U.S. v. Larranaga, 84-1096

Decision Date19 March 1986
Docket NumberNo. 84-1096,84-1096
Citation787 F.2d 489
Parties20 Fed. R. Evid. Serv. 1057 UNITED STATES of America, Plaintiff-Appellee, v. Francisco LARRANAGA, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Nancy Hollander, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant.

William L. Lutz, U.S. Atty., Albuquerque, for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and DOYLE, * Circuit Judge, and ELLISON, District Judge **

HOLLOWAY, Chief Judge.

Defendant Francisco Larranaga timely appeals his conviction for perjury under 18 U.S.C. Sec. 1623, pressing several grounds for reversal. We find that no reversible error was committed, and affirm.

I

The factual background

This case arose out of a federal grand jury investigation of Sangre de Cristo Mental Health Center, Inc. (Sangre), Northern Community Preservation, Inc. (NCP), and David Knight. Sangre, a non-profit organization, received federal funds from the Department of Health and Human Services. IV R. 117. Its executive director, David Knight, was heavily involved in the affairs of NCP,see IV R. 118, 120, attending many of its board meetings and assisting in its accounting. V R. 367. From this connection, a close financial relationship developed between NCP and Sangre. Sangre leased three buildings and two telephone systems from NCP, the latter deriving all of its income from these rental payments. V R. 221, 264, 372.

The personnel of the two corporations overlapped. In addition to Knight's dual role, for example, Caren Stanley-Smith, a board-member of NCP, served as an employee of Sangre. Similarly, Ms. Celina Rael de Garcia, who was Director of Operations for NCP during the investigation, was also a director for Sangre and she functioned as a secretary for NCP. V R. 263-65.

The grand jury's investigation centered on a possible misuse of federal funds by Sangre. It was concerned, at least in part, with Sangre's leases from NCP. IV R. 116. Investigators believed that some of the rental payments were excessive. Gradually, the grand jury became increasingly concerned with Knight's simultaneous participation in the affairs of the two corporations. IV R. 123, 130-31, 166.

On or about February 6, 1983, Larranaga received a subpoena instructing him to bring the company's records to the grand jury on March 8, 1983. Among the requested documents was a set of the minutes for NCP's board meetings from August 31, 1981, to February 23, 1983. The only minutes then in existence, however, were a number of rough notes that had been taken at the meetings. These notes were handwritten on placemats, napkins and legal pads. Larranaga and Stanley-Smith instructed Ms. Garcia to type a set of minutes from the notes. Garcia did so; however, she apparently discarded many of the notes, returning to Larranaga only the pages she had typed. Government Exhibit 7, at 255.

Larranaga appeared before the grand jury on March 8, 1983, bringing copies of the pages Garcia had typed. Larranaga produced this set of minutes which included a minute for an October 28, 1981 NCP board meeting, listing certain persons as present but not stating that Knight was present and that he made a commitment that Sangre would continue to occupy a Las Vegas building if NCP bought it. IV R. 115; Government Exhibit 2. At a June 1, 1983 grand jury appearance Larranaga produced a second October 28, 1981 NCP minute which stated that Knight had been at the meeting and made the commitment. IV R. 124, 184-185; Government Exhibit 1. This second minute was taken to the United Southwest National Bank to assist in obtaining a loan for NCP. V R. 204.

During the questioning on March 8 before the grand jury, Larranaga requested an opportunity to have counsel present. Mr. Lutz, the United States Attorney, told Larranaga that questioning would stop after he identified certain records. Defendant's Exhibit D, at 29. Shortly thereafter Larranaga testified that he had presented all of NCP's minutes to the grand jury. IV R. 128, 189; Defendant's Exhibit D, at 38; Government Exhibit 4.

At trial, the Government contended that the minutes presented on March 8 were false and incomplete. The dispute concerned the apparent omission of facts concerning an October 28, 1981, NCP board meeting where David Knight made a commitment that Sangre would continue to occupy buildings NCP sought to acquire, according to minutes for that meeting furnished to United Southwest National Bank to get a loan for purchase of the buildings. See IV R. 118-120, 185; Order of District Court of January 4, 1984 at 3-4. David Knight's role in the affairs of NCP was also in dispute. The minutes brought by Larranaga indicated that Knight was present at only one NCP board meeting. V R. 230-31, 373; Defendant's Exhibit C-24 (Aug. 6, 1982). The testimony showed, however, that Knight was present at numerous such meetings. V R. 229, 267, 339, 343, 373.

Larranaga was indicted in two counts. The first count charged him with willfully and knowingly making a materially false statement and with submitting documents containing materially false declarations to the grand jury in violation of 18 U.S.C. Sec. 1623. The second count charged him with obstruction of justice in violation of 18 U.S.C. Sec. 1503 and 18 U.S.C. Sec. 2. Larranaga was convicted on the first charge and acquitted on the second. I R. 265.

On appeal Larranaga contends: (1) the trial court erred in holding that materiality is a question of law, in instructing the jury that defendant's alleged misstatements were material to the grand jury's investigation, and in not submitting the question to the jury; (2) the evidence is not sufficient to support his conviction under Sec. 1623; (3) the trial court unduly restricted the defendant's cross-examination of Ms. Garcia; (4) the court erred in denying admission of the grand jury transcript into evidence; (5) the court improperly denied defense counsel an opportunity to inspect the grand jury transcript on statements by Ernestine Encinias; and (6) the Government's closing argument was improper and prejudicial.

We find no reversible error.

II

Materiality under Sec. 1623: a question of law or fact

The defendant argues that because materiality is an essential element of an offense under Sec. 1623, it must be decided by the trier of fact. We have recently said, however, that materiality in perjury cases under Sec. 1623 is a question for the court to decide. See United States v. Girdner, 773 F.2d 257, 259 (10th Cir.1985). Despite our contrary holdings under the false statement statute, 18 U.S.C. Sec. 1001, 1 we feel that the issue in perjury cases as to whether the defendant knowingly made a false material statement before the grand jury, see Sec. 1623(a), involving the question whether it had a tendency to influence, mislead or hamper the grand jury in a matter which it had the authority to investigate, is logically one for the court as a matter of law. See United States v. Koonce, 485 F.2d 374, 380 (8th Cir.1973); see also United States v. Girdner, 773 F.2d at 259. This question is proper for the court to determine.

We remain convinced that the materiality issue in perjury cases under Sec. 1623 is properly for the court. See Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273-74, 73 L.Ed. 692 (1929). There was no infringement of the right to trial by jury by the trial court's handling of the issue of materiality.

III

Sufficiency of the evidence

Defense counsel next contends that the evidence is insufficient to support the conviction. We will address separately the two theories advanced by the Government. The first theory is that the defendant produced incomplete, false and altered minutes for the grand jury on March 8. The second is that Larranaga falsely testified that the minutes produced for the grand jury were all the minutes of the Board of Directors or any subcommittees of the Board of NCP. Both theories were alleged in the indictment and submitted to the jury. V R. 444-46, 448. We conclude that the Government offered sufficient evidence on the first theory and thus uphold the conviction against this challenge, although we feel the proof on the second theory was defective.

A.

Theory 1: the submission of false documents

Under the first theory, the Government must establish beyond a reasonable doubt that the defendant knowingly submitted false minutes to the grand jury. 18 U.S.C. Sec. 1623(a) (1982). As we have held, the materiality of the false statements was an issue for the court to decide and we explain below that the proof was sufficient on that question. We now consider whether there was sufficient evidence, direct or circumstantial, together with the reasonable inferences that could be drawn, from which the jury could have found the defendant guilty beyond a reasonable doubt of knowingly submitting false declarations in the minutes. See, e.g., United States v. Yates, 470 F.2d 968, 970 (10th Cir.1972).

1.

Falsity and mens rea

The Government says that the minutes submitted to the grand jury were false in that they misrepresented the extent of Knight's participation in NCP's board meetings. Stanley-Smith and Garcia testified that Knight was usually in attendance, although the minutes indicate that Knight was present at only one meeting. II R. 230-31, 373. The defendant argues that the minutes were literally correct because NCP had no obligation to identify anyone as present other than the directors. We disagree.

If we assume that NCP was not obligated to identify visitors at its meetings, nonetheless the minutes purport to identify every person in attendance. See, e.g., Government's Exhibit 1 ("others present"), 3 (headnote lists three persons in attendance, one of whom was not a director); Defendant's Exhibit C-9 ("present"), C-19 ("those present"). The implication, of course, is that anyone not identified in these minutes was absent. Knight, however, attended many of these meetings although he was...

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