U.S. v. Fulbright, 86-3055
| Decision Date | 12 November 1986 |
| Docket Number | No. 86-3055,86-3055 |
| Citation | 804 F.2d 847 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy FULBRIGHT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bryan Pedeaux, Richard B. Stricks, New Orleans, La., for Fulbright.
Cynthia R. Hawkins, Asst. U.S. Atty., John P. Volz, U.S. Atty., Thomas Watson, Harry W. McSherry, Jr., Asst. U.S. Attys., New Orleans, La., for the U.S.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARZA, DAVIS and JONES, Circuit Judges.
This appeal arises from appellant Roy Fulbright's challenge of his conviction for perjury before a federal grand jury pursuant to 18 U.S.C. Sec. 1623. 1 Fulbright was found guilty after a trial by jury and, upon his conviction, was sentenced to a prison term of three years. Fulbright now argues that the evidence was legally insufficient to sustain his conviction and that the district court improperly considered his past activities in arriving at a sentence. This Court's review of the record reveals that the evidence was sufficient to sustain the conviction for perjury. The answers given by Fulbright before the federal grand jury were materially false and the knowingly false declarations were proven beyond a reasonable doubt at trial by the prosecution. Moreover, the district court acted within the bounds of the law in considering Fulbright's past activities while determining an appropriate sentence of incarceration. For the reasons herein stated we affirm the conviction below.
The record discloses that in March of 1985, the Drug Enforcement Administration (DEA) received information from sources that Roselia Fajardo, Norris Anderson and Carmella Herrera would be travelling to New Orleans, Louisiana from Belize, Central America to pick up proceeds from a previous drug smuggling transaction. Based on intelligence reports, the DEA learned that one of these persons would leave New Orleans with a large amount of currency. On March 19, Fajardo gave Anderson cash and cashier's checks and told him to take it to Belize without declaring it to United States Customs agents. Customs and DEA agents set up surveillance at the New Orleans International Airport for persons illegally transporting United States funds. Anderson and Herrera filled out the requisite Customs forms, stating that they did not have in excess of $10,000 on their persons. They were detained, consented to a search, and it was determined that Anderson had approximately $61,000 in cash and negotiable instruments on his person. Anderson was arrested and he subsequently agreed to plead guilty to a misdemeanor and cooperate with the Government. Anderson and Herrera offered the following information regarding appellant Fulbright's role in the venture.
While in New Orleans, Fajardo stayed at a friend's home, while Anderson and Herrera stayed at the Rodeway Inn in Kenner, Louisiana. On March 17, Fajardo told Anderson that she was expecting a visitor and had arranged to meet him in Anderson's room at the Rodeway Inn. That morning, an individual, later identified as Fulbright, arrived at Anderson's room. Fulbright had flown into New Orleans International Airport earlier that day. When Anderson asked Fulbright if he was supposed to meet Fajardo, Fulbright acknowledged that he was.
Fajardo arrived shortly after Fulbright and she told Anderson and Herrera that she wished to speak to Fulbright alone. Anderson and Herrera went to the motel coffee shop, and were summoned back to the motel room by Fajardo approximately thirty minutes later. When they returned, Fajardo told Anderson that there was $9,500 in cash on the bed and asked Anderson to count it. Anderson did so after he drove Fulbright to the airport where Fulbright returned to Arkansas. Anderson and Herrera testified that the money was not theirs and was not in the room before Fulbright's visit.
On March 18, Fajardo and Anderson went to five New Orleans banks and converted the cash into cashier's checks. Fajardo then told Anderson that she would be meeting Fulbright again at Anderson's motel room. Fajardo and Fulbright met in the motel room alone for about fifteen minutes while Anderson and Herrera went to the same coffee shop. When Anderson and Herrera returned there was a brown paper bag on the bed that was not there before Fulbright's visit. Fajardo then left with the bag. The following day, Fajardo gave Anderson the cash and cashier's checks and instructed him to carry the funds to "Michael" in Belize, without declaring it at Customs. On March 19, Anderson was arrested at the airport.
On July 12, pursuant to an investigation, Fulbright appeared before a federal grand jury in New Orleans. Fulbright admitted going to New Orleans once in the spring of 1985 to talk to a man named "Al" about a job as a pilot to spray crops. Fulbright testified that Al did not appear so he left New Orleans that same day. Fulbright denied ever being in New Orleans on any other occasion or for any other purpose. Fulbright denied meeting or knowing Fajardo. The perjurious statements are as follows:
Q. Mr. Fulbright, didn't you meet with Roselia Fajardo when you were in New Orleans in March?
A. Who?
Q. Roselia Fajardo.
A. Sir, I've never heard that name.
Q. Didn't you meet with a lady at a hotel here in New Orleans on several occasions when you came down?
A. No. I did not.
Q. Didn't you bring her some money?
A. No. I did not.
* * *
* * *
Q. So you took a flight out the same day you took a flight in?
A. Yes.
Q. And that was the only day you had been in New Orleans?
A. Yes.
Q. You didn't spend the night in New Orleans?
A. No. I did not.
Q. You didn't come back the next day?
A. No.
On August 9, Fulbright was charged by the grand jury in three counts of a six count indictment with conspiracy to import marijuana, conspiracy to possess with the intent to distribute marijuana, and perjury before a federal grand jury. 2 On November 25, the jury found Fulbright guilty of the perjury charge only, in violation of 18 U.S.C. Sec. 1623. On March 19, 1986, Fulbright was sentenced to a term of imprisonment of three years and fined fifty dollars. During the course of the proceedings, the district court was informed that Fulbright had been involved in two prior drug-related incidents. In both of these instances Fulbright had been given immunity from prosecution for his cooperation. At sentencing, the district court relied on those past acts in concluding that, because the present case was Fulbright's third involvement, incarceration for three years was warranted. The grounds for this appeal involve the legal sufficiency of the evidence used to form the basis of the perjury conviction, and the district court's consideration of Fulbright's past involvements in fixing the sentence of three years imprisonment.
Fulbright contends that the three perjurious declarations were literally true, and therefore cannot form the basis of a perjury conviction. The evidence shows that Fulbright met with Fajardo in Kenner, Louisiana rather than in New Orleans. Fulbright is correct in his argument that Kenner is a distinct city from New Orleans. Kenner is a suburb of New Orleans, but it lies within the greater New Orleans metropolitan area. The New Orleans International Airport is in Kenner. Literally, Fulbright argues, he did not make any false declarations because: 1) he did return to Kenner, but not to New Orleans; 2) he did not meet with a lady at a hotel in New Orleans; and 3) he did not bring money to Fajardo in New Orleans.
Fulbright relies on Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), to support his challenge. In Bronston, the Supreme Court reversed an 18 U.S.C. Sec. 1621 perjury conviction where the defendant's responses to the grand jury were literally true, but unresponsive. The Bronston Court held that the federal perjury statute does not reach a literally true but unresponsive answer, even if the witness intends to mislead his questioner and even if the answer is arguably false by negative implication.
However, as this Court has noted, "an answer that is responsive and false on its face does not come within Bronston's literal truth analysis simply because the defendant can postulate unstated premises of the question that would make his answer literally true." United States v. Cuesta, 597 F.2d 903, 920 (5th Cir.) (citations omitted), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). The jury could reasonably conclude that the name "New Orleans" refers to the greater New Orleans metropolitan area, which includes Kenner. There is no reason to believe that Fulbright or the questioner intended to limit the name "New Orleans" to exact geographical dimensions. Additionally, in contrast to what Fulbright now argues, he testified to being in "New Orleans" while visiting a hotel by the airport. This statement is sufficient to establish that Fulbright understood "New Orleans" to encompass its outlying suburbs. For purposes of jury determination in interpreting allegedly perjurious statements, words that are clear on their face are to be understood in their common sense and usage. Government of Canal Zone v. Thrush, 616 F.2d 188, 191 (5th Cir.1980); United States v. Crippen, 570 F.2d 535, 537 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979).
Fulbright testified before the federal grand jury that he was in New Orleans on only one occasion for a matter of hours. He denied being in New Orleans for more than one day. Our review of the record indicates that Fulbright was in New Orleans on March 17 and 18. Moreover, Fulbright did meet with Fajardo in a hotel room during his stay. Fulbright's statements that he was in New Orleans on only one date and that he did not meet with a lady in a hotel room during his visit were false, and the evidence was sufficient for the jury to find that...
To continue reading
Request your trial
-
U.S. v. Vontsteen
...indicium of reliability" and "bear some rational relationship to the decision to impose a particular sentence." United States v. Fulbright, 804 F.2d 847, 853 (5th Cir.1986). The defendant bears the burden of demonstrating that information the district court relied on in sentencing is "mater......
-
US v. Bogle
...judge must have `the fullest information possible concerning the defendant's life and characteristics.'" United States v. Fulbright, 804 F.2d 847, 853 (5th Cir.1986), quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 The Sentencing Guidelines severely limit......
-
U.S. v. Bollin
...the defendant can postulate unstated premises of the question that would make his answer literally true.'" United States v. Fulbright, 804 F.2d 847, 851 (5th Cir. 1986) (quoting United States v. Cuesta, 597 F.2d 903, 920 (5th Cir. 1979)). Even though Oles provided the $400,000, there was su......
-
Mayes v. State
...(1989); Roussell v. Jeane, 5th Cir., 842 F.2d 1512 (1988); United States v. Hull, 9th Cir., 792 F.2d 941 (1986); United States v. Fulbright, 5th Cir., 804 F.2d 847 (1986); United States v. Bowdach, 5th Cir., 561 F.2d 1160 (1977); United States v. Marines, 10th Cir., 535 F.2d 552 (1976); Uni......
-
Trials
...256, 258-59 (4th Cir. 1987) (use of immunized testimony against defendant at sentencing not breach of immunity grant); U.S. v. Fulbright, 804 F.2d 847, 852-53 (5th Cir. 1986) (use of immunized testimony against defendant at sentencing not breach of immunity agreement given judicial discreti......