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UNITED STATES v. SERAFINI

April 7, 1998

UNITED STATES OF AMERICA,
v.
FRANK SERAFINI, et al., Defendants.



The opinion of the court was delivered by: VANASKIE

MEMORANDUM

 Defendant Frank Serafini has been indicted for allegedly making perjurious statements to the grand jury in violation of 18 U.S.C. § 1623. This charge is the last count in a 140-count indictment that accuses four other co-defendants of conspiring to and violating, inter alia, the Federal Election Campaign Act, 2 U.S.C. §§ 431, et seq., by, inter alia, funneling corporate funds into campaign committees of various candidates for federal elected offices. *fn1" The indictment accuses Mr. Serafini of falsely testifying to the grand jury that he was not reimbursed for a $ 1,000 contribution he made to the Dole for President Committee, and that, other than a $ 2,000 check payable to him from his nephew, Michael Serafini, he was unaware of any other check "connected to" the grand jury's investigation.

 Mr. Serafini has filed a motion to dismiss the indictment. (Dkt. Entry 46.) As the government observes, the challenge to the indictment requires separate consideration of each of the five alleged perjurious statements charged in Count 140. Because Mr. Serafini has demonstrated that the grand jury questioning in regard to his knowledge of other checks related to the alleged contribution scheme was so ambiguous and unclear as to preclude a perjury conviction, his motion to dismiss the indictment as to his knowledge of other checks will be granted. In all other respects, his motion to dismiss the indictment will be denied as he has failed to demonstrate that the indictment is fatally defective under the applicable precedents.

 Mr. Serafini has also filed a motion for a bill of particulars (Dkt. Entry 30), and a motion for misjoinder or, alternatively, for severance. (Dkt. Entry 48.) Because the indictment provides sufficient information concerning the alleged perjurious conduct, the motion for a bill of particulars will be denied. Because Mr. Serafini has demonstrated that severe prejudice will result if he is forced to defend himself in a joint trial with the other co-defendants, the motion for severance will be granted, without deciding the misjoinder issue.

 I. BACKGROUND

 On October 7, 1997, a federal grand jury in this District returned a 140-count indictment against six defendants, Renato P. Mariani, Michael L. Serafini, Leo R. Del Serra, Alan W. Stephens, Robert Giglio, and Frank Serafini. The first 134 counts essentially concern alleged illegal campaign contributions under the Federal Election Campaign Act. Counts 135 through 138 concern obstruction of justice charges leveled against defendants Michael L. Serafini and Leo R. Del Serra. Count 139 charges defendant Robert Giglio with having presented perjured testimony to the grand jury. This is the only count in which Giglio is named as a defendant. Count 140 levels the same charge against defendant Frank Serafini, who is a Pennsylvania State Representative, having been elected to represent the 114th Legislative District in Pennsylvania. Defendant Frank Serafini is named as a defendant only in Count 140. *fn2"

 As the exact nature of the alleged perjurious statements are challenged by defendant Frank Serafini's motions, they must be produced verbatim. To facilitate reference, however, this Court will number the statements so that they need not be reproduced throughout this Memorandum. *fn3" The alleged perjurious statements are as follows:

 Statement 1.

 
Q: And did you bring any documents pursuant to the subpoena that required your appearance here today?
 
A: I don't have the documents, I don't have documents with me but the subpoena, because the subpoena didn't require any. The way I read the subpoena, I, have a copy of it, all documents relative to political contributions you were reimbursed for, and I was not reimbursed for any contributions.4 (Indictment (Dkt. Entry 1) P 4, at 57.)

 Statement 2.

 
Q: Well, then why wouldn't he reimburse you for you Dole contribution under the same rationale?
 
A: Because I wanted to contribute to Bob Dole.
 
Q: And you didn't want to fix his car?
 
A: Not necessarily, would you?
 
Q: I don't know.
 
A: And $ 2,000 for a thousand dollar contribution.
 
Q: $ 2,000 for what?
 
A: $ 2,000 . . .
 
Q: What was that last statement?
 
A: $ 2,000 this check is for, if I see it correctly?
 
Q: Right.
 
A: And my check here is for a thousand dollar contribution?
 
Q: Right. So you are saying you don't know what the other thousand dollars is for?
 
A: I would not relate it to that, in my mind.
 
Q: What would you relate?
 
A: In my mind.
 
Q: What would you relate it for?
 
A: To something else, whether it was fixing his car, whether is was something else. It could be something else and that is just what I am saying to you now, because when he asked me for a thousand dollar contribution I wrote a check for a thousand dollars, I found no problem with that, I was happy to be able to do it.
 
(Indictment (Dkt. Entry 1) P 4, at 57.)

 Statement 3.

 
Q: Is there any check that you received that reimbursed you other than that $ 2,000 check for your contribution?
 
A: No.
 
Q: Is there another check that you are aware of that is connected to this investigation, to this Dole contribution, other than the $ 2,000?
 
A: Not other than what you have shown me today, no.
 
(Indictment (Dkt. Entry 1) P 4, at 57.)

 Statement 4.

 
Q: And you have no knowledge, as you sit here today, or is it accurate that as you sit here today you have no knowledge why Michael Serafini issued that check to you for $ 2,000?
 
A: I still think the $ 2,000 would have been just around the time that I was fixing his car, the transmission was gone, I was fixing it, it is just about that amount of money that would have paid for the repair. It could have been for a number of things, but it certainly does not relate to me contributing to Bob Dole. I contribute quite frequently to candidates and those kind of amounts. (Indictment (Dkt. Entry 1) P 4, at 57.)

 Statement 5.

 
Q: I am going to wrap this up. I want to make sure we are absolutely on the same page here, there is no misunderstanding. It is your testimony under oath, as you sit here today, that as far as you know, there is no connection between the check that you wrote to Dole for President dated April 27 of '95 for $ 1000, check 3781, and the check that you received from the Michael Serafini-Melinda Marcotte account dated April 25th of '95 for $ 2,000, it is your testimony that there is no connection between these two items?
 
A. In my mind I can honestly say that there is no connection between those two checks, the thousand and the two thousand. In my, I mean in my mind I know I contributed to Bob Dole because I wanted to contribute to him without reimbursement. The $ 2,000, I truly believe I cashed that check and spent it to, for another reason, I am assuming it was when I was fixing his vehicle.
 
Q. Are you drawing any distinctions when you answer that question similar to the distinctions you drew when you were interviewed by Frank Schultz [sic] regarding whether or not people were hallucinating, or were a hundred percent incorrect that you were receiving a per ton fee from Empire Landfill, are you drawing a similar kind of fine line distinction here?
 
A. Let me say this. When I am talking to Frank Schultz [sic] I am not under oath. Frank Schultz [sic] questions me and I give him an answer. There is no fine line distinctions here as there was when, as there is when I talk to Frank Schultz [sic]. Frank Schultz ...

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