United States v. Orville S. Clavey , 565 F.2d 111 ( 1977 )

BAUER, Circuit Judge.

Clavey was charged in an eight-count indictment specifying four counts of false swearing before a grand jury, three counts of failure to report income on his tax returns, and one count of conspiracy to extort funds from a liquor license holder. The Government established at trial that, while serving as Sheriff of Lake County, Illinois, Clavey received unreported income from several county residents in a series of transactions effected through his chief deputy, Jerome P. Schuetz, who testified against Clavey under a grant of immunity from prosecution. The jury ultimately acquitted Clavey of three of the false swearing counts and the extortion count, and convicted him of one count of false swearing and the three tax counts. He seeks reversal of his convictions on several grounds, the most significant of which are that the district court committed reversible error (1) by refusing to release a transcript of his grand jury testimony, (2) by refusing to admit evidence Clavey offered to rebut the testimony of a government witness, (3) by erroneously instructing the jury, and (4) by not responding to the jury’s request for supplementary instructions during its deliberations and failing to advise counsel of the jury’s inquiries to the court. We affirm his convictions for the reasons noted below.

I.

Clavey first contends that he was deprived of the effective assistance of counsel during the grand jury proceedings which led to his indictment.

Clavey appeared before the grand jury on two occasions without counsel. He retained counsel about five weeks after his second appearance. At that time, his counsel filed two unverified petitions with the district court for the release of a transcript of Clavey’s grand jury testimony so that he could advise Clavey whether or not to recant aspects of his prior testimony pursuant to the right established in 18 U.S.C. § 1623(d), which provides:

“(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.”

In the petitions, Clavey alleged that he could not recall the substance or detail of his testimony because of an illness and a skull fracture that adversely affected his memory.

Chief Judge Robson of the District Court for the Northern District of Illinois denied both petitions on the ground that Clavey had failed “to demonstrate with particularity a ‘compelling necessity’ for disclosure.” Approximately four months later the same grand jury returned the indictment in this case.

After the indictment was returned, Cla-vey moved to suppress it on the ground that he was denied the effective assistance of counsel in asserting his right to recant under 18 U.S.C. § 1623(d) by Judge Robson’s refusal to release a transcript of Clavey’s grand jury testimony to his counsel. Judge Lynch¹ denied the motion, and Clavey reasserts the claim here.

Federal Rule of Criminal Procedure 6(e) permits district courts to order the disclosure of grand jury' testimony to persons other than attorneys for the Government “preliminarily to or in connection with a judicial proceeding.”

We recently reviewed the standards to be applied by district courts in deciding whether to disclose grand jury testimony upon request:

“The Supreme Court has declared that the secrecy protected by Rule 6(e) ‘must not be broken except where there is a compelling necessity,’ which ‘must be shown with particularity.’ United States v. Procter & Gamble Co. [356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077]; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323. . . . [T]here still exists in cases in which disclosure is not provided for as a matter of right in 18 U.S.C. § 3500(e)(3) and Rule 16(a)(1)(A), Fed.R.Crim.P., a requirement that the party seeking disclosure show a need commensurate with the degree of secrecy remaining and the policy reason that justifies that secrecy.” Illinois v. Sarbaugh, 552 F.2d 768, 774 (7th Cir. 1977).

Inasmuch as Clavey was not entitled to a transcript of his testimony as a matter of right, the analysis set forth in Sarbaugh is applicable here. In the circumstances of this case, we agree with Judge Robson that Clavey did not establish a sufficiently “compelling” need for disclosure that outweighed the need to preserve grand jury secrecy.

We find significant, as did the district court, that Clavey refused to verify his petition as the district court requested. Though the purpose for which Clavey sought the transcript is no doubt a proper one, in that the transcript was sought in aid of his right to recant his prior testimony, we believe the district court was appropriately skeptical of Clavey’s unverified claim that he was unable to recall his prior testimony because of a poor memory attributable to physical impairments. Absent verification of Clavey’s ailments, there was no reason for the district court to assume that a transcript was essential to facilitate effective attorney-client deliberations concerning the possibility of Clavey’s recanting his pri- or testimony. Cf. United States v. Cowsen, 530 F.2d 734, 736 (7th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2227, 48 L.Ed.2d 831 (1976). Moreover, we note that, even without a transcript, Clavey could have obtained any information concerning his prior testimony needed by his attorney by reappearing before the grand jury and requesting a review of his testimony. During such an appearance Clavey could have communicated with counsel at any time outside the grand jury room.

The policy reasons justifying strict preservation of the secrecy of ongoing grand jury proceedings are compelling and should not be lightly discounted simply because a witness asserts an unverified need for a transcript of his prior testimony.² In view of Clavey’s failure to verify with particularity a compelling necessity for a transcript of his prior testimony, we do not believe the district court denied him the effective assistance of counsel by refusing to release a transcript to him. See Bast v. United States, 542 F.2d 893 (4th Cir. 1976); United States v. DiSalvo, 251 F.Supp. 740, 746 (S.D.N.Y. 1966).

II.

Clavey’s next argument is that the district court erred in refusing to admit evidence offered to rebut the testimony of Gene March, a government witness, that March had bribed Clavey with a $400 check to obtain a $1000 lie detector contract with the sheriff’s office. Clavey contended that March’s check, which Clavey had cashed, constituted repayment of a loan. March testified that he wrote “RT loan” on the face of the check, but only at Clavey’s request. To impeach March’s testimony that the check was a bribe rather than a loan repayment, Clavey’s counsel sought to admit evidence during his cross-examination of March and again during his case-in-chief that March had sought and obtained a personal loan from a Frederick Hedblum at approximately the same time he paid Cla-vey the $400. The trial judge refused to admit the evidence, and Clavey contends on appeal that his refusal constituted reversible error.

We agree with Clavey that evidence of March’s financial condition was relevant to the issue of whether Clavey had loaned him funds in the limited sense that it tended to make Clavey’s theory slightly “more probable . . . than it would [have been] without the evidence.” Fed.R.Evid. 401. However, relevant evidence may be excluded

“if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403.

The evidence here of a transaction in which the defendant did not partake was of limited probative value, and we cannot say that the trial judge abused his broad discretion under Rule 403 in determining that the evidence would have tended to confuse the issues and unduly consume time. United States v. Robinson, 503 F.2d 208, 216 (7th Cir. 1974), cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975).

III.

Clavey challenges the court’s charge to the jury in several respects.

A. Campaign Contribution Instruction

Clavey first argues that the court erred in allowing the jury to consider whether he diverted campaign funds to his own use when there was no evidence to support such a charge.

On the first day of the trial the bank account records of Clavey’s campaign fund were admitted into evidence without objection. As the trial proceeded, however, neither side made use of the records or included them in their respective theories of prosecution or defense. Nevertheless, over Clavey’s objection, the court instructed the jury:

“If you find beyond a reasonable doubt that funds contributed to a political campaign were diverted to the defendant’s personal use, then under the law these funds are income taxable to the defendant.” ³

Clavey contends that the court committed, reversible error in giving the campaign fund instruction because it provided the jury with a basis for convicting Clavey not rooted in the evidence. The Government concedes that the instruction was not supported by the evidence at trial, but argues that its inclusion in the charge was harmless error.

We agree with the Government that the instruction was harmless because, in the circumstances of this case, the jury could not have been misled by it. By its own terms, the instruction required the jury to find beyond a reasonable doubt that campaign funds were diverted to Clavey’s personal use before arriving at the conclusion that such funds constituted income taxable to Clavey. Because there was no evidence that any campaign funds were ever diverted to Clavey’s personal use, the jury could not have convicted Clavey on the basis of the campaign fund instruction. See United States v. Demopoulos, 506 F.2d 1171, 1180 (7th Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975); Long v. United States, 124 U.S.App.D.C. 14, 20, 360 F.2d 829, 835 (1966).

B. "Material Matter" Instruction

Clavey was convicted of violating 26 U.S.C. § 7206(1), which states that any person who

“[wjillfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.”

In instructing the jury on the meaning of “material matter” in Section 7206(1), the district court stated:

“Under the law the term ‘material matter’ refers to any item which would tend to influence the Internal Revenue Service in its normal tax collection and processing procedures. It is not necessary that the government prove that the defendant omitted any specified amount or total amount in Counts 5, 6 or 7. All that is necessary is that the government prove that the return was false as to a material matter.”

Clavey argues on appeal that, in view of the absence of evidence as to IRS standards of materiality, this instruction was erroneous because it left the jury free to speculate as to the meaning of “material matter.”

We agree with Clavey that, absent evidence of IRS materiality standards, this instruction was of little assistance to the jury in determining what constituted material matter. However, Clavey could not have been prejudiced by the giving of the instruction because the only false statements the Government charged that Clavey had made on his income tax return — those statements reporting his gross income— were clearly material matters for purposes of 26 U.S.C. § 7206(1). See United States v. DiVarco, 343 F.Supp. 101, 102 (N.D.Ill.1972), and cases cited therein.

C. Motive Instruction

Clavey next argues that the court erred in giving the following instruction:

“Motive is what prompts a person to act or fail to act. If you find beyond a reasonable doubt that the defendant knowingly and wilfully accepted any of the payments about which evidence was presented you may, if you choose to do so, consider the circumstances surrounding the payments and the purposes for which they were made as providing a motive for the commission of the crimes charged in Counts 1, 2, 3, 5, 6, 7, and 8 of the indictment.

He claims that the instruction he tendered should have been given instead. His instruction, taken from Devitt & Blackmar, 1 Federal Jury Practice and Instructions § 13.05 (2d ed. 1970), is identical to the instruction given by the court except for the addition of two sentences: At the beginning, Clavey’s instruction adds, “Intent and motive should never be confused”; at the end it adds, “The motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent.” Clavey argues that the omission of these phrases in the court’s instruction confused the jury as to the effect they should give motive and made it possible for the jury to substitute proof of motive for proof of the intent element of the crimes charged.

We agree with Clavey that, if the court chooses to give a motive instruction at all, the standard instruction tendered by Clavey is preferable to the one given here because it more clearly explains the proper role of motive in the case. Nevertheless, in view of the other comprehensive instructions on the mens rea of the crime charged given by the court, the motive instruction could have been interpreted only as suggesting another factor to be considered by the jury — the instruction’s proper function — rather than as providing a substitute means for proving the mens rea of the charged crimes. The court instructed the jurors that they had to find beyond a reasonable doubt that Clavey had the requisite specific intent for the crimes charged, viz., that he “knowingly did an act which the law forbids, purposely intending to violate the law” (Tr. 1421). The court went on to painstakingly instruct the jury on the meaning of “knowingly” and “wilfully,” and set out all of the elements, including the mens rea, of each of the counts charged. We believe that the jury was properly instructed as to intent, and that the jury was not invited to confuse intent with motive.

D. Character Instruction

Clavey next claims that the court erred by not giving his tendered character evidence instruction. The Government responds that Clavey did not properly object to the failure of the trial court to give such an instruction, and that Clavey thus is precluded by Rule 30 of the Federal Rules of Criminal Procedure⁴ from asserting his claim.⁵

Prior to the end of the defense’s case, both sides submitted numbered instructions. Later, near the end of the trial, Judge Lynch told counsel:

“Tomorrow we will proceed with what we have left and what you might have to present, and we know definitely we will go into the question of instructions. They don’t take too long, most of them, a great majority of them, they will be specials, I know, and I had anticipated some of them, and they are stock.”

Clavey’s counsel then stated:

“I had not included the character evidence on the charge yet, and I will bring that over.”

Judge Lynch replied, “You mean on the instructions? Include it.” The next day Clavey’s counsel filed detailed objections to the Government’s proposed instructions and attached several unnumbered instructions of his own, including a character evidence instruction. That afternoon, an instruction conference was held. Prior to the conference, defense counsel asked the court to consider his written objections as part of the record even if he did not reiterate them orally. At no time during the conference did he point out his recently tendered character evidence instruction.

After Judge Lynch instructed the jury, defense counsel objected to specific instructions that were given and then engaged in the following colloquy with the judge:

“Mr. Collins: The other thing, Judge, is I ask you again to consider all the objections in my written objections in the tendered instructions, which we tendered, which your honor has not given, and please, your Honor, give me a ruling.

The Court: I will. I have given them consideration and judgment is that they are overruled.

Mr. Collins: In the instructions we tendered, there were — .

The Court: They were refused.

Mr. Collins: Thank you very much, Judge.

The Court: I think I have marked them refused.

Mr. Collins: I believe so, Judge.”

At no point did defense counsel indicate to the court that his character evidence instruction had not been given and had not been marked refused.

While defense counsel did tender a character evidence instruction, we hold that he waived his right to object on appeal to the court’s failure to give the instruction because he did not sufficiently bring the instruction to the court’s attention. Rule 30 requires parties wishing to object to “any portion of the charge or omission therefrom ” to “stat[e] distinctly the matter to which he objects and the grounds of his objection.” Fed.R.Crim.Proc. 30 (emphasis added). Counsel’s passing mention at the end of a day’s testimony of his intention to tender the instruction and his attachment of the instruction to a list of objections was not sufficient in our opinion to meet Rule 30 standards. See United States v. Wright, 542 F.2d 975, 983-85 (7th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977). The defense was given an opportunity to distinctly object on the record to the omission of the instruction both at the instruction conference prior to the reading of the instructions and at the post-instruction conference. Counsel failed to mention the omission of the character evidence instruction during either conference. See generally, United States v. Hollinger, 553 F.2d 535, 539-43 (7th Cir. 1977).

IV.

Finally, Clavey argues that the court erred by not informing counsel of inquiries from the deliberating jury and by not responding to them.

While the jury was deliberating, the foreman sent a note to the court at 5 p. m. on the evening before the verdict was reached. The note read:

“Is it possible to have copies of the instructions [sent] to the jury?”

The answer was, “No.” The defendant was not notified of the request, and his counsel had no opportunity to urge the court that the instructions be sent to the jury.⁶

Later, apparently during the evening, the jury sent the following note to the court on the same piece of paper:

“Is it possible to have the judge explain a couple of points about the indictment and counts?”

The judge reported to counsel the next day that

“the answer to that [inquiry] was ‘No,’ because I will not become the thirteenth juror in this case, and I should not invade the province of the jury, which I did not do. The answer to the question to the jury, carried to them by the deputy United States Marshal, was to ‘continue to deliberate.’ ”

The jury spent the night at a hotel, and the next morning sent another note to the court:

“Judge Lynch: The counts in the indictment are related to one another, some more than others. For example, count 2 is related to count five. In this respect, if we find the defendant guilty on count two and on count three, must we also find him guilt on count one? Spencer R. Sawyer, Foreman.”

The court replied that the jury should “continue to deliberate.” Ten minutes later the jury reached a verdict.

We think Clavey’s contentions that the court should have advised counsel of the jury’s inquiries and made an effort to respond to them have merit. Federal Rule of Criminal Procedure 43 guarantees a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” This guarantee includes the right to be present when communications are made to a deliberating jury. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). As the Supreme Court said in Rogers,

“Cases interpreting the Rule make it clear . . . that the jury’s message should [be] answered in open court and that [defense] counsel should [be] given an opportunity to be heard before the trial judge respondfs].” 422 U.S. at 39, 95 S.Ct. at 2095.

Moreover, the Supreme Court has held that

“[discharge of the jury’s responsibility . depend[s] on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946).

The jury’s final two questions, particularly the last one, indicate that the jury was encountering difficulty with the instructions in this relatively complex case. The trial judge’s perfunctory answers were clearly inadequate responses to the jury’s inquiries. See United States v. Harris, 388 F.2d 373, 377 (7th Cir. 1967); United States v. Bolden, 169 U.S.App.D.C. 60, 67-68, 514 F.2d 1301, 1308-09 (1975). At a minimum, the judge should have reread whatever portions of the original instructions given to the jury that the jury requested or that related to its inquiry. See United States v. Papia, 560 F.2d 827, at 843-844 (7th Cir. 1977).

While we agree that the court erred in not informing counsel of the jury’s inquiries and in not making a reasonable effort to clear up the jury’s difficulties, we must still determine whether the court’s errors were harmless. See United States v. Dellinger, 472 F.2d 340, 378-79 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); Ware v. United States, 376 F.2d 717 (7th Cir. 1967).

In view of the particular questions asked by the jury, we hold that the court’s errors were indeed harmless. As to the jury’s request for written instructions, we are convinced that the judge’s failure to inform the parties of the request or to grant it could not have affected the jury’s verdict. Cf. United States v. Hoffa, 367 F.2d 698, 712-13 (7th Cir. 1966), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1967). The submission of written instructions to the jury is a matter within the trial court’s discretion. E. g., United States v. Davis, 437 F.2d 928, 929 n. 1 (7th Cir. 1971); United States v. Standard Oil Co., 316 F.2d 884, 896 (7th Cir. 1963).

The latter two questions appear to be interrelated. In the second question, asked during the evening, the jury requested an explanation of “a couple of points about the indictment and counts.” The following morning the jury asked for specific information concerning the relationship between certain counts in the indictment. Read together, the latter question appears to be simply a specific version of the former. At a minimum, it reflects that aspects of the uncertainty that generated the second question still concerned the jury.

Because Clavey was acquitted of counts one and two, however, we can infer that the jury resolved the third question — whether Clavey had to be found guilty on counts one and two if he was found guilty on the related counts five and three — in favor of the defendant. In view of this resolution, Clavey could not have been harmed by the judge’s failure to answer the jury’s question, for the judge’s answer could not have produced a more favorable result for him. Moreover, because the difficulty that engendered the jury’s second question was reflected in the third question, resolved in the defendant’s favor, we are convinced that the judge’s failure to respond to that question is harmless error as well.

V.

We have carefully considered the other points raised by Clavey and find them also to be without merit.

AFFIRMED.

1 . The Hon. William J. Lynch presided over the trial in this matter, but died before sentencing. Judge Decker imposed sentence.

2 . In United States v. Procter & Gamble Co., 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958), the Supreme Court summarized the historical justifications for preserving grand jury secrecy:

“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at trials of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated . .

3 . The instruction properly states the law. United States v. Miriani, 422 F.2d 150, 152 (6th Cir.), cert. denied, 399 U.S. 910, 90 S.Ct. 2199, 26 L.Ed.2d 561 (1970).

4 . Rule 30 of the Federal Rules of Criminal Procedure provides:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”

5 . The Government, pointing out that both sides presented evidence as to Clavey’s reputation, does not challenge Clavey’s contention that such an instruction should have been given

6 . Defense counsel had previously requested that copies of the instructions be given to the jury.