United States v. O'Connor

750 F. Supp. 90, 1990 U.S. Dist. LEXIS 15590, 1990 WL 180661
CourtDistrict Court, W.D. New York
DecidedNovember 15, 1990
DocketNo. CR-90-104E
StatusPublished

This text of 750 F. Supp. 90 (United States v. O'Connor) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. O'Connor, 750 F. Supp. 90, 1990 U.S. Dist. LEXIS 15590, 1990 WL 180661 (W.D.N.Y. 1990).

Opinion

MEMORANDUM AND ORDER

ELFVIN, District Judge.

In a one-count Indictment the aboven-amed individual (“the defendant”) is charged with having, while under oath and as to matters material to an investigation then being conducted by a United States Grand Jury, knowingly given false testimony. The matter said in the Indictment to have been thus under investigation was the making of false returns, statements and other documents or otherwise attempting to evade or defeat a federal tax by or on behalf of a corporation, The Goodbar Restaurant, Inc. or Joseph Aliotta or Philip Aliotta. Paragraph 4 of the Indictment charges the defendant with having committed perjury (a) by stating that he had not accompanied Joseph Aliotta to a liquor store to pick up whiskey or vodka for the corporation and (b) by stating that he had not told certain government agents that he had. The defendant contends that much of what is recited in the Indictment as his testimony was not material to the grand jury’s investigation and is surplusage. He contends that it must necessarily be deduced that the grand jury was improperly or ambiguously instructed on the pertinent law in order to have returned this bill of indictment.

That it was the intention of the United States Attorney that there be two separate areas of perjury—i.e., denying that he had accompanied Joseph Aliotta once or twice a week to the store to procure whiskey or vodka for the corporation and denying that he had told government agents that he had done so—is clear from the government’s response to the defendant’s motion. It claims that there are the two separate and discrete specifications of perjury. In support the government cites United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980), and United States v. Dilworth, 524 F.2d 470 (5th Cir.1975). The latter is instructive not as much as for the principle for which it is cited by the government—viz., that the prosecution need not prove all of the perjury specifications embodied in a single count of an indictment and that proof of one or fewer than all will suffice for a conviction—as it is illuminative of the undue and unfair prejudice that is claimed to lurk in the present charge. What is here presented is a coupling of a material perjury and a facially immaterial perjury. What is claimed to be immaterial is whether the defendant earlier had stated to government agents that which is the gravamen of the grand jury’s investigation and of the Indictment—to wit, that he had accompanied Joseph Aliotta in procuring the specified alcoholic spirits from the store. If the denial of such revelation or revelations has any materiality such lies in the impeachment of the credibility of the witness. One who testifies under oath that he never did a certain act—whether the testimony is adduced in the closed grand jury room or in open court—can have the credibility of such testimony attacked by being asked whether he at another time and on a different occasion had stated that he had done the act. In open court the objection to such a question by a cross-examiner (leaving aside the permissiveness of impeaching one’s own witness) that the question is immaterial would be quickly and firmly overruled in that the credibility vel non of any witness is always one of the factual decisions to be made by the trier of fact. Thus, if the defendant were to be a witness in his own behalf on the trial of this case, testifying in opposition to the prosecution’s attempts to demonstrate to the trial jury beyond a reasonable doubt that the defen[92]*92dant had accompanied Joseph Aliotta, the prosecutor in cross-examination very properly could inquire of the defendant whether he had on an earlier occasion or occasions told one or more persons that he had thus participated with Mr. Aliotta. Such would unquestionably be material to the jury’s evaluation of the credibility vel non of the defendant’s denial thereof. Assuming that the defendant would say to the prosecutor that he never had made such statement or statements, the prosecutor might or might not be permitted on rebuttal to adduce testimony that the witness had made such a statement. See FRE rules 613(b) and 801(d)(1). Whether an extrinsic rebuttal would be permitted does not depend on materiality vel non. The making or not making of the earlier statement would be per se material to credibility.1

The instant grand jury investigation was not directed at the defendant and his role was solely that of a witness. He denied going with Mr. Aliotta to the liquor store. Whether Mr. Aliotta got whiskey or vodka from the store is not claimed by the defendant to be immaterial to the investigation and it is here assumed that such was material. The defendant’s testimony therefore was materia] to such investigation and, perhaps, to whether the defendant aided or abetted Mr. Aliotta’s misdeeds.

United States v. Berardi, supra, is instructive re materiality. Therein Berardi, before a grand jury which was investigating whether there had been a subornation of perjury, was asked (a) whether he had been solicited to commit perjury and, he having answered in the negative, (b) whether he had told certain individuals that he had been, he again having answered in the negative. In a single-count indictment Ber-ardi was charged with the two separate denials. The trial jury acquitted Berardi of having committed perjury in denying that he had been solicited but convicted him of having perjured himself in denying that he had told others that he had been solicited. Prior to imposing sentence and sua sponte, the trial judge dismissed the specification of perjury as to which Berardi had been found guilty — viz., his denial that he had told others that he had been approached re committing perjury. The trial judge opined that this specification had not been sufficiently material and that such was true at the time the testimony had been given before the grand jury and was “more true after the jury came in with the verdict of not guilty on the first specification.” The Court of Appeals reversed, saying that materiality need not be demonstrated beyond a reasonable doubt, that it is a threshold issue which must be decided by the trial court and at the earliest opportunity and that an answer is material if it tends to influence or impede or dissuade a grand jury from its investigatory pursuit.

“Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative * * *, that the response was believed by the grand jury to be perjurious at the time it was uttered * * * or that the matters inquired into were collateral to the principal objective of the grand jury. * * *
“ * * * The grand jury’s mandate was to probe a scheme to deprive various individuals of their civil rights. By denying that he had confided in others that he had been entreated to join in this illicit effort, [Berardi] potentially hampered the investigation in several significant ways.

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Related

United States v. Robert J. Dilworth
524 F.2d 470 (Fifth Circuit, 1975)
United States v. Clayton Berardi
629 F.2d 723 (Second Circuit, 1980)
United States v. Robert Kiszewski
877 F.2d 210 (Second Circuit, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
750 F. Supp. 90, 1990 U.S. Dist. LEXIS 15590, 1990 WL 180661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oconnor-nywd-1990.