Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. IP 76-60-CR - James E. Noland, Judge.
Swygert, Sprecher and Wood, Circuit Judges.
This appeal requires consideration of the materiality of certain testimony by defendant before a grand jury which formed the basis for his conviction by a jury of perjury, pursuant to 18 U.S.C. § 1621. We reverse.
The facts germane to our resolution of this case are as follows. In November 1975, the Grand Jury for the Southern District of Indiana was investigating the dynamite bombing of a plumbing company supply facility located in Anderson, Indiana. Defendant, an attorney licensed to practice law in the State of Indiana, was served with a subpoena at his residence in Anderson on Sunday, November 23, 1975, at 8:25 p.m. The subpoena required defendant Howard's appearance for testimony before the grand jury the next morning, November 24, 1975, at 9:00 a.m.*fn1 as well as production of certain documents pertinent to his representation of several of the persons arrested for the bombing and his association with one Dr. John D. Lind, whom defendant also represented at the time. Howard's appearance on November 24 was continued to December 16.
Howard again appeared before the grand jury, pursuant to subpoena, on December 16, 1975. Prior to this appearance, defendant had filed a motion to quash the subpoena, raising issues relating to the attorney-client privilege between himself and persons named in the subpoena. Following a hearing on December 16, Judge Noland granted Howard several days in which to demonstrate to the court that an attorney-client relationship existed between himself and Dr. Lind, and that Dr. Lind chose to invoke the privilege to preclude his lawyer's testimony. The court ruled that pending this determination, no questions relating to defendant's relationship to or association with Dr. Lind were to be propounded to Howard.*fn2
Following this hearing, the prosecutor questioned Howard as to whether he met with Dr. Lind either before or after appearing before the grand jury on November 24. Howard responded negatively, and testified that he drove his 1974 Chevrolet to his law partner's house on that morning and that his law partner, who represented Howard at that time, accompanied him to his grand jury appearance.
Howard was indicted for perjury some four months later, in April 1976.*fn3 In order to prove the falsity of his denial that he met with Dr. Lind on November 24, the Government introduced at trial the testimony of the agents who conducted the surveillance of Howard's residence, who stated that on November 24 at approximately 7:00 a.m., a gray 1972 Buick Riviera exited from Howard's garage. The two surveillance vehicles kept track of the Buick, and identified the driver as Howard. The agents lost track of the Buick approximately three blocks from St. John's Hospital in Anderson.
Howard controverted this evidence, testifying that he had arranged to meet Dr. Lind on November 24, in order to accompany his client to Boston to meet with a criminal defense attorney. However, these plans were altered when Howard was summoned to appear before the grand jury that morning, so Mrs. Howard drove Dr. Lind from the hospital to the airport in the Buick. This evidence was corroborated by Mrs. Howard, Howard's six-year old son, a neighbor, Dr. Lind and Mr. Kelley, Howard's law partner. Following the return of the jury verdict of guilty, defendant's post-trial motions for acquittal and for a new trial were denied by the trial court.
Howard advances a myriad of contentions in support of his claim for relief, including an assertion that the evidence does not support the jury verdict of knowing falsity. We deem it necessary to treat only one of the many issues raised extensively: whether the testimony embodied in the indictment satisfied the materiality requirement of 18 U.S.C. § 1621.
It is undisputed that the Government bears the burden of proving the materiality of testimony claimed to be false. The determination of materiality is evaluated at the time of the investigation, United States v. Anfield, 539 F.2d 674, 678 (9th Cir. 1976), and remains a question of law to be resolved by the court. United States v. Wesson, 478 F.2d 1180, 1181 (7th Cir. 1973); United States v. Rivera, 448 F.2d 757, 758 (7th Cir. 1971); United States v. Parker, 244 F.2d 943, 951 (7th Cir. 1957). This circuit has adopted the classic formulation of materiality; false testimony before the grand jury is material if it "has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation." Merely potential interference with a line of inquiry is sufficient to establish materiality, regardless of whether the perjured testimony actually serves to impede the investigation. United States v. Devitt, 499 F.2d 135, 139 (7th Cir. 1974); Wesson, supra at 1181. See also United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970); Vitello v. United States, 425 F.2d 416, 424 (9th Cir. 1970).
This broad formulation of materiality recognizes and preserves the historic extensiveness of the investigatory powers of the grand jury. However, no grand jury is free to wield its investigatory powers pursuant to an "unlimited charter." United States v. Doulin, 538 F.2d 466, 469 (2d Cir.), cert. denied, 429 U.S. 895, 50 L. Ed. 2d 178, 97 S. Ct. 256 (1976). The court retains a residuum of supervisory authority over the grand jury. United States v. Dionisio, 410 U.S. 1, 9, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); Branzburg v. Hayes, 408 U.S. 665, 688, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972); In re Gopman, 531 F.2d 262, 266 (5th Cir. 1976); In re Grand Jury Subpoena to Central States, Southeast & Southwest Areas Pension Fund, August Term, 1963, 225 F. Supp. 923, 925 (N.D. Ill. 1964). Although the court may not direct the course of a grand jury investigation, the judge must ascertain that the responses of a witness charged as knowingly false relate to a matter of inquiry properly within the ambit of the grand jury's investigative powers.
In the inquiries propounded to Howard which elicited his allegedly perjurious responses, the salient question was whether he met with his client, Dr. Lind, who was the subject of the grand jury's investigation, on the morning of November 24.*fn4 Generally, questions pertaining to a witness' conversations and meetings with a person who is the subject of the investigation, including any advice exchanged or arrangements made, are within the proper bounds of inquiry, and therefore concededly material. Here, however, this finding of materiality does not obtain, for the knowledge that an attorney met with his client, without more, could not possibly assist the grand jury in its investigation or influence it in its pursuit of facts. In and of itself, this fact is bereft of materiality.
The Government contends that the encounter between Howard and Dr. Lind which allegedly occurred on the morning of November 24 is more accurately characterized as a meeting between co-conspirators than one between a lawyer and his client. Were this assertion correct, the fact of a meeting would be material to the grand jury's investigation of various offenses against the United States. The Government's reasoning is flawed, however, because it ignores the primary fact that the actual character and purpose of this alleged meeting could be unearthed only through probing of Howard by the prosecutor regarding Howard's relations with Dr. Lind. Yet this area of investigation is precisely what the court's ruling encompassed; inquiry regarding Howard's association with Dr. Lind was temporarily, but absolutely, precluded until the existence and scope of an attorney-client privilege could be delineated. At the time that the questions concerning Howard's itinerary on the crucial morning were posed to him, the prosecutor could go no further than to ascertain what Howard's movements actually were. Although a meeting with Dr. Lind was suspected, the purpose for that meeting, as well as the content of what was discussed therein, were wholly improper subjects of inquiry, given the strictures of the court's ruling. Thus, neither the responses Howard made regarding his movements nor the true facts which he ...