The opinion of the court was delivered by: RODRIGUEZ
The defendant, Robert F. Simone, Esquire, is accused of having committed perjury before the Honorable Harold A. Ackerman, U.S.D.J. for the District of New Jersey during the course of a disqualification hearing on October 16, 1984. Although there are a variety of defenses to the charge of perjury, defendant has raised two somewhat novel defenses at the pretrial stage in the context of the present motion to dismiss the indictment.
First, defendant contends that this Court should dismiss the indictment because he is the victim of a "perjury trap" set by the government. Second, defendant asserts that he is the victim of a selective prosecution. Defendant seeks, at the least, a hearing to explore the government's conduct in this case.
Before embarking on an analysis of these defenses, it is necessary to set forth a brief chronology of the events leading up to the defendant's indictment.
In 1981, the Federal Bureau of Investigation began an undercover investigation into organized crime's involvement in Atlantic City. During the course of that investigation, on April 24, 1984, Simone was called to appear as a witness before the Grand Jury. As a result of the investigation, on September 18, 1984, a federal grand jury returned an indictment against Philip Leonetti, charging Leonetti with conspiracy to extort over $650,000 and two substantive counts of extortion in violation of the Hobbs Act. At the time, Simone was legal counsel to Leonetti. The government, however, objected to his representation on the following grounds:
(1) Simone was an unindicted co-conspirator in the Leonetti indictment and the subject of a continuing grand jury investigation;
(2) Evidence to be introduced at trial, including tape recordings, would identify Simone as an unindicted co-conspirator;
(3) Simone was a witness to certain conspiratorial acts;
(4) Simone had refused to answer questions before the Grand Jury on the grounds that the answers would tend to incriminate him and had broached the possibility of receiving immunity;
(5) Simone had and does represent other unindicted co-conspirators, including Nicodemo Scarfo and Frank Gerace; and
(6) Simone previously represented another witness to the conspiratorial acts, but withdrew his representation when informed by the government of his own status as a witness in the case.
Leonetti was arraigned before the Hon. Harold A. Ackerman, U.S.D.J., on September 28, 1984 and the government moved formally at that time to disqualify Simone from representing him. The disqualification hearings began on September 28; continued on October 5; and culminated on October 16, when Simone was sworn, took the stand and answered questions concerning the government's contention that he was a potential witness in his client's case.
On October 23, 1984, the government made an ex parte submission of transcripts and summaries of consensual taped conversations on which Simone was a speaker to Judge Ackerman for an in camera inspection. It is Simone's testimony, when viewed in light of his taped statements, which forms the basis of the present perjury indictment. On November 19, 1984, Judge Ackerman ruled that (1) Simone was not entitled to review the tapes as a release of the tapes "would jeopardize witnesses and an extremely sensitive investigation" and (2) Simone was disqualified from representing Leonetti. The present indictment charging perjury was returned against Simone on September 19, 1985.
The defendant first contends that the conduct of the government was so outrageous as to deny him due process under the Fifth Amendment in that he alleges that the government created and forced him into a "perjury trap." This argument is based essentially upon one act by the government which the defendant alleges fell below the standard acceptable to proper use of governmental power. According to the defendant, the government concealed from him and from the Court the existence of taped conversations on which he was a speaker, and then after he testified, made a secret submission of these tapes to the Court in camera. In other words, defendant argues that the government knew the answers to the questions it planned to ask and knew the answers he was going to give, having heard them before, and that its only purpose in placing him on the witness stand was to obtain a perjury charge.
Defendant concedes that a prosecutor need not warn a witness before a Grand Jury of contrary surveillance materials, but argues that "such a principle would not be applicable in the context of a disqualification hearing where critical First and Sixth Amendment rights are implicated." (Defendant's brief, at 12). The defendant then suggests that if he "had . . . been provided with copies of these transcripts when he requested them, he would have had an opportunity to either explain what they meant, recant, further resist disqualification, or agree to be disqualified." (Defendant's brief, at 8). It is defendant's position that ours is a "government of laws and not of men" and that there are bounds beyond which the prosecution may not go without offending traditional notions of fair play.
The question before this Court is whether, on the record before it, the indictment should be dismissed as having been obtained in violation of Fifth Amendment due process principles, or whether there is insufficient evidence before the Court to make this decision and a due process hearing is required to further explore the government's conduct. This Court holds, for the reasons set forth below, that there is no need for an evidentiary hearing as there is sufficient evidence in the record for it to determine that defendant's due process rights have not been violated. Accordingly, defendant's motion to dismiss the indictment on the ground that he was "trapped" into committing perjury is denied.