U.S. v. Tobias
| Decision Date | 21 December 1988 |
| Docket Number | No. 88-1096,88-1096 |
| Citation | 863 F.2d 685 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John TOBIAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen G. Corrigan, Asst. U.S. Atty., Appellate Section, San Francisco, Cal., for plaintiff-appellee.
Joseph Morehead, Michael R. Hallinan, San Francisco, Cal., for defendant-appellant.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, SNEED and HUG, Circuit Judges.
Tobias appeals his perjury conviction, claiming that he recanted his perjurious testimony and that the evidence was insufficient to support his conviction. We affirm.
Tobias, a forty-six year old airline cargo handler, was called as a defense witness in United States v. Fannin (N.D.Cal. CR 84-531-JPV). Fannin's counsel asked:
Excerpts of Record (E.R.) at 16. The government cross-examined Mr. Tobias:
Q: Is it your testimony, Mr. Tobias, that you don't know anybody by the name of Conrad?
....
Tobias continued his testimony the next day. The government played a cassette tape of a telephone conversation between Tobias and Conrad Bouchelion. His testimony continued:
The Witness: I mean I've never had personal contact with Conrad Bouchelion other than through Stephens.
....
The Court: Yesterday, Mr. Tobias, you were called and ... you were asked by counsel for the defense ...:
Was that answer truthful?
The Witness: That answer is true. I do not know the individual. The way--the way I'm interpreting "knowing" is knowing someone that you have conversation with every day, that you have dinner with, that you spend time with. Knowing. If that guy walked ....
in this room today, I wouldn't be able to identify him.
The Court: Do you know anybody by the name of Conrad?
The Witness: Now I do since talking to Stephens.
....
The Court: So yesterday when you were asked if you knew a man named Conrad, you did know a man named Conrad, didn't you?
The Witness: Knowing that particular name, Judge, but not knowing the individual as a--as a ... a friend or associate.
The Court: I think the United States ought to look into the prosecution of this man for perjury.
E.R. at 30-33. Fannin's counsel then introduced testimony that Tobias met with customs agents in September of 1984. At that meeting, Tobias admitted that he "knew" a man named Conrad, but claimed that he did not know his last name, nor did he have extensive contact with him. See E.R. at 14.
Tobias was indicted for perjury. See 18 U.S.C. Sec. 1623 (1982). Defense counsel filed a motion to dismiss the indictment, arguing that Tobias recanted his false testimony. Tobias argues that by admitting the truth of this prior statement, he recanted his earlier testimony. See id. Sec. 1623(d). The district court ruled that Tobias did not unequivocally recant his prior testimony. E.R. at 11. At a bench trial, the district court found the defendant guilty. E.R. at 12-13. Tobias was sentenced to three years imprisonment, placed on probation, with special terms and conditions prescribed by the district court. Tobias appealed to this court.
The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. This court has jurisdiction under 28 U.S.C. Sec. 1291.
The first issue before us is whether the trial court properly refused to dismiss the indictment. This is a question of law and is reviewed de novo. See United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); United States v. DeCoito, 764 F.2d 690, 693 (9th Cir.1985).
In his second ground of error, Tobias challenges the sufficiency of the evidence. Citing United States v. Cowley, 720 F.2d 1037 (9th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984), he argues that the sufficiency of the evidence supporting his conviction should be reviewed de novo.
In Cowley we did state that perjury convictions are reviewed de novo. Id. at 1040. In a footnote, however, we qualified this statement by saying: "[t]he standard of review when examining a perjury indictment is de novo...." Id. at 1040 n. 2. The court in United States v. Sainz repeated this broad assertion but applied a standard equivalent to the standard employed in reviewing the sufficiency of evidence to support a conviction.
On appeal, the defendant challenges the sufficiency of the evidence supporting his perjury conviction.... In reviewing a perjury conviction we apply a de novo standard.... Our central task is to determine "whether a jury could conclude 'beyond a reasonable doubt that the defendants understood the question as did the government and that, so understood, the defendant's answer was false.' " [Cowley, 720 F.2d at] 1040 n. 2 (quoting United States v. Matthews, 589 F.2d 442 [, 445] (9th Cir.1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979)).
772 F.2d 559, 562 (9th Cir.1985) (citation omitted).
We have traditionally applied a deferential standard, such as was done in Sainz, when reviewing the sufficiency of the evidence in a criminal case. In United States v. Ponticelli, for example, we stated: "The We conclude that in reviewing appellant's sufficiency claim, we apply the deferential standard of review enunciated in Jackson.
evidence and its inferences, of course, must be viewed in a light most favorable to the government...." 622 F.2d 985, 987 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980) (citing Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974)); accord United States v. Linn, 862 F.2d 735, 740 No. 87-3093, slip op. at 14684 (9th Cir. Nov. 30, 1988); United States v. Normandeau, 800 F.2d 953, 959 (9th Cir.1986); United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (). 1
Tobias argues that the district court erred in failing to dismiss the indictment against him because he successfully recanted his perjurious testimony. The applicable statute reads as follows:
Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.
18 U.S.C. Sec. 1623(d) (1982).
While a defendant must raise an affirmative defense or statutory exception, "the prosecution must prove the inapplicability of this [recantation] defense beyond a reasonable doubt." United States v. Guess, 629 F.2d 573, 577 n. 4 (9th Cir.1980); see United States v. Baker, 641 F.2d 1311, 1320 (9th Cir.1981). But see United States v. Moore, 613 F.2d 1029, 1044 (D.C.Cir.1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2922, 64 L.Ed.2d 811 (1980) ().
Section 1623(d) requires the defendant to admit making a false declaration. Tobias argues that he implicitly acknowledged that his initial testimony, denying that he knew Conrad Bouchelion, was false. He points to his attempts to explain his understanding of the word "knowing," E.R. at 31, and the introduction into evidence of his earlier statements to customs agents in which he admitted knowing a man named Conrad, E.R. at 37. The government argues that Tobias never admitted, implicitly or otherwise, that his testimony was false. Rather, they suggest that Tobias merely attempted to explain his inconsistent testimony. Judge Patel ruled that Sec. 1623(d) requires that the defendant unequivocally recant his former testimony and therefore Tobias did not satisfy the statute. E.R. at 11.
This court has not addressed this question directly. Other circuits demand more than an implicit admission that the witness' prior testimony was false. The Second Circuit requires that the defendant make "[a]n outright retraction and repudiation of his false testimony." United States v. D'Auria, 672 F.2d 1085, 1092 (2d Cir.1982). The First Circuit adopted D'Auria in United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir.1983), and later held that an implicit recantation does not satisfy the statute, United States v. Scivola, 766 F.2d 37, 45 (1st Cir.1985). See also United States v. Vesich, 724 F.2d 451, 460 (5th Cir.1984) ().
In holding that the defendant must explicitly recant his former testimony, the Second Circuit reasoned Otherwise a witness, by suggesting that he might be willing to change his perjurious testimony, could...
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