United States v. Robert Eugene Key

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 00-3790
*
UNITED STATES OF AMERICA, * Appeal from the United
* States District Court
Plaintiff - Appellee, * for the Southern
* District of Iowa
v. *
* [UNPUBLISHED]
*
ROBERT EUGENE KEY, *
*
Defendant - Appellant. *
*
Submitted: June 12, 2001
Filed: July 2, 2001
Before WOLLMAN, Chief Judge, HAMILTON1 and MURPHY, Circuit Judges.
PER CURIAM.
On October 23, 1991, a federal grand jury sitting in the
Southern District of Iowa charged Robert Eugene Key (Key) with one
count of bank robbery, 18 U.S.C. § 2113(a). On February 13, 1992,
Key pled guilty to the charge. On May 29, 1992, the district court
sentenced Key to eighty-nine months’ imprisonment with three years
of supervised release, and the district court’s judgment was
entered on June 2, 1992. Key served his prison sentence and was
placed on supervised release in June 1999. On October 31, 2000,
the district court held a revocation hearing, and, at the
conclusion of the hearing, found that Key violated the terms of his
1
The Honorable Clyde H. Hamilton, United States Circuit Judge
for the United States Court of Appeals for the Fourth Circuit,
sitting by designation.
supervised release by committing perjury at a previous revocation
hearing on June 19, 2000. The district court sentenced Key to
eighteen months’ imprisonment with eighteen months of supervised
release. The judgment of the district court2 was entered on
October 31, 2000. Key appeals, and we now affirm.
I
The judgment entered by the district court in June 1992
contained the standard litany of conditions governing a term of
supervised release. Under the standard conditions, Key, among
other things, could not “commit another federal, state or local
crime,” could not use “any narcotic or controlled substance . . .
except as prescribed by a physician,” had to “work regularly at a
lawful occupation,” had to “notify the probation officer within 72
hours of any change in residence or employment,” and had to “submit
a truthful and complete written report within the first five days
of each month.” The June 1992 judgment also contained a special
condition, requiring Key to participate “in a program of testing
and treatment for drug use, as directed by the Probation Officer,
until such time as the defendant is released from the program by
the Probation Officer.” Consistent with this directive, on March
10, 2000, another special condition was placed upon Key, requiring
him to “reside, participate and follow the rules of a community
corrections center program as directed by the Probation Officer for
up to 120 days.”
On March 23, 2000, Key reported to the community corrections
center program. On May 8, 2000, he was “unsuccessfully discharged
due to drug use.”
On May 17, 2000, Key’s probation officer filed a “Petition for
Warrant or Summons for Offender Under Supervision.” The petition
alleged that Key violated the terms of his supervised release by
testing positive for marijuana on nine occasions and by failing to
complete the community corrections center program.
2
The Honorable Richard E. Longstaff, Chief Judge, United
States District Court for the Southern District of Iowa.
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On June 14, 2000, Key’s probation officer filed an addendum to
the petition filed on May 17, 2000. The addendum alleged that Key
violated the terms of his supervised release by testing positive
for marijuana on two more occasions, by failing to report for a
urine test, and by failing to notify his probation officer of a
change in his employment status.
On June 19, 2000, the district court held a revocation
hearing. One of the issues before the district court concerned
Key’s employment status; that is, whether he failed to notify his
probation officer about a change in his employment status. At the
revocation hearing, Key took the witness stand and was placed under
oath. Key testified that he started working as a cook at the
Flying J Travel Plaza in mid-May 2000 and left that job in early
June for a job at Scotty’s Auto Body Shop. As reflected on page
nine of the revocation hearing transcript, Key testified, on direct
examination, as follows:
Q. Now, are you currently employed?
A. Yes, I am.
Q. Where are you working now?
A. At Scotty’s Auto Body Shop.
Q. How many hours a week do you work there?
A. It varies. It depends on how many cars are in
there.
Q. What do you do?
A. Detail after the cars are-- Cars come in wrecked.
They’re fixed. They get painted. After the paint
comes all the detailing.
Q. When did you start working at Scotty’s Auto Body
Shop?
A. About 2 ½ weeks ago.
Q. In relation to when you stopped working at Flying J
Truck Stop, when did you start working at Scotty’s?
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A. Immediately.
Following his testimony, Key was excused from the witness stand and
returned to his seat at his counsel’s table.
A lengthy discussion between counsel and the district court
concerning the appropriate disposition of the case ensued. At the
conclusion of the colloquy, the district court decided to give Key
“one more chance.” While it was making its ruling, the district
court engaged in the following colloquy with Key, which appears on
page thirty-two of the revocation hearing transcript:
THE COURT: How long you been working there, 2 ½ weeks?
THE DEFENDANT: Yes, sir.
THE COURT: And how many hours a week, average, have
you been working?
THE DEFENDANT: It’s going to be anywhere from 35 plus.
THE COURT: What do you get paid?
THE DEFENDANT: I get paid $7.50.
THE COURT: And what type of hours are there?
THE DEFENDANT: Excuse me?
THE COURT: When do you work, from when to when? Do
you have any set hours?
THE DEFENDANT: I go in about 7:30, 8:00.
THE COURT: And work as long as there’s cars there?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Five days a week?
THE DEFENDANT: Yes, sir.
On August 16, 2000, Key’s probation officer filed another
“Petition for Warrant or Summons for Offender Under Supervision.”
The petition alleged that Key violated the terms of his supervised
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release by testing positive for marijuana on ten more occasions, by
testifying falsely at the June 19, 2000 revocation hearing, by
operating a motor vehicle while under suspension, by failing to
appear for a court date related to the operating a motor vehicle
while under suspension charge, by failing to attend a drug
counseling session, by failing to submit pay stubs for the months
of May and June 2000, and by failing to submit a monthly report for
July 2000.
On September 12, 2000, Key’s probation officer filed yet
another “Petition for Warrant or Summons for Offender Under
Supervision.” The petition alleged that Key violated the terms of
his supervised release by testing positive for marijuana on three
more occasions, by failing to provide urine samples on two
occasions, by failing to appear for two more drug counseling
sessions, and by failing to submit a monthly report for August
2000.
On September 14, 2000, Key’s probation officer filed another
“Petition for Warrant or Summons for Offender Under Supervision.”
The petition alleged that Key violated the terms of his supervised
release by failing to report a change of address.
The district court convened another revocation hearing on
October 31, 2000. Because the parties agreed that Key’s alleged
perjury, at the June 19, 2000 revocation hearing, was the most
serious of the alleged supervised release violations, the parties
agreed to bifurcate and hear first the issues concerning Key’s
perjury.
At the October 31, 2000 revocation hearing, Christopher Scott
Buchanan, the owner of Scotty’s Auto Body Shop, testified that, on
June 19, 2000, Key was not employed at Scotty’s Auto Body Shop. He
also testified that Key was never employed at Scotty’s Auto Body
Shop, that he never agreed to employ Key there, and that he never
agreed to pay Key “$7.50-an-hour for working anywhere from 35-plus
hours a week at Scotty’s Auto Body Shop.”
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Robert Lee Buchanan (Robert Buchanan), the manager of Scotty’s
Auto Body Shop, testified that Key was never employed at Scotty’s
Auto Body Shop and that he had never been employed at an hourly
rate at Scotty’s Auto Body Shop, or a related business, Scotty’s
Auto Body Sales.3 He also testified that Key wanted to get into
the business of automobile sales. Robert Buchanan acknowledged
that he had a “subcontractor” relationship with Key; if Key found
a used automobile that needed work, Scotty’s Auto Body Sales would
buy the automobile, repair it, and try to sell it at a profit.
Under this arrangement, Key would receive a percentage of the
profit. Robert Buchanan testified that he never purchased an
automobile pursuant to his agreement with Key, although he did
deduct approximately $350 from the amount Key owed Scotty’s Auto
Body Shop for repairs completed on Key’s automobile because Key
spent some time looking for used cars for Scotty’s Auto Body Sales
to buy.
Following the arguments of counsel, the district court revoked
Key’s supervised release. In making its ruling, the district court
stated:
As far as I’m concerned, even confining myself to the
testimony on page 9, Mr. Key directly and clearly
committed perjury before me in my court. I think he
committed further perjury on page 32 when he responded to
my questions falsely.
I do not accept your argument that merely by stepping
down and assuming a place at counsel table he is no
longer under oath when the Court asks him a question. I
think he testified falsely in both instances. He gave
details about his employment, his wage. I gave Mr. Key
a real break back in June. I should have revoked then
and I didn’t because I wanted to give him one more
chance. He sat there and lied to me. He’s out of
chances.
The district court sentenced Key to eighteen months’ imprisonment
with eighteen months of supervised release.
3
Scotty’s Auto Body Sales, d/b/a First Class Auto, is located
approximately two blocks from Scotty’s Auto Body Shop.
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II
When a district court finds by a preponderance of the evidence
that a defendant has violated a condition of his supervised
release, the district court may revoke the defendant’s supervised
release and impose a term of imprisonment without credit for time
previously served on post-release supervision. 18 U.S.C.
§ 3583(e)(3). We review the district court’s decision revoking a
term of supervised release for an abuse of discretion. United
States v. Grimes, 54 F.3d 489, 492 (8th Cir. 1995).
One of the conditions of Key’s supervised release was that he
not commit a violation of federal law. At the October 31, 2000
revocation hearing, the district court found that Key twice
committed perjury at the June 19, 2000 revocation hearing. First,
the district court opined that Key’s testimony on direct
examination concerning his employment (appearing on page nine of
the June 19, 2000 revocation hearing transcript) was perjured;
second, the district court opined that, while it was making its
ruling, Key’s answers to its questions (appearing on page thirty-
two of the June 19, 2000 revocation hearing transcript) were
perjured.
Under federal law,
[w]hoever–
(1) having taken an oath before a competent
tribunal, officer, or person, in any case in
which a law of the United States authorizes an
oath to be administered, that he will testify,
declare, depose, or certify truly, or that any
written testimony, declaration, deposition, or
certificate by him subscribed, is true,
willfully and contrary to such oath states or
subscribes any material matter which he does
not believe to be true . . .
is guilty of perjury.
18 U.S.C. § 1621(1). In this circuit, “[a] witness testifying
under oath commits perjury if he ‘gives false testimony concerning
a material matter with the willful intent to provide false
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testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Plumley, 207 F.3d 1086, 1095 (8th Cir.
2000) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
A
Key argues that he did not commit perjury at the June 19, 2000
revocation hearing because the alleged materially false statements
were not made under oath. According to Key, at the time he made
the alleged materially false statements, he had been excused as a
witness and, therefore, he was no longer under oath.
For two reasons, Key’s argument misses the mark. First, Key’s
argument ignores the district court’s finding that he committed
perjury while testifying on direct examination. While under oath
on the witness stand, Key testified that he was working at Scotty’s
Auto Body Shop detailing cars for about two and one-half weeks.
This testimony was materially false. Second, Key cites no case law
for the proposition that he was no longer under oath when he
answered the district court’s questions from his counsel’s table.
In fact, the case law points in the other direction.
In Barnes v. United States, 378 F.2d 646 (5th Cir. 1967), the
defendant was charged with committing perjury while testifying at
a suppression hearing. Id. at 647. At the suppression hearing,
the defendant was called to the witness stand, sworn as a witness,
and, in response to questions from counsel, testified that he was
not in possession of a gun or a money order when he was arrested.
Id. at 651. Following his testimony, he was excused as a witness.
Id. The next witness, a police officer, testified that he found a
gun and a money order on the defendant’s person when he arrested
the defendant. Id. Following the testimony of the police officer,
the district court asked the defendant to “‘come around’” and sit
in the witness chair. Id. The defendant complied, but the
district court did not readminister an oath. Id. The district
court then, in a series of questions, asked the defendant whether
he was in possession of a gun or a money order when he was
arrested. Id. The defendant stated that he was not in possession
of those items. Id. Following a jury trial, the defendant was
convicted of perjury. Id. at 647. The jury found that the
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defendant committed perjury when he testified that he was not in
possession of a gun or a money order when he was arrested both in
response to questions from counsel and in response to questions
from the district court. Id. at 648-49. On appeal, the defendant
argued that the testimony he gave in response to the district
court’s questions was not perjury because it was not given under
oath. Id. at 651. The Barnes court categorically rejected this
argument, reasoning that the defendant
was not told that the questioning by the judge was off
the record nor was he informed that such questioning was
not part of the proceedings then in progress. We
therefore find that the record unequivocally shows that
appellant was under oath . . . when he resumed the
witness stand at the close of [the police officer’s]
testimony.
Id.We see no meaningful difference between the facts of this case
and the facts in Barnes, and find Barnes’s reasoning applicable in
full force to this case. Furthermore, to accept Key’s argument
would require the district court to readminister an oath to a
defendant each time the district court has a question for the
defendant after the defendant has testified under oath and left the
witness stand. This we decline to do.
B
Key also argues that the district court’s finding that he made
materially false statements at the June 19, 2000 revocation hearing
is not supported by the evidence. As noted above, while testifying
on direct examination, Key stated that he was working at Scotty’s
Auto Body Shop detailing cars for about two and one-half weeks.
Further, in response to the district court’s questioning, Key
stated that he was working at Scotty’s Auto Body Shop thirty-five
hours a week and being paid $7.50 per hour. All of these
statements were materially false. Accordingly, we cannot take
issue with the district court’s finding that Key made materially
false statements at the June 19, 2000 revocation hearing.
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III
For the reasons stated herein, the judgment of the district
court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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