U.S. v. Goguen, 83-1108
| Decision Date | 24 January 1984 |
| Docket Number | No. 83-1108,83-1108 |
| Citation | 723 F.2d 1012 |
| Parties | 14 Fed. R. Evid. Serv. 1315 UNITED STATES of America, Appellee, v. Armand GOGUEN, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Mark G. Miliotis, Malden, Mass., by appointment of the Court, for appellant.
William F. Weld, United States Attorney Boston, Mass., for appellee.
Before BREYER, Circuit Judge, TIMBERS, * Senior Circuit Judge, and SMITH, ** Senior District Judge.
Armand Goguen appeals from his conviction in the District of Massachusetts after a jury trial for violating 18 U.S.C. Sec. 1623(a) (1982), 1 which proscribes false declarations made knowingly before a federal court or grand jury. He was sentenced on February 7, 1983, to three years in prison. He has been incarcerated during the pendency of this appeal. We affirm.
The events which gave rise to Goguen's false declarations occurred during the Thanksgiving weekend in 1981. At 2:35 A.M. on that Saturday, November 28, a fire broke out in the Hutchinson Wharf Building in Lynn, Massachusetts. It was a fire of such great magnitude that, before it was completely extinguished some two weeks later, it had completely destroyed eighteen buildings, partially destroyed seven or eight more, and involved some 700 firefighters from the Lynn area. The fire received national news attention on the "Today Show", which was aired two mornings later on Monday, November 30.
A federal investigation of the fire was undertaken by the Bureau of Alcohol, Tobacco and Firearms (ATF) pursuant to 18 U.S.C. Sec. 1952 (1982). See United States v. Bubar, 567 F.2d 192, 195 (2d Cir.), cert. denied, 434 U.S. 872 (1977). During the investigation, Special Agent Laurence Murray of the ATF interviewed Goguen as to his whereabouts at the time of the Lynn fire. Murray's attention was focused on Goguen because of the latter's alleged past connections with suspicious fire activity in the greater Boston area. During the interview, which took place on June 17, 1982, Goguen unequivocally stated that at all times during the period from November 1 or 2, 1981, to approximately December 20, 1981, he was in the State of Florida.
As the investigation progressed, information was uncovered that Goguen indeed had been in Lynn around noontime on Friday, November 27. Goguen does not challenge the accuracy of this information.
On July 8, 1982, Goguen was called to testify before a federal grand jury convened to investigate the Lynn fire. Prior to Goguen's appearance before the grand jury, it had heard testimony that Goguen was not in Florida on November 27. Immediately preceding Goguen's appearance, the members of the grand jury were asked by the Assistant United States Attorney (AUSA) not to "tip off" Goguen that they had information that he was not in Florida on November 27.
During Goguen's grand jury testimony, he was questioned by the AUSA. The relevant excerpts of that testimony, which is the subject matter of this prosecution, were as follows:
"Q. Between the time you drove down [on] November 1st or 2nd, and you drove back up on approximately the 24th of December, 1981, did you come back up to Massachusetts?
A. Before that? No.
Q. I mean between those two periods of time.
A. No.
Q. Did you leave Florida during those periods of time?
A. No.
* * *
* * *
Q. So you are sure you were not in Massachusetts from the time you left Massachusetts [on] November 1st or 2nd of 1981 until you came back the day before Christmas in 1981; is that correct?
A. Yes.
Q. Were you in Lynn, Mass. on November 27 or 28 of 1981?
A. No.
Q. Where were you on November 27, 1981?
A. November 27?
Q. Yes.
A. In Florida.
* * *
* * *
Q. And you're positive that you were not in Massachusetts from the time you drove down there [on] November 1st or 2nd, of 1981 until the time you came back the day before Christmas of 1981?
A. Yes, I am."
Thus, in response to six separate questions, Goguen responded unequivocally that he was in Florida, not in Lynn, on November 27, 1981.
On August 23, 1982, the grand jury heard testimony from three witnesses who stated that they had seen Goguen in Lynn on Friday, November 27. Upon the completion of the testimony of those three witnesses, the foreman of the grand jury stated: "We have proven in our minds, I guess, that Mr. Goguen has lied to us."
On September 3, 1982, Goguen telephoned Special Agent Murray who made a written statement summarizing that conversation:
Goguen's memory of this conversation, reflected in an affidavit he filed with the district court, was as follows: "[I] told [Murray] that I might have made a mistake about some of the answers to questions in the grand jury. I told [Murray] that I had come back to Lynn to go to court with my Goguen happened to meet Special Agent Murray in Salem, Massachusetts, on September 21, 1982. According to the government, Goguen told Murray on this occasion to stop investigating him because it was proving to be an embarrassment to him; and that no reference was made during the September 21 conversation to Goguen's July 8 grand jury testimony. Goguen, on the other hand, claims that he again told Murray on September 21 that he had made a mistake in his answers to some of the questions before the grand jury and that he wanted to straighten it all out.
son, that I did not remember the exact date, but that I was back during November to go to court."
On September 24, Agent Murray filed a complaint with a United States Magistrate, charging the crime for which Goguen eventually was convicted. Goguen was arrested on September 27. Bail was set at $25,000. On October 5, the grand jury returned a two-count indictment, charging Goguen with violations of 18 U.S.C. Sec. 1623(a). 2 Goguen was arraigned on October 5, at which time he pleaded not guilty.
Prior to trial, Goguen filed three motions to dismiss the indictment. The first alleged that prosecution of Count I was barred by 18 U.S.C. Sec. 1623(d), which prohibits prosecution if an accused has made an effective recantation of his false testimony. 3 The factual basis for this motion, the alleged recantation, was Goguen's telephone call to Agent Murray on September 3. The second motion to dismiss was based on allegations of abuse of the grand jury procedure, including allegations that the AUSA improperly exercised control over the scope and direction of the grand jury investigation and that he improperly gave advice to Goguen during the grand jury proceedings. The third motion to dismiss related solely to Count II of the indictment, which is not at issue on appeal. A hearing on the motions to dismiss was held before United States District Judge A. David Mazzone on January 11, 1983. After the hearing, the court denied the motions to dismiss and set the trial date for January 13.
Before the jury was empaneled, a hearing was held on the issue of materiality. 4 The court held that the "questions that were asked Mr. Goguen constituted material matter in these grand jury proceedings." The jury then heard two days of evidence and argument, after which it deliberated and returned a verdict of guilty on Count I. On February 7, Goguen was sentenced to three years in prison.
On appeal, Goguen does not challenge the sufficiency of the evidence to support his conviction.
He does claim error in several respects, including (1) that he made an effective recantation to Agent Murray on September 3, 1982; (2) that the government abused the grand jury procedure; (3) that the false declarations were not material to the grand jury proceedings; (4) that the court committed reversible error in several of its evidentiary rulings; and (5) that Goguen was denied a fair trial because the government withheld evidence asserted to have been exculpatory. We shall discuss each of these claims of error seriatim.
Turning to Goguen's first motion to dismiss, he claims that the court erred in two It is common ground that the issue whether an effective and timely recantation has been made is one of law to be decided by the court. United States v. D'Auria, 672 F.2d 1085, 1091 (2d Cir.1982), and cases there cited. Section 1623(d), which makes an effective recantation a bar to prosecution, requires that the declarant admit that his prior statement was "false". The legislative history of the section does not shed any light on how unambiguous the admission must be. We turn, therefore, to the relevant case law. The leading decision on this issue is United States v. D'Auria, supra.
respects: first, that as a matter of law his statements to Agent Murray on September 3 and 21 constituted an effective and timely recantation; and second, that the court abused its discretion in denying his request for an evidentiary hearing on the recantation issue.
In D'Auria, the defendant's attorney wrote a letter stating that the defendant wished to add to and clarify some of his grand jury testimony; that he had not completely understood some of the questions asked him; and that he wished to come forward with any additional information he could provide. The D'Auria court held that "[a]n outright retraction and...
To continue reading
Request your trial
-
U.S. v. Moreno Morales
...18 U.S.C. Sec. 1621 (1982) requires that the allegedly perjurious statement pertain to a "material matter." See United States v. Goguen, 723 F.2d 1012, 1019 (1st Cir.1983); United States v. Indorato, 628 F.2d 711, 717 (1st Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1......
-
U.S. v. Awadallah
...under section 1623(d). A witness must make an outright retraction and repudiation of prior false testimony."); United States v. Goguen, 723 F.2d 1012, 1018 (1st Cir.1983) ("[F]or an effective recantation, the accused must come forward and explain unambiguously and specifically which of his ......
-
US v. Taylor
...717 F.2d 1444, 1448 & n. 18 (D.C.Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 708 (1984); United States v. Goguen, 723 F.2d 1012, 1016 & n. 4 (1st Cir.1983); United States v. Weiss, 752 F.2d 777, 786 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 ......
-
In re Grand Jury, 08-1880.
...level of detail in order to permit recantation. E.g., United States v. Scivola, 766 F.2d 37, 43 (1st Cir. 1985); United States v. Goguen, 723 F.2d 1012, 1018 (1st Cir.1983). The majority's continued insistence on transcript access for this purpose exalts recantation above these other protec......
-
Perjury.
...[section] 1623 differs from [section] 1621 in that [section] 1623 requires only knowing, not willful, perjury); United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (concluding [section] 1621 requires "specific intent to deceive and to violate one's oath" while [section] 1623 requir......
-
Perjury.
...[section] 1623 differs from [section] 1621 in that [section] 1623 requires only knowing, not willful, perjury); United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (concluding [section] 1621 requires "specific intent to deceive and to violate one's oath" while [section] 1623 requir......
-
Perjury.
...[section] 1623 differs from [section] 1621 in that [section] 1623 requires only knowing, not willful, perjury); United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (concluding [section] 1621 requires "specific intent to deceive and to violate one's oath" while [section] 1623 requir......
-
Perjury.
...[section] 1623 differs from[section] 1621 in that [section] 1623 requires only knowing, not willful, perjury); United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (concluding [section] 1621 requires "specific intent to deceive and to violate one's oath" while [section] 1623 require......