notes taken by Mr. Simon, as deciphered by Mr. Simon and summarized in the June 20, 1985 typewritten memorandum to defendant's present counsel, show that defendant informed the agents that a lis pendens had been filed against the Shelburne property. It is clear, of course, that a lis pendens had not only been filed, but that Messrs. Skalsky and Gambino had released this claim in exchange for the $250,000.00. Assuming, arguendo, that the defendant did mention the filing of the lis pendens, this partial disclosure of the facts was also misleading. "In other words, half of the truth may obviously amount to a lie, if it is understood to be the whole." W. Prosser & W. Keeton, The Law of Torts, § 106 at 738 (5th ed. 1984) (discussing liability for civil deceit actions based on incomplete disclosure).
Defendant, by his argument that the April 15 agreement did not obligate him to reveal the receipt of the settlement monies because he was not asked explicitly whether any money was made on the transaction, seeks to take advantage of the Government's asserted lack of aggressiveness with respect to acquiring information concerning the Shelburne income. In the same vein, he cites and relies upon Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568 (1973), and other cases dealing with the standard of conduct required to uphold a conviction for perjury. These cases are inapposite. We do not have a perjury charge here. Nor do we have a situation similar to that in Bronston, for example, where the questioner and the person to whom the questions were addressed were in an adversarial relationship. The defendant herein, who knew he was considered only a witness by the Government, and who was not the target of the investigation, had agreed to cooperate with the Government's investigation. Particularly in light of the fact that the Government clearly did ask specifically whether Messrs. Skalsky or Gambino had received "any monies" in each of the several other business deals discussed during the interview, we disagree with defendant's claim that he was under no obligation to reveal the receipt of the Shelburne settlement monies.
Accordingly, the defendant's motion to dismiss the indictment shall be denied. The Court shall enter an appropriate order.
O R D E R
This matter having come before the Court on a motion by the defendant, Robert Skalsky, for dismissal of the indictment; and
For the reasons set forth in the Court's opinion filed this date;
IT IS on this 7th day of November, 1985 hereby
ORDERED that said motion be and the same is hereby DENIED.
UNITED STATES DEPARTMENT OF JUSTICE
ORGANIZED CRIME AND RACKETEERING SECTION
WASHINGTON, D.C. 20530
Camden Field Office
Post Office Box 172
Camden, New Jersey 08101
April 15, 1980
Michael K. Simon, Esq.
Suite 700, 1315 Walnut Street
Philadelphia, Pennsylvania 19107
Re: Robert Skalsky
Dear Mr. Simon:
On the understandings specified below, the United States will not prosecute Mr. Skalsky for potential charges based upon information supplied to this office by him. Such immunity specifically includes charges related to his activities in dealing with Emmanuel Gambino. This agreement is expressly conditioned on this office's knowledge of all activities and possible wrongdoing on Mr. Skalsky's part in connection with Emmanuel Gambino and his representation through you that no other such wrongdoing exists.
The understandings are that Mr. Skalsky shall truthfully disclose all information with respect to the activities of himself and others concerning all matters about which this office inquires of him, and further, shall truthfully testify before the Grand Jury and/or at any trial or other court proceeding with respect to any matters about which this office may request his testimony.
It is further understood that this agreement is limited to the District of New Jersey, and cannot bind other federal, state, or local prosecuting authorities, although this office will bring the cooperation of Mr. Skalsky to the attention of other prosecuting offices, if requested. If any other prosecuting office should commence an investigation of Mr. Skalsky for the possible wrongdoing referred to in this letter, we will recommend to such other prosecuting agency that it adopt the terms of this letter. It is also understood that on Constitutional grounds, any testimony given pursuant to this agreement is tainted for use by any other prosecuting office.
It is further understood that Mr. Skalsky must at all times give complete, truthful and accurate information and testimony. Should it be judged by this office that Mr. Skalsky has given false, incomplete or misleading testimony of information, or has otherwise violated any provision of this agreement, this agreement shall be null and void and he shall thereafter be subject to prosecution in this and any other prosecuting office for any federal criminal violation of which this office has knowledge, including, but not limited to, perjury and obstruction of justice. Any such prosecutions may be premised upon any information provided by Mr. Skalsky and such information may be used against him.
Finally, it is expressly understood that the fact of this agreement is not to be construed as a legal or factual determination by this office that Mr. Skalsky has violated any federal law. This understanding has been entered into solely to facilitate this office's investigation and to clarify Mr. Skalsky's status as a witness.
No additional promises, agreements and conditions have been entered into other than those set forth in this letter and none will be entered into unless in writing and signed by all parties.
Very truly yours,
GEORGE E. WILSON
AGREED AND CONSENTED TO:
MICHAEL K. SIMON, ESQ.
Attorney for Robert Skalsky
U. S. Department of Justice
Camden Field Office
Newark Organized Crime Strike Force
Fifth Floor, 401 Market Street
Camden, N. J. 08101
July 10, 1981
Michael K. Simon. Esq.
1315 Walnut Street
Philadelphia, Pa. 19107
RE: Robert Skalsky
Dear Mr. Simon:
On April 5, 1980, this office issued a letter form of immunity to your client, Robert Skalsky. One of the terms of that agreement was as follows:
"It is further understood that Mr. Skalsky must at all times give complete, truthful and accurate information and testimony. Should it be judged by this office that Mr. Skalsky has given false, incomplete or misleading testimony or information, or has otherwise violated any provision of this agreement, this agreement shall be null and void".
A review of the statement made by Mr. Skalsky on April 15, 1980 to Special Agents of the Internal Revenue Service, as well as the Grand Jury testimony which he gave later that day (in which statement to the IRS was incorporated) reveals, in the light of more recently acquired third-party evidence, that Mr. Skalsky's testimony in several respects was not complete, truthful, and accurate.
Accordingly, please be advised that the agreement of April 15, 1980, is no longer of any force and effect.
Very truly yours,
GEORGE W. WILSON
cc. Charles Schmidtheiser