T. 5), Simone insisted that he was prepared at that time to proceed with the hearing on disqualification. (September 28 T. 6). Prior to commencing the hearing, Judge Ackerman read into the record the September 20 letter (September 28 T. 10-13) and again asked Simone if he wanted to resist the government's application to have him disqualified (September 28 T. 13:8-12). Simone then requested that the government produce evidence to support its allegations. (September 28 T. 14:1-2).
From a review of the government's presentation of evidence and Simone's own statements during that presentation, it becomes clear that Simone was aware of the government's areas of concern -- those very areas about which the government later questioned him under oath. On October 5, 1984, Simone admitted that he had been notified by letter that he was the subject of a continuing grand jury investigation. (October 5 T. 5-6). He admitted that he knew "within a matter of two to four weeks before the [Leonetti] indictment" that the government viewed him in a position of conflict (October 5 T. 6:16-25). When faced with the government's representation that it had informed him on the very day of the Leonetti indictment that he himself was viewed as an unindicted co-conspirator, he stated to the Court, "You can consider that a matter that's not in question, your Honor." (October 5 T. 7:9-15). In addition, he was aware that former Atlantic City Mayor Michael Matthews' confession referred to his presence at a meeting critical to the Leonetti indictment, (October 5 T. 24), and that the government could place him at a second critical meeting during which certain alleged conspiratorial acts occurred (October 5 T. 33). Clearly, Simone was well informed by the government of its reasons for wanting to disqualify him prior to testifying under oath.
Second, the record supports a finding that Simone knew prior to testifying under oath of his constitutional rights, including his Fifth Amendment right to refuse to answer any and all questions that might tend to incriminate him. During his appearance before the Grand Jury on April 24, 1984, he was specifically informed of this right by the prosecuting attorney, Mr. Bennett, (April 24 T. 3:12-16), and in fact invoked this privilege throughout the Grand Jury questioning. (See, e.g., April 24 T. 5-7). Again, at the October 16 hearing when informed at that time that he was to be placed on the stand under oath, he stated, "I have a Fifth Amendment right I assume." (October 16 T. 32:8).
Prior to being questioned before the Grand Jury he was also informed that (1) his answers could be used against him in a subsequent criminal procedure (2) he could be prosecuted for perjury if he made a materially false statement intentionally and (3) he had a right to consult with an attorney. (April 24 T. 3-4). He also asserted the attorney-client privilege with respect to questions concerning a former client, Philip Leonetti, and a present client, Stanley Branche. During the course of the hearings on September 28 and October 16, Simone stated that he had consulted counsel, specifically a constitutional law attorney, "Mr. Lore, who had been advising [him] . . . ." (September 28 T. 2; October 16 T. 34). Simone also was aware that he might have an additional option in testifying, to receive immunity from prosecution. In fact, he specifically asked prior to being sworn at the October 16 hearing, "Are they going to give me immunity?" (October 16 T. 37:10).
The record evidence supports a conclusion that Simone understood the nature of his situation and his rights prior to giving testimony under oath on October 16. He was aware of the Grand Jury investigation (October 5 T. 4-7); he was given written notice of the government's objections to his representation of Philip Leonetti (September 20 letter); he was reminded of these objections throughout the proceedings; he was given opportunities to disqualify himself; he was instructed by the Court to reflect carefully on the government's objections (September 28 T. 31, 37); he was warned by the Court that the government-was going to put him on the witness stand and informed by the government that he would not be given immunity (October 16 T. 37); and he was informed of the scope of the questioning prior to the questions being asked. (October 16 T. 44-45).
This is not a situation like those in which the courts have voided perjury convictions. This is not a situation where the questioning body was acting outside the scope of its lawful authority and therefore, the courts voided the convictions. Brown v. United States, 245 F.2d 549 (8th Cir. 1957)(grand jury inquired into matters not within its competence); United States v. Cross, 170 F. Supp. 303 (D.D.C. 1959)(congressional committee acting as criminal investigator without legitimate legislative purpose).
Nor is this a situation where the questions asked were so unrelated to the inquiry before the Court that the only possible government motive in calling the witness could have been to induce perjury. Brown v. United States, supra, 245 F.2d at 553 (Eighth Circuit quoted district court's finding that grand jury activities had come "'perilously close to being a fraud on the jurisdiction of this Court.'").
Rather, this is a situation more akin to the situation before the district court in the Northern District of Illinois in United States v. Gonzales, 620 F. Supp. 1143 (N.D. Ill. 1985). In that case, the Court was faced with an attorney who when called to appear before the Grand Jury, was told that he was the subject of the investigation, was advised of his Fifth Amendment rights, was given the option not to testify at all, was asked questions material to the grand jury investigation, gave answers consistent with past answers, and subsequently was charged with perjury. The Court refused to dismiss the indictment. In finding no perjury trap, the Court stated:
While the story of the conversion of Saul on the road to Damascus perhaps lives on partly because genuine conversions are so uncommon, there was nothing inherently unfair in the government obtaining the defendant's testimony in the circumstances presented here. It was not inconceivable that, under oath for the first time, defendant would testify as the government apparently believed the truth to be, and its case would be certain. If in fact he lied under oath, as the government charges, he cannot be insulated from a perjury charge solely because he said what the government anticipated he probably would say. Defendant had non-coercive options and he was fully warned if he, an attorney, chose to lie, that was his decision, and the government can compel him to answer for the consequences.
Id. at 1148-49.
When viewed against the backdrop of the record in this case, Simone's allegation that he was trapped into committing perjury is without merit. Simone is an attorney, who was informed of the areas of government concern well in advance of his testimony, who knew his constitutional rights and in fact invoked those rights on numerous occasions. The Court is not persuaded that the government's conduct in not bringing the existence of the defendant's taped conversations to the Court's and to the defendant's attention prior to his taking the stand is so outrageous as to constitute a material misrepresentation offending traditional notions of due process. Not only was the government under no obligation to inform Simone that it had information contrary to his "proffered" testimony, see United States v. Goguen, 723 F.2d 1012, 1018 (1st Cir. 1983); United States v. Jacobs, 531 F.2d 87, 89 (2d Cir. 1976); United States v. Chevoor, supra, 526 F.2d at 185; United States v. Sun Myung Moon, 532 F. Supp. 1360, 1371 (S.D.N.Y. 1982); but also, in light of the facts of this case, the government had a sufficient reason for not disclosing the existence of the tapes in that disclosure would jeopardize an ongoing criminal investigation and perhaps the lives of undercover witnesses. Judge Ackerman ruled, after reviewing the tapes in camera, that Simone was not entitled to review them.
Defendant contends that the government's conduct in not revealing the existence of the tapes prior to his testimony is somehow more egregious in the instant context of a disqualification hearing where his client's Sixth Amendment rights were at stake than in the more common context, exemplified in the above-mentioned cases, of a grand jury proceeding. This Court does not agree.
The Court has reviewed the transcript of the questions put to Simone while under oath and finds that they are directly related to the question which was before the Court on October 16, 1984 -- whether Simone should be disqualified from representing Philip Leonetti on conflict of interest grounds as he was a potential witness in the Leonetti trial. Where, as here, the questions bear directly on the question before the Court, no further inquiry into the prosecutor's purpose need be made. See United States v. Nickels, supra, 502 F.2d at 1176; Gershman, supra, 129 U. Pa. L. Rev. at 688.
It is the opinion of the Court that no hearing is required to determine whether the defendant was "trapped" into perjuring himself as this question can be answered from evidence already in the record. The Court concludes from a review of the record evidence that Simone's due process rights were not violated.
Our legal system provides methods for challenging the government's right to ask questions; however, lying is not one of them. Bryson v. United States, 396 U.S. 64, 72, 24 L. Ed. 2d 264, 90 S. Ct. 355 (1969); see United States v. Wong, 431 U.S. 174, 178, 52 L. Ed. 2d 231, 97 S. Ct. 1823 (1977). In this situation, Simone could have (1) agreed to disqualification, (2) declined to answer, (3) asserted a privilege either not to incriminate himself under the Fifth Amendment or not to disclose attorney-client communications, (4) testified truthfully under a grant of immunity if the government had been willing to offer this, or (5) answered honestly. If, as the government contends, he answered falsely, he took a course that the Fifth Amendment gave him no privilege to take. Mandujano, supra, 425 U.S. at 584. Defendant's answers were not induced by governmental tactics or procedures so inherently unfair under all circumstances as to constitute a prosecution for perjury in violation of the Due Process Clause of the Fifth Amendment. Defendant's motion to dismiss the indictment on the ground that he was "trapped" into committing perjury is denied.
SELECTIVE PROSECUTION DEFENSE
Defendant's second contention is that the indictment should be dismissed because the government's conduct in investigating and prosecuting the present case was so outrageous as to constitute "government harassment and intimidation designed to curb zealous advocacy on behalf of unpopular clients." (Defendant's brief, at 19). It is defendant's position that the prosecution was undertaken solely to punish him for defending so-called "organized crime" figures. According to defendant, he has been the victim of secret tappings for approximately three years and, in fact, was indicted for a tax crime in 1984 in the Eastern District of Pennsylvania, although ultimately acquitted of the charge.
The government argues in opposition that it is the defendant's burden to establish that he is the victim of a selective prosecution and that defendant has failed to meet this burden in that he has presented to the Court only unsubstantiated allegations.
Defendant replies that a due process hearing may be necessary to inquire into the government's motives.
The Court concludes that the defendant has not sustained its burden either of proving selective prosecution or to warrant a hearing on the matter. The Supreme Court has made it clear that the decision to prosecute is within the sound discretion of the prosecutor and that courts should be reluctant to examine a prosecutor's motives except in exceptional circumstances:
This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.
Wayte v. United States, 470 U.S. 598, , 84 L. Ed. 2d 547, 556, 105 S. Ct. 1524.
Therefore, defendant's burden is a heavy one. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). To shift the burden to the government to prove a non-discriminatory motive to prosecute, defendant must show: (1) while others similarly situated have not generally been proceeded against because of conduct of the type of which he has been accused, he has been singled out for prosecution and (2) the government's discriminatory selection of him has been invidious or in bad faith, such as the desire to prevent his exercise of constitutional rights. United States v. Myers, 635 F.2d 932, 940 (2d Cir.), cert. denied, 449 U.S. 956, 66 L. Ed. 2d 221, 101 S. Ct. 364 (1980); Berrios, supra, 501 F.2d at 1211.
Defendant has made no showing as to the first part of this two-part test. As to the second part, defendant makes the conclusory allegation that the government has prosecuted him for perjury in retaliation for his exercise of his constitutional right to represent "unpopular" clients. The record does not support such a conclusion.
The record shows that defendant was advised by the government, in advance of the indictment of his former client Philip Leonetti, that the government was opposed to such representation on the grounds that he was an unindicted coconspirator and a witness to various conspiratorial acts. Defendant was given the opportunity to disqualify himself or to testify truthfully concerning the government's allegations. He was afforded all constitutional safeguards. It is the government's position that the defendant chose instead to lie. The fact that he is an attorney who defends unpopular clients does not make him any different from or his rights any greater than those of any other witness who testifies under oath in a manner which the government believes to be untruthful. There is ample evidence justifying initiation of the prosecution in this case.
Defendant has presented no evidence that he has been singled out for prosecution from others similarily situated. Nor has he presented sufficient facts to create a reasonable doubt about the constitutionality of the prosecution. Therefore, no evidentiary hearing on the defense of selective prosecution is warranted, United States v. Ream, 491 F.2d 1243, 1246 (5th Cir. 1974), and defendant's motion to dismiss the indictment on this ground is denied.
There is sufficient evidence in the record for the Court to conclude that the defendant is not the victim of either a "perjury trap" or a selective prosecution. Accordingly, defendant's motion to dismiss the indictment on these grounds is denied.