Anthony Bruno, Petitioner-appellant, v. J. E. Lavallee, As Superintendent of Clinton Correctionalfacility, Respondent-appellee, 584 F.2d 590 (2d Cir. 1978)

This is an appeal from an order of the United States District Court for the Eastern District of New York denying a petition for a writ of habeas corpus. We affirm.

In 1947, following a jury trial in New York Kings County Court, petitioner was convicted of robbing a coal company and sentenced to a term of thirty to sixty years as a second felony offender.¹  His conviction was affirmed by the Appellate Division. People v. Bruno, 273 App.Div. 977, 79 N.Y.S.2d 328 (2d Dep't 1948). This application for habeas corpus relief is the latest in a series of collateral attacks on the conviction,²  which continue even though petitioner is now on parole. It is based upon an incident that occurred during his first trial which ended in a mistrial before any testimony was taken.

The State's principal witness was Vincent DiBari, the night watchman at the coal company, who identified petitioner as one of three men who accosted him at gunpoint, tied him up, and robbed the company safe. Prior to the first trial, DiBari received threats that he would be killed if he identified the robbers. Because he did not want to commit perjury, he refused to testify at all. It was this refusal which led, with petitioner's consent, to the mistrial.

Following the discharge of the jury, a colloquy took place between Justice Goldstein, presiding judge at the aborted trial, and DiBari, which is set forth in the margin.³  It is petitioner's contention that the court's admonition was so overreaching, it made his subsequent trial unfair, in violation of the due process clause of the Fourteenth Amendment. Although it might have been better if Justice Goldstein had been more circumspect in his choice of language, we agree with the district court that the state judge's comments did not so infect the subsequent trial, which took place before a different judge, as to deny petitioner due process.

Justice Goldstein was confronted with a dilemma which every trial court encounters from time to time the reluctance of a threatened witness to testify. See United States v. Housand, 550 F.2d 818, 825 (2d Cir.), Cert. denied, 431 U.S. 970, 97 S. Ct. 2931, 53 L. Ed. 2d 1066 (1977). He felt undoubtedly that it was incumbent upon him to admonish DiBari concerning his duty to testify truthfully, Id. at 825, and to assure him that he would be protected from harm. See Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S. Ct. 1720, 6 L. Ed. 2d 1028 (1961). That, in substance, is what Justice Goldstein attempted to do.

In weighing the possible prejudicial effect of an admonition against committing perjury, a court must consider the setting in which the incident hat it was incumbent upon him to admonish DiBari concerning takes place. If it occurs in the presence of a jury, it may have an effect on the jury as well as the witness, in that it may tend to indicate that the court does not believe, or will not believe, the witness. See United States v. Reed, 421 F.2d 190 (5th Cir. 1969) (En banc) (adopting dissenting opinion of Simpson, J., in United States v. Reed, 414 F.2d 435, 440 (5th Cir. 1969)). This possible side effect does not accompany a warning given in the jury's absence. In such a situation, an admonition against testifying falsely does not constitute improper intimidation or coercion of the witness to whom it is addressed. United States v. Jones, 514 F.2d 648, 650 (5th Cir. 1975); United States v. Stevenson, 445 F.2d 25, 29 (7th Cir.), Cert. denied, 404 U.S. 857, 92 S. Ct. 108, 30 L. Ed. 2d 99 (1971); United States v. Snyder, 428 F.2d 520, 522 (9th Cir.), Cert. denied, 400 U.S. 903, 91 S. Ct. 139, 27 L. Ed. 2d 139 (1970); United States v. Stayback, 212 F.2d 313, 318 (3d Cir. 1954), Cert. denied, 348 U.S. 911, 75 S. Ct. 289, 99 L. Ed. 714 (1955); Pasqua v. United States, 146 F.2d 522, 523 (5th Cir.), Cert. denied, 325 U.S. 855, 65 S. Ct. 1183, 89 L. Ed. 1976 (1945); Mooney v. United States, 320 F. Supp. 316, 318 (E.D. Mo. 1970). "Every witness is confronted with the standing 'threat' that he tell the truth or risk the possibility of a prosecution for perjury." United States v. Stevenson, supra, 445 F.2d at 29. This is a "coercion" established by law, 18 U.S.C. § 1621, not by the court. United States v. Snyder, supra, 428 F.2d at 522.

It is obvious that Justice Goldstein wanted DiBari to "come across and tell the truth," to "stick to the truth in this case, and tell exactly what happened." It is also quite clear that DiBari did not want to "stick (his) head out and get bumped off" and, if he testified, he would lie about his identification of the defendants. The only reasonable inference which can be drawn from DiBari's words is that his prior grand jury testimony concerning identification was truthful. In view of Justice Goldstein's insistence that DiBari tell the truth, we conclude that the judge's reference to DiBari's grand jury testimony did not unconstitutionally taint petitioner's subsequent trial before a different judge.

We likewise see no prejudicial taint resulting from Justice Goldstein's reference to the defendants' purported criminal records and tendencies. Because of the manner in which the robbery took place and the subsequent threats against DiBari's life, he hardly needed the judge's words to inform him that he was dealing with hardened criminals. As the district court found, DiBari needed no influence to convince him as to the facts. Once again, it is important to note that petitioner's trial took place before a different judge.⁴ 

Relying upon Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), respondent contends that petitioner's failure to raise the constitutional issue at his state trial bars him from seeking federal habeas corpus relief. Unfortunately, the record does not make clear whether petitioner and his attorney⁵  were present in the courtroom when the conversation between Justice Goldstein and DiBari took place. When this habeas corpus petition was before this Court on a prior appeal, we remanded it to the district court by unpublished order to see whether the facts relative to waiver could be developed after a lapse of thirty years. Remand proved unfruitful, however, because counsel for both petitioner and respondent advised the district court that the individuals involved who were still available had no recollection of events other than what had already been presented to this Court.⁶ 

At a hearing held in connection with a prior unrelated habeas corpus application in 1967, the district attorney testified that he showed the minutes of the colloquy between Justice Goldstein and DiBari to the judge presiding at petitioner's second trial, at a bench conference with petitioner's counsel present, just prior to calling DiBari as a witness. See United States v. Herold, supra, 271 F. Supp. at 494. Petitioner's former attorney testified at the same hearing that the disclosure may have happened in the judge's robing room or at the bench, with the jury excused. Id. at 495. The court below found that there was at least a "permissible inference" that petitioner's former attorney knew what Justice Goldstein had said. We agree. However, because we conclude that Justice Goldstein's comments did not deprive petitioner of a fair trial, we need not reach the issue of waiver.

The order appealed from is affirmed.

OAKES, Circuit Judge (concurring):

I wish to concur in Judge Van Graafeiland's opinion. I do so only because there was evidence the witness had been threatened and had refused to testify out of fear. Moreover, as Judge Van Graafeiland points out, the subsequent trial was before a different judge, thus mitigating the impact of Justice Goldstein's strong language. And I want to make it clear that if the judge had admonished the witness against perjurious testimony in the presence of the jury his conduct would clearly have amounted to a violation of due process.

I reach the result with some doubt, having in mind, E. g., Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972) (threats of perjury charges and intimidation by trial judge against defendant's only witness deprived defendant of right to call witnesses in his own behalf); United States v. Reed, 421 F.2d 190 (5th Cir.) (en banc) (court's admonitions to defendant and his witness regarding perjury deprived him of fair trial), Reversing United States v. Reed, 414 F.2d 435 (5th Cir. 1969). And, obviously, if the judge had made the remarks before the jury, they would have been prejudicial. See Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 38 L. Ed. 841 (1894). But here they were made after the witness had been threatened so that they had a measure of justification. And while the judge making them also exposed improperly, I feel his view of the defendants' guilt, this alone could hardly have been determinative of the witness's ultimate testimony: either he could identify the robbers or he could not.