The defendant-appellant Judge Orval W. Anderson was convicted of knowingly making a false material declaration in violation of 18 U.S.C. § 1623. 1 Judge Anderson’s conviction was based upon testimony he gave in a trial in the District Court that he never disposed of criminal cases involving the charge of Driving Under the Influence of intoxicants in his chambers without the presence of prosecutors while presiding in the Lake County, Indiana, County Court system. Judge Anderson appeals. We affirm.
I.
On February 15, 1985 Judge Orval W. Anderson testified as a witness in the trial of United States of America v. John Marine and Kenneth Anderson, 2 HCR 84-46 (the Marine trial), in the United States District Court for the Northern District of Indiana. The defendants in the Marine trial were charged with various federal crimes, including racketeering, mail fraud, and extortion resulting from an alleged ticket-fixing scheme operating within the Lake County court system. Nick Thiros, John Marine’s defense counsel, subpoenaed Judge Orval Anderson to testify in the Marine trial as seven of the twelve cases allegedly “fixed” by the Marine defendants concerned cases pending while Orval Anderson was the presiding judge. John Marine’s defense counsel subpoenaed Orval Anderson because he believed Judge Anderson would be in the best position to clarify what, if any, role John Marine played in the ticket fixing scheme. On direct examination, Judge Anderson testified in general terms concerning the operations and procedures of his court. On cross-examination the government attempted to determine what impact, if any, the defendants in the Marine trial could or might have had on cases pending in Judge *922 Anderson’s court. In the course of the government’s cross-examination, the following colloquy occurred:
“Q. Did you ever dispose of a case in chambers where a prosecutor wasn’t present?
A. No.
Q. Did you—
A. I assume you’re talking about misdemeanors. You are not talking about traffic infractions?
Q. No, I’m talking about D.U.I.s. [Driving Under the Influence charges]
A. No, no. Always prosecutors there.”
After the conclusion of the Marine trial, the government presented Judge Anderson’s testimony to a federal grand jury, together with other evidence demonstrating that his testimony in the Marine trial was false. The grand jury returned a three-count indictment against Judge Orval Anderson charging him with giving false material testimony at the Marine trial and obstructing justice. Count 1, based on the testimony set forth above, charged that Orval Anderson violated 18 U.S.C. § 1623 in making a false material declaration that he knew was false in that he had disposed of numerous criminal cases between January 1, 1980 and April 1983 involving the charge of Driving Under the Influence of an intoxicant 3 in the Lake County, Indiana, County Court, in his chambers without the presence of a prosecutor. Count 2 of the indictment also alleged that Orval Anderson knowingly made a false material declaration in his testimony during the Marine trial when he “did knowingly declare ... that during any hearings in misdemeanor cases he conducted in his chambers, either a court reporter was present or a tape recording of the proceeding was made during the period January 1, 1980 through April, 1983.” Count 3 of the indictment charged Judge Anderson with obstructing the administration of justice in giving false and misleading testimony under oath in the Marine trial.
The government’s evidence at Judge Orval Anderson’s trial included, inter alia, the testimony of eight individuals arrested and charged with Driving Under the Influence of intoxicants (DUI) whose cases were disposed of by Judge Anderson in his chambers without the presence of a prosecutor. 4 The government also introduced the testimony of Nick Thiros (John Marine’s defense counsel), the transcript of John Marine’s testimony from his own trial, the transcript of Nick Thiros’ closing argument in the Marine trial, the transcript of Judge Anderson’s testimony at the Marine trial, and the indictment charging John Marine and Kenneth Anderson. Following a jury trial the defendant Orval Anderson was found guilty of the false material declaration charged in Count 1, but not guilty of the false material declaration and the obstruction of justice charges contained in Counts 2 and 3.
Orval Anderson appeals his conviction on Count I, raising the following issues: 1) whether the trial court erred in giving its instruction No. 23 and in refusing to give the defendant’s tendered instruction No. 24; 2) whether the court erred in determining that Judge Anderson’s false statements were material; and 3) whether the defendant-appellant’s response to the question asked by the prosecutor was “not responsive to the question asked and [was] literally true” and thus could not be the basis of a conviction for violating § 1623.
II.
A. Jury Instructions
The trial court’s jury instruction No. 23 provided:
*923 “In the operation of their courts and carrying out their judicial duties, Indiana state court judges are governed by a Code of Judicial Conduct adopted by the Indiana Supreme Court.
As applicable to this case the Code of Judicial Conduct provides in part:
A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law ... and, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.
The term ex parte means without the other party. An ex parte proceeding, therefore, is any judicial proceeding at which only one party is present.
The criminal cases which are at issue in this trial were adversarial cases. That is, on one side is the prosecuting attorney on behalf of the State of Indiana, and, on the other side is the defendant charged with the particular misdemean- or.
In any action by a judge, whereby proceedings are conducted which bear on the outcome of a pending criminal case, the Code of Judicial Conduct requires the presence of both the prosecuting attorney and the defendant.
Thus, the submission of a guilty plea by a defendant, whether accepted by the judge or not, requires the presence of a prosecuting attorney.”
Orval Anderson claims that instruction 23 sets forth an erroneous statement of Indiana law and misconstrues Canon III A(4) of the Indiana Code of Judicial Conduct. He argues that the State of Indiana statute does not require the presence of a prosecutor at the taking of a guilty plea in a misdemeanor case. He thus contends that the district court’s instruction in effect, erroneously gave the cited Indiana Canon of Judicial Ethics the force and effect of law. Judge Anderson emphasizes that the Canon III A(4) states “a judge should accord to every person who is legal-, ly interested in a proceeding, or his lawyer, a full right to be heard ...”, but fails to employ mandatory language such as the word “shall.”
The rule in this circuit is that, “[i]n determining the propriety of instructions they are to be viewed as a whole, and as long as the instructions treat the issues fairly and accurately they will not be interfered with on appeal.”
United States v. Croft, 750
F.2d 1354, 1366 (7th Cir.1984) (quoting
United States v. Ray,
“Judicial ethics have been increasingly formalized during the twentieth century. This formalization is in part attributable to intensified public interest in the efficient and orderly administration of justice____ In [approving the new Judicial Article to the Indiana Constitution] the citizens of Indiana squarely placed the responsibility for disciplining judges upon this Court. Pursuant to this mandate, we adopted on March 8, 1971, the Code of Judicial Conduct and Ethics under which respondent is charged.”
Judge Anderson also contends that the trial court’s giving of this jury instruction No. 23 substantially prejudiced his right to a fair trial in directing the jury to an issue they were not required to decide since Count 1 of the indictment fails to allege that a prosecutor must be present at the submission of a misdemeanor-defendant’s guilty plea. We disagree since any possible prejudice to the defendant resulting from the giving of instruction No. 23 was minimal, if any, due to the limiting instruction given as the court’s jury instruction No. 25.
“I caution, menlbers of the jury, that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendant is not on trial for any act or conduct or offense not alleged in the indictment.
Thus, whether or riot the defendant acted properly or improperly in failing to have a prosecutor present at proceedings in chambers as alleged; or, whether or not the defendant acted properly or improperly in failing to cause recordings to be made of proceedings in chambers as alleged; are not issues for you to determine. The defendant is on trial only for the offenses charged in the indictment, that is whether he knowingly made false declarations at a trial in a U.S. District Court or whether he knowingly sought to obstruct justice by giving false and misleading testimony at that trial.”
We hold this clear and explicit limiting instruction adequately protected Judge Anderson in directing the jury to determine only whether he was guilty of the crimes charged in the indictment — whether he made a false material declaration in a trial in a U.S. District Court.
Orval Anderson further maintains that the trial court erred in refusing to give the defense requested jury instruction, numbered 24, that provided:
*925 “You are instructed that the statutes of the State of Indiana, the Indiana Rules of Trial Procedure and the Code of Judicial Conduct are the sole authorities for directing what procedures are to be used by all courts in the State of Indiana for the handling of cases.
You are further instructed that there is no statute or rule of procedure in the State of Indiana that requires that a prosecutor be present or that a court reporter be present or that a tape recording be made of a guilty plea to a driving under the influence charge or misdemeanor made by a defendant.
You are further instructed that the laws of the State of Indiana and the rules of procedure specifically authorize a judge to accept a guilty plea and sentence a defendant pursuant to that guilty plea without the attendance of a clerk or other court officials.”
“A criminal defendant, while entitled to an instruction on [his] theory of the case, has no right to ... a charge which is incorrect, confusing, or misleading.”
United States v. Harrelson,
B. Materiality
We next turn to Judge Anderson’s contention that the government failed to produce sufficient evidence on the issue of materiality to permit the court to determine as á matter of law that his alleged false statements were material to the
Marine
trial. In concluding that Orval Anderson's allegedly false testimony was material to the
Marine
trial, the district court reviewed “matters submitted on the issue of materiality, which included, but is not limited to the testimony of Judge Anderson, the indictment and other matters submitted to the court for review____” According to Judge Anderson, the trial court could not properly find his testimony to be material to the
Marine
trial because “None of the recognized means for proving materiality in cases of false swearing before a grand jury as set forth in
United States v. McComb,
“[Establishing a nexus between the grand jury’s investigation and the defendant’s false statement] can be done by any of a variety of means. The foreperson or some other member of the grand jury may be called to establish the investigation’s scope. The attorney who presented the government’s case to the grand jury might be called to testify. The transcript of the grand jury proceedings might be introduced into evidence, or the indictments returned by the grand jury might be examined.”
Id.
(citations omitted). Relying on
McComb,
the defendant Orval Anderson asserts: 1) that there is no authority for calling Nick Thiros, counsel for defendant John Marine in the
Marine
trial, to establish the scope of that trial; 2) that the
Marine
indictment does not allege any wrong-doing by the
Marine
defendants in Judge Anderson’s court; 3) that the closing argument of Nick Thiros is not evidence and thus could not be considered by the district court in establishing the materiality of Judge Orval Anderson’s testimony; 4) and that it was error for the court to consider only partial transcripts from the
Marine
trial, citing language from
United States v. Cosby,
“To be punishable under § 1623(a), a false statement must be ‘material’ to the court proceeding in which it is made.”
United States v. Scivola,
In the present case, Judge Anderson does not claim that the testimony of Nick Thiros, the transcript of Thiros’ closing argument in the
Marine
trial, the
Marine
indictment, or the transcripts of John Marine’s and Orval Anderson’s testimony at the
Marine
trial were unfairly prejudicial. Rather, Anderson is arguing in essence that the matters which the trial court allegedly improperly considered were mere surplusage and thus irrelevant as to the issue of the materiality of Judge Anderson’s allegedly false testimony. As noted above, the trial court has “broad discretionary powers in determining the relevancy of evidence,”
Green,
*927 Judge Anderson asserts that he “has found no authority where a defense attorney was called upon to testify by the government to establish the scope of the trial in which he was defending.” But, as noted above, the Federal Rules of Evidence provide that relevant evidence is to be admitted unless excluded by law. Judge Anderson has presented no caselaw, nor have we discovered any, that supports the exclusion of a defense attorney’s testimony at a subsequent perjury trial concerning why the attorney called the witness charged with perjury in the previous trial he defended where the attorney’s testimony is relevant in establishing the materiality of that witness’ testimony at the prior trial. In the present case, Nick Thiros testified at Judge Anderson’s trial that: 1) seven of the twelve cases set forth in the Marine indictment allegedly fixed by the Marine defendants were originally assigned to Judge Anderson’s court; 2) it was “important to the defense in the trial of Marine and [Kenneth] Anderson as exactly to what procedures were used by Judge [Orval] Anderson ... concerning the handling of and processing of DUI cases;” 3) he wanted Judge Orval Anderson to testify regarding the procedures employed in his court to establish that “Marine would have no say-so as to how [cases] were disposed of in [Judge Anderson’s court];” and 4) he maintained in his closing argument at the Marine trial that Marine could not have participated in fixing cases in Judge Anderson’s court because “the evidence suggested he had no connection with” Judge Anderson’s court. Thiros’ testimony is clearly relevant in establishing the scope of the Marine trial, John Marine’s theory of defense and the materiality of Orval Anderson’s testimony at the Marine trial. We conclude the district court did not abuse its discretion in accepting Nick Thiros’ testimony for the limited purpose of determining the materiality of Orval Anderson’s allegedly false statement.
Judge Anderson also contends the trial court could not properly consider Nick Thiros’ closing argument in the Marine trial when determining the materiality of Orval Anderson’s allegedly false testimony. It is true that a closing argument is not considered as evidence in the trial. Exhibit 15 of Mr. Thiros’ closing argument in the Marine trial was submitted to the court only for the limited purpose of the court ruling on its materiality — the exhibit was neither submitted to the jury nor received in evidence. (Trial transcript p. 1670). The transcript of Nick Thiros’ closing argument at the Marine trial recites, inter alia:
“[L]adies and gentlemen of the jury, if John Marine were in the business of fixing cases for money, you don’t have people walk up before the Judge and admit guilt and have findings of record. You don’t do that. You go behind the back door. You go out, as Mr. Kinney suggested, in a corner somewhere and you transfer money back and forth.
There is no evidence that any of that ever happened [here].
* * 9k 9k 9k ' 9k
... Does it look like — you observed Mr. Anderson, Judge Anderson testify. Does it appear to you that he’s the type of person who will let someone from outside his court come in and run it for him or do anything he’s not supposed to? I submit to you he is not.
9k 9k 9k >k * >k
[The persons whose cases were allegedly fixed] appeared in court, they appeared before a judge. Recommendations were made by the prosecutor, were [sic] applicable. Contacts were made where the prosecutor — with the prosecutor where necessary, and things were done in accordance with the law.”
This excerpt from Nick Thiros’ closing argument in the Marine trial is relevant to establish John Marine’s reason for calling Judge Anderson as a witness (to establish that it was impossible for him to have any influence in DUI cases pending in Lake County County Court) and also to demonstrate that materiality of Judge Orval Anderson’s testimony in the Marine trial.
*928 Although Judge Anderson is correct that the Marine indictment did not allege that the Marine defendants had engaged in wrongdoing in Orval Anderson’s court, the Marine indictment alleged that the Marine defendants “fixed” 13 cases in the Lake County, Indiana County Court. Nick Thiros testified that “some” of the 13 cases alleged in the Marine indictment as being fixed “were disposed of” in Judge Anderson’s court. Therefore, Judge Anderson’s testimony that he never disposed of cases in his chambers without the presence of a prosecutor was clearly material to the issues raised by the Marine indictment regarding the fixing of cases in his chambers. Given this chain of reasoning leading from the Marine indictment to the materiality of Judge Anderson’s testimony, the Marine indictment is clearly relevant to establish the materiality of Judge Anderson’s false testimony.
The defendant also maintains that the trial court erred in considering the transcripts of John Marine and Judge Orval Anderson’s testimony at the
Marine
trial since their testimony represents only a partial transcript of the entire proceedings. Orval Anderson would apparently require the government to submit the entire voluminous
Marine
trial transcript in his trial. Judge Anderson states that “sole reliance on the testimony of the defendant at the
Marine
trial is erroneous,” citing this court’s language in
McComb
that “it is generally not good procedure to rely only on the defendant’s grand jury testimony.”
Judge Anderson finally contends that the district court’s finding that his testimony at the
Marine
trial was material is inconsistent with the jury’s acquittal of Judge Anderson on Count 3 of the indictment. According to Judge Anderson, the jury, in finding him not guilty of the crime of obstructing justice as charged in Count 3, “necessarily had to determine that the Defendant did not endeavor to ‘influence, obstruct, and impede’ the administration of justice by giving false and misleading testimony under oath.” Although specific intent to impede the administration of justice is an essential element of a violation of 18 U.S.C. § 1503 (obstruction of justice),
United States v. Moon,
“whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury or permitted under § 1746 of title 28, United States Code) 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 not more than $10,000 or imprisoned more than five years or both.”
18 U.S.C. § 1623(a). Thus § 1623 fails to contain any requirement that the defendant making the false statement have the specific intent to impede the administration of justice. The fact that the jury found Orval Anderson not guilty of obstruction of justice in Count 3 is not inconsistent with the court’s finding that his testimony in the Marine trial that he never disposed of DUI cases in his chambers without the presence of prosecutors was material. We hold the district court properly determined that Judge Orval Anderson’s false statement in the Marine trial concerning the disposition of DUI cases was material.
C. The Falsity of Judge Orval Anderson’s Testimony
The defendant-appellant maintains that his answers to the government’s questions were not false and therefore were insufficient to support a conviction on the charge of perjury. Judge Anderson emphasizes that prior to the alleged false material testimony, the government asked him seven questions using the word “hearing”:
“Q Mr. Thiros talked to you about who was present in court when you had hearings in court, do you remember those questions by him?
A Did he say something about that?
Q Well, do you recall telling him that one of the three girls was present in court when you had the hearings in court?
A Yes. Yes.
Q Who else would be present in court when you would have hearings in court?
A You would have the bailiffs, the court reporters, clerk and myself.
Q Were your hearings always held in court during the period of January 1st, 1980 through April of 1983?
A Except in unusual circumstances.
Q In those unusual circumstances, where would the hearings be held?
A In the chambers.
Q And who would be present at that time?
A Court reporter, prosecutor, also in the courtroom prosecutor — court reporter, prosecutor. If the court reporter wasn’t available, why we would tape record the proceedings.
Q To your knowledge were any proceedings ever held — strike that.
What were the special circumstances that would warrant a hearing in chambers as opposed to the courtroom?
A Well someone that’s not able to appear in open court, they get violently ill or something like that, or it’s a request of the prosecutor, confidential informant, something like that.
Q Were there ever cases , where you had hearings in chambers which did not involve the prosecutor?
A No.
Q Did you ever dispose of a case in chambers where a prosecutor wasn’t present?
A No.
Q Did you—
A I assume you’re talking about misdemeanors. You are not talking about traffic infractions?
Q No, I’m talking about D.U.I.S.
A No, no. Always prosecutors there.”
He maintains that from the government’s line of questioning, he could have
*930
construed the question concerning the disposition of eases involving the charge of Driving Under the Influence of Intoxicants to be whether or not he had ever held “hearings” on DUI cases in chambers without the presence of a prosecutor. The defendant-appellant contends that the government failed to present any evidence that “hearings” were held without the presence of the prosecutor as the term “hearing” is commonly defined in legal parlance.
6
Judge Anderson concedes that eight witnesses testified that they pleaded guilty to DUI charges in his chambers out of the presence of a prosecutor, but contends that accepting guilty pleas in chambers is not equivalent to a “hearing.” Orval Anderson thus asserts that because the government used the word “hearing” in its prior questioning, his response to the government’s question “was at best equivocal and literally true.” In support of his contention, Judge Anderson relies on
Bronston v. United States,
Judge Anderson’s claim that accepting guilty pleas in chambers is not equivalent to a “hearing” is without merit. Judge Anderson’s acceptance of a guilty plea and his entry of a final disposition in DUI cases in his chambers terminated the formal proceedings by the state against the DUI defendants and is thus obviously encompassed within the definition of the term “hearing.” Furthermore, a review of the Supreme Court’s decision in
Bronston
reveals that the defendant-appellant Anderson’s reliance on that case is misplaced. In
Bronston,
the prosecuting attorney asked the defendant whether he ever had any bank accounts in Swiss banks. Rather than disclosing that he previously had an account in Geneva, he stated that his company had an account in Zurich for about six months. The answer was misleading and not responsive to the question asked, but was truthful if viewed in isolation. The court held that an unresponsive but literally true answer to questioning cannot support a conviction for perjury.
Id.
at 362,
“Appellant contends that if we accept his interpretation of the question his answer was literally true. This argument is based on a misunderstanding of Bronston. Here, the answer is true only if one of two asserted interpretations of the question is accepted. In Bronston, there was no such choice to be made; the question was clear and unambiguous. The distinction between the two cases becomes clearer when the answers themselves are compared. In Bronston, the answer was a full, explanatory sentence, the truthfulness of which would be determined without reference to the question. Here, the answer was simply ‘No’; the truthfulness of that answer can be determined only by first looking to the question. Bronston simply did not deal with a yes or no answer given to a question susceptible to more than one interpretation.”
*931
In the present case, the defendant’s explanation, offered after conviction, is a “contrived hypertechnical [and] lame interpretation” of his response to the government’s question that is almost unworthy of a legal response. The government asked Anderson, “Did you ever dispose of a case in chambers where a prosecutor wasn't present?” Anderson answered “No.” Anderson then clarified the question, asking the government attorney, “I assume you’re talking about misdemeanors. You are not talking about traffic infractions?” The government attorney explained “No, I’m talking about DUIs.” After obtaining this explanation, Anderson stated, “No, no. Always prosecutors there.” Judge Anderson’s response clearly was sufficiently explicit, direct, and responsive to the government’s question to satisfy the jury beyond a reasonable doubt that the defendant-appellant Orval Anderson knowingly made a false material statement. We hold that Judge Orval Anderson’s testimony in the Marine trial that he never disposed of a DUI case in his chambers without the presence of prosecutors was a false material statement within the meaning of § 1623 and thus supports his conviction for knowingly making a false material declaration before a United States District Court.
III.
The judgment of the district court is Affirmed.
Notes
. "§ 1623. False declarations before grand jury or court.
(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under § 1746 of title 28, United States Code) 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 more than 5 years, or both.” 18 U.S.C. § 1623.
. Orval W. Anderson is not related to Kenneth Anderson, the defendant in the Marine trial.
. During the relevant time period (January 1, 1980 through April 1983) it was a Class A misdemeanor to operate a motor vehicle while intoxicated. Ind.Code § 9-4-l-54(b)(l) (repealed 1983). A misdemeanor is a criminal offense in Indiana. Ind.Code § 35-41-1-6.
. In addition, none of these eight individuals had a distinct recollection of a court reporter being present in Judge Anderson’s chambers when he handled their DUI offenses or that a tape recorder recorded the proceedings in his chambers.
. The Code of Judicial Conduct and Ethics was the predecessor to the Indiana Code of Judicial Conduct, which was adopted in 1975. The court’s instruction No. 23 referred to and quoted language from the 1975 Indiana Code of Judicial conduct.
. Anderson cites Black’s Law Dictionary definition of hearing: "proceedings of relative formality, generally public, with definite issues of fact or law to be tried, in which parties proceeded against have the right to be heard, and is much the same as a trial.”