U.S. v. Kehoe

Decision Date28 September 1977
Docket NumberNo. 77-1027,77-1027
Citation562 F.2d 65
Parties2 Fed. R. Evid. Serv. 686 UNITED STATES of America, Appellee, v. Robert J. KEHOE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Albert F. Cullen, Jr., Boston, Mass., for appellant.

Robert B. Collings, Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MILLER, Judge. *

LEVIN H. CAMPBELL, Circuit Judge.

On June 4, 1975, while testifying under oath before a grand jury, Robert J. Kehoe answered "no" to various questions. Indicted for making false statements in violation of 18 U.S.C. § 1623, Kehoe was convicted and now appeals.

Prior to testifying before the grand jury, Kehoe was informed of his fifth amendment right to remain silent and his right to consult with his lawyer, after which it was explained "that the grand jury is investigating at the present time the involvement of persons in a number of crimes against banks in Massachusetts. We are investigating conspiracies to violate the laws prohibiting the robbery of federally insured banks, both in Massachusetts and other states, particularly the state of Maine. We are investigating the attempted extortion, bank larceny and apprehension of innocent persons in an event occurring in Needham on August 23, 1974. We are investigating the identity of persons involved in the similar type of actions, that is attempted extortion, apprehension of bank employees and attempted bank larceny occurring in Quincy, in November of 1974, and also a bank robbery occurring in Peabody in December of 1974."

When asked "Do you understand that this is what the grand jury is investigating at the present time?" Kehoe replied, "Yes." The Government then reminded Kehoe that he had taken an oath and that if he made a false statement he could be indicted for perjury. When asked if he understood this, Kehoe said, "Yes." Moreover, he responded, "No" when asked if he had any questions "as to what the grand jury's investigation is about and . . . what (his) rights are and . . . what the situation is so far as perjury is concerned."

In the questioning that followed, Kehoe was asked about two admitted acquaintances and their physical appearances. He was asked whether he had ever dyed his hair, how long he had worn a mustache, and other questions in the same vein. He was then asked:

"Q. Have you ever been to an apartment on Skyline Drive in Braintree?

A. No.

Q. Have you ever been to Quincy with either Mr. Trainor or Mr. Rossi?

A. No.

Q. Have you, sir, ever participated in a bank robbery?

A. No.

Q. Have you ever participated in any attempts to extort money from a bank?

A. No.

Q. Have you ever engaged in the apprehension of any bank employee for the purpose of taking money from the bank?

A. No.

Q. Have you ever entered a bank with the intent to rob it?

A. No."

The answers to these six questions formed the basis of the one-count indictment against him. 1

The Government presented the following at trial:

In early November, 1974, Kehoe met with three other men in a lounge in Kenmore Square, Boston, after which they drove together to Quincy to check out a bank manager's house.

On November 6, 1974, as Martha Curran, Manager of a federally-insured bank in Quincy, Massachusetts, was leaving her apartment on Skyline Drive in Braintree, she was abducted by three masked men. They took her back to her apartment and placed what they said was a microphone on her person. A briefcase was handcuffed to her wrist and she was told that it contained a bomb which would be detonated by remote control unless she went to the bank, filled a suitcase with money and left the suitcase at a specified location on Storrow Drive in Boston. While the three men dealt with Mrs. Curran in her apartment, a fourth, identified as Kehoe by an accomplice who testified for the Government, remained outside in a getaway car. Mrs. Curran alerted police and the attempted extortion was thwarted. None of the perpetrators were caught at the time.

On December 4, 1974, four men drove up to and entered a federally-insured bank, one, identified as Kehoe, dressed in a police jacket. A holdup was announced and carried out following which the four robbers made their getaway.

Kehoe contended at trial, and now urges, that the grand jury was not investigating the Peabody robbery but rather the Quincy-Braintree attempted extortion. Therefore, he reasons, the Peabody robbery was not material to the questions asked by the grand jury and evidence of the Peabody robbery should have been excluded.

This line of argument is totally without merit. The grand jury told Kehoe, as it told other witnesses appearing before it, that it was investigating an event in Needham in August, 1974, an attempted extortion, apprehension of bank employees and attempted bank larceny occurring in Quincy in November, 1974 (the Braintree-Quincy incident) and a bank robbery occurring in Peabody in December, 1974. Materiality is a question of law to be decided by the trial court, see, e.g., United States v. Phillips, 540 F.2d 319, 328 (8th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976); United States v. Demopoulos, 506 F.2d 1171, 1176 (7th Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673, (1975); United States v. Paolicelli, 505 F.2d 971, 973 (4th Cir. 1974), and on this record there is no doubt that the district court's conclusion was correct. The testimony about the Peabody robbery was properly admitted.

Kehoe next contends that even if the Peabody incident was material, he could have understood the grand jury's questions to be limited to the Quincy-Braintree incident. Therefore, he argues, it was error for the court to refuse to instruct the jury that the questions must be viewed in context; that they must determine what the questions meant to the defendant when he gave the disputed answers, see United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); and that if the defendant's statements were "literally true within the context of the questions asked, even if misleading by implication or omission," he must be acquitted. See Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).

We do not believe that the possibility that the defendant understood the questions to be limited to one particular incident raises an issue of literal truth. 2 An answer that is responsive and false on its face does not come within Bronston's literal truth analysis simply because the defendant can postulate unstated premises of the question that would make his answer literally true. See United States v. Chapin, 169 U.S.App.D.C. 303, 309, 515 F.2d 1274, 1280 (1975). Defendant's theory really is that he misunderstood the questions. 3 But there is no evidence in this case to support his claim that the context of the questions was unclear. On the contrary, the grand jury minutes reflect a broad inquiry into several bank robbery incidents both in and out of Massachusetts over a period of time.

The court instructed generally that in order to convict, the jury must find that the accused understood his answer to be false, and further that a false answer given because of "inadvertence or honest mistake or carelessness or neglect or misunderstanding the question" was not perjury. It was not required to give defendant's more elaborate requested instructions solely on the basis of his claim that he had embellished the prosecutor's questions with a limitation not otherwise apparent.

Kehoe's remaining objections are quickly answered. The court was correct in instructing that the Government satisfied its burden of proof so long as it proved beyond a reasonable doubt that Kehoe knowingly answered at least one of the questions falsely. See United States v. Dilworth, 524 F.2d 470, 471 n.1 (5th Cir. 1975). See also United States v. Isaacs, 493 F.2d 1124, 1155 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); Driscoll v. United States, 356 F.2d 324, 331 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968); Fed.R.Crim.P. 7(c) (1). It is too late for Kehoe to argue that the court should have instructed that all members of the jury had to agree that at least one of the statements in the indictment was false. See Vitello v. United States, 425 F.2d 416, 422 (9th Cir.), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970). Having neither requested such an instruction nor objected to its absence, he is foreclosed from raising the issue on appeal. Dirring v. United States, 328 F.2d 512, 514 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964); Fed.R.Crim.P. 30.

There was no error in admitting into evidence statements of two accomplices, some of which were made in the Skyline Drive apartment out of Kehoe's hearing. The court may admit into evidence the statement of a co-conspirator if it finds by a preponderance of the evidence that a conspiracy existed of which the defendant was a part. United States v. Petrozziello,548 F.2d 20, 23 & n.2 (1st Cir. 1977). See United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976). The court found that Kehoe and the three other men had "had discussions about the fact they were going to grab the bank manager and they weren't going to grab (her) to take (her) to the Red Sox game". Obviously it was satisfied as to the existence of a conspiracy and of Kehoe's participation. 4 There was more than enough evidence for such a conclusion. The witness identified Kehoe and said he had known him 12 to 14 years. He told of a car ride with Kehoe and two others to Quincy to look at the bank manager's house. He testified that the purported leader of the criminal efforts stated...

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