United States v. Stone

• Citation: 429 F.2d 138
• Decision Date: 07 July 1970
• Docket Number: No. 799,Docket 34651.,799
• Parties: UNITED STATES of America, Appellee, v. Samuel STONE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 138 (1970)

UNITED STATES of America, Appellee, v. Samuel STONE, Appellant.

No. 799, Docket 34651.

United States Court of Appeals, Second Circuit.

Argued May 20, 1970.

Decided July 7, 1970.

James J. Cally, New York City, for appellant.

Richard A. Givens, Asst. U. S. Atty., (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, John H. Doyle, III, New York City, of counsel), for appellee.

Before SMITH and HAYS, Circuit Judges, and BARTELS, District Judge.^*

J. JOSEPH SMITH, Circuit Judge:

Samuel Stone, an attorney, was convicted of perjury in violation of 18 U.S. C. § 1621 in the United States District Court for the Southern District of New York, Harold R. Tyler, Jr., Judge, on trial to the court, jury waived, and appeals. Appellant was charged with two counts of perjury in grand jury testimony on February 19, 1969 (count one) and on March 10, 1969 (count two); he was acquitted by the court on the first count and found guilty on the second count. The only question raised in this appeal is appellant's claim that his false testimony before the grand jury on March 10, 1969 was not material to the grand jury's inquiry. The court found the false testimony was material to several legitimate objects of the grand jury's investigation; we find no error and affirm.

In the fall of 1968 a federal grand jury for the Southern District of New York was investigating alleged obstruction of interstate commerce by the use of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951; Stone was served with a subpoena on November 7, returnable on November 12, 1968, directing him to appear before the grand jury. The Nash Moving and Storage Company, owned by Jerome Rosenberg and another, had had difficulties in 1967 with the Teamsters Union, and in order to induce the Teamsters to allow his company to resume moving operations, Rosenberg paid $1500 to Stone, whom Rosenberg did not then know and who had performed no legal services for him. Stone met Rosenberg on the street November 11, 1968, inquired as to what Rosenberg had told the grand jury and assured Rosenberg that the grand jury was just fishing and looking to create problems and trouble. Stone appeared before the grand jury on at least four occasions: November 14, 1968, November 19, 1968, February 19, 1969 and March 10, 1969, and the inquiry at the initial sessions was in regard to the $1500 he had received from Rosenberg. Stone claimed the money was payment for legal services for his negotiation of a contract, a copy of which he was unable at the time to produce; his explanations to the grand jury warranted a further inquiry into the possibility that he had been used as a conduit for an illegal payment to Teamsters officials in violation of 29 U.S.C. § 186. Stone was unable to find the original bill for his services and testified to the grand jury that at Rosenberg's request, he supplied Rosenberg with a "copy" of the bill just a month previous to Stone's appearance before the grand jury. By the time of the February 19 and March 10, 1969 sessions, the investigation had spread to include possible bribes to union officials, extortion in interstate commerce and obstruction of justice such as obfuscation of the grand jury investigation by any persons who had been called or were about to be called as witnesses before the grand jury. Before he testified at the March 10 session, Stone was informed of this expanded inquiry; in both the February 19 and March 10 sessions, however, Stone denied having met Rosenberg after he (Stone) had been notified to appear before the grand jury. When asked at the March 10, 1969 session if he wanted to amend any of his testimony given at the February 19 session, Stone specifically denied any meeting with Rosenberg subsequent to being subpoenaed.

Stone's denials of any meeting with Rosenberg between November 7, 1968 and when Stone first appeared before the grand jury were the basis for the two counts of the indictment. The trial court found that appellant may have merely forgotten the November meeting when asked at the February 19, 1969 grand jury session, at which Stone's answers were somewhat vague, that reasonable doubt of willful falsehood existed, and acquitted Stone on the first count. However, Stone was found to have been on notice that there would be further questions at the next session at which he was to appear; Stone's positive denials at the March 10, 1969 session were found to be demonstrably and willfully untrue or false.

The essential elements of a violation of 18 U.S.C. § 1621 are the taking of an oath, in a case where a law of the United States authorizes the oath to be administered, to testify truly, and willfully and contrary to such oath making a false statement, as to a material fact and which the defendant did not believe to be true. See, e. g., United States ex rel. De La Fuente v. Swing, 146 F. Supp. 648 (S.D.Tex.1956), aff'd 239 F.2d 759 (5 Cir. 1956). Whether a meeting and conversation took place or not, was the salient fact about which the government contended Stone perjured himself. The government presented two witnesses to testify that there was a meeting between Stone and Rosenberg on November 11, 1968 around 4 p. m., thereby proving that Stone's denials to the grand jury of such a meeting were false. The question is whether this false testimony, i. e., that there was no meeting between Stone and Rosenberg after Stone had been subpoenaed to appear before the grand jury and before Stone did first appear, was false testimony as to a material fact. The government must prove the materiality of...