United States v. Tucker

• Decision Date: 23 July 1980
• Docket Number: No. CR 80-00065.,CR 80-00065.
• Citation: 495 F. Supp. 607
• Parties: UNITED STATES of America, v. George TUCKER, Defendant.
• Court: U.S. District Court — Eastern District of New York

495 F. Supp. 607

UNITED STATES of America, v. George TUCKER, Defendant.

No. CR 80-00065.

United States District Court, E. D. New York.

July 23, 1980.

COPYRIGHT MATERIAL OMITTED

E. R. Korman, U. S. Atty-E.D.N.Y., Brooklyn, N. Y. by John H. Jacobs, Exec. Asst. Dist. Atty., Organized Crime Strike Force, New York City, for U. S.

Giblin & Giblin by Richard J. Abrahamsen, Hackensack, N. J., for defendant.

MEMORANDUM & ORDER

PLATT, District Judge.

In a four-count indictment filed February 7, 1980, defendant George Tucker has been charged with making false declarations before a grand jury, in violation of 18 U.S.C. § 1623, and with various acts of obstructing justice, in violation of 18 U.S.C. §§ 873, 1503, and 1510.¹

Defendant has moved to dismiss all or parts of various counts of the indictment on the following grounds.

(1) He seeks dismissal of count 1, the false declarations count, on the ground that prosecution under § 1623 is barred by his purported recantation at a subsequent grand jury appearance and the operation of § 1623(d); on this point he also asserts that he is entitled to an evidentiary hearing at which the proof must be beyond a reasonable doubt.

(2) He seeks dismissal of the entire indictment on the ground that the indictment was returned by the same grand jury that heard his testimony on the occasion at which the alleged false declarations occurred and on the occasion of his claimed recantation; he asserts that he testified under immunity on both occasions, and that, consequently, the latter testimony cannot be used against him in this prosecution.

(3) He argues that the first three questions and answers and the last question and answer of the six alleged in count 1 to have been false must be stricken from the indictment on the ground that the answers were literally true.

(4) Finally, he contends that count 1 must be dismissed inasmuch as the questions posed were not material to the Government's investigation.

After a full briefing of these issues by the parties and oral argument, at which summary disposition was made of some of these and of other marginal issues,² the Court reserved decision. For the reasons stated below, we now deny defendant's remaining motions without a hearing.

I

Defendant's grand jury appearances stemmed from his involvement in the manufacture and interstate distribution of counterfeit tape recordings of copyrighted musical works by various well-known artists. That involvement led to an earlier indictment in this district for eleven counts of copyright infringement, 17 U.S.C. §§ 106(1), (3), 506(a), nine counts of interstate wire fraud, 18 U.S.C. § 1343, and one count of participating in a pattern of racketeering activity, 18 U.S.C. § 1962(c).³ On August 31, 1979, defendant entered a plea of guilty to two counts of the indictment— one wire fraud count and one misdemeanor copyright infringement count—pursuant to a Rule 11(e), Fed.R.Crim.P., agreement with the Government.

Defendant appeared before this Court for sentencing on November 21, 1979, at which time he made to the Government an offer of "unrestricted" cooperation in the continuing investigation into interstate trafficking in counterfeit records and tapes. Although the Government initially balked at the offer,⁴ this Court nonetheless adjourned sentencing until early January, 1980, so that any cooperation then forthcoming could be duly weighed.

Soon thereafter, the Government received independent information from a confidential informant that defendant had had a business relationship with one Norton Verner. Central to this relationship was defendant's alleged practice of manufacturing counterfeit eight-track tapes and selling them to Verner, who in turn would allegedly act as "middleman" in selling them to various retail outlets. Defendant had revealed nothing to the Government, either as part of his offer of cooperation or otherwise, about his relationship and dealings with Verner. Affidavit of John H. Jacobs, Executive Assistant, Organized Crime Strike Force for the Eastern District of New York, at 2, ¶¶ 4-6 hereinafter "Jacobs Affidavit".

Acting on this information, and seeking to make some use of defendant's offer to cooperate, the Government put defendant before the grand jury on December 6, 1979. The Government asserts that this appearance was central to its effort to "make a case" against Verner for his alleged sales of counterfeit tapes manufactured by defendant to Sam Goody, Inc., a retailer also currently under indictment in this district for counterfeit tape interstate transportation and distribution.⁵ Jacobs Affidavit at 2, ¶ 7. On the basis of this information linking Verner to Sam Goody, Inc., also supplied by the Government's confidential informant, and truthful testimony from defendant, the grand jury could have indicted Verner on that date, the Government asserts. Id.

Instead, the instant indictment alleges, defendant lied to the grand jury about his relationship with Verner. Testifying under informal "use" immunity, defendant gave the following responses to the following questions put to him at the outset of his appearance:⁶

1 "Q Do you know someone by the name of Norton Verner?

A Yes, sir.

2 Q Can you tell the jury who that person is?

A He is a man who owns a marina out in Long Island that I have been friendly with for about three or four years. He is in the music business for a lot of years. That is my only relationship with Mr. Verner.

3 Q Is he just a friend?

A Yes, sir, that is all he is.

4 Q Have you ever dealt with him in connection with the music business?

A No.

5 Q Have you ever sold him products?

A No.

6 Q Have you ever gotten products from him?

A No, sir.

Indictment CR 80-65, Count 1, ¶ 4. The indictment goes on to allege that the above testimony was false in that Verner met defendant on at least ten occasions to purchase at least 60,000 counterfeit tapes for approximately $80,000. Id. ¶ 5.

At his own request, defendant appeared before the same grand jury on January 3, 1980, to attempt to recant the relevant portion of his previous testimony pursuant to § 1623(d). This time he testified under a "waiver of immunity," that is, according to the Government, with full understanding that anything he testified to could be used against him in a prosecution for perjury or contempt. Grand Jury Minutes, Jan. 3, 1980, at 2. He stated, in response to proper questioning, that his answers to questions 2 through 5 above had been false.

II

Section 1623(d) provides in full as follows:

"Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section § 1623(a) if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed."

This section, enacted as part of the Organized Crime Control Act of 1970, Pub.L. 91-452, Title IV, § 401(a), 84 Stat. 932, was intended to serve "as an inducement to a witness to give truthful testimony by permitting him voluntarily to correct a false statement without incurring the risk of prosecution by doing so." 1970 U.S. Code Cong. & Admin.News, pp. 4007, 4023, 4024; United States v. Del Toro, 513 F.2d 656, 665 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). As such, it marked a departure from prior federal law, which had long held that the crime of perjury was complete as soon as the false statement was made, United States v. Norris, 300 U.S. 564, 57 S.Ct. 535, 81 L.Ed. 808 (1937), and that a subsequent recantation was only relevant to the extent that it showed the lack of intent to commit perjury.⁷See United States v. Kahn, 472 F.2d 272, 283 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). We note that the latter is still the law with respect to the general perjury statute, 18 U.S.C. § 1621, which § 1623 was meant to "supplement, not supplant," and then only with respect to false statements before courts and grand juries.⁸ S.Rep. 91-617, 91st Cong., 2nd Sess. 109 (1969); see Kahn, supra, 472 F.2d at 283 n. 8.

The act of recantation, standing alone, is not a complete bar to prosecution under § 1623(d), however. The section contains a two-pronged timeliness requirement which must be satisfied at the time recantation is made. Prosecution is barred only if, at the time of recantation, the false statement "has not substantially affected the proceeding, or"—and the "or" is critical to a proper construction of the section—"it has not become manifest that such falsity has been or will be exposed." Since there is no dispute here that the other elements of § 1623(d) are satisfied—defendant clearly did admit that his prior testimony was false, and he did so in the "same continuous . . . grand jury proceeding"—the only major issue with respect to his first motion is whether the two-pronged timeliness requirement has been met.

Defendant argues that the Government must prove beyond a reasonable doubt that his recantation was too late in both respects before the prosecution may proceed. That is, the Government must prove that the grand jury proceeding had been substantially affected and that it had become manifest that his false statements had been or would be exposed. He bases this position on the plain meaning of the section and the argument that the express legislative intent would be frustrated if only the first part of the requirement need be satisfied and not the second, inasmuch as the first is a matter wholly within the knowledge of the Government. No witness, he argues, would be induced to recant if he could only do so if he knew that the grand jury had not been substantially affected, a matter which he would have no way of knowing in view of the secrecy which surrounds grand jury proceedings.

The Government responds by asserting that no ...