APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 72-192).
Adams, Hunter and Weis, Circuit Judges.
The issues raised by the appellant in this criminal appeal are not sufficient to require reversal, but a point not presented by the parties give us some concern.
The defendant, Herman Lardieri, was convicted of a violation of 18 U.S.C. § 1623 (1970) for giving false testimony before a grand jury. While he was originally indicted on three counts, the petit jury found him guilty on only one charge -- that of denying that he signed certain checks.
The grand jury was investigating possible income tax violations by one Sorrentino who had a financial interest in a small restaurant in Altoona, Pennsylvania. Apparently, Sorrentino lived in New York and since he spent little time in Altoona, made arrangements for Lardieri to look after the restaurant business there. The extent to which the defendant participated in the enterprise is a matter of dispute, but he was authorized to write checks on the restaurant account to meet payroll expenses.*fn1
While being questioned before the grand jury by the government attorney, the defendant admitted that he had "made out" checks for payroll purposes for Sorrentino's restaurant but denied several times that he had signed them. He professed not to remember whose signatures were on the checks and claimed to have little knowledge of Sorrentino's activities. The interrogation became heated with both the attorney and the witness shouting at each other. When Lardieri complained that he had been told he would be there for only an hour, the prosecutor retorted, "I will keep you here all day."*fn2
At one point the prosecutor asked if the defendant knew what perjury was, and Lardieri responded, "You have to tell the truth and if you don't tell the truth, you wind up in jail." To this the government attorney added, "And there is a $10,000 fine as well."*fn3
Later, in referring to a statement which Lardieri had given to the Internal Revenue agents a year previously, the prosecutor stated, "See, we have records of what you said." Lardieri acknowledged that, and the attorney continued, "You know that is basis for perjury, you know that?"
At another point, the defendant was told that he had not been truthful, and the prosecutor said, "I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony. . . . Is there anything that you have said in here today that you would like to modify or change?" To this the defendant replied, "No, just put down what I said. Why don't you ask me the same question you asked me a little while ago in front of these people or don't you remember? You asked me if I always work for nothing."
At the trial defendant admitted, as he had years earlier in the statement to the IRS, that he in fact had signed the checks. He contended that he had made the false statements before the grand jury because he was tired after not having slept for 36 hours, lost his temper, did not know what he was doing, and was not in the right frame of mind.
The defendant contends that the trial court erred in finding that the statements were material and in failing to charge on the elements of willfulness. He also points to allegedly prejudicial remarks in the government's closing argument as a third ground for reversal. After consideration of these contentions, we conclude that they do not constitute grounds for reversal.*fn4
Lardieri concedes that his statement regarding his signature on checks for the restaurant was false but argues that it was immaterial because it did not hinder the grand jury's investigation into Sorrentino's tax liability. 18 U.S.C. § 1623 provides that a sworn witness who "knowingly makes any false material statement" before a court or ...