United States v. Milford E. Cook , 497 F.2d 753 ( 1972 )

KILKENNY, Circuit Judge:

Cook appeals from his conviction by a jury of perjury, charged to have been committed before a federal grand jury in violation of 18 U.S.C. § 1621.

The grand jury generally was investigating gambling and racketeering in Seattle, Washington, and, at the time Cook testified, specifically was concerned with an alleged system of payoffs and shakedown practices in which the Seattle Police Department had been involved. Cook, who had joined the police force in 1941, was an Assistant Chief of Police at the time of the grand jury’s investigation, but he retired after the perjury indictment was filed.

The indictment charged that Cook had willfully given false testimony before the grand jury on February 25, 1970, when he testified in three particulars as follows:

“(a)

Q. Do you have any knowledge of law enforcement officers being paid by operators of gambling establishments?

a. No, I do not.

(b)

Q. You don’t have any knowledge of anybody currently on the force who participated in shakedowns ?

A. I do not.

(c)

Q. Have you at any time received any money, property, or thing of value from any person direct or indirect, who has been involved in gambling activities ?

A. No.”

At the conclusion of the government’s case, the trial judge dismissed the charge, insofar as it included item (c), for lack of sufficient convicting evidence. Hence, only the charges involving items (a) and (b) were submitted to the jury, whose general verdict read, “We the jury find the Defendant guilty as charged in the indictment.”

The prosecution established, in great volumes of direct testimony, that some policemen had taken payoffs from gambling establishments. The evidence with reference to Cook’s knowledge of the payoffs was both direct and circumstantial. The appellee introduced testimony of business operators and owners who were victims of police shakedowns and of numerous policemen who participated in the payoff system. The system was described in detail, and the evidence leaves little room for doubt that there had been widespread corruption in the Seattle Police Department. Regarding Cook’s alleged involvement, Police Major Jessup and Assistant Chief Fuller both testified that they discussed the existence and operation of the payoff system with Cook on separate occasions. Jessup also testified that he received monthly payments from Cook. Assistant Chief Corr testified that he had observed Cook surreptitiously receiving envelopes from others.

In defense, Cook produced a dozen officers or former officers who testified that they did not have any knoweldge of policemen having been paid by gambling establishments and that they did not have any knowledge of officers currently on the force who had participated in shakedowns. In addition, Cook himself denied having had any personal knowledge of payoffs. Numerous character witnesses vouched for his veracity.

We shall discuss the assignments of error in the order outlined in appellant’s brief.

CONSTITUTIONAL CHALLENGE.

We do not agree with Cook’s argument that the questions upon which the charge is based are so “indefinite, vague, and ambiguous” as to require determination that the indictment itself is unconstitutionally vague. United States v. Marchisio, 344 F.2d 653, 661 (2d Cir. 1965). If there is vagueness in the term “any knowledge,” such is necessarily inherent. Cf. Gebhard v. United States, 422 F.2d 281, 287-288 (9th Cir. 1970). We hold that the phrases “gambling establishment” and “being paid” are common phrases used in everyday conversational intercourse and are neither indefinite, vague, nor ambiguous.

In what might be considered a collateral attack on the sufficiency of the indictment, appellant contends that the questions and answers to Items (a) and (b) were lifted out of context, as a result of which his answers were given erroneous meaning. He points out that following (a) and prior to (b), the following interchange occurred:

“Q. Do you have any knowledge of any law enforcement officers taking shakedown money?

A. In my twenty-nine years’ experience I have had some knowledge that these things have existed and as a result the people that were involved were separated from the Police Department.” (Emphasis supplied).

Likewise, he charges that the indictment also omitted the following testimony given by appellant at the hearing in response to a question by a grand juror:

“Grand Juror: And you heard no scuttlebutt flying about payoffs at any time in the Department that you can recall?

The Witness: Yes. Yes, I have heard all kinds of rumors and I have heard much gossip, but, none, when I say no involvement, I mean that the investigation in any ease that I can recall, has been substantiated so far as these officers were concerned.”

The factual background in Brown v. United States, 245 F.2d 549, 556 (8th Cir. 1957), upon which appellant relies is not sufficiently close to require comment. The failure to insert the missing questions and answers in the indictment did not give the answers to (a) and (b) “a meaning wholly different” from that which is manifest when they are read in the light of the omitted questions and answers. As we shall later mention, the issue of appellant’s “understanding” was for the jury and they resolved it against him. The indictment was not inadequate as a matter of law.

SUFFICIENCY OF THE EVIDENCE

As quoted above, the first question set forth in the indictment made inquiry as to whether Cook possessed “any knowledge of law enforcement officers being paid by operators of gambling establishments.” The question was asked on February 25, 1970. Cook argues that “being paid” refers to the present and that there was no evidence whatsoever that payments were being paid at or about the time of the inquiry. True enough, there is no evidence of payoffs after October 1, 1968. However, the question and answer must be read in the light of the nature of the investigation which was being conducted before the grand jury.

The record discloses that appellant was 56 years of age at the time of the trial in July, 1970. He graduated from an Oregon high school in June, 1930, and for the next eleven years followed a variety of occupations. In 1941, he applied for a position with the Seattle Police Department and out of a group of 1200 applicants was selected in the top 50. He then took a thirteen week course in the Police Academy and was assigned to the traffic division of the police force. For the next two years, he was a patrolman and was then assigned to the motorcycle enforcement division. In 1947, he took and passed the examination for the position of sergeant, then attended Northwestern University Traffic Institute in Chicago for a period of five months. In 1950, he was promoted to Captain. His principal duties were in the traffic investigation division. Following a year and a half serving in that capacity and acting as an expert witness in traffic eases, he was promoted to Supervising Captain, in which capacity he served until August, 1956. In the meantime, in 1952, he had taken an examination for the position of Chief of Police and had finished third. In 1956, he was named Chief of the Patrol Division. After a variety of assignments, he was appointed Chief of the Detective Division in 1965, and six months later was assigned to the position of Assistant Chief of Police. The primary responsibility of the Assistant Chief was to command the Patrol Division, in which capacity his major function was to supervise. In December, 1969, he was named Assistant Chief in charge of the Tactical Services Bureau.

Reading the record of appellant’s testimony before the grand jury and at the trial, convinces us that appellant is a person of ordinary intelligence, at the very least, and probably, of superior intellect. We are convinced that he was fully and completely informed as to the nature of the grand jury hearing and knew, beyond question, that the grand jury was inquiring into police payoffs during the period some years prior to the grand jury inquiry in January and February, 1970.¹ Faced with this record, appellant is in no position to say that he misunderstood the question and thought it was referring to the present, rather than the past. His long experience in the Police Department and overall demonstrated intelligence, precludes any misunderstanding as to the meaning of the indicated questions.

Appellant’s contention that he may have misunderstood the question is strikingly similar to one urged by the appellant and resolved against him in Vitello v. United States, 425 F.2d 416, 420-421 (9th Cir. 1970), cert. denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970). Here, as distinguished from United States v. Lattimore, 127 F.Supp. 405 (D.D.C.1955), aff’d 98 U.S.App.D.C. 77, 232 F.2d 334 (1955) and United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967), the appellant, in the context of the other questions propounded to him before the grand jury, could not have misunderstood the question. At least, the issue on misunderstanding would be for the jury. The court carefully instructed the jury that one of the essential elements of the crime of perjury was proof by the government, beyond a reasonable doubt, that the testimony before the grand jury was false, and that such testimony was willfully given with specific intent to do something which the law forbids. The resolution of the issue was properly left to the jury. Essentially, the same type of issue was decided adversely to the appellant’s contention in Vitello v. United States, supra. Needless to say, we are guided by the rule that on appeal the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Wilson, 447 F.2d 1, 3 (9th Cir. 1971); Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970). Additionally, all the reasonable inferences supporting the verdict are in favor of the government. Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9th Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966).

We note that the trial judge patiently instructed the jury as to the elements of the crime of perjury which had to be proven beyond a reasonable doubt before arriving at a guilty verdict. We also note that the judge just as carefully instructed the jury that they could find the appellant guilty or innocent on both items or could find appellant guilty on one item and not guilty on another. Similarly, he told the jury that before returning a verdict of guilty each juror had to agree thereto and that the verdict had to be unanimous. True enough, the judge did not separate the items in telling the jury that its verdict must be unanimous.

The comprehensive instructions of the judge consumed 26 pages of the transcript. The members were told, among other things, not to single out one instruction, but to consider the instructions as a whole. Pointedly similar instructions were before us in Vitello v. United States, supra, 425 F.2d p. 422, where we said, “Implicit in the instructions is a direction to the members of the jury that they could not return a verdict of guilty unless they were unanimous on one or more of the charges of falsity specified in the indictment. Under any reasonable rule of interpretation or construction applied to the instructions, the jury was told that appellant must be acquitted unless the government proved beyond a reasonable doubt to the entire jury that the appellant was guilty of perjury on at least one of the three charges set forth in the indictment.” We shall later mention the authorities which require us to assume that the jury followed the instructions. In this case, if the jury performed its duty as stated in the instructions, it was required to be unanimous on the appellant’s guilt. Under the instructions, the only manner in which the jury could arrive at an unanimous verdict was to find guilt beyond a reasonable doubt on one or more of the two items. Vitello resolves this issue against appellant.

MATERIALITY ISSUE

Next, appellant contends that the trial court erred in instructing the jury on the subject of materiality. The trial judge held, as a matter of law, that the questions (a) and (b) were material to the subjects under investigation by the grand jury. Appellant suggests that the issue of materiality should have been submitted to the jury. This question was before us in Vitello v. United States, supra, pp. 423-424, and resolved against appellant. Cf. United States v. Tyrone, 451 F.2d 16 (9th Cir. 1971). Along the same line, appellant charges that the government completely failed to discharge its burden of proving materiality. The transcripts of the grand jury proceedings were before the trial court and are now before us. These transcripts make it crystal clear that the grand jury was making a general investigation into gambling and racketeering in Seattle, Washington, and at the time appellant testified it was specifically concerned with an alleged system of payoffs and shakedown practices in which the Seattle Police Department had been involved. The procedure employed by the court is approved in Vitello v. United States, supra, as well as in United States v. Alu, 246 F.2d 29 (2d Cir. 1957). All that can be said of Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929) and Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447 (1953), cited by appellant, is that they hold that materiality must be proved. Our review of the grand jury transcripts convinces us that the questions (a) and (b) were material to the scope of the grand jury investigation.

The fact that the grand jury testimony in Vitello was accompanied by a stipulation that the transcript was to be accepted as true, is of no particular significance. Here, each of the grand jury transcripts is certified to by the court reporter, thus giving authenticity to the material examined in camera by the court. Additionally, Exhibit 1, a portion of the grand jury proceedings, is sufficient in itself to establish the materiality of questions (a) and (b) to the scope of the grand jury investigation.

In passing, we note that appellant failed to take an exception to the instruction on materiality as required by Rule 30, F.R.Crim.P. This failure, in itself, would preclude us from considering this contention.

HEARSAY TESTIMONY

During the course of the trial, the court conditionally admitted certain hearsay testimony as to out-of-court statements and directives of other officers of the Seattle Police Department. Although the jury was cautioned again and again to disregard such hearsay, the appellant relying upon Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), and similar cases, argues that the cautionary instructions given to the jury before the conditional admission of hearsay and the later striking of the testimony “could not wipe clean the tarnished image of the defendant.” We disagree.

On the occasions of the conditional admission of the hearsay, in each instance, the jury was cautioned and warned that the statements might later be stricken and should not be considered until the court eventually ruled on whether the hearsay was properly before them. Time after time during the course of the trial, the court warned the jury to disregard any hearsay testimony to which an objection had been taken. Later, in his final instructions the court repeatedly cautioned and warned the jury to disregard the hearsay.²

Krulewitch is not in point. It did not involve stricken hearsay testimony, much less repeated warnings by the court that the jury should not consider the hearsay which had been stricken. Appellant’s other cases are no more in point. Under the circumstances of this case and, in particular, in the light of the court’s repeated instructions to disregard the hearsay evidence, we are required to assume that the jury followed the instructions and did not willfully disobey them. Vitello v. United States, supra, 425 F.2d p. 421; United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir. 1971).

INSTRUCTION ON RIGHT OF APPEAL

Next, appellant argues that the trial court should not have told the jury that, “If the defendant is guilty, there can always be an appeal” or that, “The Court can make an error, those errors are usually corrected by an appellate court if they have been damaging in any way.” While we do not approve the giving of such instructions, United States v. Workman, 454 F.2d 1124, 1129 (9th Cir. 1972), appellant is in no position to complain. It is well settled in this circuit that if an objection is not made at the time that we will not invoke the plain error provisions of Rule 52(b), F.R.Crim.P., except in the very exceptional situation wherein it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir. 1971); Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). Here, we do not believe that the remarks of the court resulted in a miscarriage of justice or, in any manner, invaded the integrity or reputation of the judicial process. It is á general principle that counsel cannot remain silent, interpose no objection, and after verdict raise for the first time a claim that comments were improper and prejudicial. United States v. Cozzetti, 441 F.2d 344, 352 (9th Cir. 1971); Ignacio v. People of Territory of Guam, 413 F.2d 513, 520-521 (9th Cir. 1969), cert. denied 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970). True enough, these cases involved remarks by counsel, rather than the court. In the circumstances presented, we find no logical reason why the rule should not be applied to the court’s remarks. United States v. Workman, supra, 454 F.2d pp. 1124, 1127; United States v. Allen, 431 F.2d 712, 713 (9th Cir. 1970); Duran v. United States, 413 F.2d 596, 600 (9th Cir. 1969); Carroll v. United States, 326 F.2d 72, 82 (9th Cir. 1963).

EMPLOYMENT OF GEBHARD RULE

Traditionally, because of a need to encourage potential witnesses to testify freely and willingly, witnesses have been afforded protection from unfounded perjury prosecutions by the imposition of a more stringent requirement of proof commonly known as the “two witness rule”.^2a For example, Weiler v. United States, 323 U.S. 606, 608-609, 65 S.Ct. 548, 89 L.Ed. 495 (1945). Properly stated, the rule is that the uncorroborated oath of one witness is not enough to establish, for the purposes of conviction of perjury, the falsity of sworn testimony. Recently, our court recognized the practical difficulty of proving perjury under the traditional rule when the alleged falsity was lodged in the belief, memory or knowledge of the accused and permitted proof of guilt in such cases by circumstantial evidence. Gebhard v. United States, 422 F.2d 281 (9th Cir. 1970). The judge here in structed the jury in accordance with the law as stated in Gebhard ³

Appellant argues: (1) that we overrule Gebhard and hold that circumstantial evidence of knowledge is insufficient, or (2) that we distinguish Gebhard by saying that the indictment there before the court included 32 different counts, while here, we have one count with two items and that the court indiscriminately applied the so-called two witness rule and the circumstantial evidence rule to both items. We decline the invitation to overrule Gebhard and confess our inability to distinguish it on the grounds urged by counsel. Here, the court in its instructions made it abundantly clear that the crime stated in Item (a) was entirely separate and distinct from that stated in Item (b). Likewise, the court emphasized that the Gebhard circumstantial evidence rule applied only to the charge in Item (a), in which the issue of knowledge was presented. The court’s Gebhard instruction is not vulnerable to attack.

KNOWLEDGE INSTRUCTION

Appellant quibbles about the failure of the court to give his requested instruction on “knowledge”. The court’s instruction on knowledge consisted of 20 lines and over 110 words. The instruction, in our view, adequately covered everything requested in appellant’s request. While the language of the last paragraph of the instruction might be more precisely employed, we feel that when it is read in context with the other instructions on the same subject, it measures up to the requirements stated in United States v. Lattimore, supra. In any event, appellant’s requested instruction is no more enlightening than that given by the court. Besides that, appellant failed to object to that portion of the instructions of which he now complains. Rule 30, F.R.Crim.P., precludes him from now asserting error.

We suspect that Brother Ely’s continuing assault on the probity of circumstantial evidence as stated in United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969) , is again reflected in the views so dramatically expressed in his exhaustive dissent. See United States v. Brown, 454 F.2d 397, 399 (9th Cir. 1972). Beyond question, Nelson precluded the trial judge from giving certain of the instructions requested by appellant.

Our review of the record convinces us that the appellant had a fair trial and that the judgment of the trial court must be affirmed.

It is so ordered.

1 . “MR. PITKIN: It is my duty to advise you that this is the Federal Grand Jury for the Western District of Washington inquiring into federal violations generally within the Western District, and also into organized criminal activity and any protection and payoff system that has existed.”

* * * * *

“Q. Would you outline for this Grand Jury the so-called tolerance policy, as you understand it?

A. Yes, sir. There is a tolerance policy in practically every phase of enforcement. As you, I am sure, are aware, it is impossible to enforce every law to its ultimate. Take the speed law, for instance, on a street where the speed is 30 miles an hour. We do not enforce it at 31 miles an hour. I myself drive to work on a 30-mile an hour street and the average speed on that street is 35 miles an hour, and no tickets are given. There is a level of enforcement in every area. You are interested in gambling, of course, and in this area the level of enforcement is set by the mayor, city council, and probably basically by the people of the community, and what they insist is the level of enforcement that they want. This is as I understand it.”

“Q. What was the policy with particular reference to pinballs and cardrooms, private clubs, punchboards, bingo raffles? Would yon run down through the thing?

A. Well, the policy that is presently, or ivas in existence until a short while ago, has been in existence as far as I can remember all through my career, and I am told that it was in existence prior to that time. There have been slight changes in it. The policy as it was interpreted to me was that those areas in which the council and the mayor saw fit to license by ordinance that we be permitted to operate at a level at which they did not cause serious concern to the citizens of the community.”

* * * * *

“Q. So that the amount that is a serious loss would depend on the financial abilities of the loser?

A. Quite often, yes. We, of course, have other interpretations of that policy— or the policy is broader than that. Of course, to gamble in your own home, to play penny ante, poker, or to play bridge for a quarter of a cent a point or a tenth of a cent a point, this is gambling, course, too, and in those areas, although they are not licensed, of course, we believe that it would be unreasonable to try to take enforcement action and we just don’t have that many police officers. And it applies in many, many areas. Everyone who plays golf, generally plays for some sum of money and it is not serious, no one is damaged by this, and so we don’t try to enforce it. We couldn’t possibly do it.

Q. What role, if any, do you play in implementing the tolerance policy, making it function?

A. At the present time, none.

Q. What have you in the past?

A. I have tried to interpret it.”

* * 3: * *

“Q. Did you ever receive any specific instructions from anyone regarding the tolerance policy, namely, the mayor, the chief, council, in other words, directed to do a particular thing with regard to the tolerance policy ?

A. I have been told to see that places were policed and they were supervised as much as we possibly could with the manpower that was available, that we policed them as well as we could and that in some instances I was told that some particular operations should cease their operations.

Q. Do you have any knowledge of public officials being paid for their position in favor of a tolerance policy?

A. No, I do not.

Q. Do yon have any knowledge of law enforcement officers being paid by operators of gambling establishments?

A. No, I do not.

Q. Do you have any knowledge of any law enforcement officer taking shake down money?

A. In my twenty-nine years’ experience I have had some knowledge that these things have existed and as a result the people that were involved were separated from the Police Department.

Q. You don’t have any knowledge of anybody currently on the force who participated in shake downs?

A. I do not.

Q. By shake down, do you know exactly what I mean?

A. Yes.

Q. Explain it for the Grand Jury what the term means?

A. Well, there is two types of shake downs. And I presume that the one you are talking about is where you threaten a person with some police action unless you are paid a certain sum, or if you receive something. This is one type of shake down. And the other type, of course, is the shake down for weapons and that, which has no connotation of any wrongdoing.

Q. Have you accepted any money from the operator of a gambling establishment?

A. I have not.

Q. Have you ever accepted any money indirectly through intermediaries from the operator of a gambling establishment?

A. I have not. Let me tell you something, Mr. Pitkin. This gambling policy which we are speaking was well publicized, everybody knew, everybody in this town knew exactly the level at which they could operate. The public knew. It was well publicized in the newspapers, and there was nothing for a policeman to sell.

Q. The policy would change from time to time, would it not?

A. No. Not really. In my experience it has been pretty much the same.

“Q. It has been well known by management of the Police Department that the tolerance policy is a violation of state law, is that not correct?

A. Yes. The same as speeding is, also, you know.

Q. And the policy has at times been interrupted over the years, is that not correct?

A. Yes.”

[Grand Jury Transcript, Exhibit 1, pp. 114, 116, 117, 118, 119, 120, 121], (Emphasis supplied).

2 . “During the course of the trial the Court has constantly warned you to disregard any hearsay testimony that has been objected to. I did strike some, as you recall, a substantial amount, there was some, you heard it and it was stricken.

Now, I would remind you once again that hearsay testimony, that is, the statement of a witness as to what some third party has said is not considered to be evidence.

Now, also hearsay, I mean a written document may be hearsay unless it is admitted under some exception. So, generally speaking, hearsay is what someone testifies to that someone else said, not what the witness himself said, he may testify what he said, but not the response. That is hearsay.

I have previously advised you that hearsay testimony, which I conditionally allowed to be presented to you under the so-called Conspiracy Rule exception to the Hearsay Rule, was to be disregarded.

Now, specifically, the testimony includes narrations of Major Jessup regarding conversations with Chief Moore, Chief Lyle LaPointe, the narration of Chief Fuller regarding his conversations with Sergeant Buher, and Chief Gustin’s narration of his conversation with LaPointe.

Now, also the little card that was read from, but it was stricken, that has to be completely disregarded, anything that you may recall that was read or interpreted by the witness from that card.

Now, you are to disregard the testimony relating to these matters completely, and they should in no way be given consideration in your deliberations.”

[T. pp. 2079-2080].

2a . The rule has now been abolished by 18 U.S.C. § 1623(a), (e). See United States v. Clizer, 464 F.2d 121 (C.A.9, 1972).

3 . “Therefore, you are instructed that in cases such as this when it is alleged that the falsity is in the knowledge of the accused, the law is that such alleged falsity in knowledge, that is, the subjective falsity of the statements, may be proved by circumstantial evidence alone, that is, the two witnesses or one witness and corroborative evidence rule does not apply to the state of the defendant’s mind, provided such evidence is sufficient to produce conviction in your minds of such falsity beyond a reasonable doubt upon all the evidence in the case and in accordance, of course, with the other instructions I have given you.”

[T., pp. 2074-2075].