Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Bruce GARY, Defendant-Appellant.

No. 88-5398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 1989.Decided Feb. 6, 1990.

Before GOODWIN, SCHROEDER and O'SCANNLAIN, Circuit Judges.


Bruce Gary appeals his conviction on two counts of perjury before a grand jury, in violation of 18 U.S.C. § 1623. His contentions on appeal are without merit and we affirm.

Gary first contends that his perjured testimony before the grand jury was not "material" to the grand jury proceedings. This court has held that the definition of materiality embraces "very broad perameters." United States v. Dipp, 581 F.2d 1323, 1328 (9th Cir. 1978), cert. denied, 439 U.S. 1071 (1979). Gary suggests that his testimony was immaterial because it was not directed to the main subject of the grand jury's investigation, but we have said that "false testimony that tends to influence the grand jury need not be directed to the primary subject of the investigation; it is material if it is relevant to any subsidiary issue under consideration by the tribunal." United States v. Lococo, 450 F.2d 1196, 1199 (9th Cir. 1971) (citations omitted), cert. denied, 406 U.S. 945 (1972). Even if Gary's testimony was not directed to the primary grand jury target, it was relevant to subsidiary issues.

Gary also contends that he was the victim of prosecutorial misconduct in the form of a "perjury trap." The essence of appellant's contention is that the prosecutor knew in advance that if called, Gary would perjure himself. This, however, is insufficient to establish a perjury trap, even in the view of that doctrine's principal exponent. See Gersham, The "Perjury Trap", 129 U. Pa. L. Rev. 624, 685-86 (1981). Moreover, the Ninth Circuit has not recognized the viability of the doctrine as a ground for reversal. United States v. Taylor, 881 F.2d 840, 841 (9th Cir. 1989); United States v. Howard, 867 F.2d 548, 549 (9th Cir. 1989).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3