No. 77-5107.United States Court of Appeals, Fifth Circuit.
February 24, 1978.
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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 413
Joel Hirschhorn, Miami, Fla., for defendant-appellant.
Jack V. Eskenazi, U.S. Atty., Marsha L. Lyons, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.
BROWN, Chief Judge:
[1] A jury returned a verdict of guilty against Anita Abrams on two out of three counts of making false material statements before a federal grand jury in violation of 18 U.S.C.A. § 1623.[1] She claims on this appeal that she was denied a fair trial, first, because of the prejudicial misconduct of the Trial Judge, and second, because of his failure to grant a mistrial following an allegedly prejudicial answer by one witness. She also challenges the sufficiency of the evidence as to both counts.[2] We agree only that there is insufficient evidence to supportPage 414
the verdict on Count III and reverse as to that count. Her conviction on Count II is affirmed.[3]
[2] Because of the extremely complicated nature of this case, we will set forth the facts as they relate to each issue raised by appellant and address the sufficiency attack first.[3] I. Sufficiency Of The Evidence
[4] The United States Attorney for the Southern District of Florida had been conducting an investigation into various allegations stemming from insurance claims filed by the law offices of James A. Davis for numerous clients who had received medical treatment from Dr. M. S. Fox[4] or Westchester Hospital or both. Settlement of accident cases following negotiations with insurance companies or trial would be made by Davis’ office. The insurance company would pay claims to Davis who, in turn, would disburse the proceeds to his clients, the accident victims, after deducting attorneys’ fees, medical expenses, court costs, investigative fees, and other related costs.
[8] The false statements which formed the basis of this count involved a cost breakdown down which had been prepared for Yva Henry, a client of Davis. Henry had written a letter dated March 12, 1974 to Paul Gross of the Florida Bar complaining about the amount she was to receive in settlement of her claim for an accident which had occurred in April 1973.[6] Gross forwarded this complaint to Davis on March 15, 1974 and requested a written response.[7] By letter dated April 1, 1974, signed for Davis by Abrams, the latter forwarded to the Florida Bar a “closing statement” on the Henry case,[8] containing a $231.50 charge for “Costs.” [9] On April 2, 1974, Gross called Davis’ office to request a breakdown of the $231.50 in costs as shown by the following telephone message directed to “Anita:” [10] Yva Henry — (cost 231.50 wants 5564 Case No.[9] breakdown?) [11] That same day, Abrams signed a letter to the Florida Bar on behalf of Davis, enclosing
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a breakdown she prepared which listed these items:[10]
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[18] The most significant document in Davis’ Henry file is a slip of paper comprising part of Gov’t Ex. 7.[16] The first four lines of this slip, listing the four items, are in Davis’ handwriting. The addition and subtraction are in Abrams’ handwriting.[22] The testimony which formed Count II of the indictment fills nine legal-size pages. So that we do not further lengthen this opinion, that testimony is attached as an appendix. The questions and answers are numbered for easy reference and the statements which we believe the jury could reasonably have concluded were false are italicized. [23] Abrams maintained throughout her grand jury testimony[22]
that the $231.50 figure was based on bills actually in the file prior to the settlement of the Henry case, on the cost sheet she prepared as the Henry case progressed, or on cost cards which the accountant had.[23] Indeed, she effectively
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denied fabricating the costs.[24] We believe that the evidence overwhelmingly supported a jury conclusion beyond a reasonable doubt that she gave false testimony.[25] Our view is that the jury could have reasonably concluded that actual events proceeded along the following lines and that Abrams must have known about and remembered those events when she testified before the grand jury: When the Florida Bar request for the $231.50 cost breakdown was made, Abrams — or someone in Davis’ office with Abrams’ knowledge — arranged to have the photographs taken (item [4], $35), Davis listed minor amounts to be charged for perfunctory reports made in almost every accident case (items [5]-[7], $14), and Abrams — or someone in Davis’ office with Abrams’ knowledge — arranged with someone in Dr. Fox’s office to bill Davis for $75 of those costs (items [1] and [2]). And when Abrams totaled those costs and arrived at only $124, she subtracted the subtotal from $231.50, got $107.50, and she — or someone in Davis’ office with her knowledge — fabricated an invoice on Worldwide Detective Agency billhead (item [3]) to justify the $107.50 difference. This view is based on the following.
[24] First, it is clear from the documentary evidence that the Fox conferences were not billed in the ordinary course (see notes 12 and 23, supra). Second, the Fox bill is not dated as is the other Fox invoice for $475 (see notes 8 and 12, supra). Third, it is also clear that the Davis office requested that these conferences be billed in response to the Florida Bar inquiry. Thus, as to the Fox conferences, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Abrams violated $1623 when she denied knowing the circumstances under which the undated Fox bill was prepared.[26] [25] There was also sufficient evidence to support a conclusion beyond a reasonable doubt that Abrams gave perjured testimony concerning item [3], the $107.50 invoice from Worldwide Detective Agency for investigation and photography. Weigel, owner of Worldwide, stated that a search of his records disclosed no investigation having been conducted on the Yva Henry case. Moreover, when Weigel billed clients, he never submitted the original and the copy as ostensibly was done in the Henry case.[27] Hallen, a Worldwide employee who did investigative work for Davis on Weigel’s license, also found no record of investigative or photographic work done in behalf of Henry. Hallen would bill Davis by submitting to Abrams handwritten slips containing case numbers and the plaintiff’s name; he never typed invoices. Abrams paid Hallen directly by check. Hallen unequivocally denied submitting the typed $107.50 invoice of Gov’t Ex. 10.[28] Furthermore, sometime in 1973, Hallen, with Weigel’s permission, hadPage 418
given blank Worldwide billheads to Joe Moore, Davis’ office manager.[29]
[26] Based on this uncontradicted testimony, the jury was justified in finding that Abrams made false statements when she named Hallen as the source of the $107.50 figure[30] and when she said that the bill was prepared by the investigator,[31] and submitted.[32] In addition, Abrams’ asserted failure to remember and denial of knowledge as to what she was doing when she performed the mathematical calculation of Gov’t Ex. 7[33]could reasonably have been considered perjured.[34] [27] Similarly, there was abundant evidence to support a beyond-a-reasonable-doubt conclusion that Abrams’ testimony concerning the $35.00 for photographs was false. The invoice for film and the film envelope were both dated April 2, 1974, the same day on which the Florida Bar telephone inquiry was made when the Henry case was, for all intents and purposes, closed.[35]
Hallen never performed any photographic work on the Henry case and did not submit the invoice for photography services. And at least one of the photographs in the Henry file establish that the pictures were not taken until at least eleven months after Mrs. Henry’s April 1973 mishap.[36] No sensible explanation was forthcoming as to why photography costs need have been incurred in connection with a closed case, and the grand jury gave Abrams every opportunity to offer one.[37] [28] Thus, we think a jury could justifiably find that Abrams committed perjury when she (i) told the grand jury that the bills were Dave Hallen’s,[38] (ii) denied knowing the circumstances under which the photographic bills were obtained,[39] and (iii) denied that the bills were obtained the day after receiving the Florida Bar letter to justify the costs.[40] [29] Lastly, based on all the evidence relating to the four items on the breakdown, we believe that a jury could conclude beyond a reasonable doubt that Abrams’ statements that the $231.50 in costs came from cost sheets and cost cards,[41] and her denial of attempts to justify the costs[42] were false. [30] Appellant’s sufficiency challenge is multi-pronged. Abrams argues first that she responded to questions by describing the office routine she normally “would” use, instead of stating what she actually “did” with respect to a particular item. We agree with this argument as to certain answers,[43] but believe it conveniently overlooks
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many others.[44] This argument also ignores the settle principle that every answer set forth in a single count does not have to be false to sustain a conviction. United States v. Bonacorsa, 2 Cir., 1976, 528 F.2d 1218, 1221-22; Stassi v. United States, 5 Cir., 1963, 401 F.2d 259, 262, vacated on other grounds sub nom. Giordano v. United States, 1968, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297.
[31] Second, appellant contends that there was no evidence introduced to show that she willfully and knowingly lied to the grand jury, that is, that she knew the charges were not incurred and remembered that fact. In this connection we are asked to ponder the thousands of cases which passed through, and the thousands of transactions taking place in, this busy, disorganized law office, all of which made it unreasonable for Abrams to remember the details of the Henry cost breakdown. There are several answers to this contention. [32] Abrams typed and signed on Davis’ behalf the letters to the Florida Bar, and she — according to her grand jury testimony — prepared the cost breakdown. This office work was necessary only because a very serious complaint about Davis had been lodged with the Bar. Abrams was an employee in a law office where such complaints should not have been an everyday occurrence and should not have been treated routinely or cavalierly. All the more so because Abrams was well aware in April 1974 that Davis had been the target of a recent investigation. Indeed, that investigation prompted a meeting of Davis’ staff which Abrams attended and during which Davis instructed the staff to take certain actions.[45] [33] In light of this background, the jury could have reasonably concluded that the Henry cost breakdown was not as forgettable as appellant contends and that Abrams knew full well that certain of her answers were false. This is especially so in light of the overwhelming evidence which could lead a jury to conclude that Abrams must have known or recalled that the $107.50 cost for investigation and photography was never incurred and that the $75 for conferences with Dr. Fox and the $35 for photographs were somehow fabricated in response to the Florida Bar inquiry.[46] [34] A similar argument was raised in United States v. Chapin,1975, 169 U.S.App.D.C. 303, 515 F.2d 1274, 1284. In rejecting the sufficiency attack, the Court stated:
[35] Id., 169 U.S.App.D.C. at 313, at 515 F.2d 1284. In applying these principles, there was abundant proof — already detailed at length — of objective falsity and other facts tending to show that Abrams really knew or recalled that which she denied knowing or recalling. As to motive, the jury knew that Abrams was employed by Davis when she appeared before the grand jury and it was at liberty to draw reasonable inferences concerning motive from the employer-employee[I]n the absence of a statement by the defendant, the falsity of an “I don’t recall” answer must be proven by circumstantial evidence. This does not mean that proof is impossible. As another court has stated, “The jury must infer the state of a man’s mind from the things he says and does. Such an inference may come from proof of the objective falsity itself, from proof of a motive to lie, and from other facts tending to show that the defendant really knew the things he claimed not to know” or recall. [Citations omitted.]
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relationship, as well as from the grant of use immunity.[47] The jury, properly instructed, resolved this issue against Abrams and we see no reason to disturb its verdict here.
[36] The third prong of Abrams’ sufficiency attack relates to materiality. She urges that even if we hold her answers to be perjurious, they were not “capable of influencing the grand jury on the issue it was investigating; namely, whether Attorney James Davis was using the United States Mails to defraud insurance companies by `ambulance chasing,’ cooperating with doctors to increase medical bills to `get over’ Florida’s Uninsured Motorist Statute threshold amounts and similar conduct.” Appellant’s brief at 50. [37] The test for materiality, as Abrams correctly concedes, is whether the false testimony was capable of influencing the tribunal on the issue before it. E. g., United States v. Brumley, 5 Cir., 1977, 560 F.2d 1268; United States v. Damato,5 Cir., 1977, 554 F.2d 1371; United States v. Parr, 5 Cir., 1975, 516 F.2d 458. However, the statements need not be material to any particular issue but may be material to any proper matter of inquiry. Damato, supra; United States v. Makris, 5 Cir., 1973, 483 F.2d 1082; United States v. Gremillion, 5 Cir., 1972, 464 F.2d 901; Barnes v. United States, 5 Cir., 1967, 378 F.2d 646. [38] The grand jury was investigating various allegations stemming from insurance claims. That body has substantial leeway in conducting its investigation. This Court has approved the following language from United States v. Stone, 2 Cir., 1970, 429 F.2d 138, 140:[48]
[39] The questions seeking to determine whether costs deducted from Davis’ clients’ payments were actually incurred was a proper subject of grand jury inquiry which resulted in the indictment of Davis and Fox for use of the mails to execute a fraudulent scheme. Abrams argues that Davis’ clients were not the victims or complainants, that the insurance companies were, ergo, no materiality. Appellant’s brief at 51. We are totally at a loss to understand this argument. Not only were the insurance companies victimized, but so were Davis’ clients and the Florida Bar as well.[49] If the fabricationA grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.
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and inflation of medical and other costs were part and parcel of an illegal scheme to obtain money and property by false representations, the grand jury was authorized to explore every aspect of that scheme in an effort to determine whether a federal crime had been committed.
[40] A subpart of the materiality argument is that Abrams’ answers in no way “deterred, misled or otherwise influenced the grand jury from conducting and completing its investigation.” Appellant’s brief at 50. This contention misperceives the legal requirements regarding materiality. The government need not show that because of the perjured testimony, the grand jury threw in the towel. Actual impediment of the investigation is not required. E. g., United States v. Makris, supra; United States v. Gremillion, supra. Such a ridiculous rule would mean that the grand jury believed the witness and placed so much importance on his testimony that further inquiry was useless. Grand jurors are capable of judging credibility and they are free to disbelieve a witness and persevere in an investigation without immunizing a perjurer. All the law requires is that the witness’ answers were capable of influencing the tribunal on the issue before it, including any matters collateral thereto. The answers analyzed above easily passed that test and the Trial Court’s finding and instruction on materiality were proper. [41] Finally, Abrams complains that the government failed to place before the jury evidence of materiality. This complaint is frivolous. One way in which the government can meet its burden on this score is by introducing the transcript of the prior proceeding. See Damato, supra, 554 F.2d at 1373 and cases cited in note 3. To paraphrase what one Court stated, the best way to know what the grand jury deems material is by reading what it asked about. United States v. Sweig, S.D.N.Y., 1970, 316 F. Supp. 1148, 1164. Not only was the entire transcript of all three Abrams’ grand jury appearances introduced at trial, but the jury additionally had before it the Abrams indictment which set forth the factual basis[50] for the Trial Judge’s finding and instruction on materiality as required in this Circuit. Se Brumley and Damato, supra. [42] B. Count III: The Eduardo Valdez Case[43] Eduardo Valdez, like Yva Henry, was a client of Davis. The Valdez “charge sheet,”[51] Gov’t Ex. 15, shows the costs incurred in his behalf. Under the heading “COURT REPORTERS,” the following handwritten entries appear:
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of Jones in the case of Clark v. Jones. Apparently neither of these two depositions had anything to do with the Valdez case.
[45] The following Abrams testimony is the subject of count III:Q.1 Now, looking at Grand Jury Exhibit No. 2, do you recognize the handwriting?
A.1 Yes.
Q.2 Whose handwriting is that?
A.2 Mine.
Q.3 All that handwriting?
A.3 Yes.
Q.4 You have depositions listed there.
A.4 Yes.
Q.5 That’s your handwriting, also?
A.5 Yes.
Q.6 In cases when you charge for a deposition like that did the particular client have a deposition taken?
A.6 Yes.
Q.7 And they would be — would you have somebody, a court reporter there to take down what they said?
A.7 I wouldn’t be aware — I wouldn’t be there when the court reporter was there.
Q.8 But there would be a cost?
A.8 Yes.
Q.9 Who would give you that cost? How would you know what to charge for a particular item like that?
A.9 I would get a bill.
Q.10 From whom?
A.10 From the court reporter.
Q.11 Then you’d take that bill.
On the bill would it say the deposition or the particular work that was done on that?
A.11 Yes.
Count III alleges the following violation:
[46] While it is undoubtedly true that the Valdez charge sheet did not accurately reflect the costs, it is clear that Abrams was never asked whether and never stated that the charge sheet did accurately reflect the costs. Indeed, careful scrutiny of these answers in light of Bronston v. United States, 1973, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 reveals that none of these answers is literally false. Bronston stands for the proposition that the federal perjury statute, 18 U.S.C.A. § 1621, is not violated when a witness gives an evasive, nonresponsive but literally true answer, even if the answer is intentionally misleading and arguably false by negative implication.[54]The aforesaid testimony of Anita Abrams as she then and there well knew and believed, was false in that she had prepared the charge sheet in case number 5469 on Eduardo Valdez which reflects that check number 1897 dated May 19, 1975 in the amount of $80.00 was paid to Jack Besoner and Associates for court reporter costs which she knew did not accurately reflect the costs; all in violation of Title 18, United States Code, Section 1623.
Moreover, Bronston expressly places on the questioner the burden of pinning the witness down to the specific object of the inquiry. Chief Justice Burger wrote, “Precise questioning is imperative as a predicate for the offense of perjury.”409 U.S. at 362, 93 S.Ct. at 602, 34 L.Ed.2d at 576. [47] As to the specific answers contained in Count III, there is no indication in the record that answers 1-5 are false. Questions and answers 7-11 are framed in terms of what Abrams “would do” as a matter of normal office routine and there is insufficient evidence in the record to support a conclusion beyond a reasonable doubt that these answers are false. None of questions 7-11 asks specifically what Abrams actually did with respect to the Valdez case. The only question which comes even close to asking directly about Valdez, by use of the verb “did” instead of “would,” is No. 6: “In cases when you charge for a deposition
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like that did the particular client have a deposition taken?” (Emphasis added.) This question suffers an infirmity similar to those in questions 7-11, namely, it inquires about cases (plural) “like that”, not about the Valdez case in particular.[55]
There is insufficient evidence in the record to support a conclusion beyond a reasonable doubt that Abrams’ affirmative response to question No. 6, indicating that in cases like that a deposition was taken, is false. Because the questioner failed, for whatever reason, to pin Abrams down on these charges and asked instead general hypothetical questions,[56] Abrams’ conviction on Count III must be reversed. Since there is no way at this point for the government to cure the questions’ defects, a judgment of acquittal must be entered on Count III. Brumley, supra, 560 F.2d at 1277.
[48] II. Fair Trial
[49] Abrams contends that her Fifth Amendment due process right to a fair and impartial trial and her Sixth Amendment right to effective assistance of counsel were violated by the Trial Judge’s conduct which prejudiced the defense in the eyes of the jury. As examples of a biased attitude against the defense, appellant cites nine incidents in the presence of the jury and six in its absence. These incidents fall generally into four categories: (i) interjection into the examination of witnesses; (ii) unjustified criticisms and rebukes of defense counsel; (iii) challenging defense questions without the government interposing an objection; and (iv) generally hostile remarks to defense counsel.
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viewed as a whole, simply do not amount to intervention which could have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1223-24.[60]
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Second, the Court instructed the jury that (i) it was not to assume from his questioning of a witness that he had any opinion on the matter to which the questions related; (ii) it was not to draw any inference against the side to whom an admonition may have been addressed; (iii) it should disregard any opinion of his as to the facts; and (iv) it was the sole judge of Davis’ credibility despite the court’s remarks aimed at putting a stop to repetitious testimony by Davis.[61] Third, defense counsel conceded at oral argument that the Judge’s behavior did not prevent him from conducting the defense as he ordinarily would have. Fourth, the defense was not the sole target of the Judge’s dissatisfaction; the Court demonstrated some pique toward the government as well. See United States v. Bridges, 5 Cir., 1977, 551 F.2d 651; Duran v. United States, 9 Cir., 1969, 413 F.2d 596, 600. Fifth, and most significant, the acquittal of Abrams on Count I further negates any claim that the jury was affected by the Judge’s allegedly biased attitude. United States v. Bridges, supra.
[52] While we do not condone a Trial Judge’s disparagement of the advocates appearing before him, in the final analysis, the question whether prejudicial trial court conduct reaches constitutional magnitude is a matter of degree. In light of all the factors enumerated above, we do not believe that, standing alone, the court’s handling of the trial so prejudiced the defense in the eyes of the jury as to warrant reversal on Fifth or Sixth Amendment grounds.[53] III. Failure To Grant Mistrial
[54] The government called as a witness Sgt. Paul Janowski who had assisted in executing the search warrant of Davis’ office.[62]
When asked by whom he was employed, Janowski responded, “Dade County Organized Crime Bureau.” Defense Counsel immediately objected and moved for a mistrial, stating that the answer was prejudicial. The motion was summarily denied.
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truthful. Appellant also concedes that it is customary to have witnesses state where they are employed. In addition, we are compelled to ask one question: if the answer had in fact infected the jury in the manner suggested, why would it have acquitted Abrams on Count I? Moreover, the jury was instructed more than once that the sole issue before it was whether Abrams deliberately lied to the grand jury and that nothing she did in Davis’ office by way of over- or undercharging a client was relevant. Another factor negating likely prejudice is the jury’s possession during its deliberation of all Abrams’ grand jury testimony in which there was not one shred of evidence linking Abrams or the Davis office to the Mafia or organized crime. The possibility that this one isolated answer — given in the context of the whole trial where there was not another word to show any connection to the syndicate — could cause a reasonable juror to jump to the conclusion that Abrams had any such connection is farfetched. We refuse to credit jurors with such active imaginations and so little common sense.
[57] The Trial Judge did not abuse his discretion in denying the motion for a mistrial and the record, taken as a whole, fails to demonstrate that Abrams was denied a fair and impartial trial. [58] The conviction and sentence on Count II is affirmed. The conviction on Count III is reversed and a judgment of acquittal is to be entered on that count. [59] AFFIRMED IN PART and REVERSED IN PART.Abrams’ grand jury testimony and Davis’ trial testimony on accounting procedures was far from clear; indeed, it can only be described as totally evasive. We have, however, gleaned from the record that at the time when Abrams took over as Davis’ bookkeeper, Davis’ accountant was keeping tabs on costs disbursed in behalf of clients through the use of cost cards which he personally maintained. From these cost cards, Abrams would prepare closing statements, pay bills, etc. She ultimately instituted a system of “charge” or “cost” sheets on which she (as opposed to the accountant) would enter various costs for each client as they were incurred. According to Davis, charge sheets were kept separate from the file. The cost sheet for the Henry case was missing during the grand jury hearing and at trial and nothing in the record explains its unavailability.
The grand jury testimony given to the jury additionally disclosed one other method of keeping track of costs chargeable to clients. The accountant maintained a journal on which Davis checks made out by Abrams in payment of each client’s bills for costs were entered by the accountant. The journal sheet for Yva Henry, not made an exhibit at the Abrams trial, showed $150, not $231.50, in costs. This $150 amount did not include checks issued to Dr. Fox for the two conferences as the following grand jury testimony demonstrates:
Q. When such conferences are billed to a client, would Dr. Fox be paid for such a conference?
A. Yes, he would.
Q. How would he be paid?
A. By check.
Q. And where would this cost be listed?
A. On the charge sheet.
Q. So if there was a conference, such as this, there should be a check to Dr. Fox; is that right?
A. There should be, yes.
Q. That’s also not listed in this ledger sheet concerning Yva Henry that you looked at before, is it?
A. No. Grand Jury Tr. at 84 (Gov’t Ex. 2A).
1973, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 and United States v. Brumley, 5 Cir., 1977, 560 F.2d 1268, discusse infra in connection with Count III, answers to such questions cannot form the basis of a perjury conviction.
2. At the time and place aforesaid the Federal Grand Jury was conducting an investigation into various allegations stemming from insurance claims filed by the law offices of James A. Davis, II. These claims for damages were made on behalf of people involved in vehicular accidents who were represented by the Davis law firm. Settlements of accident claims would be negotiated by personnel at Davis’ office and insurance drafts would be issued jointly to the client and James A. Davis, II. Payment would be made by Davis’ office to the accident victim based on the amount of settlement after deducting attorney’s fees, medical expenses and miscellaneous costs.
3. It was a matter material to said investigation to determine whether the expenses and costs deducted were actually incurred.
[W]e view as a serious impropriety the trial judge’s failure to preserve an appearance of impartiality.
But we base our decision to reverse on the conduct of the trial as a whole. We do not find it necessary to decide whether the trial judge’s behavior standing alone was sufficiently prejudicial to require reversal.
547 F.2d at 297-98.
A trial judge must exhibit neutrality in his language and in the conduct of a trial before a jury. He should avoid any possibility of prejudicing the jury through his criticism of or hostility toward defense counsel. . . . Of course a trial judge is not required to remain silent and passive throughout a jury trial. To the contrary, he has a duty “to participate directly in the trial, and to facilitate its orderly progress and clear the path of petty obstructions. It is his duty to shorten unimportant preliminaries, and to discourage dilatory tactics of counsel.” . . . But in performing this duty he must make every effort to preserve the appearance of strict impartiality. “The opinion of the judge, on account of his position and the respect and confidence reposed in him and in his learning and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires impartial conduct on his part. . . . “[T]he judge is a figure of overpowering influence, whose every change in facial expression is noted, and whose every word is received attentively and acted upon with alacrity and without question.” [Citations omitted.]
Id. at 297.
MR. HIRSCHHORN: I have another case that is a more recent case with respect to perjury. It is the Lasater case. It’s an Eighth Circuit case which says the false declarations in question must tend to influence, mislead or hamper the Grand Jury investigation.
THE COURT: Mr. Hirschhorn, this is not the first hearing we have had. We have had three other hearings. I urged you all of the time to give me the cases upon which you rely so I can make an investigation. You spring a thing like this on me at the last moment. The motion is denied.
At two o’clock, start putting on your case.
MR. HIRSCHHORN: If I might, Judge, with all due respect —
THE COURT: With all due respect to this court, it seems to me that you ought to abide by the rulings of the court and when I asked you to give me your decisions and your authorities, you ought to do it. That would really give your client a break because then if you have a good point, I would have been able to check it.
MR. HIRSCHHORN: Judge, as a practical matter, with all due respect, there is a tactical decision I have made in this case on the point I was about to argue. I don’t care to give the government the benefit of my theory of the defense. I don’t think I’m required to under the Fifth Amendment. I don’t think I’m required to —
THE COURT: The motion is denied, Mr. Hirschhorn. You will be here at two o’clock.
Who are you going to call as your witnesses?
MR. HIRSCHHORN: Your Honor may I just give the court one case to read?
THE COURT: I’m not going to be able to read it now, Mr. Hirschhorn. I have to eat. I have to work on the case.
MR. HIRSCHHORN: I’m going to work on the case too. I’m not going to eat.
THE COURT: Tell me who your first witness is going to be?
MR. HIRSCHHORN: I’m not certain.
THE COURT: You are not going to call any witnesses are you?
MR. HIRSCHHORN: I’m not certain whether I will or not.
THE COURT: Two o’clock.
MR. HIRSCHHORN: If the court please, may I give the case to your clerk?
THE COURT: Yes. I don’t like to be kidded, Mr. Hirschhorn. I didn’t believe you were going to put on your witnesses in the first place. You put down Mr. Davis. You are not going to call him.
MR. HIRSCHHORN: He’s been subpoenaed, Your Honor.
THE COURT: The court will be in recess until 2:00 p. m.
Tr. 123-25 (emphasis added). Davis, as noted earlier, did testify for the defense.
This colloquy took place after the jury retired:
MR. HIRSCHHORN: Your Honor, I have a couple of matters in anticipation of an adverse verdict. First, I respectfully request the maximum time allowable within which to file a motion for new trial and renew motions under 29(c).
THE COURT: She will be in jail anyway. It wouldn’t make any difference. You can have as much time as you want.
MR. HIRSCHHORN: The second issue, Judge, in the event there is a guilty verdict, will the court remand her at that time?
THE COURT: I think so.
MR. HIRSCHHORN: Well, there is no risk of flight here.
THE COURT: I don’t know whether there is or not. What does the government say? I think there is.
MR. HIRSCHHORN: I might say, Judge, it will be the second time in six years of my Federal criminal cases I have had a defendant remanded pending a presentence.
THE COURT: Mr. Hirschhorn, you’re not running this court.
MR. HIRSCHHORN: I know.
THE COURT: I just want to let you know that.
MR. HIRSCHHORN: I’m well aware of that.
THE COURT: Apparently you have been trying to all of the time.
MR. HIRSCHHORN: Well, I am well aware of that. That’s why I asked the government first. In fact, I told the government you would probably remand her. But I would like to have a hearing on the issue of whether remand is really necessary.
THE COURT: We will have it in the next few days. I will order the defendant taken into custody right now pending the return of the verdict. I don’t want you to start trying to push me around. I don’t like that, Mr. Hirschhorn.
Tr. 222-24 (emphasis added).
(1) When defense counsel asked for a short recess to discuss a stipulation (at that time the parties were awaiting the arrival of government witnesses), the Court stated:
Remember I asked you to do that in advance of the trial. There are twelve people here waiting. We are going to take a recess. This is the last time we are going to do it.
Tr. 20.
(2) When defense counsel asked for Jencks material, the court stated, “You were supposed to be here at seven o’clock this morning and pick that up.” Tr. 57. Apparently the Court was unaware that counsel had arranged to meet and exchange this material at a more ordinary hour the day before, at which time some documents had inadvertently been omitted.
(3) This exchange occurred during the examination of Mr. Gross of the Florida Bar:
Q You said it is not unusual to get hundreds of these complaints?
A I get hundreds of complaints.
Q From clients who think it is unfair that lawyers —
A That’s right.
Q Who handle their cases on a contingency basis and wind up getting as much or more than they do?
A Well, I don’t know.
THE COURT: How is that going to prove or disprove any issue in this case? What is the relevancy of that?
MR. HIRSCHHORN: I didn’t hear the government object.
THE COURT: That doesn’t give you the privilege of asking irrelevant questions.
MR. HIRSCHHORN: I have a theory in the case. I believe it is relevant.
THE COURT: Tell me the theory of the case.
MR. HIRSCHHORN: Judge, I believe that the government — the jury is entitled to know, this is not an isolated incident involving one particular lawyer.
THE COURT: That doesn’t make any difference. That has absolutely no relevancy on whether this woman committed perjury or not. This is what we are here to determine, whether she was asked certain questions and whether she wilfully told falsehoods. That is the issue in this case. It is not the question of whether the lawyers or doctors overcharged or whether they engaged in ambulance chasing or anything else. The question here is whether this woman committed perjury. Tr. 68-69.