U.S. v. Slawik

• Decision Date: 03 January 1977
• Docket Number: No. 76-1541,76-1541
• Citation: 548 F.2d 75
• Parties: UNITED STATES of America v. Melvin A. SLAWIK, Appellant, and Bruce A. Uffelman et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 75

548 F.2d 75

UNITED STATES of America v. Melvin A. SLAWIK, Appellant, and Bruce A. Uffelman et al.

No. 76-1541.

United States Court of Appeals, Third Circuit.

Argued Oct. 22, 1976.

Decided Jan. 3, 1977.

W. Laird Stabler, Jr., U. S. Atty., Alan J. Hoffman, Asst. U. S. Atty., Wilmington, Del., for appellee.

Bruce M. Stargatt, Richard A. Zappa, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for appellant.

Before ALDISERT and GIBBONS, Circuit Judges, and McGLYNN, ^* District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Melvin A. Slawik appeals from a judgment of sentence imposed pursuant to a jury verdict finding him guilty on three counts of making false declarations before a grand jury in violation of 18 U.S.C. § 1623. ¹ We reverse.

Slawik, at the time of trial, was the elected County Executive of New Castle County, Delaware. His indictment grew out of a federal investigation of the relationship between contractors and various New Castle County public officials. ² In the course of that investigation the United States Attorney became aware that one Bayard Austin, a former political associate of Slawik, might have relevant information.

Austin, then living in Orlando, Florida, was interviewed there by F.B.I. Agents on August 4, 1974. Austin asserted the fifth amendment privilege against self-incrimination. On August 8, 1974, the agents advised Austin they were authorized to grant him immunity from prosecution. With this assurance, he gave the agents a statement about various matters in New Castle County. They discussed installing a recording device on Austin's telephone and Austin's using a concealed recording device on his person, in order to record conversation between Austin and his former New Castle County associates.

On October 9, 1974, a recording device was placed on Austin's telephone. Austin then called Slawik who eventually returned his call. Other telephone conversations followed. On October 14, 1974, Austin, Slawik, and three other New Castle County associates met in Florida. Austin's concealed recording device was running. Throughout the telephone conversations and the meeting, Austin maintained the pretense that he was not yet cooperating with the F.B.I. He did not disclose that he had been granted immunity. On October 23, 1974 one additional call between Austin and Slawik was recorded. The United States Attorney's office promptly obtained all of the recordings described above.

Slawick was subpoenaed to testify before a federal grand jury in Wilmington, Delaware on December 11, 1974. The Assistant United States Attorney who conducted the examination had already studied the tapes. However, he disclosed to Slawik neither their existence nor the fact of Austin's cooperation. ³ The December 11 examination of Slawik covers more than 200 pages of transcript. The charges of making false declarations presently before us arise from that testimony. The principal evidence the government relied on to prove its case is the recordings.

Each of the three counts set forth in identical terms the subject matter of the grand jury's investigation. ⁴ Each count set forth in identical terms that which the government contended was material to the investigation. ⁵ In the third paragraph of each count, the indictment set forth a specific material matter as to which Slawik allegedly gave false testimony. ⁶ The indictment did not state why or how these three areas of inquiry were matters material to the grand jury's investigation. In a motion for a bill of particulars, Slawik sought to learn, with respect to paragraph three of each count, the material matter which the government did not believe to be true, the reason it was material, and the particularized facts on which the government relied in support of the allegations that the specified testimony was false. The district court sustained the government's refusal to answer those questions. The government did answer, however, a question with respect to the factual basis of the materiality allegations in paragraph 2 of each count: ⁷

"The factual basis for the materiality allegations is based upon the fact that the testimony was capable of influencing the tribunal in its investigation and had the natural effect or tendency to influence, impede, hamper, or dissuade the Grand Jury from pursuing its investigation." United States Response to Defendant Melvin A. Slawik's Motion for a Bill of Particulars, Counts 7, 8, and 9.

Materiality is an essential element of a violation of 18 U.S.C. § 1623 and a question of law, decision upon which is reserved to the court. ⁸ Slawik's statements are set forth in the margin. ⁹ Count 7

To appreciate answer number five, ¹⁰ it must be read in context. The examiner's prior questions elicited the answers, not claimed to be false, that Slawik went to Florida to talk to Austin about getting an attorney, and about coming to Wilmington to testify before the grand jury. Answer number five is in response to a paraphrase by the government attorney of this prior testimony:

Q: So you went there and said you got a subpoena. You got to testify.

A: Can I explain?

Q: Sure. Go right ahead.

Answer number six, ¹¹ too, was in response to the government attorney's paraphrase of the prior answer.

It is the government's position that the answers to questions five and six, both referring to a conversation in Florida on October 14, 1974, were understood by the questioner, by Slawik, and by the grand jury to convey:

(1) That Slawik advised Austin to get independent legal counsel, as opposed to using counsel provided by a co-conspirator;

(2) That he urged Austin to testify before the grand jury and to testify truthfully, rather than merely to appear and plead the fifth amendment.

The tape recording of the October 14, 1974 conversation, in the government's possession at the time of Slawik's grand jury appearance, reveals that Slawik certainly was not enthusiastically urging that Austin appear before the grand jury and incriminate Slawik. Nonetheless, answers five and six may be said to paraphrase substantial portions of the transcript of the October 14, 1974 recording, quoted in the margin. ¹² The transcript of the tape of the October 14, 1974 meeting is 65 pages long. In the course of the conversation, Austin did tell Slawik he did not want to go back to Delaware, and Slawik did tell Austin that he would have to return to Delaware whether he liked it or not, and that he should not go before the grand jury without a lawyer. He told Austin it might be advisable to resort to a claim of the fifth amendment privilege against self-incrimination, and also told him he would arrange to get him a lawyer. It cannot fairly be said that there was any specific reference to independent legal counsel, nor did Slawik tell Austin to testify truthfully and waive his fifth amendment privilege.

But Slawik was never asked, before the grand jury, whether he advised Austin to assert the privilege against self-incrimination, nor was he asked if he suggested independent legal counsel. ¹³ Instead, he was asked no question at all, and simply responded to the prosecutor's paraphrase a paraphrase which would trap an unwary, assenting witness in perjury. The paraphrase was "So you went there and said you got a subpoena. You got to testify." Slawik "explained" by enlarging:

"Look Barney (sic) you will probably only be there a day. Get yourself legal counsel, tell them the truth. They are not going to hold you. You can go back to Florida." (emphasis supplied).

It is the government's position that the italicized language was understood by the grand jury to mean "tell the grand jury the truth." But in the context of the sentence in which the words were used they could just as well have meant "tell legal counsel the truth." Neither the indictment nor the bill of particulars sets forth the grand jury's understanding of these words. The government contends that an exculpatory construction is barred by the examiner's second paraphrase:

So, basically your trip down there revolved around a discussion with him to convince him to come up here and testify, get it over with, and be truthful. (Emphasis supplied).

Aside from the fact that even the paraphrase is ambiguous, it is clear that Slawik did not accept it as his own. He replied:

Get the damn thing over with and nobody is going to hold you, nobody is going to do anything.

He did not accept the paraphrase, if it was intended to mean "testify truthfully before the grand jury."

The ambiguity is critical. For Slawik's reply to have been a violation of § 1623, it must have been both false and material. If literally true, there was no offense, even if Slawik's answer was deliberately misleading. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). And a false answer, if immaterial was similarly inoffensive under federal law. Nothing in the record before us gives any indication what the jury thought was false: we cannot say whether the trial jury found that Slawik had failed actually to advise Austin: (1) to tell counsel the truth, or (2) to tell the grand jury the truth. And nothing in the indictment or the bill of particulars tells us which construction the grand jury placed on its charge. ¹⁴

Thus, the trial jury might have found either of two possible falsehoods, only one of which was material, in Slawik's grand jury testimony. Although materiality is a question of law over which we exercise plenary review, ¹⁵ the imprecision of the allegations contained in the indictment and bill of particulars renders meaningful review of materiality impossible. Our decision is not based on a slavish acceptance of appellant's construction of his statements. Indeed, this would be an easy case if the meaning of Slawik's statement was clear. Rather, we hold that a conviction under 18 U.S.C. § 1623 may not stand where the indictment fails to set forth the precise falsehood alleged and the factual basis of its...