Arena v. United States, 14516.

• Decision Date: 07 November 1955
• Docket Number: No. 14516.,14516.
• Citation: 226 F.2d 227
• Parties: James ARENA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F.2d 227 (1955)

James ARENA, Appellant, v. UNITED STATES of America, Appellee.

No. 14516.

United States Court of Appeals Ninth Circuit.

October 5, 1955.

Rehearing Denied November 7, 1955.

A. J. Zirpoli, C. Harold Underwood, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and ORR and LEMMON, Circuit Judges.

LEMMON, Circuit Judge.

In a perjury case, the rule requiring corroboration of a single witness as to the falsity of the defendant's testimony is, like Iago's wine, "a good familiar creature, if it be well used."¹

But when the rule is perverted so as to require the prosecution to "prove its case twice", it cannot be said to be "well used".

The appellant, however, professes that he "does not contend that the government should be compelled to prove its case twice". He also complains that "Appellee's brief incorrectly attributes to appellant the proposition that `the corroborative evidence must "of itself" prove guilt'". Yet such double proof is precisely what the appellant exacts of the appellee when he says:

"The asserted corroborative evidence in the instant case is not direct or positive or inconsistent with the innocence of the accused. It does not `of itself\' prove guilt." (Emphasis supplied.)

The law does not demand of the appellee so inordinate a measure of proof.

1. Statement of the Case

The indictment charged the appellant in two counts with violations of 18 U.S. C.A. § 1621, infra. The District Court entered a judgment of acquittal on the second count. The charging part of the first count is set out in full in the margin.²

The jury found that appellant was guilty on the first count, and he received a sentence of three years' imprisonment.

Section 1621, the perjury statute, reads as follows:

"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years or both."

2. The Facts

The appellant did not take the witness stand and no evidence was offered in his behalf. Since one of the errors specified by him is that "The evidence was insufficient as a matter of law to sustain the verdict", in considering the facts we must grant every reasonable intendment in favor of the appellee.

Irving Baskin testified that in Oakland, California, he was employed part time by Zola S. ("Tiny") Heller, in taking care of the records of the latter's "legitimate businesses" — "a hotel and a bar and a liquor store". Heller was also a "betting commissioner", defined by the witness as "a person that takes wagers". Baskin also prepared Heller's tax returns, did his banking for him, obtained information from him regarding "the betting commission operations", examined the "betting commission" records, recognized Heller's handwriting therein, etc.

Baskin had known the appellant since 1941 or 1942. The appellant was in the Heller establishment during the end of Heller's operations in 1947 three or four times a week. On two or three occasions, the witness was handed sealed envelopes by Heller for delivery to the appellant at the latter's liquor store. The witness would deliver the envelopes.

In early December, 1947, Heller, in the appellant's presence, handed Baskin a group of checks and told him to "get them cashed into one thousand dollar bills and then give them to Jimmy (the appellant)". The checks amounted to $38,000.

The appellant and Baskin left Heller's liquor store and went to the bank, about two blocks away. They stepped to the window of Herman Wirth,³ a teller, who counted out thirty-eight one-thousand-dollar bills to Baskin.

Baskin's precise testimony at this crucial point is as follows:

"I gave (the checks) to Mr. Worth (sic). Mr. Worth took them to the Chief Clerk to get them okayed. * * * his name was Madeiras. * * *

"Mr. Worth came back to his cage and he got all the thousand dollar bills he had, there wasn\'t enough bills, so he asked Mr. Seale for his thousand dollar bills. Between the both they scraped up 38 one thousand dollar bills. * * *

"We went to the back of the bank. * * * We both stayed on the other side. * * * Mr. Worth was behind the counter. * * *

"I told Mr. Worth to count the money out in stacks of ten, with eight being the last one. I wanted to make sure all the money was there. And Mr. Worth counted the money out in stacks, three stacks of ten each and one of eight. Then I called Mr. Arena over and I counted the money over to him. He took the money, put it in his pocket. * * * We both walked out of the bank. * * *"

The next witness was F. W. Whitted. He was employed by Heller from April, 1941, until the end of October, 1947. His duties were to "make the prices" on baseball games; that is to say, to determine the odds on a particular game.

The appellant was on Heller's premises "five or six times a week at least" during the period in which Whitted was associated with Heller. In 1946 and 1947 the appellant placed bets ranging "from $100 to two or three thousand dollars". The witness sometimes recorded the appellant's bets. Five cards or "parlay tickets" admitted in evidence showed that the appellant had won $7900 in one transaction, on October 26, 1946.

The foregoing bet, however, was placed by the appellant on behalf of Arthur H. Samish, whose income tax liability was being investigated by the grand jury before which the appellant is charged to have sworn falsely. At first, Samish placed his own bets, but later the appellant did so. When the appellant placed the bets, the bettor was designated in Heller's books as "SA": when Samish himself did the placing, the designation was "AS". Whitted recorded transactions on behalf of Heller.

Heller's widow testified that she recorded bets for her husband. He conducted his betting activities at home as well as in his office behind the liquor store. She identified a number of his business papers as being in his own handwriting. She testified that in her husband's books the initials "S.A." meant "Artie Samish Account to James Arena (the appellant)".

She identified a document containing wagers for Samish for the week ending November 30, 1947, showing that the latter won $34,800. She explained that the "remarks" in connection with a check dated December 3, 1947 — "S.A." "A.C. T." — indicated "Artie Samish account". The check was for $6,050.

Earl Madieros,⁴ assistant cashier of the Twelfth and Broadway branch of the Bank of America in Oakland, said that in December of 1947, the paying teller presented to him four checks for approval for cashing. The checks totaled $38,000. Not being entirely familiar "with all the procedures on Tiny Heller's operation", he referred the matter to a senior officer of the bank, and when the latter gave him the "nod", Madieros approved the checks and handed them back to the teller for cashing. Wirth was the teller.

The checks were for $6,050, $13,700, $9,350, and $8,900.

Finally, there was read to the jury a portion of the transcript of the appellant's testimony before the Grand Jury on May 6, 1953. In that testimony the appellant declared that he knew nothing about five "Sacramento Football Selections" cards for Saturday, October 26, 1946, all bearing the initials "J.A." He also denied that he had placed the bets represented by the cards, denied that he had placed the bets with Whitted, and expressed the belief that he had never placed any bets with the latter.

It will be recalled that Whitted testified that in 1946 and 1947 the appellant placed bets ranging in size from $100 to $2,000 or $3,000. Whitted also identified five "parlay cards" that he had written, showing the appellant as the bettor who won $7,900 in that transaction.

3. There Was Sufficient Corroboration of the Direct Testimony of Baskin

In open court, counsel for the appellant stipulated that the latter's testimony was "material to the proceedings before the Grand Jury". It is also conceded that there was "direct evidence" — albeit it is asserted to be "The only direct evidence" — "offered by the government to show the alleged falsity of appellant's statements, if believed"; namely, "the testimony of Irving Baskin that early in December, 1947, he went to a branch of the Bank of America in Oakland accompanied by appellant and there cashed four checks for which he received thirty-eight one thousand dollar bills from the teller, Herman Wirth, which he (Baskin) then and there counted out and turned over to appellant."

There remains, however, a final factual question that must be resolved by this Court:

Was Baskin's testimony sufficiently corroborated to support the verdict and the judgment below?

The problem is a unique one, confined almost exclusively to the law of perjury. In Weiler v. United States, 1945, 323 U.S. 606, 608-609, 65 S.Ct. 548, 550, 89 L.Ed. 495, the Court said:

"The special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries."

The rule has been sharply criticized by some courts and some text writers. It has been pointed out for example, that it is inconsistent to rule that evidence sufficient to warrant the death penalty for murder is insufficient to convict a man of perjury.⁵

Nevertheless, the doctrine has been approved by the Supreme Court. This acceptance, however, has been qualified by certain clear and definite restrictions and limitations, which it now behooves us to examine and to apply to ...