Appeal from the United States District Court for the Western District of Pennsylvania - Pittsburgh (D.C. Crim. No. 84-00019).
Gibbons and Higginbotham, Circuit Judges and Newcomer, District Judge*fn* .
Elmer Jonnet appeals from a judgment of sentence imposed following his conviction of three counts of false testimony under oath. 18 U.S.C. § 1623 (1982), arising from his testimony in a deposition for a civil action to which he was a party. The trial court denied his motion for a new trial. Both the trial court and this court denied bail pending appeal. We hold that Jonnet is entitled to a new trial, and thus reverse.
Jonnet, a real estate developer who owns Jonnet Development Corporation, negotiated with Consolidated Rail Corporation (Conrail) in 1979 for the purchase of Conrail's Pittsburgh Pennsylvania Station. On January 8, 1980, Jonnet and Kenneth Williams, on behalf of Conrail, signed an agreement of sale to Jonnet Development Corporation for $2.1 million. Jonnet paid a $100,000 deposit. The January 8, 1980 agreement was expressly contingent on approval by Conrail's senior management and Board of Directors. On May 8, 1980 Conrail's senior management rejected the contract. Thereafter Conrail solicited bids. The bid solicitation letter required that bids be submitted by noon on July 1, 1980, and it reserved the right to reject any and all bids at Conrail's sole discretion.
Jonnet told Conrail officials that, because Conrail had held his deposit for months, and because he had expended time and money developing plans for his building project, he should be permitted to meet the best bid submitted. About noon on July 1, 1980, Jonnet arrived at Conrail's office and met with Kenneth Williams. Williams had already opened other bids, and Jonnet asked him what amount others had bid. At that point, the events occurred which eventually resulted in Jonnet's indictment for perjury.
According to Jonnet, he told Williams that Williams' superior, John Jaeger, said he could have the bid information. Williams called Jaeger, apparently to confirm this, and with Jaeger on the phone, turned to Jonnet and said, "It takes $2,500,000 to buy it." Jonnet agreed to buy the property for $2,500,000, and Williams told Jaeger, "we just sold the building to Jonnet for $2,500,000." Jonnet, Williams and a Conrail employee, Hindman, then went into a conference room, and Williams began to fill in the first page of a typewritten agreement with handwritten inserts. Hindman took the first page, containing the handwritten inserts, to another room and returned fifteen minutes later with a first page containing typewritten inserts. Jonnet, meanwhile, was going through the remainder of the contract with Williams. He crossed out a provision on page 6 that made the contract contingent on the approval of the Conrail Board of Directors.
Williams' testimony conflicted with Jonnet's. Williams agreed that Jonnet came to the Conrail office on July 1, 1980, and that a contract form was filled out calling for a purchase by Jonnet at a price of $2.5 million, but contends that the provision making the contract contingent on approval by the Conrail Board of Directors was not stricken, and that the contract called for an increase in the down payment at the time of Board approval.
Jonnet proceeded with the preparation of plans for construction at the site. In August of 1980, however, the Urban Redevelopment Authority (URA) of the City of Pittsburgh offered Conrail $2.75 million for the property. In September of 1980, Jaeger of Conrail told Jonnet that Conrail had agreed to sell to URA. He refused Jonnet's offer to increase the purchase price to $2.8 million.
Late in 1980, Jonnet Development Corporation brought suit in the Court of Common Pleas of Allegheny County against Conrail for specific performance of the July 1, 1980 contract. Several months later, Jonnet Development Corporation brought suit in the United States District Court for the Western District of Pennsylvania against Conrail, URA, and several business organizations allied with URA, charging that they had conspired, in violation of the federal antitrust laws, to deprive the plaintiff of the Penn Station development opportunity.
In connection with the federal court antitrust action Jonnet was deposed on three separate occasions. On May 19, 1981, he testified that the agreement he signed on July 1, 1980 provided for a $25,000 down payment, and did not include an addition $75,000 payment on approval of the Board of Directors. On May 22, he testified that he crossed out the paragraph making the contract contingent on approval by the Conrail Board of Directors on all copies while at the Conrail Office. He also testified that the typewritten inserts on the contract which he authenticated during the deposition were made before he left the Conrail office. These three items of testimony are the basis of the three-count indictment charging that Jonnet made false statements under oath in violation of 18 U.S.C. § 1623 (1982).
During the trial the government produced testimony from Conrail witnesses supporting its version of the events of July 1, 1980, and its version of the July 1, 1980 contract. The government also produced the testimony of the court reporter who transcribed Jonnet's deposition testimony. The reporter testified that Jonnet was sworn, and had testified as set forth in the deposition transcripts. The reporter also testified that there were several transcription errors, which were identified, but that the transcripts were otherwise accurate. In fact, however, there was an additional transcription error, to which more particular reference will be made later. Moreover, the court reporter had called this additional error to the attention of the Federal Bureau of Investigation well in advance of the trial and reference to it was included in an FBI report. For reasons which do not appear of record, this additional transcription error was not called to the attention of Jonnet's attorneys before or during the trial. The deposition transcripts were marked in evidence, but the court, on the objection ...