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United States v. Nicoletti

November 23, 1962

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH NICOLETTI, DEFENDANT-APPELLANT



Author: Major

Before HASTINGS, Chief Judge, and CASTLE and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

The defendant was by verdict of a jury convicted of the crime of perjury, in violation of Title 18 U.S.C. ยง 1621. From a judgment entered thereon, defendant appeals.

The indictment charged that Joseph Nicoletti on the 24th of October, 1960, was called as a witness on behalf of the defendant in United States of America v. Anthony Joseph Accardo, who was being tried before Honorable Julius J. Hoffman in the United States District Court for the Northern District of Illinois, Eastern Division, and that during the course of the trial it became material for the Court and jury to learn whether the siad Accardo had performed any services for Premium Beer Sales, Inc., during the years 1956, 1957 and 1958.*fn1

The indictment also charged:

"(a) On October 24, 1960, the defendant Nicoletti testified in substance that he did not recall being interviewed by two agents of the Federal Bureau of Investigation during the year 1959, and, more particularly, that he did not recall being interviewed by two agents of the Federal Bureau of Investigation on May 26, 1959.

"The said testimony was false, as the defendant then and there well knew, in that he did recall and well knew that he had been interviewed by two agents of the Federal Bureau of Investigation in the year 1959, and, more particularly, that this interview took place on May 26, 1959.

"(b) On October 24, 1960, the defendant Nicoletti further testified in substance that during the aforesaid interview he did not make the following statements to two agents of the Federal Bureau of Investigation:

"1. That he went to high school with Bob Ord, a former official of Fox Head and took Fox Head 400 Beer only as a favor to Ord;

"2. That he was not acquainted with Jack Cerone, Anthony Accardo or Joseph Gagliano, and had had no dealings with these individuals.

"The said testimony was false, as the defendant then and there well knew, in that he had made each of the aforesaid statements to agents Inserra and Frankfurt of the Federal Bureau of Investigation on May 26, 1959 at Nicoletti's Restaurant, 5658 West Madison Street, Chicago, Illinois.

7. Therefore, on the occasion aforesaid, the defendant Nicoletti did willfully, knowingly and contrary to the oath above described, state material matters which he did not believe to be true, and was then and there guilty of perjury, in violation of Title 18, United States Code, Section 1621."

Defendant urges as grounds for reversal that the Court erred (1) in its denial of defendant's motion to dismiss the indictment for failure to state an offense; (2) in its denial of defendant's motion for a judgment of acquittal because of the insufficiency of proof; (3) in finding that the alleged false testimony was material, and (4) in failing to charge the jury properly as to the quantum of proof necessary to convict.

Defendant contends that the indictment was insufficient because of its vagueness and indefiniteness; that it set forth only the substance of the alleged perjurous testimony when it should have been set forth in haec verba, and that the allegations are not ...


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