                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2005

USA v. Gaudelli
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4167




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-4167


                           UNITED STATES OF AMERICA

                                            v.

                               EDMOND N. GAUDELLI,
                                           Appellant


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            (D.C. Criminal No. 02-cr-00275)
                      District Judge: Honorable David S. Cercone


                         Submitted November 29, 2004 and
                   On Remand from the United States Supreme Court
                          by Order Dated April 18, 2005

            Before: RENDELL, ALDISERT and MAGILL*, Circuit Judges.

                                 (Filed: June 16, 2005 )


                              OPINION OF THE COURT




      *Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
RENDELL, Circuit Judge.

       Edmond N. Gaudelli, Jr. was convicted by a jury of perjury in violation of 18

U.S.C. § 1621. He was sentenced to one year in prison to be followed by two years of

supervised release. He timely appealed to this Court, and, on appeal, we affirmed the

conviction. See United States v. Gaudelli, 116 Fed. Appx. 363 (3d Cir. 2004).

Subsequently, on April 18, 2005, the Supreme Court granted certiorari, vacated the

judgment, and remanded the case to this Court for further consideration in light of United

States v. Booker, 543 U.S. __, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). See Gaudelli v.

United States, __ U.S. __, 161 L. Ed. 2d 717, 125 S. Ct. 1867 (2005). In vacating the

judgment, the Supreme Court did not indicate any disagreement with our analysis wherein

we affirmed Gaudelli’s conviction. Herein, we will again affirm the conviction and

repeat our analysis below. However, having concluded that the sentencing issues based

on Booker are best determined by the District Court in the first instance, we will vacate

the sentence and remand for resentencing in accordance with Booker.

                                              I.

       In June 1999, Gaudelli, a police officer with the City of Pittsburgh, filed a civil

action against his employer and several police officers in his department alleging that

after he had responded to a domestic violence call at the home of Chief of Police Robert

McNeilly, he was told by his superiors to expunge the call from his records. Gaudelli

claimed that when he tried to “[speak] out about police misconduct and harassment and



                                              2
other matters of public concern,” the department and its officers retaliated against him in

violation of his First Amendment right to free speech.

       At his deposition in the case, Gaudelli elaborately detailed responding to a

domestic violence call at the McNeilly residence on September 28, 1996. He stated that a

fellow officer instructed him not to log the response in his record and that other officers

confided with him about similar encounters at the McNeilly home. Evidence was

produced, however, contradicting Gaudelli’s claims. McNeilly provided documentation

that on the day of the alleged call, he and his family were vacationing in Florida. Several

officers that Gaudelli referenced in his story denied his allegations. There was no record

of such an event in the department’s record-keeping system, and the individual who

created the system stated that a record could not have been expunged from it. In light of

this evidence, Gaudelli voluntarily dismissed the case.

       Subsequently, Gaudelli was tried for perjury in violation of 18 U.S.C. § 1621. At

trial, the government presented evidence that the statements Gaudelli made during his

deposition were false. McNeilly testified that he was in Florida on the day that Gaudelli

claimed to have responded to a call at his home. Several officers testified that Gaudelli

had fabricated conversations he had alleged in his deposition testimony. Gaudelli

presented several officers and dispatchers who testified that a call did come from the

McNeilly residence on some unknown date. Ultimately, the jury convicted Gaudelli.

\



                                              3
                                              II.

       Gaudelli makes two arguments on appeal. First, he asserts that the statements that

he made during his deposition for which he was convicted do not satisfy the materiality

requirement of the offense of perjury. Additionally, Gaudelli argues that the

government’s decision not to grant immunity to a defense witness who invoked her Fifth

Amendment privilege denied Gaudelli a fair trial and his constitutional right to call

witnesses.

       Perjury consists of four elements: (1) a false statement; (2) given under oath; (3)

made knowingly and willfully; (4) that concerns a material matter. See 18 U.S.C. § 1621.

A false statement is material if it has “a natural tendency to influence, or [is] capable of

influencing, the decision of the decisionmaking body to which it is addressed.” United

States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S.

759, 770 (1988)). “The Constitution gives a criminal defendant the right to have a jury

determine, beyond a reasonable doubt, his guilt of every element of the crime with which

he is charged.” Id. at 522-23.

       The determination of whether Gaudelli’s statements concerned a material matter

was committed to the jury at trial. We consider whether there is sufficient evidence,

viewed in the light most favorable to the government, to uphold the jury’s decision.

United States v. Dent, 149 F.3d 180, 187 (3d Cir. 2003). “Our review of the sufficiency

of the evidence after a guilty verdict is ‘highly deferential’” to the government as the



                                              4
verdict winner. United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003) (quoting

United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001)). We will sustain the verdict if

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                              III.

       Gaudelli argues that the allegedly false statements that he made at his deposition

were not material essentially because his claims lacked merit. He cites the testimony of

his expert witness, who stated that his claims would not survive a motion to dismiss.

Therefore, Gaudelli argues that the allegedly false statements could not have influenced a

decisionmaker and, consequently, were not material. We disagree. The allegations that

Gaudelli made in his deposition, that is, that he responded to a domestic violence call at

the McNeilly residence and that his superiors told him to cover up the call, were the basis

for his claims that the police department retaliated against him. He claims that they were

irrelevant and extraneous to the claims advanced in the civil lawsuit, but, to the contrary,

they were at the heart of his retaliation claim.

       In the alternative, Gaudelli argues that because he voluntarily withdrew his suit,

the allegedly false statements could not have influenced the decisionmaker and were

therefore not material. But, a false statement’s capacity to influence a fact finder is

judged at the time the statement was made. See United States v. Sarihifard, 155 F.3d 301,



                                               5
307 (4th Cir. 1998); United States v. Gremillion, 464 F.2d 901, 904-05 (5th Cir. 1972).

The statements Gaudelli made in his deposition had the potential of influencing an

eventual fact finder. That the statements were never presented to a fact finder is

irrelevant.1

       In short, viewed in the light most favorable to the government, Gaudelli’s

arguments aimed at the elements of the perjury conviction must fail.

                                            IV.

       Gaudelli also argues that the District Court erred when it denied his motion for

judgment of acquittal based on the government’s refusal to grant immunity to Gail Elliott,

a defense witness who invoked the Fifth Amendment. We review the refusal to

immunize a witness for abuse of discretion. United States v. Perez, 280 F.3d 318, 348

(3d Cir. 2002) (citing United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978)). The

District Court’s factual findings regarding the likely effect of undisclosed information are

reviewed for clear error. Id. (citing United States v. Pelullo, 173 F.3d 131, 135 (3d Cir.

1999)).

       Elliott is a former dispatcher at the City of Pittsburgh’s 911 center, who, Gaudelli


1
  We also reject Gaudelli’s contention that the allegedly false statements were not
material because the statements were made in a deposition, not in a formal court
proceeding. Clearly, the perjury statute does not require that the false statement be made
in a formal court proceeding. Section 1621 only requires that the statement have been
made “before a competent tribunal, officer, or person” with the authority to place the
individual under oath and applies to “any written testimony, declaration, deposition, or
certificate” that the individual has sworn to be true. 18 U.S.C. § 1621.

                                             6
maintains, would have testified to taking a call for a domestic violence incident at

McNeilly’s home sometime between 1993 and 1999. On the day she was scheduled to

testify, Elliott informed defense counsel that she would invoke the Fifth Amendment if

she were called as a witness, a decision defense counsel alleged was the product of

conversations she had with FBI Agent Larry Juliano. The District Court then called both

Elliott and Juliano to testify in camera about their conversations.

       Elliott testified that she had engaged in several conversations with Juliano over the

course of the investigation and trial. A week before the trial was to begin, Elliott initiated

a meeting with Juliano to discuss her testimony, during which Elliott expressed a

reluctance to testify. Juliano told Elliott there were no records to support her story about

receiving a call from the McNeilly home and that “she should be aware of the

consequences” of testifying. When questioned by the District Court, “Did Mr. Juliano

specifically threaten you or intimidate you or specifically say that if you testified, you

would be prosecuted or anything like that?” Elliott responded, “No. It was from the way

that he told me about the records is the way I take it.”

       The District Court denied defense counsel’s request that it direct the government to

guarantee immunity to Elliott, finding that because Elliott herself initiated the

conversations with Juliano and Juliano’s statements to Elliott never explicitly accused her

of lying or threatened her with prosecution, the government’s conduct did not require the

court to demand immunity for Elliott. In addition, the District Court found that Elliott’s



                                              7
testimony would be cumulative and not exculpatory.

       Under 18 U.S.C. § 6003, a court may grant immunity to a defense witness

generally only “upon the request of the United States attorney for such district.”

Nevertheless, despite “our governmental system’s strong tradition of deference to

prosecutorial discretion” in granting statutory immunity, this Court has recognized two

instances in which due process requires that a defense witness be guaranteed

prosecutorial immunity. Herman, 589 F.2d at 1203. First, if the court finds prosecutorial

misconduct in the form of “the government’s deliberate intent to disrupt the fact finding

process,” the court should order the government to grant the defense witness statutory

immunity or face a judgment of acquittal. Gov’t of Virgin Islands v. Smith, 615 F.2d

964, 974 (3d Cir. 1980); Herman, 589 F.2d at 1204. Second, even in the absence of

prosecutorial misconduct, the court has the inherent power to grant a witness immunity

where a defendant is deprived of testimony that is “essential to an effective defense,” that

is, where the witness can offer testimony “which is clearly exculpatory and essential to

the defense case and when the government has no strong interest in withholding use

immunity.” Smith, 615 F.2d at 974. “[W]hether judicial immunity is warranted is a

matter to be determined by the district court in the first instance.” Id.

       In United States v. Morrison, we found that due process demanded that the

government grant immunity to a defense witness “when prosecutorial misconduct caused

the defendant’s principal witness to withhold out of fear of self-incrimination testimony



                                              8
which would otherwise allegedly have been available to the defendant.” 535 F.2d 223,

229 (3d Cir. 1976). Gaudelli argues that because the government engaged in

prosecutorial misconduct, Morrison requires that the District Court have granted Elliott

immunity. We disagree.

       In Morrison, under the pressure of a “barrage of warnings” from the government

that she was liable to be prosecuted for perjury and drug charges if she testified, the

defense witness invoked the Fifth Amendment. Id. at 226. Because “the pressure

brought to bear on [the witness] by the Assistant United States Attorney . . . infringed on

defendant’s constitutional right to have [the witness’s] freely-given testimony,” we

ordered the District Court to enter a judgment of acquittal if on remand the government

refused to grant immunity to the witness when she invoked the Fifth Amendment. Id. at

228, 229.

       In the case at bar, however, there was no “barrage” of “repeated warnings” or

intimidation of Elliott. It was Elliott who initiated conversations with Juliano and

declared her reluctance to testify. While testifying in camera, Elliott indicated that

Juliano never threatened or intimidated her with prosecution if she testified.

       Gaudelli urges that Morrison held that the good faith of the government is not

relevant to the inquiry whether the witness should have been granted immunity and that

the effect of the prosecutorial misconduct, not the intent, is determinative. We stated in

Herman, however, that a defendant asserting a Morrison claim of prosecutorial



                                              9
misconduct bears the substantial burden of showing that “the government’s decisions

were made with the deliberate intention of distorting the judicial fact finding process.”

Herman, 589 F.2d at 1204. “[A]bsent this type of prosecutorial misconduct, a defendant

is foreclosed from insisting that statutory immunity be granted his witnesses.” Smith,

615 F.2d at 968.

       In Smith, we further defined a court’s inherent power to grant immunity to a

defense witness. We stated that a court’s ability to require immunity is triggered “not by

prosecutorial misconduct or intentional distortion of the trial process, but by the fact that

the defendant is prevented from presenting exculpatory evidence which is crucial to his

case.” Smith, 615 F.2d at 969. Justification for this authority arises from the “due

process right to have clearly exculpatory evidence presented to the jury, at least when

there is no strong countervailing systemic interest which justifies its exclusion.”

Herman, 589 F.2d at 1204. However, we have said that immunity “will be denied if the

proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative, or if it

is found to relate only to the credibility of the government’s witness.” Smith, 615 F.2d at

973.

       Gaudelli maintains that Elliott’s testimony was both exculpatory and essential to

his defense, but we cannot agree. Whereas the testimony of the witnesses in Morrison

and Smith would have exonerated the defendants, Elliott’s testimony likely would not

have exonerated Gaudelli. See Morrison, 535 F.2d at 225 (witness would have accepted



                                              10
responsibility for the offense for which defendant was charged); United States v. Lowell,

649 F.2d 950, 965 (3d Cir. 1988) (immunity for a witness is not required when the

witness’s testimony on its own will not exonerate the defendant). Gaudelli anticipated

that Elliott would testify that at some unknown date between 1993 and 1999 she received

a domestic violence call from the McNeilly residence. However, because several other

defense witnesses testified to receiving a call from the McNeilly home at an unknown

date, Elliott’s testimony would have been cumulative. Also, Elliott has stated that she is

certain that McNeilly was Commissioner, not Chief of Police, at the time she received the

call, further diminishing the probative value of her testimony and any likelihood of

Gaudelli’s acquittal if Elliott’s testimony had been provided to the jury. In light of these

circumstances, we conclude that Elliott’s testimony was neither exculpatory nor essential

to Gaudelli’s defense, and the District Court did not abuse its discretion when it refused

to grant Elliott immunity.

       Accordingly, we will AFFIRM the conviction and VACATE the sentence and

REMAND to the District Court for further consideration in light of Booker.

________________________




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