five year limitations period applicable to the receipt of stolen goods. Defendant concludes that the statute of limitations as to the concealment of stolen goods had expired by December, 1984, when the defendant testified before the grand jury.
There can be no dispute that, at some point, the goods may lose their interstate nexus. United States v. Thies, 569 F.2d 1268, 1272 (3d Cir. 1978). But the point at which this occurs cannot be determined by reference to a calendar. Rather, it must be determined by looking at the facts of a particular case to determine whether the goods have reached their final resting place, or have simply paused at one juncture in a scheme of interstate transportation of stolen property. Thies, 569 F.2d at 1273. See United States v. Luman, 624 F.2d 152, 155 (10th Cir. 1980); McNally v. Hill, 69 F.2d 38, 40 (3d Cir. 1934).
Since the application of the statute of limitations, and the loss of the interstate nexus, involve questions of fact, the grand jury could not have determined whether a prosecutable crime had been committed until it had completed its investigation. There was a reasonable possibility that such a crime had been committed by some or all of the Phillips brothers, and that the statute of limitations had not run.
Therefore, the ultimate question is whether the grand jury was, at the time of defendant's testimony before it, investigating the continued possession or concealment of stolen goods or their transportation out of Pennsylvania. If the only matter being considered by the grand jury was the receipt of stolen goods in the 1970's, crimes on which the statute of limitations had clearly run, then the questions posed to the defendant were not material to a legitimate grand jury investigation. If, however, the scope of the grand jury's investigation included the concealment and resale of those goods and sought to determine when, if ever, that had occurred, then the questions posed to the defendant were material to a legitimate investigation.
I have carefully examined the grand jury transcripts in their entirety, with particular attention to the transcript of defendant's testimony on December 12, 1984 and to the transcript of Agent Richter's testimony on October 8, 1986. The transcripts support the government's description of the scope of the investigation.
Defendant was advised on December 12, 1984 that the grand jury was investigating "interstate theft offenses, more particularly items that have been shipped in interstate commerce after they've been stolen." (Tr. Dec. 12, 1984 at 2). This description is certainly broad enough to include concealment of goods or transportation of goods out of Pennsylvania. Defendant was also asked about his brother's activity in selling antiques. (Id. at 15). He was asked about the storage of antiques on his property. (Id. at 35). Most importantly, he was asked about his brother, Joe Phillips, in New York City. (Id. at 17-18).
These questions would have been pointless unless the investigation had, from the outset, included the concealment of stolen goods and their subsequent transportation out of the Commonwealth.
Agent David Richter testified before the indicting grand jury on October 8, 1986. Under oath, he confirmed the accuracy of the Assistant U.S. Attorney's statement that one of the purposes of the investigation "has been to see if there were any stolen goods still with Harry or Sam or had been with them at any point within the past five years such as we would have regular jurisdiction over receiving goods which had been transported in interstate commerce." (Tr. Oct. 8, 1986 at 5-6). He also confirmed that "a second focus of the investigation was to see if there are any stolen goods which went from any of the Phillips Brothers to their fourth brother Joe in New York City." (Id. at 7). I have no reason to question the credibility of Agent Richter, who testified in the hearing before me on August 17, 1987 and was subject to cross examination by the defendant at that time.
The mere fact that the grand jury's investigation did not reveal any crimes committed within the statute of limitations is not dispositive. Not every grand jury investigation results in an indictment. The grand jury seeks to determine the truth; it exists to investigate possible crimes and to protect the innocent from indictment.
A question asked of a grand jury witness is material if it "is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. . . . It is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, that the response was believed by the grand jury to be perjurious at the time it was uttered, or that the matters inquired into were collateral to the principal objective of the grand jury." United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 66 L. Ed. 2d 293, 101 S. Ct. 534 (1980). Even where the statute of limitations on underlying crimes has run, if truthful answers could have led to a more fruitful investigation of the broader subject matter of the grand jury's inquiry, the perjurious testimony is material. United States v. Devitt, 499 F.2d 135, 140 (7th Cir. 1974), cert. denied, 421 U.S. 975, 44 L. Ed. 2d 466, 95 S. Ct. 1974 (1975).
The questions asked of Harry Phillips were material to the grand jury's investigation. His denial of any acquaintance with the persons in question hindered the investigation into his dealings with those persons and, if he purchased stolen goods from them, the later history of those goods.
Finally, defendant makes much of the fact that the original indictment alleged that the investigation concerned the receipt and possession of stolen goods, while the superceding indictment alleges that the investigation concerned the receipt and concealment of such goods. Defendant points out that the word "possession" was not contained in the statute at the time of the defendant's testimony in 1984. Defendant contends that the grand jury may well have made its decision as to the element of materiality based on the use of the word "possession" rather than "concealment," and that this constituted interference with the grand jury's ability to exercise its independent judgment.
The superceding indictment was presented to the grand jury on March 4, 1987. The transcript of the Assistant U.S. Attorney's comments reveals that he was careful to make clear to the grand jurors that one of the changes in the indictment was the use of the word "concealing." The Assistant U.S. Attorney explained:
to conceal means to do any act intended to prevent discovery or identification of the stolen item by its true owner. Mere possession is not enough. Concealing does not require an actual hiding or secreting of the property. But once again, any acts which render its discovery difficult constitutes concealing.
(Tr. Mar. 4, 1987 at 5).
The Assistant U.S. Attorney then explained to the grand jurors that, because of the limited time available on their last day of service, he would not ask the jurors to review the transcripts of the testimony which they had considered five months earlier. But he cautioned them that if any juror did not feel able to recollect the facts of the case, they should not consider the superceding indictment, and the matter would be presented to another grand jury at a later date. (Id. at 6-7). The Assistant U.S. Attorney then left the room to allow the grand jury to deliberate on the question of whether they felt able to vote on the superceding indictment. Following deliberations, the foreman reported that "we discussed the matter and the Jury feels comfortable voting on the superceding indictment." (Id. at 7).
The grand jury clearly felt able to recall the investigation and to exercise its independent judgment in this matter. Since the grand jury specifically took the time to consider this question, I decline to substitute my judgment for their own.
For all of these reasons, the defendant's motion to dismiss the indictment or, in the alternative, to suppress defendant's grand jury testimony will be denied. Appropriate orders are attached.
Upon consideration of defendant's motion to dismiss the indictment or, in the alternative, to suppress defendant's grand jury testimony, government's response and supplemental response, defendant's reply, the transcripts of the grand jury proceedings submitted by the government, the evidence adduced at the hearing on August 17, 1987, and the arguments of counsel at that hearing, and for the reasons stated in the attached memorandum, IT IS ORDERED that the motion to dismiss the indictment or suppress grand jury testimony is DENIED.
IT IS SO ORDERED.
Upon consideration of defendant's motion to suppress identification testimony, the government's response, the evidence adduced at the hearing held on August 17, 1987, and the comments of counsel at that hearing, and for the reasons stated in the attached memorandum, IT IS ORDERED that the motion to suppress identification testimony is DENIED.
IT IS SO ORDERED.