United States v. Abrams

¶4BROWN, Chief Judge:

¶5A jury returned a verdict of guilty against Anita Abrams on two out of three counts of making false material statements before a federal grand jury in violation of 18 U.S.C.A. § 1623.1 She claims on this appeal that she was denied a fair trial, first, because of the prejudicial misconduct of the Trial Judge, and second, because of his failure to grant a mistrial following an allegedly prejudicial answer by one witness. She also challenges the sufficiency of the evidence as to both counts.2 We agree only that there is insufficient evidence to sup*414port the verdict on Count III and reverse as to that count. Her conviction on Count II is affirmed.3

¶6Because of the extremely complicated nature of this case, we will set forth the facts as they relate to each issue raised by appellant and address the sufficiency attack first.

¶7I. Sufficiency Of The Evidence

¶8The United States Attorney for the Southern District of Florida had been conducting an investigation into various allegations stemming from insurance claims filed by the law offices of James A. Davis for numerous clients who had received medical treatment from Dr. M. S. Fox4 or Westchester Hospital or both. Settlement of accident cases following negotiations with insurance companies or trial would be made by Davis’ office. The insurance company would pay claims to Davis who, in turn, would disburse the proceeds to his clients, the accident victims, after deducting attorneys’ fees, medical expenses, court costs, investigative fees, and other related costs.

¶9Abrams, who worked as a secretary and bookkeeper in Davis’ office, was subpoenaed by the grand jury in 1976 and was ultimately granted use immunity. She made three appearances before the grand jury; Counts II and III arose out of her July 26, 1976 appearance.5

¶10A. Count II: The Yva Henry Case

¶111. Documentary Evidence

¶12The false statements which formed the basis of this count involved a cost breakdown which had been prepared for Yva Henry, a client of Davis. Henry had written a letter dated March 12, 1974 to Paul Gross of the Florida Bar complaining about the amount she was to receive in settlement of her claim for an accident which had occurred in April 1973.6 Gross forwarded this complaint to Davis on March 15, 1974 and requested a written response.7 By letter dated April 1, 1974, signed for Davis by Abrams, the latter forwarded to the Florida Bar a “closing statement” on the Henry case,8 containing a $231.50 charge for “Costs.”

¶13On April 2, 1974, Gross called Davis’ office to request a breakdown of the $231.50 in costs as shown by the following telephone message directed to “Anita:”

¶14Yva Henry—

¶15(cost 231.50 wants

¶165564 Case NoJ9l breakdown?)

¶17That same day, Abrams signed a letter to the Florida Bar on behalf of Davis, enclos*415ing a breakdown she prepared which listed these items:10

CHARGE SHEET ON YVA HENRY CASE NO. 5564

[ 1 ] Conference with Dr. M. S. Fox (4/25/73) $50.00

[ 2 ] Conference with Dr. M. S. Fox (6/1/73) 25.00

[ 3 ] Investigation and Photography 107.50

M Photographs 35.00

[ 5 ] Accident Report 3.00

[ 6 ] Westchester General Hosp.— Medical Records 6.00

PI Jackson Memorial Hospital— Medical Records_ 5.00

Total $231.50

¶18Items [l]-[4] of this breakdown are the source of Abrams’ present problems.

¶19As to items [1] and [2] (the two conferences with Dr. Fox on 4/25/73 and 6/1/73), Gov’t Ex. 14, which was taken from the Yva Henry file in Dr. Fox’s office, is critical. That exhibit comprises undated slips of paper, one of which is a telephone call memo reading in part:

$75 JAD11

Bill Conference (2)

Iva Henry 50

25

¶20The other critical slip of paper from Fox’s Henry file forming the second part of Ex. 14 reads:

Fla Bar Assn.

Mr. Gross

Eva Henry

Be:

JAD

4/22/74

to verify-total bill $400 - or $475

¶21The bottom half of this note, beginning with “4/22/74” appears to be in a different handwriting from the top half. The third portion of Gov’t Ex. 14 comprises an exact duplicate of an undated typed bill to Davis for the two office conferences in April and June 1973 which appears in the Henry file in Davis’ office.12

¶22Item [3] on the breakdown, relating to $107.50 for investigation and photography, was ostensibly covered by a May 17, 1973 typed invoice in duplicate on the billhead of Worldwide Detective Agency.13 This bill charged $100 for investigative services and $7.50 for “auto.”

¶23With regard to item [4] covering $35 for photographs, the Henry file contained two critical documents: a photography shop invoice for film and a film developing envelope, both dated April 2, 1974, the same day on which the Florida Bar telephone inquiry and the Abrams breakdown were made.14 The photographs of the location of the Henry accident which were placed in the Henry file could not have been taken any time before March 1974.15

¶24*416The most significant document in Davis’ Henry file is a slip of paper comprising part of Gov’t Ex. 7.16 The first four lines of this slip, listing the four items, are in Davis’ handwriting. The addition and subtraction are in Abrams’ handwriting.

Photos 10 @ 3.50 35.00[17]

A.R.18 3

W.R.19 6

J.M.H.20 5

49.0

75

124

231.50

124.00

107.50

¶25Another slip of paper, totally in Davis’ handwriting (Gov’t Ex. 8), reads:

231.50

Invest. 150 24.90

Conf. Dr. 100 150

Acc. Report 23 26.40

West. 6 150

J.M.H. 5 27.90

¶26A comparison of these figures and those of Ex. 7 with the figures on the breakdown (see text following note 10, supra) reveals that the breakdown sent to the Florida Bar matched the figures of Ex. 7 containing Abrams’ mathematical calculation.21

¶272. The Grand Jury Testimony

¶28The testimony which formed Count II of the indictment fills nine legal-size pages. So that we do not further lengthen this opinion, that testimony is attached as an appendix. The questions and answers are numbered for easy reference and the statements which we believe the jury could reasonably have concluded were false are italicized.

¶29Abrams maintained throughout her grand jury testimony22 that the $231.50 figure was based on bills actually in the file prior to the settlement of the Henry case, on the cost sheet she prepared as the Henry case progressed, or on cost cards which the accountant had.23 Indeed, she effectively *417denied fabricating the costs.24 We believe that the evidence overwhelmingly supported a jury conclusion beyond a reasonable doubt that she gave false testimony.25 Our view is that the jury could have reasonably concluded that actual events proceeded along the following lines and that Abrams must have known about and remembered those events when she testified before the grand jury: When the Florida Bar request for the $231.50 cost breakdown was made, Abrams — or someone in Davis’ office with Abrams’ knowledge — arranged to have the photographs taken (item [4], $35), Davis listed minor amounts to be charged for perfunctory reports made in almost every accident case (items [5] — [7], $14), and Abrams— or someone in Davis’ office with Abrams’ knowledge — arranged with someone in Dr. Fox’s office to bill Davis for $75 of those costs (items [1] and [2]). And when Abrams totaled those costs and arrived at only $124, she subtracted the subtotal from $231.50, got $107.50, and she — or someone in Davis’ office with her knowledge — fabricated an invoice on Worldwide Detective Agency billhead (item [3]) to justify the $107.50 difference. This view is based on the following.

¶30First, it is clear from the documentary evidence that the Fox conferences were not billed in the ordinary course (see notes 12 and 23, supra). Second, the Fox bill is not dated as is the other Fox invoice for $475 (see notes 8 and 12, supra). Third, it is also clear that the Davis office requested that these conferences be billed in response to the Florida Bar inquiry. Thus, as to the Fox conferences, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Abrams violated § 1623 when she denied knowing the circumstances under which the undated Fox bill was prepared.26

¶31There was also sufficient evidence to support a conclusion beyond a reasonable doubt that Abrams gave perjured testimony concerning item [3], the $107.50 invoice from Worldwide Detective Agency for investigation and photography. Weigel, owner of Worldwide, stated that a search of his records disclosed no investigation having been conducted on the Yva Henry case. Moreover, when Weigel billed clients, he never submitted the original and the copy as ostensibly was done in the Henry case.27 Hallen, a Worldwide employee who did investigative work for Davis on Weigel’s license, also found no record of investigative or photographic work done in behalf of Henry. Hallen would bill Davis by submitting to Abrams handwritten slips containing case numbers and the plaintiff’s name; he never typed invoices. Abrams paid Hallen directly by check. Hallen unequivocally denied submitting the typed $107.50 invoice of Gov’t Ex. 10.28 Furthermore, sometime in 1973, Hallen, with Weigel’s permission, had *418given blank Worldwide billheads to Joe Moore, Davis’ office manager.29

¶32Based on this uncontradicted testimony, the jury was justified in finding that Abrams made false statements when she named Hallen as the source of the $107.50 figure30 and when she said that the bill was prepared by the investigator,31 and submitted.32 In addition, Abrams’ asserted failure to remember and denial of knowledge as to what she was doing when she performed the mathematical calculation of Gov’t Ex. 733 could reasonably have been considered perjured.34

¶33Similarly, there was abundant evidence to support a beyond-a-reasonable-doubt conclusion that Abrams’ testimony concerning the $35.00 for photographs was false. The invoice for film and the film envelope were both dated April 2,1974, the same day on which the Florida Bar telephone inquiry was made when the Henry case was, for all intents and purposes, closed.35 Hallen never performed any photographic work on the Henry case and did not submit the invoice for photography services. And at least one of the photographs in the Henry file establish that the pictures were not taken until at least eleven months after Mrs. Henry’s April 1973 mishap.36 No sensible explanation was forthcoming as to why photography costs need have been incurred in connection with a closed case, and the grand jury gave Abrams every opportunity to offer one.37

¶34Thus, we think a jury could justifiably find that Abrams committed perjury when she (i) told the grand jury that the bills were Dave Hallen’s,38 (ii) denied knowing the circumstances under which the photographic bills were obtained,39 and (iii) denied that the bills were obtained the day after receiving the Florida Bar letter to justify the costs.40

¶35Lastly, based on all the evidence relating to the four items on the breakdown, we believe that a jury could conclude beyond a reasonable doubt that Abrams’ statements that the $231.50 in costs came from cost sheets and cost cards,41 and her denial of attempts to justify the costs42 were false.

¶36Appellant’s sufficiency challenge is multi-pronged. Abrams argues first that she responded to questions by describing the office routine she normally “would” use, instead of stating what she actually “did” with respect to a particular item. We agree with this argument as to certain answers,43 but believe it conveniently over-*419looks many others.44 This argument also ignores the settled principle that every answer set forth in a single count does not have to be false to sustain a conviction. United States v. Bonacorsa, 2 Cir., 1976, 528 F.2d 1218, 1221-22; Stassi v. United States, 5 Cir., 1963, 401 F.2d 259, 262, vacated on other grounds sub nom. Giordano v. United States, 1968, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297.

¶37Second, appellant contends that there was no evidence introduced to show that she willfully and knowingly lied to the grand jury, that is, that she knew the charges were not incurred and remembered that fact. In this connection we are asked to ponder the thousands of cases which passed through, and the thousands of transactions taking place in, this busy, disorganized law office, all of which made it unreasonable for Abrams to remember the details of the Henry cost breakdown. There are several answers to this contention.

¶38Abrams typed and signed on Davis’ behalf the letters to the Florida Bar, and she — according to her grand jury testimony — prepared the cost breakdown. This office work was necessary only because a very serious complaint about Davis had been lodged with the Bar. Abrams was an employee in a law office where such complaints should not have been an everyday occurrence and should not have been treated routinely or cavalierly. All the more so because Abrams was well aware in April 1974 that Davis had been the target of a recent investigation. Indeed, that investigation prompted a meeting of Davis’ staff which Abrams attended and during which Davis instructed the staff to take certain actions.45

¶39In light of this background, the jury could have reasonably concluded that the Henry cost breakdown was not as forgettable as appellant contends and that Abrams knew full well that certain of her answers were false. This is especially so in light of the overwhelming evidence which could lead a jury to conclude that Abrams must have known or recalled that the $107.50 cost for investigation and photography was never incurred and that the $75 for conferences with Dr. Fox and the $35 for photographs were somehow fabricated in response to the Florida Bar inquiry.46

¶40A similar argument was raised in United States v. Chapin, 1975, 169 U.S.App.D.C. 303, 515 F.2d 1274, 1284. In rejecting the sufficiency attack, the Court stated:

[I]n the absence of a statement by the defendant, the falsity of an “I don’t recall” answer must be proven by circumstantial evidence. This does not mean that proof is impossible. As another court has stated, “The jury must infer the state of a man’s mind from the things he says and does. Such an inference may come from proof of the objective falsity itself, from proof of a motive to lie, and from other facts tending to show that the defendant really knew the things he claimed not to know” or recall. [Citations omitted.]

¶41Id.,169 U.S.App.D.C. at 313, at. 515 F.2d 1284. In applying these principles, there was abundant proof — already detailed at length — of objective falsity and other facts tending to show that Abrams really knew or recalled that which she denied knowing or recalling. As to motive, the jury knew that Abrams was employed by Davis when she appeared before the grand jury and it was at liberty to draw reasonable inferences concerning motive from the employer-*420employee relationship, as well as from the grant of use immunity.47 The jury, properly instructed, resolved this issue against Abrams and we see no reason to disturb its verdict here.

¶42The third prong of Abrams’ sufficiency attack relates to materiality. She urges that even if we hold her answers to be perjurious, they were not “capable of influencing the grand jury on the issue it was investigating; namely, whether Attorney James Davis was using the United States Mails to defraud insurance companies by ‘ambulance chasing,’ cooperating with doctors to increase medical bills to ‘get over’ Florida’s Uninsured Motorist Statute threshold amounts and similar conduct.” Appellant’s brief at 50.

¶43The test for materiality, as Abrams correctly concedes, is whether the false testimony was capable of influencing the tribunal on the issue before it. E. g., United States v. Brumley, 5 Cir., 1977, 560 F.2d 1268; United States v. Damato, 5 Cir., 1977, 554 F.2d 1371; United States v. Parr, 5 Cir., 1975, 516 F.2d 458. However, the statements need not be material to any particular issue but may be material to any proper matter of inquiry. Damato, supra; United States v. Makris, 5 Cir., 1973, 483 F.2d 1082; United States v. Gremillion, 5 Cir., 1972, 464 F.2d 901; Barnes v. United States, 5 Cir., 1967, 378 F.2d 646.

¶44The grand jury was investigating various allegations stemming from insurance claims. That body has substantial leeway in conducting its investigation. This Court has approved the following language from United States v. Stone, 2 Cir., 1970, 429 F.2d 138, 140:48

A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.

¶45The questions seeking to determine whether costs deducted from Davis’ clients’ payments were actually incurred was * a proper subject of grand jury inquiry which resulted in the indictment of Davis and Fox for use of the mails to execute a fraudulent scheme. Abrams argues that Davis’ clients were not the victims or complainants, that the insurance companies were, ergo, no materiality. Appellant’s brief at 51. We are totally at a loss to understand this argument. Not only were the insurance companies victimized, but so were Davis’ clients and the Florida Bar as well.49 If the fabri*421cation and inflation of medical and other costs were part and parcel of an illegal scheme to obtain money and property by false representations, the grand jury was authorized to explore every aspect of that scheme in an effort to determine whether a federal crime had been committed.

¶46A subpart of the materiality argument is that Abrams’ answers in no way “deterred, misled or otherwise influenced the grand jury from conducting and completing its investigation.” Appellant’s brief at 50. This contention misperceives the legal requirements regarding materiality. The government need not show that because of the perjured testimony, the grand jury threw in the towel. Actual impediment of the investigation is not required. E. g., United States v. Makris, supra; United States v. Gremillion, supra.Such a ridiculous rule would mean that the grand jury believed the witness and placed so much importance on his testimony that further inquiry was useless. Grand jurors are capable of judging credibility and they are free to disbelieve a witness and persevere in an investigation without immunizing a perjurer. All the law requires is that the witness’ answers were capable of influencing the tribunal on the issue before it, including any matters collateral thereto. The answers analyzed above easily passed that test and the Trial Court’s finding and instruction on materiality were proper.

¶47Finally, Abrams complains that the government failed to place before the jury evidence of materiality. This complaint is frivolous. One way in which the government can meet its burden on this score is by introducing the transcript of the prior proceeding. See Damato, supra,554 F.2d at 1373 and cases cited in note 3. To paraphrase what one Court stated, the best way to know what the grand jury deems material is by reading what it asked about. United States v. Sweig, S.D.N.Y., 1970, 316 F.Supp. 1148, 1164. Not only was the entire transcript of all three Abrams’ grand jury appearances introduced at trial, but the jury additionally had before it the Abrams indictment which set forth the factual basis50 for the Trial Judge’s finding and instruction on materiality as required in this Circuit. See Brumley and Damato, supra.

¶48B. Count III: The Eduardo Valdez Case

¶49Eduardo Valdez, like Yva Henry, was a client of Davis. The Valdez “charge sheet,”51 Gov’t Ex. 15, shows the costs incurred in his behalf. Under the heading “COURT REPORTERS,” the following handwritten entries appear:

Date Check No. Amount

[ 1 ] Castillo & Castillo 4/10/75 1831[52] 87.40

[ 2 ] Jack Besoner & Associates 5/19/75 1897 [53] 80.00

¶50As to item [1], check # 1831 was actually drawn for $75.70, not for $87.40. Richard Castillo testified that the check was received in payment of an invoice (Gov’t Ex. 17) for court reporting services in connection with the case of Slater v. Faucett. In regard to item [2], check # 1897 was actually drawn for $11.25, not for $80.00. Moreover, Besoner’s ledger sheet, Gov’t Ex. 18, shows that this check covered court reporting services in connection with the deposi*422tion of Jones in the case of Clark v. Jones. Apparently neither of these two depositions had anything to do with the Valdez case.

¶51The following Abrams testimony is the subject of count III:

Q.l Now, looking at Grand Jury Exhibit No. 2, do you recognize the handwriting?

A.1 Yes.

Q.2 Whose handwriting is that?

A.2 Mine.

Q.3 All that handwriting?

A.3 Yes.

Q.4 You have depositions listed there.

A.4 Yes.

Q.5 That’s your handwriting, also?

A.5 Yes.

Q.6 In cases when you charge for a deposition like that did the particular client have a deposition taken?

■ A.6 Yes.

Q.7 And they would be — would you have somebody, a court reporter there to take down what they said?

A.7 I wouldn’t be aware — -I wouldn’t .be there when the court reporter was there.

Q.8 But there would be a cost?

A.8 Yes.

Q.9 Who would give you that cost?

How would you know what to charge for a particular item like that?

A.9 I would get a bill.

Q.10 From whom?

A.10 From the court reporter.

Q.11 Then you’d take that bill.

On the bill would it say the deposition or the particular work that was done on that?

A.11 Yes.

Count III alleges the following violation:

The aforesaid testimony of Anita Abrams as she then and there well knew and believed, was false in that she had prepared the charge sheet in case number 5469 on Eduardo Valdez which reflects that check number 1897 dated May 19, 1975 in the amount of $80.00 was paid to Jack Besoner and Associates for court reporter costs which she knew did not accurately reflect the costs; all in violation of Title 18, United States Code, Section 1623.

¶52While it is undoubtedly true that the Valdez'charge sheet did not accurately reflect the costs, it is clear that Abrams was never asked whether and never stated that the charge sheet did accurately reflect the costs. Indeed, careful scrutiny of these answers in light of Bronston v. United States, 1973, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 reveals that none of these answers is literally false. Bronston stands for the proposition that the federal perjury statute, 18 U.S.C.A. § 1621, is not violated when a witness gives an evasive, nonresponsive but literally true answer, even if the answer is intentionally misleading and arguably false by negative implication.54 Moreover, Bronston expressly places on the questioner the burden of pinning the witness down to the specific object of the inquiry. Chief Justice Burger wrote, “Precise questioning is imperative as a predicate for the offense of perjury.” 409 U.S. at 362, 93 S.Ct. at 602, 34 L.Ed.2d at 576.

¶53As to the specific answers contained in Count III, there is no indication in the record that answers 1-5 are false. Questions and answers 7-11 are framed in terms of what Abrams “would do” as a matter of normal office routine and there is insufficient evidence in the record to support a conclusion beyond a reasonable doubt that these answers are false. None of questions 7-11 asks specifically what Abrams actually did with respect to the Valdez case. The only question which comes even close to asking directly about Valdez, by use of the verb “did” instead of “would,” is No. 6: “In cases when you charge for a deposition *423like that did the particular client have a deposition taken?” (Emphasis added.) This question suffers an infirmity similar to those in questions 7-11, namely, it inquires about cases (plural) “like that”, not about the Valdez case in particular.55 There is insufficient evidence in the record to support a conclusion beyond a reasonable doubt that Abrams’ affirmative response to question No. 6, indicating that in cases like that a deposition was taken, is false. Because the questioner failed, for whatever reason, to pin Abrams down on these charges and asked instead general hypothetical questions,56 Abrams’ conviction on Count III must be reversed. Since there is no way at this point for the government to cure the questions’ defects, a judgment of acquittal must be entered on Count III. Brumley, supra, 560 F.2d at 1277.

¶54II. Fair Trial

¶55Abrams contends that her Fifth Amendment due process right to a fair and impartial trial and her Sixth Amendment right to effective assistance of counsel were violated by the Trial Judge’s conduct which prejudiced the defense in the eyes of the jury. As examples of a biased attitude against the defense, appellant cites nine incidents in the presence of the jury and six in its absence. These incidents fall generally into four categories: (i) interjection into the examination of witnesses; (ii) unjustified criticisms and rebukes of defense counsel; (iii) challenging defense questions without the government interposing an objection; and (iv) generally hostile remarks to defense counsel.

¶56Appellant relies primarily on this Court’s decision in United States v. Candelaria-Gonzalez, 5 Cir., 1977, 547 F.2d 291, in which disparagement, correction, and interruption of defense counsel was one factor which led to reversal of the conviction.57 The record does indicate that the trial court exhibited some irritation with defense counsel. But under the standards carefully laid down by Judge Simpson in Candelaria-Gonzalez,58we are convinced that conduct of the trial did not rise to the level of a constitutional violation of Abrams’ rights.

¶57First, the most questionable instances occurred out of the presence of the jury,59 and the challenged actions before the jury, *424viewed as a whole, simply do not amount to intervention which could have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor. United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1223-24.60*425Second, the Court instructed the jury that (i) it was not to assume from his questioning of a witness that he had any opinion on the matter to which the questions related; (ii) it was not to draw any inference against the side to whom an admonition may have been addressed; (iii) it should disregard any opinion of his as to the facts; and (iv) it was the sole judge of Davis’ credibility despite the court’s remarks aimed at putting a stop to repetitious testimony by Davis.61 Third, defense counsel conceded at oral argument that the Judge’s behavior did not prevent him from conducting the defense as he ordinarily would have. Fourth, the defense was not the sole target of the Judge’s dissatisfaction; the Court demonstrated some pique toward the government as well. See United States v. Bridges, 5 Cir., 1977, 551 F.2d 651; Duran v. United States, 9 Cir., 1969, 413 F.2d 596, 600. Fifth, and most significant, the acquittal of Abrams on Count I further negates any claim that the jury was affected by the Judge’s allegedly biased attitude. United States v. Bridges, supra.

¶58While we do not condone a Trial Judge’s disparagement of the advocates appearing before him, in the final analysis, the question whether prejudicial trial court conduct reaches constitutional magnitude is a matter of degree. In light of all the factors enumerated above, we do not believe that, standing alone, the court’s handling of the trial so prejudiced the defense in the eyes of the jury as to warrant reversal on Fifth or Sixth Amendment grounds.

¶59III. Failure To Grant Mistrial

¶60The government called as a witness Sgt. Paul Janowski who had assisted in executing the search warrant of Davis’ office.62 When asked by whom he was employed, Janowski responded, “Dade County Organized Crime Bureau.” Defense counsel immediately objected and moved for a mistrial, stating that the answer was prejudicial. The motion was summarily denied.

¶61Abrams urges that this answer improperly permitted the jury to infer that she was in some way linked to organized crime or the Mafia, resulting in prejudice that requires reversal. Alternatively, appellant contends that the trial court’s conduct, taken together with the denial of the mistrial motion, should result in reversal as in Candelaria-Gonzalez, supra.63We disagree.

¶62Defense counsel conceded at oral argument before us that Janowski in fact worked for the Dade County Organized Crime Bureau. The answer was therefore *426truthful. Appellant also concedes that it is customary to have witnesses state where they are employed. In addition, we are compelled to ask one question: if the answer had in fact infected the jury in the manner suggested, why would it have acquitted Abrams on Count I? Moreover, the jury was instructed more than once that the sole issue before it was whether Abrams deliberately lied to the grand jury and that nothing she did in Davis’ office by way of over- or undercharging a client was relevant. Another factor negating likely prejudice is the jury’s possession during its deliberation of all Abrams’ grand jury testimony in which there was not one shred of evidence linking Abrams or the Davis office to the Mafia or organized crime. The possibility that this one isolated answer — given in the context of the whole trial where there was not another word to show any connection to the syndicate — could cause a reasonable juror to jump to the conclusion that Abrams had any such connection is farfetched. We refuse to credit jurors with such active imaginations and so little common sense.

¶63The Trial Judge did not abuse his discretion in denying the motion for a mistrial and the record, taken as a whole, fails to demonstrate that Abrams was denied a fair and impartial trial.

¶64The conviction and sentence on Count II is affirmed. The conviction on Count III is reversed and a judgment of acquittal is to be entered on that count.

¶65AFFIRMED IN PART and REVERSED IN PART.

¶66APPENDIX *

¶67JULY 26, 1976 GRAND JURY TESTIMONY OF ANITA ABRAMS SET FORTH IN COUNT II OF THE INDICTMENT

¶68Q.l The message, according to the notation, says “Anita space Eva Henry costs space $231.50 space wants breakdown,” and gives the case number.

¶69Now, after you received this telephone message, did you obtain a breakdown of these costs?

¶70A.l Yes, I did.

¶71Q.2 Where did you get that from?

¶72A.2 From our cost sheet and the cards that the accountant would have.

¶73Q.3 Now, what has been marked as page two of this item, which is a letter dated April 1, 1974, do you recognize that?

¶74A.3 Yes, I do.

¶75Q.4 Do your initials appear as the typist on this?

¶76A.4 Yes.

¶77Q.5 Attached to that is a breakdown of the costs on Eva Henry, is that correct?

¶78A.5 Yes.

¶79Q.6 Now, on this charge sheet, on Eva Henry, as attached to this letter to the Florida Bar list is, first of all, well it lists a number of minor charges such as $3 for accident report, $6 Westchester General Hospital medical records, Jackson Memorial Hospital medical records, I believe that’s a total of $14 right there.

¶80Then there’s also a charge here for $35 for photographs.

¶81Now, this request came in and this letter was sent out on April 1, 1974.

¶82Do you recognize this copy of a bill which appeared in the Eva Henry file which is page number three of that exhibit which is a bill for film?

¶83A.6 Yes, I do.

¶84Q.7 Dated April 2, 1974.

¶85Do you recognize that?

¶86A.7 Yes, I do.

¶87Q.8 Do you recall the circumstances under which that bill was obtained?

¶88A.8 I know that the investigator, Dave Hallen, would take photographs and bill us for that.

¶89Q.9 After the case was closed?

¶90A.9 Well, sometimes a bill is not submitted until after the case is closed.

¶91*427Q.10 But this is not a bill from Mr. Hallen.

¶92This is a bill for film.

¶93A.10 He would have paid that bill himself.

¶94Q.ll He wouldn’t have paid it until like a year after the case was closed?

¶95A.11 No.

¶96What I’m saying is he would pay it out of his own pocket and collect it from the office.

¶97Q.12 When would he pay it?

¶98A.12 When he gets it.

¶99Q.13 Why he would be getting a bill for film on the Eva Henry case the day after the letter from the Florida Bar comes in asking for a breakdown on costs?

¶100A.13 I wouldn’t know what he would do.

¶101All I know is that sometimes, before the case is — he would pay a bill before and submit it to us after.

¶102Q.14 Now, this amount that you have here, $35 for photographs, which, apparently, is based on a bill for film and a copy of a cover envelope from the developing company also dated April 2, 1974, now these two amounts, which constitute the bill for $35 on photographs, where you would have gotten the bill for film or a bill for photographs prior to receiving these two items?

¶103A.14 From Dave Hallen.

¶104… *

¶105Q.15 Isn’t it true, Miss Abrams, that after you received a letter from the Florida Bar or a note from the Florida Bar asking for a breakdown of costs, that these items, the bill for film and the bill for photographs, were obtained the day after so that you would have something in your file to justify that cost?

¶106A.15 Not to my knowledge.

¶107Q.16 All right.

¶108You said you did type up this letter to the Florida Bar, right?

¶109A.16 Yes, I did.

¶110Q.17 You did type up this charge sheet on Eva Henry?

¶111A.17 Yes, I did.

¶112Q.18 Where did you get the figures from this that appear on the charge sheet?

¶113A. 18 From what I have on my own charge sheets on what was on the charge cards.

¶114Q.19 You didn’t use the journal entries, then?

¶115A.19 Not for the charge cards.

¶116Q.20 No.

¶117I didn’t ask for the charge cards.

¶118I asked for this letter.

¶119I asked, what records did you use to prepare this charge sheet which was submitted to the Florida Bar on Eva Henry?

¶120A.20 Well, I would get it from a charge sheet, like the one that’s here on Valdez, and if there was a charge card that the accountant would have.

¶121Q.21 Now, listed on this charge sheet of Eva Henry is a charge of $107.50 for investigation in photography.

¶122Now, where would you have gotten that amount from?

¶123A.21 From Dave Hallen.

¶124Q.22 Okay.

¶125You didn’t get it from Dave Hallen when the Florida Bar asked for a breakdown, did you?

¶126A.22 Probably did.

¶127I don’t recall exactly when I got it from him.

¶128Q.23 Your case was closed by then, right?

¶129A.23 I don’t remember exactly when it was closed and when there was a letter from the Florida Bar.

¶130Q.24 This charge — closing statement that you referred to before has a listed cost on here of $231.50 and part of that cost is, supposedly, made up by this charge of Mr. Hallen for a hundred and seven dollars, is that right?

¶131A.24 Yes.

¶132*428Q.25 Now, when you prepared this, which was prepared prior to the time that Miss Henry made her request to the Florida Bar, where did you get the figure of a hundred and seven dollars from for investigative services?

¶133A.25 Dave Hallen.

¶134******

¶135Q.26 . . . Now this thing on Yva Henry here, on what has been marked as Government’s Exhibit No. 9, which, first of all, contains a message of a phone call to you that we’ve gone over before, saying “Anita, Yva Henry, costs, $231.50, want breakdown,” gives the case number is there a little notation off to the side here saying, “Photographs, ten at $3.50, $35 AR” which I assume is accident report, “$3, WR,” which I assume is Westchester report, “$6, JMH,” which I assume is Jackson Memorial Hospital, “$5.”

¶136Giving us a total of $49.

¶137Then underneath that is another entry for $75 giving us a total entry of $124.

¶138Then underneath that, Miss Abrams, is another entry wherein you put down the amount of costs, $231.50 and you subtract that amount you have up here, $124 to arrive at another figure.

¶139Could you please tell me what you were doing there?

¶140A.26 It looks like I was subtracting $124 from $231.50.

¶141Q.27 Why would you be doing that?

¶142You testified, when you made up the amount of costs, you would just go to these various places and get all the costs and add them up and arrive at a cost.

¶143. Why would you be subtracting $124 from what the total cost is listed on the sheet?

¶144Why wouldn’t you be adding up all the costs?

¶145A.27 Well, I don’t remember.

¶146I don’t know what I was doing.

¶147I can’t remember what I was doing there.

¶148I can see I was subtracting that but I don’t know why.

¶149I can’t remember what I was doing.

¶150Q.28 You can’t explain this?

¶151A.28 I know I did subtract it.

¶152Q.29 You’re the bookkeeper.

¶153Can you think of any reason you would be doing it that way?

¶154A.29 I really don’t remember.

¶155I know I was subtracting it but— ******

¶156Q.30 (By Ms. Lyons) So you’re saying Mr. Hallen brought this bill into your office; is that right?

¶157A.30 I think he did.

¶158******

¶159Q.31 Now, this is a bill for services dated May 17, 1973.

¶160Now it’s listed in the name of Worldwide Detective Agency.

¶161Who would the check have been made to?

¶162A.31 Dave Hallen.

¶163Q.32 Were all bills from Worldwide Detective Agency paid to Dave Hallen directly?

¶164A.32 Yes.

¶165******

¶166Q.33 (By Ms. Lyons) Miss Abrams, when you got this request from the Florida Bar for a breakdown on the Yva Henry case, isn’t it true that you went back through your books to try and find the check that had been written to someone in an amount you could fill in the blanks on this and thus justify the cost of $131.50?

¶167A.33 No, I did not.

¶168******

¶169Q.34 When you figured out the cost, how did you figure out this entry, or whatever it is, in this book, or in this book, that $107.50 of that was attributable to investigation and Yva Henry when it doesn’t say $107.50 is for Dave Hallen?

¶170A.34 Because his sheet would have it.

¶171Dave Hallen has always — almost always supplies bills for his services and he would have cases on that sheet.

¶172I would post it accordingly as such.

¶173*429Q.35 Post it where?

¶174A.35 On the chart sheet.

¶175Q.36 So you’re saying that you prepared this amount for the Florida Bar based upon your charge sheet in the Yva Henry case?

¶176A.36 Yes.

¶177******

¶178Q.37 Why wouldn’t you have these bills in your file until April 2, 1974 and why wouldn’t the cost be incurred until April 2, 1974 if his investigation was allegedly done in May of 1973?

¶179Didn’t you direct to have these photographs prepared at that time when this inquiry from the Florida Bar come about?

¶180A.37 I didn’t.

¶181I never directed Dave Hallen to do anything, the attorneys would.

¶182Q.38 Did the attorney do that in this case?

¶183A.38 Not to my knowledge, no.

¶184Q.39 Didn’t these bills just appear in the file after that call from the Florida Bar?

¶185A.39 I know that the bills were Dave Hallen's.

¶186He had them.

¶187I never paid them directly.

¶188He may have requested copies.

¶189Q.40 Where did this come from?

¶190A.40 It would come from him.

¶191Q.41 In April of 1974, the day after the request from the Florida Bar?

¶192A.41 Well, I don’t know where we got them or when he got them but he may have asked for copies of the bills.

¶193He may not have kept them.

¶194He may have requested copies of the bills the—

¶195Q.42 You said he submitted the bills to you and that you based your payments to him on bills he submitted to you.

¶196Why would he have been requesting copies of bills from you?

¶197A.42 Not from me, from the photography company.

¶198Q.43 Why would it be in your file?

¶199A.43 He may have been asked to produce the bills.

¶200Q.44 By who?

¶201A.44 By the attorney.

¶202Q.45 What attorney?

¶203A.45 I don’t know who worked on the file or gave instructions on it.

¶204Q.46 Mr. Davis is the one signing the letter to the Florida Bar with the breakdown of costs?

¶205A.46 Yes.

¶206Q.47 This breakdown of costs was prepared by you, is that correct?

¶207A.47 Yes.

¶208Q.48 And you said that those costs all came from the cost statement that you had prepared as this case went along?

¶209A.48 That’s right.

¶210Q.49 All right.

¶211This breakdown of costs to the Florida Bar, then, you deny was based on these photographic bills which did not come into your office until April of 1974?

¶212A.49 I don’t understand.

¶213What’s the question.

¶214Q.50 You’re saying that the breakdown to the Florida Bar was based purely on your cost statement?

¶215A.50 Yes.

¶216Q.51 And you said that you recorded costs on your cost statement as they were incurred?

¶217A.51 Yes.

¶218Q.52 Therefore the cost statement would not contain any bills such as these which were not submitted into your office until April 2, 1974.

¶219A.52 What I’m saying is that Mr. Hallen may have paid them and we repaid him and he may have requested copies of the bills because we didn’t have those to substantiate his payment.

¶220The payment that he received.

¶221He may have got it after.

¶222I don’t know.

¶223*430I don't remember the exact circumstances.

¶224Q.53 You do not know the circumstances under which this photographic bill, dated April 2, 1974, and this envelope containing negatives of photographs dated April 2, 1974, and contained in the Yva Henry file, you do not know the circumstances under which these items were contained?

¶225A.53 No.

¶226I do not.

¶227Q.54 Also the bill for the conference with Dr. Fox, two conferences with Dr. Fox in April of 1973 and in June of 1973, do you also deny that you know the circumstances under which this particular bill was prepared?

¶228A.54 I do.

¶229Q.55 Also this bill from Worldwide Detective Agency dated May 17, 1973, in the amount of $107.50.

¶230Do you know the circumstances under which this bill was prepared.

¶231A.55 I know that bill was prepared by the investigator and it was paid to him.

¶232Q.56 When?

¶233A.56 I don’t know.

¶234Q.57 Would that bill have been submitted on/or about May 17, 1973?

¶235A.57 It’s possible but I cannot say for sure.

¶236Q.58 Would it have been submitted pri- or to the time that this amount was deducted from the client’s settlement payment?

¶237A.58 I do not remember when it was submitted.

¶238I know it was submitted and paid but I cannot remember when or what day or what.

¶239Q.59 Would you have charged the client for this amount if you did not have a bill on it?

¶240A.59 No.

¶241Q.60 You’re saying this bill was submitted to your office sometime prior to the settlement in the Yva Henry case?

¶242A.60 Yeah.