APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-192).
Adams, Van Dusen and Hunter, Circuit Judges. Adams, Circuit Judge, concurring.
VAN DUSEN, Circuit Judge.
This appeal from judgments of conviction of six defendants raises two principal issues: (1) whether the district court erred in failing to grant a new trial because of prosecutorial misconduct in allowing the grand jury testimony of Government witness Moody to be read to Government witness Stanizzo and the grand jury testimony of Stanizzo to be read to Moody prior to trial, and (2) whether defendant Bazzano was denied the right to effective assistance of counsel with regard to sentencing because the district court failed to disclose published sentencing guidelines. After careful consideration, we have concluded that the contentions raised by the defendants do not justify reversal of the convictions.
The defendants were convicted of operating an illegal gambling business*fn1 or aiding and abetting the operation of an illegal gambling business,*fn2 and conspiring to obstruct state law enforcement relating to gambling.*fn3 The gambling business, a numbers game, was conducted in the towns of Clairton and Elizabeth, Pa. All the defendants who participated in the illegal gambling business, except Bazzano, were public officials.
The evidence adduced by the Government was voluminous and a brief summary of it will suffice. Basically, the evidence was of two types: adding machine tapes proven to be business records of the gambling operation, and testimony by a number of witnesses who had been involved in the gambling operation. The evidence established that Bazzano had run the gambling operation and that the other defendants accepted payments from the gambling operation in exchange for letting the operation continue without interference.
Mrs. Elizabeth Stanizzo, a former employee of the gambling operation, extensively detailed the illegal gambling business. Mrs. Stanizzo had known defendant Bazzano for 20 years, and her late husband had been Bazzano's partner in the business. She testified that Bazzano ran the gambling operation and that the other defendants received payments from the operation. Another witness, Moody, corroborated some of Mrs. Stanizzo's testimony. Moody, who for a time was part owner of the operation, testified that he had worked for Mr. Stanizzo in the business and that Mr. Stanizzo had dealt with Bazzano. A former Allegheny County detective, Hammer, testified that he had accepted protection payments from numbers writers in the Clairton area. His testimony also corroborated some of Mrs. Stanizzo's testimony.
Defendant Matz was the Mayor of Clairton. Testimony indicated that Matz allowed Bazzano to operate the numbers business in Clairton and that Matz received payment from one of Bazzano's employees. The adding machine tapes indicate that payments were made to "Mayor."
There was sufficient testimony to support the jury's verdicts convicting the other public official defendants as indicated in the footnote.*fn4
The charge of prosecutorial misconduct stems from a meeting between two witnesses, Moody and Stanizzo, and F.B.I. Agent Fitzpatrick, who had investigated the case.
When Moody, who was testifying under immunity, took the stand, he requested to speak with the judge in chambers. In chambers, with counsel present, Moody stated that a few days before he was to testify, Fitzpatrick read Moody's grand jury testimony to Mrs. Stanizzo and read Mrs. Stanizzo's grand jury testimony to Moody. Defense counsel immediately moved for a mistrial or, in the alternative, that both Moody and Mrs. Stanizzo "be dismissed as witnesses and not called by the government" (N.T. IX-63). The court denied the motions after oral arguments and Moody was allowed to testify.
On cross-examination, defense counsel questioned Moody about the meeting with Fitzpatrick. He testified that Fitzpatrick read selected pages of each witness' grand jury testimony in the presence of both witnesses (N.T. IX-133). He also testified that, in his opinion, Fitzpatrick "doctored" Moody's testimony with Mrs. Stanizzo's so that their stories would be the same (N.T. IX-133-34).
Mrs. Stanizzo was also cross-examined on this subject, and her account differed from Moody's. She testified that Fitzpatrick did not read any of her grand jury testimony, but, rather, told her that he did not have to read it to her because she knew what she had said. She testified that he read from some papers to Moody in her presence.
After Mrs. Stanizzo's testimony, the defendants moved that her testimony be stricken on the ground that the meeting with Fitzpatrick violated F.R. Crim. P. 6(e) and constituted prosecutorial misconduct. Defendants also moved for a dismissal of the indictment on the same grounds. The motions were denied. The defendants again press this argument in this court, claiming that the conduct in violation of Rule 6(e) denied them a fair trial.
We hold that at least some of the conduct testified to was prosecutorial misconduct violative of Rule 6(e), but that this conduct did not constitute reversible error.
F.R. Crim. P. 6(e) provides in part:
"Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule."*fn5
The language pertinent here is: "Disclosure . . . may be made to attorneys for the government for use in the performance of their duties" and an "attorney . . . may disclose matters . . . only when so directed by the court . . . ." Thus, we are faced with two questions: Did the Government attorney use the material in the performance of his duties? Did the Government attorney disclose matters without court direction?
In answering the first question, we need not decide the issue of whether it is proper for material to be disclosed to an F.B.I. agent working for the Government attorney. The 1977 amendment to Rule 6(e) was enacted to permit such disclosure.*fn6 Assuming, arguendo, that such a disclosure was proper under the earlier version of Rule 6(e) applicable here,*fn7 the F.B.I. agent cannot use the disclosed material in a manner which is not permissible for the Government attorney. The scope of authority of the F.B.I. agent, acting as an agent for the Government attorney, is limited to the scope of authority of the Government attorney. Cf. Restatement of Agency, 2d, § 20. Apparently, in this case, if Moody's testimony was accurate, the Assistant United States Attorney, perhaps unknowingly, used the F.B.I. agent as a conduit to disclose the grand jury testimony of two of the Government witnesses to each other prior to trial.
The defendants do not object to the disclosure by the agent to a grand jury witness of that witness' testimony,*fn8 but the objection is to the verbatim disclosure of Mrs. Stanizzo's testimony to Moody, and vice versa, in an attempt to "shape" their trial testimony so that each witness' testimony will corroborate the other's. These facts are distinguishable from a pre-trial interview in which the prosecutor indicates to a witness in general terms the evidence which other witnesses may give. In this latter situation, the interview may be conducted without disclosure of specific statements made to the grand jury, and therefore Rule 6(e) would not be involved. Furthermore, when potential trial witnesses who testified before the grand jury are not identified by name, there is no violation of the purpose of Rule 6(e) to encourage witnesses to testify without fear of retaliation. See, e.g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959); Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 25 L. Ed. 2d 127, 90 S. Ct. 965 (1970). Finally, such a pre-trial interview may simply serve to refresh a witness' memory rather than improperly to influence his testimony. As the Supreme Court has stated, "an attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it." Geders v. United States, 425 U.S. 80, 90 n.3, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). Of course, at times the line between refreshing a witness' memory and seeking improperly to influence his testimony may be difficult to draw, and each case must be decided on its facts. We merely hold that on the particular facts of this case, if the agent read Moody's testimony verbatim to Mrs. Stanizzo in an attempt to "shape" Mrs. Stanizzo's trial testimony to coincide with Moody's, the agent's conduct fell on the impermissible side of the line. Therefore, on Moody's account, the Government attorney's use of grand jury material went beyond the proper use of that material in the performance of his duties.*fn9
With regard to the second question (page 1125 above), through the F.B.I. agent, the Government attorney disclosed grand jury testimony without court direction, if Moody's testimony was accurate. Therefore, the Government attorney, perhaps unknowingly, violated Rule 6(e). However, as noted below, there were credibility difficulties with Moody's testimony. Although we find the violation of Rule 6(e) as testified to by Moody improper, we do not think the defendants were denied a fair trial under the facts presented by this record.
First, Moody's and Mrs. Stanizzo's accounts of what occurred at the meeting with Fitzpatrick differed. Moody claimed that Fitzpatrick attempted to "doctor" the testimony and read each witness' testimony to the other witness. Mrs. Stanizzo testified that Fitzpatrick merely read from some papers, presumably a portion of Moody's testimony,*fn9a to Moody in her presence, but made no attempt to coach her or to tell her what to say. Of course, even given Mrs. Stanizzo's version of the conduct if the papers read were grand jury transcripts, the conduct violates Rule 6(e), but on this version the conduct is not as egregious as the misconduct alleged by Moody. The trial judge could have believed Mrs. Stanizzo's account rather than Moody's, and we cannot say his decision to believe her account was erroneous. There is evidence in the record that Moody, who was being forced to testify under immunity, did not want to testify and was using this incident as a convenient way to avoid testifying and to avoid implicating his friends.*fn10 Throughout his testimony he exhibited a hostility toward the Government. N.T. IX-67, 109, 123. Consequently there is reason to be suspicious of the accuracy of Moody's account of the meeting and to accept Mrs. Stanizzo's account, as the fact finder could conclude that she was a more disinterested witness.
Secondly, the trial judge found that the witnesses' testimony "varied in a number of respects, and all the circumstances militate against any inference that the testimony of Moody and Mrs. Stanizzo was 'shaped'. . . ." United States v. Bazzano, Crim. No. 75-192, slip op. at 8-9 (W.D. Pa., Nov. 9, 1976). Having carefully reviewed the record, we find ample support for this position. Thus, the trial judge was acting well within his discretion in allowing these witnesses to testify.
Third, because there is ample evidence to support the view that any attempt to shape the witnesses' testimony was unsuccessful, we think the evidence of improper influence affects the credibility, not the admissibility, of the testimony, see Geders v. United States, 425 U.S. 80, 89-90, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 42 L. Ed. 2d 84, 95 S. Ct. 94 (1974), and, of course, the credibility of witnesses is a question for the jury. See, e.g., United States v. Hill, 449 F.2d 743, 743 n.3 (3d Cir. 1971). Moody, Mrs. Stanizzo, and Fitzpatrick were cross-examined vigorously about the meeting at which the grand jury testimony was read by Fitzpatrick. Therefore, the jury was fully apprised of all three accounts and was able to weigh the credibility of Mrs. Stanizzo accordingly.*fn11 As the Supreme Court has stated: "The established safeguards of the Anglo-American legal ...