United States v. Gaudelli , 134 F. App'x 565 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-16-2005
USA v. Gaudelli
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4167
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4167
UNITED STATES OF AMERICA
v.
EDMOND N. GAUDELLI,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 02-cr-00275)
District Judge: Honorable David S. Cercone
Submitted November 29, 2004 and
On Remand from the United States Supreme Court
by Order Dated April 18, 2005
Before: RENDELL, ALDISERT and MAGILL*, Circuit Judges.
(Filed: June 16, 2005 )
OPINION OF THE COURT
*Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
RENDELL, Circuit Judge.
Edmond N. Gaudelli, Jr. was convicted by a jury of perjury in violation of 18
U.S.C. § 1621. He was sentenced to one year in prison to be followed by two years of
supervised release. He timely appealed to this Court, and, on appeal, we affirmed the
conviction. See United States v. Gaudelli, 116 Fed. Appx. 363 (3d Cir. 2004).
Subsequently, on April 18, 2005, the Supreme Court granted certiorari, vacated the
judgment, and remanded the case to this Court for further consideration in light of United
States v. Booker, 543 U.S. __, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). See Gaudelli v.
United States, __ U.S. __, 161 L. Ed. 2d 717, 125 S. Ct. 1867 (2005). In vacating the
judgment, the Supreme Court did not indicate any disagreement with our analysis wherein
we affirmed Gaudelli’s conviction. Herein, we will again affirm the conviction and
repeat our analysis below. However, having concluded that the sentencing issues based
on Booker are best determined by the District Court in the first instance, we will vacate
the sentence and remand for resentencing in accordance with Booker.
I.
In June 1999, Gaudelli, a police officer with the City of Pittsburgh, filed a civil
action against his employer and several police officers in his department alleging that
after he had responded to a domestic violence call at the home of Chief of Police Robert
McNeilly, he was told by his superiors to expunge the call from his records. Gaudelli
claimed that when he tried to “[speak] out about police misconduct and harassment and
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other matters of public concern,” the department and its officers retaliated against him in
violation of his First Amendment right to free speech.
At his deposition in the case, Gaudelli elaborately detailed responding to a
domestic violence call at the McNeilly residence on September 28, 1996. He stated that a
fellow officer instructed him not to log the response in his record and that other officers
confided with him about similar encounters at the McNeilly home. Evidence was
produced, however, contradicting Gaudelli’s claims. McNeilly provided documentation
that on the day of the alleged call, he and his family were vacationing in Florida. Several
officers that Gaudelli referenced in his story denied his allegations. There was no record
of such an event in the department’s record-keeping system, and the individual who
created the system stated that a record could not have been expunged from it. In light of
this evidence, Gaudelli voluntarily dismissed the case.
Subsequently, Gaudelli was tried for perjury in violation of 18 U.S.C. § 1621. At
trial, the government presented evidence that the statements Gaudelli made during his
deposition were false. McNeilly testified that he was in Florida on the day that Gaudelli
claimed to have responded to a call at his home. Several officers testified that Gaudelli
had fabricated conversations he had alleged in his deposition testimony. Gaudelli
presented several officers and dispatchers who testified that a call did come from the
McNeilly residence on some unknown date. Ultimately, the jury convicted Gaudelli.
\
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II.
Gaudelli makes two arguments on appeal. First, he asserts that the statements that
he made during his deposition for which he was convicted do not satisfy the materiality
requirement of the offense of perjury. Additionally, Gaudelli argues that the
government’s decision not to grant immunity to a defense witness who invoked her Fifth
Amendment privilege denied Gaudelli a fair trial and his constitutional right to call
witnesses.
Perjury consists of four elements: (1) a false statement; (2) given under oath; (3)
made knowingly and willfully; (4) that concerns a material matter. See 18 U.S.C. § 1621.
A false statement is material if it has “a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which it is addressed.” United
States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S.
759, 770 (1988)). “The Constitution gives a criminal defendant the right to have a jury
determine, beyond a reasonable doubt, his guilt of every element of the crime with which
he is charged.” Id. at 522-23.
The determination of whether Gaudelli’s statements concerned a material matter
was committed to the jury at trial. We consider whether there is sufficient evidence,
viewed in the light most favorable to the government, to uphold the jury’s decision.
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 2003). “Our review of the sufficiency
of the evidence after a guilty verdict is ‘highly deferential’” to the government as the
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verdict winner. United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003) (quoting
United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001)). We will sustain the verdict if
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
III.
Gaudelli argues that the allegedly false statements that he made at his deposition
were not material essentially because his claims lacked merit. He cites the testimony of
his expert witness, who stated that his claims would not survive a motion to dismiss.
Therefore, Gaudelli argues that the allegedly false statements could not have influenced a
decisionmaker and, consequently, were not material. We disagree. The allegations that
Gaudelli made in his deposition, that is, that he responded to a domestic violence call at
the McNeilly residence and that his superiors told him to cover up the call, were the basis
for his claims that the police department retaliated against him. He claims that they were
irrelevant and extraneous to the claims advanced in the civil lawsuit, but, to the contrary,
they were at the heart of his retaliation claim.
In the alternative, Gaudelli argues that because he voluntarily withdrew his suit,
the allegedly false statements could not have influenced the decisionmaker and were
therefore not material. But, a false statement’s capacity to influence a fact finder is
judged at the time the statement was made. See United States v. Sarihifard, 155 F.3d 301,
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307 (4th Cir. 1998); United States v. Gremillion, 464 F.2d 901, 904-05 (5th Cir. 1972).
The statements Gaudelli made in his deposition had the potential of influencing an
eventual fact finder. That the statements were never presented to a fact finder is
irrelevant.1
In short, viewed in the light most favorable to the government, Gaudelli’s
arguments aimed at the elements of the perjury conviction must fail.
IV.
Gaudelli also argues that the District Court erred when it denied his motion for
judgment of acquittal based on the government’s refusal to grant immunity to Gail Elliott,
a defense witness who invoked the Fifth Amendment. We review the refusal to
immunize a witness for abuse of discretion. United States v. Perez, 280 F.3d 318, 348
(3d Cir. 2002) (citing United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978)). The
District Court’s factual findings regarding the likely effect of undisclosed information are
reviewed for clear error. Id. (citing United States v. Pelullo, 173 F.3d 131, 135 (3d Cir.
1999)).
Elliott is a former dispatcher at the City of Pittsburgh’s 911 center, who, Gaudelli
1
We also reject Gaudelli’s contention that the allegedly false statements were not
material because the statements were made in a deposition, not in a formal court
proceeding. Clearly, the perjury statute does not require that the false statement be made
in a formal court proceeding. Section 1621 only requires that the statement have been
made “before a competent tribunal, officer, or person” with the authority to place the
individual under oath and applies to “any written testimony, declaration, deposition, or
certificate” that the individual has sworn to be true. 18 U.S.C. § 1621.
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maintains, would have testified to taking a call for a domestic violence incident at
McNeilly’s home sometime between 1993 and 1999. On the day she was scheduled to
testify, Elliott informed defense counsel that she would invoke the Fifth Amendment if
she were called as a witness, a decision defense counsel alleged was the product of
conversations she had with FBI Agent Larry Juliano. The District Court then called both
Elliott and Juliano to testify in camera about their conversations.
Elliott testified that she had engaged in several conversations with Juliano over the
course of the investigation and trial. A week before the trial was to begin, Elliott initiated
a meeting with Juliano to discuss her testimony, during which Elliott expressed a
reluctance to testify. Juliano told Elliott there were no records to support her story about
receiving a call from the McNeilly home and that “she should be aware of the
consequences” of testifying. When questioned by the District Court, “Did Mr. Juliano
specifically threaten you or intimidate you or specifically say that if you testified, you
would be prosecuted or anything like that?” Elliott responded, “No. It was from the way
that he told me about the records is the way I take it.”
The District Court denied defense counsel’s request that it direct the government to
guarantee immunity to Elliott, finding that because Elliott herself initiated the
conversations with Juliano and Juliano’s statements to Elliott never explicitly accused her
of lying or threatened her with prosecution, the government’s conduct did not require the
court to demand immunity for Elliott. In addition, the District Court found that Elliott’s
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testimony would be cumulative and not exculpatory.
Under 18 U.S.C. § 6003, a court may grant immunity to a defense witness
generally only “upon the request of the United States attorney for such district.”
Nevertheless, despite “our governmental system’s strong tradition of deference to
prosecutorial discretion” in granting statutory immunity, this Court has recognized two
instances in which due process requires that a defense witness be guaranteed
prosecutorial immunity. Herman, 589 F.2d at 1203. First, if the court finds prosecutorial
misconduct in the form of “the government’s deliberate intent to disrupt the fact finding
process,” the court should order the government to grant the defense witness statutory
immunity or face a judgment of acquittal. Gov’t of Virgin Islands v. Smith, 615 F.2d
964, 974 (3d Cir. 1980); Herman, 589 F.2d at 1204. Second, even in the absence of
prosecutorial misconduct, the court has the inherent power to grant a witness immunity
where a defendant is deprived of testimony that is “essential to an effective defense,” that
is, where the witness can offer testimony “which is clearly exculpatory and essential to
the defense case and when the government has no strong interest in withholding use
immunity.” Smith, 615 F.2d at 974. “[W]hether judicial immunity is warranted is a
matter to be determined by the district court in the first instance.” Id.In United States v. Morrison, we found that due process demanded that the
government grant immunity to a defense witness “when prosecutorial misconduct caused
the defendant’s principal witness to withhold out of fear of self-incrimination testimony
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which would otherwise allegedly have been available to the defendant.” 535 F.2d 223,
229 (3d Cir. 1976). Gaudelli argues that because the government engaged in
prosecutorial misconduct, Morrison requires that the District Court have granted Elliott
immunity. We disagree.
In Morrison, under the pressure of a “barrage of warnings” from the government
that she was liable to be prosecuted for perjury and drug charges if she testified, the
defense witness invoked the Fifth Amendment. Id. at 226. Because “the pressure
brought to bear on [the witness] by the Assistant United States Attorney . . . infringed on
defendant’s constitutional right to have [the witness’s] freely-given testimony,” we
ordered the District Court to enter a judgment of acquittal if on remand the government
refused to grant immunity to the witness when she invoked the Fifth Amendment. Id. at
228, 229.
In the case at bar, however, there was no “barrage” of “repeated warnings” or
intimidation of Elliott. It was Elliott who initiated conversations with Juliano and
declared her reluctance to testify. While testifying in camera, Elliott indicated that
Juliano never threatened or intimidated her with prosecution if she testified.
Gaudelli urges that Morrison held that the good faith of the government is not
relevant to the inquiry whether the witness should have been granted immunity and that
the effect of the prosecutorial misconduct, not the intent, is determinative. We stated in
Herman, however, that a defendant asserting a Morrison claim of prosecutorial
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misconduct bears the substantial burden of showing that “the government’s decisions
were made with the deliberate intention of distorting the judicial fact finding process.”
Herman, 589 F.2d at 1204. “[A]bsent this type of prosecutorial misconduct, a defendant
is foreclosed from insisting that statutory immunity be granted his witnesses.” Smith,
615 F.2d at 968.
In Smith, we further defined a court’s inherent power to grant immunity to a
defense witness. We stated that a court’s ability to require immunity is triggered “not by
prosecutorial misconduct or intentional distortion of the trial process, but by the fact that
the defendant is prevented from presenting exculpatory evidence which is crucial to his
case.” Smith, 615 F.2d at 969. Justification for this authority arises from the “due
process right to have clearly exculpatory evidence presented to the jury, at least when
there is no strong countervailing systemic interest which justifies its exclusion.”
Herman, 589 F.2d at 1204. However, we have said that immunity “will be denied if the
proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative, or if it
is found to relate only to the credibility of the government’s witness.” Smith, 615 F.2d at
973.
Gaudelli maintains that Elliott’s testimony was both exculpatory and essential to
his defense, but we cannot agree. Whereas the testimony of the witnesses in Morrison
and Smith would have exonerated the defendants, Elliott’s testimony likely would not
have exonerated Gaudelli. See Morrison, 535 F.2d at 225 (witness would have accepted
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responsibility for the offense for which defendant was charged); United States v. Lowell,
649 F.2d 950, 965 (3d Cir. 1988) (immunity for a witness is not required when the
witness’s testimony on its own will not exonerate the defendant). Gaudelli anticipated
that Elliott would testify that at some unknown date between 1993 and 1999 she received
a domestic violence call from the McNeilly residence. However, because several other
defense witnesses testified to receiving a call from the McNeilly home at an unknown
date, Elliott’s testimony would have been cumulative. Also, Elliott has stated that she is
certain that McNeilly was Commissioner, not Chief of Police, at the time she received the
call, further diminishing the probative value of her testimony and any likelihood of
Gaudelli’s acquittal if Elliott’s testimony had been provided to the jury. In light of these
circumstances, we conclude that Elliott’s testimony was neither exculpatory nor essential
to Gaudelli’s defense, and the District Court did not abuse its discretion when it refused
to grant Elliott immunity.
Accordingly, we will AFFIRM the conviction and VACATE the sentence and
REMAND to the District Court for further consideration in light of Booker.
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