Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 CR 223 - William J. Lynch, Judge, and Bernard M. Decker, Judge.
Swygert, Wood, and Bauer, Circuit Judges. Swygert, Circuit judge, dissenting. Swygert, Circuit Judge, dissenting.
Clavey was charged in an eight-count indictment specifying four counts of false swearing before a grand jury, three counts of failure to report income on his tax returns, and one count of conspiracy to extort funds from a liquor license holder. The Government established at trial that, while serving as Sheriff of Lake County, Illinois, Clavey received unreported income from several county residents in a series of transactions effected through his chief deputy, Jerome P. Schuetz, who testified against Clavey under a grant of immunity from prosecution. The jury ultimately acquitted Clavey of three of the false swearing counts and the extortion count, and convicted him of one count of false swearing and the three tax counts. He seeks reversal of his convictions on several grounds, the most significant of which are that the district court committed reversible error (1) by refusing to release a transcript of his grand jury testimony, (2) by refusing to admit evidence Clavey offered to rebut the testimony of a government witness, (3) by erroneously instructing the jury, and (4) by not responding to the jury's request for supplementary instructions during its deliberations and failing to advise counsel of the jury's inquiries to the court. We affirm his conviction for the reasons noted below.
Clavey first contends that he was deprived of the effective assistance of counsel during the grand jury proceedings which led to his indictment.
Clavey appeared before the grand jury on two occasions without counsel. He retained counsel about five weeks after his second appearance. At that time, his counsel filed two unverified petitions with the district court for the release of a transcript of Clavey's grand jury testimony so that he could advise Clavey whether or not to recant aspects of his prior testimony pursuant to the right established in 18 U.S.C. § 1623(d), which provides:
"(d) 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 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."
In the petitions, Clavey alleged that he could not recall the substance or detail of his testimony because of an illness and a skull fracture that adversely affected his memory.
Chief Judge Robson of the District Court for the Northern District of Illinois denied both petitions on the ground that Clavey had failed "to demonstrate with particularity a 'compelling necessity' for disclosure." Approximately four months later the same grand jury returned the indictment in this case.
After the indictment was returned, Clavey moved to suppress it on the ground that he was denied the effective assistance of counsel in asserting his right to recant under 18 U.S.C. § 1623(d) by Judge Robson's refusal to release a transcript of Clavey's grand jury testimony to his counsel. Judge Lynch*fn1 denied the motion, and Clavey reasserts the claim here.
Federal Rule of Criminal Procedure 6(e) permits district courts to order the disclosure of grand jury testimony to persons other than attorneys for the Government "preliminarily to or in connection with a judicial proceeding."
We recently reviewed the standards to be applied by district courts in deciding whether to disclose grand jury testimony upon request:
"The Supreme Court has declared that the secrecy protected by Rule 6(e) 'must not be broken except where there is a compelling necessity,' which 'must be shown with particularity.' United States v. Procter & Gamble Co., [356 U.S. 677, 682, 2 L. Ed. 2d 1077, 78 S. Ct. 983]; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 3 L. Ed. 2d 1323, 79 S. Ct. 1237. . . . There still exists . . . in . . . cases in which disclosure is not provided for as a matter of right in 18 U.S.C. § 3500(e)(3) and Rule 16(a)(1)(A), Fed. R. Crim. P., a requirement that the party seeking disclosure show a need commensurate with the degree of secrecy remaining and the policy reason that justifies that secrecy." Illinois v. Sarbaugh, 552 F.2d 768, 774 (7th Cir. 1977).
Inasmuch as Clavey was not entitled to a transcript of his testimony as a matter of right, the analysis set forth in Sarbaugh is applicable here. In the circumstances of this case, we agree with Judge Robson that Clavey did not establish a sufficiently "compelling" need for disclosure that outweighed the need to preserve grand jury secrecy.
We find significant, as did the district court, that Clavey refused to verify his petition as the district court requested. Though the purpose for which Clavey sought the transcript is no doubt a proper one, in that the transcript was sought in aid of his right to recant his prior testimony, we believe the district court was appropriately skeptical of Clavey's unverified claim that he was unable to recall his prior testimony because of a poor memory attributable to physical impairments. Absent verification of Clavey's ailments, there was no reason for the district court to assume that a transcript was essential to facilitate effective attorney-client deliberations concerning the possibility of Clavey's recanting his prior testimony. Cf. United States v. Cowsen, 530 F.2d 734, 736 (7th Cir.), cert. denied, 426 U.S. 906, 96 S. Ct. 2227, 48 L. Ed. 2d 831 (1976). Moreover, we note that, even without a transcript, Clavey could have obtained any information concerning his prior testimony needed by his attorney by reappearing before the grand jury and requesting a review of his testimony. During such an appearance Clavey could have communicated with counsel at any time outside the grand jury room.
The policy reasons justifying strict preservation of the secrecy of ongoing grand jury proceedings are compelling and should not be lightly discounted simply because a witness asserts an unverified need for a transcript of his prior testimony.*fn2 In view of Clavey's failure to verify with particularity a compelling necessity for a transcript of his prior testimony, we do not believe the district court denied him the effective assistance of counsel by refusing to release a transcript to him. See Bast v. United States, 542 F.2d 893 (4th Cir. 1976); United States v. Di Salvo, 251 F. Supp. 740, 746 (S.D.N.Y. 1966).
Clavey's next argument is that the district court erred in refusing to admit evidence offered to rebut the testimony of Gene March, a government witness, that March had bribed Clavey with a $400 check to obtain a $1000 lie detector contract with the sheriff's office. Clavey contended that March's check, which Clavey had cashed, constituted repayment of a loan. March testified that he wrote "RT loan" on the face of the check, but only at Clavey's request. To impeach March's testimony that the check was a bribe rather than a loan repayment, Clavey's counsel sought to admit evidence during his cross-examination of March and again during his case-in-chief that March had sought and obtained a personal loan from a Frederick Hedblum at approximately the same time he paid Clavey the $400. The trial judge refused to admit the evidence, and Clavey contends on appeal that his refusal constituted reversible error.
We agree with Clavey that evidence of March's financial condition was relevant to the issue of whether Clavey had loaned him funds in the limited sense that it tended to make Clavey's theory slightly "more probable . . . than it would [have been] without the evidence." Fed. R. Evid. 401. However, relevant evidence may be excluded
"if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.
The evidence here of a transaction in which the defendant did not partake was of limited probative value, and we cannot say that the trial judge abused his broad discretion under Rule 403 in determining that the evidence would have tended to confuse the issues and unduly consume time. United States v. Robinson, 503 F.2d 208, 216 (7th Cir. 1974), cert. denied, 420 U.S. 949, 43 L. Ed. 2d 427, 95 S. Ct. 1333 (1975).
Clavey challenges the court's charge to the jury in several respects.
A. Campaign Contribution Instruction
Clavey first argues that the court erred in allowing the jury to consider whether he diverted campaign funds to his own use when there was no evidence to support such a charge.
On the first day of the trial the bank account records of Clavey's campaign fund were admitted into evidence without objection. As the trial proceeded, however, neither side made use of the records or included them in their respective theories of prosecution or defense. Nevertheless, over Clavey's objection, the court instructed the jury:
"If you find beyond a reasonable doubt that funds contributed to a political campaign were diverted to the defendant's personal use, then under the law these funds are income taxable to the defendant."*fn3
Clavey contends that the court committed reversible error in giving the campaign fund instruction because it provided the jury with a basis for convicting Clavey not rooted in the evidence. The Government concedes that the instruction was not supported by the evidence at trial, but argues that its inclusion in the charge was harmless error.
We agree with the Government that the instruction was harmless because, in the circumstances of this case, the jury could not have been misled by it. By its own terms, the instruction required the jury to find beyond a reasonable doubt that campaign funds were diverted to Clavey's personal use before arriving at the conclusion that such funds constituted income taxable to Clavey. Because there was no evidence that any campaign funds were ever diverted to Clavey's personal use, the jury could not have convicted Clavey on the basis of the campaign fund instruction. See United States v. Demopoulos, 506 F.2d 1171, 1180 (7th Cir. 1974), cert. denied, 420 U.S. 991, 43 L. Ed. 2d 673, 95 S. Ct. 1427 (1975); Long v. United States, 124 U.S. App. D.C. 14, 360 F.2d 829, 835 (1966).
B. " Material Matter" Instruction
Clavey was convicted of violating 26 U.S.C. § 7206(1), which states that any person who
"willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5000, or imprisoned not more than 3 years, or both, together with the costs of prosecution."
In instructing the jury on the meaning of "material matter" in Section 7206(1), the district court stated:
"Under the law the term 'material matter' refers to any item which would tend to influence the Internal Revenue Service in its normal tax collection and processing procedures. It is not necessary that the government prove that the defendant omitted any specified amount or total amount in Counts 5, 6 or 7. All that is necessary is that the government prove that the return was false as to a material matter."
Clavey argues on appeal that, in view of the absence of evidence as to IRS standards of materiality, this instruction was erroneous because it left the jury free to speculate as to the meaning of "material matter."
We agree with Clavey that, absent evidence of IRS materiality standards, this instruction was of little assistance to the jury in determining what constituted material matter. However, Clavey could not have been prejudiced by the giving of the instruction because the only false statements the Government charged that Clavey had made on his income tax return, those statements reporting his gross income, were clearly material matters for purposes of 26 U.S.C. § 7206(1). See United States v. DiVarco, 343 F. Supp. 101, 102 (N.D. Ill. 1972), and cases cited therein.
Clavey next argues that the court erred in giving the following instruction:
"Motive is what prompts a person to act or fail to act. If you find beyond a reasonable doubt that the defendant knowingly and wilfully accepted any of the payments about which evidence was presented you may, if you choose to do so, consider the circumstances surrounding the payments and the purposes for which they were made as providing a motive for the commission of the crimes charged in Counts 1, 2, 3, 5, 6, 7, and 8 of the indictment.
He claims that the instruction he tendered should have been given instead. His instruction, taken from Devitt & Blackmar, 1 Federal Jury Practice and Instructions § 13.05 (2d ed. 1970), is identical to the instruction given by the court except for the addition of two sentences: At the beginning, Clavey's instruction adds, "Intent and motive should never be confused"; at the end it adds, "The motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent." Clavey argues that the omission of these phrases in the court's instruction confused the jury as to the effect they should give motive and made it possible for the jury to substitute proof of motive for proof of the intent element of the crimes charged.
We agree with Clavey that, if the court chooses to give a motive instruction at all, the standard instruction tendered by Clavey is preferable to the one given here because it more clearly explains the proper role of motive in the case. Nevertheless, in view of the other comprehensive instructions on the mens rea of the crime charged given by the court, the motive instruction could have been interpreted only as suggesting another factor to be considered by the jury - the instruction's proper function - rather than as providing a substitute means for proving the mens rea of the charged crimes. The court instructed the jurors that they had to find beyond a reasonable doubt that Clavey had the requisite specific intent for the crimes charged, viz., that he "knowingly did an act which the law forbids, purposely intending to violate the law" (Tr. 1421). The court went on to painstakingly instruct the jury on the meaning of ...