Appeal from an Order of the United States District Court for the Northern District of Indiana, Hammond Division. No. HCR 85-10-Michael S. Kanne, Judge.
Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
The defendant-appellant Judge Orval W. Anderson was convicted of knowingly making a false material declaration in violation of 18 U.S.C. § 1623.*fn1 Judge Anderson's conviction was based upon testimony he gave in a trial in the District Court that he never disposed of criminal cases involving the charge of Driving Under the Influence of intoxicants in his chambers without the presence of prosecutors while presiding in the Lake County, Indiana, County Court system. Judge Anderson appeals. We affirm.
On February 15, 1985 Judge Orval W. Anderson testified as a witness in the trial of United States of America v. John Marine and Kenneth Anderson,*fn2 HCR 84-46 (the Marine trial), in the United States District Court for the Northern District of Indiana. The defendants in the Marine trial were charged with various federal crimes, including racketeering, mail fraud, and extortion resulting from an alleged ticket-fixing scheme operating within the Lake County court system. Nick Thiros, John Marine's defense counsel, subpoenaed Judge Orval Anderson to testify in the Marine trial as seven of the twelve cases allegedly "fixed" by the Marine defendants concerned cases pending while Orval Anderson was the presiding judge. John Marine's defense counsel subpoenaed Orval Anderson because he believed Judge Anderson would be in the best position to clarify what, if any, role John Marine played in the ticket fixing scheme. On direct examination, Judge Anderson testified in general terms concerning the operations and procedures of his court. On cross-examination the government attempted to determine what impact, if any, the defendants in the Marine trial could or might have had on cases pending in Judge Anderson's court. In the course of the government's cross-examination, the following colloquy occurred:
"Q. Did you ever dispose of a case in chambers where a prosecutor wasn't present?
A. I assume you're talking about misdemeanors. You are not talking about traffic infractions?
Q. No, I'm talking about D.U.I.s. [Driving Under the Influence charges]
A. No, no. Always prosecutors there."
After the conclusion of the Marine trial, the government presented Judge Anderson's testimony to a federal grand jury, together with other evidence demonstrating that his testimony in the Marine trial was false. The grand jury returned a three-count indictment against Judge Orval Anderson charging him with giving false material testimony at the Marine trial and obstructing justice. Count 1, based on the testimony set forth above, charged that Orval Anderson violated 18 U.S.C. § § 1623 in making a false material declaration that he knew was false in that he had disposed of numerous criminal cases between January 1, 1980 and April 1983 involving the charge of Driving Under the Influence of an intoxicant*fn3 in the Lake County, Indiana, County Court, in his chambers without the presence of a prosecutor. Count 2 of the indictment also alleged that Orval Anderson knowingly made a false material declaration in his testimony during the Marine trial when declaration in his testimony during the Marine trial when declaration in his testimony during the Marine trial when he "did knowingly declare ... that during any hearings in misdemeanor cases he conducted in his chambers, either a court reporter was present or a tape recording of the proceeding was made during the period January 1, 1980 through April, 1983." Count 3 of the indictment charged Judge Anderson with obstructing the administration of justice in giving false and misleading testimony under oath in the Marine trial.
The government's evidence at Judge Orval Anderson's trial included, inter alia, the testimony of eight individuals arrested and charged with Driving Under the Influence of intoxicants (DUI) Under the Influence of intoxicants (DUI) whose cases were disposed of by Judge Anderson in his chambers without the presence of a prosecutor.*fn4 The government also introduced the testimony of Nick Thiros (John Marine's defense counsel), the transcript of Nick Thiros' closing argument in the Marine trial, the transcript of Judge Anderson's testimony at the Marine trial, and the indictment charging John Marine and Kenneth Anderson. Following a jury trial the defendant Orval Anderson was found guilty of the false material declaration and the obstruction of justice charges contained in Counts 2 and 3.
Orval Anderson appeals his conviction on Count I, raising the following issues: 1) whether the trial court erred in giving its instruction No. 23 and in refusing to give the defendant's tendered instruction No. 24; 2) whether the court erred in determining that Judge Anderson's false statements were material; and 3) whether the defendant-appellant's response to the question asked by the prosecutor was "not responsive to the question asked and [was] literally true" and thus could not be the basis of a conviction for violating § 1623.
The trial court's jury instruction No. 23 provided:
"In the operation of their courts and carrying out their judicial duties, Indiana state court judges are governed by a Code of Judicial Court adopted by the Indiana Supreme Court.
As applicable to this case the Code of Judicial conduct provides in part:
A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to be heard according to law... and, neither initiate nor consider ex porte or other communications concerning a pending or impending proceeding.
The criminal cases which are at issue in this trial were adversrial cases. That is, on one side is the prosecuting attorney on behalf of the State of Indiana, and, on the other side is the defendant charged with the particular misdemeanor
In any action by a judge, whereby proceedings are conducted which bear on the outcome of a pending criminal case, the Code of Judicial Conduct requires the presence of both the prosecuting attorney and the defendant.
Thus, the submission of a guilty plea by a defendant, whether accepted by the judge or not, requires the presence of a prosecuting attorney."
Orval Anderson claims that instruction 23 sets forth an erroneous statement of Indiana law and misconstrues Canon III A(4) of the Indiana Code of Judicial Conduct. He argues that the State of Indiana statute does not require the presence of a prosecutor at the taking of a guilty plea in a misdemeanor case. He thus contends that the district court's instruction in effect, erroneously gave the cited Indiana Canon of Judicial Ethics the force and effect of law. Judge Anderson emphasizes that the Canon IIIA(4) states "a judge should accord to every person who is ...