DocketNumber： 18377
Citation Numbers： 414 F.2d 22, 1969 U.S. App. LEXIS 11862
Judges： Weick, O'Sullivan, Edwards
Filed Date： 6/19/1969
Status： Precedential
Modified Date： 11/4/2024
Appellant Catherine Johnson was indicted, and was convicted of perjury in violation of 18 U.S.C. § 1621 (1964) after a jury trial before the United States District Court for the Eastern District of Tennessee, Southern Division. She was sentenced to three years in the federal penitentiary.
In the aftermath of the trial and conviction of James Hoffa,
Subsequently, a federal grand jury was convened to investigate violations of the federal criminal laws in relation to the Hoffa new trial motions. Appellant was subpoenaed before the grand jury and on being questioned declined to answer on Fifth Amendment grounds. She was thereupon brought before a United States District Judge and granted immunity in relation to her testimony under the immunity provision of the Federal Communications Act, 47 U.S.C. § 409 (l) (1964). Appellant thereupon testified, generally reiterating the allegations in her affidavit and identifying certain jurors and United States Marshals involved in the Hoffa trial from photographs.
On March 24, 1967, the grand jury handed down a single-count indictment charging that appellant committed perjury when she testified before the grand jury that she had had sexual relations with jurors Curbow and Link during the course of the Hoffa trial.
At the trial the prosecution introduced the record of appellant’s grand jury testimony and then called jurors Curbow and Link and Marshal Kemp. Each juror flatly denied ever having seen appellant (before the convening of the grand jury) and specifically denied having sexual relations with her during the course of the Hoffa trial. Marshal Kemp also testified that he had never seen or met appellant until the perjury trial. He denied knowing Seymour Ball and also specifically denied taking appellant to the 10th floor of the Read House Hotel during the Hoffa trial.
The prosecution called two other marshals — one who had overall and one who had direct supervision over the arrangements for sequestration of the Hoffa jury. Their testimony was that the 10th floor of the Read House Hotel had been carefully selected because its physical characteristics lent themselves to protection of the jury; that during the trial the hotel elevator operators generally did not go to the 10th floor (the top floor) except on order of a marshal; that 20 to 30 marshals were employed on three shifts, 7 days a week to be with the jury at the Read House Hotel at all times; that at least three were on duty at all times when the jury was in the hotel, with one of them stationed at each end of the long corridor at the exit doors and the other stationed midway in the corridor across from the two elevators; that each juror (including Curbow and Link and four married women) had individual rooms on this floor, and that anyone going onto the floor could be seen by the three marshals on duty.
During the trial of this case the jury was taken to the 10th floor of the Read House Hotel to inspect the physical layout described above.
Appellant did not testify (as, of course, she had a clear right not to do). Seymour Ball was not called as a witness at this trial, although testimony showed his presence in Chattanooga in company with a Teamsters Union agent, Charles O’Brien.
There was no witness called at trial by appellant who offered direct support for the statements which occasioned the perjury charges. Three witnesses for the defense did, however, testify to facts which, if believed by the jury, would have tended to dispute elements of the prosecution’s case and raise a reasonable doubt about appellant’s guilt.
Ezell Ervons, who had been a bellboy at the Read House Hotel during the Hoffa trial, testified that he had been approached by a man whom he believed to be a United States Marshal and asked about a girl; that he had one; and that she went to the 10th- floor of the hotel and subsequently came back and paid him. He identified the prostitute only by the name of Jo. He said that Jo was not appellant; that he had never seen Jo before or since, and he did not identify the marshal or the juror. He testified that after leaving the Read House Hotel he had worked on a job in Atlanta, Georgia, which Teamster agent O’Brien had secured for him.
Venette Weaver testified that in 1967 (three years after the Hoffa trial, but before this one) she had been rooming with a Mrs. Odom, whom Hoffa trial juror Curbow had been dating, and that in her presence a discussion between
“Q. (Interposing) Who is she?
A. Mrs. Odom. Asked how he felt to have sexual intercourses with a girl younger than his own daughter.
Q. What, if anything, did Mr. Cur-bow say in response to that?
A. He said that, ‘She will have to be able to identify me.’
Q. Was anything else said?
A. No, sir.
Q. With respect to this ?
A. Huh-uh.'
Q. And at that time I believe you testified you were sharing the same residence with—
A. (Interposing) Yes, she was sharing the residence, we were sharing the residence together.
Q. That is, you and Mrs. Odom?
A. Yes.
Q. And Mr. Curbow had been dating her?
A. Yes.”
Curbow on cross-examination denied making such a statement. Mrs. Odom did not testify.
Troyce Maydean Henry testified that in company with United States Marshal Reidy she attended a party on the 10th floor of the Read House Hotel on the night the Hoffa trial ended. She testified that there were other women there. She also testified that she had seen no jurors there nor had she seen the appellant. She also testified that during the Hoffa trial she saw a man whom she later identified from photographs as juror Curbow at a Y. F. W. hall on one occasion and at the Alamo Plaza Motel on another. She testified that she had never met this man before or since; that the identification was made approximately two years after the Hoffa trial and a year and a half after she had failed to identify anyone when she had first been shown the pictures of the Hoffa jury. She testified that she had originally gone to talk with Teamster Union officials at the behest of her brother-in-law, whom she identified as working for the Teamsters.
We have gone this much into the factual detail of this trial because of appellant’s insistence in her first appellate question that she was entitled to have her motion for acquittal granted by the District Judge because of the failure of government proof to meet required legal standards.
There is, of course, no doubt that the prosecution does have a “unique and stringent burden of proof” in perjury cases. Spaeth v. United States, 232 F.2d 776, 777 (6th Cir. 1956). To sustain a perjury conviction there must be at least two witnesses or one witness corroborated by independent circumstances. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945). Appellant argues vigorously in this case that jurors Curbow and Link by denying any contact with appellant cannot be regarded as meeting the “two witness” rule, since neither could support the other’s denial. Assuming arguendo the validity of this contention (But see May v. United States, 280 F.2d 555 (6th Cir. 1960)), we believe there is ample independent corroboration. Appellant’s story charged that United States Marshal Kemp escorted her to the 10th floor of the Read House Hotel on each occasion when she had sexual relations with Curbow and Link. Kemp positively denied doing any such thing. His testimony must be regarded as independent corroboration of that of Curbow and Link. So, too, is the mass of testimony pertaining to the physical and personnel arrangements made by the United States Marshal to protect this jury.
We conclude that the District Judge was correct in denying both the motion for acquittal at the close of proofs and the motion for new trial after the jury verdict of guilty. The factual issues were for jury determination.
Appellant also attacks the indictment as fundamentally defective because it failed to employ the word “willfully” which is contained in the perjury statute,
And the District Judge took pains to charge the jury fully and carefully on the issue of willfulness.
Nor do we find any lack of specificity in the indictment. Appellant was advised by its terms of the exact charge which she faced.
As we understand appellant’s contention IV, it is that appellant could not be prosecuted for perjury because the questions to which she is alleged to have given false answers were beyond the scope of and not materially related to the Federal Communications Act under which she was granted immunity.
The grand jury foreman testified at this trial that perjury was among the subjects which the grand jury was charged with investigating. We think it is much too late to doubt that the grant of immunity to appellant was coextensive with the relevant answers she gave to the questions asked under the grant of immunity. Murphy v. Waterfront Comm., 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).
We believe that appellant's Fifth Amendment rights were amply protected if she told the truth under the grant of immunity. But it is relevant to note that the statute expressly excepted perjury committed while she was testi
We also feel that the inquiries directed to appellant taken in context of the investigation were substantially related to possible violations of the Federal Communications Act.
In United States v. Harris, the Second Circuit said:
“Section 409 (l) of Title 47 of the United States Code extends immunity for testimony given ‘in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of [the Federal Communications Act].’ Harris contends that he should have been granted the right to summon several witnesses, including one or two members of the grand jury, to establish that the grand jury’s investigation did not pertain to alleged violations of the Communications Act. We do not agree. The extent in general to which a witness may inquire into the subject matter of a grand jury investigation is severely circumscribed, in light of the secrecy in which grand jury proceedings have traditionally been held. United States, v. Levine, 267 F.2d 335, 336-337 (2 Cir. 1959). See Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). In any event we find that the government sufficiently established that the grand jury’s investigation fell within the confines of § 409 (l).
“First, the August 7 subpoena explicitly stated that the grand jury was engaged in investigation of possible violations of provisions of the Communications Act. Second, the government’s counsel represented to the court that the grand jury was investigating possible violations of the Communications Act. Finally, the questions themselves revealed a substantial link with those sections of the Communications Act which prohibit any person from causing a telephone company to violate any provision of the Act. Cf. In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631, 637 (1962).” United States v. Harris, 334 F.2d 460, 462-463 (2d Cir. 1964), reversed and remanded on other grounds, 382 U.S. 162 (1965), aff’d on remand, 367 F.2d 826 (2d Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 718, 17 L.Ed.2d 547 (1967).
Accord, Marcus v. United States, 310 F.2d 143 (3d Cir. 1962), cert. denied, 372 U.S. 944, 83 S.Ct. 933, 9 L.Ed.2d 969 (1963); In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.), cert. denied, Giancana v. United States, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 36 (1965).
We agree with this view and feel that it is directly applicable to our instant case.
Further, even if a particular question was irrelevant to Federal Communications Act purposes, we profoundly doubt that this fact would grant appellant a “license to commit perjury.” Glickstein v. United States, 222 U.S. 139, 143, 32 S.Ct. 71, 56 L.Ed. 128 (1911). Of course, in this case we have no occasion
We have read with care the circumstances under which appellant was questioned by an FBI agent. Plainly, this was not “in-custody” interrogation which would demand the full panoply of the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant was not under indictment at the time. Cf. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). She was warned of her basic constitutional rights and there were no threats or inducements, nor was there any coercion. Cf. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).
Appellant also cites as reversible error four instances where the District Judge refused to admit evidence. In one instance the evidence would have tended to show possible misconduct on the part of juror Curbow with a different woman at a different time and place. Other rejected testimony would have tended to charge some of the United States Marshals with indiscreet conduct when off duty. The District Judge’s analysis of this proffered evidence in his opinion denying appellant’s motion for new trial justifies his rejection of the matters on grounds of irrelevance. His rulings were within the discretionary authority of a trial judge and do not constitute prejudicial error. See Kansas City Star Co. v. United States, 240 F.2d 643 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957); United States v. Higgins, 362 F.2d 462 (7th Cir. 1966); United States v. Johnston, 318 F.2d 288 (6th Cir. 1963); Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288 (1964).
We also feel that the District Judge’s handling of the jury request for a portion of Exhibit 2 was within his judicial discretion. Obviously (although the record might be read differently) the District Judge thought that Exhibit 2 (a 372 page transcript of appellant’s grand jury testimony) had been marked for purposes of identification and would be considered as admitted in evidence only when actually read into the record of the trial before the jury. Each side had without objection read portions of the transcript to the jury during closing argument. The jury asked to have reread a portion which had been read during the government’s argument. It was the defense who objected to reading just that portion which the jury sought. The government in turn objected to giving the jury the whole 372 page transcript as defense suggested. We find no error prejudicial to defendant in the District Judge’s ultimate refusal of the jury request. See Caldwell v. United States, 36 F.2d 738 (10th Cir. 1929), cert. denied, 281 U.S. 725, 50 S.Ct. 239, 74 L.Ed. 1143 (1930); Buckley v. United States, 33 F.2d 713 (6th Cir. 1929); Murray v. United States, 76 U.S.App.D.C. 179, 130 F.2d 442 (1942).
As to appellant’s issue pertaining to her motion filed pretrial for the entire grand jury transcript, we note that the District Judge granted the motion so far as it would pertain to appellant’s own testimony, and then said as follows:
“With respect to the defendant’s motion for production of a transcript of the proceedings before the Grand Jury, including the testimony of William Link and John Curbow, the Court is of the opinion that the motion should be denied, except to the extent that the defendant is entitled to a copy of her testimony before the Grand Jury in accordance with Rule 16(a) (3), Federal Rules of Criminal Procedure. A disclosure of testimony before the Grand Jury may properly be obtained only upon a showing of ‘particularized need’ and then in a manner consistent with the Jencks Act. Dennis v. United States, 384 U.S. 855 [86 S.Ct. 1840, 16 L.Ed.2d 973]; United States v. Procter &*29 Gamble, 356 U.S. 677 [78 S.Ct. 983, 2 L.Ed.2d 1077].”
No request for production of the grand jury testimony of government witnesses at trial for purposes of cross-examination was ever made. Cf. Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Youngblood, 379 F.2d 365, 370 (2d Cir. 1967); National Dairy Products Corp. v. United States, 384 F.2d 457 (8th Cir. 1967), cert. denied, 390 U.S. 957, 88 S.Ct. 1032, 19 L.Ed.2d 1151 (1968).
Nor was there ever an attempt made to show a “particularized need” for this testimony. See United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, rehearing denied, 361 U.S. 855, 80 S.Ct. 42, 4 L.Ed.2d 94 (1959); United States v. Hensley, 374 F.2d 341, 352-353 (6th Cir.), cert. denied, 388 U.S. 923, 87 S.Ct. 2139, 18 L.Ed.2d 1373, rehearing denied, 389 U.S. 891, 88 S.Ct. 25, 19 L.Ed.2d 210 (1967). As to this issue we find no error.
We read the dissent as suggesting that pretrial discovery of grand jury proceedings be granted generally to defendants on a request stating that it is necessary for preparation for trial. This appears to us to be a far cry from the particularized need test in United States v. Procter & Gamble Co., supra. No such rule has previously been enforced in this circuit. United States v. Barnes, 313 F.2d 325 (6th Cir. 1963); United States v. Hensley, supra.
Nor has the suggested rule been adopted by the federal courts generally. Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967); Hanger v. United States, 398 F.2d 91 (8th Cir. 1968); United States v. Johnson, 337 F.2d 180 (4th Cir. 1964).
Nor is it in our view consistent with the concern expressed by the United States Supreme Court for preserving the secrecy of grand jury proceedings. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1957); United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).
The rule suggested by the dissent would go far beyond the requirements of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). In Dennis the United States Supreme Court held that production at trial of grand jury statements of government witnesses for purposes of cross-examination was required where defendants asked for such statements. The holding in the Dennis ease was:
“Because petitioners were entitled to examine the grand jury minutes relating to trial testimony of the four government witnesses, and to do so while those witnesses were available for cross-examination, we reverse the judgment below and remand for a new trial.” Dennis v. United States, supra at 875, 86 S.Ct. at 1852.
In our instant case, although, in our opinion, the trial judge suggested the proper procedure by his reference to the Dennis and Procter & Gamble cases,
We do not find any showing in this record to suggest the existence of a Brady v. Maryland issue. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
We have considered issues XII, XIII and XIY. All of these issues have been dealt with effectively in the District Judge’s opinion and we affirm the reasoning and result contained therein.
. United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965) (conviction affirmed and first motion for new trial denied), aff’d, 385 U.S. 293, reh. denied, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1966); 376 F.2d 1020 (6th Cir.) (second motion for new trial denied), cert. denied, 389 U.S. 859, 88 S.Ct. 102, 19 L.Ed.2d 124 (1967); 382 F.2d 856 (6th Cir. 1967) (third motion for new trial denied), cert. denied, 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (1968); 398 F.2d 291 (6th Cir. 1968) (fourth motion for new trial denied), vacated and remanded sub nom., Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1164, 22 L.Ed.2d 297 (1969).
. “Whoever, having taken an oath before a competent tribunal * * * that he will testify * * * truly, * * * willfully and contrary to such oath states * * * any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. * * *” 18 U.S.C. § 1621 (1964).
. “1. On or about January 24, 1966, in the Eastern District of Tennessee, a competent tribunal, that is, a Grand Jury of the United States of America, duly impaneled and sworn in the United States District Court for the Eastern District of Tennessee, was conducting an inquiry to determine among other things whether there had been committed in the Eastern District of Tennessee violations of 18 USC 201 (Bribery), 18 USC 1503 (Obstruction of Justice), 18 USC 1621 (Perjury), and other Federal criminal statutes, said inquiry being in a case in which a law of the United States authorized an oath to be administered.
“2. It was material to this Grand Jury Inquiry to ascertain, among other things, whether Catherine Johnson (also known as Patsy Jo Harris) had sexual intercourse with William Link and John Cur-bow, who were petit jurors in the trial of United States v. James R. Hoffa et al., (Criminal No. 11,989), during said trial, and while said petit jurors were sequestered on the tenth floor of the Read House Hotel during the said trial.
“3. On or about January 24, 1966, the defendant, Catherine Johnson, having duly taken an oath before the said Grand Jury that, as a witness before said Grand Jury, she would testify truly, did, then and there, state material matters which she did not believe to be true, to wit, she stated that she had had sexual intercourse with the aforesaid William Link and John Curbow during the aforesaid trial on the tenth floor of the Read House Hotel.
“4. The aforesaid testimony of Catherine Johnson, as she then and there well knew and believed, was not true in that Catherine Johnson did not have sexual intercourse with either the aforesaid William Link or the aforesaid John Curbow during the aforesaid trial on the tenth floor of the Read House Hotel.
“In violation of Title 18, United States Code, Section 1621.”
. “(l) No person shall be excused from attending and testifying or from producing boohs, papers, schedules of charges, contracts, agreements, and documents before the Commission, or in obedience to the subpena of the Commission, whether such subpena be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, or of any amendments thereto, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject bim to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that any individual so testifying shall not he exempt from prosecution and punishment for perjury committed in so testifying." 47 U.S.C. § 409 (l) (1964). (Emphasis added).
. Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).