argues that Counts 4 and 5 should be dismissed because the statements he and his co-defendant made were not "material" within the meaning of the false statements statute, 18 U.S.C. § 1001, and the perjury statute, 18 U.S.C. § 1623. Second, he argues that Counts 4 and 5 should be dismissed as to him because the "exculpatory no" doctrine is a complete defense. Third, relying on his first argument, Maldonado asserts that the conspiracy charged in Count 1 should be dismissed because the allegedly false statements charged as overt acts are not "material."
Officer Gribben joins in the above arguments as they pertain to him. Thus, he contends that because the alleged misstatements were not material under sections 1001 and 1623, Counts 2, 3 and 6 (the substantive counts) and Count 1 (the underlying conspiracy count) should be dismissed.
It is firmly established that materiality is an element of an offense under 18 U.S.C. Section 1623. See, e.g., United States v. Moon, 718 F.2d 1210, 1237 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984). However, in this Circuit, while materiality is an essential element of the first clause of 18 U.S.C. Section 1001, it is not an element of the second clause.
See United States v. Marchisio, 344 F.2d 653, 666 (1965) ("Materiality is not one of the essential elements of proof in a prosecution for false statements under § 1001, with the exception of the first clause of the statute"); see also U.S. v. Bilzerian, 926 F.2d 1285, 1299 (2d Cir. 1991) ("Under our decisions, materiality of the statement is not an element of the offense [of making a false statement under Section 1001]"), cert. denied, 112 S. Ct. 63, 116 L. Ed. 2d 39 (1991); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.) ("it is settled in this Circuit that materiality is not an element of the offense of making a false statement in violation of § 1001"), cert. denied, 469 U.S. 822, 105 S. Ct. 97, 83 L. Ed. 2d 43 (1984). Because the indictment charges Gribben and Maldonado under both clauses of Section 1001, I must analyze the charges under the different standards appropriate to each.
Both 18 U.S.C. § 1623 and the first clause of 18 U.S.C. § 1001 proscribe the making or covering up of a "material" false statement. Thus, a false statement which is not material cannot support a prosecution under either of these provisions. The issue of whether a false statement is material is a question of law to be determined by the court. See, e.g., United States v. Moon, 718 F.2d at 1237; United States v. Elkin, 731 F.2d at 1009. Moreover, the government bears the burden of proving materiality by a preponderance of the evidence. United States v. Cunningham, 723 F.2d 217, 226 (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984).
The Second Circuit has explained the test for determining materiality as follows:
Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered.
United States v. Moon, 718 F.2d at 1237; see also United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995, 66 L. Ed. 2d 293, 101 S. Ct. 534 (1980).
The government has simply not met its burden of demonstrating materiality. It does nothing more than conclude that "had Gribben and Maldonado told the truth about the search and seizure, it clearly 'could have helped the inquiry.'" Government's Memorandum at 12. The Government argues: "although a person might reasonably defend himself against a charge of illegally possessing a handgun by claiming he did not know he was carrying one inside a bulky bag, it is unpersuasive to make the same argument concerning a handgun hidden in one's waistband." Government's Memorandum at 12. This argument is unavailing. Materiality is not determined by hypothesizing what a defendant might argue at trial, but rather whether the alleged misrepresentation "has a natural tendency or was capable of influencing, the decision of the decision-making body to which it is addressed." Kungys v. United States, 485 U.S. 759, 770, 99 L. Ed. 2d 839, 108 S. Ct. 1537 (1988) (citation omitted; emphasis added).
The alleged false statements at issue concern where the gun was recovered from and who recovered it. The statements concerning the precise location of the gun on Calhoun were not material to either the grand jury or the United States Attorney's Office in charging Calhoun. Would it have made a difference to the decision making body if the gun had been in an ankle holster rather than in Calhoun's waistband? Clearly, the answer is no. So also it would appear that whether the possession of the gun was in the bag or in the waistband was totally inconsequential to the charges brought by the decision making body. As the charge against Calhoun would not have been any different had the officers' testimony been as the Government alleges it should have been, I cannot find the alleged false statements material. Thus, those counts alleging substantive violations of 18 U.S.C. Section 1623 (Counts 3 and 6) must be dismissed. Similarly, those portions of the counts alleging violations of the first clause of 18 U.S.C. Section 1001 (Counts 2, 4 and 5) must be stricken insofar as they allege violations of that clause. As noted above, materiality is not an element of the second clause of Section 1001. Thus, insofar as Counts 2, 4 and 5 allege violations of the second clause of Section 1001, they shall stand.
The conspiracy charge alleges, as the overt acts committed in furtherance of the alleged conspiracy, the very same substantive violations of Sections 1001 and 1623 discussed above. Because I cannot dismiss those counts alleging violations of the second clause of Section 1001, the conspiracy charge (Count 1) must also stand.
For the foregoing reasons, Counts 3 and 6 of the indictment are dismissed. Those portions of Counts 2, 4, and 5 which allege violations of the first clause of 18 U.S.C. § 1001 are dismissed.
DATED: New York, New York
May 21, 1992
KEVIN THOMAS DUFFY, U.S.D.J.