The opinion of the court was delivered by: PLATT
In a four-count indictment filed February 7, 1980, defendant George Tucker has been charged with making false declarations before a grand jury, in violation of 18 U.S.C. § 1623, and with various acts of obstructing justice, in violation of 18 U.S.C. §§ 873, 1503, and 1510.
Defendant has moved to dismiss all or parts of various counts of the indictment on the following grounds.
(1) He seeks dismissal of count 1, the false declarations count, on the ground that prosecution under § 1623 is barred by his purported recantation at a subsequent grand jury appearance and the operation of § 1623(d); on this point he also asserts that he is entitled to an evidentiary hearing at which the proof must be beyond a reasonable doubt.
(2) He seeks dismissal of the entire indictment on the ground that the indictment was returned by the same grand jury that heard his testimony on the occasion at which the alleged false declarations occurred and on the occasion of his claimed recantation; he asserts that he testified under immunity on both occasions, and that, consequently, the latter testimony cannot be used against him in this prosecution.
(3) He argues that the first three questions and answers and the last question and answer of the six alleged in count 1 to have been false must be stricken from the indictment on the ground that the answers were literally true.
(4) Finally, he contends that count 1 must be dismissed inasmuch as the questions posed were not material to the Government's investigation.
After a full briefing of these issues by the parties and oral argument, at which summary disposition was made of some of these and of other marginal issues,
the Court reserved decision. For the reasons stated below, we now deny defendant's remaining motions without a hearing.
Defendant's grand jury appearances stemmed from his involvement in the manufacture and interstate distribution of counterfeit tape recordings of copyrighted musical works by various well-known artists. That involvement led to an earlier indictment in this district for eleven counts of copyright infringement, 17 U.S.C. §§ 106(1), (3), 506(a), nine counts of interstate wire fraud, 18 U.S.C. § 1343, and one count of participating in a pattern of racketeering activity, 18 U.S.C. § 1962(c).
On August 31, 1979, defendant entered a plea of guilty to two counts of the indictment one wire fraud count and one misdemeanor copyright infringement count pursuant to a Rule 11(e), Fed.R.Crim.P., agreement with the Government.
Defendant appeared before this Court for sentencing on November 21, 1979, at which time he made to the Government an offer of "unrestricted" cooperation in the continuing investigation into interstate trafficking in counterfeit records and tapes. Although the Government initially balked at the offer,
this Court nonetheless adjourned sentencing until early January, 1980, so that any cooperation then forthcoming could be duly weighed.
Soon thereafter, the Government received independent information from a confidential informant that defendant had had a business relationship with one Norton Verner. Central to this relationship was defendant's alleged practice of manufacturing counterfeit eight-track tapes and selling them to Verner, who in turn would allegedly act as "middleman" in selling them to various retail outlets. Defendant had revealed nothing to the Government, either as part of his offer of cooperation or otherwise, about his relationship and dealings with Verner. Affidavit of John H. Jacobs, Executive Assistant, Organized Crime Strike Force for the Eastern District of New York, at 2, PP 4-6 (hereinafter "Jacobs Affidavit").
Acting on this information, and seeking to make some use of defendant's offer to cooperate, the Government put defendant before the grand jury on December 6, 1979. The Government asserts that this appearance was central to its effort to "make a case" against Verner for his alleged sales of counterfeit tapes manufactured by defendant to Sam Goody, Inc., a retailer also currently under indictment in this district for counterfeit tape interstate transportation and distribution.
Jacobs Affidavit at 2, P 7. On the basis of this information linking Verner to Sam Goody, Inc., also supplied by the Government's confidential informant, and truthful testimony from defendant, the grand jury could have indicted Verner on that date, the Government asserts. Id.
Instead, the instant indictment alleges, defendant lied to the grand jury about his relationship with Verner. Testifying under informal "use" immunity, defendant gave the following responses to the following questions put to him at the outset of his appearance:
(1) "Q Do you know someone by the name of Norton Verner?
(2) Q Can you tell the jury who that person is?
A He is a man who owns a marina out in Long Island that I have been friendly with for about three or four years. He is in the music business for a lot of years. That is my only relationship with Mr. Verner.
(3) Q Is he just a friend?
A Yes, sir, that is all he is.
(4) Q Have you ever dealt with him in connection with the ...