U.S. v. Martellano, 81-1193

• Decision Date: 20 April 1982
• Docket Number: No. 81-1193,81-1193
• Citation: 675 F.2d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angelo MARTELLANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 940

675 F.2d 940

UNITED STATES of America, Plaintiff-Appellee, v. Angelo MARTELLANO, Defendant-Appellant.

No. 81-1193.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1981.

Decided April 20, 1982.

Robert E. Sutton, Milwaukee, Wis., for defendant-appellant.

Judith F. Dobkin, Chicago Strike Force, Chicago, Ill., for plaintiff-appellee.

Before WOOD and CUDAHY, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant Angelo Martellano was convicted in a 1980 jury trial of a single violation of 18 U.S.C. § 1623(a) ¹ for an alleged false declaration before a special grand jury investigating possible violations of federal gambling, extortion, and racketeering laws. On appeal he raises various issues, but we need consider only the possible ambiguity of the question alleged to have been falsely answered together with the sufficiency of the evidence.

The core of the one-count indictment is concise:

4. At the time and place alleged in paragraph one (1), Angelo Martellano appeared as a witness before the Grand Jury, and after having been sworn, and then being under oath, testified falsely before the Grand Jury as follows:

Q. Have you at any time-first of all, during the period you were employed at Snug's, did you ever have occasion to accept wagers on sporting events?

A. No.

5. These declarations by the defendant were false and known by him to be false when made, because on or about January 8, 1980, he accepted a wager in the amount of fifty dollars on a professional football game.

I.

The basic facts are not disputed as it was stipulated that the question was asked and answered as alleged. The defendant was the maitre d' during a period in late 1979 and early 1980 at Snug's, a restaurant in Milwaukee, Wisconsin, the scene of an undercover investigation by the Organized Crime Strike Force and the FBI. Special Agent Dale E. Farmer of the FBI, using the name Donald Franks and posing as a patron, frequented Snug's during that period. He became acquainted with the defendant, and that relationship culminated in a bet of $50 between them on the outcome of the 1980 Super Bowl football game. The defendant won the bet and the agent paid off.

II.

The essence of the defendant's defense is, first, that the question on its face is ambiguous as it inquires about "wagers" on "sporting events" in the plural. Since the evidence showed only one bet, he therefore claims to have answered honestly.

But beyond semantics the defendant claims to have misunderstood the thrust of the question, and so explained in his testimony. Facing a federal grand jury probing racketeering and organized crime, as he says he was informed before the grand jury, he did not conceive that the question could be directed at his one "personal" Super Bowl $50 bet. Preceding that question, he testified he was questioned about the use of the telephone in Snug's, the principal office equipment of a bookie. Along with the plural aspects of the question, he was misled, he says.

The government dismisses all of that as "lexicological gymnastics," since the question was clear and unambiguous. There was interest, the government explains, in even a single bet as was apparent from the use in the question of the phrase, "did you ever have occasion."

The government's evidence was brief, consisting of the testimony of Agent Farmer, an FBI female employee who accompanied Agent Farmer as part of his cover, and another Snug employee, James Moos. Moos, after immunization, testified that after the agent lost the bet, Moos was given the money by the agent to give to the defendant, which he did. Although there was some suggestion of other possible gambling activities at Snug's, no effort was made to prove that the defendant while at Snug's accepted other than the one wager on a sporting event. The government offered no evidence about what had occurred before the grand jury, except what was revealed at trial from an inconclusive cross-examination of the defendant.

III.

There is no crime of false swearing before a grand jury unless the defendant's answer about a material fact was knowingly false. United States v. Crippen, 570 F.2d 535, 537 (5th Cir. 1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). A false answer given because of inadvertence, honest mistake, carelessness, neglect, or misunderstanding does not constitute the crime. United States v. Kehoe, 562 F.2d 65, 69 (1st Cir. 1977). Materiality is a matter of law for the court, United States v. Watson, 623 F.2d 1198, 1201-02 (7th Cir. 1980), and was accordingly determined by the trial judge. Except for that one issue of law, the burden, as it does in all criminal cases, rests upon the government to prove the alleged false statement beyond a reasonable doubt. Kehoe, 562 F.2d at 69. In our review of the case "(t)he verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

That the defendant testified he misunderstood the question does not end the matter. United States v. Chapin, 515 F.2d 1274, 1283 (D.C.Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975). It may remain an issue for a properly instructed jury, and the jury was properly instructed in this case. "When the question and answer may have more than one meaning standing alone, their intended meaning is ordinarily an issue for the jury to determine from their context and other indicia of the witness' intent in giving the answer." ² United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976).

We see no "fundamental ambiguity" in the question dictating that the issue be taken from the jury. United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976). It is understood that many questions may lend themselves to various interpretations "when subjected to ingenious scrutiny after the fact," United States v. Ceccerelli, 350 F.Supp. 475, 478 (W.D.Pa.1972), but the words used are "to be understood in their common sense, not as they might be warped by sophistry or twisted in pilpul." Crippen, 570 F.2d at 537. Imaginative hindsight will not save a defendant who has testified falsely. The jury, however, must have some evidentiary help from the government to protect the important grand jury process from being thwarted by prevaricators.

The ideal is for the use of precise questions as a predicate for perjury, United States v. Laiken, 583 F.2d 968, 971 (7th Cir. 1978), but reliance on other evidence may suffice. The particular question at issue was not precise. The phrase relied on by the government, "did you ever have occasion" wars with the plural "wagers" and "sporting events" and does not transform plural to singular. The question was posed orally by an experienced government prosecutor. It was not submitted in writing for the lay witness defendant to analyze before he answered it. There is the possibility that a witness may give a true answer under a reasonable interpretation of the question, but that answer could actually be a false answer as the witness himself interpreted the question, Chapin, 515 F.2d at 1280, but that has not been shown.

The plural aspects of the question standing alone might have been easily cleared up, United States v. Rosen, 353 F.2d 523, 534 (2d Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 889, 15 L.Ed.2d 663 (1966), but the issue is complicated by the defendant's not unreasonable explanation. Even a local grand jury might not be expected to have much interest in a modest bet between acquaintances on a Super Bowl game. Were it otherwise the grand jury net might ensnare some more interesting specimens than a maitre d'. Added to this general perception is the defendant's testimony that he was informed by the grand jury that its purpose was to investigate organized crime. The cross- examination challenged the defendant's choice of words, but failed to put the issue to rest. Defendant claims he was also misled by questions concerning his use of the telephone at Snug's which preceded the critical question. To him, as it might to others, it suggested interest in a bookie professional gambling operation. The defendant denied at trial any involvement of that type and the government established none. ³

Instead of taking the defendant's defense seriously the government tried to talk it away without evidence. It is not unusual to have the indictment itself set forth the context in which the question and allegedly false answer arose, but we have only the one questionable question and answer, no more. United States v. Albert, 568 F.2d 617, 623 n.3 (9th Cir. 1977); Bonacorsa, 528 F.2d at 1220 n.5. The context of the question and answer is often of critical importance if it is claimed the question was ambiguous or was misunderstood as it is in this case. The government's evidence does not show what, if anything, the defendant was informed by the grand jury about the subject of the investigation. It is common grand jury practice to preliminarily identify for the witness, at least to a limited extent, the subject matter of the inquiry. Kehoe, 562 F.2d at 67-68. When questions are considered in context with the purpose of the investigation known to the witness and in context with any series of questions asked, then the jury may have some foundation for a reasonable and definite determination about the meaning of the question. Chapin, 515 F.2d at 1280. A question and answer cannot be lifted out of context as there is the risk of giving them a wholly different meaning. United States v. Paolicelli, 505 F.2d 971, 973 (4th Cir. 1974). It may not be necessary for the government to introduce the defendant's entire grand jury testimony, but it must be sufficient to put the question and answer in context so as to shed light on...