to the period prior to the March 3, 1983 Modification
Indeed, the Government concedes that it did not question
Landau before the grand jury about his June 27, 1983
negotiation with Nava. Mack Affid. ¶ 8. The Government,
however, relies on the June 27, 1983 tape recording to evidence
Landau's alleged perjury, made months after the March 3, 1983
Modification Agreement. That Landau made statements to Nava on
June 27, 1983 about union payments, however, is not evidence
that Landau made such statements to Nava or anyone else at
Image prior to March 3, 1983. Thus, the tape recording of the
June 1983 conversation, upon which the Government apparently
relies as its primary evidence of perjury, does not contradict
Landau's grand jury testimony.
The Government also contends that even if the prosecutor's
questions related solely to the period prior to March 3, 1983,
Landau's testimony is false because before March 3, 1983, while
meeting with Nava on February 28, 1983, Landau allegedly
demanded an increase in the Image contract price because he had
had to make a $20,000 payment to Local 3 to prevent picketing.
Mack Affid. ¶ 2. At that meeting Landau also handed Nava two
documents listing Tade's construction costs, later marked as
grand jury exhibits 5 and 8, which the Government alleges
demonstrates that Landau told Nava of a $20,000 payment at the
February 28, 1983 meeting and "memorialized" the fictitious
payoff as "PAY OUTS AND COMMISSIONS."
However, both exhibits list as "PAY OUTS AND COMMISSIONS" the
amount of $12,000, not $20,000. And Nava himself claimed in the
June 23, 1983 conversation that the alleged payment was in the
amount of $12,000, not $20,000. Lankler Affid. Exh. D. at 3.
Furthermore, that the documents list a $12,000 figure for pay
outs and commissions does not establish that Landau told Nava
that the money was used to payoff a union. Nor is it evidence
that a payoff actually took place. Landau was specifically
questioned at length else where in his grand jury testimony
about the $12,000 itemized in exhibits 5 and 8, and his
responses to those questions are not claimed by the Government
to be perjurious. Specifically, Landau testified that the
$12,000 consisted of a commission to the Tade salesman who
brought the Image job to Tade, a payment to Image's architect,
insurance and telephone payments, and outlays for miscellaneous
hardware. Lankler Affid., Exh. B. at 45-50, 52-54.
In addition to the prosecutor's failure to expressly frame
his questions to apply to post-March, 1983, a review of the
questions specified in the indictment reveal that they are
poorly phrased and susceptible of different interpretations.
For example, Question 1 above (Exh. B at 34, lines 17-21),
appears to ask two questions: whether any allegation by Landau
that he had to pay off a union was a fabrication and whether
any allegation that the union caused "problems that
necessitated . . . raising the price" was a fabrication. As the
question seems to refer to the period prior to the March 1983
Modification Agreement, Landau's negative response could well
be literally true. The Government has taken no action on the
basis that Landau actually paid off the union and produced no
evidence relating to that issue aside from the June 27, 1983
And what was meant by the phrase "the union caused you
problems that necessitated you raising the price" is not at all
clear and could well give rise to multiple interpretations. The
Government claims that, three questions prior to this question,
the AUSA put this phrase into a clearer context. The AUSA asked
Landau whether he had indicated to "Nava or some representative
of Image Communications that the reason the contract price had
to be increased was because of union difficulties or the need
to payoff a union." Tr. 33, lines 17-22. I do not see how that
question eliminates the ambiguity of Question 1. Indeed, the
Government itself has stated three possible interpretations for
Question 1.*fn6 Moreover, the Government's suggestion
that the subsequent defining of "union difficulties" to include
picketing by later questions somehow clears up the ambiguity
here is inexplicable. I therefore find that Question 1 is not
one that could be used with mutual understanding by a
questioner and answerer, and therefore is fundamentally
Question 2 (Exh. B at 34-35, lines 22-25, 2-3) is also
fatally unclear. The Government contends that because Landau
allegedly made statements regarding a pay-off on two occasions,
in February 1983 and June 1983, the broader question of whether
he "ever" made a statement regarding a union payoff gave him
the opportunity to focus on the period subsequent to March
1983. However, considering the question in context and the
Government's own admission that Landau was not questioned about
the June 1983 conversation, it is unsurprising, and certainly
not unreasonable, for Landau to have answered the question with
reference only to the time period prior to March 1983. In
similar circumstances, a motion of acquittal on a § 1623
conviction was granted where the defendant, in response to
repeated questions whether he "ever" carried certain items into
an apartment, responded in the negative. United States v.
Razzaia, 370 F. Supp. 577 (D.Conn. 1973). The prosecutor,
however, had an FBI report that stated that on a specific day
the defendant did carry those items into the apartment. Noting
that "the questioner could have focused the witness's attention
on [the] particular day" in question, the court found that "the
ambiguities might well have been avoided." Id. at 579.
Moreover, the phrase "even if it wasn't true" in Question 2
has no point of reference. There was no question that Local 3
had in fact picketed the Image job, and thus the question
apparently poses a hypothetical — even if there were no union
"difficulties" did Landau ever make a statement regarding a
union payoff in negotiating a higher price with Nava — to
which a perjurious answer could not be given. And again, the
ambiguity here is not dispelled by the Government's contention
that the term "union difficulties" is refined in the following
question to include union picketing.
Similarly, Questions 3 through 5 fall victim to the same
awkward phrasing and lack of clarity. Question 3 (Exh. B at 35,
lines 4-10) is not artfully phrased. As Landau points out, the
use of "it" twice in the final portion of the question with no
clear antecedent is confusing. The Government, however, argues
that in context it is clear that the prosecutor was asking
whether payments to the union were necessary and whether the
picketing cost more money. But not only is that a compound
question that elicited a singular response, it also does not
specifically ask Landau to respond with respect to post-March,
Question 4 (Exh. B at 40, lines 22-25) appears on page 40 of
the grand jury transcript, five pages after Question 3
specified in the indictment. The questions and answers
preceding it make no reference to statements by Landau to third
parties concerning union payments. See Exh. B, p. 35, line 11
through p. 40, line 21. It is thus unclear who "anyone else"
excludes from reference. And, again, Landau could reasonably
have assumed that the question referred to pre-March, 1983.
Question 5 (Exh. B at 41, lines 12-15) is also unclear. To
what does "such a payment or transfer of property" refer,
especially when considered in the context of the immediately
Question: "You haven't paid anyone, because you can assume
— we have been talking today pretty much exclusively about
Image Communications and that job. You can assume that if
you have had to make any payment of any kind, and a payment
from our point of view is a free trip to the Bahamas — "
Answer: "A T.V. set."
(Exh. B at 41, lines 6-11)
As Landau points out, he could reasonably assume after this
exchange that he was being asked whether he had given anyone a
free trip to the Bahamas or a T.V. set. Moreover, the question
asked Landau what "you've told us" or to confirm that Landau
had testified to the prosecutor's paraphrase. He thus answered
as to how he had testified earlier in the proceeding. In
Lighte, the Second Circuit held that when "a witness testifies
that `A' is a fact, and then is asked if has testified that `A'
is a fact, and he says yes, such response is truthful,
regardless whether `A' is a fact." 782 F.2d at 374. Landau's
use of the term "it" also indicates that he was responding to
the only one part of this two-part question, that is, whether
he did make a payment to the union or whether he had said he
made a payment to the union.
A basis for perjury is established when statements, in the
context in which they were made, were materially untrue, "even
if the statements could be literally true in isolation."
United States v. Schafrick, 871 F.2d 300, 304 (2nd Cir. 1989).
When ambiguity in questioning is raised, the defense "`may not
be established by isolating a statement from its context,
giving it in this manner a meaning entirely different from that
which it has when the testimony is considered as a whole.'" Id.
at 304 (citing United States v. Banacorsa, 528 F.2d 1218, 1221
(2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49
L.Ed.2d 386 (1976)). The testimony must be kept in context.
Lighte, 782 F.2d at 373. Moreover, a perjury conviction is not
precluded by the fact that some ambiguous questions were asked,
for "[i]f the response given was false as the defendant
understood the question, his conviction is not invalidated by
the fact that his answer to the question might generate a
number of different interpretations." Id. at 375.
Here it cannot be said that to "a person predisposed to
answer truthfully, the questions were clear." United States v.
Albergo, 539 F.2d 860, 864 (2d Cir.), cert. denied,
429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1976). Read in context, it
is the prosecutor's questions themselves, not merely Landau's
answers, that give rise to multiple interpretations. As such,
the Government must be held to its burden "to pin the witness
down to the specific object" of the inquiry. Bronston, 409 U.S.
at 360, 93 S.Ct. at 601. The prosecutor was free to question
Landau specifically about the taped meeting in June 1983, the
tape of which the Government concededly had in its possession
in October 1984, but failed to do so. The AUSA's only specific
question about negotiations between Tade and Image after the
March 3, 1983 Modification Agreement was: "Suffice it to state
that you have had some further contract disputes with Mr. Nova
[sic] subsequent to the modification agreement, is that a fair
statement," to which Landau assented. Exh. B, at 36.
The Second Circuit's recent decision in Lighte is also
instructive. There the court held that two of the questions
asked of the defendant were fundamentally ambiguous because of
the imprecise use of the pronoun "you" and thus should not have
been submitted to the jury. 782 F.2d at 375. The court found
that throughout the questioning the examiner failed to
differentiate between the defendant's actions as trustee and
those which he undertook in an individual capacity. Each
question was addressed to the defendant as "you," and he could
well have answered each as if directed to him in his individual
capacity. Like the questions in Lighte, the questions here also
rise to the level of fundamental ambiguity.
In sum, in the context of all the preceding questions and
Landau's grand jury testimony as a whole, the prosecutor's
questions here are fundamentally ambiguous and cannot as a
matter of law to support a perjury conviction.*fn7 Landau's
therefore granted and the indictment is dismissed.