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U.S. v. LANDAU

February 28, 1990

UNITED STATES OF AMERICA
v.
LAWRENCE LANDAU, DEFENDANT.



The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.

MEMORANDUM & ORDER

On October 23, 1984, defendant Lawrence Landau testified before a federal grand jury investigating extortion by the International Brotherhood of Electrical Workers, Local 3 ("Local 3"). On October 19, 1989, Landau was indicted for perjury in violation of 18 U.S.C. § 1623(a) for allegedly having made a false material declaration before that grand jury.*fn1 In essence, Landau is accused of having falsely denied saying to a client in the winter of 1983 that he had made a payoff to Local 3.

Landau moves for an order dismissing the one-count indictment against him on the grounds that (1) he gave indisputably true answers before the grand jury to the prosecutor's fundamentally ambiguous questions, (2) his testimony was immaterial to the grand jury's investigation, (3) this indictment is the product of a perjury trap, and (4) the four-year and 362-day delay between Landau's grand jury testimony and his indictment violated his right to due process under the fifth amendment.

FACTS

The uncontested facts, except where otherwise noted, are as follows.

Landau is vice-president of Tade Construction Corporation ("Tade"), a general contractor specializing in small commercial and residential renovations. According to a Federal Bureau of Investigation ("FBI") 302 Report, an FBI agent interviewed Landau on February 8, 1984 regarding why Tade incurred cost overruns in 1983 on a $191,000 contract for renovations to office space for Image Communications ("Image"). Affidavit of Roderick C. Lankler, Exh. E.*fn2 The agent also asked whether modifications on the price Tade charged Image were in part due to union payoffs. Landau told the agent that the cost overruns were caused by additional, unbudgeted requests by Image's architect. He explained that although an electrical union had picketed the job site for several weeks, and Tade and Image's president, Richard Nava, had "had misunderstandings that were compounded by union squabbling," the cost overruns were "not the result of labor payoff negotiations." Landau also told the agent that Tade had not given any money to union officials. Exh. E at 2.

On October 23, 1984, Landau appeared before a federal grand jury investigating extortion by Local 3. Assistant United States Attorney ("AUSA") Walter Mack, Jr., questioned Landau about the events surrounding Tade's preparation of a series of documents in February 1983 that sought additional payments from Image to cover cost overruns. AUSA Mack also questioned Landau about a Modification Agreement between Tade and Image dated March 3, 1983 that increased payments to Tade by $20,000. Exh. B at 26-41, Exh. C, Exs. at 4-8.

At the time of Landau's grand jury testimony, the Government had in its possession a tape of a negotiation session between Landau and Nava on June 27, 1983. That conversation was taped without Landau's knowledge, apparently by Nava, who subsequently sued Tade on the Image job in state court for breach of contract. Exh. J. The transcript of the tape provided to the court sets forth, in relevant part:

  NAVA: Get the twelve thousand dollars back from,
    uh, the Union.
  LANDAU: Do I look like Houdini? If I look like
    Houdini I wouldn't be here, . . . C'mon Rich
    . . . I'm not . . .
  NAVA: I mean who . . . Why, why were they paid
    that money?

LANDAU: They had to be paid.

NAVA: Why did they have to be paid?

  NAVA: I mean, suppose you said, look I, . . . I'm
    not paying it?
  LANDAU: Because look at the damage they did the
    . . . Let's start with the electrician . . . They
    could've done more damage . . . They were here
    for three weeks . . .
    They were here picketing for three weeks . . .
    [inaudible] . . . That they were here minimum of
    three weeks . . . And the electrician . . .
    Who's good enough to work, OK? On a different
    shift . . . without charging . . .

LANDAU: Ah, I can't get that money back.

    Why did I pay it? Paid it because I thought it
    was the best thing to do. I really ...

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