                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               MAR 6 1998
                                       PUBLISH

                       UNITED STATES COURT OF APPEALS                      PATRICK FISHER
                                                                                      Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                          No. 96-5190
 MICHELLE FARMER,

       Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE NORTHERN DISTRICT OF OKLAHOMA
                           (D.C. No. 95-CR-60-H)


Neal B. Kirkpatrick, Assistant United States Attorney, Tulsa, Oklahoma, for
Plaintiff-Appellee.

Art Fleak, Tulsa, Oklahoma, for Defendant-Appellant.


Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.


BALDOCK, Circuit Judge.


      Title IV of the Organized Crime Control Act of 1970 provides in relevant part:

        Whoever under oath . . . in any proceeding before or ancillary to any court
      or grand jury of the United States knowingly makes any false material
      declaration . . . shall be fined under this title or imprisoned not more than
      five years, or both.
18 U.S.C. § 1623(a).1 The issue in this case is whether a witness’ negative response to a

prosecutor’s question on cross-examination will support the witness’ subsequent

conviction under the Act, where such question was amenable to two reasonable

interpretations requiring different answers. We hold on the facts of this case that the

witness’ answer to the prosecutor’s question will not support the witness’ conviction

under the Act. Accordingly, we reverse.

                                              I.

       Defendant Michelle Farmer was indicted on two counts of making false

declarations before a federal court, in violation of 18 U.S.C. § 1623(a), and one count of

conspiracy to commit the same, in violation of 18 U.S.C. § 371. According to the

indictment, Defendant testified falsely under oath at a pretrial hearing in the case of

United States v. McMahon, No. 94-CR-176-BU (N.D. Okla., filed Jan. 9, 1995),

aff’d in part, rev’d in part, 91 F.3d 1394 (10th Cir.), cert. denied, 117 S. Ct. 533 (1996).2

The Government voluntarily dismissed the conspiracy count against Defendant after the

district court denied admission of her alleged coconspirators’ statements into evidence.

       1
          As the words of the statute suggest, the elements of the crime of making false
declarations under 18 U.S.C. § 1623(a) consist of testimony which is (1) given under
oath; (2) false in one or more respects; (3) knowingly and willfully given; and (4)
material. United States v. Neal, 822 F.2d 1502, 1506 (10th Cir. 1987).
       2
         Peter J. McMahon, a friend of Defendant, was charged with possession of a
firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g), and
possession of the same firearm in connection with a drug felony, in violation of 18 U.S.C.
§ 924(c). On appeal, we reversed McMahon’s § 924(c) conviction on the basis of Bailey
v. United States, 516 U.S. 137 (1995).

                                              2
See Fed. R. Evid. 801(d)(2)(e). A jury returned guilty verdicts against Defendant on both

substantive counts. The district court subsequently granted Defendant’s motion for a

judgment of acquittal under Fed. R. Civ. P. 29(c), for want of materiality on one of the

two substantive counts. The court denied Defendant’s motion as to the remaining count.

The district court sentenced Defendant to thirty-two months imprisonment, and Defendant

appealed. Our jurisdiction arises under 28 U.S.C. § 1291.

       The lone surviving count of the indictment at issue in this appeal alleged that

Defendant lied when she responded “No” to the question: “Have you talked to Mr.

McMahon, the Defendant about your testimony here today?” Rec. Vol. I, Doc. 61 at

11-12. The relevant exchange between Defendant and the prosecutor at the pretrial

hearing reads in its entirety:

       Q.     Prior to your coming to testify here today, did you speak to anyone
       about your testimony here today?

       A.    No, just the attorney asked me if I would -- you know, verifying that
       I would come.

       Q.     When was that?

       A.     Well, I called the office this morning, which I didn’t speak with him.
       Oh, I did too. I spoke with an investigator, a federal investigator.

       Q.     Who is that?

       A.     Well, I have got his name written down but I don’t remember it. I
       believe it was Steve. I am not sure on that. I do have his name and number
       written down.

       Q.     When did you talk to this investigator?

                                             3
       A.     I talked to him over the phone, I believe, a couple of weeks ago. He
       just basically, you know, asked me if Peter [McMahon] had been to my
       house and that was about it.

       Q.     Have you talked to Mr. McMahon, the Defendant about your
       testimony here today?

       A.     No.

       Q.     When is the last time you talked to Mr. McMahon?

       A.     I talked to him -- well, I believe it was yesterday. I am not real sure.
       It was yesterday or the day before. He called and I talked to him briefly on
       the phone.

       Q.     What did you talk about?

       A.     Just -- he just wanted to know if I was going to be here and I told
       him I was going to do my best. I have been working and, you know, I have
       two children, and that was about it.

Rec. Vol. V, at 108-09.

       At Defendant’s trial, the Government introduced a signed statement which

Defendant gave to Agent Carlos Sandoval five months after testifying at McMahon’s

pretrial hearing. Sandoval testified that at the direction of the United States Attorney, he

interviewed Defendant for two hours on the morning of August 14, 1995, the day of her

arraignment. Prior to the interview, Defendant signed a statement waiving her right to

counsel. During the interview, Sandoval wrote out a statement for Defendant, which

Defendant signed. The relevant portion of the statement reads:

       I never heard from Peter [McMahon] after he left until I received a
       subpoena to testify for him in Tulsa federal court. I need to clarify that.
       Peter [McMahon] did call me before I got the subpoena. He called me at

                                              4
       my friend’s house who I recently moved to. . . . He called me and he was
       telling me about the arrest he had. He told me that he could not have sold
       drugs to a confidential informant because he was not -- if I could start
       again. He told me that he could not have sold drugs to a confidential
       informant because he was at my house, but he kept pinpointing a date. He
       started to give me some dates. He was talking very fast and I listened. Just
       before he hung up the phone he told me that I was going to get a subpoena.
       . . . Peter [McMahon] never told me to lie for him, but he did want me to
       mention a date he was at my house but I couldn’t remember the date Peter
       [McMahon] was at my house.

Rec. Vol. V, at 123-24.

       According to the Government, Defendant’s statement to Agent Sandoval

establishes that she spoke with McMahon about her testimony prior to the pretrial

hearing, and thus violated § 1623(a) when she responded “No” to the question: “Have

you talked to Mr. McMahon, the Defendant about your testimony here today?”

Defendant responds by arguing that the prosecutor’s use of the phrase “here today” in the

question is ambiguous. Defendant claims she understood the prosecutor to ask whether

she had spoken with McMahon on the day of his pretrial hearing, and thus answered the

question truthfully. The Government counters by suggesting that any ambiguity in the

question was for the jury to resolve.

                                              II.

       In this circuit, we have had little opportunity to address the propriety of a

§ 1623(a) prosecution based upon a prosecutor’s ambiguous question. In United States v.

Larranaga, 787 F.2d 489 (10th Cir. 1986), we relied on the Supreme Court’s decision in

Bronston v. United States, 409 U.S. 352 (1973), and declined the Government’s invitation

                                              5
to construe § 1623(a) broadly: “‘Precise questioning is imperative as a predicate for the

offense of perjury.’” Larranaga, 787 F.2d at 497 (quoting Bronston 409 U.S. at 362).3

       In Larranaga, we held as a matter of law that the defendant did not violate

§ 1623(a) when he responded “yes” to an inquiry about whether the subpoenaed minutes

of a corporate board meeting were complete. The prosector asked: “Are these all of the

minutes of the Board of Directors’ meeting or any other subcommittees of that board?”

Although a second set of minutes and some rough notes of the meeting existed,

Defendant responded: “Yes, sir.” Larranaga, 787 F.2d at 496. We reasoned:

       Here the questioner could have precisely asked Larranaga if there were any
       related rough notes, memoranda or the like dealing with the meetings
       covered by the minutes. He could also have inquired whether there were
       any other minutes detailing the events of the same meetings in question.
       Leaving the matter as it was permitted the answer to be ambiguous in the
       context of these facts, and untrue by its “negative implication.” We must
       agree that the theory that perjury was committed by Larranaga’s one answer
       is untenable under the perjury statute as construed in Bronston.

Id. at 497. In so holding, we expressly rejected the Government’s argument that the jury

should determine whether the defendant knowingly gave a false answer to the


       3
         In Bronston, 409 U.S. at 352, the Supreme Court held that a witness could not be
convicted of perjury for an answer that was literally true but not responsive to the
question asked, and arguably misleading by negative implication. While Bronston
involved a perjury conviction under the general perjury statute, 18 U.S.C. § 1621, lower
federal courts have uniformly relied on it in reviewing perjury convictions under
§ 1623(a). See, e.g., United States v. Porter, 994 F.2d 470, 474 n.7 (8th Cir. 1993);
United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir. 1988); United States v.
Lighte, 782 F.2d 367, 372 (2d Cir. 1986); United States v. Eddy, 737 F.2d 564, 567 (6th
Cir. 1984); United States v. Tonelli, 577 F.2d 194, 198 n.3 (3d Cir. 1978); United States
v. Abrams, 568 F.2d 411, 422 n.54 (5th Cir. 1978).

                                             6
prosecutor’s question. We stated:

          We are mindful of the trial court’s instruction which charged the jury that
       if it found a question was ambiguous, and that the defendant truthfully
       answered one reasonable interpretation of it, then the answer would not be
       false. . . . We do not feel that the instruction solved the problem. In these
       circumstances, the question asked left the matter in doubt and the finding of
       guilty on the perjury charge as to this theory rested on an impermissible
       negative implication and ambiguous circumstances.

Larranaga, 787 F.2d at 497 n.2.

       Subsequently, in United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994), a case

involving a defendant’s challenge to a two-level enhancement under the sentencing

guidelines for perjury, we cited Larranaga for the proposition that “a defendant’s truthful

answer to a reasonable interpretation of an ambiguous question does not constitute

perjury.” Hilliard, 31 F.3d at 1519. We also quoted Bronston approvingly:

       Under the pressure and tensions of interrogation, it is not uncommon for the
       most earnest witness to give answers that are not entirely responsive.
       Sometimes the witness does not understand the question, or may in an
       excess of caution or apprehension read too much or too little into it. . . . It
       is the responsibility of the lawyer to probe: testimonial interrogation, and
       cross examination in particular, is a probing, prying, pressing form of
       inquiry.

Hilliard, 31 F.3d at 1519 (quoting Bronston, 409 U.S. at 358).

       Consistent with Larranaga, some courts reviewing perjury convictions have

removed the issue of a question’s meaning from the jury, where such question is

“fundamentally ambiguous.” See United States v. Markiewicz, 978 F.2d 786, 808-809

(2d Cir. 1992); United States v. Manapat, 928 F.2d 1097, 1099-1101 (11th Cir. 1991);


                                              7
United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987); United States v. Lighte, 782

F.2d 367, 375-76 (2d Cir. 1986); United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir.

1984). These courts have applied a de novo standard of review and resolved the issue as

a matter of law in favor of the defendant. See also United States v. Swindall, 971 F.2d

1531, 1553 (11th Cir. 1992) (question of fundamental ambiguity reviewed de novo);

United States v. Boone, 951 F.2d 1526, 1533 (9th Cir. 1991) (same).

       A question is fundamentally ambiguous when it “‘is not a phrase with a meaning

about which men of ordinary intellect could agree, nor one which could be used with

mutual understanding by a questioner and answerer unless it were defined at the time it

were sought and offered as testimony.’” United States v. Dietz, No. 93-8073, 1994 WL

319259, at *4 (10th Cir. 1994) (unpublished) (quoting Lighte, 782 F.2d at 375). The

purpose of the rule of fundamental ambiguity is three-fold, namely, to (1) preclude

convictions grounded on surmise or conjecture; (2) prevent witnesses from unfairly

bearing the risks of inadequate examination; and (3) encourage witnesses to testify (or at

least not discourage them from doing so). See Bronston, 409 U.S. at 359. Unfortunately,

line drawing is inevitable, for to precisely define the point at which a question becomes

fundamentally ambiguous, and thus not amenable to jury interpretation, is impossible.

       To be sure, in most instances, the meaning of a prosecutor’s question and the

truthfulness of a defendant’s answer are best left to the jury. See Dietz, 1994 WL

319259, at *4; United States v. Caucci, 635 F.2d 441, 445 (5th Cir. Unit B 1981).


                                             8
Fundamental ambiguity is the exception, not the rule. In other words, where a

prosecutor’s question is only “arguably ambiguous,” a defendant’s understanding of the

question is for the jury to resolve in the first instance. See Manapat, 928 F.2d at 1099;

Ryan, 828 F.2d at 1015; Lighte, 782 F.2d 372-73. A defendant may not succeed on a

claim of fundamental ambiguity by isolating a question from its context in an attempt to

give it a meaning entirely different from that which it has when considered in light of the

testimony as a whole. See Dietz, 1994 WL 319259 at *4 (citing United States v.

Bonacorsa, 528 F.2d 1218, 1221 (2d Cir. 1976)). Where a defendant claims that the

question is ambiguous or misunderstood, the context of the question and answer becomes

critically important.

       Where a question considered in proper context is only arguably ambiguous, courts

reviewing perjury convictions have viewed the defense of ambiguity as an attack upon the

sufficiency of the evidence. See Dietz, 1994 WL 319259, at *4; Manapat, 928 F.2d at

1099; United States v. Glantz, 847 F.2d 1, 7 (1st Cir. 1988). Applying a de novo but

more deferential standard of review, these courts view the evidence in a light most

favorable to the Government and ask whether any reasonable jury could have found all

elements of the crime beyond a reasonable doubt. See Swindall, 971 F.2d at 1553 (where

the question is only “arguably ambiguous,” the court reviews a claim of ambiguity under

the sufficiency of the evidence standard). Even under this more deferential standard,

however, courts still require a perjury conviction to rest upon precise questioning. See


                                             9
United States v. Martellano, 675 F.2d 940, 942-46 (7th Cir. 1982) (reversing perjury

conviction arising from ambiguous question on the basis of insufficient evidence); United

States v. Bell, 623 F.2d 1132, 1135-37 (5th Cir. 1980) (same); United States v. Brumley,

560 F.2d 1268, 1275-77 (5th Cir. 1977) (same); United States v. Wall, 371 F.2d 398, 399-

400 (6th Cir. 1967) (same).

       Where a question admits of two reasonable interpretations, some evidence must

show what the question meant to the defendant when she answered it. See Glantz, 847

F.2d at 6 (“The principles underlying the Bronston decision also bar perjury convictions

for arguably untrue answers to vague or ambiguous questions when there is insufficient

evidence of how they were understood by the witness.”); accord Eddy, 737 F.2d at 567.

Otherwise, the Government has not provided the jury with enough evidence to conclude

beyond a reasonable doubt that the defendant knowingly rendered false testimony, as

required to obtain a conviction under § 1623(a). See Wall, 371 F.2d at 400. While a jury

may guess correctly as to a defendant’s understanding of a question, “it is not entitled to

guess at all.” Martellano, 675 F.2d at 946; accord Glantz, 847 F.2d at 6. The evidence

must establish the fact. Nor is a witness required to guess the meaning of a question

posed to her upon peril of perjury. See United States v. Sainz, 772 F.2d 559, 564 (9th

Cir. 1985). “Especially in perjury cases, defendants may not be assumed into the

penitentiary.” Brumley, 560 F.2d at 1277.




                                             10
                                            III

       How we label the prosecutor’s question in this case makes no difference. We need

not decide whether the prosecutor’s question: “Have you talked to Mr. McMahon, the

Defendant about your testimony here today?” is fundamentally ambiguous or only

arguably ambiguous for we would reach the same result regardless of any label.

Undoubtedly, the question considered in isolation is ambiguous for it has two possible

meanings. Whether the phrase “here today” refers to the word “talked” or the word

“testimony,” is patently unclear. Viewed in the context of her entire line of testimony, the

question becomes no clearer. The phrase “here today” when considered in the context of

the prosecutor’s question: “Have you talked to Mr. McMahon, the Defendant about your

testimony here today?” does not seem to be “a phrase with a meaning about which men of

ordinary intellect could agree, nor one which could be used with mutual understanding by

a questioner and answerer unless it were defined.’” Dietz, 1994 WL 319259 at *4

(quoting Lighte, 782 F.2d at 375).

       Defendant could reasonably have believed the prosecutor to ask whether she had

spoken with McMahon on the day of his pretrial hearing. In fact, the exchange between

Defendant and the prosecutor immediately following her negative response to the

question, buttresses her understanding of the question. The prosecutor next asked:

“When is the last time you talked to Mr. McMahon?” Defendant responded that she had

spoken with McMahon “yesterday or the day before.” Defendant’s response seems to


                                            11
follow logically if she understood the prosecutor’s former question as she claims. In

other words, Defendant indicated by her testimony that she had not spoken with

McMahon on the day of the pretrial hearing but had spoken with him a day or two before

the hearing.

       Defendant did not deny speaking with McMahon prior to her testimony. When

asked what she and McMahon talked about, Defendant stated that McMahon “just wanted

to know if I was going to be here and I told him I was going to do my best.” At this point,

the prosecutor pressed no further, but ended his inquiry into the matter. While Defendant

may have had the opportunity at the pretrial hearing to divulge all matters she and

McMahon discussed in their telephone conversation, the burden was on the prosecutor to

pin her down with specific questions. See Bronston, 409 U.S. at 360. Precise

examination, which the prosecutor failed to pursue in this case, rather than a perjury

prosecution, is the primary safeguard against errant testimony. Id.

       The Government simply did not offer any evidence to suggest what the question

meant to Defendant when she answered it. Only by surmise and conjecture could the jury

conclude that Defendant understood the question as the prosecutor did. The evidence in

this case is insufficient to establish beyond a reasonable doubt that Defendant knowingly

rendered false testimony as charged in the indictment. Accordingly, Defendant’s

conviction under 18 U.S.C. § 1623(a) is REVERSED, and this cause is REMANDED for

entry of a judgment of acquittal.


                                            12
