Appeal from the United States District Court for the Northern District of Illinois. No. 73-CR-75 PHILIP W. TONE, Judge.
Hastings, Senior Circuit Judge, Kiley, Senior Circuit Judge, and Campbell, Senior District Judge.*fn*
CAMPBELL, Senior District Judge.
Defendant Robert F. Devitt, a Chicago police officer, was indicted in a one count indictment for having made false statements before a grand jury in violation of 18 USC § 1623. Upon the jury's verdict of guilty, defendant was sentenced to three years' imprisonment.
The indictment charged that the defendant:
"did knowingly declare in substance before said Grand Jury with respect to the aforesaid material matters that he did not recall, remember, or have any knowledge, while in the performance of his duties as a Chicago police officer of ever accepting money from any person; that he did not recall, remember, or have any knowledge while in the performance of his duties as a Chicago police officer, of ever having accepted any money from any owner, operator, employee or agent of any tavern or business."
18 USC § 1623 provides, in pertinent part:
"(a) Whoever under oath in any proceeding before [a] . . . grand jury . . . knowingly makes any false material declaration . . ., shall be fined not more than $10,000.00 or imprisoned not more than five years, or both.
(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.:
At trial, the government presented testimony of four witnesses, each of whom operated a tavern in Chicago, Illinois, and each of whom testified to having paid money to defendant while Devitt was in the performance of his duties as a Chicago police officer. Defendant testified in his own behalf and denied receiving any such payments.
Defendant's first contention on appeal is that the indictment did not sufficiently allege, and the evidence was insufficient to prove, that, at the time he appeared before the grand jury, defendant was under oath administered by one authorized by law to administer oaths. The indictment in the instant case charged that defendant knowingly made a false material declaration "while under oath as a witness before the Special February 1971 Grand Jury of the United States of America, duly empaneled and sworn in the United States District Court for the Northern District of Illinois . . .". The indictment clearly alleged that defendant was under oath at the time he made the alleged false material declarations. The fact that the indictment does not allege that the oath was "administered by one authorized by law to administer oaths" is of no consequence. 18 USC § 1623 contains no such requirement.
Regarding the sufficiency of the evidence, the Justice Department attorney present during the grand jury proceedings testified at trial that Devitt was administered the oath by the foreman of the grand jury on February 23, 1972. The transcript of Devitt's testimony was subsequently introduced into evidence. We find no merit to defendant's contention that this evidence was insufficient to prove that he testified under oath.
We also reject defendant's assertion that the trial court invaded the province of the jury in failing to instruct the jury that the defendant must be found to have been under oath administered by one competent to administer oaths. As previously noted, 18 USC § 1623 requires neither that the indictment allege nor that the government prove that the accused took an oath "administered by one authorized by law to administer oaths". Moreover, defendant neither objected to the instructions relating to the administration of the oath nor tendered to the district court proposed instructions reflecting the position now advanced on appeal.
Defendant also argues that Instruction 29 was erroneous because it did not require that Devitt be found to have accepted money from any one or more of the tavern owners named in the indictment "in the performance of his duties as a Chicago police officer", as alleged in the indictment. The instructions, in their entirety, repeatedly advised the jury that defendant must be found to have accepted money "in the performance of his duties as a Chicago police officer", and viewed in their entirety, we find the instructions to the jury more than adequate. United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972).
To sustain a conviction under 18 USC § 1623, the defendant's false declarations must be "material". Conceding that the issue of materiality under 18 USC § 1623 is a question of law to be determined by the court, United States v. Wesson, 478 F.2d 1180, 1181 (7th Cir. 1973), United States v. Rivera, 448 F.2d 757 (7th Cir. 1971); United States v. Parker, 447 F.2d 826, 830 (7th Cir. 1971), defendant ...