United States v. Bertman
Decision Date | 22 December 1983 |
Docket Number | Crim. No. 82-01218. |
Citation | 575 F. Supp. 780 |
Parties | UNITED STATES of America, Plaintiff, v. Phillip BERTMAN, Defendant. |
Court | U.S. District Court — District of Hawaii |
Daniel A. Bent, U.S. Atty., Paul Laskow, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.
Michael Levine, Federal Public Defender, Honolulu, Hawaii, for defendant.
ORDER DENYING MOTION TO RECONSIDER
The defendant in this case, Phillip Bertman, has asked this court to reconsider its earlier decision refusing to dismiss his perjury indictment and to enter a new order dismissing the indictment. For the reasons laid out here, this court declines to reconsider its earlier decision.
The gravamen of Bertman's complaint is that the indictment that charged him with making false statements before the grand jury did not contain a paragraph setting out what the objective truth was. Bertman's earlier arguments on this point were considered and rejected by this court at a hearing on November 3, 1983, with the result that Bertman's motion to dismiss the indictment was unsuccessful. But now Bertman has reappeared with new ammunition. He relies on United States v. Cowley, 720 F.2d 1037 (9th Cir.1983), a November 15, 1983 decision of the Ninth Circuit Court of Appeals. In Cowley, the appellate court reversed two codefendants' perjury convictions because the indictments were insufficiently clear as to what the alleged perjury was.
This court does not read Cowley as mandating dismissal of the indictment against Bertman. It is true that at one point in the Cowley opinion the Court of Appeals stated that reversal of the perjury conviction was necessary because "Count 4 of the indictment fails to set out in `stark contrast' the allegedly false statements and the objective truth." At 1044. But it is also true that the indictments at issue in Cowley were based on exchanges before the grand jury that were extremely ambiguous. For example, one count of one of the indictments was based on the following questions and answers:
Appellant there argued that the answers could not be perjurious because the questions were ambiguous; the inquiries could have been construed as asking whether appellant had brought the records referred to with him to the grand jury room. The Court of Appeals found appellant's argument plausible. It ruled that At 1043-1044. It is apparent to this court that the real concern in Cowley was that the indictment was so ambiguous that defendants were unable to discover the nature of the charges against them. The rule of Cowley is that where the answers to such ambiguous questions are alleged to be perjurious, the indictment should set out both the alleged falsehood and the objective truth so that the accused may adequately form his defense.
The Cowley rationale simply does not apply in the case now before this court. The indictment in this case is clear. Count One is based on the following question and answer:
Count One then alleges that the defendant knew that this declaration was false as to a material fact. This count is perfectly clear. The question was not ambiguous, nor was the answer; the allegation of falsehood is self-explanatory. A jury could easily find that Bertman understood the question in the same way as the government did.
Count Two of the indictment is based on this exchange:
Count Two then charges that Bertman knew this answer to be false as to a material fact. Here, again, the requisite "stark contrast" is...
To continue reading
Request your trial-
Matter of Michigan Boiler and Engineering Co.
... ... Bankruptcy No. 86-06680-B ... United States Bankruptcy Court, E.D. Michigan, S.D ... June 1, 1988.87 BR 466 Hertzberg, ... ...
-
U.S. v. Serola, 84-2511
...include a truth paragraph in the indictment in the first instance. Cowley was distinguished on these grounds in United States v. Bertman, 575 F.Supp. 780 (D.Hawaii 1983), which noted that a truth paragraph may be required when the questions asked by the prosecutor and the answers given by t......
-
Bevill, Bresler & Schulman Asset Management Corp., Matter of
... ... ROONEY ... Appeal of Robert L. BEVILL ... Nos. 85-5828, 85-5851, 85-5829 and 85-5850 ... United States Court of Appeals, ... Third Circuit ... Argued Sept. 16, 1986 ... Decided Nov. 13, 1986 ... ...
-
US v. Butt, Crim. A. No. 90-10067-Y.
...set out both the alleged falsehood and the objective truth so that the accused may adequately form his defense." United States v. Bertman, 575 F.Supp. 780, 781-82 (D.Haw.1983); see also United States v. Decoito, 764 F.2d at 693 (Although a "truth paragraph" is not needed in every perjury in......