ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Criminal No. 72-192. Reargued before the original panel September 13, 1974.
Adams, Hunter and Weis, Circuit Judges. Weis, Circuit Judge, dissenting.
Opinion OF THE COURT ADAMS, Circuit Judge:
The issue posed by the petition for rehearing before the panel in this matter is whether an indictment for perjury allegedly committed during the course of testimony before a grand jury may be dismissed because of the failure by the prosecutor to inform the witness of the recantation provision of § 1623.*fn1
The events leading to Herman Lardieri's perjury conviction occurred during an investigation of the tax affairs of Louis Sorrentino. Lardieri performed some managerial functions at Steurer's Restaurant in Altoona, which was owned from July, 1967 to July, 1969 by Sorrentino, a New York City resident. The connection between Lardieri's activities and the financial interests of Sorrentino prompted the government to seek information from Lardieri. Agent Dye of the Internal Revenue Service accordingly interviewed Lardieri in June of 1971. During the interview, Agent Dye questioned Lardieri with respect to the execution of checks drawn on the restaurant's account. Lardieri stated to Agent Dye that he did sign some of the restaurant's checks.
On April 10, 1972, Lardieri was subpoenaed to testify before a special grand jury. The subpoena was served on Lardieri the day before he was to appear.
At the grand jury proceeding, Lardieri was examined on the procedures by which the restaurant's checks were made out and signed. He testified that he "never signed a check as long as the place [Steurer's Restaurant] was there." The prosecutor, apparently recognizing an inconsistency between Lardieri's statements to Agent Dye and his grand jury testimony, engaged with Lardieri in the following exchange:
Q. Did you sign a bank signature card at that time. At the bank?
Q. Mr. Lardieri, do you know what perjury is?
Q. Do you know what perjury is?
A. I don't know what perjury is.
Q. You have no idea what perjury is?
A. You have to tell the truth and if you don't tell the truth, you wind up in jail.
Q. And there is also a $10,000 fine as well. Now, with that in mind, I will ask you again: did you participate in any way in the opening of the account for ...