United States v. Lazaros, 72-1721.

• Decision Date: 11 June 1973
• Docket Number: No. 72-1721.,72-1721.
• Citation: 480 F.2d 174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter N. LAZAROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

480 F.2d 174 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Peter N. LAZAROS, Defendant-Appellant.

No. 72-1721.

United States Court of Appeals, Sixth Circuit.

Argued February 7, 1973.

Decided June 11, 1973.

Gerald M. Franklin, Detroit, Mich., Frank Oliver, Chicago, Ill., Paul G. E. Valentino, Pontiac, Mich., Melvin B. Lewis, Chicago, Ill., for defendant-appellant.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Peter M. Shannon, Jr., Criminal Appellate Section, Dept. of Justice, Washington, D. C., for plaintiff-appellee; Henry E. Petersen, Asst. Atty. Gen., Kurt W. Muellenberg, Sidney M. Glazer, Dept. of Justice, Washington, D. C., on brief.

Before MILLER, KENT^* and LIVELY, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

The defendant, Peter Lazaros, appeals his conviction by a jury on twelve counts of perjury in the District Court for the Eastern District of Michigan. He was sentenced to one year and a day on each count, to run consecutively.

During the state trial of a criminal associate, Joseph Barbara, on charges of extortion and rape of Lazaros' wife, the defendant became an informer for the prosecution. During the ensuing months Lazaros remained under heavy protection provided by the Michigan State Police. During this period Lazaros maintained a close contact with Donald DeBoer, an internal affairs investigator of the Internal Revenue Service. He made accusations against at least three IRS officials, Harris, McDonald and Olszewski. Also from photographs, Lazaros identified IRS agents Gardner, Lockwood, Lee, and Getto, as having accepted money from underworld figures. He also implicated certain former Detroit city officials. DeBoer warned Lazaros that making a false statement to him was a violation of 18 U.S.C. § 1001, a felony for which Lazaros could be imprisoned for five years and fined up to $50,000.00.

A grand jury was convened on June 12, 1969, to investigate the accusations. On June 26, 1969, invoking the Fifth Amendment, he refused to testify. Over the next two months some 30 to 40 witnesses were called to testify before the grand jury, including DeBoer. Apparently a rift had developed between DeBoer and Edward O'Leary, the United States Attorney representing the government. DeBoer continued to believe Lazaros, while O'Leary concluded that no bribery had occurred. On August 21, 1969, Lazaros was recalled before the grand jury. In his first appearance on that day, he was asked about the bribery of certain governmental officials. He refused to testify, again asserting his Fifth Amendment rights. O'Leary then sought and obtained immunity under 18 U.S.C. § 2514 from Judge Thornton, United States District Judge for the Eastern District of Michigan. In his second appearance on August 21, Lazaros answered these same questions in an enigmatic and evasive manner. He was then returned to Judge Thornton, who held him in civil contempt, and remanded him to the custody of the federal marshal until such time as he would answer directly the questions propounded by the prosecutor.

Finally on the afternoon of August 21, Lazaros purged himself of the contempt by giving direct answers to the prosecutor's questions. Based on the answer to these questions, he was indicted for perjury.

Specifically, Lazaros testified that four Internal Revenue agents, Lockwood, Lee, Gardner and Getto, had accepted envelopes containing $1,000 each at a Christmas party given by Lazaros at the Kingsley Inn in Birmingham, Michigan, in December of 1967. Furthermore, he testified that the former Mayor of Detroit, Jerome Cavanagh, and the former purchasing agent of Detroit, Arthur Stone, accepted envelopes that contained money. Finally, Lazaros testified that two IRS agents, Getto and Conrad, and a member of the Detroit police force, Dunleavy, received money under the pretext of a game of chance, after a prize fight that occurred in Cleveland in 1964. His testimony was that he was personally present at each of these exchanges.¹

18 U.S.C. § 1621 provides:

Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.²

Lazaros' main defense at trial was that his testimony was coerced, and therefore was not willful within the meaning of 18 U.S.C. § 1621. Lazaros argues that he was given a Hobson's choice. If, after he was in contempt for giving evasive answers, he had chosen to go to jail, he was in danger for his life.³ If he took the stand and testified that the bribery had never taken place, he could be convicted of a felony for giving false statements to a government official.⁴ Finally, if he took the stand and retold his story that he had given to the IRS officials, he would be convicted of perjury. This explanation was presented to the jury under proper and unchallenged instructions to the effect that if defendant's statements before the grand jury were indeed made as the result of coercion or duress they would not come within the ambit of the perjury statute. We find that there is sufficient evidence in the record to support the jury's conclusion that Lazaros' testimony was willfully false. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The further argument is made that Lazaros' testimony before the grand jury was not material. Consequently, even though false, the testimony may not be used as a basis for a perjury conviction. An aspect of the same theory of defense is the insistence that the inquiry as to the bribery of the government officials was concluded by the time Lazaros was recalled to the stand on August 21, 1969. Finally, it is said that the reason he was recalled was to force him to commit perjury or to release his testimony to the public (a violation of the doctrine of grand jury secrecy), neither of which is a legitimate function of the grand jury.

In support of these theories the defendant relies on Brown v. United States, 245 F.2d 459 (8th Cir. 1957); United States v. Cross, 170 F.Supp. 303 (D.C.D.C.1959); United States v. Icardi, 140 F.Supp. 383 (D.C.D.C.1956). The defendant relies on the testimony of the prosecuting United States Attorney, Edward O'Leary, that by August 21, 1969, he had concluded that none of the officials accused by Lazaros had taken bribes and that all were innocent of the charges made against them. Also two grand jurors testified that the investigation was nearly complete when Lazaros was recalled.

We believe that these theories of defense are without merit. The test of materiality is "whether the false testimony was capable of influencing the tribunal on the issue before it." Fraser v. United States, 145 F.2d 145, 149 (6th Cir. 1944) quoting Blackmon v. United States, 108 F.2d 572, 573 (5th Cir. 1940). Furthermore, "materiality refers to testimony that will legally evidence the propositions to be proved." Fraser v. United States, supra at 149 of 145 F.2d, quoting United States v. Slutzky, 79 F.2d 504, 506 (3rd Cir. 1935).

However, materiality of statements made in a grand jury investigation may more readily appear than that of similar evidence offered on an issue in civil or criminal litigation, since the purpose of the investigation is to get at facts which will enable the grand jury to determine whether formal charges should be made against someone rather than prove matters directly at issue. Leads to further inquiry may be of material worth to an investigation. Thus the test of materiality is whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation.

United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970) (citations omitted); see United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969); United States v. Henderson, 185 F.2d 189, 191 (7th Cir. 1950).⁵

Lazaros was the main accuser of the government officials. It was because of his accusations that the investigation was initiated and the grand jury convened. His testimony was relevant to the bribery charges under investigation. Regardless of the actual beliefs of the United States Attorney, the grand jury was entitled to hear Lazaros's testimony. Unless protected by privilege, the "public through the grand jury . . . has a right to every man's evidence." Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972).

Furthermore the testimony sought from Lazaros was within the legitimate scope of the grand jury's functions.

The grand jury . . . has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.

Branzburg v. Hayes, supra at 687, 92 S. Ct. at 2659 (footnotes omitted).

Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. "It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime."

Branzburg v. Hayes, supra at 688, 92 S. Ct. at 2659, quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979 (1919). See United States v. Neff, 212...