United States v. Accettola

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4046

MICHAEL JOHN ACCETTOLA,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-16)

Submitted: October 3, 1996

Decided: October 16, 1996

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Paul M. McKay, MCKAY & MCKAY, Wheeling, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Wheeling,
West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Michael John Accettola appeals his conviction, after a bench trial,
for making false statements to a grand jury of the United States in
violation of 18 U.S.C.A. § 1623(a) (West Supp. 1996) alleging there
was insufficient evidence to support the conviction. For the reasons
following, we affirm.

We must affirm a conviction attacked on the grounds of insuffi-
cient evidence if "after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979). The essential elements of 18
U.S.C.A. § 1623(a) are: (1) that the defendant's testimony was under
oath before a grand jury; (2) that the testimony given was false in one
or more of the respects charged; (3) that the false testimony was
knowingly given; and (4) the subject matter of the testimony was
"material" to the grand jury's investigation. United States v.
Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). To be material a
"statement must have `a natural tendency to influence, or [be] capable
of influencing,'" United States v. Gaudin, ___ U.S. ___, 63 U.S.L.W.
4611, 4612 (U.S. June 19, 1995) (No. 94-514) (quoting Kungys v.
United States, 485 U.S. 759, 770 (1988)), or have "the natural effect
or tendency to impede, influence or dissuade the grand jury from pur-
suing its investigation." Friedhaber, 856 F.2d at 642 (citation omit-
ted).

In Accettola's sworn testimony before the grand jury, which con-
cerned charges of distribution of controlled substances and conspiracy
or attempt to distribute controlled substances under 21 U.S.C.
§ 841(a)(1) (1994) and 21 U.S.C.A. § 846 (West Supp. 1996), Accet-
tola denied that he had seen Tony Foglio and Rocco Mallicone
together at a hotel or that he had seen Mallicone pick up Foglio and
a marijuana shipment in a truck. The grand jury testimony directly
conflicted with written statements Accettola had previously made to
the Federal Bureau of Investigation as part of a plea agreement. The
prior statement in which Accettola had agreed to be"completely
forthright and truthful" was made in the presence of Accettola's

2
defense counsel and reviewed by counsel to ensure accuracy and
truthfulness.* Thus, the district court found that, based upon the
detailed nature of the prior written statement and the circumstances
in the which the statement was given, Accettola knowingly gave false
testimony to the grand jury. The court also found that Accettola's
false statements were material because they cast light on whether a
drug conspiracy to distribute marijuana existed between Mallicone
and Foglio. Accordingly, we affirm the conviction because viewing
the evidence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found Accettola guilty of violating 18
U.S.C.A. § 1623(a) beyond a reasonable doubt. Jackson, 443 U.S. at
319; Friedhaber, 856 F.2d at 642.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.

AFFIRMED
_________________________________________________________________
*Accettola's attorney read the statement to him verbatim and Accet-
tola signed his name at the bottom of each page. Accettola initialed all
changes and corrections to the statement.

3