United States v. Collins, 59
| Decision Date | 03 December 1959 |
| Docket Number | Docket 25695.,No. 59,59 |
| Parties | UNITED STATES of America, Appellee, v. Benjamin Franklin COLLINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry G. Singer, Brooklyn, N. Y. (Edmund E. Shepherd, Lansing, Mich., on the brief), for defendant-appellant.
Jerome J. Londin, Executive Asst. U. S. Atty., Southern Dist. of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty. for Southern Dist. of New York, New York City, David R. Hyde, New York City, and Richard Conway Casey, Asst. U. S. Attys., on the brief), for appellee.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.
This is an appeal from conviction on two counts of perjury on trial to the jury. The allegedly perjurious statements were made to a grand jury investigating possible violations of the laws of the United States penalizing wiretapping, labor racketeering, obstruction of justice and conspiracy. The grand jury was looking into acts of Teamsters Union Local 299 of Detroit which had occurred in New York and which related to a Congressional investigation in Detroit in the spring of 1953. The grand jury questioned Collins about the preparation of certain minutes of Local 299 and about checks from the local to Spindel, an alleged wire tapper, drawn by Collins at the direction of James Hoffa, Local 299's president. There being no mention of Spindel in the minutes, Collins was asked whether they had been changed. Collins swore they had not been. Collins was asked as to the dates that the minutes had been signed by him. The two statements on the basis of which the jury found Collins guilty were, (1) that minutes of the meeting of March 11, 1953 at Detroit had been signed by Collins as secretary-treasurer shortly after but before April 1, 1953, and (2) that minutes of a similar meeting held at Detroit September 9, 1953 had likewise been signed by him on or before October 1, 1953.
The government produced at the perjury trial a witness who had been for twelve years a designer of type for I.B.M. who testified that in his expert opinion the minutes had been prepared on an I.B.M. machine with Prestige Pica Type, a type style invented by the witness and not available to salesmen until February 1955, and that there was not in existence prior to February 1955 any typewriter which could type the minutes except for two prototype machines at all times in possession of I.B.M. A document examiner of the F.B.I. testified to his opinion that the minutes in question had been typed on a machine, Government's Exhibit 15, obtained from Local 299's office. Records were introduced to show that this machine was purchased by Local 299 from I.B.M. in March 1956.
It is the claim of appellant that this evidence is insufficient for conviction because the falsity of neither statement is proven by the testimony of two witnesses or one witness and corroborating circumstances. The rule is sometimes so expressed. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 549, 156 A.L.R. 496, "uncorroborated testimony of a single witness" not sufficient; United States v. Otto, 2 Cir., 54 F.2d 277, 279, "direct and positive evidence" necessary; United States v. Neff, 3 Cir., 212 F.2d 297, 307, "strong, clear, convincing and direct." The rule has been strongly criticized. 7 Wigmore, Evidence (3d Ed. 1940) secs. 2040, 2041. Whether the evidence is "direct" in the sense in which the term is usually used should not be the criterion here. The test should be rather whether the evidence is of a quality to assure that a guilty verdict is solidly founded. The purpose of the rule was to prevent ill-founded retaliatory attack by perjury prosecution upon a witness on no more than the contrary oath of another. Weiler v. United States, supra. We have here evidence far stronger, more cogent and more convincing than that. If the experts, supported by the exhibits are to be believed, it was an utter impossibility that Collins' testimony before the grand jury was true. The testimony, although in a sense circumstantial, is absolutely inconsistent with Collins' innocence (cf. Allen v. United States, 4 Cir., 194 F. 664, 667, 39 L.R.A.,N.S., 385), and is more convincing than would be the recollection of one or two witnesses that he had signed the minutes at a certain date later than the date sworn to by him. The use of such evidence may be considered akin to the use of documents signed by the witness under the rule of United States v. Wood, 14 Pet. 430, 440, 10 L.Ed. 527.
"The question is, when and how the rule is to be applied, that it may not, from a technical interpretation, or positive undeviating adherence to words, exclude all other testimony as strong and...
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