The opinion of the court was delivered by: McMILLEN, District Judge.
Q. Now, did you ever drive in an automobile
from the Hyatt House to the Thirsty Whale
accompanied by Edward Speice?
Q. Do you recall whether or not you have ever
seen Edward Speice at the Thirsty Whale?
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 ...