BOWNES, Circuit Judge.
Defendant-appellant, Mario E. Indorato, appeals a jury conviction of conspiracy to commit an offense against the United States, theft of property from an interstate shipment, and perjury, in violation of 18 U.S.C. § 371, § 659, and § 2.
We review the facts and all the reasonable inferences to be drawn from them in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974). Defendant was a lieutenant on the Massachusetts State Police force with over twenty-three years of experience. Starting in February of 1977, he was assigned to the Weston barracks on the Massachusetts Turnpike as a shift commander. As such, he was responsible for the entire turnpike. His normal duty hours were from 3:00 P.M. to 11:00 P.M. The turnpike is divided into seven Sectors for patrol purposes. Sector 1 starts at the New York state line and Sector 7 extends through the tunnel to East Boston. Sector 6 runs from Interchange 12 to Interchange 15, which is in the Town of Weston.
A tandem trailer parking lot is located in Sector 6 at Interchange 14 in Weston. Massachusetts law prohibits the hauling of tandem trailers (trailers hauled behind each other by the same tractor) once a driver leaves the turnpike. The tandem lot is used by drivers to drop off the extra trailer before proceeding to off-turnpike destinations. A full trailer is sealed at the rear so that it is impossible to open the doors without breaking the seal. A person would be unable to tell from looking at a trailer head-on or from the side whether it was full or empty. If the seal has been broken or removed from the trailer doors, that is a good indication that it is empty. Full and empty trailers are parked indiscriminately in the lot so that the location of a trailer is no indication of whether it is full or empty.
The critical events leading to defendant's indictment happened on the evening of December 12, 1978. About a week prior, Corporal Carlson spoke to defendant about homosexuals harassing patrons in the men's room of the Howard Johnson Restaurant on the turnpike in Framingham. He suggested reinstituting the "fag detail," which was comprised of state troopers in civilian clothes. On December 12, defendant told Carlson and another trooper, Whittier, to be in the barracks at 5:30 P.M. to prepare for the detail. This was earlier than the detail had ever started before. Whittier was normally assigned to Troop E which covers the entire turnpike and the tunnels to East Boston. With Whittier on the special detail, there was no patrol supervisor on the road and no one took his place in Sector 7. If a tractor were parked in an unusual place, such as on an access ramp to a tandem lot, Whittier, when on patrol, would notice it and investigate.
Shortly before 3:00 P.M. on the afternoon of December 12, defendant assigned Trooper McHugh to patrol that portion of Sector 7 from the Brighton interchange through the tunnels to East Boston. He was told to pay particular attention to the toll booths at the tunnels because of recent robberies. McHugh was not to patrol the western part of Sector 7 from Brighton to Weston. Usually, each of the two troopers assigned to Sector 7 patrols its entire length from the tunnels to Weston.
At about 5:40 P.M. on December 12, defendant left the barracks at Weston and went to the tandem trailer lot at Interchange 14. He was dressed in full uniform. Usually, when defendant left the barracks, he did not wear his uniform. Defendant used a marked police cruiser called, for obvious reasons, a "blue-bird." This was contrary to his custom of driving an unmarked vehicle. Defendant gave as a reason for using the blue-bird that his vehicle bucked and kicked until it was warmed up. The mechanic responsible for servicing defendant's unmarked cruiser testified that defendant never complained that it warmed up slowly.
Trooper Kevin Regan was on the 3:00 to 11:00 P.M. shift at the Framingham barracks that day. He purchased a sandwich at about 6:30 P.M. and headed towards the tandem lot to eat it. As he drove towards the lot, he saw a blue-bird at the entrance. Defendant waved him to a stop. After some general conversation, defendant asked him what he was doing there. Regan told him that he intended to eat his sandwich there. Defendant suggested that he go to the barracks in Weston to eat it. Although Regan said he would rather eat in the lot, defendant insisted that he eat the sandwich at the Weston barracks, which he did. This was the first time that he had eaten alone in the Weston barracks.
The events subsequent to December 12, 1978, bear mainly on defendant's claim that his fifth amendment rights were violated.
The Fifth Amendment Claim
It is defendant's contention that statements made by him in response to questions by his superiors were coerced and, therefore, proscribed by the fifth amendment from being used at his trial.
We focus now on the investigation of defendant that followed the events of December 12. Special Agent Edward Clark of the F.B.I. interviewed defendant the afternoon of December 13, after first talking to Pyne, Grenier and PIE Terminal Manager Martin. When asked by Clark who was with him when he was talking to Pyne, defendant replied that it was an off-the-road trooper and identified him as Trooper Regan. Defendant said he did not remember any tractor parked on the access ramp. On December 22, there was a meeting at State Police Headquarters in Boston at which defendant's possible role in the theft of the trailers was discussed. Those in attendance were Deputy Superintendent Trubuco, Lieutenant Colonel O'Donovan, head of the Detective Bureau, and Captain Cronin, defendant's immediate supervisor. They knew that an interview between defendant and Lieutenant White, a state police detective, and two F.B.I. agents was scheduled for later that afternoon. It was suggested that, if defendant did not cooperate
Defendant met with White and the F.B.I. agents that afternoon at the Howard Johnson Restaurant on the turnpike in Natick. He was not advised of his rights prior to questioning. It is clear, however, that he was not in custody. Among other things, defendant stated that he picked up an informant about 5:00 o'clock at the tandem lot. He refused, despite repeated questions, to give the informant's name on the ground that to do so might mean that person's death. After it became evident that defendant would not name the informant, White advised him that he was going to call Colonel O'Donovan and left the table to do so. When White returned to the table after talking to O'Donovan, defendant said, "If push comes to shove relative to my informant, I will make the decision at that time." Whereupon White said, "The time has come, push has now come to shove. I want the name, address, and telephone number of your informant this minute." Defendant then identified the informant as Billy Balliro.
After the meeting, defendant returned to the Weston barracks. Captain Cronin had him come into his office and asked about the meeting at the restaurant and then started an inquiry of his own. When Cronin started to give the Miranda warnings, defendant stated that he knew them. There is no need to detail further the statements made by defendant at the afternoon meeting and subsequently to Captain Cronin except to note that some of them were contradicted by government witnesses at the trial and others put in doubt by circumstantial evidence.
Defendant rests his fifth amendment coerced statements claim on Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Garrity concerned an investigation of alleged fixing of traffic tickets by police officers. Prior to questioning, each officer was warned:
Id. at 494, 87 S.Ct. at 617. This was in accord with N.J.Rev.Stat. § 2A:81-17.1 (Supp.1965). The Court stated the issue as follows: "Our question is whether a State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee." 385 U.S. at 499, 87 S.Ct. at 620. It held: "We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." Id. at 500, 87 S.Ct. at 620.
In the instant case, there was no overt threat that defendant would be dismissed if he refused to answer the questions asked. Defendant, however, takes the position that such threat was implied because the state police departmental rules, with which he was thoroughly familiar, provided for the dismissal of any officer who refused to obey the lawful order of superiors. This meant, he argues, that he had to answer the questions asked by Lieutenant White and Captain Cronin or face dismissal. Thus, defendant claims, he was in the same position as the officers questioned in Garrity. An examination of the rules, however, shows that defendant's position is based on a very shaky premise. Rule 10.7 provides that "[m]embers of the Uniformed Branch shall promptly obey any lawful order emanating from any superior officer." Rule 10.1 states that any member who violates any provision of the rules "may be tried by a Trial Board," and Rule 10.2 in turn provides that any member found guilty of such a violation following trial "may be subject to dismissal or such disciplinary action as the Commissioner or Executive Officer may direct." Finally, Rule 8.2 permits an appeal from any order of dismissal to the district court.
Neither Garrity nor any of its progeny brings defendant within the ambit of the coerced testimony doctrine. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), came hard on the heels of Garrity. In Gardner, a policeman was subpoenaed to appear before a grand jury investigating bribery and corruption of police officers. After being advised that the grand jury was going to question him about the performance of his official duties and advised of his privilege against self-incrimination, he was asked to sign a waiver of immunity and told that he would be fired if he did not do so. After his refusal to sign, he was given an administrative hearing and then discharged pursuant to a specific section of the New York City Charter. In finding the Charter provisions unconstitutional, the Court was careful to note, "He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right." Id. at 278, 88 S.Ct. at 1916. This is not the situation before us.
In all of the cases flowing from Garrity, there are two common features: (1) the person being investigated is explicitly told that failure to waive his constitutional right against self-incrimination will result in his discharge from public employment (or a similarly severe sanction imposed in the case of private citizens); and (2) there is a statute or municipal ordinance mandating such procedure.
424 U.S. at 664-65, 96 S.Ct. at 1187.
Here, defendant did not claim the privilege. He was not told that he would be dismissed if he failed to answer the questions asked. He was not asked to sign a waiver of immunity. There was no statute mandating dismissal for refusal to answer hanging over his head. Defendant, here, was not, as in Garrity, put "between the rock and the whirlpool," 385 U.S. at 498, 87 S.Ct. at 619; he was standing safely on the bank of the stream.
The Grand Jury Testimony
The claim of coerced grand jury testimony is rejected for the same reasons. We must note that during the two-month interval between the state police inquiries and his grand jury appearance, defendant had consulted with counsel. Before testifying, defendant was informed that he was a target and fully advised of his Miranda rights. He was not ordered by his superiors to testify before the grand jury and there was no threat of discharge if he failed to do so. Defendant does not have even a colorable claim that his grand jury testimony was coerced.
Defendant further claims that his misrepresentations were not material and, therefore, could not be the basis of a perjury indictment. We agree with the district court that this contention is groundless. The grand jury was investigating the possible involvement of defendant in the theft of two truck trailers. It also was trying to determine if others were involved and, if so, their identity. The alleged misstatements consisted of defendant's explanation for the presence of Balliro in the tandem lot. Defendant testified that Balliro was there to seek advice for his girl friend's daughter who was thought to be connected with a murder that had been committed in Waltham.
In order to sustain a conviction under 18 U.S.C. § 1623, the false testimony must be material to a proper inquiry of the grand jury. United States v. Williams, 552 F.2d 226, 230 (8th Cir. 1977). We think it obviously material for the grand jury to attempt to find out why a civilian would clandestinely meet a fully uniformed state trooper in a parking lot on the same night that two trailers were stolen from it. In the light of Pyne's testimony, the reason for Balliro's presence was not only material, it was critical. As the district court pointed out, any concealment of the actual reason would have tended to impede or hamper the course of the investigation. United States v. Phillips, 540 F.2d 319, 328 (8th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976). The grand jury was investigating the theft of two trailers. The reason for anyone's presence in the tandem lot on the night of December 12 was material, so that, at a minimum, further investigation could have resulted. United States v. Rapoport, 545 F.2d 802, 805 (2d Cir.), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1976). The court did not err in refusing to dismiss the perjury count.
Defendant assigns as error the denial of his motion to dismiss Count I of the indictment. Count I alleged that defendant "did knowingly and intentionally conspire . . . with diverse persons whose names to the Grand Jury are presently unknown," to violate 18 U.S.C. § 659 (theft of an interstate shipment). Defendant claims that the failure to name a coconspirator denied him due process because it prevented him from preparing a defense and exposed him to another prosecution on the identical charge. The Supreme Court has explicitly held:
Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951). See also United States v. Rivera Diaz, 538 F.2d 461, 465 (1st Cir. 1976). In Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962), the Court set forth the protections to be guaranteed by an indictment:
The Conduct of the Trial
Defendant asserts that the cumulative effect of allowing leading and irrelevant questions deprived him of a fair trial. He refers us to three pages in the transcript to document his claim as to leading questions. The first question, directed to Pyne, concerned the general duties of another PIE driver, Grenier.
We also find no due process violation because of irrelevant questions. The testimony of Lieutenant White on the time it took to drive from the trailer lot to where one of the stolen trailers was recovered was relevant. That Lieutenant White used a police cruiser and not a tractor-trailer, the speed at which he drove, and that it was done in July, not December, were matters for cross-examination and ultimately for the jury to consider. Nor are we moved by
We find no error in the way the court handled the trial and, indeed, think it did an exemplary job.
Sufficiency of the Evidence
We have already outlined the salient facts as to Counts I and II and have no difficulty finding that there was ample evidence for a conviction on these. Defendant's argument on the perjury count is a little less ephemeral, but still very flimsy. The government showed that neither Balliro's girl friend nor her daughter had spoken to him about the murder in Waltham. This undercut defendant's testimony that this was what he and Balliro discussed in the parking lot. But, says defendant, this did not preclude the possibility that Balliro got his information from other sources.
See also United States v. Brown, 603 F.2d 1022, 1024-25 (1st Cir. 1979). Notwithstanding the grandmother's testimony and the possibility that Balliro could have obtained knowledge of the murder from other sources, there was sufficient evidence for a perjury conviction.
The Closing Argument of the Prosecutor
Defendant claims that the prosecutor argued facts not in evidence when he commented on portions of defendant's grand jury testimony. The grand jury minutes were admitted in evidence for the purpose of establishing the alleged false statements of defendant. Defendant's argument is that the prosecutor referred to portions of defendant's grand jury testimony that did not relate to the perjury charge. This is drawing so fine a line that it vanishes as we examine it. The prosecutor did not misrepresent the grand jury testimony. He may have strayed a little into forbidden territory, but not so far as to be prejudicial. The court gave extensive instructions on the use of the grand jury testimony. We are confident that the jury was not misled or confused by the prosecutor's argument.
Defendant attacks the charge on two grounds: that the court failed to include an instruction on "consciousness of guilt," and that the instruction on reasonable doubt was constitutionally deficient.
Both defendant and the government offered an instruction on consciousness of guilt. The court accepted neither and gave none at all. We find that, if there was error, it was harmless beyond a reasonable doubt. After a careful reading of the entire charge, we are not persuaded that a consciousness of guilt instruction was necessary. Defendant testified at length at the trial. If the jury had believed him, he would not have been convicted. We know of no holding that such an instruction is mandated in every case in which a jury may find that a defendant has made false and misleading statements at the outset of a criminal investigation. The application of such an instruction is best left to the discretion of the trial court.
The reasonable doubt portion of the charge, however, does give us pause. We realize that this concept is difficult to explain to a jury. Dunn v. Perrin, 570 F.2d 21, 22 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). The Court, after objection by counsel, realized that the instruction it had given
The interchangeable use of the phrases "morally certain" and "reasonably certain" is, we think, of dubious value. While we have never proscribed the equating of moral certainty with proof beyond a reasonable
Despite our reservations, we think that the charge passes muster. While we discourage the "moral certainty" phraseology, we do not regard its use as reaching the level of legal or constitutional error. The first and last paragraphs of the revised instruction make it clear that the government must prove defendant's guilt beyond a reasonable doubt. Moreover, defendant failed to object to the use of the phrase "moral certainty," which he now urges as the main reason for the charge being incorrect. At the bench conference following the charge, defense counsel stated, "First of all I object to the court's definition of reasonable doubt." The court asked, "What aspect of that do you object to?" Defense counsel responded, "That part dealing with conscientious — I'm not quite sure how you phrased it. Not the moral aspect . . . (emphasis added). There was no objection at all after the second instruction. Fed.R.Crim.P. 30 states in pertinent part: "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." Because defendant failed to meet this requirement, he has to show plain error, a standard clearly not met here.
A Yes, I work with him.
Q And what's his occupation?
A Same as mine; he's a driver.
Q So, basically, what would you do? You'd go and pick up a trailer and bring it back in?"
Now beyond a reasonable doubt does not mean beyond any doubt at all. That's not what the law requires. Only to a moral certainty. It's not to a mathematical certainty, not to a scientific certainty, or to an absolute certainty. So if you are satisfied to a reasonable certainty, that you, as reasonable moral human beings, believe that the facts have been established by the evidence, then you are under oath to bring back a verdict of guilty. If, however, you are left with uncertainty, that you are not reasonably certain, not conscientiously convinced that the elements have been established, then you will find the defendant not guilty. Because in our land, in our jurisprudence, in our system of justice, the defendant is presumed to be innocent until proven guilty.