UNITED STATES of America, Appellee, v. Herman Eugene LARDIERI, Appellant.
No. 73-1750
United States Court of Appeals, Third Circuit.
Decided Dec. 18, 1974.
Argued Jan. 9, 1974. Reargued before the original panel Sept. 13, 1974.
506 F.2d 319
Before ADAMS, HUNTER and WEIS, Circuit Judges. ADAMS, Circuit Judge.
The cardinal rule of damages is this: We don‘t guess. We don‘t speculate. We don‘t conjecture. We put the burden of proof on the plaintiff by a preponderance in connection with any question of damage we are considering and only make an award if that burden of proof has been established; (Tr. 676)
We are not attempting to single out anything at all here, but this in connection with this heart problem in this case. The law takes the plaintiffs as it finds them; and in dealing with the question of what item or items resulted from a given incident the question is not what would the incident have done to the ordinary person. The question is what injury to this particular plaintiff is involved and did this accident play a part in producing that injury. (Tr. 677)
So a defendant is not responsible for the natural, congenital or geriatric or aging defects of any plaintiff; nor is a defendant responsible for the normal progress of any such defects or ailments, if any.
So you will not award to the plaintiff any damages relating to or resulting from any natural or normal ailment or defect or the natural or normal progression thereof.
The mere fact that the plaintiff suffered a heart attack—there is no dispute about the fact that he suffered a heart attack, March the 1st—doesn‘t permit you to infer simply from that fact that the defendant was or is in any way legally responsible for that heart attack; and if you find that the defendant was negligent but also find from a preponderance of the evidence that the plaintiff‘s heart attack would just as likely have happened in the absence of any negligence on the part of the defendant, then the plaintiff could not recover damages for that heart attack or any items reasonably connected therewith.
Once again, in considering any item of damage, if you find, the evidence is in equipoise, even Stephen, so you can‘t say it leans in favor of the plaintiff, the plaintiff having the burden of proof would lose in respect to that item and you should not award any compensation in respect thereto. (Tr. 677-678)
We find no error in the denial of the motion to strike the testimony of Doctor Davolos.
Affirmed.
Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., Carl L. LoPresti, Michael P. Lesniak, Sp. Attys., U. S. Dept. of Justice, Organized Crime & Racketeering Section, Pittsburgh, Pa., for appellee.
Louis J. Grippo, Pittsburgh, Pa., for appellant.
The issue posed by the petition for rehearing before the panel is whether an indictment for perjury allegedly committed during the course of testimony before a grand jury may be dismissed because of the failure by the prosecutor to inform the witness of the recantation provision of
The events leading to Herman Lardieri‘s perjury conviction occurred during an investigation of the tax affairs of Louis Sorrentino. Lardieri performed some managerial functions at Steurer‘s Restaurant in Altoona, which was owned from July, 1967 to July, 1969 by Sorrentino, a New York City resident. The connection between Lardieri‘s activities and the financial interests of Sorrentino prompted the government to seek information from Lardieri. Agent Dye of the Internal Revenue Service accordingly interviewed Lardieri in June of 1971. During the interview, Agent Dye questioned Lardieri with respect to the execution of checks drawn on the restaurant‘s account. Lardieri stated to Agent Dye that he did sign some of the restaurant‘s checks.
On April 10, 1972, Lardieri was subpoenaed to testify before a special grand jury. The subpoena was served on Lardieri the day before he was to appear.
At the grand jury proceeding, Lardieri was examined on the procedures by which the restaurant‘s checks were made out and signed. He testified that he “never signed a check as long as the place [Steurer‘s Restaurant] was there.” The prosecutor, apparently recognizing an inconsistency between Lardieri‘s statements to Agent Dye and his grand jury testimony, engaged with Lardieri in the following exchange:
Q. Did you sign a bank signature card at that time. At the bank?
A. I don‘t remember.
Q. Mr. Lardieri, do you know what perjury is?
A. (No response.)
Q. Do you know what perjury is?
A. No.
Q. You don‘t know?
A. I don‘t know what perjury is.
Q. You have no idea what perjury is?
A. You have to tell the truth and if you don‘t tell the truth, you wind up in jail.
Q. And there is also a $10,000 fine as well. Now, with that in mind, I will ask you again: did you participate in any way in the opening of the account for Steurer‘s Restaurant at Mid-State Bank?
A. I don‘t remember.
Q. Were you authorized to sign checks on that account?
A. No, I know that.
Q. I don‘t think you have been candid with us today, with the members of the grand jury.
A. I told you the truth.
Q. I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony.
A. That is it.
Q. Is there anything that you have said in here today that you would like to modify or change?
A. No, just put down what I said.
On the basis of this testimony, Lardieri was indicted for perjury. At his trial before a jury he contended that he had made the false statements because he was tired, having not slept for 36 hours in order to prepare for a banquet scheduled for the day of his grand jury appearance. He asserted that he lost his temper, did not know what he was doing, and was not in the right frame of mind.
At the conclusion of the trial, he was convicted of making a false statement before the grand jury in violation of Section 1623. Upon his appeal to this Court Lardieri originally contended that (1) the false statements were not material to the grand jury‘s investigation; (2) the trial court erred in failing to charge the jury on the elements of willfulness; and (3) the prosecutor made prejudicial remarks in his closing statement to the jury. In an opinion filed May 14, 1974, this Court found no merit in Lardieri‘s
A petition for rehearing filed by the United States raised the question whether Section 1623 requires the prosecutor to notify a grand jury witness of the recantation provision.
On this rehearing Lardieri contends that the legislative purpose embodied in
b.
Upon reconsideration we conclude that a reversal of the conviction is not required by
grand jury which may be vested in this Court.3
We first review the statutory language and the legislative history to determine whether the statutory intent requires that such a notice regarding recantation be given to a witness before a grand jury. It is clear that the statute, by its terms, does not expressly require the prosecutor to warn the witness of the recantation provision of
Lardieri has not shown that the purpose of this provision would be frustrated if the prosecutor were permitted to remind the witness of the penalties for perjury without telling him of the recantation provision as well. No empirical evidence has been presented which demonstrates that a statement regarding penalties by the prosecutor would deter the witness from correcting his testimony. On the contrary, it is reasonable to assume that if Congress had found disclosure of the recantation provision necessary in order to stimulate the correction of false testimony, they would have included a disclosure requirement in the statute.5
The recantation provision in
Additionally, it was the congressional judgment that the overall purpose of
A subpoena can compel the attendance of a witness before a grand jury or at trial. * * * But only the possibility of some sanction such as a perjury prosecution can provide any guarantee that his testimony will be truthful.
Today, however, the possibility of perjury prosecution is not likely, and if it materializes, the likelihood of a conviction is not high. * * * *
[Section 1623] creates a new federal false declaration provision that will not be circumscribed by rigid common law rules of evidence. S.Rep. No. 91-617, 91st Cong., 1st Sess. 57-59 (1969).
Congress thus sought to promote more truthful testimony by facilitating perjury prosecutions and convictions.
On the other hand, Congress also provided that a witness who had testified falsely could, under limited circumstances, avoid prosecution. As noted earlier, Lardieri has not demonstrated that a requirement that the prosecutor notify witnesses of the recantation provision would induce more people to recant. However, dismissing perjury indictments where the prosecutor has not given such notice would create a new impediment to successful perjury prosecutions, thereby jeopardizing the deterrent effect Congress specifically sought to establish by rendering perjury convictions easier to obtain. The statutory history, therefore, does not reveal a Congressional intent that prosecutions be dismissed where such warnings are not given.
c.
The concept of fairness to the criminally accused is incorporated in the doctrine of due process.9 However, it has not been asserted, either by the parties or in the dissent, that the prosecutor‘s conduct here rises to the level of a deprivation of Lardieri‘s constitutional rights. Rather, in his dissent, Judge Weis contends that we should, under our supervisory powers, extend the notion of “fundamental fairness” to hold that a perjury indictment may be dismissed because the prosecutor did not warn the witness of the recantation provision. There has recently been widespread con-
In this situation, however, dismissal of the indictment because of the lack of notification to Lardieri of the recantation provision would disturb the balance Congress has advertently established between the competing interests of prosecution and recantation. Congress has utilized in
In addition, dismissal of the indictment because Lardieri was not informed of the statute‘s recantation provisions would provide greater protection to Lardieri‘s statutory right than is afforded to his constitutional rights. Thus when a grand jury witness who has committed a crime is asked if he has done so, he has the choice of incriminating himself in that crime, committing perjury, or asserting his right to remain silent. If he has not been warned of his Fifth Amendment right to silence and thinking he must answer, commits perjury, this Court has held that he may be prosecuted for doing so.10 But, under the rule suggested by Lardieri, if the grand jury witness has not been advised of his statutory opportunity to recant, he may be insulated from prosecution for his perjury. Thus the proposed rule would not permit the witness to waive his statutory right to recant without notice of that right being supplied by the prosecution, although he could simultaneously waive a constitutional right without such notice. It would not appear appropriate to utilize whatever supervisory powers we may have to attain so anomalous a result.
d.
In addition, assuming the existence in this Court of supervisory powers over the conduct of grand juries and assuming the propriety of applying a rule promulgated under those powers to reverse a conviction based on conduct which occurred prior to the promulgation of such rule,11 the facts of this case do not merit upsetting Lardieri‘s conviction under such supervisory powers, since the prosecutor substantially complied with the proposed rule. Although he did not explain the statutory basis therefor, the
Q. I will tell you what I am going to do. I am going to give you a chance to straighten out your testimony. * * * Is there anything that you have said in here today that you would like to modify or change?
The specific circumstances here, therefore, would not justify dismissing the indictment, thus insulating Lardieri from prosecution for his false testimony.
Accordingly, the judgment of the district court will be affirmed.
WEIS, Circuit Judge (dissenting):
The issue posed in the previous opinion by this panel was a narrow one. In a situation where the United States Attorney volunteered legal information on the punitive portions of the perjury statute to an uncounseled witness, did fundamental fairness require that he also advise the witness of a favorable recantation provision of the act? United States v. Lardieri, 497 F.2d 317 (3d Cir. 1974).
There was no necessity to decide the broader question which has been urged by the government‘s petition for rehearing and pervades the majority opinion—that is, whether there is a statutory duty to make a disclosure to every grand jury witness under all circumstances. Though an argument might be made to that effect, the thrust of precedent in this Circuit is to the contrary. United States v. DiMichele, 375 F.2d 959 (3d Cir. 1967).1 Our original opinion went no farther than to say that if the United States Attorney chooses to advise a witness on the applicable law of perjury, the factual circumstances may be such that, in the interest of fairness, the prosecutor should disclose the favorable as well as the unfavorable aspects of the statute.
That opinion was based on the concepts of fundamental fairness and our supervisory authority over grand jury activity. For these propositions we need not look for express statutory direction. Our judicial obligation requires us to assure ourselves that proceedings before bodies over which the courts have control are conducted with evenhanded concern for both sides, not allowing one to gain an unseemly advantage over the other. Fundamental fairness is essential to the effective functioning of the adversary process which is at the heart of the common law system.
As the majority recognizes, there has been much debate in recent years over the desirability of retaining the grand jury as an institution. The charge has been made all too frequently that the grand jury is simply a tool of the prosecutor and, therefore, should be abolished. Not enough attention has been focused on one of the fundamental functions of the grand jury—that is, to protect the citizen from the rigors of an unjustified prosecution for a serious crime by shielding him from arbitrary governmental action. The screening process of the grand jury is a significant constitutional protection which should remain viable and effective. The courts must be alert to prevent its erosion.
There should be no doubt that the courts do possess the authority to supervise grand jury activity. In Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960), it was said:
“The grand jury is an arm of the court and its in camera proceedings constitute ‘a judicial inquiry.‘”
Earlier, in Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940), the Court wrote:
“. . . The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is
In In re Schofield, 486 F.2d 85 (3d Cir. 1973), was an assertion of supervisory power and an indication of our continuing concern with the problem of grand jury proceedings. In United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974), we emphasized the importance of the screening role.
The grand jury function is best served by extending fair treatment to those who appear before it. Questioning before that body must often be probing and insistent, but physical compulsion on a witness, for example, could not be sanctioned. And, just as vigorous cross-examination in a trial is permissible, but is always subject to control by the presiding judge, so should interrogation of a witness before a grand jury be subject to supervision of the court. Failure to extend the protection of the court to a witness is as detrimental in one situation as the other. I do not believe, therefore, that it is necessary to find specific statutory direction to reach the result we did in our prior opinion. What is involved is not an assessment of the wording of the statute but, rather, its administration—a function traditionally entrusted to the courts. In this respect,
It is of some significance that this statute is aimed at false statements made before or ancillary to a court or grand jury. While the law is designed to make it easier to secure convictions, it is balanced by giving a witness the opportunity to clear himself, if need be, by recantation. The purpose is to make
There is no need at this point to answer speculation as to whether the defendant would have recanted or that he understood the prosecutor as having granted him that privilege. These are factual matters which should be decided upon remand after a full development of the pertinent circumstances. The district court, after such a proceeding, would be in a far better position than we to decide those matters.
The discussion of the New York statute and cases decided under it is not really helpful for a determination of the question that is presented here. The circumstances are different, and I am not persuaded that, if confronted with the same situation as we have been here, the New York courts would decide in the same fashion as the majority does.
I believe our prior opinion represented only a small step forward, but its reversal is a large step backward. I dissent.
Leonard TAYLOR, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
No. 74-2209. United States Court of Appeals, Fifth Circuit. Jan. 13, 1975.
Notes
“(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . . . .
“(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.”
1. That case held that there is no duty to warn a grand jury witness of his right to invoke the Fifth Amendment. For a criticism of the doctrine and a discussion of grand jury proceedings in general, see The Rights of a Witness Before a Grand Jury, 1967 Duke L.J. 97.In any prosecution for perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed. L.1965, c. 1030, eff. Sept. 1, 1967.