United States v. James Arthur Friedhaber

K.K. HALL, Circuit Judge,

dissenting:

As the majority correctly recognizes, the government’s responsibility for demonstrating materiality in a case brought pursuant to 18 U.S.C. § 1623 imposes but a slight burden. The prosecution need only establish that the false statements had the capacity to impede the work of the grand-jury. Criminal culpability turns upon the potential rather than the actual effect of perjurious remarks. In this instance, I believe that the materiality of the defendant’s statements was thoroughly established.

Friedhaber testified before a grand jury that was investigating the possibility of arson at the Gilbert Funeral Home. As one of the only two people known to have been in the building immediately before the fire, his testimony was of obvious significance. By maintaining that he had smelled a “pungent odor” similar to burning trash in the funeral home, the defendant impliedly suggested that the fire was of a natural origin and not a kerosene fire as alleged by the government. When confronted with an apparent inconsistency between his grand jury testimony and prior statements *287made to investigators immediately after the fire, Friedhaber sought to deny the existence of any inconsistency. He maintained that he had told the “pungent odor” story in response to all investigative questioning.1

It is important to remember that the perjury for which Friedhaber was charged and convicted was not the “pungent odor” story but rather his claim that he had told the same story to all investigators. I completely agree with the government’s contention that the defendant’s statement, if believed, would have the natural effect of bolstering his credibility on an issue central to the grand jury’s inquiry while simultaneously undermining the credibility of the government’s investigators.

In ruling on Friedhaber’s Rule 29 motion, the district court stated that “no evidence was presented at trial to show how the defendant’s alleged false statement has adversely affected ... [the grand jury’s] work.” Although it acknowledged the proper standard for § 1623 materiality, the district court revealed, by that statement, that it had erroneously considered actual rather than potential interference with the grand jury.

The majority opinion approaches the same error. It notes that the targets of the grand jury investigation were indicted for arson notwithstanding Friedhaber’s testimony. That fact is, of course, irrelevant to a determination of materiality under § 1623. The only question before us is whether the defendant’s attempt to sustain his credibility by recourse to perjury could have the capacity to affect the grand jury’s deliberations. In my view, the potentially harmful impact of such perjury is clear.

Accordingly, I would reverse the district court’s grant of the Rule 29 motion and remand for reinstatement of the jury’s verdict. I, therefore, respectfully dissent.

. The first record of the "pungent odor” story appears in statements made by Friedhaber in February, 1986, to a private investigator retained by the Gilberts in connection with a civil suit against their fire insurance carrier.