearing the Court was of the opinion that points 1, 2 and 3 described above, were without merit. Briefs were however requested, and later submitted by attorneys for the defendant and by the Government with respect to point 4.

The question posed is whether the defendant's rights under the Fifth Amendment have been violated as a result of which the evidence obtained which formed the basis for the prejury indictment was erroneously received at the trial. After having considered the briefs and after having studied other authorities it would seem that the question is somewhat broader than possible violation of defendant's privilege of self-incrimination and that the issue is also whether the methods employed in obtaining and reducing this testimony show unfairness which, quite apart from the prohibitions of the Fifth Amendment, render the evidence so obtained inadmissible.

The statements in question were developed during the course of a seventy-page statutory "deposition" which was taken on April 19, 1961. During the course of the inquiry the defendant was asked a great variety of questions. These dealt with circumstances of sale of the stock of the Mount Olympus Company, the operation of the company, its assets; but in addition, the defendant was asked questions concerning his participation in the operation and promotion of the company and also questions concerning his personal affairs. Interspersed in this other testimony were the pinpoint questions which formed the basis for the present perjury prosecution. Although the defendant was not represented by counsel at this hearing, he was advised of his right to have counsel and he declined the offer which was then made to call his attorney. There was an extensive admonition to the effect that he need not say anything which would tend to incriminate him, and his attention was called to the fact that the testimony which he was about to give would be sworn testimony, and he was told that the giving of false answers would be perjury "which offense carries serious penalties."

The attorney who conducted the inquiry testified at the trial. He identified the alleged statements as sworn testimony which had been given before him. He further testified that on March 14, 1961, the witness had also been called in for examination. On this occasion according to the witness, there were discrepancies between the statement of defendant and the statement of other witnesses. The defendant was called in on April 19, according to the witness, to give him a chance to correct his earlier statements and to supplement them. The witness was then asked by the Court whether he was then anticipating a perjury prosecution. He replied: "I was not anticipating a perjury prosecution." He added that the purpose of the inquiry was to correct the testimony which had been previously given and so as to supplement it. He was then asked if he was then thinking of a perjury prosecution. He added, "It was discussed." He was then asked if that was going through his mind, and the answer was:

"It was going through my mind after the first transcript of testimony had been received. The perjury prosecution was not considered but the fact that the man may have perjured himself was considered in view of the fact that his testimony conflicted with other evidence that we had, and it was suggested to me, and I concurred in this discussion, that we attempt to find out in greater detail what Mr. Thayer said, what he did, how he did it, and give him an opportunity to clarify his earlier testimony in this respect."

He was then asked, "Did you call his attention to your suspicion that he had committed perjury prior thereto on his previous examination? Answer:

"I think I did call his attention, as I recall I called his attention to the fact that we weren't satisfied with the original testimony, that it appeared to be in conflict with other evidence that we had and that I was calling him back to ask him additional questions regarding certain matters, particularly regarding representations he had made regarding the part he had played in this selling of this stock and I advised him, as I have already testified, that a failure to give truthful answers, I first stated he would not have to answer, but if he gave false answers wilfully it would constitute perjury."

Further questions together with the responses given are quoted as follows:

"Q. But at that time you were not laying the ground work for a perjury prosecution?

"A. No, we didn't consider that until some time after the second transcript was available.

"Q. Although it had entered your mind?

"A. Not the prosecution of perjury but the fact that the perjury may have been committed — perjury is not an offense of which the SEC office usually —

"Q. I didn't ask you that.

"A. My answer to your question, we were not considering perjury until after the second transcript had become available."

From the record which is before the Court there are indications that the Securities and Exchange Commission was at least...