U.S. v. Thompson, 79-5218

• Decision Date: 29 January 1981
• Docket Number: No. 79-5218,79-5218
• Citation: 637 F.2d 267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Merle THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 267

637 F.2d 267

UNITED STATES of America, Plaintiff-Appellee, v. William Merle THOMPSON, Defendant-Appellant.

No. 79-5218.

United States Court of Appeals, Fifth Circuit.

Jan. 29, 1981.

John Mark McDaniel, Robert M. Shipman, Huntsville, Ala., for defendant-appellant.

J. R. Brooks, U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before JONES, BROWN and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Convicted of three separate charges of making false material statements before a grand jury in violation of 18 U.S.C. § 1623, William Merle Thompson contends that the government failed to prove the materiality of the statements to any investigation being made by the grand jury, and that his answers to the questions asked him were not shown to have been intentionally misleading. We conclude both that materiality was proved and that Thompson's answers were sufficiently shown to have been intentionally misleading to warrant that conclusion beyond reasonable doubt. We, therefore, affirm the conviction.

In May 1978, a federal grand jury in the Northern District of Alabama was investigating gambling and racketeering. That grand jury returned an indictment in June 1978 against David Headrick, the former sheriff of Madison County, and others, charging them with having engaged in a conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act by participating in an enterprise to solicit gamblers, bookmakers and operators of games of chance to pay money to Sheriff Headrick for the privilege of conducting their illegal operations free from interference by the Sheriff. In the course of the investigation that led to the indictment, the grand jury called Thompson as a witness. He was asked, among other questions: whether he had personally run card games or gambling games in Madison County (Count I); whether he had paid money to Sheriff Headrick or to anyone on Headrick's behalf or to Headrick's "defense fund" (Count II); and whether he knew one "Tex" Johnson (Count III). He answered the questions relating to each topic in the negative. The falsity of these statements was the basis of the indictment. Thompson's motions to dismiss, for a bill of particulars and for other pretrial relief, were denied.

I.

Materiality of the statements made is patently an essential ingredient of the offense of making a false material declaration to a grand jury under oath. ¹ In determining whether Thompson's statements were material, we traverse a well travelled path, following several prior decisions of this Court. The issue of materiality is a legal question to be decided by the trial judge, United States v. Forrest, 623 F.2d 1107, 1113 (5th Cir. 1980), United States v. Bell, 623 F.2d 1132, 1134 (5th Cir. 1980), and its determination focuses on the questions "whether the false testimony was capable of influencing the tribunal on the issue before it," United States v. Cosby, 601 F.2d 754, 756 n.2 (5th Cir. 1979) (citations omitted), or whether "the testimony would have the natural effect or tendency to influence, impede, or dissuade the Grand Jury from pursuing its investigation," United States v. Gremillion, 464 F.2d 901, 905 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 683, 34 L.Ed.2d 672 (1977). ²

The scope of the grand jury's inquiry and the materiality of the declaration to that inquest are generally, and usually best, proved by introduction of a complete transcript of the grand jury proceedings or by testimony of the foreman or some other member of the grand jury. United States v. Cosby, 601 F.2d 754, 757 (5th Cir. 1979). However, the custom of proceeding in one of these fashions should not lead to the conclusion that they are the exclusive methods of establishing what the grand jury was investigating or the materiality of the questions to that investigation. Indeed, while the recording of grand jury proceedings is now required, F.R.Crim.P. 6(e)(1), a complete recording was neither commanded nor routinely made before 1979. In the absence of such a record, materiality was usually established by other means. See, e. g. United States v. Cuesta, 597 F.2d 903 (5th Cir. 1979) (testimony of United States Attorney who witnessed the grand jury proceedings); United States v. Parr, 516 F.2d 458 (5th Cir. 1975) (testimony of grand jury foreman); United States v. Saenz, 511 F.2d 766 (5th Cir. 1975) (testimony of a grand juror).

In the present case, the government, to satisfy its burden of proving materiality, introduced the indictment brought against Sheriff Headrick by the same grand jury that questioned Thompson. That indictment discloses that the grand jury was investigating payments made to the Sheriff by gamblers. The indictment alleges that one of the numerous overt acts committed pursuant to the conspiracy charge was a request by Sheriff Headrick directed to James "Tex" Johnson, asking him to approach Huntsville area gamblers on the Sheriff's behalf. The City of Huntsville is in Madison County. It was, therefore, a reasonable inference that it was material to investigating Sheriff Headrick's actions and the possible complicity of "Tex" Johnson, as well as any other evidence that Thompson might provide, to determine whether Thompson was a gambler, whether he, or anyone else, had contributed money to Headrick and whether he knew Johnson.

In addition, the Assistant United States Attorney testified that he was "helping to direct" the grand jury investigation. He was present when defendant Thompson testified before the grand jury and he heard all of Thompson's testimony. He testified that the grand jury was conducting an inquiry into the manner in which Sheriff Headrick had run the Sheriff's Office, and was investigating allegations that the Sheriff had solicited money from gamblers in return for which he would allow them to conduct their games of chance free of law enforcement interference.

In United States v. Cosby, 601 F.2d 754 (5th Cir. 1979), we held that the testimony of a Federal Bureau of Investigation agent, who was not present in the grand jury room, did not suffice to prove the materiality of questions put to a grand jury witness. We reasoned that, because the agent did not witness the actual questioning by the grand jury, his statements proved only "his own purposes and actions, not the nature, scope or extent of the grand jury's inquiry." United States v. Cosby, 601 F.2d 754, 758 (5th Cir. 1979). We have held, however, that those who actually witness the grand jury proceedings may testify to the subject matter of the grand jury investigation in order to establish the materiality of testimony given to it. See United States v. Damato, 554 F.2d 1371 (5th Cir. 1977) (dictum); United States v. Cuesta, 597 F.2d 903, 921 (5th Cir. 1979); United States v. Saenz, 511 F.2d 766, 768 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). In Cuesta, the evidence concerning materiality consisted of the defendant's testimony before the grand jury, a taped conversation between the defendant and a third party and the testimony of an Assistant United States Attorney who had participated in the grand jury investigation. In reaching the conclusion that there was sufficient evidence of materiality, we relied principally upon the United States Attorney's testimony.

The evidence concerning the materiality of the statements made by Thompson, the indictment, the testimony of a witness to the proceedings and the transcript of Thompson's testimony before the grand jury, was more extensive than that presented...