The opinion of the court was delivered by: WEBER
Defendant was previously convicted for extortion under the Hobbs Act on a charge that he, as a state senator, extorted funds under color of office from persons leasing property to the state. The defense was that these funds were voluntary contributions to a political fund, D.C., 390 F. Supp. 1098, aff'd 521 F.2d 639.
Defendant, after conviction, was called before a grand jury to testify under a grant of immunity. His testimony before the grand jury produced the present indictment for perjury.
Defendant moves to dismiss this indictment on the grounds that the defendant's statements are not literally untruthful because the prosecutor's questions were not sufficiently precise; and, that defendant's explanatory statement, given at a later time, of his interpretation of the government's questions, bars prosecution under 18 U.S.C. § 1623(d).
We cannot accept as logical or reasonable the argument that because defendant was asked during the questioning whether "it" was $11,300 or $299, the reference to "it" transferred from "that money" to the sum of money described and not the specific currency. In the question "Was it $11,300.00 or $299?" the word "it" still refers to "that money" and the later use of "it" still refers to "that money" and not to a specific sum of money.
We do agree that the specific question and answer contained subsequently on page 25, beginning at line 17, might be so argued if taken alone:
17 Q. No let me understand: From July, 1973, which is the date indicated that you received the money, until the present day, $11,300.00 in cash has been in your closet?
A. At 14 Mt. Oliver Street, right.
This may not be untruthful, but it does not alter the conclusion drawn from the preceding two pages of testimony, that there is no sufficient ambiguity in the question to withdraw the evidence from the consideration of the jury. We do not believe that any of the simple terms used here were so cryptic as to prevent a meeting of the minds. United States v. Ceccerelli, 350 F. Supp. 475 (W.D.Pa. 1972).
We find a clear distinction between this situation and that in Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568 (1973) where the tense of the verb used was material. Although the defendant there did have a prior account in a Swiss bank, at the time he gave his answer he had none. The answer to the question posed was literally true. To a more specific question, he gave a non-responsive answer, true but misleading. This was insufficient to sustain an indictment to perjury. The conclusion of the court was that it was not a criminal act to state any matter that implies an answer that he does not believe to be true. Similarly, the dissenting opinion of Judge Ely in United States v. Cook, 497 F.2d 753 (9th Cir. 1972) points out that the question was asked in the present tense, and this precluded any proof of knowledge of prior events to show perjury.
In the present case, there is no difficulty of tense or misplaced modifications that could lead to ambiguity. We find the questions asked to be simple, direct and unequivocal, precluding our dismissal of the indictment as insufficient. It is a question for the jury.
As to the application of Subsection (d) of Sec. 1623, we find on the basis of the matters of events admitted at the argument that the defendant's attempt to explain his understanding of the questions is no bar to the prosecution. Defendant was questioned on April 23, 1975. Following this appearance before the grand jury, defendant's counsel was advised by the U.S. Attorney that he considered defendant's answers to be untrue and would seek an ...