UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4592

PAUL LESTER CASTNER,
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-98-20)

Submitted: December 22, 1999

Decided: January 31, 2000

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen D. Herndon, Wheeling, West Virginia, for Appellant. David
E. Godwin, United States Attorney, Sharon L. Potter, Assistant
United States Attorney, Paul T. Camilletti, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

Paul Lester Castner appeals his conviction for making false decla-
rations to a grand jury in violation of 18 U.S.C.A.§ 1623(a) (West
1994 & Supp. 1999). Castner was subpoenaed to testify before a
grand jury investigating a fire that killed five people, including Cast-
ner's three children. Castner testified that he received specific infor-
mation about the locations in which gasoline was poured and
descriptions of who started the fire from conversations with his chil-
dren after their deaths. Castner denied receiving the information from
Ricky Brown, David Brown, or Barbara Brown. Castner was con-
victed and sentenced to 60 months imprisonment.

On appeal, Castner contends that he received the information in a
conversation held jointly with Ricky, David and Barbara Brown,
rather than any one of them individually, and therefore was entitled
to a jury instruction that a perjury conviction cannot be based on
answers that were literally true. See Bronston v. United States, 409
U.S. 352, 362 (1973).

The decision of whether or not to give a particular jury instruction
is reviewed for abuse of discretion. See United States v. Whittington,
26 F.3d 456, 462 (4th Cir. 1994). A defendant is entitled to a jury
instruction on any defense which has an evidentiary foundation and
accurately states the law. See United States v. Sloley, 19 F.3d 149,
153 (4th Cir. 1994).

We find that Castner is not entitled to a Bronston instruction
because his statements to the grand jury were not literally true. After
Castner testified that he had received information about the arson
from his deceased children, the examiner asked Castner whether he
had received the information from "somebody else . . . like Ricky or
David themselves." Castner replied that he had not. A question must
be considered in its context and given its common sense meaning. See
United States v. Portac, Inc., 869 F.2d 1288, 1296 (9th Cir. 1988).
The examiner's question was not limited to Ricky or David; rather,
his question asked if the information could have come from someone
other than Castner's children. The examiner's question was broad

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enough to encompass any statements made by the Browns, jointly or
individually, and thus Castner's denial was not literally true.

Furthermore, Castner testified before the grand jury that he did not
participate in or hear any conversation regarding the arson. Castner's
appellate argument is founded upon the falsity of that testimony.
Because Castner's answers were not literally true, the district court
did not err in refusing to instruct the jury that literally true answers
cannot support a perjury charge. Likewise, the district court did not
err in instructing the jury that literally true answers could support a
charge of perjury in certain circumstances.

We affirm Castner's conviction under 18 U.S.C.A.§ 1623(a). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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