The opinion of the court was delivered by: BRODERICK
Presently before the Court are the post-trial motions of the defendant, Edward Pearce, for a judgment of acquittal and/or for a new trial. On February 24, 1977, the jury returned a verdict of guilty on the one count indictment which charged the defendant with making a false declaration before a federal grand jury in violation of 18 U.S.C. § 1623. After carefully considering all of the grounds raised in defendant's motions, the Court has determined that defendant's motions must be denied.
Sufficiency of the Evidence
The defendant contends that the Court erred in denying his motion for a judgment of acquittal made during the trial and contends further that there is insufficient evidence to support the verdict. The evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), is more than sufficient to support the jury verdict. We summarize it as follows:
Raymond McElhenny, a detective with the New Jersey State Police, testified that on January 14, 1976 at 12:30 a.m., he interviewed the defendant in connection with an investigation of the homicide of Michael Iconelli. (N.T. 2-39, 2-41). During this interview, which was attended by Detective Frames for the Prosecutor's Office of Gloucester County, Detective McElhenny informed defendant that he was investigating Iconelli's death and advised him of his constitutional rights. (N.T. 2-40). The defendant stated that he was a good friend of Iconelli's, that Iconelli was friendly with a Mr. Vallone, and that he had no information concerning Iconelli's death. (N.T. 2-40 -- 41). Detective McElhenny interviewed defendant again at 11:45 a.m. on the same day. (N.T. 2-41). He again told the defendant that he was investigating Iconelli's death and advised him of his constitutional rights. (N.T. 2-41, 51). Detective McElhenny testified that: "Mr. Pearce told me that he and Mr. Vallone had had a conversation and Mr. Vallone told him, Mr. Pearce, that he, meaning Mr. Vallone, had blown Mike away with his own sawed-off shotgun, just the way he wanted to go." (N.T. 2-42). Detective McElhenny took notes during this interview (N.T. 2-43) and his notes, which are in evidence, appear consistent with his testimony. At this interview the defendant told Detective McElhenny that he would not so testify in court because he was afraid of Vallone. (N.T. 2-47 -- 48). Detective McElhenny testified that as the investigator on the Iconelli case, he never disclosed to anyone that a shotgun had been used. (N.T. 2-47).
Detective Frames, who had been present at the beginning of Detective McElhenny's second interview with the defendant (N.T. 2-102), testified that he had left the room and when he returned Detective McElhenny requested the defendant to repeat a statement which the defendant had made. (N.T. 2-102 -- 103). The defendant then stated in the presence of Frames "that Joe Vallone had told [the defendant] that Mike was killed or died the way he wanted to go, that he was killed with his own shotgun." (N.T. 2-103). Detective Frames did not take notes during this interview. (N.T. 2-103).
The parties stipulated that the federal grand jury before which the defendant appeared was duly impaneled and that the transcript of the defendant's appearance before said grand jury on August 18, 1976 was accurate and complete. (N.T. 2-26). Charles Hargens, the foreman of the grand jury, testified that he administered the oath to the defendant. (N.T. 2-96 -- 97). The grand jury transcript contains the following testimony of the defendant:
Q Now then, did you ever tell Detective McElhenny that Joseph Vallone had told you that Mike was killed by Vallone?
A No, I most certainly did not.
Q You never told Detective McElhenny that at all?
A No. If I did that, I'd be accusing somebody of murder, right?
Q Did you ever say words to the effect that Mike, to Detective McElhenny back in January of '76, that, "Mike was killed by me just the way he wanted to go with his own sawed off shotgun." Me, meaning Joe Vallone ...