Opinion
No. 02-40017-01-SAC
August 27, 2002
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to dismiss the indictment. (Dk. 22). The government has responded, and oral argument was held on August 7, 2002.
The indictment
The sealed indictment charges defendant with one count of making a false statement before the grand jury. It provides, in pertinent part, that defendant "knowingly made a false material declaration in that she stated to the effect that it was Janet Henderson and not Lavelle Henderson that owned the Cadillac Escalade that was parked in her garage," in violation of 18 U.S.C. § 1623. (Indictment, emphasis added.) The indictment then recites, among other matters, the following testimony in support of that assertion:
Now, you talk to Lavelle Henderson on a daily basis, don't you?
Yes.
And the Grand Jury investigation here is pretty much a regular topic of discussion, isn't it?
Yeah, I guess.
Okay. Did you call him when this Cadillac Escalade was seized?
Did I call Lavelle?
Yes.
I can't call him.
Did you have a conversation with him after that was seized?
Yeah, because he called, like, maybe five, ten minutes after they left, or whatever, and I was, like, "They just came and took Momma's truck," whatever, "They came and took the truck." I called Momma, whatever, she said, "Let them take it, whatever, he don't have anything to hide." You know, she talked to Ron on the phone herself.
She put that truck in her name, right?
That's her truck.
She bought it?
Yes she did.
She paid the money for it?
I don't know. I plead the Fifth, I'm not going to lie. I wasn't there, I wasn't there when it was purchased. I am not going to say.
You don't know that?
A. I plead the Fifth. I know it's hers. She drives the vehicle, she took it out of town to family outings, everything. Yes, its (sic) her vehicle.
Q. Okay. And she told you that?
A. Yeah, she told me that. She'll tell you that, too.
(Indictment).
Defendant contends that the indictment fails to allege with specificity which materially false statement by defendant forms the basis for the charge. Although the indictment asserts that defendant testified falsely regarding who "owned" the Cadillac, it is true that the government never asked defendant during her grand jury testimony who owned the Cadillac. Defendant asserts that the indictment's allegation that she stated "to the effect" that someone other than Lavelle Henderson owned the car in question does not sufficiently allege a materially false statement.
Oral argument
At oral argument, when defense counsel challenged the vagueness of the indictment, and asserted that the government had to prove the falsity of each statement included in the indictment, government's counsel responded:
the indictment clearly alleges the material false statement was the fact that Janet Henderson owned the vehicle and not Lavelle Henderson. The other language that's quoted from the defendant's grand jury testimony is to put the — put her testimony into context and demonstrates her exact testimony that led up to the statements regarding the ownership of the vehicle.
Additionally, at oral argument on this motion, counsel for the government and counsel for defendant both affirmatively represented to the court that the vehicle in question was in fact titled to Janet Henderson — Lavelle Henderson's mother, whom defendant referred to as "Momma" in her grand jury testimony. Specifically, counsel for the government stated:
this Cadillac was acquired with drug proceeds, and the defendant, or Lavelle Henderson, was the owner. It was titled in Janet Henderson's name to disguise his ownership and disguise the source of the funds with which that Cadillac was purchased. The whole idea in that line of questioning was to determine who the owner was. And [defendant] emphatically stated that Janet Henderson was in fact the owner of the Cadillac, which was false. It was Lavelle Henderson.
Counsel made the statement that the vehicle was titled in Janet Henderson's name for the purpose of having this court consider this fact in deciding this motion, thus the government cannot object to the court's reliance upon it. Although the court would not usually take into account matters outside the face of the indictment in deciding a motion to dismiss, it will do so here. The court will therefore examine what effect, if any, the fact that Janet Henderson was the title owner of the vehicle has upon the validity of the indictment for giving a false statement.
Standards for Dismissal of Indictment
Generally, an indictment is deemed constitutionally sufficient if it (1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprizes the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir. 1991). The general rule is that an indictment is to be tested "solely on the basis of the allegations made on its face, and such allegations are to be taken as true." (citations omitted.) United States v. Brown, 164 F.3d 518, 521 fn 3 (10th Cir. 1998).
One recognized exception to this rule applies, however, where the extrinsic facts are undisputed and neither party objects. Id., citing United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994). Under those narrow circumstances, a trial court is within its jurisdiction in ordering a pretrial dismissal based on the insufficiency of the evidence. Id., at 1087; See United States v. Wood, 6 F.3d 692 (10th Cir. 1993); United States v. Brown, 925 F.2d 1301, 1304 (10th Cir. 1991) ("it is permissible and may be desirable where the facts are essentially undisputed, for the district court to examine the factual predicate for an indictment to determine whether the elements of the criminal charge can be shown sufficiently for a submissible case."). See also United States v. Risk, 843 F.2d 1059 (7th Cir. 1988) (affirming pretrial dismissal based on undisputed facts established in discovery documents attached to defendant's motion to dismiss and the failure of the government to timely object.)
Based upon the precedent cited above, this court may dismiss a criminal charge at the pretrial stage under the limited circumstances where the operative facts are undisputed and the government fails to object to the district court's consideration of those undisputed facts in making the determination regarding a submissible case. Hall, 20 F.3d at 1088. Under this unusual scenario, a pretrial dismissal is essentially a determination that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt. Id.
False statements
A witness gives a false statement if, while under oath, "she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Weller, 238 F.3d 1215, 1222 (10th Cir. 2001), citing United States v. Dunnigan, 507 U.S. 87, 94 (1993). To establish a violation of § 1623(a), the government must prove that the defendant was under oath, that her testimony was given in a proceeding before a grand jury, that her testimony was false, that defendant knew her testimony was false at the time it was made, and that the testimony was material. United States v. Farmer, 137 F.3d 1265, 1266, n. 1 (10th Cir. 1998).
The Supreme Court has held that the general perjury statute (§ 1621) does not reach a witness' literally true, but unresponsive answer, even if the witness intends to mislead, and even if the answer is arguably `false by negative implication.' Bronston v. United States, 409 U.S. 352, 360 (1973) ("the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner's inquiry.) "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." Id., at 362.
Although Bronston dealt with a conviction under the general perjury statute, 18 U.S.C. § 1621, lower federal courts have uniformly relied on Bronston in reviewing false statement convictions under 18 U.S.C. § 1623, the statute charged here. See United States v. Eddy, 737 F.2d 564, 567 (6th Cir. 1984) (citing cases). The Tenth Circuit has narrowly construed the perjury and false statements statutes, and has quoted Bronson approvingly. See e.g., Farmer, 137 F.3d 1265 (holding that an ambiguous answer, untrue by its negative implication, is insufficient to support a charge under § 1623(a)); United States v. Larranaga, 787 F.2d 489 (10th Cir. 1986); United States v. Hilliard, 31 F.3d 1509, 1519 (10th Cir. 1994) (a defendant's truthful answer to a reasonable interpretation of an ambiguous question does not constitute perjury.)
The court recognizes that the above cases were decided post-conviction, rather than in pretrial motions to dismiss.
Application
The problem with the indictment, and the government's explanation of it during oral argument, is that it fails to specify which of defendant's statements are alleged to be false. The issue is not whether a general assertion of falsity may suffice for indictments pursuant to § 1623 in this jurisdiction. Here, the government included approximately one and one-half pages of defendant's testimony in the indictment, then admitted that only some of that testimony is alleged to be false, but failed to indicate, when given an opportunity to do so, which statements are alleged to be false and which are not.The government stated only that the false statements are the "fact that Janet Henderson owned the vehicle."
But the word "own" is not of sufficiently certain meaning to sustain a charge of perjury. The indictment states that defendant testified "to the effect" that Janet Henderson owned the vehicle, whereas she did not own the vehicle. There is no definition of the term "own" or any concrete specification of its content either in the indictment or in the statute. Without such definition or specification, the term has no certain meaning. See Black's Law Dictionary, 6th ed., p. 1105-1106 (defining legal owner, beneficial owner, equitable owner, and other terms as "owner").
Further, even the court remains uncertain as to which statement(s) of the defendant counsel believes constitutes testimony "to the effect" that Janet Henderson owned the vehicle, and which statements the government considers to constitute "other language," included only to place defendant's testimony into context. The indictment, by virtue of its overinclusive yet unspecific language fails to apprize the defendant of the nature of the offense so that she may adequately prepare a defense.
For example, a lay person would ordinarily not think that statements regarding another's possession and use of a vehicle are statements of "ownership" of a vehicle. According to the indictment and the representations of government's counsel, it follows that if defendant's statements regarding Janet Henderson's possession and use of the vehicle do not evidence ownership, they are not alleged to be false. If defendant's statements regarding Janet Henderson's use of the vehicle are thus accepted as true, any argument by the government that the mother was a bare legal title owner without any proprietary interest in the vehicle would be foreclosed.
Defense counsel was correct in stating at the hearing on this motion: "The [government] did not ask whether even though this vehicle was titled to Janet Henderson and she sometimes used it, the beneficial owner was in fact Lavelle Henderson."
On the other hand, perhaps the government does in fact, intend to allege that defendant's statement that "[Janet] drives the vehicle, she took it out of town to family outings, everything," relates to beneficial ownership, and is therefore false. See State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469 (1990) (examining K.S.A. 65-4135, now repealed) (finding that beneficial ownership, for purposes of forfeiture law, may be shown by evidence that the person insured the vehicle, paid for repairs, and possessed and used the vehicle.)
Additionally, it seems likely to the court that the government believes the following statements, because they appear to evidence ownership, are false:
Q. She put that truck in her name, right?
That's her truck.
She bought it?
Yes she did.
But given the uncontradicted fact that Janet Henderson had legal title to the vehicle, these statements are literally true because Kansas law defines a vehicle's `owner" as `a person who holds the legal title of a vehicle." K.S.A. § 8-126(n) (motor vehicle registration code); Heshion Motors, Inc. v. Trinity Universal Inc. Co., 229 Kan. 412, 414 (1981) (the purpose of K.S.A. § 8-135, regarding transfer of ownership of vehicles, is "to require the issuance of a certificate of title for every vehicle to be registered under the act, and to provide a means by which one may readily ascertain who is the owner of a motor vehicle . . .")
This vagueness in the indictment, which was not clarified even in small part by the government's statements at oral argument, is prejudicial to the defendant. Fed.R.Crim.P. 7(C)(1) provides that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The present indictment fails to meet that test.
Giving the government yet another chance to clarify the indictment, by way of a bill of particulars or otherwise, would be futile given the fact that defendant's statements of legal ownership are literally true. See United States v. Lattimore, 215 F.2d 847, 850 (D.C. Cir. 1954) ("Details in support of a valid count can be supplied by a bill of particulars, but a count which is too vague to be valid cannot be made valid by such a bill. The prosecutor, in supplying the particulars, cannot guess at what was in the grand jury's mind or ascribe a meaning to a charge by the grand jury if that meaning is not apparent upon the face of the indictment.)
Based upon the undisputed facts, the court finds that the indictment is so lacking in specificity that it is unconstitutionally vague. Alternatively, the court finds that there are no "affirmative false statements" in the answers given by defendant sufficient to support prosecution under § 1623. Under these unique circumstances, the court will grant the motion for a pretrial dismissal under Rule 12(b).
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Dk. 22) is granted.