separate from those in the current indictment. See pages 93-94, Supra. Accordingly, the Court finds that the present indictment does not violate the double jeopardy clause.
III. THE USE OF THE DEFENDANT WOLFE'S TESTIMONY DOES NOT VIOLATE KASTIGAR V. UNITED STATES, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
Wolfe has moved to dismiss the case against him on the ground that his compelled testimony before the Grand Jury will lead to the infliction of criminal penalties in violation of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). Since the Court has found that his testimony before the Grand Jury was not compelled, See page 94, Supra, the basis for this motion has been undermined. Accordingly, the motion of the defendant to dismiss pursuant to Kastigar is denied because there is no compelled immunized testimony involved in this case.
IV. THE FALSE DECLARATIONS AND OBSTRUCTION OF JUSTICE CHARGES AGAINST THE DEFENDANT WOLFE ARE SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS.
Wolfe has moved to dismiss Count Twenty-four of the indictment which charges him with obstruction of justice in violation of 18 U.S.C. § 1503. In the alternative, Wolfe contends that the government must be compelled to elect between Count Twenty-four and the false declarations allegations which make up Count Twenty-five through Twenty-eight.
According to Wolfe, Count Twenty-four is defective because it merely charges the defendant with false declarations and fails to charge the defendant with the additional element of "obstruction to the court in the performance of its duty." Citing Ex parte Hudgings, 249 U.S. 378, 383, 39 S. Ct. 337, 339, 63 L. Ed. 656 (1919). The Court has already ruled with respect to this issue with regard to the other defendants. See United States v. Hubbard, 474 F. Supp. 64, 75-77 (D.D.C. 1979). The exact same analysis resolves this motion for Wolfe. Accordingly, Count Twenty-four will not be dismissed.
In the alternative, Wolfe contends that the government should be compelled to elect between Count Twenty-four and the false declarations counts. According to Wolfe, the charge of false declarations is a lesser-included offense of the obstruction of justice charge, and it would be inherently unfair to force the defendant to proceed to trial on multiple counts. The Court is not persuaded by this argument. Requiring defendants to stand trial on an offense as well as lesser-included offenses is standard practice and has been upheld by every court that has faced the issue. Albrecht v. United States, 273 U.S. 1, 11, 47 S. Ct. 250, 71 L. Ed. 505 (1927); United States v. Partin, 552 F.2d 621, 631 (5th Cir.), Cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977); Catrino v. United States, 176 F.2d 884, 886-87 (9th Cir. 1949); United States v. Walasek, 527 F.2d 676, 680 (3d Cir. 1975). Accordingly, the Court will deny Wolfe's motion to compel the election.
V. THE DEFENDANT WOLFE WAS NOT ABUSED BEFORE THE GRAND JURY.
Wolfe has moved to quash the indictment against him because of abusive questioning before the Grand Jury. The Court has examined the transcript of the Grand Jury proceedings and finds that the Assistant United States Attorneys' conduct was within the allowable limits. Therefore, the motion to quash will be denied.
In accordance with the Memorandum Opinion issued of even date herewith, it is, by the Court, this 31 day of May, 1979,
ORDERED, that the motion of the defendant Wolfe to dismiss all counts be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the motion of the defendant Wolfe to dismiss pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), for wrongful use of his immunized Grand Jury testimony be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the motion of the defendant Wolfe to dismiss Count Twenty-four of the indictment or, in the alternative, to compel an election between Count Twenty-four and the perjury allegation be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the motion of the defendant Wolfe to quash because of alleged abusive questioning before the grand jury, and because of alleged taint arising from the improper use of his grand jury testimony, be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the motion of the government to dismiss Count Six as to the defendant Wolfe be, and the same hereby is, granted.
MOTION TO REQUIRE GOVERNMENT TO ELECT
The defendant Wolfe has moved the Court for an order requiring the government to proceed on only one of the perjury counts charged in Counts twenty-five (25), twenty-six (26), twenty-seven (27) and twenty-eight (28). According to the defendant, it is the government's theory that each alleged untruth to the Grand Jury was part of a single plan by the defendant, and his alleged co-conspirators, to cover up certain prior activities by the defendants. Count twenty-five (25) charges that Wolfe lied when he stated that his purpose in going to the D.C. Bar Association Library was to learn to do legal research. Count twenty-six (26) charges that he lied when he stated that he went nowhere else on his first visit to the library than to the library and the men's room. Count twenty-seven (27) charges that he lied when he stated that he and Foster carried case histories to the xerox machine and copied them while at the courthouse. Count 28 charges that he lied when he stated that he knew his companion at the D.C. Bar Association Library only as John Foster. The defendants charge that the government has taken the single story testified to by Wolfe, extracted at random four statements, and seeks to impose criminal liability for each.
The test approved by several circuits to determine the number of perjury charges permissible in a single story is: "If (the defendant) in fact told separate lies, each of which could have hindered the Grand Jury in its investigation, then he could properly be separately charged for each lie." Gebhard v. United States, 422 F.2d 281, 289 (9th Cir. 1970); See United States v. Williams, 552 F.2d 226, 228 (8th Cir. 1977); United States v. Doulin, 538 F.2d 466, 471 (2d Cir.) Cert. denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976); United States v. Lazaros, 480 F.2d 174, 179 (6th Cir. 1973); United States v. Tyrone, 451 F.2d 16, 18 (9th Cir. 1971); United States v. Andrews, 370 F. Supp. 365, 369 (D.Conn.1974).
The defendant Wolfe's purpose in going to the D.C. Bar Association Library, his movements within the building that night, what was photocopied, and how that photocopying was carried out on the three occasions he was allegedly in the U.S. Courthouse, and the identity of his accomplice were each non-redundant relevant areas of inquiry. Proof of the falsity of each statement will require the government to prove distinct facts. Plainly, this is not a case of consistent responses to repeated or rephrased questions. Compare Masinia v. United States, 296 F.2d 871 (8th Cir. 1961) With United States v. Doulin, 538 F.2d at 471. The Court finds that each perjury count alleges a separate lie which could have hindered the Grand Jury in its investigation.
The defendants contend that such a result is simply unjust. However, the Court disagrees. There is a material difference between fabricating a scenario to cover one's tracks at every point, and lying on one fact to mislead a Grand Jury on a single aspect. For example, the possible penalty for protecting the identity of an accomplice versus manufacturing an entire story to protect a web of actions, motivations, and conspirators, should not necessarily be the same. The phrase "declaration" in the perjury statute, 18 U.S.C. § 1623, plainly must be read to require such a result.
Accordingly, the motion of the defendant Wolfe to require the government to elect between the four perjury counts is hereby denied.