U.S. v. Berardi, 872

• Decision Date: 17 November 1980
• Docket Number: No. 872,D,872
• Citation: 629 F.2d 723
• Parties: UNITED STATES of America, Appellant, v. Clayton BERARDI, Defendant-Appellee. ocket 79-1434.
• Court: U.S. Court of Appeals — Second Circuit

Page 723

629 F.2d 723

UNITED STATES of America, Appellant, v. Clayton BERARDI, Defendant-Appellee.

No. 872, Docket 79-1434.

United States Court of Appeals, Second Circuit.

Argued March 12, 1980.

Decided June 19, 1980.

Certiorari Denied Nov. 17, 1980.

See 101 S.Ct. 534.

David Rothenberg, Asst. U. S. Atty., W.D.N.Y., Rochester, N.Y. (Richard J. Arcara, U. S. Atty., W.D.N.Y., Gerald J. Houlihan, Asst. U. S. Atty., W.D.N.Y., Rochester, N.Y., of counsel), for appellant.

Alfred P. Kremer, Rochester, N.Y., for defendant-appellee.

Before LUMBARD, FRIENDLY and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

The United States appeals from a judgment of acquittal entered in the United States District Court for the Western District of New York notwithstanding a jury verdict finding appellee Clayton Berardi guilty of perjury committed before a grand jury. Immediately prior to the scheduled imposition of sentence, Judge Werker ruled that the false declaration for which appellee had been convicted was immaterial to the matters under investigation and accordingly concluded that the one count indictment failed to state an offense. We hold that determination to be erroneous and reject the alternative grounds proffered by appellee in support of the relief granted by the district court. The judgment is therefore vacated, the verdict reinstated and the action remanded for further proceedings not inconsistent with this opinion.

I.

In June, 1975, detectives from the Monroe County Sheriff's Office arrested Joseph Lanovara and Angelo Monachino and charged them with complicity in the 1973 murder of one Jimmy Massaro. These suspects thereafter cooperated with law enforcement authorities in the continuing probe and implicated six individuals, alleged to be members of organized crime, in the planning and ordering of the gangland-style execution.

Under New York law, however, criminal convictions may not be based upon the uncorroborated statements of accomplices. ¹ Because they lacked the requisite independent verification of the information given by Lanovara and Monachino, members of the Monroe County Sheriff's Office embarked upon a scheme to concoct such evidence. More particularly, it appears that Chief of Detectives William Mahoney induced Detective William Marks and Detective Lieutenant John Kennerson to assert that while conducting routine surveillance in November, 1973, they observed their cooperating witnesses in the company of the six suspects at the dates, times and places attested to by Lanovara and Monachino. Notes and surveillance logs were fabricated to buttress these claims. Based upon accomplice testimony as corroborated by Marks and Kennerson, the six defendants were convicted of murder.

In September, 1977, a Monroe County Detective, one Lawrence Ronayne, informed agents of the Federal Bureau of Investigation that the prosecution had introduced counterfeit evidence and perjurious testimony at the Massaro murder trial. A federal grand jury was impaneled the following month and given a mandate to investigate all facets of this scheme. In January, 1978, Marks confessed to having provided false corroborative evidence and pleaded guilty to conspiracy to violate the civil rights of the six defendants. The convictions of those individuals were subsequently overturned and the charges dismissed.

The month following Mark's plea, appellee, who during the times relevant to the inquiry served as a detective in the Monroe County Sheriff's Office, was summoned before the grand jury. Berardi was asked if he had been solicited to commit perjury in connection with the Massaro murder prosecution, to which he responded in the negative. He was further asked a series of questions inquiring if he had told certain individuals that he had been entreated to assist the scheme, and he again replied in the negative.

In April, 1978, the grand jury returned an indictment charging several individuals with conspiracy and substantive violations of the civil rights of the six murder defendants, and in a separate one count indictment, accused appellee of two specifications of perjury, the first relating to his denial of having been solicited to commit perjury and the second consisting of his denial of having told others that he had been approached for this purpose. ² At trial, the prosecution introduced testimony from Ronayne and a second detective, each of whom claimed to have overheard Berardi muttering on several occasions about his opposition to the scheme and his resolve not to join it. More significantly, Detective John Grande, employed by the Rochester Police Department and acting during the Massaro murder investigation as a liaison to the Monroe County Sheriff's Office, testified that in September, 1975, he had a conversation with appellee during which Berardi confided that his assistance in the scheme had been unsuccessfully requested. A second officer from the Rochester Police Department, Donald Miglioratti, testified that appellee had informed him in 1975, prior to the murder trial, that the surveillance logs had been fabricated, and in later conversations, revealed that his active involvement in the venture had been sought. Additionally, the grand jury minutes were admitted into evidence and testimony was received from an Assistant United States Attorney concerning the scope of the grand jury's inquiry.

Subsequently, the jury returned a verdict acquitting appellee of the first specification of perjury, but convicting him of the second. A motion for a new trial based on allegedly erroneous evidentiary rulings was denied from the bench, and approximately two weeks thereafter, the court in a written opinion rejected the claim that the government had failed to fulfill its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in that it withheld from the defendant an allegedly exculpatory document. On the date scheduled for imposition of sentence, however, the court, apparently acting sua sponte, declared that the statements set forth in the second specification of perjury, to the extent they were not repetitive of the first specification, were immaterial to the grand jury's investigation. The court, in pertinent part, stated:

". . . in my opinion the questions asked in the second specification do not reach the degree of materiality required to convict this defendant. This was true at the time that they were asked, and it was more true after the jury came in with the verdict of not guilty on the first specification. While duplicitous pleading is permitted in perjury indictments, in my opinion in this case the finding of not guilty on the first specification covered the second specification because the answers to the questions put in the second specification would not have misled or entered the Grand Jury's inquiry, assuming as we must now do that the answers to those questions in the first specification were true."

In addition, the court chastised both counsel for improper behavior. A review of the record, however, indicates that its order to enter a judgment of acquittal notwithstanding the verdict was predicated solely upon the concerns evinced in the portion of the transcript quoted above. This appeal by the United States followed.

II.

Section 1623 of Title 18 proscribes "false material declarations" made before the grand jury, ³ and thus, by its own express terms, the statute is contravened only when the perjury is committed in response to a question which bears upon the matters within the investigation's purview. United States v. Mulligan, 573 F.2d 775, 779 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). The government must shoulder the burden of demonstrating this nexus, though it need not be established beyond a reasonable doubt. United States v. Giacalone, 587 F.2d 5, 7 (6th Cir. 1978), cert. denied, 445 U.S. 961, 100 S.Ct. 1646, 64 L.Ed.2d 235 (1979). Normally, the government's obligation is satisfied simply through the introduction into evidence of the grand jury minutes, or through the testimony of the foreperson or presenting prosecutor concerning the scope of the grand jury's charter, and the relationship to it of the questions which elicited the perjury. United States v. Albergo, 539 F.2d 860, 863 (2d Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1976); United States v. Alu, 246 F.2d 29, 32 (2d Cir. 1957). As mentioned above, the district court had the advantage of both the minutes of the grand jury and the testimony of the Assistant United States Attorney in charge of the investigation.

Materiality presents a threshold issue which must be determined by the court. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929); United States v. Mulligan, supra, 573 F.2d at 779. Rather than making a post verdict assessment on the issue of materiality as happened here it is better decided at the earliest opportunity since it is a necessary element of the crime of perjury, United States v. Phillips, 540 F.2d 319, 327, n. 6 (8th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976). In any event, it should be determined prior to submission of the case to the petit jury because that body should be instructed that it need not deliberate over this essential element of the offense. United States v. Damato, 554 F.2d 1371, 1373 (5th Cir. 1977).

Given the wide-ranging investigative function of the grand jury, see United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct. 613, 617-18, 38 L.Ed.2d 561 (1974), as may be illustrated by comparison with other official proceedings whose objectives are limited or more precisely defined, see United States v. Birrell, 470 F.2d 113, 115 n. 1 (2d Cir. 1972) (perjury in affidavit submitted in support of application to proceed in forma pauperis ); United States v. Freedman, 445 F.2d 1220, 1227 (2d Cir. 1971) (perjury before the S.E.C.), the materiality of its inquiries must...