United States v. Richard Ciambrone

FRIENDLY, Recognizing Before MANSFIELD and amphetamines. MESKILL, evidence Judges. Circuit wanted to obtain Government up in the chain of against higher someone

MANSFIELD, Judge: Circuit agreed, ques- after appellant distribution by Assistant U.S. tioning by agents and appeals Richard C. from a Dawson, cooperate to in Samuel judgment of of New the Eastern District against supplier, making a criminal case 8, 1978, May convicting York entered on course, hope, Harry Appellant’s Blasich. charg- him of three counts of an indictment charge against himself would was that ing making him with un- false declarations le- he would receive be reduced and that 1623(a)1 in der oath violation of 18 U.S.C. § During the niency from the court. discus- when he testified in December 1976 as a agents appellant was the DEA sions with witness in a criminal case before the same in if he should be successful advised that court in a case entitled United States leading indict- providing evidence to the Blasich, Harry No. 76 536. Cr. required to ment of Blasich he Ciambrone was after a convicted anticipa- against Blasich and that in testify trial before His Thomas C. Platt. possibility tion of a the Government such principal contentions here are that the in- by offering him prepared protect was to against dictment him should have been dis- in its opportunity participate him the to (1) missed because misled the Program, which Witness Relocation under grand jury by failing which him to indicted family would be moved Ciambrone and response grand jurors’ questions reveal in housing, provided with city to another and had been coerced threats find opportunity and an a different name against his giving alleged per- life into job. jurious testimony at the Blasich and outset, under the sur- proceeding At the (2) the district court refused to order the agents, appellant DEA went veillance of recording proceedings of the before the methamphetamines his home and obtained grand jury, including all remarks to the kept and turned them over there Attorney. appel- Assistant U.S. In addition being fitted April DEA. On after (1) lant claims that the district court erred recorder, body tape he success- out with a refusing in to direct acquisi- fully negotiated purchase and disclose identity of an informer who had methamphetamines pounds tion of two reports against ap- advised it of of threats Blasich, subsequently who was indict- from pellant before he testified in the Blasich negotiation ed for this transaction. case, (2) in its instructions to the re- place in of the narcotics took transfer garding appellant’s duty notify law en- after Blasich Ciambrone’s automobile forcement regarding any authorities Brooklyn Belt driven it onto and off threats, (3) failing in to state its rea- maneuvers Parkway, engaging in several imposing sons for five-year sentence. We against detection. Im- designed protect affirm. and Blasich mediately before Ciambrone appellant’s agents inspected case arose out of DEA took off in the auto Harry Upon Ciambrone’s involvement with Blasich in the dis- the interior of the car. tribution of motor safari methamphetamines. On Janu- return from his brief knowingly 1623(a) provides pertinent part 1. Section of the United any . follows: material declaration makes $10,000 more than or im- shall be fined not “(a) Whoever under oath ... years, prisoned or five both.” not more than proceeding ancillary before or court two-pound bag helped Blasich him as informant who had found methamphetamines in the trunk of his obtain evidence Blasich and stated car which had not been there at the time of agents.” that he would “screw the There- inspection. the earlier Ciambrone said he upon plead guilty he withdrew his offer to agreed buy drug from Blasich January drug conspiracy charge, $11,000 put and that Blasich had charge acquit- went to trial on and was package This trunk. evidence ted on December by the tape corroborated extent being Upon called the Government to by appellant recorded statements during at the trial the week testify Blasich pur- regarding the amount of the appellant, taking of December price chase and the door. slam trunk attitude, “cocky, arrogant” advised Assist- However, tape ambiguous regard- Kramer, who was in ant U.S. ing subject matter transaction case, going charge of that that he was because Blasich and Ciambrone used the tape-recorded that his conversations “turquoise” amphetamines term of instead con- April with Blasich in 1976 had been drugs. paid or Three days later Ciambrone turquoise purchase cerned with the of $11,000 purchase Blasich toward the $800 methamphetamines. stones and not with price. had not He further told Kramer that he appellant Thereafter became disenchant- any a way. in As witness threatened ed with role. He slackened in his collab- by called the Government at the Blasich agents, oration with the DEA who he carried his own threat. After trial out perfect Blasich, seeking against the case being granted immunity deliberately he criticizing agents, refusing and took to gave effect testimony false material cooperate' indicating with them and re- pounds methamphetamine that the two of “being sentment pigeon.” labelled a stool purchased by him hydrochloride allegedly 12, 1976, April from Blasich on had been When DEA September learned in planted upon Agent Chellino by him DEA that it would be over required tura state, with when he returned tapes instructions to recording ap- Blasich’s counsel the Blasich, pellant’s negotiations he April from his with that purchase drugs Blasich, Harry package from had “received this from Bla- again sought ap- to induce pellant Appellant falsely sich.” testified to be further program relocated under its negotiated in Blasich but he that he fact had with refused. In October the DEA purchase turquoise was for the of stones. told FBI one of that its infor- Weinstein, case mants before whom the Blasich appellant had learned had been concluded, being tried, there was “Either emissaries, threatened two Blasich who mem- appellant told has been a crime committed that he would be care “taken per- has of” bers of the DEA this witness regardless after the trial or way of which jured directed the mat- Upon being himself.” He testified. with confronted investigated this ter be and that Ciambrone agents, b,e information appel- DEA custody overnight. lant held in denied that ever such threat had occurred.2 7, 1976, comple- December On before the

By November 1976 appellant coop- ceased tion of Blasich the Government erating Magistrate expressed complaint with He re- a DEA. filed a with U.S. sentment agency’s having charging violating at that with Title 18 identified Ciambrone Appellant expressed told “the the DEA his Probation Officer bull, thing -just plain ploy, trap whole on the it wasn’t true. the view that this was “a a was— ” “just get part Agent Vigna, get [appellant] . and that this DEA was scam to [appellant] [appellant] cooperate.” go to continue to in with and that “he Later back them” same October the agent FBI source DEA believe ... he didn’t believe advised the didn’t charge appellant’s genuine.” Again appellant (Vigna) in refused to case it was accept [appellant’s] “there a contract of its relocation serv- was out on life.” DEA’s offer Upon being confronted this with information ices. Assist- response, acting under duress.” testimony at by giving §

U.S.C. wrote a Attorney Bernard J. Fried released on bail ant U.S. trial. Ciambrone cash, Bramwell, copy of which Mishler as by Judge $500 letter to fixed $5,000. counsel, taking the recognizance bond of appellant’s personal was sent to Notwithstanding appellant’s false testimo practice of his it was the position that while guilty posses jury found Blasich ny all office to record methamphetamines with intent obligat- sion witnesses, was not the Government Shortly thereafter the Govern distribute. ed, decision United in view of this Court’s perjury seek a ment indicated that would 1973), (2d Peden, 472 F.2d 583 States v. appellant. On December indictment 27, He prosecutor. of a record the remarks arrested, again that, although a defendant further stated appear failure to before this time for appear before right had no Magistrate hearing and preliminary for a de- favorable or to evidence January parole. for violation of On would, fense, the Government support of an he submitted his affidavit practice usual accordance with our “in bail, reciting in detail the application for appear be- requests to when a defendant story cooperation with the DEA and of his . invite Jury, fore the Grand Blasich participation a witness in the Further- to do so. defendant Ciambrone point At this affidavit state trial. no did course, more, will, the Grand we advise gave any testimony at that he of the offense Jury of all the elements trial under duress or as the result for which an indictment offenses threats to his life.3 sought, and we will invite counsel counsel, 18, 1977, appellant’s January On to submit defendant Ciambrone At- upon being informed Assistant U.S. ap- may as he deem written instructions torney that the Govern- Lee A. Alderstein review, we concur propriate. upon If shortly presenting ment would be evidence of this submis- appropriateness with the respect perjury to a with to sion, presented the Grand it will be to charge, sought an from the court order Jury.” (1) directing to record all the U.S. any order direct- opposed letter Finally, the testimony rep- and remarks Government refrain Attorney to ing the Assistant U.S. resentatives, including prosecutor, in characterizing put before from evidence presentation of the case to the grand jury. (2) jury, characterizing to evi- refrain from 27, 1977, Judge Bramwell January On (3) grand jury, to advise dence An at- motion. the defendant’s denied grand jurors of all elements of the appeal by Ciambrone tempted interlocutory offense for which an indictment was to be February this court was denied to sought, including Appel- defenses. various was February evidence 1977. On attorney acknowledged lant’s that he had by Assistant U.S. presented possibil- discussed with the Government the returned grand jury which Adlerstein to a ity affording opportunity Ciambrone the Appel- against Ciambrone. the indictment testify to before the and that did not his counsel appear lant did the order was relevant to the defenses that Attorney any Assistant U.S. Ciambrone, present to the allegedly when he made for submission written instructions statements under oath at the Blasich (1) (2) grand jury. “believed them to be true” and “was by the part victim of mistreatment brone as the 3. The affidavit was devoted for the most arrest, Although history is made appellant’s mention to a earlier ar- Government. coop- danger if his rangements agents cooperate face that Ciambrone the DEA to with known, Blasich, does not obtaining the affidavit became and the eration evidence threats, agents’ alleged promises efforts actual violation of refer to later participate in the Wit- him to to induce to call Ciambrone as a witness or reveal “spe- (other Program in a identity persons. appears than Relocation to third The affidavit ness participate. jail,”) represent portray to or his refusal cial to a conscious effort to Ciam- present In Prior to trial of the case an effort to establish duress as a de- appellant, upon being furnished with fense, appellant requested the Government transcript portions relevant of the produce to who informant had advised grand jury proceedings leading to his in- appellant’s of the life. threats dictment, moved to dismiss indictment request ground was on the refused ground on the the Government had since the jeopar- informant’s life withheld evidence appellant threats identity revealed, dized if his despite inquiries by grand jurors as why Government was entitled to the in- invoke appellant would have lied oath “if under privilege, formant’s see Roviaro going taped,” knew he get to which States, 623, 1 L.Ed.2d Attorney responded Assistant holding After several camera appellant and Blasich were “friends” with- hearings request.4 Judge denied the Platt out advising reports jury of from Appellant did not in his own de- an appellant’s informant life had been fense. He testimony introduced aunt Judge threatened. Bramwell denied the during Thanksgiv- period between motion, stating that the Government was ing and 1976 she received a tele- Christmas not required speculate either regarding phone call from an male who unidentified going what on in appellant’s mind or to present stated that out possible defenses. The court had “ratted three fur- ther observed that no people,” relayed appellant. formal defense had which she interposed and that there was no rea- Platt instructed the that coer- son for the to indicate may legal cion or compulsion constitute a possible appellant’s credence in threats charged excuse to a defendant for crimes life. against him, (1) provided it is immediate case was tried before and likely to fear induce well rounded Platt support March 1978. impending bodily injury, serious death perjury charges the Government relied (2) opportunity there is not reasonable principally on the DEA escape committing the compulsion without agents regarding appellant’s coopera- initial crime, (3) has taken defendant tion, his brief trip automobile Blasich reasonable from steps extricate himself 12, 1976, on April from which returned danger. apparent deliberating After pounds methamphetamines, two jury attempted quali- twice to render which he said he had bought from Blasich concluding guilty, fied in sub- verdict of $11,000, tape recordings for trip of that assuming stance even the defendant and of payment April 15,1976, the down on fear perjury had committed because of for disaffection, Ciambrone’s his refusal to be life, his of ave- he had failed to make use relocated, repeated denials that he had jury nues criti- avoiding for crime. The threatened, testimony and his false at perju- cized the of the law to excuse failure the Blasich trial to the effect that he had ry avail- where the defendant believes that purchased pounds two of metham- able avenues not remove the threat would phetamines from merely but to his life. bought delivery turquoise and taken “qualified” stones The accept from Blasich court refused to after the DEA jury had induced him to that guilty, reinstructing frame Blasich. verdict of sought upon appellant’s Platt reactions and state mind resolve issue suggesting compromise parties as a that rather when he at Blasich trial testified might agree testify Ap- would than informant on whether he had been threatened. appel- pellant’s sugges- that there had been a threat bona fide counsel countered the court’s life, appellant lant’s two seeking made months before the Blasich in tion to have trial, capable regarding prosecutor’s which had come from a source in absence camera carrying appellant’s it out. The Assistant U.S. of the in- for identification need charge agree Understandably, of the case offered to denied former. this was genuine position threat was but took the Platt. validity depended of duress as a defense 622 and, finding charges supported absent taken reasonable had not

if the defendant cause, an indict- may not file protecting probable means available steps to use find that ment. Id. family himself and beyond case proved its the Government in grand jury possesses broad guilty him but doubt and find a reasonable power carry to enable it to out vestigative opportunity ex- reasonable if no such may compel production function. It this steps reasonable isted or he took all evidence and. as it considers himself, him. acquit then it must extricate by the technical appropriate, “unrestrained unqualified finally rendered an governing evidentiary rules procedural guilty. verdict trials,” United the conduct of criminal being Immediately prior sentenced 338, 343, Calandra, 94 v. U.S. States 1978, May, appellant volun- the court (1974); Cos 38 L.Ed.2d 561 S.Ct. the first time in an affidavit that teered for States, v. United tello July, two men in he had been threatened 406, 100 practi As a L.Ed. 397 S.Ct. he testified he and his son if however, heavily matter, lean it must cal die, that he did not advise the DEA Attorney as its in upon States the United agents of this threat because he did not to it legal vestigator and advisor them, perjured trust that he had himself at perform it needs for its such evidence as that he had testi- the Blasich it with function and to furnish ance of its fied at trial for fear of his own his own principles. Despite recent controlling legal safety. grand jury proc for revision of movements edure,5 obli presently is not DISCUSSION to a gated to search for and submit Appellant convic- first contends that his favorable to the defense evidence tion should be reversed and the indictment re negating guilt, when it has not been dismissed because the Assistant U.S. Attor- grand jury. United by the See quested ney presenting grand jury evidence to the Co., Ltd., F.2d v. Y. Hata & States when, jurors’ response misled it denied, 828, 97 (9th Cir.), cert. 429 U.S. inquiries, appel- he failed to advise it that (1976); United 50 L.Ed.2d 92 S.Ct. suggested lant had been threatened but in- 1133, 1135-36 (6th Ruyle, 524 F.2d States stead that to testi- was motivated denied, 1975), cert. fy falsely at the Blasich trial because of his (1976). “A 48 L.Ed.2d 175 S.Ct. friendship dispose with Blasich. To of this adversary hearing an jury proceeding is not contention, controlling le- review of a few the ac guilt or innocence of in which the gal principles helpful. v. Ca adjudicated,” cused landra, at supra, 414 The main function of a grand jury proceeding a probable is to determine whether or not 618. To convert one into a mini-trial investigative cause exists to believe from an that a crime has been committed, and, so, unnecessarily bur charges of the merits would be if to file wasteful, since, even if an persons reasonably as are be densome filed, the defendant Branzburg lieved to have it. v. indictment should be committed guilty 665, 686-87, 2646, only after a Hayes, guilty could be found 92 S.Ct. guilt indictment, jury trial in which plea 33 L.Ed.2d 626 An of or criminal course, beyond a reasonable doubt. was established merely charge is and does not a defend we have held that guilt. constitute of For this reason evidence right to pro ant not have a constitutional equally important duty has the does grand jury, before the tecting persons against appear personally or un- unfounded adopted Naftalis, Jury Jury ary; Reform 5. Resolution on Grand See Frankel and The Grand 94, (Hill 1975); by Dele- Wang House of American Bar Association & H.R. introduced on Sess., gates, August January Cong., 1977. into the 95th 1st by and referred to the on the Judici- Committee

623 Thompson, Function, 3.6, United ex rel. McCann v. States Justice —The Prosecution § (2d denied, Cir.), 144 604 F.2d cert. 323 pp. U.S. 90-91. (1944); L.Ed. Unit the Examining record before us in the Rosen, (S.D.N. F.Supp. ed v. States light principles of these we find that Assist- Y.1968). prospective Nor does a defendant ant responses Adlerstein’s right presently have the to cross-examine grand jurors’ inquiries regarding appel- grand jury. gener witnesses before the falsely lant’s motive for the testifying al, an indictment defective because Blasich misleading trial fall far short of the defendant have opportunity did not an deception conduct or that would for call present version the facts before dismissal the indictment the grand jury. the As Justice Black stated in case. it place In the first be noted must States, supra, Costello v. United 350 U.S. at the statements of the Assistant U.S. 363, 76 S.Ct. at 408: objects to which now “If indictments open were be held were attempting the made in course challenge on ground the there was confusing flurry ques- answer a of other inadequate incompetent or evidence be- simultaneously tions being (apparent- asked grand jury, fore resulting the the delay ly by grand jurors) during Agent different great be would indeed. result Vigna’s testimony, much which did not such rule would trial before on relate testifying to Ciambrone’s for motives the always merits defendant could in- falsely at the Blasich trial. Some of sist aon kind of trial preliminary instance, jurors’ questions, for dealt with competency determine the adequacy nature of information revealed of the evidence before grand jury. taped 12, 1976, April This record of Ci- required by Fifth Amend- ment. An negotiations, indictment ambrone-Blasich men- returned le- what gally constituted and unbiased tion was taped made on that record of ’ jury, like an information drawn narcotics, drugs methamphetamines, or how prosecutor, face, if on is enough valid its one turquoise could determine whether to call for trial on charge drugs package placed stones or were in the merits. The requires Fifth Amendment car, trunk of Ciambrone’s nothing more.” [Footnote omitted] charges pending against what Ciam- 100 L.Ed. taped negotiations, brone at the time of the and the like. hand, prosecu

On the other right tor’s to exercise some discretion and questions pertained Two to Ciambrone’s selectivity in presentation of evidence juror know “May motives. One asked we to a jury does not entitle him to tape? what was If Ciambrone engage mislead or to in fundamentally taped he obtain information? —did unfair tactics prosecutor, before it. The going Why would he lie if he he was knew instance, may not obtain an indictment on get taped?” juror’s questions sug- This the basis of evidence known to him to be gest clearly taped re- if record perjurious, Basurto, United transaction, vealed a narcotics (9th 1974), F.2d 785-86 Cir. lead stupid have been otherwise. ing it eyewit to believe has received course, Of as the and witness hearsay testimony, ness rather than clear, taped made did not refer record Estepa, States v. (2d 471 F.2d 1136-37 open- specifically drugs out an or make 1972). We would add that where a against and-shut case Ciambrone. any is aware of substantial evi sought question prosecu- The other should, dence negating guilt he in the inter tor’s justice, est of views as to Ciambrone’s motive for make it the grand known to jury, juror asked committing perjury. grand at least where A reasonably expected gain by ly- jury lead the not “What he to indict. See could [Ciambrone] Project ABA ing?”. replied, on for Criminal with the aid of Standards Adlerstein possible testimony, among as a defense others he Agent that “Mr. Ciam- cion” Vigna’s friends,” position Blasich who earli- brone and Mr. also had adhered taken other,” dealings “doing had been with each truthfully and er that Blasich had testified probably and that did not want Ciambrone Blasich suggested a defense that also as connection, Blasich, drug to see his Mr. con- capacity might have the mental lacked victed. mention commit the crime. In this context “coercion” of several alternative as one Nothing record us in the before indicates Adler- hardly have alerted defenses could Attorney Adlerstein Assistant U.S. rumors stein earlier third-hand was not his own view giving honest threats, had no especially if Adlerstein Ciambrone’s motive. record of the Bla- Indeed, Ciam- trial, knowledge reports. sich which had been examined having been presented part steadfastly Adlerstein and in had denied brone grand jury, testimony by threatened, contains Ciam- Assistant even when asked years brone that he known for 8 just had Blasich testi- before he Attorney Kramer basis,” a friendship they “on lived in falsely fied at the Blasich trial. same neighborhood, motorcycles rode Vigna advised True it is that had been together, and and dated that Ciambrone re- some months earlier information relationship would “characterize [his] layed from via the FBI to an informer 12,1976 April Mr. Blasich on . . [as] had been DEA to the that Ciambrone effect . associates in a friends —business threatened, Attorney and Assistant U.S. way, as bringing far as him me stones from early in Kramer had to the threat referred Arizona, (Tr. turquoise and also silver.” was December when bail set 52-53). 121) (at p. Blasich record also However, Mishler. view of Ciambrone’s Weinstein, contains a statement repeated and vehement denials presided who at the Blasich that he occurred, counter- threats had “did notice the talking defendant [Blasich] charge that was the rumor threats to the witness as the witness [Ciambrone] to induce falsity designed DEA “scam” or to, today. may therefore, left earlier I have Blasich, cooperate case against him to in the ” any prosecution. be witness in . . . to be and his the DEA offer refusal of There is no evidence that Adlerstein had relocated, justified have Vigna would apprised ever been of the information re- per- believing that Ciambrone had layed (October 1976) some months earlier jured coercion himself because from an unidentified FBI via informant fear. FBI to the DEA and to Assistant by hindsight say we Aided can regarding Kramer threats to 3,1977, February the record it existed on prospect Ciambrone. The that Ciambrone grand jury’s investigation, the date of the would claim that he falsely had testified (if have been wiser for Adlerstein because of threats did from Blasich threat) or actually knew of the rumored definitely materialize after the until Vigna the infor- to advise the February, filed the indictment if, as possible mation as But motive. attorney Ciambrone and his case, appears to Adlerstein have been furnished as with the tran- material § Vigna Ciambrone actually believed that script witnesses, of grand testimony of longtime had lied to friend save his including Agent Vigna. DEA Then Ciam- conviction, there narcotics connection from counsel, seizing brone’s upon Assistant U.S. stating in re- nothing improper in so Adlerstein’s answers to seeking juror’s question sponse jurors appar- in response inquiry, to their motive, with- view their as to Ciambrone’s ently theory decided to defend on the includ- possibilities, volunteering out other falsely testified because he Indeed, if, ing as Ciambrone coercion. representa- had been threatened indicated, they should his counsel both tives and feared for his life. Prior to had testified although attorney ground defend on that he had mentioned “coer- truthfully, Vigna important determining and mentioned the is an factor in do] grand of jury government present rumor threats to the as a whether the failed to motivation, possible might now exculpatory grand Ciambrone before the information claiming jury.”) be that the mention of if Lastly, threats was even the earlier-rumored misleading Vigna unless had told the entire presented grand threats had been to the history, including jury Ciambrone’s appears extremely unlikely, denial that light occurred, such threats had ever finding the later verdict fully unless explained guilty airing Adlerstein had full jury after considera grand jury defense, law regarding duress and tion of his belated that the duress grand coercion as defenses. jury would have failed to indict. We may reasonably la conclude since the appraising present Ciambrone’s petit jury ter charges before which prosecutor claim that grand misled the rejected were tried the duress and coercion jury motivation, as to his possible the fact ground defenses on the that Ciambrone had that Ciambrone had testify been invited to failed steps to take reasonable to extricate grand jury lawyer before the and his danger himself from and found Ciambrone been the opportunity accorded to submit his guilty perjury beyond a reasonable views or body strongly contentions to that doubt, grand jury surely would have negate tends deliberate omission probable charge found cause to him with or Vigna of the rumor of perjury. Any error would not therefore threats, always since it was possible that warrant dismissal of indictment.6 Com Ciambrone, attorney whose had been ad pare Co., Philips United States v. Petroleum place grand vised the time and (indictment (N.D.Okl.1977) 435 F.Supp. 610 jury sitting, appear attorney with his clearly testimony dismissed where tended to and assert they the coercion defense later negate guilt). to adopt. Mandel, chose United States v. 415 F.Supp. (D.Md.1976), Appellant’s convic next contention —that grounds, tion reversed on other the conviction must be reversed because Mandel, (4th 591 F.2d 1347 en Government’s failure to record the (“The 1979). fact the government grand tire re jury proceedings be —must gave the opportunity jected defendant assumption because of its erroneous [to government with a list of excul pros some remarks patory witnesses to be called before the ecutor were not recorded. The grand jury, which the transcript, appears defendant chose not which rec- to be full Moreover, colleague, Judge Estepa, In his supra, rep- dissent our esteemed decisions such as Friendly, proceeds assumption supervisory on the pow- resent exercise of court’s Adlerstein, Attorney when Assistant U.S. judicial processes ers over federal rather than February grand jurors’ quer- answered application direct right Fifth Amendment’s regarding giv- ies for Ciambrone’s motivation felony to indictment ing testimony, (Adlerstein) he knew that cases. Even if information known to another the FBI had been advised an informant in Assistant U.S. in the office the U.S. October 1976 that Ciambrone had threat- imputed the Eastern District representatives ened two Blasich or that Adlerstein, we do not think dismissal of the imputed knowledge could be to Adlerstein cir- indictment would be warranted under the States, Giglio under v. United Lacking this case. actual cumstances 31 L.Ed.2d 104 The record situation, knowledge of Adlerstein cannot contains no evidence that Adlerstein knew of charged prevarication or deceit. More- threats, reported much less that credited over, the blameworthiness of Government’s report notwithstanding vehe- Ciambrone’s conduct further reduced fact ment denials that the threats occurred. Absent was invited to before knowledge evidence of or deliberate miscon- or to submit instructions for it duct, dismissal is not warranted. deny- proceeding he that at the time of the Giglio. This case is unlike It involved the ing of the information he now claims the truth which, noted, fairness of a trial governed by as we have should have been made known exacting standards more far than jury. applicable grand jury proceeding. those to a

626

ord, prosecu- deny a fair trial. made Ciambrone Since includes remarks Bla- tor, made two of particular respect to threats were friends those made with Ciambrone, motive, who now to be mis- sich sat down Ciambrone’s claimed details position to furnish all leading. latter in a Moreover, his the Government to counsel. vigor Although the Government genuineness to offered concede the ously argues is not to rec required that it threat, to jury’s and later statements citing testimony, ord even our remarks or verdict, rendering its upon the district court Peden, decisions in United States v. 472 jury, it stated established that as 588, 1973); (2d F.2d 584 Cir. United States Platt, was “not convinced Judge note to Cramer, 210, (2d 1971), F.2d v. 447 214 Cir. acting was not out of that defendant 1024, denied, 680, cert. U.S. 92 404 S.Ct. 30 disclo- fear.” Under these circumstances (1972), L.Ed.2d and 674 United States v. unneces- identity sure of the informer’s 524, Cir.), Ayers, (2d 426 529 F.2d cert. sary As the to resolve the issues on trial.7 denied, 842, 85, 400 U.S. 27 L.Ed.2d found, jury duress trial later Ciambrone’s (1970), point 78 we did out in each of these inability to show defense failed because cases “recordation as a matter of that he availed himself reasonable means course is the certainly procedure.” better and extricating himself not because proceeding jury’s usually Since failure to show threats and fear. secret, ex there parte appears to be no why reason proceeding, including the entire Appellant argues next that after prosecutor, remarks of should not attempted had twice to render a usually be recorded. American See Bar judge qualified guilty trial verdict of Assn., Relating Standards to the Adminis instructing jury, erred in in reliance Justice, tration of Criminal The Prosecution Patrick, 381, upon F.2d United v. 542 States 3.5, (1974). pp. 90-91 § Function denied, (7th 1976), 430 388 Cir. cert. appel (1977), find 97

We likewise no merit in S.Ct. 51 L.Ed.2d 775 argument duty lant’s Platt abused his “had an affirmative to Ciambrone refusing discretion in disclosure and the government order inform authorities Ciambrone of the name and of reluctance to of the informer Court the threats safeguards who had DEA testify correctly adequate advised the of the threats on unless fami prior protect Ciambrone’s life to the trial of were taken himself and his Bla privilege sich. The . is that this ly basis for informer . .” The contention well-recognized require explication. proof too instruction shifted burden States, re appellant. disagree. See Roviaro 353 U.S. Platt v. We (1953); 77 639 McCray peatedly S.Ct. 1 L.Ed.2d instructed Illinois, 300, 308-11, establishing v. 386 87 the burden of S.Ct. Government had 1056, 18 (1967); 62 the crime of every L.Ed.2d United States v. each element of Tucker, (2d 1967); beyond He perjury F.2d a reasonable doubt. Wigmore, charged properly Evidence coercion or § 2374 761-62 further (McNaughton 1961); only if rev. ed. 2 Weinstein duress would excuse the defendant & Berger 510(02) (1977). present, a na Evidence After was immediate and of such § holding an fear of hearing weighing in camera ture as induce a well-founded factors, bodily all including impending injury relevant nature or serious death oppor charged signifi the crime and the was no possible from which there reasonable committing perju testimony, Judge cance of without tunity escape the informer’s Housand, Platt 550 F.2d properly ry, concluded see United that non-disclosure (2d denied, identity Cir.), cert. informer’s here would not himself, joined testify regarding affording 7.. The threats to the court in stand interrogate opportunity persuaded him a full to introduce evi- could be damaging prior drug falsely that he testified or a dence out of fear about psychiatrist’s report. conviction 10-14, suggesting (Tr. 441). that if he should take the witness FRIENDLY, L.Ed.2d 1066 Even Circuit Judge, dissenting: accepting true the rumors that Ciam I regret my respected brothers brone had been two of threatened Bla job should work at the impossible so hard of sich’s some henchmen months before the finding prosecu- a extenuating basis for the Blasich, proof undisputed trial of the tor’s give grand juror’s ques- failure to that Ciambrone had failed to take advan they tions the answers candid deserved. tage opportunities of reasonable offered agents escape compulsion. the DEA Un It is not 1976 the disputed that in October circumstances, der Judge these Platt would FBI the DEA that Blasich’s informed have justified refusing to submit they friends had told Ciambrone defense coercion or duress to the “would take of” him Blasich care after Patrick, jury. 388; supra, See F.2d at 542 trial —information which the Government McClain, 431, v. States F.2d 531 438 took seriously so to offer relocation. It (9th Cir.), denied, cert. disputed likewise not that on December (1976); 50 L.Ed.2d 101 v. U. Shannon Assistant United States S., 1935). (10th F.2d Cir. Once Kramer, represented who had the Govern- so, he decided in to do discretion how ever, ment duty point unequivocally it was his the Blasich out that qualified by defense is obliga the witness’ Mishler, stated to opposing Chief tion to advantage any take reasonable application Ciambrone’s for bail on the false opportunity to extricate himself inform charge, “put declaration had a ing the Government of the threats so that contract” on Ciambrone’s life. In the face protected. he could obligation be His to of positive Kramer’s statement the Govern- steps take such is not to be confused —nor say ment cannot now heard to its was it in this case—with the Government’s belief in dispelled by the threats was Ciam- proving burden of which perjury, them, previous brone’s denials of denials Platt made clear. The from the jury 6, that majority, fn. argue, not as do the being taped? knows his conversation is Agent not know what Adlerstein did AUSA point. This is the surely Any did. Vigna and Kramer AUSA unresponsive Assistant made the an- The credulity be would strain such assertion charged had been swer that Ciambrone As Mr. Justice yond breaking point. the acquit- had been with an earlier offense but Indiana, in Waifs v. Frankfurter observed immediately prior the Blasich trial. ted to 1347, 1349, 49, 52, 93 L.Ed. 69 338 U.S. S.Ct. not, so this answer Whether intended or when we (1949), comes a time 1801 there gave jurors thinking the for a basis that judges of what ignorant as “should not be change story Ciambrone’s was due to the event, for our we know as men.” longer the fact that he no needed benefits Adlerstein purposes, it does not matter. However, jurors cooperation. the were be from the rest cannot insulated off; not of them asked “What fobbed one States, team, Giglio v. United prosecution gain by lying?” could he 763, 154, L.Ed.2d 150, 92 31 405 S.Ct. U.S. something Forced to that would still do whether (1972). does it matter 104 Neither concerns, grand jurors’ the the Assistant report on the not Adlerstein “credited” brought Agent Vigna that then out from in resist had relied which the Government Blasich were friends and Ciambrone and bail; tell the ing he was still bound drug connec- that Blasich was Ciambrone’s knew. prosecution grand jurors what the that this tion. The Assistant volunteered noted, “the has Supreme As the Court may been the motive for which the have jury so essen thought grand Founders jurors juror searching. A then said they provided tial to basic liberties confusing “what be some prosecu federal Amendment that the Fifth why folks here was that would this man institut only can tion for serious crimes obviously past suddenly who has a in crime indictment of a presentment or ed ‘a agent?” Grasping become an this false Calandra, v. Jury’ ”. United States Grand lead, Agent brought the Assistant and the 617, 613, 38 94 414 S.Ct. arrangement out an there had been (1974). grand 561 Before L.Ed.2d whereby cooperation in return for his pressing role of prosecutor has the dual help “were Government would if Ciambrone being for an indictment and charges” convicted of but that criminal conflict, the lat In case of jury’s adviser. when it “came time to be asked to United duty precedence. must take ter Blasich”, way Mr. he testified the 567, 573-74 F.2d Remington, v. 208 States grand jury inferably solely be- had Hand, J., dissenting), cert. (2 1953) (L. Cir. heard — already acquitted cause been 476, 98 L.Ed. denied, Blasich. friend of (1954). during colloquy, recorded in Not once this parte ex character of pages transcript, important four did the Assistant peculiarly proceedings makes that, give grand jurors slightest inkling to remember prosecutor for a federal interest every phrase, reason to in the familiar is prosecution a criminal giving think “in Ciambrone had a motive United States case, justice but it shall win trial much more not that at Blasieh’s J., Berger States, dissenting); Fields, shall be done. v. United United States v. (2 1978); L.Ed. F.2d 647-48 Cir. While, Broward, 1625-26, majority says, as the “a 594 F.2d rebuke, prosecutor obligated (2 1979). not presently is 350-51 Mere which grand jury search for submit the majority to a evi- does even see fit admin- ister, negating dence favorable the defense or is insufficient to maintain com- guilt, when it requested by prosecutorial has plete necessary per- candor grand jury,” corollary that when perform mit the its historic grand juror advice, requests role. may respond not fence with him but must fully fairly.1 No of parsing amount

can show that this was done Also it here.

of no prod- moment after considerable

ding by judge, petit juror the trial

rejected Ciambrone’s duress and coercion ground

defenses on the that he had failed OSTROWSKI, Edward President Uni to take steps protect reasonable himself. Association, formed Sanitationmen’s jury is not bound indict in Local International Brotherhood every case where a conviction can be al., Teamsters, Plaintiffs-Appellants, et obtained. As Wisdom has written: By indict, refusing to grand jury has al., The CITY NEW et OF YORK the unchallengeable power to defend the Defendants-Appellees. government oppression innocent from No. Docket 79-7076. unjust prosecution. the equal And it has ly unchallengeable power to shield the United Appeals, States Court of guilty, jurors should whims of the or Circuit. Second their response conscious subconscious Argued April 1979. community pressures induce twelve or June Decided jurors give more sanctuary to the guilty. Cox, United States v. 342 F.2d (5 Cir.) (Wisdom, J., 189-90 concur

ring specially), cert. denied sub nom. Cox

v. Hauberg, (1965).2 L.Ed.2d 700 jurors’ persistent questioning shows

there was at least strong prospect that Ciambrone,

disclosure of the threats to even

with qualifications all which the forward, put was entitled to

might well have resulted in no true bill

being A possibility returned. substantial

this is all needed to warrant our

quashing the indictment. United States v.

Remington, (L. Hand, supra, 208 F.2d at 574 fencing large, only general body 1. Such not excused facts that answerable prior citizens, random, suggested they counsel for Ciambrone from whom come at grand jury proceedings again merged.” they that Ciambrone whom are at once duress, raise (S.D.N.Y.1910) (L. defenses other than or that Ciam- re Hand, 180 F. Kittle. appear brone declined to Raymond before J.). Charge also of John See or to submit instructions for Fletcher, Jury, its consideration. Judge, to a Associate Grand (Cir.Ct.Md.1955); F.R.D. may legitimately perform 2. That a Asdrubal-Herrera, F.Supp. States v. quasi-equitable implicit in function is its role as (N.D.Ill.1979). irresponsible community “an utterance of the notes which no experienced would take here any did not indicate doubt about its event, at face value in his refusal or understanding applicable law or the to accept the relocation offer. result that must be when reached that law properly applied. jury ques What question by grand The a very first asked tioned was the wisdom of law itself juror after Assistant United Attor- which, course, province. was not its ney questions Adlerstein invited the end Appellant’s last contention —that Agent Vigna’s testimony directly to went Judge Platt erred in failing state his point lie if “Why would he [Ciambrone] imposing reasons for the maximum five- taped?” he going get knew he was year sentence —need not detain us long. While may inartistically this have been We repeatedly have held while such a worded, known Assistant must have statement preferred, of reasons is it is not bothering juror why what was — see, mandatory, e.g., Seijo, United States give false at the Bla- testimony (2d 1976), F.2d denied, cert. sich trial if he knew the had Government 50 L.Ed.2d 756 proving sure means After he was a liar. judge The trial did not act on the the failure of an initial to discour- endeavor basis of assumptions erroneous factual or age jurors saying something “That is constitutionally impermissible considera would”, speculate that we why cannot on tions. conduct, including Ciambrone’s Assistant, questions in response to that DEA had induced him Agent about the tape, “frame” contents supposedly innocent vic tim, was particularly heinous and Vigna commit was made testify that “No mention by person ted with a criminal record who drugs or a package whether it was appears to have had disregard and disre package juror A asked of stones”. then spect for the law. “brought up whether Ciambrone had been The judgment of conviction first re- charges”. affirmed. Assistant friendship with Blasich or charges powerful than may have been “that there sponded acquittal motive effect of his own time”, presumably of the against him at the —a which Assistant United States jury to was not for the taping, but that also exploited fully properly Kramer easily grand jury was not so consider. The pur served the Government’s when that juror said: put off. A pose. Mr. Kramer testified before contrary. I feel that if there On the episode prior to the grand jury immediately charges brought against him were no described; transcript does not show just brought up any- on trial or he was not jury room whether he was in the himself, thing why would he lie in a situ- does when it occurred. being taped he is and he ation when

Case Details

Case Name: United States v. Richard Ciambrone

Court Name: Court of Appeals for the Second Circuit

Date Published: May 15, 1979

Citation: 601 F.2d 616

Docket Number: 354, Docket 78-1235

Court Abbreviation: 2d Cir.