(D.C. Criminal No. 71-193) Appeal from the United States District Court for the Western District of Pennsylvania.
Seitz, Chief Judge; and Hastie and Hunter, Circuit Judges.
James Hockenberry, a former county detective, has taken this appeal from his conviction of making a false material declaration under oath before a grand jury in violation of the recently enacted section 1623 of Title 18, United States Code. 84 STAT. 932. Hockenberry had testified before the grand jury only under judicial compulsion after he had been granted immunity under section 2514 of Title 18, United States Code. We must decide whether the trial judge committed reversible error in admitting into evidence against the accused at his perjury trial a truthful statement he had made to the grand jury on the same occasion as the alleged false statement but unrelated to it.
The indictment charged Hockenberry with falsely swearing to the grand jury that he had no knowledge of or connection with bribes or payoffs to county detectives by persons engaged in unlawful gambling and prostitution. At his trial he took the stand in his own defense and denied any such knowledge or connection. In an effort to discredit him as a witness, the prosecution cross-examined him, over objection, about other unrelated parts of his testimony before the grand jury. Part of the cross-examination was as follows:
"Q. Well, do you recall appearing before the Grand Jury on the 16th of March, 1971, and my questioning you about certain returns on search warrants that you have executed under oath?
"Q. Do you recall testifying that there were at least two instances that you had executed a sworn return on those search warrants, and the information in it was false?"
Then, after an objection had been overruled, the prosecution read two excerpts from Hockenberry's grand jury testimony in which he admitted that on occasion, in the course of his work as a detective, he had signed affidavits wherein he falsely asserted personal knowledge of facts upon which search warrants were being sought.
It was the contention of the prosecution that appellant's admission before the grand jury -- stating that on occasion he signed false affidavits to obtain search warrants -- could be introduced to impeach him as a witness. The prosecution reasoned that this evidence was relevant and competent to show a "pattern of deceit" and thus discredit Hockenberry's denial at trial that he had lied to the grand jury about the unrelated matter of accepting bribes from criminals.
Assuming that the law of evidence would permit such impeachment, there is a separate question whether this use of admissions made before the grand jury violated the immunity under which the admissions had been compelled. Hockenberry originally had refused to testify before the grand jury, claiming Fifth Amendment privilege. He then was granted immunity under 18 ...