FINDINGS OF FACT AND MEMORANDUM OF LAW
Defendant Guillermo Jaramillo is charged with making false statements in a witness statement which he signed under penalty of perjury in lieu of grand jury testimony, and in his testimony in open court after being placed under oath. Title 18 U.S.C. § 1623 prohibits false declarations by anyone under oath or in any declaration as permitted under 28 U.S.C. § 1746 "in any proceeding before or ancillary to any court or grand jury of the United States." The court conducted a court trial on the factual and legal issues on November 17, 1993. The legal issue in this case is whether the witness statement signed under penalty of perjury was ancillary to the then pending grand jury investigation concerning Jose Garcia and his associates.
FINDINGS OF FACT
In May 1990, Jaramillo was served with two grand jury subpoenas. The first subpoena required his appearance and testimony before the grand jury on May 23, 1990. The second subpoena required his testimony and appearance on May 30, 1990 before the grand jury. Instead of testifying in front of the grand jury as was required and scheduled by the subpoena, Jaramillo provided a formal witness statement to Agent Jean Choy of the Drug Enforcement Agency ("DEA"), and Assistant United States Attorney ("AUSA") Jeffrey L. Bornstein. The agent and the AUSA were conducting the grand jury investigation into allegations of drug dealing by Jose Garcia.
Jaramillo was a limousine driver for Garcia on occasion and voluntarily explained to the agents details about the actions of Jose Garcia which he witnessed involving cash in large amounts, drugs, drug use, weapons, and cellular telephones. On May 24, 1990, Jaramillo gave a written statement under oath and under penalty of perjury. Before signing the written statement, numerous drafts were created by Jaramillo and revisions were made. Jaramillo reviewed these drafts over a period of hours. DEA Special Agent Jean Choy and AUSA Bornstein were both present during the writing of the witness statement.
Agent Choy testified before the grand jury on June 1, 1990 and included in her testimony the factual material provided by Jaramillo in his written statement. Jaramillo was told during the writing of his witness statement that his statement would be used before the grand jury instead of his personal testimony before the grand jury. Jaramillo had indicated a fear of testifying in front of the grand jury. In order to accommodate his concerns, Bornstein and Choy allowed him to give the witness statement instead of personally testifying before the grand jury.
An indictment was returned by the grand jury which heard the testimony of Choy incorporating what Jaramillo had said in his witness statement. Garcia was charged with violations of 21 U.S.C. §§ 841(a)(1), 846, and 848 (respectively, conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine; and continuing criminal enterprise).
Both Choy and Bornstein explained to Jaramillo that his witness statement was subject to the penalty of perjury and would be used to replace his actual testimony before the grand jury for which he was properly subpoenaed because of his reticence to testify in a grand jury proceeding. Jaramillo had received signed subpoenas compelling his person by statutory authority to attend and testify before the grand jury on both May 23 and May 30, 1990. Jaramillo was compelled by statutory authority to attend the grand jury proceeding. Instead, he gave a witness statement which was notarized by a notary public, corrected numerous times by himself, and signed under penalty of perjury.
On September 21, 1990, Jaramillo was called to testify by subpoena in the criminal trial of Jose Garcia. He waited in the hall outside the Federal Building courtroom and was not called to testify on Friday, September 21, 1990. On September 24, 1990, Jaramillo returned for testimony and took the witness stand in the trial of Jose Garcia. He was placed under oath and asked questions which covered the same matters to which he testified in his May 24, 1990 declaration and witness statement. The court reviewed a transcript of that testimony. Jaramillo testified materially different from his witness statement while under oath on the witness stand in the Jose Garcia trial on September 24, 1990. He testified that his former witness statement was a lie and he testified materially differently about things that he had seen and had stated as true under penalty of perjury in his witness statement.
The witness statement provided on May 24, 1990 by Jaramillo was a 9-page document containing 22 numbered paragraphs. In his sworn statement of May 24, 1990, Jaramillo stated that he "saw a huge stack of money piled on top of a table. It was about two feet high in the shape of a volcano. The money was in stacks of 20's, 50's and 100's and was in separate rubber-band packages, about two inches thick." In his sworn testimony before the jury on September 24, 1990, Jaramillo was asked, "Did you ever see a large amount of money on the table in that house?" Jaramillo answered, "No."
Jaramillo stated under penalty of perjury in the May 24 witness statement that
"sometime in 1989 I asked Jose Garcia to sell cocaine to this guy I met. He was a smaller operator in Hayward. He found out I knew Jose and asked me to get him a couple of kilos at a good price. He told me he'd pay me a couple of hundred dollars. I called Jose and told him I knew this guy who wanted to buy a couple from him. He said, 'You mean tickets for the game this weekend?' I said, 'What?', then I caught on and said, 'yeah, yeah.'"
In his sworn testimony before the jury on September 24, 1990, Jaramillo testified as follows:
Q: Did you ever make any arrangements with Jose Garcia to sell cocaine?