Masinia v. United States

• Citation: 296 F.2d 871
• Decision Date: 22 November 1961
• Docket Number: No. 16720.,16720.
• Parties: Mathew Joseph MASINIA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

296 F.2d 871 (1961)

Mathew Joseph MASINIA, Appellant, v. UNITED STATES of America, Appellee.

No. 16720.

United States Court of Appeals Eighth Circuit.

November 22, 1961.

Paul Scott Kelly, Jr., and James Daleo, Kansas City, Mo., made argument for appellant and was on the brief.

Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., made argument for appellee. F. Russell Millin, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., were on the brief.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

This is a criminal prosecution for perjury under 18 U.S.C.A. § 1621. The charges relate to testimony given by the appellant before a federal grand jury. The indictment was in four counts. Each count alleged that the grand jury, sitting in the Western District of Missouri

"* * * was inquiring into a possible violation of Section 2314 of Title 18, United States Code, and specifically into whether jewelry of the value of $5,000.00 or more was stolen from the R. Herz and Brothers Jewelry Store in Reno, Nevada, and, in violation of such section, transported in interstate commerce into the Western District of Missouri, and it was material to said inquiry to ascertain all information concerning the theft and transportation of said jewelry and the identity of all persons who took any part in such theft and transportation."

Each count in the indictment set forth and alleged perjured statements by the appellant, summarized as follows:

Count 1 alleged that the appellant denied being in Reno, Nevada, in March, 1958, whereas he well knew and believed that said testimony was not true.

Count 2 alleged that appellant denied being in the Herz store on March 20, 1958, whereas he well knew and believed that said testimony was not true.

Count 3 alleged that appellant denied staying in the Senator Hotel in Sacramento, California, whereas he well knew and believed said testimony was not true.

Count 4 alleged that appellant denied being in the Herz store on March 20, 1958, whereas he well knew and believed that said testimony was not true.

Upon a plea of not guilty, appellant was tried before a jury, acquitted as to Count 3 but found guilty as to Counts 1, 2 and 4. After denial of appellant's motion for judgment of acquittal or in the alternative for a new trial, appellant was sentenced to a period of five years' confinement on Count 1, five years' confinement on Count 2, such sentence to run consecutively with the sentence imposed on Count 1, and five years' confinement on Count 4, such sentence to run concurrently with the sentence imposed on Count 2, making a total of ten years.

Facts disclosed by the evidence indicate that on March 20, 1958, three men entered the Herz store in Reno, Nevada. One of the three men, subsequently identified by the store clerks as the appellant herein, walked to the back of the store to look at cigarette lighters. (Some 40 fingerprints found on the lighters were also identified as those of appellant.) The other two men who entered stayed in the front portion of the store. Shortly after the three departed, it was discovered that jewelry having a value of $29,820 was missing from a display in the front window. On April 26, 1958, FBI Agents Sims and Meyers interviewed the appellant for the purpose of taking a statement. Appellant was later taken before a magistrate on a charge of grand theft but released because of insufficient evidence. On June 25, 1959, appellant was subpoenaed to appear before a federal grand jury in Kansas City, Missouri. Inquiry was made of the appellant as follows:

"Q. Mr. Masinia, we are exploring some matters relating to a jewelry robber (sic) in Reno, Nevada, on or about May 20, 1958, of the R. Herz and Brothers Jewelry Store, and the matters relating to that and we are interested in any of the loot from the robbery getting into this area. Do you know anything about that? A. No, sir, I do not.

"Q. Have you been in Reno lately in the last couple years? A. Yes, I have been there.

"Q. Were you there in March of 1958? A. No, sir."

Such last answer is the subject matter of Count 1 of the indictment.

Appellant was also asked:

"Q. But you were not in and around the jewelry store of R. Herz and Brothers on March 20? A. I went through there at 12:00 o\'clock at night so it would be hard to tell.

"Q. You are telling the Grand Jury that you were not in the jewelry store? A. That is right."

Such answer was the subject matter of Count 2 of the indictment.

The following questions were also asked:

"Q. Where did you stay, at the Senator Hotel at Twelfth and L. Street in Sacramento, California?

A. No, sir, no, sir.

"Q. How was that? A. No, sir."

Such answer was the subject matter of Count 3 as to which appellant was found not guilty.

Inquiry before the grand jury was also made as follows:

"Q. You were interviewed by Agents Sims and Meyers? A. Yes, sir.

"Q. On April 26, 1958? A. Yes, sir.

"Q. And at that time did you tell them that you had not been in Reno, Nevada, for ten years? A. I told them I went through there at 12:00 o\'clock at night.

"Q. You were — you are willing now to correct that statement? A. I told them I went through there at 12:00 o\'clock at night. I didn\'t know that jewelry stores are open at midnight. I have driven by a lot of them, probably.

"Q. The question was, if you were in the jewelry store. A. I was not in the jewelry store but I was in Reno, Nevada, but the date I do not know."

Such last answer was the subject matter of Count 4 of the indictment.

Sufficiency of the evidence to establish the falsity of the statements given before the grand jury under oath on Counts 1, 2 and 4 is not questioned. We see no point in detailing it here.

The appeal to this court is mainly predicated upon the following:

1. The testimony which is the subject matter of the indictment was not material to any matter within the jurisdiction of the grand jury.

2. The purpose in calling the appellant as a witness before the grand jury was to entrap him with a view toward a subsequent charge of perjury.

3. The testimony which is the subject matter of Count 1 was an inadvertent mistake.

4. The government should have been required to elect between Counts 2 and 4 because they are duplicitous, and the error in submitting both of these counts to the jury was not cured by the form of sentencing.

5. The admission of the testimony of Wolfe, Van Meter, Fleming and Kelly was prejudicially erroneous.

We consider first the contention that the testimony of the appellant before the grand jury was not material to any matter within the jurisdiction of that body. The perjury statute which appellant was charged with having violated, 18 U.S.C.A. § 1621, provides:

§ 1621. Perjury generally

"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both." (Emphasis supplied.)

To be violative of this statute, the false testimony or perjury must relate to a material matter which was within the jurisdiction of the grand jury to investigate and have the tendency to influence, hamper or mislead its investigation thereof. The issue of materiality is one of law to be determined by the court and not one of fact for the determination of a jury. Sinclair v. United States, 1929, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692; Dolan v. United States, 8 Cir., 1955, 218 F.2d 454, 457, certiorari denied, 349 U.S. 923, 75 S.Ct. 665, 99 L.Ed. 1255; United States v. Moran, 2 Cir., 1952, 194 F.2d 623, 626, certiorari denied, 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362; Carroll v. United States, 2 Cir., 1927, 16 F.2d 951, 954, certiorari denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880; 62 A.L.R.2d 1027. The trial court submitted the issue of materiality to the jury and allowed testimony to be presented before the jury on that point. From its verdict, the jury obviously determined that the perjured testimony related to a material matter. Belatedly, during the presentation of a motion for acquittal notwithstanding the verdict, or in the alternative for a new trial, the trial judge, recognizing that the determination of materiality rested with him rather than the jury, stated:

"The first point that has been briefed in your suggestions is the testimony and the question was not material to any matter within the jurisdiction of the Grand Jury and you have suggested that error may have been committed by submitting the question of materiality to the jury rather than ruling it as a matter of law. Of course I, even at this late date, rule as a matter of law that the evidence was material to a proper investigation by the Grand Jury. My conclusion as to the point you raised in your motion, that it was improper to submit that to the jury for decision, certainly cannot be a matter of detriment to the defendant because something that as a matter of law was material, certainly could not be seen as prejudicial to the defendant when that issue was, in fact, submitted to the jury for determination, and they, in turn, found that it was material by the verdict that they returned in connection with it. That issue will, of course, be ruled against the defendant." (Emphasis supplied.)

That point, which is raised here, is of no avail to the appellant. As stated by the trial judge, no prejudice could have resulted to the appellant from the submission of the issue to the jury, where the court agreed with the jury's determination thereof, and, even if belatedly, did...