Appeal from a judgment of the District Court for the Northern District of New York (Neal McCurn, Judge) convicting the defendant after a jury trial of two counts of false declarations before a grand jury. Affirmed.
Before Mulligan and Timbers, Circuit Judges and Duffy,*fn* District Judge.
Who knows what evil lurks in the hearts of men? Although the public is generally aware of the sordid trafficking of drugs and aliens across our borders, this litigation alerts us to a nefarious practice hitherto unsuspected even by this rather calloused bench rare bird smuggling. The appeal is therefore accurately designated as rara avis. While Canadian geese have been regularly crossing, exiting, reentering and departing our borders with impunity, and apparently without documentation, to enjoy more salubrious climes, those unwilling or unable to make the flight either because of inadequate wing spans, lack of fuel or fear of buck shot, have become prey to unscrupulous traffickers who put them in crates and ship them to American ports of entry with fraudulent documentation in violation of a host of federal statutes.*fn1 The traffic has been egregious enough to warrant the empanelling of a special grand jury in 1979 in the Northern District of New York to conduct a broad investigation of these activities. Even the services of the Royal Canadian Mounted Police were mustered to aid the inquiry.
A principal target of the grand jury investigation was Kenneth Clare, a Canadian, who was believed to be in the business of shipping exotic birds into the United States, misrepresenting on import documents the value, the species and even the number of birds in the containers, thus avoiding the payment of United States Customs duties, inspection and quarantine. When one learns that an adult swan stands some four and a half feet tall and is normally ill tempered, the reluctance of a border inspector to make a head count is understandable. In this case Clare even had the audacity to pass off as Canadians, birds whose country of origin was England! Another target of the investigation was a California attorney, Edward R. Fitzsimmons, whose hobbies included the collection of horses, llamas and exotic birds. It was believed that Fitzsimmons and Clare worked together hand or claw in glove.
In February 1975, Fitzsimmons allegedly purchased from Clare four trumpeter swans and two red-breasted geese.*fn2 The crated birds were brought from Canada through Massena, New York, a Port of Entry in the Northern District of New York. Their entry papers were spurious. The trumpeter swans (cygnus buccinator) were described in the shipping documents as mute swans which are a less valuable variety. The birds were then airlifted to San Francisco by the Flying Tiger Lines where they were picked up by Janet Leslie Cooper Byrnes, the appellant, who was employed as a secretary by Fitzsimmons. Byrnes was a quondam zoologist at the London Zoo and knowledgeable about ornithological matters. When called before the grand jury on February 7, 1979, Byrnes testified that she did pick up the birds in 1975 but further stated that after driving away from the airport for ten or fifteen minutes, she heard no noises from the crates.*fn3 She stated that she stopped at a gas station, pried open the crates and discovered that all the birds were dead and in fact so stiff that she assumed they had been dead for some time. (D.O.A.). She promptly drove to a municipal dump where the birds were interred in unconsecrated ground.
By reason of this testimony the appellant was indicted on May 8, 1980 on four counts of false declarations before a grand jury in violation of 18 U.S.C. § 1623.*fn4 After a three day jury trial before Hon. Neal McCurn, Northern District of New York, Byrnes was convicted on two counts on July 18, 1980.*fn5 She was sentenced to be committed to the custody of the Attorney General for a period of six months and fined $5,000 on each count. Execution of the prison sentence was suspended and the defendant was placed on probation for a period of one year on each count, the sentences to be served concurrently. This appeal followed.
Appellant does not challenge the sufficiency of the Government's proof to support the conviction. Ida Meffert, who had emigrated from Germany and had obvious difficulty with the English language, was one of four government witnesses brought from California to Syracuse, New York for this momentous trial. She testified that she was a collector of Australian parrots in Hayward, California and described these parrots as "citizens." The court interjected: "A citizen bird?" The witness answered: "Yeah, the whole birds is citizen."*fn6 More pointedly Mrs. Meffert testified that in February 1975 the appellant delivered four live swans and two live red breasted geese to her pursuant to an arrangement with Fitzsimmons whereby Mrs. Meffert and her husband provided room and board for some of his exotic wildlife. Mrs. Meffert was subjected to a grueling cross examination by counsel for appellant that was apparently aimed at her ornithological qualifications.*fn7 Mrs. Meffert testified that after a few days one of the swans died and she preserved his leg in her freezer to establish his demise.*fn8
"Man comes and tills the field and lies beneath,
And after many a summer dies the swan." Tithonus, Alfred Lord Tennyson.
The principal argument on appeal is not that Byrnes had truthfully testified to the grand jury, but rather that her testimony was not "material" within 18 U.S.C. § 1623(a). That statute is violated only when the false statements bear upon issues under investigation by the grand jury. Appellant argues that her testimony that the birds were dead upon arrival and buried rather than delivered to Mrs. Meffert, was totally irrelevant to the grand jury investigation. The District Court rejected this contention and we affirm its finding of materiality. The leading case in this circuit addressing the question of materiality of false declarations before a grand jury is United States v. Berardi, 629 F.2d 723, cert. denied, 449 U.S. 995, 101 S. Ct. 534, 66 L. Ed. 2d 293 (1980). See also United States v. Mulligan, 573 F.2d 775 (2d Cir.), cert. denied, 439 U.S. 827, 99 S. Ct. 99, 58 L. Ed. 2d 120 (1978). Both parties rely upon Berardi, as did the District Court in finding the materiality of Byrnes' declarations. All of the elements of materiality set forth in Berardi are met here. As we explained in that case, the Government has the burden of establishing that the perjury was committed in response to a question within the purview of the grand jury investigation. That nexus need not be established beyond a reasonable doubt. 629 F.2d at 727. It is normally satisfied by introducing into evidence the grand jury minutes or the testimony of the foreperson of that jury. This enables the district court to determine the scope of the grand jury investigation and the relationship of the questions which elicited the perjury. Id. Here Judge McCurn had the benefit of the minutes as well as the testimony of the deputy foreperson and the United States Attorney in charge of the investigation.
Materiality is broadly construed:
"Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely ...