Appeal from the United States District Court for the Eastern District of Wisconsin. No. 76-CR-130 - Robert W. Warren, Judge.
Before Castle, Senior Circuit Judge, and Tone and Bauer, Circuit Judges.
The issue presented by this appeal is whether a perjury conviction under 18 U.S.C. § 1623 may be sustained on a theory that defendant gave inconsistent answers on two occasions when the record indicates that defendant was not asked the same question on the two occasions. We hold that it may not.
Defendant Michael B. Laikin is a lawyer who represented the University National Bank in a loan transaction with Roland C. Hansen. Mr. Hansen borrowed $210,000 from the Bank, pledging as collateral a number of properties.*fn1 The two parcels of concern here were assigned a combined collateral value of $40,000 which considerably exceeded the assessed value of the parcels.*fn2 The two parcels together were insured for a total of $70,000 (Tr. 286). Three weeks after the closing in the above transaction, these two properties were burnt down and the government initiated an investigation into the possibility of arson. It was at this point that a man named Howard Bloom, who had put defendant in touch with Hansen for the loan transaction, approached defendant with the question of whether he had heard Hansen threaten arson at any point during the closing negotiations. Defendant denied hearing any such threat. Bloom then asked defendant whether he might have heard a joke about the properties. Defendant replied that he could not recall but that he could not rule out the possibility of a joke (Tr. 222).
The following month, Bloom called the defendant from the FBI's office. In the ensuing telephone conversation, which was taped by the government, Bloom told defendant that he had been talking with the FBI and just wanted to let him know what he had told them in case the FBI should question defendant. He said that he had told the FBI about Hansen's "joke" concerning the properties "not be(ing) around too long" and then asked defendant whether he recalled such a joke. Defendant responded that he vaguely recalled something to that effect but that it did not stand out like a red light.*fn3
At the grand jury hearing, where defendant is alleged to have committed the perjury, he was asked whether at any time before or during the closing "Mr. Hansen indicated to you with respect to at least one or more of his properties there would be no problem from the bank's standpoint because that property would be liquidated in the future in terms of some sort of a loss or casualty to that property." Defendant replied that he had "no specific recollection Of the statements or the thought you are asking about" and volunteered that he had previously told Bloom over the phone*fn4 that he really could not remember whether "that statement" had been made by Hansen.*fn5
At a later point in the grand jury hearings, defendant was asked whether he remembered Hansen making a statement such as "don't worry about some of this because there may be a fire or there may be some loss to this property and it's insured and you will get your money right away." Defendant replied that "that statement" had not been made in his presence. (Grand Jury Proceedings 35-36.)
Defendant was convicted following a bench trial in the United States District Court for the Eastern District of Wisconsin of knowingly making a false material declaration before a federal grand jury in violation of 18 U.S.C. § 1623. We reverse on the ground that the questions asked of defendant on the two occasions were objectively not the same and hence admitted of different answers consistently with the "literal truth" standard of Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568 (1973). Defendant may have himself thought that he was being asked the same question on both occasions, but intent to commit perjury does not constitute perjury. United States v. Williams, 536 F.2d 1202, 1207 (7th Cir. 1976).
As can be seen from an examination of the question asked of defendant by Bloom in the taped telephone conversation and the question asked by the Government in the grand jury hearings, the two are not the same. Bloom asked defendant whether he remembered Hansen saying something at the closing about the properties "not being around too long," whereas the Government asked defendant whether he remembered a Hansen comment about "loss or casualty" or "fire . . . or some loss" to property. Defendant's admission to a vague recollection of the former but to no recollection of the latter is not necessarily inconsistent. If his recollection were only of some Hansen comment about properties "not being around too long," he spoke the literal truth when he denied any recollection of a comment about loss, casualty, or fire because the Hansen comment he remembered did not necessarily carry any fire overtones.
Defendant may in fact have been aware that the Hansen comment contained a veiled reference to arson and he probably realized that the government was trying to find out whether he remembered any comment at all about the properties, including a comment about the properties "not being around too long." However, the Government did not ask him that precise question, and defendant was not required to answer the unasked question. "The burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry." Bronston v. United States, 409 U.S. 352, 360, 93 S. Ct. 595, 601, 34 L. Ed. 2d 568 (1973). What was said in Bronston with respect to the literally true but unresponsive answer holds equally true here:
Precise questioning is imperative as a predicate for the offense of perjury.
It may well be that petitioner's answers were not guileless but were shrewdly calculated to evade. Nevertheless, . . . any special problems arising from the literally true but unresponsive answer are to be remedied through the "questioner's acuity" and not by a federal perjury prosecution.
Bronston v. United States, 409 U.S. 352, 362, 93 S. Ct. 595, 602, 34 L. Ed. 2d 568 (1973). The rationale of the Bronston case was that an unresponsive answer should put the questioner on notice of the need to pin the witness down with more precise questioning. We are confronted here with the case of a literally true and Responsive answer. While in such a case the questioner does not have the warning flag of an unresponsive answer to put him on guard, the Government here should have realized that it was not asking defendant the same question as that put to him by Bloom in the telephone conversation, and hence was on notice that defendant's different answer could be literally true. The Government should not at this stage be able to argue around a mistake which it could have easily avoided at the time of questioning by following elementary witness-examining technique.
Because we are able to resolve the case on the basis of the questions asked of defendant on the two relevant occasions, we find it unnecessary to address defendant's other arguments relating to the ambiguity of his answers and the immateriality of his ...