U.S. v. Kross, 347
| Decision Date | 18 January 1994 |
| Docket Number | D,No. 347,347 |
| Citation | 14 F.3d 751 |
| Parties | UNITED STATES of America, Appellee, v. Laura KROSS, Defendant-Appellant. ocket 93-1182. Second Circuit |
| Court | U.S. Court of Appeals — Second Circuit |
William K. Sessions III, Middlebury, VT (Sessions, Keiner, Dumont, Barnes & Everitt, P.C., of counsel), for defendant-appellant.
Gregory L. Waples, Asst. U.S. Atty., Burlington, VT (Charles A. Caruso, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for appellee.
Before: NEWMAN, Chief Judge, FEINBERG, Circuit Judge and POLLAK, District Judge. *
Laura Kross appeals from a judgment of conviction entered in March 1993, after a jury trial in the United States District Court for the District of Vermont before Franklin S. Billings, Jr., J. Kross was indicted on five counts of making false declarations in a civil deposition in violation of 18 U.S.C. Sec. 1623, and the jury found her guilty on three counts. The Sentencing Guidelines called for a range of 15-21 months in prison, but the district judge departed downward six levels and sentenced Kross to three concurrent terms of three years probation. Kross argues on appeal that the district judge erred in denying her motion to dismiss the indictment on various grounds. For the reasons set forth below, we affirm.
Earth People's Park (the Park), a 592-acre parcel of land in the extreme northeastern corner of Vermont, is owned by Earth People's Park, Inc., a California corporation (the Corporation). Since the founding of the Park in 1970, the Corporation has allowed people to come to the Park at no charge in order to live in harmony with nature. Kross resided in the Park from 1971 to 1979, when she moved to nearby Brownington, Vermont.
In 1990, the United States filed a civil forfeiture complaint against the Park pursuant to 21 U.S.C. Sec. 881(a)(7). United States v. Earth People's Park, Consisting of 592 Acres, More or Less, Located in Norton, Vermont, with all Appurtenances and Attachments Thereon, Civil No. 90-273 (D.Vt.) (pending). The United States sought forfeiture on the grounds that the property was being used for the cultivation and distribution of marijuana. The Corporation asserted the defense of innocent ownership, claiming that it had no knowledge of illegal drug-related activity at the Park.
The Assistant United States Attorney conducting the forfeiture litigation deposed Kross in January 1991, at which time she was accompanied by an attorney representing the Corporation. The testimony of Kross at the deposition formed the basis for the three counts of the indictment (Counts III, IV and V) on which she was convicted. Count III set forth her responses to questions about her knowledge of illegal drug use in the Park, as follows: 1
Count IV concerned her knowledge of marijuana cultivation in the Park:
Count V concerned her prior criminal history:
At trial, the government presented testimony to show that Kross was aware of the use and cultivation of the marijuana by Park residents. Evidence also showed that Kross had been charged with felonies in Vermont state court in 1980 and 1990.
Kross argues that the district court erred in denying her pretrial motion to dismiss the indictment on the grounds that the information sought in the deposition was immaterial to the underlying forfeiture proceeding, that the deposition questions at issue were fundamentally ambiguous and that her statements were literally true.
Section 1623(a) of Title 18 of the United States Code provides, in relevant part:
Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) 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 supplied).
Kross contends that the indictment should have been dismissed because none of her allegedly false declarations were material to the civil forfeiture action. We disagree.
We have consistently held in the grand jury context that a false declaration is "material" within the meaning of Sec. 1623 when it has " 'a natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation.' " United States v. Kiszewski, 877 F.2d 210, 218 (2d Cir.1989) (quoting United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)). We have pointed out that in a Sec. 1623 prosecution for false declarations to a grand jury,
[m]atters arguably cumulative or collateral to the grand jury's objective in a given case are considered for their potential to aid that body, not for the probability of assistance from a truthful answer.
United States v. Gribben, 984 F.2d 47, 51 (2d Cir.1993). Because the grand jury's function is investigative, materiality in that context is "broadly construed." Id. However, we have apparently not yet addressed the issue of materiality under Sec. 1623 in the context of a deposition in a civil matter. The purpose of civil discovery is also investigative, and the scope of discovery includes any information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
The Fifth Circuit has held that for purposes of Sec. 1623, materiality in a civil discovery deposition is not limited to evidence admissible at trial, but includes matters properly the subject of and material to a deposition under Rule 26(b)(1). United States v. Holley, 942 F.2d 916, 924 (5th Cir.1991), cert. denied, --- U.S. ----, 114 S.Ct. 77, 126 L.Ed.2d 45 (1993). The Ninth and Sixth Circuits have also adapted a materiality definition under Sec. 1623 to the civil deposition context. See United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990); United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir.1989). But the resultant definition is considerably narrower than that of the Fifth Circuit: it requires not merely discoverability under Rule 26(b)(1), but also the tendency of the false statement itself to affect the outcome of the underlying civil suit for which the deposition was taken. See Clark, 918 F.2d at 847; Adams, 870 F.2d at 1147.
The facts of the present case favor a broad construction of the definition of materiality similar to the approach we have already used in the grand jury context. While a government deposition in a forfeiture action under 21 U.S.C. Sec. 881 is civil in form, forfeiture actions are predicated upon a nexus between the property and criminal activity. See United States v. Premises and Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1269 (2d Cir.1989), reh'g denied, 897 F.2d 659 (1990). Under the circumstances of this case, we see no persuasive reason not to apply the broad standard for materiality of whether a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit.
We turn now to apply this broad standard to the facts of this case. With respect to Counts III and IV, Kross maintains that she was not an agent of the Corporation. Therefore, she argues, any knowledge she may have had concerning drug use or cultivation at the Park was not attributable to the Corporation and was thus immaterial to the forfeiture proceeding against the Corporation. At the time the questions were asked, however, the government was entitled to explore her knowledge based on the theory that she was an agent. Certainly, Kross' denial of agency would not end the matter, in view of evidence that she had represented herself to the Assistant conducting the deposition as the agent of the Corporation and had acted as its agent in the past. In any case, even if Kross was not the Corporation's agent, the information sought was material in that it concerned not only her knowledge of drug activity at the Park, but also the existence of drug activity.
As to Count III, Kross further argues that the information sought was immaterial to the forfeiture suit because marijuana smoking is not a felony justifying forfeiture under Title 21. Thus, she argues, even if she had testified that she had knowledge of marijuana smoking, that would not have demonstrated that the Park was being used to facilitate the more serious narcotics crimes that could justify a forfeiture. We disagree with this reasoning. It is true that neither marijuana smoking nor knowledge thereof constitutes independent grounds for civil forfeiture. Nevertheless, evidence of marijuana smoking on Park property was material at the discovery stage of the forfeiture proceeding because such evidence might lead to evidence of cultivation or distribution of marijuana, which would justify forfeiture.
With respect...
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