U.S. v. Griffin

• Decision Date: 06 February 1979
• Docket Number: No. 78-5093,78-5093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 200

589 F.2d 200

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GRIFFIN, Defendant-Appellant.

No. 78-5093.

United States Court of Appeals Fifth Circuit.

Feb. 6, 1979.

Richard B. Bergstresser, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., James A. Hunolt, Atty., Crim. Div., App. Sec., Joseph S. Davies, Jr., Atty., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, GODBOLD and TJOFLAT, Circuit Judges.

WISDOM, Circuit Judge:

Thomas Griffin appeals his conviction under an indictment that charged him with "corruptly endeavor(ing) to obstruct the due administration of justice by testifying falsely" before a federal grand jury. In United States v. Howard, 5 Cir. 1978, 569 F.2d 1331, 1334, and United States v. Partin, 5 Cir. 1977, 552 F.2d 621, 631, Cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189, we left open the question whether perjury by a witness can constitute an obstruction of justice punishable under 18 U.S.C. § 1503. The defendant objects on three grounds to the use of § 1503 to punish false testimony. He maintains first that the plain language of the statute covers obstructions of justice that result only from the actor's interferences with other witnesses, jurors, or court officials. Because § 1503 was originally enacted as a contempt statute, the defendant also argues that Congress did not intend the statute to cover simple perjury, an act not punishable summarily as contempt of court. Finally, Griffin urges that the statute would be unconstitutional if applied to this case because it does not give fair notice that it punishes false testimony. We reject these arguments and hold that the indictment states an offense under § 1503. Accordingly, we affirm the conviction.

I.

In September 1975, an Argentinian aircraft bound for Panama crashed at Miami International Airport. A bank bag containing $15,046 was discovered in the wreckage. In October the Federal Bureau of Investigation began to investigate whether the flight was connected to loansharking activities, including the transportation of money out of the country. The investigation soon focused on Charles "Bob" Ebeling and John Cifarelli, who were placed under electronic surveillance.

In January 1976, the FBI intercepted a number of conversations between the defendant Griffin and Ebeling. In these conversations, they discussed various ways to recover the money found in the crash. They also talked about a debt that Griffin owed Ebeling. Ebeling spoke of attempting to collect from a number of people indebted to him and said that he owed a substantial amount of money himself. The names of several individuals, including Jack, Dominick, and Angelo, figured prominently in the conversations. Although the FBI never identified these individuals, one name the defendant mentioned, Felix Herrerro, was identified as a passenger who died in the Miami crash.

On March 9, 1976, Griffin was called to testify before a grand jury investigating the financing of loansharking operations and the possible movement of money from the United States to South America. In response to questions concerning the crash, the debts, and the individuals mentioned in the conversations, Griffin either flatly denied knowledge or relied on an inability to recall the facts about which he was questioned. The following answers illustrate the nature of his testimony:

Q. What's your relationship with Bob, also known as Charles William Ebeling?

A. None, I just met him at the track and that's it. I don't even know his name.

Q. Do you know anything about a plane crash of a plane going to South America?

A. Know anything about? No. sir.

Q. Have you ever discussed with Mr. Ebeling, Bob, anything about a plane crash being on its way to South America?

A. Not that I can recall, with him.

Q. Do you know Felix Herrerro?

A. No, I do not. I know a Felix, but it is not Herrerro.

Q. Do you know an individual named Jack?

A. Jack?

Q. Yes.

A. Jack, not that I can recall. In regards to what?

Q. In regards to anything.

A. No.

Q. Did Mr. Ebeling ever tell you that if you didn't pay him the money you owed him you'd put him in the middle between him and some other people, put him in a bad spot?

A. I would put him in a bad spot?

Q. Yes, if you didn't pay him the money you owed him?

A. No.

Q. Do you know an individual named Dominick?

A. No, sir.

Q. Do you know anyone named Angelo?

A. No, sir.

Q. Do you know brothers named Dominick, Angelo?

A. No.

At his trial, Griffin testified that his grand jury testimony was true or innocently incorrect. He explained that he had fabricated the conversations about the money found in the airplane crash to avoid a joint financial venture proposed by Ebeling. Other conversations, Griffin said, were engineered by Ebeling to impress his wife. On December 6, 1977, the jury found Griffin guilty of obstructing justice. He was sentenced to 6 months imprisonment and 2 years probation.

II.

A. Section 1503 is composed of two parts. ¹ The first portion of the statute prohibits the influencing, intimidation, or impeding of any witness, juror, or court official. The concluding clause of the statute penalizes anyone who "corruptly . . . endeavors to influence, obstruct, or impede, the due administration of justice". Relying on Ejusdem generis and the principle that penal statutes must be strictly construed, the defendant argues that the concluding clause of the statute has no broader reach than the statute's specific language. Rather, the concluding clause makes clear that § 1503 prohibits any act that is similar in manner to intimidating witnesses and other court officials even though the act is not expressly described in the first part of the statute. The defendant urges us, therefore, to recognize a distinction between one who induces a witness to commit perjury, conduct which we expressly held forbidden by the concluding clause of § 1503 in U. S. v. Partin, 5 Cir. 1977, 552 F.2d 621, Cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189, and one who perjures himself.

We have rejected similar reasoning raised by a defendant convicted under § 1503 for selling transcripts of secret grand jury testimony to persons under investigation. In U. S. v. Howard, 5 Cir. 1978, 569 F.2d 1331, 1333, we said that "we cannot agree with this reading of the statute because it renders the omnibus clause superfluous, See United States v. Walasek, 527 F.2d 676, 679 & n.11 (3d Cir. 1975), and because the most natural construction of the clause is that it prohibits acts that are Similar in result, rather than manner, to the conduct described in the first part of the statute". ² (Emphasis added by the court.) The issue before us now is, as it was in Howard, whether the defendant's conduct tended to obstruct justice. Is the effect of giving false testimony before a grand jury to prevent justice from being duly administered?

The clear implication of our analysis in Partin and Howard is that perjury constitutes an offense against the effective administration of justice. Although we left that question unanswered in Partin, we held there that one who conspired to induce a witness to testify falsely could be prosecuted under the omnibus clause of § 1503, not because the means chosen to obstruct justice violated the specific wording of the first part of the statute but because the object of the conspiracy was to obstruct justice. 552 F.2d at 631. In Howard we relied on Partin in holding that the omnibus clause aims at all conduct that results in an obstruction of justice. We explained further that using threats to prevent a grand jury witness from testifying has the result of destroying evidence. Although the accomplishment of this result by use of threats or bribes falls under the first clause, the destruction of evidence by the defendant alone comes under the omnibus clause. 569 F.2d at 1334. ³ Similarly, using threats or bribes to prevent a grand jury witness from testifying truthfully has the result of concealing and altering the nature of evidence. If such conduct constitutes an obstruction of the administration of justice, as we held in Partin, ⁴ then so does testifying falsely; the result in either case is the same.

The same conclusion was reached by the Court of Appeals for the Second Circuit in U. S. v. Cohn, 2 Cir. 1971, 452 F.2d 881, Cert denied, 1972, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249. Relying on the plain language of the statute, the Cohn court held that an obstruction of justice results when attempts to gather relevant evidence by a judicial body, which is charged by law with the task of investigating and punishing crime, are frustrated by the use of corrupt or false means. "The blatantly evasive witness achieves this effect as surely by erecting a screen of feigned forgetfulness as one who burns files or induces a potential witness to absent himself." 452 F.2d at 884.

The Cohn court, however, characterized the gist of the defendant's offense as the concealment of knowledge from the grand jury rather than the injection of falsehood into the proceedings. And the indictment charged Cohn with evasive as well as false testimony. Griffin reminds us that evasive testimony, which obstructs the system's administration of justice in a procedural way by blocking the grand jury investigation, must be distinguished from testimony which is false. Although perjury may distort the truth, the defendant contends that it does not impede the judicial process; the criminal system is in fact designed to deal with falsehood through cross-examination and other means. Because Griffin was charged with giving only false testimony, he insists that the indictment does not state an offense amounting to an obstruction of the administration of justice.

Our Court, however, has long recognized that the purpose of § 1503 is to protect not only the procedures of the...