U.S. v. Picketts, 80-2418

• Decision Date: 17 September 1981
• Docket Number: No. 80-2418,80-2418
• Citation: 655 F.2d 837
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oliver W. PICKETTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 837

655 F.2d 837

UNITED STATES of America, Plaintiff-Appellee, v. Oliver W. PICKETTS, Defendant-Appellant.

No. 80-2418.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1981.

Decided Aug. 6, 1981.

Rehearing and Rehearing En Banc Denied Sept. 17, 1981.

Edward J. Calihan, Jr., and Anna R. Lavin, Chicago, Ill., for defendant-appellant.

Thomas M Durkin, Thomas P. Sullivan, James R. Streicker, Robert W. Tarum, William R. Coulson, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, SPRECHER and WOOD, Circuit Judges.

FAIRCHILD, Circuit Judge.

Defendant-appellant Oliver W. Picketts appeals from his sentence upon conviction for violation of 18 U.S.C. § 1623, for making a false declaration before a grand jury. Picketts asserts that there was insufficient evidence to sustain the conviction, that the charge constituted an abuse of the grand jury and violated his Fifth Amendment rights, and that the trial court erred in approving an instruction regarding a good character defense. Picketts received a two-year suspended sentence and was placed on probation for two years including eight months at a work release program. We affirm.

On February 21, 1980, the defendant Oliver W. Picketts was charged in a two-count indictment. Count One alleged that Picketts, an electrician foreman at the Chicago Housing Authority (CHA), engaged in a pattern of racketeering by soliciting and accepting money from CHA electricians in return for his recommendation that they were qualified to receive full union membership status. Count Two alleged that Picketts, under oath, made material declarations before a grand jury, which he then knew to be false, in violation of 18 U.S.C. § 1623. ¹ Jury trial lasted from July 8-11, 1980. On July 10, 1980, the trial court granted defendant's motion for judgment of acquittal as to Count One because of a defect in the indictment. ²

The indictment on Count Two specified as false declarations that Picketts stated that he had never solicited or received money from any electricians in connection with their jobs; it further specified that as to six named CHA electricians (William Denman; James Thompson, Jr.; McKinley Madgett; Nathaniel Myart; Sam McClellan; and Kenneth L. Washington) Picketts had denied that he ever accepted or received any money from any of them in connection with their jobs. The Count Two indictment charged that Picketts knew these declarations to be false when made because he knew that he had solicited and accepted money as described in paragraph four of Count One of the indictment. That paragraph charged, in pertinent part, that the defendant knowingly solicited and accepted money from electricians employed by the Chicago Housing Authority in return for the defendant's recommendation that the electricians receive a B License from Local 134 of the International Brotherhood of Electrical Workers, according to the following table:

                                       Approximate
                                         Amount
                Electrician             of Money    Year
                -----------            -----------  ----
                James Thompson, Jr.       $500      1970
                William Denman             500      1971
                McKinley Madgett           700      1972
                Nathaniel Myart            800      1973 and 1974
                Sam McClellan              900      1974
                Kenneth L. Washington      100      1975
                

Regarding the sufficiency of the evidence, the defense makes several arguments, which we will consider: (1) no evidence exists in the record to show that the grand jury was duly impaneled and sworn; (2) no evidence exists in the record to show that the subject of the grand jury investigation was whether defendant Picketts was soliciting and accepting money from CHA electricians; (3) no evidence exists in the record of the materiality of the false declarations made by Picketts; (4) there is no proof in the record of Picketts being sworn when he appeared before the grand jury; (5) because the indictment charged that Picketts solicited and accepted money for a B License, when in fact there are B Cards but no such things as B Licenses, there was therefore no proof of the falsity of Pickett's grand jury testimony; (6) in order to establish defendant's guilt, the prosecution had to establish that he lied as to each of the six named electricians. Because the alleged payments by the five other than Washington were outside the statute of limitations, the government cannot establish false declarations within the statute of limitations.

In reviewing the sufficiency of the evidence, we must sustain the verdict of the jury "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). Applying this standard, we hold that the evidence of Picketts' guilt of Count Two is sufficient for the conviction to be sustained.

Count Two of the indictment of Picketts charged all of the elements of the offense. Paragraph 3 charged that "(i)t was a matter material to this investigation for the Special January 1979 Grand Jury to know whether OLIVER W. PICKETTE (sic), defendant herein, had solicited or accepted money from electricians in connection with their employment at the Chicago Housing Authority." Paragraph 4 charged that Picketts appeared under oath before the grand jury and made false and material declarations which were listed in detail. From the indictment handed down by the grand jury on the substantive count and the grand jury transcript admitted into evidence, it was proved clearly that the grand jury was investigating whether defendant Picketts solicited and accepted money from CHA electricians. The parties stipulated as to events before the grand jury. Defendants did not challenge at trial the legality of the grand jury and have, accordingly, raised no issue as to its legality.

Defendant next contends that the record contains no evidence of the materiality of the false declarations made by Picketts. Under 18 U.S.C. § 1623, materiality is defined as a statement's "effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation." United States v. Devitt, 499 F.2d 135, 139 (7th Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975). The determination of materiality is an essential element of the crime and is a question of law for the court to decide. United States v. Watson, 623 F.2d 1198 (7th Cir. 1980).

Defendant argues that the only permissible method for establishing materiality is for the prosecution to call the foreperson or other member of the grand jury to testify as to the scope of the grand jury investigation, so that the court can determine whether the declarations alleged to be false were material to the grand jury investigation. Although that is a common method of proving materiality, it is not the only permissible method. Testimony by the prosecuting attorney who worked with the grand jury or introduction of the transcript of the grand jury proceedings are also permissible and common methods of proving materiality. United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); United States v. Bell, 623 F.2d 1132, 1135 (5th Cir. 1980). The court in Bell decided that materiality could be proved by looking at the indictments which the grand jury issued in order to determine the scope of its investigation. Id. In the instant action, the government introduced the grand jury transcript at trial. The transcript shows that immediately prior to the questioning of Picketts, he was advised by the prosecutor that the grand jury was investigating whether Picketts had solicited and received money from CHA electricians. The Count One indictment demonstrates further that these solicitations and payments were a subject of the grand jury investigation. We find that materiality of the declarations of Picketts to the grand jury was proved clearly.

Picketts asserts that the prosecution failed to prove another element of the crime, that his declaration was made under oath. We find no merit in this argument. The grand jury transcript of Picketts' testimony begins as follows: "OLIVER WENDELL PICKETTS having been first duly sworn by the Foreman to testify the truth, the whole truth, and nothing but the truth, was examined and testified as follows: ..." In United States v. Devitt, 499 F.2d 135 (7th Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975), this court found the introduction of a grand jury transcript and the testimony of a Justice Department attorney who had been present at the grand jury proceedings to be sufficient to show that testimony was under oath. Although we believe it would be better practice for someone present at the grand jury proceedings to testify to the giving of an oath, we find that the transcript of defendant's grand jury testimony was sufficient to prove that he testified under oath.

Picketts argues that the indictment charged that he solicited and accepted money "in return for the defendant's recommendation that the electricians receive a B License ...," but that this charge was not proved because there exist B Cards but not B Licenses. This court has defined the test of whether a variance between indictment and proof require reversal, as follows:

In determining the sufficiency of an indictment, "minor or technical deficiencies" no longer require reversal; courts look instead to whether the substantial rights of the defendant have been prejudiced by the omission or error. The same standards apply in determining whether a variance between the charge in the indictment and the proof at trial requires reversal. An indictment is sufficient if (1) it states the essential facts underlying each element of the offense charged, (2) it informs the defendant of the offense charged with sufficient clarity to enable him to prepare his defense, and (3) it provides...