UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4046

MICHAEL JOHN ACCETTOLA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-95-16)

Submitted: October 3, 1996

Decided: October 16, 1996

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul M. McKay, MCKAY & MCKAY, Wheeling, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Wheeling,

West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael John Accettola appeals his conviction, after a bench trial,

for making false statements to a grand jury of the United States in

violation of 18 U.S.C.A. § 1623(a) (West Supp. 1996) alleging there

was insufficient evidence to support the conviction. For the reasons

following, we affirm.

We must affirm a conviction attacked on the grounds of insufficient evidence if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson

v. Virginia, 443 U.S. 307, 319 (1979). The essential elements of 18

U.S.C.A. § 1623(a) are: (1) that the defendant's testimony was under

oath before a grand jury; (2) that the testimony given was false in one

or more of the respects charged; (3) that the false testimony was

knowingly given; and (4) the subject matter of the testimony was

"material" to the grand jury's investigation. United States v.

Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). To be material a

"statement must have `a natural tendency to influence, or [be] capable

of influencing,'" United States v. Gaudin, ___ U.S. ___, 63 U.S.L.W.

4611, 4612 (U.S. June 19, 1995) (No. 94-514) (quoting Kungys v.

United States, 485 U.S. 759, 770 (1988)), or have "the natural effect

or tendency to impede, influence or dissuade the grand jury from pursuing its investigation." Friedhaber, 856 F.2d at 642 (citation omitted).

In Accettola's sworn testimony before the grand jury, which concerned charges of distribution of controlled substances and conspiracy

or attempt to distribute controlled substances under 21 U.S.C.

§ 841(a)(1) (1994) and 21 U.S.C.A. § 846 (West Supp. 1996), Accettola denied that he had seen Tony Foglio and Rocco Mallicone

together at a hotel or that he had seen Mallicone pick up Foglio and

a marijuana shipment in a truck. The grand jury testimony directly

conflicted with written statements Accettola had previously made to

the Federal Bureau of Investigation as part of a plea agreement. The

prior statement in which Accettola had agreed to be"completely

forthright and truthful" was made in the presence of Accettola's

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defense counsel and reviewed by counsel to ensure accuracy and

truthfulness.* Thus, the district court found that, based upon the

detailed nature of the prior written statement and the circumstances

in the which the statement was given, Accettola knowingly gave false

testimony to the grand jury. The court also found that Accettola's

false statements were material because they cast light on whether a

drug conspiracy to distribute marijuana existed between Mallicone

and Foglio. Accordingly, we affirm the conviction because viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found Accettola guilty of violating 18

U.S.C.A. § 1623(a) beyond a reasonable doubt. Jackson, 443 U.S. at

319; Friedhaber, 856 F.2d at 642.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid in the decisional process.

AFFIRMED

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*Accettola's attorney read the statement to him verbatim and Accettola signed his name at the bottom of each page. Accettola initialed all

changes and corrections to the statement.

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