United States v. Gremillion

• Decision Date: 07 September 1972
• Docket Number: No. 72-1133.,72-1133.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack P. F. GREMILLION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 901 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Jack P. F. GREMILLION, Defendant-Appellant.

No. 72-1133.

United States Court of Appeals, Fifth Circuit.

July 19, 1972.

Rehearing Denied September 7, 1972.

COPYRIGHT MATERIAL OMITTED

F. Irvin Dymond, New Orleans, La., for defendant-appellant.

Mary Williams Cazalas, Asst. U. S. Atty., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Edward J. Barnes, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before TUTTLE, CLARK and INGRAHAM, Circuit Judges.

CLARK, Circuit Judge:

Pack P. F. Gremillion, former Attorney General of the state of Louisiana, was convicted on a five-count indictment for committing perjury before a Federal Grand Jury which was investigating the affairs of the Louisiana Loan & Thrift Corporation (LL&T) with regard to the sale of securities. The five statements made by Gremillion before the Grand Jury on January 21, 1969 are set out in extenso in the margin.¹ In brief, they concern whether or not Gremillion was a stockholder or owner of any economic interest in LL&T. On this appeal, Gremillion urges that the subject statements were immaterial to the Grand Jury's investigation, that the government was collaterally estopped to prosecute for perjury by his acquittal on the charges which resulted from the investigation, and that the evidence against him was insufficient. He also presses eleven points of error in trial court rulings and procedure. We affirm.

After his testimony before the Grand Jury, Gremillion was indicted, along with several others, for fraudulent sale of securities, 15 U.S.C.A. § 77q(a) (1971), mail fraud, 18 U.S.C.A. § 1341 (1966), sale of unregistered securities, 15 U.S.C.A. § 77e(a) (1971), and conspiracy to commit these crimes, 18 U.S. C.A. § 371 (1966). Gremillion was acquitted on all counts, but before that acquittal, the Grand Jury returned the present indictment.

Gremillion's first contention is that his statements were not material to the Grand Jury's investigation of whether or not the above listed crimes had been committed, and thus the trial court erred in not dismissing all counts of the indictment. His contention has several prongs. First he points out that he truthfully informed the Grand Jury that he was an attorney for LL&T and had received a 10,000 dollar fee for his legal services. He further testified that he had been offered LL&T stock in exchange for this work but had spurned the offer. He urges that once he had admitted this much it became immaterial whether he was an attorney or a stockholder or both and in any case, that his relationship to LL&T was immaterial.

Under the perjury statute, 18 U.S.C.A. § 1621 (1966),² the false statement must be material to the matter in issue. See Williams v. United States, 239 F.2d 748 (5th Cir. 1957). The statements need only be material, however, to any proper matter of inquiry — not just to the main issue. United States v. Culverhouse, 436 F.2d 1068 (5th Cir. 1971). Materiality need only be established as of the time the answers were given, United States v. Stone, 429 F.2d 138 (2d Cir. 1970), and the Government has the burden of proving materiality. Brooks v. United States, 253 F.2d 362 (5th Cir. 1958). Materiality is a legal question to be decided by the court and is not an issue for the jury to determine. United States v. Edmondson, 410 F.2d 670 (5th Cir. 1969), cert. denied 396 U.S. 966, 90 S.Ct. 444, 24 L.Ed.2d 430; Barnes v. United States, 378 F.2d 646 (5th Cir. 1967), cert. denied 390 U.S. 972, 88 S.Ct. 1056, 19 L.Ed.2d 1184. The test of materiality is whether the false testimony was capable of influencing the tribunal on the issue, Barnes v. United States, supra, or whether the false testimony would have the natural effect or tendency to influence, impede, or dissuade the Grand Jury from pursuing its investigation. United States v. McFarland, 371 F.2d 701 (2d Cir. 1966), United States v. Marchisio, 344 F.2d 653 (2d Cir. 1965). The false statements need not actually impede the investigation. Vitello v. United States, 425 F.2d 416 (9th Cir. 1970).

With these precepts as our polestars, we examine Gremillion's contentions and hold that his false statements were material. It is patent that Gremillion's relationship to LL&T was material to the matters in issue, especially to the stock transaction counts of the first indictment. A person who is related in some financial way to a corporation is certainly more likely to be involved with the corporation's securities than one who is a stranger or a mere professional employee, because his motivation of self-enrichment would serve as a more likely impetus for that involvement. This motivation would be most enhanced in a stockholder role since a stockholder would be directly aided pecuniarily if the corporation is benefited by selling its stock. In addition, a stockholder would normally be expected to have more influence than an attorney in making the decision to offer the corporation's securities.

Gremillion's materiality attack also focuses on individual counts of the indictment. For instance, he asserts Count II should have been dismissed because "economic interest" is not of sufficiently certain meaning to sustain a charge of perjury. We disagree. In the abstract, one could speculate as to the precise parameters that phrase could connote. But the Grand Jury was not working in the abstract. It was considering the matter in the concrete context of this case, and Gremillion, as a stockholder of LL&T, knew or positively should have known that an opposite answer was required. As to Count IV, Gremillion argues that the question of whether or not he talked to anyone in LL&T was clearly immaterial. Again, after moving the inquiry back to its actual setting, we demur. The minute entry referred to in this count concerned an LL&T stockholders' meeting and reflected the fact that the 10,000 shares of stock owned by Gremillion were represented by proxy. The question was whether after learning of this entry, he spoke to anyone at LL&T about it. We find this colloquy obviously material to the question of whether or not Gremillion was a stockholder. Any reasonable man, not a stockholder, who learns he is nevertheless shown on corporate records to be a stockholder, would have inquired about the entry. In addition, part of the thrust of Count IV was whether the entry was a false entry.

For his second point, Gremillion argues that the Government is collaterally estopped to retry this case since he was tried and acquitted on the same issues in the previous trial. The issues he contends to have been previously litigated are whether or not he was a stockholder, whether he received a dividend, and whether he signed a proxy. Gremillion notes that the first indictment alleged all of these facts and maintains that they were put into issue by his plea of not guilty. He further urges that the evidence in this case was a mere replay of the first trial. Finally, Gremillion contends that the "same transaction" theory, espoused by Mr. Justice Brennan in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469 (1970), controls the application of double jeopardy in federal cases.

We reject the latter contention out of hand. Even if the Supreme Court were to incorporate the "same transaction" theory into the double jeopardy clause, that theory would be clearly inapposite here. The perjury charges did not arise out of the same transaction as did the stock and mail fraud charges. The perjury charges arose at a different time and place from any of the other charges. The "same transaction" theory obviously contemplates several criminal charges arising from a single episode that is closely circumscribed in time and space.

As to Gremillion's former contention under this point, we hold that the Government was not collaterally estopped. Under Ashe, the test is "`whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration'". 397 U.S. at 444, 90 S. Ct. at 1194. Plainly there were innumerable issues upon which the jury in the prior trial could have based its acquittal. For instance, that jury could have found that Gremillion did not utilize the mails or any instrument of transportation or communication in interstate commerce, or that he did not defraud anyone, or that he was not involved in any offer or sale of securities. In fact, the "issues" raised by Gremillion appear to be only tangentially related to the issues that would arise out of those charges upon which he was acquitted.

Gremillion's sufficiency of the evidence attack is principally based upon the dearth of evidence proving that he was a stockholder. Furthermore, he submits that as a matter of law any stock he received was void because it was received in violation of La.Const. art. 13, § 2 (1921), which proscribes stock issued without consideration and fictitious stock.³ However, the evidence belies his principal argument. There was substantial evidence that Gremillion received the stock since the certificate was made out to him and his signature was on the back of the certificate; Gremillion's name appeared on LL&T's shareholders list; there was also substantial evidence that he received a dividend and voted his shares by proxy; and the proxy contained his signature. The latter point raised by Gremillion is an irrelevant consideration, even assuming arguendo that the stock issuance was in violation of the Louisiana Constitution. Clearly the proof showed Gremillion and LL&T were treating this stock as valid at the time he testified. He cannot choose to treat it as valid for his own beneficial purposes and lie about that existing relationship to an inquiring Grand Jury, then disavow its validity under this charge to insulate himself from the effect of his perjury. Such an approach would allow absolution where at the time of his testimony a witness may...