United States v. James Arthur Friedhaber
826 F.2d 284
4th Cir.
1987
Check Treatment

*1 SPROUSE, Before HALL and Circuit TIMBERS, Judges, and Senior United States Judge Circuit U.S. Court Circuit, Appeals for the Second sitting by designation.

SPROUSE, Judge: judg- The United from the appeals States granting ment of the district court James Arthur motion for acquittal. 29. A F.R.Crim.P. returned guilty verdict Friedha- single ber on a count of false state- ments before a 1623.1 The court set aside the verdict, false statements not material to the grand jury’s investigation. We affirm. Gilbert, in its Thomas E. III, Gilbert, IV, and Thomas E. who were suspected of and arson and mail fraud in connection burning of the Gilbert Funeral Home in Southport, August North Carolina on suspect 1984. Friedhaber grand jury probe, was later indicted relating falsely and tried for jury the details of an interview he had with $10,- pertinent part: provides 18 U.S.C. laration shall be not more than § 1623 ... fined any proceeding years, "Whoever under ... imprisoned oath 000 or not more than five 1623(a). ... of the United both." 18 U.S.C. § knowingly States false material dec- makes *2 appeared that were two individuals jury investigating the Gilberts in early fire.2 June 1986. He testified present that while Friedhaber, conditioning an air and heat- in the funeral home on the in replaced motor ing repairman, a air fire he pungent had smelled a odor similar days the funeral home few conditioner at to burning trash. He telling denied to the prior to the fire. He went funeral S.B.I. company investigators and insurance to day of the fire deliver a bill home on the September 1984 interview that he at the home for his arrived services. nothing smelled According unusual.3 to morning, in the between 10:00 and 10:30 testimony, Friedhaber mentioned the there, found no one was left bill on a pungent course the inter- desk, departed. was and The fire discover- view, investigators but the failed to make a approximately p.m. ed at 12:15 note of it. known persons one of to have was Based on this in the home present been funeral false the fire. morning of grand jury statements before the in viola- tion of 18 U.S.C. agent indictment § and the insurance com- S.B.I. it was that material to the investigator, together, pany working inter- to determine what 6, 1984, September viewed Friedhaber on reported investigators to the weeks fire. some three after Accord- what, “concerning any, strange if odors he grand jury trial testimony, to their and detected in the Gilberts funeral home short- during them told interview ly before the fire.”4 anything that he neither saw nor smelled day unusual at the funeral home on the issue appeal sole is whether was Batchelor, investigators Q. you 2. The two were Tim That’s not what told them? agent Investiga- of the North Carolina Bureau of A. No. Moss, (S.B.I.), Gary private Okay, Q. tape tion and now wasn’t that conversation employed recorded? tor the insurance carrier that cov- No, time, writing A. was he all the he ered the home. wasn’t funeral recording. tape Q. Okay. What is incorrect about that state- government’s theory 3. The that kerosene ment? ignite was used to fire. contends that thing you, A. I same I told him the that original he version—that odor, pungent is smelled like nothing different. smelled unusual —was consistent with Q. that S.B.I. You told both to this officer origin. theory of a kerosene A and to Mr. Moss? conversely probative smell would be of an ori- A. Yes. gin other kerosene. So, Q. of them would be incorrect? both A. Yes. following portions of Friedhaber’s testi- they Q. lying? Would be formed basis of the case say A. I couldn’t that. against him: your testimony Q. But it’s that that’s not you Q. you ask Let me a statement you what told them? you regarding what saw and to the them, A. That’s what I told no. S.B.I., particular, and in when was with Mr. you Q. them You told that had smelled this Moss, your about what activities were you except faint odor which couldn’t describe shortly you talking after the fire? Do remember being something smouldering. for it as that was them, coming interviewing you?: them (yes). A. Un—Huh Q. Yeah, A. sure so. you investigate it? But didn’t you asking Q. specifically And do recall him A. No. you you were whether aware odors and you Q. Why do think would state to that you responded that were there none? contrary? Yeah, I night, A. remember this. really don’t late A. I know. It was at you dark, Q. you taking And stated did not notice notes in the car. / and he bill, strange you maybe something odors the time delivered the don’t know he missed you anything flying —questions and that did not see unusual in the back and forth —I don’t something funeral home? know. But that’s smelled and I No, did, guys write it down. A. that’s not correct? told the didn't jury investigation. inconsequential The test jury investiga- nothing under 18 1623 is tion. suggest has “the natural had the whether outcome tendency impede, grand jury’s investigation. influence or effect or pursuing dissuade its Congress, enacting its investigation.” United States Farn predecessors, recognized importance *3 331, (4th Cir.1986) ham, (quot F.2d 333 791 preserving integrity jury grand the of the Paolicelli, 505 ing v. F.2d United States process. recognize impor- We likewise the (4th Cir.1974)). 971, necessary It 973 is not tance of preventing witnesses abus- government the prove that that the ing responsibility truthfully to testify testimony actually impeded of the the work grand jury. say, We cannot Abrams, 568 United States v. however, that the statements for which (5th Cir.), denied, 437 F.2d 411 cert. U.S. Friedhaber was indicted were (1978). 903, 98 57 L.Ed.2d 1133 S.Ct. therefore, the jury’s inquiry; they do must, however, be a minimal show constitute abuse for which he should the at issue had the criminally responsible. be held capacity to affect the outcome of the is district court jury’s investigative proceedings. See Unit therefore affirmed. Flowers, v. ed States 813 F.2d AFFIRMED. (4th Cir.1987)(although government or the light proving dinarily bears a burden in HALL, Judge, dissenting: K.K. the burden met was not be majority correctly As the recognizes, the cause the defendant’s were in statements government’s responsibility for demon- capable influencing of the outcome the strating materiality pur- agree brought a case proceeding). We the district with government imposes suant to 18 U.S.C. court that to make failed slight prosecution only requisite showing burden. this case. need establish the false statements had was not indicted impede grand- the work of the impeding of the S.B.I. jury. culpability upon Criminal turns company agent, insurance nor could he potential rather than the actual effect have been.5 was indicted as a conse perjurious instance, remarks. this be- quence grand jury testimony of his con lieve that the of the defendant’s cerning the statements to the in he made thoroughly statements was established. vestigators. impan jury investigate origin eled to of the funeral possibility home fire. The funeral home owners target of the arson at the Gilbert Funeral As investigation, Home. people were later indicted.6 In one of the have his known to smelling building immediately been in the recalled fire, signifi- was of obvious maintaining By Friedhaber insisted that cance. that he had smelled description investigators,, the same “pungent similar trash burning odor” home, contrary, impli- testified to the and the in the funeral the defendant government prosecutor edly suggested attacked Friedha that the natu- fire was of a prior origin ber’s with his inconsistent ral kerosene fire as bottom, statements. At government. testi When confronted evasive, faulty, apparent inconsistency amounts to a or even between of an simply grand jury testimony prior recollection event that was statements correctly per- argument, pros- 5. As the trial court "the 6. At the time oral the Gilbert proscribe giving statute does not yet to be ecution had for trial. conflicting statements witnesses to only prohibits giving tors [i]t of false grand jury.” material declarations to the investigators immediately after made to fire, sought deny NATIONAL LABOR RELATIONS any inconsistency. He main-

existence of BOARD, Petitioner, “pungent had told the odor” tained that he ques- story response investigative to all HERBERT HALPERIN DISTRIBUTING

tioning.1 CORPORATION, Respondent. to remember that important perjury for which “pungent was not the and convicted United States of Appeals, Court story his claim that he but rather to all com- the same pletely agree con- Argued April 7, the defendant’s tention that believed, have the natural effect of would *4 bolstering credibility on an issue central jury’s inquiry while simulta-

neously undermining motion,

In on Friedhaber’s Rule the district court stated that “no evidence trial to show how the

defendant’s false statement has ad- versely grand jury’s] affected ... [the acknowledged

work.” proper for standard revealed, by court

that it erroneously considered actual

rather potential interference majority opinion approaches the targets same error. notes that the jury investigation were indicted notwithstanding arson tes- is, timony. course, fact That irrelevant to a determination of materiality under only question before us is whether the attempt defendant’s to sustain credibility by recourse perjury could

have the grand jury’s my view, deliberations. potentially harmful impact of such perjury is clear.

Accordingly, would reverse the district grant court’s of the Rule motion remand for reinstatement of the ver- I, therefore, respectfully

dict. dissent. "pungent The first record tained Gilberts in connection a civil appears in statements made Friedhaber in suit their fire insurance carrier. February, private investigator to a re-