UNITED STATES of America, Appellee, v. Rocco PAOLICELLI, Appellant, 505 F.2d 971

FIELD, Circuit Judge: Waiving his right to a jury, Roeco Paolicelli was tried to the court and convicted of making a false declaration to a federal grand jury in violation of 18 U. S.C. § 1623. Appealing his conviction, Paolicelli’s assignments of error include (1) that his responses to questions before the grand jury were literally accurate and were not false as a matter of law and, (2) that the Government failed to establish that the declarations made by him were material to the grand jury’s inquisition.

The charges against Paolicelli stemmed from his appearance before a grand jury which was investigating the activities of his employers, the Pomponio brothers, and particularly their alleged bribery of one Paul S. Fry to influence him relative to certain business transactions. One of the items was a Continental Mark III automobile allegedly given to Fry by the Pomponios in December of 1968. The record indicates that while the automobile was in fact purchased by the Pomponios, the purchase order and specifications were placed with the dealer by Paolicelli.

Before the grand jury Paolicelli was asked whether he had purchased a vehicle from the dealer to which he responded in the negative. The record shows that his answers were something less than responsive and during the questioning counsel for the Government made it clear that in using the term “purchase” or “buying” he was attempting to elicit from Paolicelli whether he had placed an order or otherwise indicated to the dealer the specifications relative to the Continental Mark III. The examination closed with this exchange: “Q.

My question to you is: did you — and I’m not saying that you did and that I have any definite evidence that you did or didn’t, I just want to get it fairly definite on the record that you did not tell a Mr. Lyon at O’Brien and Rohall the specifications that you wanted with regard to a Continental Mark III. A. No, sir, I don’t remember. Q. If you had, you would remember? A. I’m pretty sure, if it comes to that type of car. Q. Have you ever ordered a Continental Mark III in your life ? A. No, sir. Q. Or got involved in the purchase of one in any way? A.

No, sir.” The foregoing questions and answers excerpted from Paolicelli’s grand jury testimony were included in the indictment. Relying upon Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), Paolicelli takes the position that since the automobile was purchased by the Pomponios and not by him his answers were literally accurate and cannot support his conviction.

We, of course, recognize the validity of the premise that if a party does not understand the question and gives a non-responsive answer, such an answer is not perjurious, nor can a charge of perjury “be sustained by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows.” Fotie v. United States, 137 F.2d 831, 842 (8 Cir. 1943).

However, we agree with the Government that the questions and answers in the present case, running from the general to the particular was precisely the kind of questioning which the Supreme Court indicated in Bronston would be sufficient to support a charge of perjury. The answer to Paoli-celli’s additional contention that he was confused by the questioning is that the district judge as the finder of the facts resolved this issue against him and we accept that finding.

The record demonstrates that the minds of the Government counsel and Paolicelli did, in fact, meet on the definition of the words being used in the interrogation, and in the context thereof Paolicelli’s denial that he had ever been involved in any way in the purchase of the Continental Mark III was a false declaration knowingly made by him. The second issue raised on this appeal by Paolicelli with respect to the materiality of his statements is, of course, one of law, Brooks v. United States, 253 F.2d 362 (5 Cir. 1958), cert. denied, 357 U.S. 927, 78 S.Ct. 1374, 2 L.Ed.2d 1372; United States v.

Alu, 246 F.2d 29 (2 Cir. 1957), and the record amply supports the conclusion of the district court. The latitude of materiality with respect to grand jury proceedings was stated in United States v.

Stone, 429 F.2d 138, 140 (2 Cir. 1970). “However, materiality of statements made in a grand jury investigation may more readily appear than that of similar evidence offered on an issue in civil or criminal litigation, since the purpose of the investigation is to get at facts which will enable the grand jury to determine whether formal charges should be made against someone rather than prove matters directly at issue. * * * Leads to further inquiry may be of material worth to an investigation.

Thus the test of materiality is whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation.” The relationship between the interrogation of Paolicelli and the grand jury’s objective in investigating the possible bribery of Fry by the Pomponios is obvious and his false statements in respect thereto assuredly tended to impede the grand jury’s investigation. We have carefully considered the other assignments of error and find them to be without merit. Accordingly, the conviction is affirmed.

Affirmed. . 18 U.'S.C. § 1623 reads in pertinent part as follows: “(

a) 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 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, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” . In his brief and oral argument counsel for the defendant attached considerable significance to a typographical omission in the first question quoted in the indictment.

However, it is clear from the record that the defendant and his trial counsel relied upon the transcript of the grand jury testimony and were neither misled nor prejudiced by such omission. Additionally, the failure to raise this issue at or prior to trial in the district court constituted a waiver of this technical defect. See Pifer v. United States, 158 F.2d 867 (4 Cir. 1946) ; Rule 12(b)(2), Fed.R.Cr.P.