United States v. Serafini

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

2-10-1999

USA v. Serafini

Precedential or Non-Precedential:

Docket 98-7250

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Filed February 10, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-7250

UNITED STATES OF AMERICA,

Appellant

v.

FRANK SERAFINI

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. No. 97-cr-00225-6

District Judge: Hon. Thomas I. Vanaskie

Argued October 6, 1998

BEFORE: SLOVITER AND COWEN, Circuit Judges

and POLLAK, District Judge*

(Filed: February 10, 1999)

Bruce Brandler (argued)

Office of United States Attorney

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Attorney for Appellant

_________________________________________________________________

* Honorable Louis H. Pollak, United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

Sal Cognetti, Jr. (argued)

Foley, Cognetti & Cowley

507 Linden Street

Scranton Electric Building

Scranton, PA 18503-1666

Daniel T. Brier

Myers, Brier & Kelly

108 North Washington Avenue

Suite 700

Scranton, PA 18503

Attorneys for Appellee

OPINION OF THE COURT

POLLAK, District Judge.

This is an appeal by the government from an order of the

District Court for the Middle District of Pennsylvania

granting in part, and denying in greater part, a motion to

dismiss the one count of a 140-count indictment which

pertains to defendant-appellee Frank Serafini. The count in

question charges Serafini with six allegedly false statements

to a grand jury.1 The motion to dismiss challenged all six

charges. The District Court sustained five of the charges

but dismissed one. Dismissal of one of the charges was

required, so the District Court concluded, because, in the

court's view, the question that prompted the allegedly false

answer could not support an allegation that the defendant

had made a "false material declaration" before the grand

jury in violation of 18 U.S.C. S 1623(a).2 On this appeal, in

_________________________________________________________________

1. The charging indictment lists six allegedly false statements. However,

the District Court's memorandum opinion consolidates two of those

statements, apparently as a single basis of liability. United States v.

Serafini, 7 F.Supp.2d 529, 536 (M.D. Pa. 1998).

2. 18 U.S.C. S 1623(a) provides that "[w]hoever under oath . . . in any

proceeding before or ancillary to any court or grand jury of the United

States knowingly makes any false material declaration . . . shall be fined

under this title or imprisoned not more than five years, or both." The

essentially equivalent crime of "perjury" -- "stat[ing] or subscrib[ing]

any

2

addition to addressing the substantive issue -- whether the

District Court rightly dismissed the contested portion of

perjury count 140 -- the parties, at this court's request,

have also briefed the question whether, as the defendant

contends, the government's appeal should be dismissed for

want of appellate jurisdiction.

I

This prosecution stems from allegedly illegal campaign

contributions by Empire Sanitary Landfill (Empire), various

of its officers and employees, and persons associated with

those officers and employees. Michael Serafini, defendant

Frank Serafini's nephew and an officer of Empire, is alleged

to have funneled Empire funds to various individuals as

reimbursements, in contravention of the federal election

laws, for contributions ostensibly made by those individuals

to Robert Dole's 1996 presidential election campaign. Frank

Serafini, a Pennsylvania state legislator during the period in

question, is thought by the government to have received

some of the Empire money, to have kept a portion of it as

a reimbursement for his own contribution to the Dole

campaign, and to have passed the balance on to his

legislative aide, Thomas Harrison, as a reimbursement for

a contribution made by Harrison.

_________________________________________________________________

material matter [one] does not believe to be true" after "having taken an

oath before a competent tribunal, officer or person, in any case in which

a law of the United States authorizes an oath to be administered, that

[one] will testify, declare, depose, or certify truly" -- is defined in 18

U.S.C. S 1621. As this opinion reflects, the case law treats "false

material

declaration" and "perjury" interchangeably. See United States v. Lighte,

782 F.2d 367, 372 (2d Cir. 1986) ("In the discussion that follows we

analyze the general rules that courts apply to the language of S 1623 --

treated the same as perjury under S 1621 -- and then consider the

defenses to perjury advanced by appellant in this case.").

A close kin to SS 1621 and 1623 is 18 U.S.C.S 1001, which imposes

criminal liability on any person who, "in any matter within the

jurisdiction of the executive, legislative, or judicial branch of the

Government of the United States, knowingly and willfully ... makes any

materially false, fictitious, or fraudulent statement or representation."

See Brogan v. United States, 118 S.Ct. 805 (1998).

3

When Frank Serafini initially appeared before the grand

jury investigating these matters, he invoked his Fifth

Amendment rights. The government then immunized him

against prosecution. See In re Grand Jury, Misc. No. 95-98

(M.D.Pa. Apr. 29, 1997) (order compelling appearance and

granting immunity except for "perjury, giving false

statement, contempt" or otherwise failing to comply with

the District Court's order.). The defendant was then recalled

before the grand jury and testified. Some months later, the

grand jury handed down a 140-count indictment, charging

Michael and Frank Serafini, as well as four others, with a

multiplicity of offenses. Count 140, the only count

containing charges against Frank Serafini, alleged that he

had committed six3 separate instances of false material

declaration while testifying. On Serafini's motion to dismiss

count 140, the District Court found five of the six charged

instances to be unproblematic but concluded that one

question was so framed that the answer could not support

a false declaration charge. Accordingly, the District Court,

while sustaining the bulk of count 140, dismissed the sub-

portion of that count that deals with Serafini's answer to

the faulty question. The government thereupon filed this

interlocutory appeal from the District Court's dismissal of

the sub-portion of count 140.

II

We are met at the outset by the defendant's contention

that we lack appellate jurisdiction.

The government, as appellant, invokes this court's

jurisdiction pursuant to the Criminal Appeals Act of 1970,

as amended. That statute provides, in pertinent part:

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or

information or granting a new trial after verdict or

judgment, as to any one or more counts, except that no

appeal shall lie where the double jeopardy clause of the

United States Constitution prohibits further

prosecution.

_________________________________________________________________

3. See supra note 1.

4

**

The provisions of this section shall be liberally

construed to effectuate its purpose.

18 U.S.C. S 3731.

In the instant case, as noted above, the District Court

struck one portion of the single count of the indictment

pertaining to Frank Serafini. Serafini points out that S 3731

authorizes appellate review of a district court order

"dismissing an indictment . . . as to any one or more counts

. . . ." Since the interlocutory order challenged by the

government dealt with only a part of one count, leaving the

balance of the count in place, Serafini contends that we

have no authority to review the District Court's ruling.

However, this court has held that the dismissal of a portion

of a count of an indictment is sufficient to establish

appellate jurisdiction under S 3731 if the dismissed portion

of the count constitutes an independent ground of criminal

liability. United States v. Conley, 37 F.3d 970, 975 (3d Cir.

1994). Our holding was expressly based upon the

authoritative construction of S 3731 announced by the

Supreme Court in Sanabria v. United States, 437 U.S. 54,

69 n.23 (1978). There, speaking through Justice Marshall,

a five-Justice majority stated:

We agree with the Court of Appeals . . . that there is

no statutory barrier to an appeal from an order

dismissing only a portion of a count. One express

purpose of 18 U.S.C. S 2731 (1976 ed.) is to permit

appeals from orders dismissing indictments "as to any

one or more counts." A "count" is the usual

organizational submit of an indictment, and it would

therefore appear that Congress intended to authorize

appeals from any order dismissing an indictment in

whole or in part. Congress could hardly have meant

appealability to depend on the initial decision of a

prosecutor to charge in one count what could also have

been charged in two, a decision frequently fortuitous

for purposes of the interests served in S 3731. To so

rule would import an empty formalism into a statute

expressly designed to eliminate "[t]echnical distinctions

in pleadings as limitations on appeals by the United

5

States." H.R. Conf. Rep. No. 91-1768, p. 21 (1970);

accord, S. Rep. No. 91-1296, p. 5 (1970).

In so ruling, the Court in Sanabria rejected the narrower

reading of S 3731 -- namely that the statute by its terms

simply authorizes appellate review of an order dismissing

"one or more counts," thereby precluding appellate review

of an order dismissing only a portion of one count-- urged

by Justice Stevens in a concurring opinion.4 To be sure, the

Tenth Circuit, in United States v. Louisiana Pacific Corp.,

106 F.3d 345 (10th Cir. 1997), has declined to follow the

Sanabria majority's pronouncement with respect to S 3731:

that pronouncement was, according to the Tenth Circuit,

"dictum," id. at 349, and not as persuasive as Justice

Stevens's reading of the statute.5 But the Tenth Circuit's

decision in Louisiana Pacific stands alone. The other circuit

courts that have addressed the issue have been guided by

the Sanabria majority.6 Moreover, the Seventh Circuit,

_________________________________________________________________

4. Justice Stevens argued that "[t]he statute does not refer to subunits

of

an indictment or portions of a count but only to counts, a well-known

and unambiguous term of art." 437 U.S. at 78. (Stevens, J., concurring)

(internal quotations, brackets and citations omitted).

Justice Stevens spoke only for himself. Three members of the Court --

Justice White, who concurred, and Justice Blackmun and Justice (as he

then was) Rehnquist, who dissented, did not undertake to parse S 3731.

But, since none of the three Justices expressed reservations with respect

to the jurisdiction of the First Circuit, whose decision the Court was

reviewing, it would appear that all three, sub silentio, subscribed to the

construction of S 3731 announced by Justice Marshall for the Court.

5. Following Justice Stevens's view that "count" is "a well-known and

unambiguous term of art," the Tenth Circuit reasoned that "the language

of S 3731 is unambiguous in referring to a count, and the statute's

purpose to eliminate technical distinctions in pleadings does not give us

license to ignore the section's plain language." Louisiana Pacific, 106

F.3d at 349. Nor, the court opined, could the provision of S 3731

directing that the statute be "liberally construed" mandate an

interpretation "fundamentally inconsistent with its plain language." Id.

(citations omitted). The Tenth Circuit thus concluded that "[i]t is not

mere formalism, nor an irrational result, to require the government to

plead allegations in separate counts, a minimal burden, in order to

preserve its right to take an interlocutory appeal of the dismissal of

such

counts." Id.

6. See United States v. Oakar, 111 F.3d 146, 149-150 (D.C. Cir. 1997);

United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United

6

which has had occasion to construe S 3731 subsequent to

Louisiana Pacific, has expressly taken issue with the Tenth

Circuit's analysis. Said the Seventh Circuit, speaking

through Judge Easterbrook, in United States v. Bloom, 149

F.3d 649, 653 (7th Cir. 1998), "Sanabria's treatment of

S 3731 was not dictum. It was no stray remark or aside. It

explains the Court's rationale and thus is part of the

holding." We agree.7

_________________________________________________________________

States v. Levasseur, 846 F.2d 786, 788 (1st Cir. 1988), cert. denied 488

U.S. 894 (1988); United States v. Martin, 733 F.2d 1309, 1310 (8th Cir.

1984)(en banc), cert. denied sub nom. Eklund v. United States, 471 U.S.

1003 (1985); United States v. Marubeni America Corp., 611 F.2d 763,

764-765 (9th Cir. 1980); United States v. Albertini, 568 F.2d 617, 621 (2d

Cir. 1977). The position of the Fifth Circuit is not entirely clear.

Compare

United States v. Woolard, 981 F.2d 756, 757 (5th Cir.), reh'g denied, 990

F.2d 819 (5th Cir. 1993), with United States v. Terry, 5 F.3d 874, 876

(5th Cir. 1993).

7. Judge Easterbrook's explication of the integral role which the Sanabria

Court's characterization of S 3731 played in its decision warrants

quotation (149 F.3d at 653):

The district court dismissed one theory of liability in an

indictment;

the prosecutor appealed; both the court of appeals and the Supreme

Court concluded that S 3731 authorizes such an appeal if further

prosecution would not be barred by the double jeopardy clause.

Disagreeing with the court of appeals, the Supreme Court held that

the double jeopardy clause did bar retrial. It was this additional

conclusion that led the tenth circuit to call its treatment of S

3731

dictum. But the Court reached the double jeopardy question only

because its reading of S 3731 made it dispositive. Had the majority

agreed with Justice Stevens about the meaning ofS 3731, it would

have done as he urged: it would have ordered the appeal dismissed

without turning to the Constitution. Longstanding practice calls

for

federal judges to explore all non-constitutional grounds of

decision

before addressing constitutional ones -- and especially to decide

first whether any statute confers jurisdiction. See [United States

v.

Wilson, 420 U.S. 332, 336 (1975)]. See also Steel Co. v. Citizens

for

a Better Environment, ___ U.S. ___, 118 S.Ct. 1012-16, 140 L.Ed.2d

210 (1998). That is what the Court did in Sanabria. It would make

little sense to treat this wise effort to avoid constitutional

issues as

an affront to Article III of the Constitution -- that is, as

producing

only advisory opinions on the statutory issues....

7

What S 3731, as confirmed by Sanabria , contemplates is

appellate review of a trial court order excising a portion of

a count which, if not excised, would offer legal grounding

for criminal culpability separate from whatever culpability

might accrue from any portion or portions of the count that

the trial court does not determine to be deficient as a

matter of law.8 In the case at bar, the portion of count 140

excised by the District Court alleged the making by Frank

Serafini of a false material declaration separate from the

other false material declarations alleged against Frank

Serafini by count 140 -- allegations which the District

Court held to be properly cognizable as a matter of law.

Given the separateness of the excised portion of count 140,

we have appellate jurisdiction to review the District Court's

excision order.

III

A. Serafini's Testimony

Turning to the substance of the government's appeal, we

begin by laying out, in some detail, the relevant portions of

Frank Serafini's testimony during his second appearance

before the grand jury. That testimony began with various

foundational matters, S. App. at 18-21, which included a

denial by Serafini of being reimbursed for any political

contributions.9 The questioning then turned to Serafini's

_________________________________________________________________

8. Some circuit courts have employed the phrase"discrete basis for the

imposition of criminal liability" to describe the separateness of the

excised and non-excised portions of a count that is necessary to support

appellate jurisdiction under S 3731. See Bloom, 149 F.3d at 653, and

Oakar, supra, note 6, 111 F.3d at 149-50. While recognizing that the

"discrete basis" formulation has appeared to be a serviceable shorthand

in certain of the reported cases, we are not at this time fully persuaded

that it adequately captures the many nuances thatS 3731 is likely to

present. But this semantic question need not detain us in the case at

bar: if it is assumed that "discrete basis" is a sufficiently capacious

form

of words, the case at bar fits comfortably within it. Cf. Bloom, 149 F.3d

at 653-54.

9.

Q. And did you bring any documents pursuant to the subpoena

that required your appearance here today?

8

relationship with Empire. S. App. at 22-44. Next,

government counsel inquired about the contribution

Serafini had made to the Dole campaign, including a

question about Serafini's motive for contributing. 10 Counsel

also asked whether Michael Serafini (Frank's nephew) had

solicited the contribution and whether any others at Empire

had solicited contributions from the defendant. S. App. at

47-50. Counsel next attempted to determine when and how

Frank Serafini became aware of similar contributions to the

Dole campaign by other members of the Serafini family.

_________________________________________________________________

A. I don't have the documents, I don't have the 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.

S. App. at 22-23.

10.

Q. Now, when we started out you talked to me about documents,

that you didn't produce any because you weren't reimbursed for any

contributions, that was your testimony. I want to show you two

documents here and see if you can identify them. I am going to

mark, the first one I will mark as 267 and the second one I will

mark as 268. First let's start with 267. Can you identify that

document?

A. That's a check to the Dole for President Campaign.

Q. And whose signature is on that check?

A. Mine.

***

Q. What prompted you on that occasion to contribute to Dole's

campaign?

A. Well, prior to this I had also, this, my nephew asked me for

this

check, for this particular check.

Q. Michael Serafini?

A. Right.

S. App. at 44-45.

9

At this point, counsel focused his questions on a $2,000

check from Michael Serafini11 to Frank Serafini, inquiring

whether that $2,000 check was a reimbursement for Frank

Serafini's campaign contribution.12 When the defendant

_________________________________________________________________

11. The check in question was drawn on the account of Michael Serafini

and Melinda Marcotte. However, for the sake of convenience it will be

referred to as a check from Michael Serafini.

12.

Q. Let me show you a check that has been marked into evidence

here, or I will mark it into evidence as 268, it is a check dated

April

25th of `95, on the account of Michael Serafini and Melinda

Marcotte, payable to you for $2,000. Now, I will show you --

A. I saw this check last time I was here.

Q. All right. Now, the reverse of the check also has a signature,

is

that your signature?

A. It is.

Q. Tell us when you first saw that check and what the

circumstances were that you received it under?

A. I received this check the, probably the 25th and the

circumstances, it is just a check, we, we frequently transfer money

among our, you know, between ourselves. I would have assumed

that this was for the repair of an automobile or something, that he

lives in my home, a reimbursement for something.

Q. Who?

A. Michael.

Q. Michael lives in your home?

***

A. I have a home up in Covington that I don't, it was given to me

by my father, Michael stays there.

Q. So, you don't live together?

A. No, but this check could have been for anything, I mean it could

have been, at the time, if I recall, I was fixing his car, his

transmission went in his car, I had his car repaired, it could have

been for a stereo, it could have been for a bet he had taken, for a

bunch of other things.

Q. It could have been for anything, it could have been for a trip

to,

a reimbursement for anything --

10

again denied being reimbursed, counsel asked if the fact

that the check written to him was part of a series of checks

-- all written on the same day and all for either $1,000 or

$2,000 to various people from whom Michael Serafini had

solicited contributions -- would prompt him to change his

testimony about whether that $2,000 check he received

was a reimbursement for his contribution. The defendant

responded, "No. In my mind it was not a reimbursement."13

_________________________________________________________________

A. Let's me say that.

Q. -- but my question is, was, isn't it a fact that that check was

a direct reimbursement for your Dole contribution?

A. Absolutely not, in my mind. When he asks me for a thousand

dollars for Bob Dole I would give it to him, I don't have to be

reimbursed for that contribution. I gave to Bob Dole because I like

Bob Dole.

Q. That's not my question.

A. The reimbursement, in my mind, was not, this was not a

reimbursement in my mind, it just wasn't.

S. App. at 54-56.

13.

Q. Now, that check is 431, if I showed you a series of checks

starting in the low 400's going to about 450, about 50 checks of

which your check is in the middle?

A. Right.

Q. And they were all written to employees of Empire Sanitary

Landfill, including the people you, family members that you just

mentioned, Louis, Frances, Kimberly, John, all written on the same

day, at or around the same time that Michael solicited

contributions

from all of those people, would you draw--

A. $2,000?

Q. Yes, $2,000, each check, would that change your testimony

about whether or not, in your mind, this was a reimbursement for

your political contribution?

A. No. In my mind it was not a reimbursement. I don't have to be

reimbursed to contribute to Bob Dole, a republican candidate for

president, I just don't have to be reimbursed for that.

S. App. at 56-57.

11

Counsel then inquired about checks from close relatives

of Serafini to the Dole campaign and checks from Michael

Serafini to those same persons.14 After the defendant denied

_________________________________________________________________

14.

Q. So, it was totally coincidental that you, your father, Frances,

Kim and John, were all solicited on the same day for a contribution

and all received checks from Michael at or around the same period

of time, all dated the same day, for the exact amount, that was all

coincidental, that is your testimony as far as you know?

A. I am not aware of that.

***

Q. That is news to you, under oath, as you sit here today, that is

news to you?

A. That they were all reimbursed, yes, that is news to me.

Q. No, that they all received checks?

A. I know my father received a check, my sister I am not sure, I

have no idea what she received.

Q. What about Kim and John?

A. No idea. My father, I know, received a check, I am aware of that

--

***

Q. All right. We'll start with Frances Serafini, here is a check

dated

April 27th of '95.

A. Okay.

***

Q. I am going to show you a check from Michael Serafini and

Melinda Marcotte account to Frances Serafini for a thousand dollars

dated April 25th, check number 430. Okay. The check that was

made payable to you was dated April 25th, check 431, consecutively

numbered checks, correct?

A. Different amounts though.

Q. You said you wanted to see the checks?

A. Yeah, but I have never seen these checks, I have never, I am not

aware of them at all.

12

knowledge of many of the checks he was asked if, having

been made aware of the existence of the checks, he still

maintained that there was no connection between his

contribution and the $2,000 check from Michael Serafini.

When the defendant again denied any link, the disputed

colloquy occurred:

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.

_________________________________________________________________

Q. Well, now you have, I am showing them to you. I am going to

show you the one for your father. All right. Here is a check on

Louis

Serafini's account, also dated April 27th for a thousand dollars to

Dole for President. Right, so, now we have all three on April 27th

payable to Dole. Here is a check on Michael and Melinda's account

to your father, Louis. For a thousand dollars, this is check Number

429. So, now we have check 429, 430, and 431, all coming out of

Michael's account for those amounts, correct?

A. Correct.

Q. Unfortunately I haven't brought all of thefiles here, but I am

going to tell you, I am going to represent to you that I have a

check

payable to Bob Dole from Kimberly and John Scarantino's account,

and a similar check from Michael's account, for the same amount of

money that they did it, in the same consecutive number that we

have just seen here, within the same series of numbers. Now that

you are aware of that, I am going to ask you again, in your mind,

is there a connection between the check that you received and the

contribution that you made to Dole?

A. In my mind?

Q. Yes?

A. The $2,000 check, no.

S. App. at 63-67.

13

Q: Did you receive any other money, whether by cash,

or check, or any other form from Michael at or around

the time period you made your Dole contribution other

than this $2,000 check?

A: I can't specifically remember, however, we transfer

money back and forth quite often for different reasons

and I can't honestly say that there wasn't some kind of

transfer, I mean, we do it all of the time.

S. App. at 67. (The disputed answer, reprinted here

italicized, along with the question that triggered it, was

referred to by the District Court as "statement 3," a

convention that, for the sake of convenience and

consistency, will be adopted here.) After the disputed

colloquy, the defendant was shown a chart of checks

written by Michael Serafini and asked if he could explain

them.15 At that point, the questioning turned to other

issues.

_________________________________________________________________

15.

Q. I am going to show you an exhibit that has been marked into

evidence as Grand Jury Exhibit 35. This is a chart of checks drawn

on your nephew's account, Michael Serafini and Melinda Marcotte's

account. It starts at check 426, and it goes to check 464, and

there

is a series of $1,000, $2,000 checks drawn to various individuals,

do you see that?

A. Correct.

Q. Okay. First of all, let's go down the list and let me ask you do

you recognize any of the names, do you know any of the individuals

on the list?

A. My father, my sister, myself.

[Omitted: A discussion of who the various persons on the list were and

how the defendant knew them.]

Q. All right. So, the [people on the list] you know basically were

people that were affiliated with Empire?

A. Correct, most of them I know were affiliated with Empire.

Q. Right, now, your check here, this check 431, right?

A. Right.

14

The $2,000 check referred to by counsel in the

challenged question was the check from Michael Serafini to

Frank Serafini which, so the government believed, was to

reimburse Frank Serafini for his $1,000 campaign

contribution. At the time of this colloquy, government

counsel apparently had no clear idea why the

reimbursement check was for $2,000 rather than $1,000.

According to the government, its counsel only later

_________________________________________________________________

Q. Frances is 430, Louis is 429, and Kim and John is 445, do you

agree with me on that?

A. I do agree.

Q. At least that is what appears on this chart?

A. That is what is on that chart.

Q. And the chart indicates, at least, that between check 426 and

check 464, there were a series of $1,000, $2,000 checks issued to

these individuals --

A. Right.

Q. -- out of Michael's account?

A. Correct.

***

Q. Right, and do you know for a fact, or do you know that that is

[Michael Serafini's secretary's] handwriting, that she made out all

of

the checks?

A. No, I didn't know that.

Q. Did you know that she made out all of the checks based on a

list that Michael gave her of all of the people that had made

contributions to Dole?

A. No, I do not know that.

Q. Now, having looked at that chart and seeing how your check is

placed in there, is it your testimony that it is totally

coincidental

that your check is within a series of, this series of checks, and

that

it has nothing to do with the Dole, your Dole contribution?

A. Not in my mind it doesn't.

S. App. at 68-73.

15

acquired information that Serafini's aide, Thomas Harrison,

also contributed $1,000 to the Dole campaign and was

reimbursed by Michael Serafini through Frank Serafini for

doing so. Thus, according to the government, (a) the $2,000

check from Michael Serafini served to reimburse both

Thomas Harrison and Frank Serafini, but (b) the

government did not know this at the time Frank Serafini

answered the challenged question. It is the government's

contention that -- contrary to the defendant's response

("Not other than what you have shown me today, no.") --

Frank was "aware of " two checks "other than the $2,000"

that were "connected to this investigation, to this Dole

contribution." One was a $1,000 check from Frank Serafini

to Thomas Harrison, and the other was a $1,000 check

from Thomas Harrison to the Dole campaign.

B. Discussion

When a district court rules that, as a matter of law, a

question posed to a witness during his or her grand jury

testimony cannot support an indictment for "false material

declaration," our review is plenary. United States v. Lighte,

782 F.2d 367, 375 (2d Cir. 1986).

In evaluating statement 3, the District Court found that

the context surrounding the disputed question established

that the defendant could not have understood that he was

being asked the "broad, open-ended question", Serafini, 7

F.Supp.2d at 541, that the government contends was

intended; accordingly, the District Court concluded that

statement 3 should be stricken from the indictment. The

District Court reasoned that none of the questions either

immediately before or after statement 3 raised any issue

other than whether Frank Serafini "had personally received

any other reimbursement checks in connection with his

contribution to the Dole Committee." United States v.

Serafini, 7 F.Supp.2d at 541. Immediately before asking the

disputed question, "the prosecutor questioned Frank

Serafini whether he received any reimbursement checks

other than the $2,000 from . . . Michael Serafini." Id. at

541. After the disputed question, "there was no specific

follow-up question to demonstrate the breadth of the

prosecutor's inquiry." Id. at 541. Instead, the government

16

asked whether the defendant had "receive[d] any other

money . . . from Michael at or around the time period" the

defendant "made [the] Dole contribution." S. App. at 67.

The District Court observed that "[the] follow up question

demonstrates that the prosecutor and Frank Serafini were

concerned only with whether he received other moneys or

checks from defendant Michael Serafini, not whether Frank

Serafini had solicited a check from someone else." Serafini,

7 F.Supp.2d at 541. The District Court, thus, held, with

respect to the above line of questioning, that:

When viewed in context, this single question cannot

reasonably be expected to have triggered in the witness'

mind an understanding that the government was

inquiring of Frank Serafini's reimbursement of Mr.

Harrison. The focus of the prosecutor's questions was

on Frank Serafini's receipt of the check for $2,000 from

Michael Serafini as reimbursement for Frank's Dole

Committee contribution. In the context of this

questioning, Frank Serafini could not reasonably be

expected to understand that the prosecutor was asking

a broad, open-ended question regarding checks from

third parties to the Dole Committee.

Id., at 541 (emphasis in original).

The government now objects to the District Court's

rulings on a variety of grounds. The government argues

first that, in light of what it deems the unambiguous

meaning of the disputed question, the District Court erred

by looking to the context within which that question arose.

The government contends that the District Court would

only have been entitled to rely on the context had the

question itself been inherently vague. We find this

contention unpersuasive.

It is well-settled law that, in instances of some ambiguity

as to the meaning of a question, "it is for the petit jury to

decide which construction the defendant placed on the

question." United States v. Ryan, 828 F.2d 1010, 1015 (3d

Cir. 1987); accord United States v. Reilly 33 F.3d 1396,

1414 (3d Cir. 1994). However, "these general rules are not

without limit . . . ." Ryan, 828 F.2d at 1015. One such limit

is that an "excessively vague or fundamentally ambiguous"

17

question may not form the predicate to a perjury or false

statement prosecution. Id. (quotations and citations

omitted). We have said that a question is "not amenable to

jury interpretation," id., "when it is entirely unreasonable to

expect that the defendant understood the question posed to

him," id. (quotations and citations omitted). In the present

case, the government contends that "none of the broad

terms used in the question rendered it fatally ambiguous."

Government's Brief at 29. The question -- awkwardly

phrased though it is -- might, standing alone , be thought

as a matter of syntax not to be fatally ambiguous. The

problem is that, read in context, the question takes on a

particular meaning wholly at odds with the "broad, open-

ended" significance the government now seeks to attribute

to it.

In Fotie v. United States, 137 F.2d 831, 842 (8th Cir.

1943), the Eighth Circuit, per Judge Riddick, in reversing a

perjury conviction, admonished that "[a] charge of perjury

may not be sustained by the device of lifting a statement of

the accused out of its immediate context and thus giving it

a meaning wholly different than that which its context

clearly shows." That formulation has become an established

principle of law. See United States v. Cook, 497 F.2d 753,

764 (9th Cir. 1972) (Ely, J., dissenting) dissenting opinion

reinstated as majority opinion in relevant part, 498 F.2d 286

(9th Cir. 1973); Van Liew v. United States, 321 F.2d 674,

677-678 (5th Cir. 1963); Brown v. United States , 245 F.2d

549, 556 (8th Cir. 1957); United States v. Geller, 154

F.Supp. 727, 730 n. 3 (S.D.N.Y. 1957). In Van Liew, the

Fifth Circuit, quoting Fotie, put the matter as follows:

The seriousness of the crime of perjury and the fact

that it turns finally on the subjective knowledge and

purpose of the swearer require that the Government

not be allowed to predicate its case upon the answer to

a single question which in and of itself may be false,

but which is not shown to be false when read in

conjunction with testimony immediately preceding and

following the alleged perjured statement. The oft-

quoted [Fotie] rule is applicable here. `A charge of

perjury may not be sustained by the device of lifting a

statement of the accused out of its immediate context

18

and thus giving it a meaning wholly different than that

which its context clearly shows.'

Van Liew, 321 F.2d at 677 (quoting Fotie , 137 F.2d 831,

842 (8th Cir. 1943)).

This court endorsed the Fotie rule in United States v.

Tonelli, where we discussed the proper role of context in

assessing the meaning of questions posed to a witness

during grand jury proceedings. 577 F.2d 194, 198 (3d Cir.

1978). In that case, the defendant, Tonelli, was asked about

his participation in the placement of certain pension funds.

Id. at 197. Although initially denying participation in the

placement of those funds, when further questioning

revealed that the government included in the notion of

participation, "recommendations for someone to place any

moneys in a particular bank," the defendant "explained that

he had introduced his cousin" to persons involved in the

placement of those moneys. Id. We found that"by quoting

a question and answer in isolation, the indictment did not

accurately represent the statements made by the defendant

and in ignoring the qualifying definitions used by the

prosecutor, it was misleading." Id. at 198. Affirming the

Fotie principle, we held the indictment defective. Id.

As our holding in Tonelli demonstrates, the meaning of

individual questions and answers is not determined by

"lifting a statement . . . out if its immediate context," when

it is that very context which fixes the meaning of the

question. Id. In the present case, the government

acknowledges "that the two surrounding questions dealt

with . . . whether Serafini was reimbursed for his Dole

contribution." Government's Brief at 32. The government

argues, however, that the narrow subject matter of the

antecedent and subsequent questions "does not restrict the

meaning of the question and answer sandwiched in

between because that question and answer plainly

concerned a different topic, the broader category of checks,

other than the suspected $2,000 check, that may have been

connected to the grand jury's investigation." Id. (emphasis in

original). But the text of the "sandwiched" question, read in

isolation as the government would have it read, hardly

demonstrates that the question "plainly concerned a

different topic," let alone serves to define that "different

19

topic." The question inquired whether the witness was

"aware" (itself a word of somewhat uncertain connotation)

of "another check that is connected to this investigation, to

this Dole contribution, other than the $2,000." Two aspects

of the question are immediately apparent. The first is that

the question is marked by an awkward appositional

structure -- "another check . . . connected to this

investigation, to this Dole contribution" -- likely to obscure

its meaning. The second is that determining the question's

meaning cannot be accomplished by reading the question

in isolation from the setting in which it was asked. In

asking Serafini whether he was "aware" of"another check

. . . connected to this investigation," counsel might be

thought to have been directing Serafini to think at large

about all he had been asked. However the comprehensive

phrase "connected to this investigation" was immediately

narrowed through the awkward appositional device to

"connected to this Dole contribution," a phrase which

necessarily called on Serafini to focus on the immediately

antecedent questions. And that focus was only sharpened

by the phrase of exclusion, "other than the $2,000," with

which counsel concluded the question. In undertaking to

inject into the question sufficient intelligibility so that he

could reply, Serafini was required by the question to treat

the question as referentially sequential to questions he had

just answered. This, in short, is an instance in which a

court "must look to the context of the defendant's

statement to determine whether the defendant and his

questioner joined issue on a matter of material fact to

which the defendant uttered a false material declaration."

United States v. Sainz, 772, F.2d 559, 562 (9th Cir. 1984).

Since the context of the disputed question demonstrates

that government counsel had been seeking information

regarding Michael Serafini's reimbursement activities, the

question cannot support the limitlessly capacious

construction the government would have it bear.

In the alternative, the government argues that, if turning

to the context was appropriate, the District Court erred by

concentrating on the immediate context of the question.

The government contends that an examination of the

broader context supports its interpretation of the question.

Appellant's Brief at 34. In support of this contention, the

20

government points out that: (1) prior to the disputed

colloquy the defendant was shown several checks from

653<!>various persons to the Dole campaign and several

apparently corresponding checks from Michael Serafini to

those individuals, and (2), following the disputed colloquy

the defendant was shown a chart listing sequentially

numbered checks, drawn on Michael's account, all for

either $1,000 or $2,000, to various individuals, most of

whom were associated with Empire. Accordingly, in the

government's view, since "[t]he prosecutor . . . referenced

numerous other checks that were suspected to have

reimbursed the conduits for their contributions," "it was

clear to Serafini, from the context, that the question which

led up to false statement 3 was not just concerned with

checks that reimbursed him, but other checks connected to

the investigation." Appellant's Brief at 34-35.

Close examination of the broader context relied on by the

government does not, however, lend strength to the

government's open-ended construction of the disputed

question. Prior to statement 3, the defendant was shown a

set of consecutively numbered checks drawn on Michael

Serafini's account: one payable to the defendant's sister,

one payable to the defendant himself, and one payable to

his father. See supra note 11. The defendant was then told

that the government had "a check payable to Bob Dole from

[the defendant's niece and nephew], and a similar check

from Michael's account, for the same amount of money that

they did it, in the same consecutive number that we have

just seen here, within the same series of numbers." S. App.

at 67. Immediately after being shown and told about these

checks, the defendant was asked "Now that you are aware

of that, I am going to ask you again, in your mind, is there

a connection between the check that you received and the

contribution that you made to Dole?" S. App. at 67. The

government, in this exchange, was focusing on whether

Frank Serafini had been reimbursed by Michael Serafini,

not on whether Frank Serafini had, himself, reimbursed

others. A similar pattern is evident in the questions put to

the defendant, subsequent to statement 3, about the chart

of checks. See supra note 12. That chart was a listing of

consecutively numbered checks, drawn on Michael

Serafini's account, allegedly paid out as reimbursements for

21

contributions to the Dole committee. After being shown the

chart, the defendant was asked whether he recognized the

names of the payees, and, after a discussion of who the

various payees were and how he knew them, the defendant

was asked "Now, having looked at that chart and seeing

how your check is placed in there, is it your testimony that

it is totally coincidental that your check is within a series

of, this series of checks, and that it has nothing to do with

the Dole, your Dole contribution?" The defendant

responded, "Not in my mind it doesn't." S. App. at 73. Here,

again, the focus was on whether Michael Serafini had

reimbursed the defendant for his contribution to the Dole

committee. Nothing in the exchange suggests that counsel

or the defendant had in mind reimbursement checks

written by Frank Serafini. The issue of whether the

defendant was cognizant of additional checks -- whether

reimbursement checks not written by Michael Serafini, or

campaign contributions not made by Frank Serafini-- was

never joined.

Finally, the government argues that "[t]he District Court

. . . attempted to shoe-horn this case into the[United States

v. Slawik, 548 F.2d 75 (3d Cir. 1977)], Tonelli line of cases

by criticizing the prosecutors for not asking more direct

questions . . . ." Appellant's Brief at 35. The suggestion that

the District Court erroneously relied on Slawik is

unconvincing. Slawik is not cited in the course of the

District Court's discussion of statement 3. Serafini, 7

F.Supp.2d at 540-542. The District Court did, however,

reason that "[t]he prosecutor could have asked Frank

Serafini whether he had ever solicited or reimbursed

another person for contributions to the Dole Committee and

whether any checks existed to evidence such actions." Id. at

541. Finding that "these simple and straight-forward

questions, which would have extinguished any potential

ambiguity, were never asked," id., the District Court

concluded that "[t]he prosecutor plainly led Frank Serafini

to understand that he was being questioned as to whether

he had personally received any other reimbursement

checks in connection with his contribution to the Dole

Committee." Id. We agree with the District Court.

In Bronston v. United States, 409 U.S. 352 (1973), the

22

unanimous Supreme Court discussed authoritatively the

basic principles governing perjury prosecutions. In that

case, the Court, speaking through Chief Justice Burger,

held that 18 U.S.C S 162116 did not reach a defendant who

provided a literally true but unresponsive answer while

testifying as a witness at a bankruptcy hearing. Id. at 359,

361-362. Cf. United States v. DeZarn, 157 F.3d 1042, 1043

(6th Cir. 1998) (upholding a perjury conviction, under 18

U.S.C. S 1621, when the defendant's testimony"can

reasonably be inferred to be knowingly untruthful and

intentionally misleading, even though the specific question

to which the response is given may itself be imprecise."). In

the course of its opinion, the Court in Bronston drew upon

the history of the crime of perjury. First, referring to the in-

depth Study of Perjury prepared by the New York Law

Revision Commission and submitted to the New York

Legislature in 1935, the Court observed:

The seminal modern treatment of the history of the

offense concludes that one consideration of policy

overshadowed all others during the years when perjury

first emerged as a common-law offense: "that the

measures taken against the offense must not be so

severe as to discourage witnesses from appearing or

testifying."

Id. at 359.17 Next, the Bronston Court invoked both

(Text continued on page 25)

_________________________________________________________________

16. Although decided under 18 U.S.C. S 1621, Bronston sets forth

underlying principles that apply to any perjury or false material

declaration prosecution. See supra note 2.

17. In transmitting to the New York Legislature its Study of Perjury, the

Law Revision Commission recommended amending the perjury

provisions of the New York's Penal Law with two ends in view:

The Commission is impressed by the evidence showing that

materiality is an inherently ambiguous term, that the courts have

given it the widest variety of meanings, that it probably came into

the law through misconception, and that by construction it has

been largely whittled away in the country of its origin.

Nevertheless,

the fact is recognized that materiality has become deeply imbedded

in the judicial and professional consciousness of this state; that

it

cannot, therefore, be easily eliminated from our law. Believing,

however, that materiality as now defined by interpretation is a

23

serious impediment to effective prosecution for perjury, and that

it

discourages even the initiation of prosecutions, the Commission

favors the addition of a degree of perjury from which the

materiality

element is eliminated. It believes the that the mere fact of

classifying

the crime in general accord with the seriousness of the falsehood

uttered -- at the same time making it plain to the jury than any

intentional falsehood in a judicial or similar official proceeding

is a

crime -- will facilitate a finding of guilt for the lesser offense.

The

classification proposed still preserves the chance of conviction

and

severe punishment in an unusual and egregious case. The addition

of this second degree will also cover those cases in which false

swearing is wilfully and knowingly committed in what at the time is

believed to be a material matter and with a deliberate intent to

defeat the ends of justice although not technically material within

the rules of law.

The Commission is impressed by the weight and variety of

statistical and other evidence adduced for the conclusion that the

present maximum penalty of twenty years imprisonment is

altogether too severe and that this circumstance also stands in the

way of effective prosecution. Reduced penalties and the alternative

of a fine for the second degree are accordingly recommended.

To accomplish these ends, the Commission submitted a draft bill, which,

in the spring of 1935, the Legislature adopted and Governor Lehman

signed into law. L. 1935, ch. 632.

Since 1935, New York's law of perjury has evolved further -- from a

two-tiered to a three-tiered structure. Perjury in the third degree, a

misdemeanor, is "swear[ing] falsely." N.Y. Penal Law S 210.05. One

"swears falsely" when one "intentionally makes a false statement which

[one] does not believe to be true (a) while giving testimony, or (b) under

oath in a subscribed written instrument." N.Y. Penal Law S 210.0. "It

should be here noted that materiality is not one of the requiste elements

of the crime of perjury in the third degree..." People v. Tyler, 405

N.Y.S.2d, 270, 275 (App. Div. 2d Dept.), affirmed 413 N.Y.S.2d 295

(1978). Perjury in the second degree, a felony, consists of "swear[ing]

falsely" when one's "false statement is (a) made in a subscribed written

instrument for which an oath is required by law, and (b) made with

intent to mislead a public servant in the performance of his official

functions, and (c) material to the action, proceeding or matter involved."

N.Y.Penal Law S 210.10. Perjury in the first degree -- a higher degree

felony -- involves "swear[ing] falsely" when one's "false statement (a)

consists of testimony, and (b) is material to the action, proceeding or

matter in which it is made." N.Y.Penal Law S 210.15.

24

Wigmore and Montesquieu. And then the Court turned to

the pertinent federal case law. "The cases support the

petitioner's position that the perjury statute is not to be

loosely construed, nor the statute invoked simply because

a wily witness succeeds in derailing the questioner-- so

long as the witness speaks the literal truth." Id. at 360.18

Importantly, for our purposes, the Bronston Court

continued, "[t]he burden is on the questioner to pin down

the witness to the specific object of the questioner's

inquiry." Id. Thus, Bronston stands for the proposition that

"[p]recise questioning is imperative as a predicate for the

offense of perjury." Id., at 362.

Accepting arguendo the government's claim that the

disputed question was intended as an "unspecific

question," we nonetheless see the lack of specificity as a

form of imprecision whose "consequences . . . must be laid

at the table of the questioner, not the questioned." Sainz,

772 F.2d at 563. To the extent that, as Chief Justice Burger

concluded in Bronston, "precise questioning is imperative as

a predicate for the offense of perjury," that required

predicate is lacking with respect to the disputed question

put to Frank Serafini. We conclude, as did the District

Court, that the context within which statement 3 was

offered shows that Frank Serafini understood that he was

being asked whether, in connection with his contributions

to the Dole campaign, he had received any reimbursement

checks from Michael Serafini other than the $2,000 check.

As there is no allegation that -- with the question so

understood -- the defendant's answer was false, that sub-

portion of the indictment pertaining to statement 3 was

rightly stricken.

Accordingly, the judgment of the District Court will be

affirmed.19

_________________________________________________________________

18. Among the cases cited by the Bronston Court was this court's

decision in United States v. Slutzky, 79 F.2d 504 (3d Cir. 1935).

19. This court's affirmance of the judgment of the District Court is not

to be taken as reflecting any view on the issues referred to by the

government at page 3, footnote 1, of its letter brief of May 8, 1998. Any

such issue that remains after this case returns to the District Court may

be addressed by that court.

25

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26