United States v. Isaacson

CHASE, Circuit Judge

(after stating the facts as above).

If the testimony of one witness is sufficient in a case of this kind, there was no error in denying the motion for a directed verdict, since Korn’s testimony would be evidence on which the jury could find that the affidavit of the defendant and his testimony in the naturalization proceeding must have been false in respect to material matters. There was no corroboration of Korn except in so far as the evidence of what the defendant said to the representative of the Bureau of Naturalization in 1931 can be said to be corroboration. lie was being examined when he knew what he said might be used against him, and what he said he did not remember about Korn were things it is thought he would have been expected to have remembered at least four years had he really known Kom as he testified in 1927. What this conviction leads to is the necessity for remembering the truth at least four years if what the government insists is corroboration is that at all. Korn was admittedly in tliis country during the time the defendant testified he was, and was, so far as now appears, entitled to be naturalized.

The ancient rule that required the testimony of at least two witnesses to prove the crime of perjuiy has, indeed, been relaxed. Hashagen v. United States (C. C. A.) 169 F. 396. But what may be called the modem equivalent .of this requirement still obtains. This general rale now requires the oath of one witness to be supported by that of another or by some other independent evidence inconsistent with the innocence of the defendant. United States v. Wood, 14 Pet. 430, 10 L. Ed. 527; Allen v. United States (C. C. A.) 194 F. 664, 39 L. R. A. (N. S.) 385; United States v. Otto (C. C. A.) 54 F.(2d) 277. Otherwise there would he hut oath against oath and on the theory, I suppose, that each would give the other the lie direct there would-be no sound basis for letting a jury reach the conclusion that the oath against a defendant so overbalanced his own that his guilt was proved beyond a reasonable doubt. At least, this puts the requirement on rational ground as was pointed out in Cohen v. United States (C. C. A.) 27 F.(2d) 713. That case dealt with subornation of perjury, but the principle involved is the same. Hammer v. United States, 271 U. S. 620, 46 S. Ct. 603, 70 L. Ed. 1118.

To be sure, in Kahn v. United States (C. C. A.) 214 F. 54, it was held that false swearing in a bankruptcy proceeding whei’e the-defendant was prosecuted under a special statute was to be differentiated from eases generally where perjury was charged and that the same rule as to proof did not apply. In Schonfeld v. United States (C. C. A.) 277 F. 934, the distinction that false swearing in bankruptcy matters was not of the enormity of the crime of perjury under the general statute to which the same strictness of proof would apply was reannouneed on the authority of Kahn v. United States, supra, hut it was made plain that, while the evidence of two witnesses was no longer required, that of one must be corroborated by independent proof of circumstances which takes the place of the evidence of the second witness and makes the proof sufficient to establish guilt beyond a reasonable doubt.

This, too, is a prosecution under a special statute from which the Kahn Case, as modified, if at all, by the Schonfeld Case, cannot be distinguished in principle. Even so, the correct ruling on the motion for a directed verdict required deciding whether the testimony of Kom which contradicted the oath of the defendant was supported by such independent evidence of the guilt of the accused that the jury could be justified in finding Mm guilty beyond a reasonable 'doubt. And that comes right back to the memory , of the defendant. There was notMng directly inconsistent with his knowing what he swore to in 1927 and not remembering four years later when and where he first met Kom; what his occupation was and whether he was married and had any children. If he answered the government’s investigator falsely when he said he did not remember those tMngs, there would be no corroboration of the testimony of Kom in tMs trial. If Ms replies to the questions asked Mm in 1931 were true, and we should and do so treat them, then all he admitted was that he did not then know what Ms answers implied that he onee knew and had forgotten. It is only by pushing the effect of Ms answers in 1931 to the point where he is taken to have falsified then in that he said .he did not remember tMngs, which in fact he never knew, that Kom has any apparent corroboration. However, that requires taking as proof of what is necessary to support Korn’s testimony, not what the defendant did in fact admit, but a contradiction of that admission wMeh involved a direct finding that the defendant never knew what he said he could not remember. Nor do the necessary implications of tMs verdict stop there. The defendant has been convicted because he swore that he was acquainted with Kom during a period before Korn testified that he first met him. That is a tMng so peculiarly within the knowledge of these two men alone that this case serves well to emphasize the value of the requirement for real corroboration of the testimony of one witness to support a verdict in a case of tMs kind.

Judgment reversed.