Feinberg, Gurfein and Meskill, Circuit Judges.
The United States moves for rehearing. The rehearing is granted and we adhere to our earlier decision. We affirmed the conviction of each appellant on the false declaration counts and reversed on the convictions for violating the Fair Housing Law, 42 U.S.C. § 3631, following United States v. Hinton, 543 F.2d 1002 (2d Cir. 1976). As a result each appellant is under sentence of one year of imprisonment.
The government contends that appellants should not have the benefit of Hinton - which held that an indictment by the same grand jury that heard immunized testimony of a defendant must be dismissed - because appellants failed to move to dismiss the indictment before trial pursuant to Rule 12 of the Rules of Criminal Procedure. Davis v. United States, 411 U.S. 233, 36 L. Ed. 2d 216, 93 S. Ct. 1577 (1973). We have considered this contention and find it unpersuasive in the circumstances.
As the government concedes, the substance of the argument that proved to be the basis of the Hinton rule was made to the trial judge just before trial in the form of a motion for severance, as well as a motion to preclude. The invalidity of the procedure was directly argued before the trial judge and he entertained consideration on the merits. It was put quite clearly by defense counsel:
"What I am suggesting is that there should have been two separate Grand Jury proceedings, so that there would be no prejudicial spillover or taint."
"I understand that would seem to be one logical antidote or solution, but, nevertheless, it does raise the question of whether a Grand Jury simply because certain witnesses have been brought before it, now may not be - charge them for the crimes but only for the crime of perjury. And that doesn't strike me as having been the intent of Congress by any means but I am not prepared to expound on that. I think I will consider the matter but based on what I have seen of these transcripts, I don't think any hearing is necessary here. To me it's largely a legal question." (App. Appendix A 88) (emphasis added).
This colloquy occurred at the conclusion of the argument made on the day the case was called for trial, May 3, 1976, before a jury was impanelled. Therefore, had there been severance, for which there was time, there could have been a proper reindictment, after Hinton came down. This squares with the rationale of Davis v. United States, supra. Hinton was decided September 27, 1976. We think that the government's contention that the substance of the Hinton argument was called to the court's attention too late is hypertechnical. We do not find waiver here. In Hinton the motion to dismiss the indictment was made "at trial," 543 F.2d at 1007. The Hinton court concluded "that the procedure the Government adopted here falls outside the bounds of permissible prosecutorial conduct." We recognize that the Assistant U.S. Attorney in our case was conscious of the problem and that he told the Grand Jury "if [the witness] testifies under use immunity, you should not use his testimony against him when you consider and vote on a bill, an indictment alleging a civil rights violation." This, however, is precisely what the Hinton court held was not sufficient and that is the law of the Circuit.
The government contends that since the Hinton decision came down after this indictment the rule of that case should not be applied retroactively. We think that since the vice here was similar to that in Hinton we are not merely applying a retroactive rule, but rather are applying the same logic to a similar state of facts, as we might well have done if Hinton had never been decided. We are particularly sorry to reverse a conviction for so despicable a crime, ...