1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-10-1999

USA v. Serafini

Precedential or Non-Precedential:

Docket 98-7250

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Recommended Citation

"USA v. Serafini" (1999). 1999 Decisions. Paper 35.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/35
Filed 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 of the 

District Court for the Middle District of Pennsylvania 

granting in part, and denying in greater part, a motion to 

dismiss the one count of a 140-count indictment which 

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 charges 

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 allegedly false 

answer could not support an allegation that the defendant 

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 

_________________________________________________________________ 

1. The charging indictment lists six allegedly false statements. However, 

the District Court's memorandum opinion consolidates two of those 

statements, apparently as a single basis of liability. 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 under oath . . . in any 

proceeding before or ancillary to any court or grand jury of the United 

States knowingly makes any false material declaration . . . shall be fined 

under this title or imprisoned not more than five years, or both." The 

essentially equivalent crime of "perjury" -- "stat[ing] or subscrib[ing] 

any 

 2 
addition to addressing the substantive issue -- whether the 

District Court rightly dismissed the contested portion of 

perjury count 140 -- the parties, at this court's request, 

have also briefed the question whether, as the defendant 

contends, the government's appeal should be dismissed for 

want of appellate jurisdiction. 

I 

This prosecution stems from allegedly illegal campaign 

contributions by Empire Sanitary Landfill (Empire), various 

of its officers and employees, and persons associated with 

those officers and employees. Michael Serafini, defendant 

Frank Serafini's nephew and an officer of Empire, is alleged 

to have funneled Empire funds to various individuals as 

reimbursements, in contravention of the federal election 

laws, for contributions ostensibly made by those individuals 

to Robert Dole's 1996 presidential election campaign. Frank 

Serafini, a Pennsylvania state legislator during the period in 

question, is thought by the government to have received 

some of the Empire money, to have kept a portion of it as 

a reimbursement for his own contribution to the Dole 

campaign, and to have passed the balance on to his 

legislative aide, Thomas Harrison, as a reimbursement for 

a contribution made by Harrison. 

_________________________________________________________________ 

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 truly" -- is defined in 18 

U.S.C. S 1621. As this opinion reflects, the case law treats "false 

material 

declaration" and "perjury" interchangeably. See United States v. Lighte, 

782 F.2d 367, 372 (2d Cir. 1986) ("In the discussion 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 then consider the 

defenses to perjury advanced by appellant in this case."). 

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 matter within the 

jurisdiction of the executive, legislative, or judicial branch of the 

Government of the United States, knowingly and willfully ... makes any 

materially false, fictitious, or fraudulent statement or representation." 

See Brogan v. United States, 118 S.Ct. 805 (1998). 

 3 
When Frank Serafini initially appeared before the grand 

jury investigating these matters, he invoked his Fifth 

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 appearance and 

granting immunity except for "perjury, giving false

statement, contempt" or otherwise failing to comply with 

the District Court's order.). The defendant was then recalled 

before the grand jury and testified. Some months later, the 

grand jury handed down a 140-count indictment, charging 

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 material 

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 one 

question was so framed that the answer could not support 

a false declaration charge. Accordingly, the District Court, 

while sustaining the bulk of count 140, dismissed the subportion of that count that deals with Serafini's answer to 

the faulty question. The government thereupon filed this 

interlocutory appeal from the District Court's dismissal of 

the sub-portion of count 140. 

II 

We are met at the outset by the defendant's contention 

that we lack appellate jurisdiction. 

The government, as appellant, invokes this court's 

jurisdiction pursuant to the Criminal Appeals Act of 1970, 

as amended. That statute provides, in pertinent part: 

 In a criminal case an appeal by the United States shall 

 lie to a court of appeals from a decision, judgment, or 

 order of a district court dismissing an indictment or 

 information or granting a new trial after verdict or 

 judgment, as to any one or more counts, except that no 

 appeal shall lie where the double jeopardy clause of the 

 United States Constitution prohibits further

 prosecution. 

_________________________________________________________________ 

3. See supra note 1. 

 4 
 ** 

 The provisions of this section shall be liberally 

 construed to effectuate its purpose. 

18 U.S.C. S 3731. 

In the instant case, as noted above, the District Court 

struck one portion of the single count of the indictment 

pertaining to Frank Serafini. Serafini points out that S 3731 

authorizes appellate review of a district court order 

"dismissing an indictment . . . as to any one or more counts 

. . . ." Since the interlocutory order challenged by the 

government dealt with only a part of one count, leaving the 

balance of the count in place, Serafini contends that we 

have no authority to review the District Court's ruling. 

However, this court has held that the dismissal of a portion 

of a count of an indictment is sufficient to establish 

appellate jurisdiction under S 3731 if the dismissed portion 

of the count constitutes an independent ground of criminal 

liability. United States v. Conley, 37 F.3d 970, 975 (3d Cir. 

1994). Our holding was expressly based upon the 

authoritative construction of S 3731 announced by the 

Supreme Court in Sanabria v. United States, 437 U.S. 54, 

69 n.23 (1978). There, speaking through Justice Marshall, 

a five-Justice majority stated: 

 We agree with the Court of Appeals . . . that there is 

 no statutory barrier to an appeal from an order 

 dismissing only a portion of a count. One express 

 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 authorize 

 appeals from any order dismissing an indictment in 

 whole or in part. Congress could hardly have meant 

 appealability to depend on the initial decision of a 

 prosecutor to charge in one count what could also have 

 been charged in two, a decision frequently fortuitous 

 for purposes of the interests served in S 3731. 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 the United 

 5 
 States." 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 narrower 

reading of S 3731 -- namely that the statute by its terms 

simply authorizes appellate review of an order dismissing 

"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 Pacific Corp., 

106 F.3d 345 (10th Cir. 1997), has declined to follow the 

Sanabria majority's pronouncement with respect to S 3731: 

that pronouncement was, according to the Tenth Circuit, 

"dictum," id. at 349, and not as persuasive as Justice 

Stevens's reading of the statute.5 But the Tenth Circuit's 

decision in Louisiana Pacific stands alone. The other circuit 

courts that have addressed the issue have been guided by 

the Sanabria majority.6 Moreover, the Seventh Circuit, 

_________________________________________________________________ 

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

of 

an indictment or portions of a count but only to counts, a well-known 

and unambiguous term of art." 437 U.S. at 78. (Stevens, J., concurring) 

(internal quotations, brackets and citations omitted). 

Justice Stevens spoke only for himself. Three members of the Court -- 

Justice White, who concurred, and Justice Blackmun and Justice (as he 

then was) Rehnquist, who dissented, did not undertake to parse S 3731. 

But, since none of the three Justices expressed reservations with respect 

to the jurisdiction of the First Circuit, whose decision the Court was 

reviewing, it would appear that all three, sub silentio, subscribed to the 

construction of S 3731 announced by Justice Marshall for the Court. 

5. Following Justice Stevens's view that "count" is "a well-known and 

unambiguous term of art," the Tenth Circuit reasoned that "the language 

of S 3731 is unambiguous in referring to a count, and the statute's 

purpose to eliminate technical distinctions in pleadings does not give us 

license to ignore the section's plain language." Louisiana Pacific, 106 

F.3d at 349. Nor, the court opined, could the provision 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 concluded that "[i]t is not 

mere formalism, nor an irrational result, to require the government to 

plead allegations in separate counts, a minimal burden, 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, 149-150 (D.C. Cir. 1997); 

United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United 

 6 
which has had occasion to construe S 3731 subsequent to 

Louisiana Pacific, has expressly taken issue with the Tenth 

Circuit's analysis. Said the Seventh Circuit, speaking 

through Judge Easterbrook, in United States v. Bloom, 149 

F.3d 649, 653 (7th Cir. 1998), "Sanabria's treatment of 

S 3731 was not dictum. It was no stray remark or aside. It 

explains the Court's rationale and thus is part of the 

holding." We agree.7 

_________________________________________________________________ 

States v. Levasseur, 846 F.2d 786, 788 (1st Cir. 1988), 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. United 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 not entirely clear. 

Compare 

United States v. Woolard, 981 F.2d 756, 757 (5th Cir.), reh'g denied, 990 

F.2d 819 (5th Cir. 1993), with United States v. Terry, 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 decision warrants 

quotation (149 F.3d at 653): 

 The district court dismissed one theory of liability in an 

indictment; 

 the prosecutor appealed; both the court of appeals and the Supreme 

 Court concluded that S 3731 authorizes such an appeal if further 

 prosecution would not be barred by the double jeopardy clause. 

 Disagreeing with the court of appeals, the Supreme Court held that 

 the double jeopardy clause did bar retrial. It was this additional 

 conclusion that led the tenth circuit to call its treatment of S 

3731 

 dictum. But the Court reached the double jeopardy question only 

 because its reading of S 3731 made it dispositive. Had the majority 

 agreed with Justice Stevens about the meaning ofS 3731, it would 

 have done as he urged: it would have ordered the appeal dismissed 

 without turning to the Constitution. Longstanding practice calls 

for 

 federal judges to explore all non-constitutional grounds of 

decision 

 before addressing constitutional ones -- and especially to decide 

 first whether any statute confers jurisdiction. 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 Sanabria. It would make 

 little sense to treat this wise effort to avoid constitutional 

issues as 
 an affront to Article III of the Constitution -- that is, as 

producing 

 only advisory opinions on the statutory issues.... 

 7 
What S 3731, as confirmed by Sanabria , contemplates is 

appellate review of a trial court order excising a portion of 

a count which, if not excised, would offer legal grounding 

for criminal culpability separate from whatever culpability 

might accrue from any portion or portions of the count 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 from the 

other false material declarations alleged against Frank 

Serafini by count 140 -- allegations which the District 

Court held to be properly cognizable as a matter of law. 

Given the separateness of the excised portion of count 140, 

we have appellate jurisdiction to review the District 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 portions of 

Frank Serafini's testimony during his second appearance 

before the grand jury. That testimony began with various 

foundational matters, S. App. at 18-21, which included a 

denial by Serafini of being reimbursed for any political 

contributions.9 The questioning then turned to Serafini's 

_________________________________________________________________ 

8. Some circuit courts have employed the phrase"discrete basis for the 

imposition of criminal liability" to describe the separateness 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 recognizing that the 

"discrete basis" formulation has appeared to be a serviceable shorthand 

in certain of the reported cases, we are not at this 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 sufficiently capacious 

form 

of words, the case at bar fits comfortably within it. 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? 

 8 
relationship 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 at 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 contributions to the 

Dole campaign by other members of the Serafini family. 

_________________________________________________________________ 

 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 reimbursed 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 weren't reimbursed for any 

 contributions, that was your testimony. I want to show you two 

 documents here and see if you can identify them. I am going to 

 mark, the first one I will mark as 267 and the 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 contribute 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. 

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

check from Michael Serafini11 to Frank Serafini, inquiring 

whether that $2,000 check was a reimbursement for Frank 

Serafini's campaign contribution.12 When the defendant 

_________________________________________________________________ 

11. The check in question was drawn on the account of Michael Serafini 

and Melinda Marcotte. However, for the sake of convenience it will be 

referred to as a check from Michael Serafini. 

12. 

 Q. Let me show you a check that has been marked 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 Serafini 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 under? 

 A. I received this check the, probably the 25th and the 

 circumstances, it is just a check, we, we frequently transfer money 

 among our, you know, between ourselves. I would have assumed 

 that this was for the repair of an automobile or something, that he 

 lives in my home, a reimbursement for something. 

 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 anything, I mean it could 

 have been, at the time, if I recall, I was fixing 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 -- 

 10 
again 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 change his 

testimony about whether that $2,000 check he received 

was a reimbursement for his contribution. The defendant 

responded, "No. In my mind it was not a reimbursement."13 

_________________________________________________________________ 

 A. Let's me say that. 

 Q. -- but my question is, was, isn't it a fact that that check was 

 a direct reimbursement for your Dole contribution? 

 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, this 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 members that you just 

 mentioned, Louis, Frances, Kimberly, John, all 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 change 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 republican candidate for 

 president, I just don't have to be reimbursed for that. 

S. App. at 56-57. 
 11 
Counsel then inquired about checks from close relatives 

of Serafini to the Dole campaign and checks from Michael 

Serafini to those same persons.14 After the defendant denied 

_________________________________________________________________ 

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 around the same period 

 of time, all dated the same day, for the exact 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 sit 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 sister 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 check, I am aware of that 

 -- 

 *** 

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

dated 

 April 27th of '95. 

 A. Okay. 

 *** 

 Q. I am going to show you a check from Michael Serafini and 

 Melinda Marcotte account to Frances Serafini for a thousand dollars 

 dated April 25th, check number 430. Okay. The check that was 

 made payable to you was dated April 25th, check 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 not 
 aware of them at all. 

 12 
knowledge of many of the checks he was asked if, having 

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 Serafini. 

When the defendant again denied any link, the disputed 

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 Dole contribution, 

 other than the $2,000? 

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

_________________________________________________________________ 

 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 for a thousand dollars to 

 Dole for President. Right, so, now we have all three on April 27th 

 payable to Dole. Here is a check on Michael and Melinda's account 

 to your father, Louis. For a thousand dollars, 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 thefiles here, but I am 

 going to tell you, I am going to represent to you that I have a 

check 

 payable to Bob Dole from Kimberly and John Scarantino's account, 

 and a similar check from Michael's account, for the same amount of 

 money that they did it, in the same consecutive 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. 

 13 
 Q: 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 contribution other 

 than this $2,000 check? 

 A: I can't specifically remember, however, we transfer 

 money back and forth quite often for different reasons 

 and I can't honestly say that there wasn't some 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 disputed 

colloquy, the defendant was shown a chart of checks

written by Michael Serafini and asked if he could explain 

them.15 At that point, the questioning turned to other 

issues. 

_________________________________________________________________ 

15. 

 Q. I am going to show you an exhibit that has been marked into 

 evidence as Grand Jury Exhibit 35. This is a chart of checks drawn 

 on your nephew's account, Michael Serafini and 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 to various individuals, 

 do you see that? 

 A. Correct. 

 Q. Okay. First of all, let's go down the list 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 on the list were and 

how the defendant knew them.] 

 Q. All right. So, the [people on the list] you know basically were 

 people that were affiliated with Empire? 

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

 Q. Right, now, your check here, this check 431, right? 

 A. Right. 

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

challenged question was the check from Michael Serafini to 

Frank Serafini which, so the government believed, was to 

reimburse Frank Serafini for his $1,000 campaign 

contribution. At the time of this colloquy, government 

counsel apparently had no clear idea why the 

reimbursement check was for $2,000 rather than $1,000. 

According to the government, its counsel only later

_________________________________________________________________ 

 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 chart? 

 A. That is what is on that chart. 

 Q. And the chart indicates, at least, that between 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 people that had made 

 contributions to Dole? 

 A. No, I do not know that. 

 Q. Now, having looked at that chart and seeing how your check is 

 placed in there, is it your testimony that it 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 Dole contribution? 

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

 15 
acquired information that Serafini's aide, Thomas Harrison, 

also contributed $1,000 to the Dole campaign and was 

reimbursed by Michael Serafini through Frank Serafini for 

doing so. Thus, according to the government, (a) the $2,000 

check from Michael Serafini served to reimburse both 

Thomas Harrison and Frank Serafini, but (b) the 

government did not know this at the time Frank Serafini 

answered the challenged question. It is the government's 

contention that -- contrary to the defendant's response 

("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 Serafini 

to Thomas Harrison, and the other was a $1,000 check 

from Thomas Harrison to the Dole campaign. 

B. Discussion 

When a district court rules that, as a matter of law, a 

question posed to a witness during his or her grand jury 

testimony cannot support an indictment for "false material 

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 established 

that the defendant could not have understood that he was 

being asked the "broad, open-ended question", Serafini, 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 received 

any other reimbursement checks in connection with his 

contribution to the Dole Committee." United States v. 

Serafini, 7 F.Supp.2d at 541. Immediately before asking the 

disputed question, "the prosecutor questioned Frank

Serafini whether he received any reimbursement checks 

other than the $2,000 from . . . Michael Serafini." Id. at 

541. After the disputed question, "there was no specific 

follow-up question to demonstrate the breadth of the 

prosecutor's inquiry." Id. at 541. Instead, the government 

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

money . . . from Michael at or around the time period" the 

defendant "made [the] Dole contribution." S. App. at 67. 

The District Court observed that "[the] follow up question 

demonstrates that the prosecutor and Frank Serafini were 

concerned only with whether he received other moneys 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 was 

 inquiring of Frank Serafini's reimbursement of Mr. 

 Harrison. The focus of the prosecutor's questions 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 this 

 questioning, Frank Serafini could not reasonably be 

 expected to understand that the prosecutor was asking 

 a broad, open-ended question regarding checks 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 argues 

first that, in light of what it deems the unambiguous 

meaning of the disputed question, the District Court erred 

by looking to the context within which that question arose. 

The government contends that the District Court would 

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 ambiguity 

as to the meaning of a question, "it is for the petit jury to 

decide which construction the defendant placed on the 

question." United States v. Ryan, 828 F.2d 1010, 1015 (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 ambiguous" 

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

statement prosecution. Id. (quotations and citations 

omitted). We have said that a question is "not amenable to 

jury interpretation," id., "when it is entirely unreasonable to 

expect that the defendant understood the question posed to 

him," id. (quotations and citations omitted). In the present 

case, the government contends that "none of the broad 

terms used in the question rendered it fatally ambiguous." 

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 takes on a 

particular meaning wholly at odds with the "broad, openended" significance the government now seeks to attribute 

to it. 

In Fotie v. United States, 137 F.2d 831, 842 (8th Cir. 

1943), the Eighth Circuit, per Judge Riddick, in reversing a 

perjury conviction, admonished that "[a] charge of perjury 

may not be sustained by the device of lifting a statement of 

the accused out of its immediate context and thus giving it 

a meaning wholly different than that which its context 

clearly shows." That formulation has become an established 

principle of law. See United States v. Cook, 497 F.2d 753, 

764 (9th Cir. 1972) (Ely, J., dissenting) dissenting opinion 

reinstated as majority opinion in relevant part, 498 F.2d 286 

(9th Cir. 1973); Van Liew v. United States, 321 F.2d 674, 

677-678 (5th Cir. 1963); Brown v. United States , 245 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 follows: 

 The seriousness of the crime of perjury and the fact 

 that it turns finally on the subjective knowledge and 

 purpose of the swearer require that the Government 

 not be allowed to predicate its case upon the 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 preceding and 

 following the alleged perjured statement. The oft- 

 quoted [Fotie] rule is applicable here. `A charge of 

 perjury may not be sustained by the device of lifting a 

 statement of the accused out of its immediate context 

 18 
 and thus giving it a meaning wholly different 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 context in 

assessing the meaning of questions posed to a witness 

during grand jury proceedings. 577 F.2d 194, 198 (3d Cir. 

1978). In that case, the defendant, Tonelli, was asked about 

his participation in the placement of certain pension funds. 

Id. at 197. Although initially denying participation in the 

placement of those funds, when further questioning 

revealed that the government included in the notion of 

participation, "recommendations for someone to place any 

moneys in a particular bank," the defendant "explained that 

he had introduced his cousin" to persons involved in the 

placement of those moneys. Id. We found that"by quoting 

a question and answer in isolation, the indictment did not 

accurately represent the statements made by the defendant 

and in ignoring the qualifying definitions used by the 

prosecutor, it was misleading." Id. at 198. Affirming 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 context," 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 dealt 

with . . . whether Serafini was reimbursed for his Dole 

contribution." Government's Brief at 32. The government 

argues, however, that the narrow subject matter of the 

antecedent and subsequent questions "does not restrict the 

meaning of the question and answer sandwiched in 

between because that question and answer plainly 

concerned a different topic, the broader category of checks, 

other than the suspected $2,000 check, that may have been 

connected to the grand jury's investigation." Id. (emphasis in 

original). But the text of the "sandwiched" question, read in 

isolation as the government would have it read, hardly 

demonstrates that the question "plainly concerned a

different topic," let alone serves to define that "different 

 19 
topic." The question inquired whether the witness was 

"aware" (itself a word of somewhat uncertain connotation) 

of "another check that is connected to this investigation, 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 question's 

meaning cannot be accomplished by reading the question 

in isolation from the setting in which it was asked. In 

asking Serafini whether he was "aware" of"another check 

. . . connected to this investigation," counsel might be 

thought to have been directing Serafini to think at large 

about all he had been asked. However the comprehensive 

phrase "connected to this investigation" was immediately 

narrowed through the awkward appositional device to

"connected to this Dole contribution," a phrase which 

necessarily called on Serafini to focus on the immediately 

antecedent questions. And that focus was only sharpened 

by the phrase of exclusion, "other than the $2,000," with 

which counsel concluded the question. In undertaking 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 questions he had 

just answered. This, in short, is an instance in which a 

court "must look to the context of the defendant's 

statement to determine whether the defendant and his 

questioner joined issue on a matter of material fact to 

which the defendant uttered a false material declaration." 

United States v. Sainz, 772, F.2d 559, 562 (9th Cir. 1984). 

Since the context of the disputed question demonstrates 

that government counsel had been seeking information 

regarding Michael Serafini's reimbursement activities, 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 question. 

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 contention, the 

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

colloquy the defendant was shown several checks from 

 653<!>various persons to the Dole campaign and several 

apparently corresponding checks from Michael Serafini to 

those individuals, and (2), following the disputed colloquy 

the defendant was shown a chart listing sequentially 

numbered checks, drawn on Michael's account, all for 

either $1,000 or $2,000, to various individuals, most of 

whom were associated with Empire. Accordingly, in the 

government's view, since "[t]he prosecutor . . . referenced 

numerous other checks that were suspected to have 

reimbursed the conduits for their contributions," "it was 

clear to Serafini, from the context, that the question which 

led up to false statement 3 was not just concerned with 

checks that reimbursed him, but other checks connected 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 disputed 

question. Prior to statement 3, the defendant was shown a 

set of consecutively numbered checks drawn on Michael 

Serafini's account: one payable to the defendant's sister, 

one payable to the defendant himself, and one payable to 

his father. See supra note 11. The defendant was then told 

that the government had "a check payable to Bob Dole from 

[the defendant's niece and nephew], and a similar check 

from Michael's account, for the same amount of money 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 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?" S. App. at 67. The 

government, in this exchange, was focusing on whether 

Frank Serafini had been reimbursed by Michael Serafini, 

not on whether Frank Serafini had, himself, reimbursed 

others. A similar pattern is evident in the questions put to 

the defendant, subsequent to statement 3, about the chart 

of checks. See supra note 12. That chart was a listing of 

consecutively numbered checks, drawn on Michael 

Serafini's account, allegedly paid out as reimbursements for 

 21 
contributions to the Dole committee. After being shown the 

chart, the defendant was asked whether he recognized the 

names of the payees, and, after a discussion of who the 

various payees were and how he knew them, the defendant 

was asked "Now, having looked at that chart and seeing 

how your check is placed in there, is it your testimony that 

it 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 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 had 

reimbursed the defendant for his contribution to the Dole 

committee. Nothing in the exchange suggests that counsel 

or the defendant had in mind reimbursement checks 

written by Frank Serafini. The issue of whether the

defendant was cognizant of additional checks -- whether 

reimbursement checks not written by Michael Serafini, 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[United States 

v. Slawik, 548 F.2d 75 (3d Cir. 1977)], Tonelli line of cases 

by criticizing the prosecutors for not asking more direct 

questions . . . ." Appellant's Brief at 35. The suggestion 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. Serafini, 7 

F.Supp.2d at 540-542. The District Court did, however, 

reason that "[t]he prosecutor could have asked Frank 

Serafini whether he had ever solicited or reimbursed 

another person for contributions to the Dole Committee and 

whether any checks existed to evidence such actions." Id. at 

541. Finding that "these simple and straight-forward 

questions, which would have extinguished any potential 

ambiguity, were never asked," id., the District Court 

concluded that "[t]he prosecutor plainly led Frank Serafini 

to understand that he was being questioned as to whether 

he had personally received any other reimbursement 

checks in connection with his contribution to the Dole 

Committee." Id. We agree with the District Court. 

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

 22 
unanimous Supreme Court discussed authoritatively the 

basic principles governing perjury prosecutions. In that 

case, the Court, speaking through Chief Justice Burger, 

held that 18 U.S.C S 162116 did not reach a defendant who 

provided a literally true but unresponsive answer while 

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, under 18 

U.S.C. S 1621, when the defendant's testimony"can 

reasonably be inferred to be knowingly untruthful and 

intentionally misleading, even though the specific question 

to which the response is given may itself be imprecise."). In 

the course of its opinion, the Court in Bronston drew upon 

the history of the crime of perjury. First, referring 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 when 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 appearing 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, Bronston 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 perjury 

provisions of the New York's Penal Law with two ends 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, that it probably came into 

 the law through misconception, and that by construction 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 consciousness of this state; that 

it 

 cannot, therefore, be easily eliminated from our law. Believing, 

 however, that materiality as now defined by interpretation is a 

 23 
 serious impediment to effective prosecution for perjury, and that 

it 

 discourages even the initiation of prosecutions, the Commission 

 favors the addition of a degree of perjury from which the 

materiality 

 element is eliminated. It believes the that the mere fact of 

classifying 

 the crime in general accord with the seriousness of the falsehood 

 uttered -- at the same time making it plain to the jury than any 

 intentional falsehood in a judicial or similar 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 egregious 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 technically material within 

 the rules of law. 

 The Commission is impressed by the weight and variety of 

 statistical and other evidence adduced for the conclusion that the 

 present maximum penalty of twenty years imprisonment is 

 altogether too severe and that this circumstance also stands in the 

 way of effective prosecution. Reduced penalties and the alternative 

 of a fine for the second degree are accordingly 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 further -- from a 

two-tiered to a three-tiered structure. Perjury in the third degree, a 

misdemeanor, is "swear[ing] falsely." N.Y. Penal Law S 210.05. One 

"swears falsely" when one "intentionally makes a false statement which 

[one] does not believe to be true (a) while giving testimony, or (b) under 

oath in a subscribed written instrument." N.Y. Penal 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..." People v. Tyler, 405 

N.Y.S.2d, 270, 275 (App. Div. 2d Dept.), affirmed 413 N.Y.S.2d 295 

(1978). Perjury in the second degree, a felony, consists 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, and (b) made with 

intent to mislead a public servant in the performance of his official 

functions, and (c) material to the action, proceeding 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 action, proceeding or 

matter in which it is made." N.Y.Penal Law S 210.15. 
 24 
Wigmore 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 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." Id. at 360.18 

Importantly, for our purposes, the Bronston Court 

continued, "[t]he burden is on the questioner to pin down 

the witness to the specific object of the questioner's 

inquiry." Id. Thus, Bronston stands for the proposition 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 specificity 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 Justice Burger 

concluded in Bronston, "precise questioning is imperative as 

a predicate for the offense of perjury," that required 

predicate is lacking with respect to the disputed question 

put to Frank Serafini. We conclude, as did the District 

Court, that the context within which statement 3 was 

offered shows that Frank Serafini understood that he was 

being asked whether, in connection with his contributions 

to the Dole campaign, he had received any reimbursement 

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, that subportion of the indictment pertaining to statement 3 was 

rightly stricken. 

Accordingly, the judgment of the District Court will 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 referred to by the 

government at page 3, footnote 1, of its letter brief of May 8, 1998. Any 

such issue that remains after this case returns to the District Court may 

be addressed by that court. 

 25 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26