Appeal from judgment of conviction of obstruction of justice, 18 U.S.C. § 1503, and of making false declarations before a grand jury, 18 U.S.C. § 1623, in the United States District Court for the Easter District of New York, Henry Bramwell, J. Affirmed.
Before: FEINBERG, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.
Gennaro Langella appeals from his conviction of obstruction of justice, 18 U.S.C. § 1503, and of making false declarations before a grand jury, 18 U.S.C. § 1623, after a jury trial in the United States District Court for the Eastern District of New York before Judge Henry Bramwell. Langella received a sentence of two consecutive five-year prison terms and a fine of $15,000. He argues to us, among other things, that certain inflammatory material should have been stricken from the indictment and that the imposition of consecutive sentences on the facts of this case constitutes multiple punishment for the same offense in violation of the rule of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). We conclude that appellant was not punished twice for the same offense and that the failure to strike portions of the indictment was not reversible error. The judgment of conviction is affirmed.
According to the indictment in this case, in the summer of 1981, a grand jury in the Eastern District was investigating alleged racketeering and other criminal activities of the Colombo organized crime family. In particular, the grand jury was seeking to determine whether there was a meeting between the Colombo and DeCavalcante organized crime groups on May 6, 1981 at the Brooklyn home of Vincent Regina and, if so, who had attended it. Agents of the Federal Bureau of Investigation and the United States Marshal's Service had interrupted a meeting at Regina's house no that day, and had discovered appellant Langella on the premises.
Langella was called before the grand jury three times to answer questions concerning the meeting, the Colombo family and his relationship to various individuals suspected of being members of organized crime groups. He appeared before the grand jury twice in July and once in August, 1981. On July 8, the date of his first appearance, he denied knowing that anyone he knew was a member of the Colombo family and claimed not to know how he had met two individuals who had been present at the May 6, gathering. Langella also stated that he had been without work for twelve years due to health problems, and that he did not know what Carmine Persico, his friend of thirty years, did for a living. On July 17, Langella stated to the grand jury that the purpose of the meeting had been to revive the Italian-American Civil Rights league, and that no business of substance had been transacted during the thirty minutes that the meeting had been in progress prior to its interruption. He also stated that although Carmine Persico had been present in the house where the meeting took place. Persico had remained upstairs and had never attended the meeting, which was held in the basement. On August 7, Langella reaffirmed that Persico had been upstairs and had not participated in the May 6 meeting in any way.
In September 1984, Langella was indicted in a two-count indictment charging him with making false statements to the grand jury during his 1981 appearances and with obstruction of justice. The introductory paragraphs of both counts, which we will refer to for convenience as the perjury count and the obstruction of justice count, described the subjects of the grand jury investigation as the loansharking, extortion, murder and narcotic distribution activities of the Colombo organized crime family. As part of the investigation, the indictment continued, the grand jury sought to determine who had been present at the May 6, 1981 meeting held at Regina's house and what had occurred there. Each count went on to state that the grand jury had heard evidence that the purpose of the meeting had been for the Colombo and DeCavalcante crime groups to discuss the possibility of an alliance and to divide territories for the distribution of narcotics.
The first count of the indictment then recited excerpts from Langella's grand jury testimony of July 17 and August 7, 1981, where he repeatedly stated that Persico had not attended the meeting. That count charged Langella with violating 18 U.S.C. § 1623 by lying to the grand jury on these occasions. The second count of the indictment repeated the background information contained in the first count, and accused Langella of obstruction justice under 18 U.S.C. § 1503 by testifying falsely and concealing evidence from the grand jury in all three of his appearances before it.
At the outset of trial, Langella conceded that his statements to the grand jury quoted in the perjury count had been material to the grand jury's investigation. He then moved to strike the paragraphs of the indictment that contained background information (" the background paragraphs"), claiming they were inflammatory and irrelevant to the charges. Judge Bramwell denied the motion. At trial, the government offered to produce a witness willing to testify as to the information in the background paragraphs. Langella argued that this evidence should not be admitted, but judge Bramwell ruled that the evidence could go to the jury. The government and Langella then stipulated that if the witness appeared, he would testify as to the matters described in the disputed paragraphs.
At trial, the government relied primarily on the transcripts of Langella's three grand jury appearances in 1981 and the testimony of the federal agents who had interrupted the Brooklyn gathering. The agents' testimony provided circumstantial evidence, directly contradicting appellant's answers to the grand jury, which indicated that Carmine persico had been in the basement of Regina's house at the time the agents emerged to stop the meeting. After deliberation, the jury found Langella guilty on both counts. Judge Bramwell then sentenced him to consecutive terms of five years in prison on the perjury count and five years no the obstruction of justice count, and fined him $10,000 on the former count and $5,000 on the latter.
Appellant contends that the background paragraphs should have been stricken from the indictment as irrelevant and prejudicial. To establish that Langella violated 128 U.S.C. § 1623, he argues, the government had only to show deliberate falsehoods concerning matters material to the grand jury's investigation. Because Langella conceded that his statements to the grand jury had been material, the only element missing in the prosecution's perjury case was proof that Langella had lied. Accordingly, he claims, the description of the subjects of the grand jury inquiry and mention of evidence that the Brooklyn meeting had been a conference of organized crime clans were irrelevant to the crime charged. Since these matters were also highly prejudicial in the eyes of the jury, he argues, the trial judge seriously erred in refusing to strike the background paragraphs from the perjury count. For similar reasons, he argues that the disputed paragraphs should also have been stricken from the obstruction of justice count.
The government responds that the background paragraphs were necessary on the perjury count to show that Langella had the specific intention to lie before the grand jury. With regard to the obstruction of justice count, the government adds, the disputed paragraphs were also needed to ...