Appeal from the United States District Court for the Central district of Illinois, Eastern Division. No. 79-CR-20012 -- Harold A. Baker, Judge .
Before Cummings and Cudahy, Circuit Judges, and Jameson, Senior District Judge.*fn**
Defendant Burnell Watson was convicted after a jury trial of making false statements before a grand jury in violation of 18 U.S.C. § 1623(a).*fn1 The grand jury before which Watson allegedly testified had been impaneled in Danville, Illinois,*fn2 to investigate possible violations of the federal antitrust and mail fraud statutes involving conspiracies to rig bids on municipal and state highway construction projects. The indictment*fn3 charged Watson, a highway contractor, with making a false declaration when he responded in the negative to the following question:
Have you ever asked any other contractor to submit a bid higher than the amount which you intended to submit?
On appeal, Watson raises five alleged errors and asserts that he is entitled at least to a new trial. Finding each of his objections lacking in merit, we affirm the conviction.
I. Sufficiency of the Evidence
Watson argues that the evidence adduced at trial was insufficient to prove that he ever asked any other contractor to submit a bid higher than the amount which he intended to submit.*fn4 Because a holding in Watson's favor on this point would preclude a retrial, see Burks v. United States, 437 U.S. 1, 15-17, 98 S. Ct. 2141, 2149-2150, 57 L. Ed. 2d 1 (1978), it is important to consider this argument initially. After reading the record and viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Zarattini, 552 F.2d 753, 761 (7th Cir.), cert. denied, 431 U.S. 942, 97 S. Ct. 2661, 53 L. Ed. 2d 262 (1977), we find we must reject Watson's contention.
To convict Watson the jury was required to find that, in testifying under oath before a grand jury, he knowingly made a false declaration as to a material*fn5 fact when he denied ever having requested a complementary bid. See United States v. Whimpy, 531 F.2d 768, 770 (5th Cir. 1976). Watson himself admitted he had appeared before the grand jury and given the testimony which formed the basis for the indictment in this case. To prove the elements of falsity and knowledge, the government called three other road building contractors, Henry Eppel, Virlon Suits, and Leonard Tobey to testify about the bidding procedures for numerous contracts for which they competed together with Watson. Both Suits and Tobey testified that on several occasions Watson had told them what amount their bids should exceed. Watson has brought to our attention inconsistencies in the testimony of the government witnesses as well as questions about their credibility. These problems were brought out at trial, and we believe they are matters properly left for resolution by the jury. United States v. Consolidated Packaging Corp., 575 F.2d 117, 128 (7th Cir. 1978). Similarly, we find Watson's contention on appeal that he had no motive to seek complementary bids was also an argument presented to the jurors and apparently rejected by them. We see no warrant in the record for disturbing the verdict.
II. Evaluation of Materiality of the Alleged Falsehood
As another ground for reversal, Watson contends that the court improperly applied a preponderance-of-the-evidence standard instead of a beyond-a-reasonable-doubt test in evaluating the materiality of his statement to the grand jury. Although proof of a statement's materiality, defined as its "effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation," see United States v. Devitt, 499 F.2d 135, 139 (7th Cir. 1974), cert. denied, 421 U.S. 975, 95 S. Ct. 1974, 44 L. Ed. 2d 466 (1975), is an essential element of the crime charged in the indictment, it is well settled that the determination of materiality is a question of law for the court. See United States v. Smith, 538 F.2d 159, 163 (7th Cir. 1976); United States v. Demopoulos, 506 F.2d 1171, 1176 (7th Cir. 1974), cert. denied, 420 U.S. 991, 95 S. Ct. 1427, 43 L. Ed. 2d 673 (1975). Cf. Model Penal Code § 241.1 (1962). "Since the issue of materiality is a legal question, not a question of fact, the government need not prove materiality beyond a reasonable doubt . . . ." United States v. Giacalone, 587 F.2d 5, 7 (6th Cir. 1978), cert. denied, 442 U.S. 940, 99 S. Ct. 2882, 61 L. Ed. 2d 310 (1979).*fn6 Neither do we believe, as the government contends, that the prosecution need show materiality by a preponderance of the evidence. As a question of law, there cannot appropriately be any evidentiary or factual burden with respect to the issue of materiality. A question of law is by definition susceptible of only two answers: "yes," the requirements of legal principle are met or "no," they are not met. There is, in theory at least, no continuum of assurance and dubiosity as to the establishment of a proposition of law similar to the varying degrees of certainty and uncertainty which may be ascribed to propositions of fact. Although the trial judge here stated he determined materiality by a standard of "more probably true than not true, by the preponderance of the evidence," we believe this reference to evidentiary standards may be regarded as gratuitous and harmless. We find the government has shown (and the district court has concluded) that defendant's alleged false declaration to the grand jury was material. The declaration had a "tendency . . . to influence . . . (the grand jury's) investigation."
III. Compliance with the Speedy Trial Act
Watson urges error in the district court's denial of his motion to dismiss for failure to place him on trial within the time limit required under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.*fn7 Without addressing the merits of the parties' contentions regarding calculation of time periods under the Act, we note that dismissal is the appropriate sanction for the violation alleged by Watson. 18 U.S.C. § 3162(a)(2). Under the terms of the Act, however, this sanction applies only "to all cases commenced by arrest or summons, and all informations or indictments filed, on or after July 1, 1980." 18 U.S.C. § 3163.*fn8 Until that time, the sanction of dismissal is inapplicable under the express language of the statute. United States v. West, 607 F.2d 300, 305 n. 5 (9th Cir. 1979); United States v. DeJesus Moran-Rojo, 478 F. Supp. 512, 513 (N.D.Ill.1979). Accord, United States v. Hooper, 596 F.2d 219, 224 (7th Cir. 1979) (finding the sanction of dismissal unavailable before its original effective date); United States v. Gandara, 586 F.2d 1156, 1161 (7th Cir. 1978) (same).
The first indictment in this case was filed on May 18, 1979, and was dismissed on motion of the government on July 11, 1979. Watson was reindicted on August 8, 1979. It is indisputable that his prosecution commenced prior to July 1, 1980. Accordingly, the sanction of dismissal is ...