United States District Court, Northern District of Illinois, E. D
April 9, 1973
UNITED STATES OF AMERICA
The opinion of the court was delivered by: McMILLEN, District Judge.
DECISION and ORDER
This case came on for a bench trial on the indictment of
defendant for perjury under 18 U.S.C. § 1623. By means of a
bill of particulars and a motion for acquittal at the close of
the prosecution's case, the issue has been reduced to whether
or not defendant knowingly testified
falsely when he gave the following answers under oath in the
criminal trial of Edward Speice:
Q. Now, did you ever drive in an automobile
from the Hyatt House to the Thirsty Whale
accompanied by Edward Speice?
A. No, I haven't.
Q. Do you recall whether or not you have ever
seen Edward Speice at the Thirsty Whale?
A. No, I haven't.
Q. You have not or you don't recall it?
A. I don't believe I have ever seen him there.
These questions and answers afford a timely and interesting
application of the recent Supreme Court decision in Bronston
v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568
(1973), decided under the similar provision of 18 U.S.C. § 1621.
The rule in that decision, although not new, makes it
incumbent to prove beyond a reasonable doubt that the defendant
both literally and as a matter of substance lied under oath.
A close examination of the questions and answers quoted
above convinces the court that the defendant did not commit
this offense within the meaning of Bronston, and that the
questioner had the duty to make the question and answer
unambiguously specific if it was to support a charge of
perjury. It should be noted in passing that the questions
contained in the indictment were being posed by an attorney for
a defendant, but that the government had an opportunity to
cross-examine. As the court pointed out in Bronston at 93 S.Ct.
Precise questioning is imperative as a predicate
for the offense of perjury.
The answer to the first question, "did you ever drive an
automobile from the Hyatt House to the Thirsty Whale
accompanied by Edward Speice?", was not proved to be false in
substance. The evidence showed that defendant probably drove
from the Hyatt House alone and picked up a passenger en route
to the Thirsty Whale. There is no testimony that defendant had
any passenger on leaving the Hyatt House, although he was
observed in that act by at least two government agents. His
answer was literally true and therefore not perjurious under
Bronston at 93 S.Ct. 601.
We have not overlooked two other possible defects in this
question and answer. One is the contention that the question
was so broad as to be immaterial. The other is that the answer
is not responsive. As indicated at the time of trial, we
believe the question was material because it covered the date
of the alleged transaction and contributed to the defense of
Edward Speice. The unresponsiveness is a matter of grammar
rather than substance, in our opinion, and constitutes a
negative answer to the question. But, as indicated above, a
negative answer was literally true, so far as the evidence in
this case shows.
The second question did result in an unresponsive answer
which was therefore ambiguous. Thus its literal untruthfulness
cannot be determined. Since the answer was ambiguous, and at
most answered a question which had not been asked, the
defendant cannot be found guilty of perjury beyond a
reasonable doubt on this response. Bronston, 93 S.Ct. at 601.
The third question was propounded in an attempt to resolve
the ambiguity, but the defendant's answer was evasive: "I
don't believe I have ever seen him there." This was not a
direct answer to the question and is merely a statement of
defendant's state of mind. Even if the prosecution had proved
that defendant saw Speice at the Thirsty
Whale in June 1971, it has not proved what his belief was at
the time of testifying nine months later. It is impossible to
determine the defendant's state of mind beyond a reasonable
doubt when he testified on March 13, 1972, particularly when
that finding must be based on inferences from circumstantial
The foregoing findings relieve the court from the difficult
task of resolving the issues of credibility which exist in
this case. However, were we to do this, we would find that the
prosecution did not prove beyond a reasonable doubt that the
defendant drove Edward Speice to the Thirsty Whale on June 23,
1971. The reasonable doubt arises from the fact that all of
the agents except one had only casual, peripheral, and
somewhat fleeting views of Speice before their identification
in February of the following year, that the government's
witness Crimaldi did not see Speice on June 23, 1971 although
he knew him and should have seen him if he was there, that one
agent who had a leisurely opportunity to observe Speice was
shown to have an imperfect memory of the interior and
modus operandi of the Thirsty Whale where the observation was
made, and, finally, that the manner of making the
identification of Speice on February 22, 1972 was not
spontaneous except by agent Haight who had had only imperfect
observations of Speice on the previous occasion in June and who
had pointed him out to the other agents in order to confirm his
own identification. We do not believe that this combination of
circumstances produces the clear and convincing evidence on
which a felony conviction must rest. Under these circumstances,
we will refrain from comment on the weight to be given the
testimony of the other witnesses who testified for the
The court therefore finds and concludes that the defendant
is not guilty of violating 18 U.S.C. § 1623 as charged in the
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