U.S. v. Ponticelli

• Decision Date: 30 January 1980
• Citation: 622 F.2d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred PONTICELLI, Defendant-Appellant. Civ. A. 77-3785.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 985

622 F.2d 985

UNITED STATES of America, Plaintiff-Appellee, v. Alfred PONTICELLI, Defendant-Appellant.

Civ. A. 77-3785.

United States Court of Appeals Ninth Circuit.

Jan. 30, 1980.

Rehearing Denied July 21, 1980.

George L. Schraer, Berkeley, Cal., for defendant-appellant.

Dennis Schloss, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN and HUG, Circuit Judges, and THOMPSON, ^* District Judge.

GORDON THOMPSON, Jr., District Judge:

A jury convicted Ponticelli of two counts of making a false declaration before a grand jury in violation of 18 U.S.C. § 1623 (1976), and the court sentenced him to a year and a day in custody on each count, the terms to run concurrently. We have jurisdiction over this appeal under 28 U.S.C. § 1291 (1976). Finding no reversible error, we affirm. The facts of the case will be discussed in relation to Ponticelli's objections on appeal.

I.

Ponticelli's principal attack on his conviction is that the evidence is insufficient to support the jury's verdicts. The evidence and its inferences, of course, must be viewed in a light most favorable to the government as prevailing party. See Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The two counts on which Ponticelli was convicted both involved Ponticelli's testimony in July, 1976, before a federal grand jury investigating the loansharking activities of one Werber. Among the questions posed to Ponticelli were inquiries concerning a handwritten list of four names, labeled Government's Exhibit No. 1 at trial. Agents of the Federal Bureau of Investigation (F.B.I.) found Exhibit No. 1 on Ponticelli's person on November 20, 1975, when they arrested him in connection with the loansharking operation.

The grand jury interrogator asked Ponticelli if Werber asked him to collect money from the people whose names appeared on Exhibit No. 1. The first count of the indictment alleged that Ponticelli falsely replied, "Not that I can recall. It's news to me," and "Not that I remember." When the interrogator questioned Ponticelli about where the paper came from, Ponticelli stated, "I have been of the opinion until now because I can't recollect where this piece of paper came from that it was planted by the F.B.I." This latter statement was the subject of the second count of the indictment.

As a result of the grand jury investigation, Werber was indicted in November, 1976. He pleaded guilty to obstruction of justice, racketeering, and extortion, and was sentenced.

A second federal grand jury decided in January, 1977, to investigate Ponticelli. Werber was called to testify, but he refused to answer questions. Werber was then granted immunity, and he testified that Ponticelli had told him shortly after Ponticelli's arrest in November, 1975, that he planned to say that he did not know where the list came from.

At trial, Werber testified that he met with Ponticelli and a third person, one LoCicero, on November 13, 1975, in a coffee shop. At the meeting, Werber stated, he gave Ponticelli a list of names on a piece of paper five by eight or nine inches. The people whose names were on this paper, he stated, owed Werber money, and he told Ponticelli at the meeting that Ponticelli could keep any money he collected from the people on the list.

Werber's testimony was corroborated by statements of F.B.I. agents. Two agents said at trial that they observed the meeting of Werber, Ponticelli, and LoCicero at the coffee shop on November 13, 1975. At the meeting, they saw Werber produce a piece of paper five by eight or nine inches. They could see writing in dark ink on the paper. The agents did not see Werber give the piece of paper to Ponticelli. One week later F.B.I. agents arrested Ponticelli. On Ponticelli's person was Exhibit No. 1, which is a piece of paper five by eight or nine inches. The list of names on Exhibit No. 1 was written in blue and black ink. Werber testified at trial that some but not all of the handwriting on Exhibit No. 1 was his. Ponticelli admitted before the grand jury that his handwriting also appeared on the paper.

Before the grand jury and at trial, Ponticelli offered no credible alternative explanation of how he came by Exhibit No. 1. Nor did he explain why he had any reason to believe that the F.B.I. planted the paper in his car. In fact, Ponticelli's actions belied any such belief. If, as Ponticelli suggested, he thought the F.B.I. planted the paper in his car, he would have destroyed it immediately. Instead, he carried it around with him until he was arrested.

Ponticelli argues that Werber's testimony is too contradictory for the jury to conclude Werber passed Exhibit No. 1 to Ponticelli at the cafeteria. While a reading of the transcript may suggest inconsistencies in Werber's testimony, the jury had an opportunity to hear Werber's inflections and witness his demeanor, and it had the right to credit some parts of his testimony and to discredit other parts based on these observations. The testimony of the F.B.I. agents and the incredibility of Ponticelli's own statements were sufficient corroboration of Werber's testimony, if such corroboration was necessary. See United States v. Sisack, 527 F.2d 917, 921 (9th Cir. 1975).

Even if Werber did give Exhibit No. 1 to Ponticelli, Ponticelli notes that he testified to the grand jury only as to his memory and his opinions. Given the subjective nature of such statements, he argues, the jury could not conclude beyond a reasonable doubt that his testimony was knowingly false. See Brief for Appellant at 22-23. Juries can and do make inquiries every day into the actual state of mind of criminal defendants. For example, it is hornbook law that, in prosecuting a defendant for an attempt to commit a crime, the government must prove a specific intent to commit the crime that is the subject of the attempt. That the inquiry is subjective rather than objective does not preclude prosecution. Ponticelli's argument proves too much. If it were accepted, a grand jury witness could deceive a grand jury or frustrate its inquiry with impunity, simply by prefacing each sentence with the words "I believe."

Finally, Ponticelli suggests that reversal is compelled by United States v. Clizer, 464 F.2d 121 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 673 (1972). In Clizer, a member of an organization of farmers suspected of illegally setting fires was convicted of perjury for telling a grand jury that (a) he did not have dynamite on a specific date, and (b) he did not recall a conversation in which he told a fellow member to get rid of an incriminating rifle casing. On the first statement, the court affirmed the conviction. On the second statement, the court found insufficient evidence that Clizer did remember the instruction he had allegedly given to his colleague.

The only circumstantial evidence that even tends to show that the incident must have been remembered by Clizer is testimony given by Ronald Reeser, an acquaintance of Clizer, and an active participant in (the farmers' organization), who became a government informer shortly after the occurrence of the fires that were the subject of the grand jury investigation. His testimony represents too slender a reed upon which to rest the conviction on Count III.

Id. at 125. The court thus rejected the government's theory that a witness necessarily remembers a prior statement indicating consciousness of guilt.

As in Clizer, a witness for the government, Werber, testified to a statement by the defendant indicating consciousness of guilt. ¹ But, Ponticelli, unlike Clizer, was not indicted for testifying that he could not recall the incriminating conversation with Werber. He was indicted for stating that he could not recall whether Werber asked him to collect money and for testifying that he could not remember how he received the list. The issue in this case, then, is not whether Ponticelli actually remembered having made the statement to Werber, but whether that statement, when coupled with the other evidence offered by the government, showed that Ponticelli lied to the grand jury about his knowledge of his relationship with Werber and of the source of the collection list. The jury here could find Ponticelli had a reason to remember where he got the list, because the list had monetary value to him; it contained the names of people owing Werber money from whom Ponticelli could collect. Moreover, unlike the testimony in Clizer, Ponticelli's statements to the grand jury were sufficiently incredible to warrant an inference he was lying.

Based on all these factors, the jury had sufficient evidence before it to conclude beyond a reasonable doubt that Ponticelli was guilty of the crimes for which he was tried.

II.

Ponticelli contends there was insufficient evidence of the materiality of his allegedly perjurious statement, because the grand jury foreman testified that, prior to Ponticelli's appearance, the grand jury already knew enough to indict Werber for making usurious loans to the persons on the list. This argument misperceives the proper test of materiality in perjury cases.

(T)he government need not show that the false testimony actually impeded the grand jury investigation or that it related to the primary subject of the investigation. It is sufficient for the government to prove that the testimony was relevant to any issue under consideration by the grand jury. If the falsity of the testimony would have the natural tendency to influence the grand jury's investigation, it is material.

United States v. Kelly, 540 F.2d 990, 993 (9th Cir. 1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977). The grand jury was investigating Werber's extortionate credit transactions. The questions on which Ponticelli perjured himself were relevant to these transactions, as well as to Ponticelli's and...