The opinion of the court was delivered by: BRYAN
Defendants move, pursuant to Rule 12(b)(2), Fed.Rules Crim.Proc., 18 U.S.C.A., to dismiss all twelve counts of the indictment against them on the grounds that each fails to state an offense.
The indictment arises out of an investigation by a grand jury in this district to discover whether (a) one Harvey Matusow had testified falsely in either or both of two unrelated trials in which he was a witness for the prosecution, or (b) whether Matusow had committed perjury in executing affidavits recanting his testimony in these two trials, and (c) whether there had been a conspiracy to influence Matusow to commit perjury by executing these affidavits.
Both defendants are charged in the indictment with conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 1503 by corruptly influencing, obstructing and impeding, and endeavoring to influence, obstruct and impede the due administration of justice in the course of these grand jury proceedings (Count I), and with five substantive acts alleged to constitute violations of Section 1503 (Counts II to VI, inc.). Counts VII, VIII, IX and X charge defendant Siegel with perjury before the grand jury in the same proceeding in violation of 18 U.S.C. § 1621. Defendant Shapiro is similarly charged with perjury before the grand jury in Counts XI and XII.
I will first consider the defendants' objections to the obstruction of justice and conspiracy counts and will then deal with their objections to the perjury counts.
According to the allegations of the indictment defendant Siegel is a lawyer, who had met with Harvey Matusow on at least six occasions when the subject of Matusow's testimony as a prosecution witness had been discussed. The substance of what occurred at these meetings had been recorded in dictated notes and in memoranda typed therefrom about the time the discussions had taken place. Certain of these notes had been dictated to one Mary Manna, named as a co-conspirator in Count I but not charged as a defendant, and others had been dictated to and typed by the defendant Shapiro.
Count II charges that defendants, knowing that Mary Manna was to be a witness before the grand jury in the investigation, influenced and endeavored to influence her to destroy notes dictated to her relating to Siegel's meetings with Matusow on this subject, to create substitute notes in their place, and to give false testimony to the grand jury concerning the time when a memorandum relating to the meeting was typed and when the notes from which it was written were dictated to her.
Counts, III, V and VI charge that defendants, knowing that a grand jury subpoena had been served on Siegel's law firm requiring the production of all documents relating to Matusow, and that the grand jury had specifically requested Siegel to produce any memoranda he had made concerning his meetings with Matusow, destroyed memoranda relating to these meetings and notes dictated of them, and created substitute notes and memoranda in place of those destroyed for the purpose of passing the substitutes off before the grand jury as the original memoranda, which Siegel eventually did.
Court IV charges that defendants, knowing that the grand jury had requested the production of the stenographic notes of any memoranda regarding the Matusow discussions, removed from Mary Manna's stenographic notebook the notes which had been dictated to her and from which she had typed a memorandum concerning the discussions, destroyed the notes and caused her to create new notes in her notebook for the purpose of passing them off to the grand jury as the notes originally dictated to and written up by her, and that defendant Shapiro thereafter so passed them off to the grand jury.
Each of Counts II through VI alleges that defendants knew that the grand jury was conducting this investigation as to the alleged false testimony of Matusow, his alleged recantation of that testimony, and the alleged conspiracy in the latter connection. They further allege that defendants, by committing the acts specified 'unlawfully, wilfully and knowingly did corruptly influence, obstruct and impede, and corruptly endeavor to influence, obstruct and impede the due administration of justice in the United States District Court for the Southern District of New York, * * *.'
Count I charges a conspiracy between the defendants and Mary Manna corruptly to influence, obstruct and impede the administration of justice and to endeavor to do so, and alleges, among the overt acts in furtherance of the conspiracy, the various specific violations of Section 1503 charged in Counts II to VI.
The defendants attack the sufficiency of these counts on several related grounds.
They first assert that the failure to allege in specific terms that the documents, notes or papers with which defendants' acts were concerned were 'material' to the grand jury investigation makes these counts fairly defective.
Section 1503 under which the five substantive counts are laid deals with interference with or obstruction of the due administration of justice and endeavors so to do. The first portion of the section is for the protection of witnesses, jurors and court officers. It condemns those who corruptly or by threats or force endeavor to influence, intimidate, impede or injure such persons. The latter portion of the statute deals generally with the obstruction of justice. It condemns the corrupt influencing, obstructing or impeding of the due administration of justice and corruptly endeavoring to do so. Success is not the criterion of the statute though it may aggravate the offense. Thomas v. United States, 8 Cir., 15 F.2d 958; Bedell v. United States, 8 Cir., 78 F.2d 358, certiorari denied 296 U.S. 628, 56 S. Ct. 151, 80 L. Ed. 447. The statute condemns 'any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent.' United States v. Russell, 255 U.S. 138, 143, 41 S. Ct. 260, 261, 65 L. Ed. 553; Broadbent v. United States, 10 Cir., 149 F.2d 580, 581.
The indictment follows the specific language of Section 1503 and also spells out in detail the specific acts with which defendants are charged. It is fully adequate under Federal Rules of Criminal Procedure, rule 7(c) to inform defendants of the essential facts constituting the offenses with which they are charged by any standards. United States v. Achtner, 2 Cir., 144 F.2d 49, 51; United States v. Silver, 2 Cir., 235 F.2d 375; United States v. Debrow, 346 U.S. 374, 377, 74 S. Ct. 113, 98 L. Ed. 92.
At no point does Section 1503 use the word 'material' in its context, nor does it anywhere say that the acts condemned must be in relation to a matter 'material' to an action or proceeding. Section 1503 is quite different in this respect from the perjury statute, 18 U.S.C. § 1621, which specifically provides that the perjury must be in relation to 'material matter'. If there be a statutory analogy it is to the second clause of Section 1001 which makes it a crime to make false statements or representations in matters within the jurisdiction of any department or agency of the United States, and, in contrast to the first clause of that section does not require that such statements or representations be with respect to a 'material' fact. In United States v. Silver, supra, the Court of Appeals of this Circuit recently held that an indictment laid under the second clause of Section 1001 was not required to allege that the false statements charged related to a material fact since the clause contains no such language. See, also, United States v. Lange, D.C.S.D.N.Y., 128 F.Supp. 797. The ...