700 F.2d 647 (11th Cir. 1983), 81-6227, United States v. Molinares

Docket Nº:81-6227.
Citation:700 F.2d 647
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roberto A. MOLINARES, Defendant-Appellant.
Case Date:March 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 647

700 F.2d 647 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Roberto A. MOLINARES, Defendant-Appellant.

No. 81-6227.

United States Court of Appeals, Eleventh Circuit

March 14, 1983

Page 648

Douglas L. Williams, Nathan & Williams, P.A., Miami, Fla., for defendant-appellant.

Bruce E. Morton, Tax Division, Criminal Section, Dept. of Justice, Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div. Dept. of Justice, Michael L. Paup, Chief, Appellate Section, Washington, D.C., for plaintiff-appellee.

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

Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.

Page 649

TJOFLAT, Circuit Judge:

Roberto Molinares appeals his conviction for making a false declaration before a court in violation of 18 U.S.C. Sec. 1623 (1976 & Supp. V 1981). We affirm.

I.

We recite only so much of the facts as are necessary to our disposition of this case. In August 1980, two agents of the Criminal Investigation Division of the Internal Revenue Service (IRS) interviewed Molinares at his home in connection with possible income tax and currency violations. They also served him with a subpoena that commanded him to appear before a grand jury and to bring certain business records. Molinares moved to quash that subpoena, and on October 3, 1980, the district court conducted an evidentiary hearing on his motion to quash. The government alleges that during this evidentiary hearing, as well as during the interview in his home, Molinares made several false statements. The government sought to indict and convict Molinares for making these false statements.

On August 20, 1981, a grand jury did indict Molinares, alleging six separate counts. Count I charged Molinares with making a false statement in a matter within the jurisdiction of an agency of the United States, in violation of 18 U.S.C. Sec. 1001 (1976). It was based upon a statement Molinares made during the interview in his home. Counts II-VI charged Molinares with making five different false statements during the October 3, 1980, evidentiary hearing before the district court, in violation of 18 U.S.C. Sec. 1623. 1 Molinares moved to dismiss the indictment and, in the alternative, to consolidate the counts. The court denied both motions on October 5, 1981, and the trial began that day.

To prove that Molinares made the false statements charged in counts II-VI while under oath, an essential element of a section 1623 offense, the government called Paul Haferling, the court reporter from the October 3, 1980, evidentiary hearing. Haferling testified that the transcript that he had made of the hearing was a true and accurate transcription of the hearing. The government then moved to introduce into evidence the transcript which contained Haferling's recitation that Molinares "was called as a witness and having been first duly sworn, was examined and testified as follows: ..." Record, vol. 6, at 190 (emphasis added). Molinares objected to the admission of the transcript on the general grounds of relevancy, materiality, and competency. The court overruled these objections, however, and allowed the transcript into evidence. There was no other testimony during the government's case in chief that Molinares took an oath before making a false statement.

At the close of the government's case, Molinares moved for a judgment of acquittal on all counts pursuant to Fed.R.Crim.P. 29(a). Molinares argued, as to counts II-VI, that the government had failed to prove that he had made statements under oath. The government responded that the evidence was sufficient; alternatively, it moved to reopen its case so that it could introduce further evidence that Molinares had made the false statements while under oath. The court heard oral argument on this motion and noted:

It is significant that the reporter was here. He was under oath and he did say that this transcript is true and correct and it does contain this recital. I am aware that he did not give any independent testimony that he recalls a swearing or that there was no testimony by anone [sic] else that he was given an oath.

Record, vol. 7, at 452-53. It then granted the government's motion to reopen.

The government recalled IRS special agent Raul DeArmas. DeArmas testified that he had participated in the October 3, 1980, evidentiary hearing and that Molinares was placed under oath before testifying. DeArmas further testified that the

Page 650

court reporter administered the oath. The government then closed its case, and Molinares renewed his rule 29(a) motion to dismiss. The court granted his motion as to counts I (the section 1001 charge) and VI (a section 1623 charge) on grounds unrelated to this appeal.

Molinares began his defense by attacking the oath element of the section 1623 offenses; he recalled Haferling, the court reporter. Haferling testified that he had not administered an oath to Molinares at the October 3, 1980, evidentiary hearing; he stated that he was sure of this because he had "never administered an oath to any witness since I have been in federal court." Id. at 632. Haferling did testify, however, that "[Molinares] was given the oath." Id. at 633.

At the close of his defense, Molinares again renewed his rule 29(a) motion to dismiss the remaining section 1623 counts. The court denied the motion as to count II and ordered the government to elect either count III or count IV, or consolidate them. It withheld ruling on count V. The government then dismissed count IV, leaving counts II, III, and V for the jury. The jury returned a verdict of guilty on count II, and not guilty on counts III and V.

Molinares appeals this conviction arguing, inter alia, that (1) there was insufficient evidence to prove that he made a false statement while under oath, and (2) the court improperly allowed the government to reopen its case to introduce additional evidence that he made a false statement while under oath. We now address these arguments, and others Molinares makes as grounds for reversal.

II.

Molinares' first argument is that there was insufficient evidence to prove that he made a false statement while under oath. 2 In analyzing this argument, we note that "[i]t is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (citations omitted). "The standard of review is whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the [defendant's] guilt." United States v. Gianni, 678 F.2d 956, 959 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 491, 74 L.Ed.2d --- (1982).

Our review of the record reveals ample evidence to convince a reasonable trier of fact beyond a reasonable doubt that Molinares gave his testimony under oath at the October 3 evidentiary hearing. The jury heard direct testimony from two witnesses that the oath was administered to Molinares at the October 3 hearing. 3 In addition, the certified transcript of the proceeding--introduced into evidence by the court reporter who testified that it was true and accurate--unequivocally indicates that appellant was duly sworn before testifying. 4 In the absence of any evidence to the contrary, this is more than sufficient to establish that Molinares made the allegedly false statements while under oath. See United States v. Prior, 546 F.2d 1254, 1258 (5th Cir.1977)

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(where court reporter's pre-printed form indicated that court reporter administered the oath, and grand jury foreman testified that he personally administered the oath, "[i]t was for the jury to weigh the relative credibility of the Foreman and the form. There was ample evidence from which they could and did conclude that the oath had been properly administered by the Foreman, and that the court reporter had simply used the wrong certificate form when preparing the transcript."); United States v. Seavey, 180 F.2d 837, 839 (3d Cir.1950) (where grand jury foreman testified that he swore every witness, but could not recall the testimony of the defendant, and the court reporter testified that he had been present during defendant's testimony and had seen him take the oath, although his notes of the testimony did not show the defendant had been sworn, "a jury could find from all this that the oath had actually been administered.").

Nonetheless, Molinares argues that under Smith v. United States, 363 F.2d 143 (5th Cir.1966), we must find the evidence that he was duly sworn insufficient. In Smith, the government also prosecuted a defendant for perjury and the question there was whether the defendant had been duly sworn. To prove this the government did not call the court reporter as a witness. Instead, the government called the court clerk who identified a certified copy of the transcript of the hearing in which the alleged perjury occurred. The clerk gave no additional testimony other than that he had been the court clerk for nine years. He did not testify that he was present at the hearing, that he administered the oath, or that he observed anyone else do so. Therefore, we held that the bare statement in the transcript, unsupported by testimony, that the defendant had been duly sworn was insufficient evidence to support a conviction of perjury. Molinares argues that we must do the same in this case. We disagree for several reasons.

First, the quantum of proof on the oath element in this case far exceeds that in Smith. In addition, Smith involved a prosecution under a different statute, 18 U.S.C. Sec. 1621 (1976). 5 That statute, the general perjury statute,...

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