The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
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.
The uncontested facts, except where otherwise noted, are as
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
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 ...