U.S. v. Gribben
| Decision Date | 13 January 1993 |
| Docket Number | No. 399,D,399 |
| Citation | 984 F.2d 47 |
| Parties | UNITED STATES of America, Appellant, v. James GRIBBEN and Carlos Maldonado, Defendants-Appellees. ocket 92-1335. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven A. Standiford, Asst. U.S. Atty., S.D. of N.Y. (Otto G. Obermaier, U.S. Atty. for the S.D. of N.Y., New York City, Paul G. Gardephe, Asst. U.S. Atty., of counsel), for appellant.
Raymond E. Kerno, Lake Success, NY (Lysaght, Lysaght & Kramer, P.C., Lake Success, NY, Stuart London, Rye Brook, NY (Atty. for appellee James Gribben), Stephen C. Worth, Hession, Bekoff & Worth, Mineola, NY (Atty. for appellee Carlos Maldonado), of counsel), for defendants-appellees.
Before: NEWMAN, KEARSE and CARDAMONE, Circuit Judges.
The circumstances of what would have been an otherwise routine arrest by two New York City police officers is before us because of their unexpected conduct in allegedly fabricating the details of the incident. They related the embellished "facts" to an Assistant United States Attorney, a United States Magistrate Judge and a federal grand jury. This embroidered tale led to the prosecution of one Lindsey Calhoun for unlawful possession of a handgun. Following a chance discovery of the truth, the two officers were indicted for the crimes of perjury and making false statements. It is not only the public, but also the prosecutor, magistrate judge, regular grand jury, petit jury, and district court, that must rely upon the credibility of police officers. Whether to prosecute, issue a warrant, indict and convict are serious matters that are decided in large measure based on what a police officer relates. So when an officer does not tell the whole truth, public confidence in the fair administration of criminal justice inevitably is eroded.
Officers James Gribben and Carlos Maldonado were charged in a superseding indictment containing six substantive and conspiracy counts that alleged each of them committed perjury and made false statements. On May 21, 1992 they obtained an order from the United States District Court for the Southern District of New York (Duffy, J.) dismissing a portion of the indictment, which the district court granted grounded on its belief that the police officers' statements were not material.
792 F.Supp. 960. The government insists this ruling announces a new rule that holds whatever version police officers give of the salient "facts" relating to an alleged crime is not material, so long as the suspect faces the same criminal charge he would have faced had the real facts been told
The incident which led to the officers' indictment occurred on May 17, 1991 when Officers Gribben and Maldonado were called to the Parkchester South Condominium in the Bronx, New York, to respond to a report of a domestic dispute involving a handgun. The officers and condominium security guards went to the apartment where the dispute had taken place, and there, in the hallway outside the apartment, found Lindsey Calhoun. During the brief encounter the police officers recovered a Smith and Wesson .38 caliber handgun from him. Calhoun was arrested, and later became the subject of state and federal prosecutions related to his possession of that weapon. On the day of Calhoun's arrest Gribben wrote and filed a "Stop and Frisk Report" and a "Complaint Report" describing the arrest. He stated that he seized the handgun from Calhoun's waistband after the suspect made a move toward his waist.
Assistant United States Attorney (AUSA) Cari Robinson of the Southern District of New York was assigned to investigate and prosecute Calhoun's case. On June 6, 1991 she met with Officer Gribben who, repeating the story contained in his written report, told her that he seized the gun from Calhoun's waistband. Based on this interview, she drafted a magistrate's complaint charging Calhoun with illegal possession of a handgun in violation of 18 U.S.C. § 922(g)(1) (1988). That day the same officer appeared before a United States magistrate judge and swore to the truth of the complaint, including a declaration regarding the seizure of the Smith and Wesson from Calhoun's waist. Two weeks later, on June 19, 1991, the AUSA interviewed Officer Maldonado regarding Calhoun's arrest. He told her that he did not actually see his partner seize the weapon because he had his back turned. Officer Maldonado also told AUSA Robinson that he heard Officer Gribben gasp, turned around and saw him standing next to Calhoun holding a gun.
The suspect's case went before the regular grand jury, and on June 21, 1991 Officer Gribben testified before that body that he seized the handgun from Calhoun's waist. The grand jury returned an indictment against Calhoun. At his bail hearing before a district court judge on July 23, 1991 a sharply different version of the arrest surfaced. Defense counsel stated the handgun had not been recovered from his client's person but from a black bag he was carrying.
After receiving this new information, the AUSA interviewed Officer Maldonado again. He gave essentially the same version of the arrest as he had at his first interview. The prosecutor next spoke with a condominium security guard present at the scene of Calhoun's arrest. The guard stated that another security guard had retrieved the gun from a bag Calhoun had been carrying, and that both police officers had seen the guard retrieve the gun. As a result of this new information a four-count indictment originally was laid against Officers Gribben and Maldonado. A superseding indictment--the one now before us, filed on January 27, 1992--included six counts against the two officers.
Count one charges Gribben and Maldonado with a conspiracy both to commit perjury and to make false statements to federal officials in violation of 18 U.S.C. § 371 (1988). Charges outlined in counts two through six constitute the overt substantive acts furthering the alleged conspiracy. Count two accuses Gribben of covering up a material fact and making a false statement to the AUSA in violation of 18 U.S.C. § 1001 (1988). That statute provides, in relevant part, that
[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any 18 U.S.C. § 1001. Counts four and five allege that Maldonado violated § 1001 by covering up material facts and making false statements during his two interviews with AUSA Robinson.
trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Count three charges Gribben with perjury for making a false statement before the magistrate judge in violation of 18 U.S.C. § 1623(a) (1988), and count six makes the same charge against the same defendant based on his testimony before the grand jury. Section 1623(a) provides, in relevant part, that
[w]hoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. (emphasis added).
18 U.S.C. § 1623(a).
Maldonado made a motion, which Gribben joined, to dismiss the indictment. After hearing oral argument, the district court issued a memorandum and order dated May 21, 1992 dismissing the perjury charges--contained in counts three and six--against Gribben and dismissing counts two, four and five to the extent that they charged the officers with covering up a material fact in violation of § 1001. The district court ruled that the alleged misrepresentations were not "material" in the prosecution of Calhoun for possession of a weapon. It left intact the conspiracy charge in count one and those parts of counts two, four and five accusing Gribben and Maldonado of making false statements in violation of § 1001.
Specifically, the district court ruled that the government "has simply not met its burden of demonstrating materiality" because "the charge against Calhoun would not have been any different had the officers' testimony been as the Government alleges it should have been." In other words, the district judge hinged his materiality determination on the fact that Calhoun could have been charged with illegal possession of a handgun whether the gun was recovered from his waistband or from the black bag. The government appeals. We reverse.
The clear terms of the statutes make materiality an element of offenses charged under 18 U.S.C. § 1623 and, insofar as pertinent to this case, that portion of 18 U.S.C. § 1001 dealing with covering up material facts. Materiality of evidence is not an element of making a false statement under § 1001, United States v. Bilzerian, 926 F.2d 1285, 1299 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991) (), which is why the district court left undisturbed those portions of counts two, four and five. To be convicted of perjury a defendant must knowingly make a "false material declaration" before any court or grand jury of the United States. 18 U.S.C. § 1623(a). To be convicted of making a false statement a defendant must "knowingly ... cover[ ]up ... a material fact" in any matter within the provision of any agency of the United States. 18 U.S.C. § 1001.
Materiality questions raised at trial are decided by the trial court as part of its function of presiding at the trial. See 9 John H. Wigmore, Evidence § 2549 (3d ed. 1940). Materiality of a false statement as an element of the crime of perjury is a question of law for the district court to decide, not a question of fact for a jury. See Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929);...
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