U.S. v. Serafini, 98-7250

• Citation: 167 F.3d 812
• Decision Date: 10 February 1999
• Docket Number: No. 98-7250,98-7250
• Parties: UNITED STATES of America, Appellant, v. Frank SERAFINI.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 812

167 F.3d 812

UNITED STATES of America, Appellant, v. Frank SERAFINI.

No. 98-7250.

United States Court of Appeals Third Circuit.

Argued Oct. 6, 1998.

Decided Feb. 10, 1999.

Bruce Brandler (argued), Harrisburg, PA, for Appellant.

Sal Cognetti, Jr. (argued), Foley, Cognetti & Cowley, Scranton, PA, Daniel T. Brier Myers, Brier & Kelly, Scranton, PA, for Appellee.

Before: SLOVITER and COWEN, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

POLLAK, District Judge.

This is an appeal by the government from an order of the District Court for the Middle District of Pennsylvania granting in part, and denying in greater part, a motion to dismiss the one count of a 140-count indictment which pertains to defendant-appellee Frank Serafini. The count in question charges Serafini with six allegedly false statements to a grand jury. ¹ The motion to dismiss challenged all six charges. The District Court sustained five of the charges but dismissed one. Dismissal of one of the charges was required, so the District Court concluded, because, in the court's view, the question that prompted the allegedly false answer could not support an allegation that the defendant had made a "false material declaration" before the grand jury in violation of 18 U.S.C. § 1623(a). ² On this appeal, in addition to addressing the substantive issue--whether the District Court rightly dismissed the contested portion of perjury count 140--the parties, at this court's request, have also briefed the question whether, as the defendant contends, the government's appeal should be dismissed for want of appellate jurisdiction.

I

This prosecution stems from allegedly illegal campaign contributions by Empire Sanitary Landfill (Empire), various of its officers and employees, and persons associated with those officers and employees. Michael Serafini, defendant Frank Serafini's nephew and an officer of Empire, is alleged to have funneled Empire funds to various individuals as reimbursements, in contravention of the federal election laws, for contributions ostensibly made by those individuals to Robert Dole's 1996 presidential election campaign. Frank Serafini, a Pennsylvania state legislator during the period in question, is thought by the government to have received some of the Empire money, to have kept a portion of it as a reimbursement for his own contribution to the Dole campaign, and to have passed the balance on to his legislative aide, Thomas Harrison, as a reimbursement for a contribution made by Harrison.

When Frank Serafini initially appeared before the grand jury investigating these matters, he invoked his Fifth Amendment rights. The government then immunized him against prosecution. See In re Grand Jury, Misc. No. 95-98 (M.D.Pa. Apr. 29, 1997) (order compelling appearance and granting immunity except for "perjury, giving false statement, contempt" or otherwise failing to comply with the District Court's order.). The defendant was then recalled before the grand jury and testified. Some months later, the grand jury handed down a 140-count indictment, charging Michael and Frank Serafini, as well as four others, with a multiplicity of offenses. Count 140, the only count containing charges against Frank Serafini, alleged that he had committed six ³ separate instances of false material declaration while testifying. On Serafini's motion to dismiss count 140, the District Court found five of the six charged instances to be unproblematic but concluded that one question was so framed that the answer could not support a false declaration charge. Accordingly, the District Court, while sustaining the bulk of count 140, dismissed the subportion of that count that deals with Serafini's answer to the faulty question. The government thereupon filed this interlocutory appeal from the District Court's dismissal of the sub-portion of count 140.

II

We are met at the outset by the defendant's contention that we lack appellate jurisdiction.

The government, as appellant, invokes this court's jurisdiction pursuant to the Criminal Appeals Act of 1970, as amended. That statute provides, in pertinent part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

* * * * * *

The provisions of this section shall be liberally construed to effectuate its purpose.

18 U.S.C. § 3731.

In the instant case, as noted above, the District Court struck one portion of the single count of the indictment pertaining to Frank Serafini. Serafini points out that § 3731 authorizes appellate review of a district court order "dismissing an indictment ... as to any one or more counts...." Since the interlocutory order challenged by the government dealt with only a part of one count, leaving the balance of the count in place, Serafini contends that we have no authority to review the District Court's ruling. However, this court has held that the dismissal of a portion of a count of an indictment is sufficient to establish appellate jurisdiction under § 3731 if the dismissed portion of the count constitutes an independent ground of criminal liability. United States v. Conley, 37 F.3d 970, 975 (3d Cir.1994). Our holding was expressly based upon the authoritative construction of § 3731 announced by the Supreme Court in Sanabria v. United States, 437 U.S. 54, 69 n. 23, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). There, speaking through Justice Marshall, a five-Justice majority stated:

We agree with the Court of Appeals ... that there is no statutory barrier to an appeal from an order dismissing only a portion of a count. One express purpose of 18 U.S.C. § 2731 (1976 ed.) is to permit appeals from orders dismissing indictments "as to any one or more counts." A "count" is the usual organizational submit of an indictment, and it would therefore appear that Congress intended to authorize appeals from any order dismissing an indictment in whole or in part. Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two, a decision frequently fortuitous for purposes of the interests served in § 3731. To so rule would import an empty formalism into a statute expressly designed to eliminate "[t]echnical distinctions in pleadings as limitations on appeals by the United States." H.R. Conf. Rep. No. 91-1768, p. 21 (1970); accord, S.Rep. No. 91-1296, p. 5 (1970).

In so ruling, the Court in Sanabria rejected the narrower reading of § 3731--namely that the statute by its terms simply authorizes appellate review of an order dismissing "one or more counts," thereby precluding appellate review of an order dismissing only a portion of one count--urged by Justice Stevens in a concurring opinion. ⁴ To be sure, the Tenth Circuit, in United States v. Louisiana Pacific Corp., 106 F.3d 345 (10th Cir.1997), has declined to follow the Sanabria majority's pronouncement with respect to § 3731: that pronouncement was, according to the Tenth Circuit, "dictum," id. at 349, and not as persuasive as Justice Stevens's reading of the statute. ⁵ But the Tenth Circuit's decision in Louisiana Pacific stands alone. The other circuit courts that have addressed the issue have been guided by the Sanabria majority. ⁶ Moreover, the Seventh Circuit, which has had occasion to construe § 3731 subsequent to Louisiana Pacific, has expressly taken issue with the Tenth Circuit's analysis. Said the Seventh Circuit, speaking through Judge Easterbrook, in United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998), "Sanabria 's treatment of § 3731 was not dictum. It was no stray remark or aside. It explains the Court's rationale and thus is part of the holding." We agree. ⁷

What § 3731, as confirmed by Sanabria, contemplates is appellate review of a trial court order excising a portion of a count which, if not excised, would offer legal grounding for criminal culpability separate from whatever culpability might accrue from any portion or portions of the count that the trial court does not determine to be deficient as a matter of law. ⁸ In the case at bar, the portion of count 140 excised by the District Court alleged the making by Frank Serafini of a false material declaration separate from the other false material declarations alleged against Frank Serafini by count 140--allegations which the District Court held to be properly cognizable as a matter of law. Given the separateness of the excised portion of count 140, we have appellate jurisdiction to review the District Court's excision order.

III

A. Serafini's Testimony

Turning to the substance of the government's appeal, we begin by laying out, in some detail, the relevant portions of Frank Serafini's testimony during his second appearance before the grand jury. That testimony began with various foundational matters, S.App. at 18-21, which included a denial by Serafini of being reimbursed for any political contributions. ⁹ The questioning then turned to Serafini's relationship with Empire. S.App. at 22-44. Next, government counsel inquired about the contribution Serafini had made to the Dole campaign, including a question about Serafini's motive for contributing. ¹⁰ Counsel also asked whether Michael Serafini (Frank's nephew) had solicited the contribution and whether any others at Empire had solicited contributions from the defendant. S.App. at 47-50. Counsel next attempted to determine when and how Frank Serafini became aware of similar contributions to the Dole campaign by other members of the Serafini family.

At this point, counsel focused his questions on a $2,000 check from Michael Serafini ¹¹ to Frank Serafini, inquiring whether that $2,000 ...