570 F.2d 535 (5th Cir. 1978), 76-4486, United States v. Crippen

Docket Nº:76-4486.
Citation:570 F.2d 535
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank CRIPPEN, Defendant-Appellant.
Case Date:March 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 535

570 F.2d 535 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank CRIPPEN, Defendant-Appellant.

No. 76-4486.

United States Court of Appeals, Fifth Circuit

March 30, 1978

Page 536

William G. Earle, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Jamie L. Whitten, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, HILL and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The defendant was convicted on two counts of perjury after a fair trial at which a careful trial judge ruled correctly on the issues sought to be raised as grounds for his acquittal, or, alternatively, dismissal or for a new trial. Our conclusion that the trial court should be affirmed was reached after full study of each of the several issues raised.

I.

Frank Crippen, a businessman living in Miami, Florida, was the owner of an automobile agency, Crippen Oldsmobile. In March, 1975, a grand jury was investigating whether this firm had violated the Disclosure of Automobile Information Law, 15 U.S.C. § 1233, which makes it a misdemeanor to remove a manufacturer's price sticker from a new car or to alter the original sticker. Crippen testified before the grand jury, as did one Paul LaChance, a mechanic whose skills included the ability to turn back automobile odometers. LaChance had never been an employee of Crippen Oldsmobile but had, from time to time, done work for the company. He denied that this work included turning back odometers.

Crippen testified that turning back odometers once was a common practice in the industry and that his firm had done so routinely in 1972 and before then. But, he said, when a federal law was passed making it a civil offense to turn back odometers, he issued a directive prohibiting it. 1 He was examined about events that occurred thereafter, and he gave answers that later resulted in three counts of the indictment against him.

Later, faced with a charge of false swearing, LaChance recanted. He furnished evidence that resulted in several charges against Crippen and received a promise of immunity. Crippen was indicted on three counts of false swearing in violation of 18 U.S.C. § 1623 (Counts I, II and III), two counts of obstruction of justice for allegedly trying to influence LaChance's testimony (Counts IV and V), and one substantive count charging the removal of a manufacturer's price sticker, a misdemeanor under 15 U.S.C. § 1233 (Count VI). The false swearing counts were based on the following testimony before the grand jury:

Count I: Q. Are you aware of any cars being sold by Crippen Oldsmobile in 1974 that had odometers turned back.

  1. No, I am not.

    Count II: Q. Mr. Crippen at any time in the year 1974 did you ever order or request anyone to turn back an odometer at Crippen Oldsmobile?

    Page 537

  2. No, I did not.

    Count III: Q. At any time in 1974 did Paul La Chance while working on the premises of Crippen Oldsmobile here in Miami turn back an odometer.

  3. No, not that I know of.

    At Crippen's trial, LaChance related that he had turned back about 17 odometers at Crippen Oldsmobile in 1974, and that he received his instructions from the manager, Don Coates, not from Crippen. He testified, however, to events from which the jury might have concluded that Crippen knew what was going on, and, on at least one occasion, directed the manager to reduce the mileage registered on an automobile by half.

    There was considerable other testimony against the defendant, and direct, as well as character, testimony on his behalf. He also testified in his own defense.

    During the course of the jury's deliberations, it sent the following question to the trial judge:

    Count No. I states, 'Q: Are you aware' (meaning...

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