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. e du/thir dc ir c uit_1999/35Filed February 10, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-7250

UNITED STATES OF AMERICA, Appellant

v.

FRANK SERAFINI

On Appeal from the United States District Court for the Middle District of Pennsylvania

D.C. No. 97-cr-00225-6 District Judge: Hon. Thomas I. Vanaskie

Argued October 6, 1998

BEFORE: SLOVITER AND COWEN, Circuit Judges and POLLAK, District Judge*

(Filed: February 10, 1999)

Bruce Brandler (argued) Office of United States Attorney

228 Walnut Street

P.O. Box 11754 Harrisburg, PA 17108

Attorney for Appellant

___________________________________________________ ______________ * Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.Sal Cognetti, Jr. (argued)

Foley, Cognetti & Cowley
507 Linden Street Scranton Electric Building Scranton, PA 18503-1666

Daniel T. Brier Myers, Brier & Kelly 108 North Washington Avenue
Suite 700 Scranton, PA 18503

Attorneys for Appellee

OPINION OF THE COURT

POLLAK, District Judge.

This is an appeal by the government from an order o f the District Court for the Middle District of Pennsylva nia granting in part, and denying in greater part, a mo tion to
dismiss the one count of a 140-count indictment whi ch pertains to defendant-appellee Frank Serafini. The count in question charges Serafini with six allegedly false statements to a grand jury.1 The motion to dismiss challenged all six charges. The District Court sustained five of the c harges but dismissed one. Dismissal of one of the charges was required, so the District Court concluded, because, in the court's view, the question that prompted the allege dly false answer could not support an allegation that the def endant
had made a "false material declaration" before the grand jury in violation of 18 U.S.C. S 1623(a).2 On this appeal, in

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1. The charging indictment lists six allegedly fals e statements. However, the District Court's memorandum opinion consolidate s two of those statements, apparently as a single basis of liabili ty. United States v. Serafini, 7 F.Supp.2d 529, 536 (M.D. Pa. 1998).

2. 18 U.S.C. S 1623(a) provides that "[w]hoever und er oath . . . in any proceeding before or ancillary to any court or gran d jury of the United States knowingly makes any false material declarati on . . . shall be fined under this title or imprisoned not more than five y ears, or both." The essentially equivalent crime of "perjury" -- "stat[ ing] or subscrib[ing]

any

2addition to addressing the substantive issue -- whe ther the

District Court rightly dismissed the contested port ion of perjury count 140 -- the parties, at this court's r equest, have also briefed the question whether, as the defe ndant contends, the government's appeal should be dismiss ed for want of appellate jurisdiction.

I

This prosecution stems from allegedly illegal campa ign contributions by Empire Sanitary Landfill (Empire), various of its officers and employees, and persons associat ed with those officers and employees. Michael Serafini, def endant Frank Serafini's nephew and an officer of Empire, i s alleged to have funneled Empire funds to various individual s as reimbursements, in contravention of the federal ele ction laws, for contributions ostensibly made by those in dividuals to Robert Dole's 1996 presidential election campaig n. Frank Serafini, a Pennsylvania state legislator during th e period in question, is thought by the government to have rece ived some of the Empire money, to have kept a portion of it as
a reimbursement for his own contribution to the Dol e campaign, and to have passed the balance on to his legislative aide, Thomas Harrison, as a reimburseme nt for a contribution made by Harrison.

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material matter [one] does not believe to be true" after "having taken an oath before a competent tribunal, officer or person , in any case in which
a law of the United States authorizes an oath to be administered, that [one] will testify, declare, depose, or certify tru ly" -- is defined in 18 U.S.C. S 1621. As this opinion reflects, the case l aw treats "false
material declaration" and "perjury" interchangeably. See Uni ted States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986) ("In the discussio n that follows we analyze the general rules that courts apply to the language of S 1623 -- treated the same as perjury under S 1621 -- and the n consider the defenses to perjury advanced by appellant in this c ase.").

A close kin to SS 1621 and 1623 is 18 U.S.C.S 1001, which imposes criminal liability on any person who, "in any matte r within the jurisdiction of the executive, legislative, or judi cial branch of the Government of the United States, knowingly and will fully ... makes any materially false, fictitious, or fraudulent stateme nt or representation." See Brogan v. United States, 118 S.Ct. 805 (1998).

3When Frank Serafini initially appeared before the g rand

jury investigating these matters, he invoked his Fi fth Amendment rights. The government then immunized him against prosecution. See In re Grand Jury, Misc. No . 95-98 (M.D.Pa. Apr. 29, 1997) (order compelling appearanc e and granting immunity except for "perjury, giving false statement, contempt" or otherwise failing to comply with the District Court's order.). The defendant was the n recalled before the grand jury and testified. Some months la ter, the grand jury handed down a 140-count indictment, char ging Michael and Frank Serafini, as well as four others, with a multiplicity of offenses. Count 140, the only count containing charges against Frank Serafini, alleged that he had committed six3 separate instances of false mate rial declaration while testifying. On Serafini's motion to dismiss count 140, the District Court found five of the six charged instances to be unproblematic but concluded that on e question was so framed that the answer could not su pport a false declaration charge. Accordingly, the Distri ct Court, while sustaining the bulk of count 140, dismissed t he subportion of that count that deals with Serafini's an swer to the faulty question. The government thereupon filed this interlocutory appeal from the District Court's dism issal of the sub-portion of count 140.

II

We are met at the outset by the defendant's content ion that we lack appellate jurisdiction.

The government, as appellant, invokes this court's jurisdiction pursuant to the Criminal Appeals Act o f 1970, as amended. That statute provides, in pertinent par t:

In a criminal case an appeal by the United S tates shall lie to a court of appeals from a decision, j udgment, or order of a district court dismissing an indi ctment or information or granting a new trial after ve rdict or judgment, as to any one or more counts, exce pt that no appeal shall lie where the double jeopardy c lause of the United States Constitution prohibits further prosecution.

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3. See supra note 1.

4**

The provisions of this section shall be libe rally construed to effectuate its purpose.

18 U.S.C. S 3731.

In the instant case, as noted above, the District C ourt struck one portion of the single count of the indic tment pertaining to Frank Serafini. Serafini points out t hat S 3731 authorizes appellate review of a district court ord er "dismissing an indictment . . . as to any one or mo re counts . . . ." Since the interlocutory order challenged b y the government dealt with only a part of one count, lea ving the balance of the count in place, Serafini contends th at we have no authority to review the District Court's ru ling. However, this court has held that the dismissal of a portion
of a count of an indictment is sufficient to establ ish appellate jurisdiction under S 3731 if the dismisse d portion of the count constitutes an independent ground of c riminal liability. United States v. Conley, 37 F.3d 970, 97 5 (3d Cir. 1994). Our holding was expressly based upon the authoritative construction of S 3731 announced by t he Supreme Court in Sanabria v. United States, 437 U.S . 54, 69 n.23 (1978). There, speaking through Justice Mar shall, a five-Justice majority stated:

We agree with the Court of Appeals . . . tha t there is no statutory barrier to an appeal from an or der dismissing only a portion of a count. One ex press purpose of 18 U.S.C. S 2731 (1976 ed.) is to permit appeals from orders dismissing indictments " as to any
one or more counts." A "count" is the usual organizational submit of an indictment, and it would therefore appear that Congress intended to a uthorize appeals from any order dismissing an indictm ent in whole or in part. Congress could hardly have meant appealability to depend on the initial decis ion of a prosecutor to charge in one count what could also have been charged in two, a decision frequently f ortuitous for purposes of the interests served in S 37 31. To so rule would import an empty formalism into a statute expressly designed to eliminate "[t]echnical distinctions in pleadings as limitations on appeals by th e United

5States." H.R. Conf. Rep. No. 91-1768, p. 21 (1970);

accord, S. Rep. No. 91-1296, p. 5 (1970).

In so ruling, the Court in Sanabria rejected the na rrower reading of S 3731 -- namely that the statute by its terms simply authorizes appellate review of an order dism issing "one or more counts," thereby precluding appellate review of an order dismissing only a portion of one count- - urged by Justice Stevens in a concurring opinion.4 To be sure, the Tenth Circuit, in United States v. Louisiana Pacifi c Corp., 106 F.3d 345 (10th Cir. 1997), has declined to foll ow the Sanabria majority's pronouncement with respect to S 3731: that pronouncement was, according to the Tenth Circ uit, "dictum," id. at 349, and not as persuasive as Just ice Stevens's reading of the statute.5 But the Tenth Ci rcuit's
decision in Louisiana Pacific stands alone. The oth er circuit courts that have addressed the issue have been guid ed by the Sanabria majority.6 Moreover, the Seventh Circu it,

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4. Justice Stevens argued that "[t]he statute does not refer to subunits

of an indictment or portions of a count but only to co unts, a well-known and unambiguous term of art." 437 U.S. at 78. (Ste vens, J., concurring) (internal quotations, brackets and citations omitte d).

Justice Stevens spoke only for himself. Three membe rs of the Court -- Justice White, who concurred, and Justice Blackmun and Justice (as he then was) Rehnquist, who dissented, did not underta ke to parse S 3731. But, since none of the three Justices expressed res ervations with respect to the jurisdiction of the First Circuit, whose dec ision the Court was reviewing, it would appear that all three, sub sile ntio, subscribed to the construction of S 3731 announced by Justice Marshal l for the Court. 5. Following Justice Stevens's view that "count" is "a well-known and unambiguous term of art," the Tenth Circuit reasone d that "the language of S 3731 is unambiguous in referring to a count, a nd the statute's purpose to eliminate technical distinctions in plea dings does not give us license to ignore the section's plain language." Lo uisiana Pacific, 106 F.3d at 349. Nor, the court opined, could the provi sion of S 3731 directing that the statute be "liberally construed" mandate an interpretation "fundamentally inconsistent with its plain language." Id. (citations omitted). The Tenth Circuit thus conclud ed that "[i]t is not mere formalism, nor an irrational result, to requir e the government to plead allegations in separate counts, a minimal bur den, in order to preserve its right to take an interlocutory appeal of the dismissal of

such

counts." Id.

6. See United States v. Oakar, 111 F.3d 146, 149-15 0 (D.C. Cir. 1997); United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United

6which has had occasion to construe S 3731 subsequen t to

Louisiana Pacific, has expressly taken issue with t he Tenth Circuit's analysis. Said the Seventh Circuit, speak ing through Judge Easterbrook, in United States v. Bloo m, 149 F.3d 649, 653 (7th Cir. 1998), "Sanabria's treatmen t of S 3731 was not dictum. It was no stray remark or as ide. It explains the Court's rationale and thus is part of the holding." We agree.7

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States v. Levasseur, 846 F.2d 786, 788 (1st Cir. 19 88), cert. denied 488 U.S. 894 (1988); United States v. Martin, 733 F.2d 1309, 1310 (8th Cir. 1984)(en banc), cert. denied sub nom. Eklund v. Uni ted States, 471 U.S. 1003 (1985); United States v. Marubeni America Corp ., 611 F.2d 763, 764-765 (9th Cir. 1980); United States v. Albertini , 568 F.2d 617, 621 (2d Cir. 1977). The position of the Fifth Circuit is no t entirely clear. Compare United States v. Woolard, 981 F.2d 756, 757 (5th Ci r.), reh'g denied, 990 F.2d 819 (5th Cir. 1993), with United States v. Ter ry, 5 F.3d 874, 876 (5th Cir. 1993).

7. Judge Easterbrook's explication of the integral role which the Sanabria Court's characterization of S 3731 played in its de cision warrants quotation (149 F.3d at 653):

The district court dismissed one theory of l iability in an indictment; the prosecutor appealed; both the court of a ppeals and the Supreme
Court concluded that S 3731 authorizes such an appeal if further prosecution would not be barred by the doubl e jeopardy clause. Disagreeing with the court of appeals, the S upreme Court held that the double jeopardy clause did bar retrial. It was this additional
conclusion that led the tenth circuit to cal l its treatment of S

3731 dictum. But the Court reached the double jeo pardy question only because its reading of S 3731 made it dispos itive. Had the majority agreed with Justice Stevens about the meanin g ofS 3731, it would have done as he urged: it would have ordered the appeal dismissed without turning to the Constitution. Longsta nding practice calls

for federal judges to explore all non-constituti onal grounds of
decision before addressing constitutional ones -- and especially to decide first whether any statute confers jurisdicti on. See [United States

v. Wilson, 420 U.S. 332, 336 (1975)]. See also Steel Co. v. Citizens

for a Better Environment, ___ U.S. ___, 118 S.Ct . 1012-16, 140 L.Ed.2d 210 (1998). That is what the Court did in Sa nabria. It would make
little sense to treat this wise effort to av oid constitutional
issues asan affront to Article III of the Constitutio n -- that is, as

producing only advisory opinions on the statutory issu es....

7What S 3731, as confirmed by Sanabria , contemplate s is

appellate review of a trial court order excising a portion of a count which, if not excised, would offer legal gr ounding for criminal culpability separate from whatever cul pability might accrue from any portion or portions of the co unt that
the trial court does not determine to be deficient as a matter of law.8 In the case at bar, the portion of count 140 excised by the District Court alleged the making by Frank Serafini of a false material declaration separate f rom the other false material declarations alleged against F rank Serafini by count 140 -- allegations which the Dist rict Court held to be properly cognizable as a matter of law. Given the separateness of the excised portion of co unt 140, we have appellate jurisdiction to review the Distri ct Court's
excision order.

III

A. Serafini's Testimony

Turning to the substance of the government's appeal , we begin by laying out, in some detail, the relevant p ortions of Frank Serafini's testimony during his second appear ance before the grand jury. That testimony began with va rious foundational matters, S. App. at 18-21, which inclu ded a denial by Serafini of being reimbursed for any poli tical contributions.9 The questioning then turned to Sera fini's

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8. Some circuit courts have employed the phrase"dis crete basis for the imposition of criminal liability" to describe the s eparateness of the excised and non-excised portions of a count that is necessary to support appellate jurisdiction under S 3731. See Bloom, 149 F.3d at 653, and Oakar, supra, note 6, 111 F.3d at 149-50. While rec ognizing that the "discrete basis" formulation has appeared to be a s erviceable shorthand in certain of the reported cases, we are not at thi s time fully persuaded that it adequately captures the many nuances thatS 3731 is likely to present. But this semantic question need not detain us in the case at
bar: if it is assumed that "discrete basis" is a su fficiently capacious

form of words, the case at bar fits comfortably within i t. Cf. Bloom, 149 F.3d

at 653-54.

9. Q. And did you bring any documents pursuant to the subpoena that required your appearance here today?

8relationship with Empire. S. App. at 22-44. Next,

government counsel inquired about the contribution Serafini had made to the Dole campaign, including a question about Serafini's motive for contributing. 10 Counsel also asked whether Michael Serafini (Frank's nephew ) had solicited the contribution and whether any others a t Empire
had solicited contributions from the defendant. S. App. at 47-50. Counsel next attempted to determine when and how
Frank Serafini became aware of similar contribution s to the Dole campaign by other members of the Serafini fami ly.

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A. I don't have the documents, I don't have the documents with me but the subpoena, because the subpoena didn' t require any. The way I read the subpoena, I have a copy of it , all documents
relative to political contributions you were reimburs ed for, and I was not reimbursed for any contributions.

S. App. at 22-23.

10. Q. Now, when we started out you talked to me about documents, that you didn't produce any because you were n't reimbursed for any contributions, that was your testimony. I wa nt to show you two documents here and see if you can identify t hem. I am going to mark, the first one I will mark as 267 and t he second one I will
mark as 268. First let's start with 267. Can you identify that

document?

A. That's a check to the Dole for President Campaign.

Q. And whose signature is on that check?

A. Mine.

***

Q. What prompted you on that occasion to con tribute to Dole's campaign?

A. Well, prior to this I had also, this, my nephew asked me for
this check, for this particular check.

Q. Michael Serafini?

A. Right.

S. App. at 44-45.

9At this point, counsel focused his questions on a $ 2,000

check from Michael Serafini11 to Frank Serafini, in quiring whether that $2,000 check was a reimbursement for F rank Serafini's campaign contribution.12 When the defend ant

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11. The check in question was drawn on the account of Michael Serafini and Melinda Marcotte. However, for the sake of conv enience it will be
referred to as a check from Michael Serafini.

12. Q. Let me show you a check that has been mar ked into evidence here, or I will mark it into evidence as 268 , it is a check dated April 25th of `95, on the account of Michael Seraf ini and Melinda Marcotte, payable to you for $2,000. Now, I will show you --

A. I saw this check last time I was here.

Q. All right. Now, the reverse of the check also has a signature,
is that your signature?

A. It is.

Q. Tell us when you first saw that check and what the circumstances were that you received it unde r?

A. I received this check the, probably the 2 5th and the circumstances, it is just a check, we, we fr equently transfer money among our, you know, between ourselves. I wo uld have assumed that this was for the repair of an automobil e or something, that he lives in my home, a reimbursement for someth ing.

Q. Who?

A. Michael.

Q. Michael lives in your home?

***

A. I have a home up in Covington that I don' t, it was given to me by my father, Michael stays there.

Q. So, you don't live together?

A. No, but this check could have been for an ything, I mean it could have been, at the time, if I recall, I was f ixing his car, his transmission went in his car, I had his car repaired, it could have been for a stereo, it could have been for a bet he had taken, for a bunch of other things.Q. It could have been for anything, it could have been for a trip

to, a reimbursement for anything --

10again denied being reimbursed, counsel asked if the fact

that the check written to him was part of a series of checks -- all written on the same day and all for either $ 1,000 or $2,000 to various people from whom Michael Serafini had solicited contributions -- would prompt him to chan ge his testimony about whether that $2,000 check he receiv ed
was a reimbursement for his contribution. The defen dant responded, "No. In my mind it was not a reimburseme nt."13

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A. Let's me say that.

Q. -- but my question is, was, isn't it a fa ct that that check was a direct reimbursement for your Dole contrib ution?

A. Absolutely not, in my mind. When he asks me for a thousand dollars for Bob Dole I would give it to him, I don't have to be reimbursed for that contribution. I gave to Bob Dole because I like

Bob Dole.

Q. That's not my question.

A. The reimbursement, in my mind, was not, t his was not a reimbursement in my mind, it just wasn't.

S. App. at 54-56.

13. Q. Now, that check is 431, if I showed you a series of checks starting in the low 400's going to about 450 , about 50 checks of which your check is in the middle?

A. Right.

Q. And they were all written to employees of Empire Sanitary Landfill, including the people you, family m embers that you just mentioned, Louis, Frances, Kimberly, John, a ll written on the same day, at or around the same time that Michael solicited
contributions from all of those people, would you draw--

A. $2,000?

Q. Yes, $2,000, each check, would that chang e your testimony about whether or not, in your mind, this was a reimbursement for your political contribution?

A. No. In my mind it was not a reimbursement . I don't have to be reimbursed to contribute to Bob Dole, a repu blican candidate for president, I just don't have to be reimburse d for that.

S. App. at 56-57.11Counsel then inquired about checks from close relat ives

of Serafini to the Dole campaign and checks from Mi chael Serafini to those same persons.14 After the defenda nt denied

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14. Q. So, it was totally coincidental that you, your father, Frances, Kim and John, were all solicited on the same day for a contribution
and all received checks from Michael at or a round the same period of time, all dated the same day, for the exa ct amount, that was all coincidental, that is your testimony as far as you know?

A. I am not aware of that.

***

Q. That is news to you, under oath, as you s it here today, that is news to you?

A. That they were all reimbursed, yes, that is news to me.

Q. No, that they all received checks?

A. I know my father received a check, my sis ter I am not sure, I
have no idea what she received.

Q. What about Kim and John?

A. No idea. My father, I know, received a ch eck, I am aware of that

--

***

Q. All right. We'll start with Frances Seraf ini, here is a check

dated April 27th of '95.

A. Okay.

***

Q. I am going to show you a check from Micha el Serafini and
Melinda Marcotte account to Frances Serafini for a thousand dollars dated April 25th, check number 430. Okay. Th e check that was made payable to you was dated April 25th, ch eck 431, consecutively numbered checks, correct?

A. Different amounts though.

Q. You said you wanted to see the checks?

A. Yeah, but I have never seen these checks, I have never, I am notaware of them at all.

12knowledge of many of the checks he was asked if, ha ving

been made aware of the existence of the checks, he still
maintained that there was no connection between his contribution and the $2,000 check from Michael Sera fini. When the defendant again denied any link, the dispu ted colloquy occurred:

Q: Is there any check that you received that reimbursed you other than that $2,000 check for your
contribution.

A: No.

Q: Is there another check that you are aware of that is connected to this investigation, to this Dol e contribution, other than the $2,000?

A: Not other than what you have shown me tod ay, no.

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Q. Well, now you have, I am showing them to you. I am going to show you the one for your father. All right. Here is a check on
Louis Serafini's account, also dated April 27th fo r a thousand dollars to Dole for President. Right, so, now we have a ll three on April 27th payable to Dole. Here is a check on Michael and Melinda's account to your father, Louis. For a thousand dollar s, this is check Number 429. So, now we have check 429, 430, and 431 , all coming out of Michael's account for those amounts, correct ?

A. Correct.

Q. Unfortunately I haven't brought all of th efiles here, but I am going to tell you, I am going to represent t o you that I have a

check payable to Bob Dole from Kimberly and John S carantino's account, and a similar check from Michael's account, for the same amount of money that they did it, in the same consecut ive number that we have just seen here, within the same series of numbers. Now that you are aware of that, I am going to ask you again, in your mind,
is there a connection between the check that you received and the contribution that you made to Dole?

A. In my mind?

Q. Yes?

A. The $2,000 check, no.

S. App. at 63-67.

13Q: Did you receive any other money, whether by cash,

or check, or any other form from Michael at or around the time period you made your Dole contribut ion other than this $2,000 check?

A: I can't specifically remember, however, w e transfer money back and forth quite often for differe nt reasons and I can't honestly say that there wasn't s ome kind of transfer, I mean, we do it all of the time.

S. App. at 67. (The disputed answer, reprinted here italicized, along with the question that triggered it, was referred to by the District Court as "statement 3," a convention that, for the sake of convenience and consistency, will be adopted here.) After the dispu ted colloquy, the defendant was shown a chart of checks written by Michael Serafini and asked if he could e xplain them.15 At that point, the questioning turned to ot her
issues.

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15. Q. I am going to show you an exhibit that ha s been marked into evidence as Grand Jury Exhibit 35. This is a chart of checks drawn on your nephew's account, Michael Serafini a nd Melinda Marcotte's account. It starts at check 426, and it goes to check 464, and

there is a series of $1,000, $2,000 checks drawn t o various individuals, do you see that?

A. Correct.

Q. Okay. First of all, let's go down the lis t and let me ask you do you recognize any of the names, do you know any of the individuals
on the list?

A. My father, my sister, myself.

[Omitted: A discussion of who the various persons o n the list were and
how the defendant knew them.]

Q. All right. So, the [people on the list] y ou know basically were people that were affiliated with Empire?

A. Correct, most of them I know were affilia ted with Empire.

Q. Right, now, your check here, this check 4 31, right?

A. Right.

14The $2,000 check referred to by counsel in the

challenged question was the check from Michael Sera fini to Frank Serafini which, so the government believed, w as to reimburse Frank Serafini for his $1,000 campaign contribution. At the time of this colloquy, governm ent counsel apparently had no clear idea why the reimbursement check was for $2,000 rather than $1,0 00. According to the government, its counsel only later

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Q. Frances is 430, Louis is 429, and Kim and John is 445, do you agree with me on that?

A. I do agree.

Q. At least that is what appears on this cha rt?

A. That is what is on that chart.

Q. And the chart indicates, at least, that b etween check 426 and check 464, there were a series of $1,000, $2 ,000 checks issued to
these individuals --

A. Right.

Q. -- out of Michael's account?

A. Correct.

***

Q. Right, and do you know for a fact, or do you know that that is [Michael Serafini's secretary's] handwriting , that she made out all

of

the checks?

A. No, I didn't know that.

Q. Did you know that she made out all of the checks based on a list that Michael gave her of all of the peo ple that had made
contributions to Dole?

A. No, I do not know that.

Q. Now, having looked at that chart and seei ng how your check is placed in there, is it your testimony that i t is totally
coincidental that your check is within a series of, this series of checks, and

that it has nothing to do with the Dole, your Dol e contribution?

A. Not in my mind it doesn't.S. App. at 68-73.

15acquired information that Serafini's aide, Thomas H arrison,

also contributed $1,000 to the Dole campaign and wa s reimbursed by Michael Serafini through Frank Serafi ni for doing so. Thus, according to the government, (a) th e $2,000

check from Michael Serafini served to reimburse bot h Thomas Harrison and Frank Serafini, but (b) the government did not know this at the time Frank Sera fini answered the challenged question. It is the governm ent's contention that -- contrary to the defendant's resp onse ("Not other than what you have shown me today, no." ) -- Frank was "aware of " two checks "other than the $2 ,000" that were "connected to this investigation, to this Dole contribution." One was a $1,000 check from Frank Se rafini to Thomas Harrison, and the other was a $1,000 chec k from Thomas Harrison to the Dole campaign.

B. Discussion

When a district court rules that, as a matter of la w, a question posed to a witness during his or her grand jury testimony cannot support an indictment for "false m aterial declaration," our review is plenary. United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986).

In evaluating statement 3, the District Court found that the context surrounding the disputed question estab lished

that the defendant could not have understood that h e was being asked the "broad, open-ended question", Seraf ini, 7 F.Supp.2d at 541, that the government contends was intended; accordingly, the District Court concluded that
statement 3 should be stricken from the indictment. The District Court reasoned that none of the questions either immediately before or after statement 3 raised any issue other than whether Frank Serafini "had personally r eceived any other reimbursement checks in connection with h is
contribution to the Dole Committee." United States v. Serafini, 7 F.Supp.2d at 541. Immediately before as king the disputed question, "the prosecutor questioned Frank Serafini whether he received any reimbursement chec ks other than the $2,000 from . . . Michael Serafini." Id. at 541. After the disputed question, "there was no spe cific follow-up question to demonstrate the breadth of th e prosecutor's inquiry." Id. at 541. Instead, the gov ernment

16asked whether the defendant had "receive[d] any oth er

money . . . from Michael at or around the time peri od" the defendant "made [the] Dole contribution." S. App. a t 67. The District Court observed that "[the] follow up q uestion demonstrates that the prosecutor and Frank Serafini were concerned only with whether he received other money s or checks from defendant Michael Serafini, not whether Frank
Serafini had solicited a check from someone else." Serafini, 7 F.Supp.2d at 541. The District Court, thus, held, with respect to the above line of questioning, that:

When viewed in context, this single question cannot reasonably be expected to have triggered in the witness' mind an understanding that the government wa s inquiring of Frank Serafini's reimbursement of Mr. Harrison. The focus of the prosecutor's ques tions was on Frank Serafini's receipt of the check for $2,000 from

Michael Serafini as reimbursement for Frank' s Dole
Committee contribution. In the context of th is questioning, Frank Serafini could not reason ably be expected to understand that the prosecutor w as asking a broad, open-ended question regarding check s from third parties to the Dole Committee.

Id., at 541 (emphasis in original).

The government now objects to the District Court's rulings on a variety of grounds. The government arg ues first that, in light of what it deems the unambiguo us meaning of the disputed question, the District Cour t erred by looking to the context within which that questio n arose. The government contends that the District Court wou ld only have been entitled to rely on the context had the question itself been inherently vague. We find this contention unpersuasive.

It is well-settled law that, in instances of some a mbiguity as to the meaning of a question, "it is for the pet it jury to decide which construction the defendant placed on t he question." United States v. Ryan, 828 F.2d 1010, 10 15 (3d Cir. 1987); accord United States v. Reilly 33 F.3d 1396, 1414 (3d Cir. 1994). However, "these general rules are not without limit . . . ." Ryan, 828 F.2d at 1015. One such limit is that an "excessively vague or fundamentally ambi guous"

17question may not form the predicate to a perjury or false

statement prosecution. Id. (quotations and citation s omitted). We have said that a question is "not amen able to jury interpretation," id., "when it is entirely unr easonable to expect that the defendant understood the question p osed to him," id. (quotations and citations omitted). In th e present case, the government contends that "none of the bro ad terms used in the question rendered it fatally ambi guous." Government's Brief at 29. The question -- awkwardly phrased though it is -- might, standing alone , be thought as a matter of syntax not to be fatally ambiguous. The problem is that, read in context, the question take s on a particular meaning wholly at odds with the "broad, openended" significance the government now seeks to att ribute
to it.

In Fotie v. United States, 137 F.2d 831, 842 (8th C ir. 1943), the Eighth Circuit, per Judge Riddick, in re versing a perjury conviction, admonished that "[a] charge of perjury may not be sustained by the device of lifting a sta tement of the accused out of its immediate context and thus g iving it a meaning wholly different than that which its cont ext clearly shows." That formulation has become an esta blished principle of law. See United States v. Cook, 497 F. 2d 753, 764 (9th Cir. 1972) (Ely, J., dissenting) dissentin g opinion reinstated as majority opinion in relevant part, 49 8 F.2d 286 (9th Cir. 1973); Van Liew v. United States, 321 F.2 d 674, 677-678 (5th Cir. 1963); Brown v. United States , 2 45 F.2d 549, 556 (8th Cir. 1957); United States v. Geller, 154 F.Supp. 727, 730 n. 3 (S.D.N.Y. 1957). In Van Liew, the Fifth Circuit, quoting Fotie, put the matter as fol lows:

The seriousness of the crime of perjury and the fact that it turns finally on the subjective know ledge and purpose of the swearer require that the Gove rnment not be allowed to predicate its case upon th e answer to a single question which in and of itself may be false,
but which is not shown to be false when read in conjunction with testimony immediately prece ding and following the alleged perjured statement. Th e oft- quoted [Fotie] rule is applicable here. `A c harge of perjury may not be sustained by the device o f lifting a
statement of the accused out of its immediat e context

18and thus giving it a meaning wholly differen t than that

which its context clearly shows.'

Van Liew, 321 F.2d at 677 (quoting Fotie , 137 F.2d 831, 842 (8th Cir. 1943)).

This court endorsed the Fotie rule in United States v. Tonelli, where we discussed the proper role of cont ext in assessing the meaning of questions posed to a witne ss during grand jury proceedings. 577 F.2d 194, 198 (3 d Cir. 1978). In that case, the defendant, Tonelli, was as ked about his participation in the placement of certain pensi on funds. Id. at 197. Although initially denying participatio n in the placement of those funds, when further questioning revealed that the government included in the notion of participation, "recommendations for someone to plac e any moneys in a particular bank," the defendant "explai ned that he had introduced his cousin" to persons involved i n the placement of those moneys. Id. We found that"by quo ting a question and answer in isolation, the indictment did not accurately represent the statements made by the def endant and in ignoring the qualifying definitions used by the prosecutor, it was misleading." Id. at 198. Affirmi ng the Fotie principle, we held the indictment defective. Id.

As our holding in Tonelli demonstrates, the meaning of individual questions and answers is not determined by "lifting a statement . . . out if its immediate con text," when it is that very context which fixes the meaning of the question. Id. In the present case, the government acknowledges "that the two surrounding questions de alt
with . . . whether Serafini was reimbursed for his Dole contribution." Government's Brief at 32. The govern ment argues, however, that the narrow subject matter of the antecedent and subsequent questions "does not restr ict the meaning of the question and answer sandwiched in between because that question and answer plainly concerned a different topic, the broader category o f checks, other than the suspected $2,000 check, that may hav e been connected to the grand jury's investigation." Id. ( emphasis in original). But the text of the "sandwiched" questio n, read in isolation as the government would have it read, har dly demonstrates that the question "plainly concerned a different topic," let alone serves to define that " different

19topic." The question inquired whether the witness w as

"aware" (itself a word of somewhat uncertain connot ation)
of "another check that is connected to this investi gation, to this Dole contribution, other than the $2,000." Two aspects of the question are immediately apparent. The first is that the question is marked by an awkward appositional
structure -- "another check . . . connected to this investigation, to this Dole contribution" -- likely to obscure its meaning. The second is that determining the que stion's meaning cannot be accomplished by reading the quest ion in isolation from the setting in which it was asked . In asking Serafini whether he was "aware" of"another c heck . . . connected to this investigation," counsel mig ht be thought to have been directing Serafini to think at large about all he had been asked. However the comprehens ive phrase "connected to this investigation" was immedi ately narrowed through the awkward appositional device to "connected to this Dole contribution," a phrase whi ch necessarily called on Serafini to focus on the imme diately antecedent questions. And that focus was only sharp ened by the phrase of exclusion, "other than the $2,000, " with which counsel concluded the question. In undertakin g to inject into the question sufficient intelligibility so that he could reply, Serafini was required by the question to treat the question as referentially sequential to questio ns he had just answered. This, in short, is an instance in wh ich a

court "must look to the context of the defendant's
statement to determine whether the defendant and hi s questioner joined issue on a matter of material fac t to
which the defendant uttered a false material declar ation." United States v. Sainz, 772, F.2d 559, 562 (9th Cir . 1984). Since the context of the disputed question demonstr ates that government counsel had been seeking informatio n regarding Michael Serafini's reimbursement activiti es, the question cannot support the limitlessly capacious construction the government would have it bear.

In the alternative, the government argues that, if turning to the context was appropriate, the District Court erred by concentrating on the immediate context of the quest ion. The government contends that an examination of the broader context supports its interpretation of the question. Appellant's Brief at 34. In support of this content ion, the

20government points out that: (1) prior to the disput ed

colloquy the defendant was shown several checks fro m 653<!>various persons to the Dole campaign and sev eral

apparently corresponding checks from Michael Serafi ni to those individuals, and (2), following the disputed colloquy the defendant was shown a chart listing sequentiall y numbered checks, drawn on Michael's account, all fo r either $1,000 or $2,000, to various individuals, mo st of whom were associated with Empire. Accordingly, in t he government's view, since "[t]he prosecutor . . . re ferenced numerous other checks that were suspected to have reimbursed the conduits for their contributions," " it was clear to Serafini, from the context, that the quest ion which led up to false statement 3 was not just concerned with checks that reimbursed him, but other checks connec ted to the investigation." Appellant's Brief at 34-35.

Close examination of the broader context relied on by the government does not, however, lend strength to the government's open-ended construction of the dispute d question. Prior to statement 3, the defendant was s hown a set of consecutively numbered checks drawn on Micha el Serafini's account: one payable to the defendant's sister, one payable to the defendant himself, and one payab le to his father. See supra note 11. The defendant was th en told that the government had "a check payable to Bob Dol e from [the defendant's niece and nephew], and a similar c heck from Michael's account, for the same amount of mone y that they did it, in the same consecutive number that we have just seen here, within the same series of numbers." S. App. at 67. Immediately after being shown and told about these checks, the defendant was asked "Now that you are a ware of that, I am going to ask you again, in your mind, is there a connection between the check that you received an d the contribution that you made to Dole?" S. App. at 67. The government, in this exchange, was focusing on wheth er Frank Serafini had been reimbursed by Michael Seraf ini, not on whether Frank Serafini had, himself, reimbur sed others. A similar pattern is evident in the questio ns put to the defendant, subsequent to statement 3, about the chart of checks. See supra note 12. That chart was a list ing of consecutively numbered checks, drawn on Michael Serafini's account, allegedly paid out as reimburse ments for

21contributions to the Dole committee. After being sh own the

chart, the defendant was asked whether he recognize d the names of the payees, and, after a discussion of who the various payees were and how he knew them, the defen dant was asked "Now, having looked at that chart and see ing how your check is placed in there, is it your testi mony that it is totally coincidental that your check is withi n a series of, this series of checks, and that it has nothing to do with the Dole, your Dole contribution?" The defendant responded, "Not in my mind it doesn't." S. App. at 73. Here, again, the focus was on whether Michael Serafini ha d
reimbursed the defendant for his contribution to th e Dole committee. Nothing in the exchange suggests that co unsel
or the defendant had in mind reimbursement checks written by Frank Serafini. The issue of whether the defendant was cognizant of additional checks -- whe ther reimbursement checks not written by Michael Serafin i, or campaign contributions not made by Frank Serafini-- was never joined.

Finally, the government argues that "[t]he District Court . . . attempted to shoe-horn this case into the[Uni ted States v. Slawik, 548 F.2d 75 (3d Cir. 1977)], Tonelli lin e of cases by criticizing the prosecutors for not asking more direct questions . . . ." Appellant's Brief at 35. The sug gestion that the District Court erroneously relied on Slawik is unconvincing. Slawik is not cited in the course of the
District Court's discussion of statement 3. Serafin i, 7 F.Supp.2d at 540-542. The District Court did, howev er, reason that "[t]he prosecutor could have asked Fran k
Serafini whether he had ever solicited or reimburse d another person for contributions to the Dole Commit tee and whether any checks existed to evidence such actions ." Id. at 541. Finding that "these simple and straight-forwar d questions, which would have extinguished any potent ial ambiguity, were never asked," id., the District Cou rt concluded that "[t]he prosecutor plainly led Frank Serafini to understand that he was being questioned as to wh ether he had personally received any other reimbursement
checks in connection with his contribution to the D ole Committee." Id. We agree with the District Court.

In Bronston v. United States, 409 U.S. 352 (1973), the

22unanimous Supreme Court discussed authoritatively t he

basic principles governing perjury prosecutions. In that case, the Court, speaking through Chief Justice Bur ger, held that 18 U.S.C S 162116 did not reach a defenda nt who provided a literally true but unresponsive answer w hile testifying as a witness at a bankruptcy hearing. Id . at 359, 361-362. Cf. United States v. DeZarn, 157 F.3d 1042 , 1043 (6th Cir. 1998) (upholding a perjury conviction, un der 18 U.S.C. S 1621, when the defendant's testimony"can reasonably be inferred to be knowingly untruthful a nd intentionally misleading, even though the specific question to which the response is given may itself be imprec ise."). In the course of its opinion, the Court in Bronston d rew upon the history of the crime of perjury. First, referri ng to the indepth Study of Perjury prepared by the New York Law
Revision Commission and submitted to the New York Legislature in 1935, the Court observed:

The seminal modern treatment of the history of the
offense concludes that one consideration of policy overshadowed all others during the years whe n perjury first emerged as a common-law offense: "that the measures taken against the offense must not be so severe as to discourage witnesses from appea ring or testifying."

Id. at 359.17 Next, the Bronston Court invoked both (Text continued on page 25)

___________________________________________________ ______________

16. Although decided under 18 U.S.C. S 1621, Bronst on sets forth underlying principles that apply to any perjury or false material declaration prosecution. See supra note 2.

17. In transmitting to the New York Legislature its Study of Perjury, the Law Revision Commission recommended amending the pe rjury provisions of the New York's Penal Law with two end s in view:

The Commission is impressed by the evidence showing that materiality is an inherently ambiguous term, that the courts have given it the widest variety of meanings, tha t it probably came into the law through misconception, and that by c onstruction it has been largely whittled away in the country of its origin. Nevertheless, the fact is recognized that materiality has become deeply imbedded in the judicial and professional consciousne ss of this state; that
it cannot, therefore, be easily eliminated from our law. Believing, however, that materiality as now defined by interpretation is a

23serious impediment to effective prosecution for perjury, and that

it discourages even the initiation of prosecuti ons, the Commission favors the addition of a degree of perjury f rom which the materiality
element is eliminated. It believes the that the mere fact of classifying the crime in general accord with the serious ness of the falsehood uttered -- at the same time making it plain to the jury than any intentional falsehood in a judicial or simil ar official proceeding
is a crime -- will facilitate a finding of guilt for the lesser offense.

The classification proposed still preserves the chance of conviction

and severe punishment in an unusual and egregiou s case. The addition of this second degree will also cover those cases in which false swearing is wilfully and knowingly committed in what at the time is
believed to be a material matter and with a deliberate intent to defeat the ends of justice although not tech nically material within

the rules of law.

The Commission is impressed by the weight an d variety of
statistical and other evidence adduced for t he conclusion that the present maximum penalty of twenty years impr isonment is altogether too severe and that this circumst ance also stands in the way of effective prosecution. Reduced penalt ies and the alternative of a fine for the second degree are accordin gly recommended.

To accomplish these ends, the Commission submitted a draft bill, which, in the spring of 1935, the Legislature adopted and Governor Lehman signed into law. L. 1935, ch. 632.

Since 1935, New York's law of perjury has evolved f urther -- from a two-tiered to a three-tiered structure. Perjury in the third degree, a misdemeanor, is "swear[ing] falsely." N.Y. Penal La w S 210.05. One "swears falsely" when one "intentionally makes a fa lse statement which [one] does not believe to be true (a) while giving testimony, or (b) under
oath in a subscribed written instrument." N.Y. Pena l Law S 210.0. "It should be here noted that materiality is not one of the requiste elements of the crime of perjury in the third degree..." Peo ple v. Tyler, 405 N.Y.S.2d, 270, 275 (App. Div. 2d Dept.), affirmed 4 13 N.Y.S.2d 295 (1978). Perjury in the second degree, a felony, con sists of "swear[ing] falsely" when one's "false statement is (a) made in a subscribed written instrument for which an oath is required by law, an d (b) made with intent to mislead a public servant in the performan ce of his official functions, and (c) material to the action, proceedi ng or matter involved." N.Y.Penal Law S 210.10. Perjury in the first degree -- a higher degree felony -- involves "swear[ing] falsely" when one's "false statement (a) consists of testimony, and (b) is material to the a ction, proceeding or
matter in which it is made." N.Y.Penal Law S 210.15

.24Wigmore and Montesquieu. And then the Court turned to

the pertinent federal case law. "The cases support the petitioner's position that the perjury statute is n ot to be loosely construed, nor the statute invoked simply b ecause a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth." Id. at 360.18 Importantly, for our purposes, the Bronston Court continued, "[t]he burden is on the questioner to pi n down the witness to the specific object of the questione r's inquiry." Id. Thus, Bronston stands for the proposi tion that "[p]recise questioning is imperative as a predicate for the offense of perjury." Id., at 362.

Accepting arguendo the government's claim that the disputed question was intended as an "unspecific question," we nonetheless see the lack of specifici ty as a form of imprecision whose "consequences . . . must be laid at the table of the questioner, not the questioned. " Sainz, 772 F.2d at 563. To the extent that, as Chief Justi ce Burger concluded in Bronston, "precise questioning is impe rative as a predicate for the offense of perjury," that requi red predicate is lacking with respect to the disputed q uestion put to Frank Serafini. We conclude, as did the Dist rict Court, that the context within which statement 3 wa s offered shows that Frank Serafini understood that h e was being asked whether, in connection with his contrib utions to the Dole campaign, he had received any reimburse ment checks from Michael Serafini other than the $2,000 check. As there is no allegation that -- with the question so understood -- the defendant's answer was false, tha t subportion of the indictment pertaining to statement 3 was rightly stricken.

Accordingly, the judgment of the District Court wil l be
affirmed.19

___________________________________________________ ______________

18. Among the cases cited by the Bronston Court was this court's decision in United States v. Slutzky, 79 F.2d 504 ( 3d Cir. 1935). 19. This court's affirmance of the judgment of the District Court is not to be taken as reflecting any view on the issues re ferred to by the government at page 3, footnote 1, of its letter bri ef of May 8, 1998. Any
such issue that remains after this case returns to the District Court may be addressed by that court.

25A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

26