754 F.2d 1182 (5th Cir. 1985), 83-1204, United States v. Harrelson

• Docket Nº: 83-1204.
• Citation: 754 F.2d 1182
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Jo Ann HARRELSON, Defendant-Appellant.
• Case Date: February 15, 1985
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1182

754 F.2d 1182 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jo Ann HARRELSON, Defendant-Appellant.

No. 83-1204.

United States Court of Appeals, Fifth Circuit

February 15, 1985

Page 1183

Charles Campion, San Antonio, Tex. (court-appointed), for defendant-appellant.

Edward C. Prado, U.S. Atty., LeRoy Morgan Jahn, W. Ray Jahn, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, REAVLEY and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:

Jo Ann Harrelson appeals her conviction on five counts of perjury for making false material declarations to a grand jury in violation of 18 U.S.C. Sec. 1623 (1982). She was sentenced to five years' imprisonment on all counts with cumulative sentences on the first four counts. The sentence on the fifth count is concurrent with the sentence on count three, resulting in a total of twenty years' imprisonment. We affirm but vacate the sentence on the fifth count under the concurrent sentence doctrine.

The indictment for perjury arose out of a grand jury investigation involving the May 29, 1979 murder of United States District Judge John H. Wood, Jr. Harrelson was investigated because she purchased the rifle used to murder Judge Wood. When she purchased the firearm, she used an alias, Fay L. King, and also falsified her address, birthdate, and driver's license number. ¹

Page 1184

Her responses to five questions before the grand jury, appearing in five counts, formed the basis for the indictment.

The primary issue raised by Harrelson on this appeal is whether her conviction violates the Double Jeopardy Clause of the Fifth Amendment. She raises other issues concerning recusal, the voir dire procedure, sufficiency of the evidence, cruel and unusual punishment, the charge to the jury, and the district court's refusal to allow her to testify about conversations she had with her attorney during the grand jury proceedings.

I. Double Jeopardy

Harrelson's argument concerning double jeopardy is two-pronged. First, she argues that the indictment contained multiplicitous counts. Second, she contends that her indictment was the subject of a prior conviction.

1. Multiplicity of Counts

   Harrelson argues that counts two, three, and five are multiplicitous because count five totally encompasses the declarations which form the basis for counts two and three. Multiplicity occurs when a single offense is charged in more than one count. United States v. De La Torre, 634 F.2d 792, 794 (5th Cir.1981). An indictment for perjury is not multiplicitous when it contains charges for...