
    UNITED STATES of America v. Thomas LICIARDELLO, et al.
    Criminal Action No. 14-412.
    United States District Court, E.D. Pennsylvania.
    Signed March 20, 2015.
    
      Anthony Wzorek, United States Attorney, Maureen McCartney, U.S. Dept of Justice, Philadelphia, PA, for Plaintiff.
    Burton Rose, Jeffrey M. Miller, Nasuti & Miller, Philadelphia, PA, for Thomas Liciardello, et al.
   MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

In July 2014, six then-Philadelphia narcotics officers were indicted with charges of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and various related offenses. In preparation for trial, Defendant John Speiser has moved a second time to quash the indictment, arguing that it was based in part on material perjury. Because the alleged perjury is immaterial, the Court will deny the motion.

I. BACKGROUND

On July 29, 2014, a grand jury indicted six defendants — Thomas Liciardello, Brian Reynolds, Michael Spicer, Perry Betts, Linwood Norman, and John Speiser — with charges of RICO conspiracy and various related offenses. The indictment listed as “overt acts” twenty-two separate “episodes” undertaken by one or more of the defendants. It was alleged that Speiser participated in episodes 13 (involving victim C.C.), 17 (involving victim L.S.), and 22' (involving victim M.P.). All defendants pleaded not guilty. Jury selection began on March 17, 2015, and concluded on March 19, 2015. Opening arguments are set for March 30, 2015.

Speiser moved to quash the indictment on December 1, 2014. ECF No. 210. The Court denied this motion on February 23, 2015, holding that (1) a pretrial motion is an impermissible vehicle under the circumstances for challenging the sufficiency of the Government’s evidence; (2) the indictment properly invokes the jurisdiction of this Court; and (3) an omission can constitute a violation of 18 U.S.C. § 1519, which is not void for vagueness as to Speiser. ECF Nos. 275, 276.

On March 6, 2015, the Government moved to withdraw counts 4 and 22 and episodes 19 and 20 in count 1 of the indictment. ECF No. 292. The Court granted this motion at a hearing on March 9, 2015, after Defendants indicated that they had no objections. ECF No. 300.

On March 13, 2015, the Government moved to withdraw prosecution on counts 18 and 21 and episode 13 of count 1 of the indictment, as well as to withdraw W.L. as a victim in count 2 and the related overt acts in paragraphs 81 through 84. ECF No. 313. Speiser and Liciardello objected. ECF Nos. 323, 325. After a hearing on the matter, the Court overruled their objections and granted the Government’s motion. ECF No. 336.

II. SECOND MOTION TO QUASH THE INDICTMENT

Speiser now moves a second time to quash the indictment (ECF No. 323), arguing that it must be dismissed because it was based in part upon the perjured grand jury testimony of Government witness C.C. — the alleged victim involved in episode 13, which the Government has withdrawn from the indictment.

A. Legal Standard

In United States v. Basurto, 497 F.2d 781 (9th Cir.1974), the Ninth Circuit held that a defendant’s Fifth Amendment rights are violated when he must stand trial on an indictment which (1) the Government knows is based partially on perjured testimony, (2) the perjured testimony is material, and (3) jeopardy has not attached. Id. at 785. The Ninth Circuit later noted that evidence of perjured testimony must go beyond mere speculation, and suggested that the defendant must show that the Government had a reason to believe the testimony was perjured. United States v. Claiborne, 765 F.2d 784, 792 (9th Cir.1985), abrogation on other grounds recognized by United States v. Hernandez, 312 Fed.Appx. 937, 938 (9th Cir.2009).

Some circuits have adopted Basurto in part. See United States v. Adamo, 742 F.2d 927, 940 (6th Cir.1984) (agreeing that prosecutors cannot knowingly use perjured testimony at any point in the prosecution of a case, but declining to require a prosecutor to seek a superseding indictment upon learning of material perjury before the grand jury); United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.1979) (citing Basurto for the principle that a prosecutor “may not obtain an indictment on the basis of evidence known to him to be perjured”)

Other circuits have declined to decide whether to adopt the rule of Basurto because the facts would not warrant relief. See, e.g., United States v. Rodriguez, 765 F.2d 1546, 1559 (11th Cir.1985) (finding no evidence that the prosecutor knew of the perjury — even though the prosecutor did know that the polygraph examiner disbelieved the witness’s statements — and holding that the testimony was immaterial because the appellant was acquitted on the relevant count); United States v. Flaherty, 668 F.2d 566, 584-85 (1st Cir.1981) (determining that something that falsehoods were not material to the case); Talamante v. Romero, 620 F.2d 784, 790-91 (10th Cir.1980) (holding falsehoods immaterial because the witness recanted his perjury and told the truth at trial); United States v. Cathey, 591 F.2d 268, 272 (5th Cir.1979) (concluding that there was no evidence of perjury and that the alleged falsehoods were immaterial).

The Third Circuit has cited Basurto once. In a nonprecedential opinion, the court noted the rule of Basurto, but concluded that the appellant in that case was not entitled to relief because the district court did not clearly err in deciding that no perjury had occurred. United States v. Rodriguez, 88 Fed.Appx. 548, 549 (3d Cir. 2004). And in United States v. Hargrove, No. 99-232-01, 2003 WL 22232853, at *9 (E.D.Pa. Aug. 1, 2003), Judge DuBois held that Basurto was inapplicable because the alleged perjured testimony concerned was not an element of the offenses charged, and thus was immaterial.

B. Analysis

The first question the Court must decide is the legal rule that applies to this case. Speiser argues that under Basurto, he need not show that the Government had any knowledge that perjury occurred— only that there was perjury and it was material. The Government disagrees, arguing that Basurto requires knowledge on the part of the Government.

Both Speiser and the Government are correct, to some degree. Basurto clearly requires that the Government must know that the testimony at issue is perjured. See Basurto, 497 F.2d at 785 (holding that a defendant must not be forced “to stand trial on an indictment which the government knows is based partially on perjured testimony” (emphasis added)). As Speiser has acknowledged, no court has yet held that a defendant need only show that the Government was negligent or acted with reckless disregard or willful blindness by failing to uncover facts that would have called a witness’s testimony into question. The Court declines to so hold in this case.

But Speiser also argues that what the Government knows now is also sufficient to satisfy the Basurto standard, and there, Speiser is correct. If before the verdict was returned, the Government never learned of the information that caused it in this case to withdraw episode 13 from the indictment, and the case proceeded to verdict on an indictment still partially based on C.C.’s testimony, the Government would not have “known” of perjury for the purposes of Basurto. But because the purpose of the Basurto rule is to prevent a defendant from standing trial on an indictment the Government knows to be based on perjured testimony, the rule would apply, for example, if the Government learned of the perjury on the last day of trial and said nothing. In other words, the Government cannot proceed to trial on an indictment it knows is at least partially based on perjured testimony, even if the Government did not know that the testimony was perjured when it was offered. Therefore, though there is no evidence that the Government knew C.C.’s grand jury testimony was problematic before he gave it, it is sufficient that the Government knows now.

However, although Speiser has satisfied Basurto’s knowledge requirement, he has not proven materiality. Courts have held that if the problem with the allegedly tainted testimony is cured, any perjury is immaterial. In Talamante, for example, the Tenth Circuit held that although a witness, perjured himself before the grand jury, the perjury was immaterial because he recanted his perjury and told the truth at trial. 620 F.2d at 791. In Rodriguez, the Eleventh Circuit held that a defendant had not been prejudiced by perjured testimony because he was acquitted on the count to which the testimony related. 765 F.2d at 1559. And in Claiborne, the Ninth Circuit held that even if a witness had perjured himself before the grand jury, that perjury was immaterial because the Government dismissed the counts relating to that witness’s testimony before trial began. 765 F.2d at 792.

As in Claiborne, when the Government in this case learned of problems with C.C.’s testimony, it chose to withdraw the portions of the indictment that involved C.C. Accordingly, the indictment — which still charges the same offenses — is no longer based on perjured testimony, and so the fact that C.C.’s testimony occurred at all is immaterial because the defendants will not be standing trial on an indictment based in part on perjured testimony.

Speiser also argues that C.C.’s testimony is material because that testimony was the only evidence that implicated him before the grand jury. To the extent that this argument is a challenge to the sufficiency of the evidence, the Court has already explained, see ECF No. 275, that in the Third Circuit, “a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government’s evidence.” United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir.2000).

But even setting aside the DeLaurentis rule, C.C.’s testimony is not the only evidence placing Speiser at the scenes of the crimes alleged in the indictment: though M.P. and L.S. may not have named Speiser to the grand jury, Speiser himself wrote the police report for the M.P. incident described in episode 22, see Speiser First Mot. Quash Ex. 2, ECF 210-2, and Liciar-dello’s police report for the L.S. incident described in episode 17 states that Speiser was there, see Exhibit 1. Moreover, as the Government argues:

The return of the indictment by the grand jury with Speiser listed as a co-conspirator ... demonstrates their finding that the defendant knowingly and willfully agreed that he or a coconspirator would commit at least two racketeering' acts. That finding is corroborated by the return of Count 26 charging Speiser with the false report as to the M.P. episode. In addition, beyond the M.P. and L.S. episodes, Speiser is responsible for all other acts committed by his co-conspirators, whether he was present or not.

Gov’t Resp. 7 n. 3. In other words, regardless of whether the grand jury was presented with either police report mentioned above, and even though M.P. did not name Speiser before the grand jury, the grand jury still returned a specific count against Speiser concerning, the M.P. episode (Count 26) — a count that also corroborates the grand jury’s finding that Speiser was a coconspirator (Count 1). Therefore, the evidence does not support Speiser’s assertion that the grand jury would not have returned an indictment against him but for C.C.’s testimony.

Accordingly, any perjury C.C. may or may not have committed before the grand jury was immaterial, regardless of the Government’s knowledge, and Speiser’s motion must be denied.

II. CONCLUSION

For the foregoing reasons, the Court will deny Speiser’s Second Motion to Quash the Indictment. An appropriate order follows.

Exhibit 1

ORDER

AND NOW, this 20th day of March, 2015, for the reasons set forth in the accompanying memorandum, the following is hereby ORDERED:

(1) Defendants Brian Reynolds, Michael Spicer, Perry Betts, and Linwood Norman’s Motions to Join (ECF Nos. 326, 327, 324, and 328) are GRANTED;
(2) Defendant John Speiser’s Second Motion to Quash the Indictment (ECF No. 323) is DENIED; and
(3) Defendant Speiser’s additional exhibits, provided to the Court during oral argument and attached to this Order, shall be filed as Exhibits 12 and 13 to the Second Motion to Quash (ECF No. 323).

AND IT IS SO ORDERED. 
      
      . Those offenses include Hobbs Act robbery, Hobbs Act extortion, use of a firearm during a crime of violence, conspiracy to violate civil rights (through use of excessive force), deprivation of civil rights, falsification of records, and possession with intent to distribute 500 grams or more of cocaine.
     
      
      . Defendants Reynolds (ECF No. 326), Spicer (ECF No. 327), Betts (ECF No. 324), and Norman (ECF No. 328) joined the motion to quash.
     
      
      . The Government indicated in open court on March 19, 2015, that it chose to withdraw episode 13 from the indictment after learning of a civil lawsuit filed by C.C. and determining that it could not proceed with him as a witness due to inconsistencies between his story in his civil suit and his story in this case.
     
      
      . Speiser's submission, while alleging perjury, does not address the elements of the crime of perjury. The Government argues that C.C.’s grand jury testimony was not perjured, but was merely inconsistent with his prior testimony in a state court proceeding, as well as with statements made in a civil lawsuit.
      An individual commits perjury when he is under oath and "knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration.” 18 U.S.C. § 1623(a).
      Mere inconsistencies are not necessarily proof of perjury, therefore, as the witness must know he is lying. Moreover, the declaration must be material, so not even all intentional falsehoods rise to the level of perjury.
      For the purposes of ruling on this motion, the Court will assume that C.C.’s testimony was perjured, without expressing any opinion on the matter. As a result, a review of the statements that Speiser alleges were perjured is unnecessary.
     
      
      . It is true that Claiborne suggests that the Government need only have a "reason to believe” the testimony was perjured, but it is unclear whether that language encompasses the situation here. See 765 F.2d at 792.
     
      
      . 6 For this reason, Speiser’s argument regarding the email from C.C.’s counsel to Government counsel (Speiser Mot. Ex. 12) is irrelevant. That is, the email supports the idea that the Government knew of the problems with C.C.'s grand jury testimony only if Government counsel knew of C.C.’s civil lawsuit at the time the email was sent, which they did not. Without knowledge of that civil lawsuit, in fact, the email actually suggests that the Government had good reason to believe C.C. was telling the truth before the grand jury.
     
      
      . Again, the Court is assuming, for the purposes of this motion only, that C.C. did perjure himself, which the Government disputes. See supra note 4.
     
      
      . For this reason, the materiality (or lack thereof) of the particular content of C.C.’s peijured statements is irrelevant.
     
      
      . The Court notes, of course, that Speiser is responsible for acts committed by his cocon-spirátors only if they are within the scope of the conspiracy charged.
     