U.S. v. Lardieri

• Decision Date: 18 December 1974
• Docket Number: No. 73-1750,73-1750
• Citation: 506 F.2d 319
• Parties: UNITED STATES of America, Appellee, v. Herman Eugene LARDIERI, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 319

506 F.2d 319

UNITED STATES of America, Appellee, v. Herman Eugene LARDIERI, Appellant.

No. 73-1750.

United States Court of Appeals, Third Circuit.

Argued Jan. 9, 1974, Reargued before the original panel

Sept. 13, 1974.

Decided Dec. 18, 1974.

Richard L. Thornburgh, U.S. Atty., Pittsburgh, Pa., Carl L. LoPresti, Michael P. Lesniak, Sp. Attys., U.S. Dept. of Justice, Organized Crime & Racketeering Section, Pittsburgh, Pa., for appellee.

Louis J. Grippo, Pittsburgh, Pa., for appellant.

On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Criminal No. 72-192.

Before ADAMS, HUNTER and WEIS, Circuit Judges.

ADAMS, Circuit Judge:

The issue posed by the petition for rehearing before the panel is whether an indictment for perjury allegedly committed during the course of testimony before a grand jury may be dismissed because of the failure by the prosecutor to inform the witness of the recantation provision of 1623. ¹

a.

The events leading to Herman Lardieri's perjury conviction occurred during an investigation of the tax affairs of Louis Sorrentino. Lardieri performed some managerial functions at Steurer's Restaurant in Altoona, which was owned from July, 1967 to July, 1969 by Sorrentino, a New York City resident. The connection between Lardieri's activities and the financial interests of Sorrentino prompted the government to seek information from Lardieri. Agent Dye of the Internal Revenue Service accordingly interviewed Lardieri in June of 1971. During the interview, Agent Dye Questioned Lardieri with respect to the execution of checks drawn on the restaurant's account. Lardieri stated to Agent Dye that he did sign some of the restaurant's checks.

On April 10, 1972, Lardieri was subpoenaed to testify before a special grand jury. The subpoena was served on Lardieri the day before he was to appear.

At the grand jury proceeding, Lardieri was examined on the procedures by which the restaurant's checks were made out and signed. He testified that he 'never signed a check as long as the place (Steurer's Restaurant) was there.' The prosecutor, apparently recognizing an inconsistency between Lardieri's statements to Agent Dye and his grand jury testimony, engaged with Lardieri in the following exchange:

Q. Did you sign a bank signature card at that time. At the bank?

A. I don't remember.

Q. Mr. Lardieri, do you know what perjury is?

A. (No response.)

Q. Do you know what perjury is?

A. No.

Q. You don't know?

A. I don't know what perjury is.

Q. You have no idea what perjury is?

A. You have to tell the truth and if you don't tell the truth, you wind up in jail.

Q. And there is also a $10,000 fine as well. Now, with that in mind, I will ask you again: did you participate in any way in the opening of the account for Steurer's Restaurant at Mid-State Bank?

A. I don't remember.

Q. Were you authorized to sign checks on that account?

A. No, I know that.

. . . .now

Q. I don't think you have been candid with us today, with the members of the grand jury.

A. I told you the truth.

Q. I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony.

A. That is it.

Q. Is there anything that you have said on here today that you would like to modify or change?

A. No, just put down what I said . . ..

On the basis of this testimony, Lardieri was indicted for perjury. At his trial before a jury he contended that he had made the false statements because he was tired, having not slept for 36 hours in order to prepare for a banquet scheduled for the day of his grand jury appearance. He asserted that he lost his temper, did not know what he was doing, and was not in the right frame of mind.

At the conclusion of the trial, he was convicted of making a false statement before the grand jury in violation of Section 1623. Upon his appeal to this Court Lardieri originally contended that (1) the false statements were not material to the grand jury's investigation; (2) the trial court erred in failing to charge the jury on the elements of willfulness; and (3) the prosecutor made prejudicial remarks in his closing statement to the jury. In an opinion filed May 14, 1974, this Court found no merit in Lardieri's contentions, but remanded to the district court for a hearing to determine if the indictment should be dismissed because of the failure of the prosecutor to inform Lardieri of the recantation provisions of Section 1623, inasmuch as the prosecutor had warned him of the punitive provisions of that section. ²

A petition for rehearing filed by the United States raised the question whether Section 1623 requires the prosecutor to notify a grand jury witness of the recantation provision.

On this rehearing Lardieri contends that the legislative purpose embodied in Section 1623(d) is to encourage witnesses to divulge the truth by permitting them, when they have lied under oath, to correct their false testimony without subjecting themselves to perjury convictions. If subsection (d) is to serve this purpose, Lardieri argues, it is necessary for witnesses to be aware of their right to recant, and therefore for the prosecutor to notify them of such right. Accordingly, Lardieri concludes that this case should be remanded to the district court for a determination whether the indictment should be dismissed for the prosecutor's failure to so notify Lardieri.

b.

Upon reconsideration we concluded that a reversal of the conviction is not required by section 1623 as a result of the prosecutor's not having given Lardieri further notification of the recantation provision in the statute. Nor do we consider such reversal an appropriate exercise of any supervisory powers over the grand jury which may be vested in this Court. ³

We first review the statutory language and the legislative history to determine whether the statutory intent requires that such a notice regarding recantation be given to a witness before a grand jury. It is clear that the statute, by its terms, does not expressly require the prosecutor to warn the witness of the recantation provision of section 1623(d). The recantation provision was intended to encourage the witness to correct false testimony promptly, by allowing him to escape prosecution if he recants before the proceeding has been 'substantially affected' or before it has 'become manifest that such falsity has been or will be exposed.' ⁴

Lardieri has not shown that the purpose of this provision would be frustrated if the prosecutor were permitted to remind the witness of the penalties for perjury without telling him of the recantation provision as well. No empirical evidence has been presented which demonstrates that a statement regarding penalties by the prosecutor would deter the witness from correcting his testimony. On the contrary, it is reasonable to assume that if Congress had found disclosure of the recantation provision necessary in order to stimulate the correction of false testimony, they would have included a disclosure requirement in the statute. ⁵

The recantation provision in section 1623(d) was modeled after Section 210.25 of the New York Penal Law, McKinney's Consol.Laws, c. 40, which codified the ruling of the New York Court of Appeals in People v. Ezaugi, 2 N.Y.2d 439, 161 N.Y.S.2d 75, 141 N.E.2d 580 (1957). ⁶ See 2 U.S. Code Cong. & Admin. News, p. 4024 (1970). It is significant that neither the New York Legislature nor the New York courts have found it necessary or appropriate to impose on the prosecutor an obligation to notify the grand jury witness of the provision for recantation when the prosecutor tells the witness of the penalties for perjury.

Additionally, it was the congressional judgment that the overall purpose of Section 1623, obtaining more truthful responses from witnesses before courts and grand juries, would be best accomplished by facilitating perjury convictions for those who had violated their oaths. ⁷ In order to remove encumbrances from such convictions, Congress abandoned the two-witness rule, discontinued the requirement that the prosecutor prove the truth of one of two irreconcilable statements under oath, and required only a 'knowing' rather than a 'willful' state of mind. ⁸ The Senate Judiciary Committee described the intent of the Section as follows:

A subpoena can compel the attendance of a witness before a grand jury or at trial. * * * But only the possibility of some sanction such as a perjury prosecution can provide any guarantee that his testimony will be truthful.

Today, however, the possibility of perjury prosecution is not likely, and if it materializes, the likelihood of a conviction is not high. * * *

(Section 1623) creates a new federal false declaration provision that will not be circumscribed by rigid common law rules of evidence. S.Rep. No. 91-617, 91st Cong., 1st Sess. 57-59 (1969).

Congress thus sought to promote more truthful testimony by facilitating perjury prosecutions and convictions.

On the other hand, Congress also provided that a witness who had testified falsely could, under limited circumstances, avoid prosecution. As noted earlier, Lardieri has not demonstrated that a requirement that the prosecutor notify witnesses of the recantation provision would induce more people to recant. However, dismissing perjury indictments where the prosecutor has not given such notice would create a new impediment to successful perjury prosecutions, thereby jeopardizing the deterrent effect Congress specifically sought to establish by rendering perjury convictions easier to obtain. The statutory history, therefore, does not reveal a Congressional intent that prosecutions be dismissed where such warnings are not given.

c.

The concept of fairness to the criminally accused is incorporated in the doctrine of due process. ⁹ However, it has not been asserted, either by the parties or in the dissent, that the prosecutor's conduct here rises to the level of a...