The opinion of the court was delivered by: TENNEY
The defendant, Samuel Bronston, having been tried before a court and jury and found guilty of one count of perjury in violation of Section 1621 of Title 18 of the United States Code, moves pursuant to Fed. R. Crim. P. 29 for judgment of acquittal or, in the alternative, for a new trial under Fed. R. Crim. P. 29 and 33.
Count one of the indictment
in substance charges that Mr. Bronston knowingly testified falsely before a referee in bankruptcy in an arrangement proceeding conducted pursuant to Section 21, sub. a of the National Bankruptcy Act, 11 U.S.C. § 44, in order to conceal the existence of a personal bank account previously maintained by him in Geneva, Switzerland.
Before considering the arguments of counsel in support of this motion, it would be useful to set forth the questions and answers which are the subject of count one.
1. Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. The company had an account there for about six months, in Zurich.
3. Q. Have you any nominees who have bank accounts in Swiss banks?
It is not disputed that movant's responses to questions 1, 3 and 4 were in all respects truthful. However, the response given to the inquiry as to whether he had ever had a Swiss bank account (question 2) was, although perhaps literally true, unresponsive to the question posed. The Government argues, as it did at trial, that this constituted a flat denial of ever having personally maintained a Swiss bank account.
In moving for judgment of acquittal, the defense urges that as a matter of law such testimony cannot be perjurious. The Government, on the other hand, contends with equal vigor that an unresponsive answer may be perjurious if tantamount to a willful attempt to conceal the truth.
After considering movant's numerous arguments set forth in meticulously prepared papers in support of these motions, the Court, for reasons to be noted infra, is constrained to deny the motions and permit the jury's verdict to stand.
Analysis of the issues raised on the Rule 29 motion for judgment of acquittal must necessarily begin with close scrutiny of the questions posed to the defendant. To be sure the interrogation was most inept; but this only begs further inquiry as to whether question number 2 was misleading or incapable of eliciting a single honest answer, or whether the defendant could consciously have taken advantage of the situation by giving an unresponsive answer in order to avoid disclosure of his Geneva account.
It is well settled that a person may not lawfully be convicted of perjury unless the question put to him adequately tests his belief in the truthfulness of his response. United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967). This is essentially because perjury is a highly personalized crime, conviction for which is to a great extent dependent upon proof of the accused's belief in the truthfulness of his sworn testimony. United States v. Winter, 348 F.2d 204, 210 (2d Cir.), cert. denied, 382 U.S. 955, 86 S. Ct. 429, 15 L. Ed. 2d 360 (1965).
Thus, assuming as we have, that the questioning of the defendant was less than skillful, it nevertheless seems plain that the question -- "[have] you ever" had a Swiss bank account? -- admits of but a single interpretation calling for a simple yes or no answer. This question is patently not misleading and readily susceptible to a truthful and responsive answer. Movant unavailingly cites Galanos v. United States, 49 F.2d 898, 899 (6th Cir. 1931), wherein the Court of Appeals for the Sixth Circuit reversed a perjury conviction and noted that "perhaps, if * * * [the defendant] had been asked specifically, he would have answered truly". In the instant case, after Mr. Bronston replied negatively to the question -- "Do you have any bank accounts in Swiss banks * * *?" -- he was specifically asked: "Have you ever?". Thus, in plain unambiguous language the defendant was specifically asked the crucial question to which he evasively replied. The distinction between Galanos, supra, and the instant situation is thus apparent and unworthy of further comment. Moreover, since a 21-A examination is in the nature of a "fishing expedition"
conducted for the purpose of locating assets of the debtor, there is no duty upon the examiner to rephrase each question, or to warn the witness to testify truthfully. It is in fact the bankrupt and not the interrogator who would have exclusive knowledge of ...