State v. PandozziState v. Pandozzi
- Reporters:
- ,
- Before:
- Matthews, Lora, Morgan (per curiam)
Dеfendant was indicted for giving false information to law enforcement officers, in violation of
“This is defendant‘s motion to dismiss an indictment charging him with a violation of
“The law enforcement officers were special agents of the State Commission of Investigation. They approached defendant in a somewhat informal manner at his place of business. They advised him generally of the subject matter of their inquiry and advised him of his constitutional rights. Defendant indicated that he was willing to answer their questions. The preliminary discussion involved a confirmation by defendant of facts and matters within the knowledge of the agents which were matters of public record, including the fact that between 1966 and 1970 he served as chairman of the Planning Board of Madison Township. When asked if he had ever been approached by anyone while on the planning board or had he ever approached anyone for any monies he denied it. This, the State contends, constitutes a violation of the statute in view of its evidence that on various dates between June 1, 1966 and September 30, 1968 defendant had solicited and received bribes from or shared bribe money with other рersons. At the time of the interview the agents were armed with knowledge that the State Commission of Investigation had previously received sworn testimony with regard to these alleged occurrences, so that plainly defendant at the time of the interview was a target of the investigation.
“The statute in question provides as follows:
Any person who knowingly and willfully gives false information or causes false information to be given to any law enforcement officer or agency with respect tо the commission of any crime or purported crime is guilty of a misdemeanor.
“To date there has been but one reported case in the State of New Jersey concerning this section, namely, State v. Hobbs, 90 N.J. Super. 146 (App. Div. 1966). It is not of
“The so-called doctrine of the exculpatory no upon which defendant relies is well known in the fеderal courts. Whether it is viable in New Jersey is the question which this court must determine in resolving this facet of the motion. The State contends that the doctrine should not be recognized by this court, or, alternatively, that it be held not aрplicable in this case. The sense of the State‘s position is that when defendant was approached he was advised of his constitutional rights and voluntarily decided to waive them. Having done so, the officers thereаfter had a right to rely upon the truth of his statements. The State contends that defendant was amply protected from the possibility of prosecution under the statute by exercising his choice of either remaining silent of telling thе truth. Since he decided to speak and spoke falsely he thereby laid himself open to prosecution.
“The federal statute which has generated prosecutions leading to reported cases dealing with false information is found in
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device, a material fact, or mаkes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statements or entry, shall be fined not more than $10,000.00 оr imprisoned not more than five years or both.
It is our feeling that the exculpatory no answer without any affirmative, aggressive or overt misstatement on the part оf the defendant does not come within * * * § 1001. [at 309]
“The Ninth Circuit in U.S. v. Bedore, 455 F.2d 1109 (9 Cir.1972), added the following caveat:
[§ 1001] was not intended to embrace oral unsworn statements unrelated to any claim of the declarant to a privilege from the United States or to a claim against the United Statеs, given in response to inquiries initiated by a federal agency or department, except, perhaps, where such a statement will substantially impair the basic functions entrusted by law to that agency. [at 1-11]
“Notwithstanding broad recognition of the exculpatory no doctrine in the federal courts, conflicting decisions have arisen with respect to the applicability of this exception to statements made to Internal Revenue Service agents. U.S. v. McCue, 301 F.2d 452 (2 Cir.1962); Paternostro v. U.S., supra.; U.S. v. Ratner, 464 F.2d 101 (9 Cir.1972). However, these cases are inapposite insofar as the case at bar is concerned since they involve statements which frustrate the lawful functions of an I.R.S. agent, i.e., the agent‘s duty to verify tax information submitted by taxpayers on their income tax returns, and which relate to claims against the United States Government, i.e., the amount of income tax due and owing.
“Recently, in U.S. v. Erlichman, Criminal No. 74-116 [379 F. Supp. 291] (D.C.D.C. 1974), Judge Gerhard Gesell noted the absence in § 1001 of any of the procedural safeguards which are present under the general perjury statute,
There is no requirement of an oath, no strict rule of materiality and no guarantee that the proceeding will be transcribed or reduced to memorandum. * * * In short, the F.B.I. interview may occur — as it did here — under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction. * * *
“Identical considerations arise from a cursory reading of the language of
“The State relies in its brief on false swearing аnd perjury cases to buttress its assertions that a defendant has the right to assert his Fifth Amendment privilege against self-incrimination or he must tell the truth, and that prosecutions of exculpatory denials as false information crimes are analogous to prosecutions of exculpatory denials under oath as perjury or false swearing crimes. See State v. Falco, 60 N.J. 570 (1972); State v. Cattaneo, 123 N.J. Super. 167 (App. Div. 1973); State v. Kimbrough, 109 N.J. Super. 57 (App. Div. 1970); State v. Siegler, 12 N.J. 520 (1953); State v. Toscano, 13 N.J. 418 (1953); State v. Engels, 32 N.J. Super. 1 (App. Div. 1954); State v. Borelli, 27 N.J. Super. 223 (Law Div. 1953).
“However, it is my view that in construing the scope of
“The State argues that false denials to S.C.I. agents would severely hamper their fact-finding roles; that the agent-investigators must be able to rely on the truth of responses, and that defendant Pandozzi conceivably misled them. This argument is not persuasive under the facts here presented. As noted, the agents were aware of a considerable body of evidence against this defendant. That he was a target when interviewed is plain. In connection with the State‘s urging that a perversiоn of the investigatory process could result, the following comment of the court in the case of U.S. v. Davey, 155 F. Supp. 175 (D.C.N.Y. 1957), is worthy of note:
But can it be said that when an accused person, a potential defendant, a suspect, grants an agent of the F.B.I., аn interview and in reply to incriminating questions, knowingly makes a negative answer when truth and morality, but not the law requires an affirmative reply, such answer perverts the authorized function of the Bureau? Is the authorized function of the Bureau to extract from the suspect only the truth or in view of the 5th Amendment proscribing compulsory self-incrimination to hear and record only such statements as the accused desires freely and voluntarily to make? [at 178]
“It seems еvident that the intent of the Legislature was to prevent the waste in time, energy and expense involved
“There can be no doubt that were this defendant‘s case being decided by the federal courts, the motion would be granted. I agree with the concept that under the state statute the exculpatory no answer without any affirmative, aggressive or overt misstаtement on the part of a defendant does not come within its proscription. Consequently, it is my conclusion that under the circumstances here presented there has been no conduct on the part of this defendаnt which would constitute a violation of the statute under which he has been indicted. I, therefore, grant defendant‘s motion to dismiss the indictment.”
The judgment of the Law Division dismissing the indictment is affirmed for the reasons expressed in Judge Morris’ opinion.