Barker v. United States, 13181.

• Decision Date: 22 October 1952
• Docket Number: No. 13181.,13181.
• Citation: 198 F.2d 932
• Parties: BARKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F.2d 932 (1952)

BARKER v. UNITED STATES.

No. 13181.

United States Court of Appeals Ninth Circuit.

August 21, 1952.

Rehearing Denied October 22, 1952.

David B. Fyfe, San Rafael, Cal., for appellant.

Chauncey Tramutolo, U. S. Atty., Macklin Fleming, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.

DENMAN, Chief Judge.

Barker appeals from a judgment convicting him of perjury charged to have been committed by him in his prosecution for the use of the mails to defraud. The indictment in the mail fraud trial was introduced in evidence. It charged a scheme to defraud by persuading persons by false representation in documents mailed to them to give Barker moneys to purchase valuable timber lands at tax sales to which they would receive unimpeachable title and likely profits.¹

The perjury Barker is charged to have committed in the trial of that case is that he knowingly and falsely testified he on one day caused to be cut by stencil, assembled and stapled a five-page document, Exhibit D-56 in evidence in the mail fraud case, of which he had mailed copies on the same day to all the subscribers of his publication, California Tax Sales. The true facts, the indictment states, were that he fabricated the 5th page of Exhibit D-56 at a time other than at which he had mimeographed the first four pages and at a time subsequent to 1946, and defendant had never mailed the fifth page to any of his subscribers during the year 1946, and the fifth page was not a part of his original publication, and Exhibit D-56 was not his file copy of the original publication.

At the trial below, Exhibit D-56 was offered in evidence and objected to on the ground that it was not material to the issue in the mail fraud trial in which it had been introduced. The judge reserved his ruling until he had examined other exhibits including the mail fraud indictment, when he overruled the objection and admitted Exhibit D-56. Barker assigns this as error.

The first four pages of that document state the false representations charged in the indictment. The fifth page puts limitations on these statements rendering them innocuous. An examination of Exhibit D-56 shows clearly:

(a) That the five pages were not stapled at the same time, but that the first four pages were stapled at one time and the fifth attached at a different time;

(b) That the stencil cutting on the four pages is so markedly different from that on the fifth that the latter page must have been cut at a time much subsequent to the first four;

(c) That the paper on the fifth page was of a different character from that on the first four (d) That the creases on the first four pages match while those on the fifth page do not; and

(e) That the stencil used to prepare pages one to four and used to prepare page five appears to be the same. However, the condition of the type with respect to the letter "h" varied. In the first four pages of the document, approximately 170 "h's" were used and on these pages the "h" was in proper condition. On page five the "h" appeared with a broken right serif, and some 75 "h's" on page five bore this characteristic.²

We hold that the Exhibit D-56 was evidence material to the issues in the mail fraud case and that it was properly admitted at the instant trial.

Barker next contends that there is not the necessary evidence for a conviction on a charge of perjury because there is no witness testifying to the perjury and the remaining evidence is purely circumstantial. We do not agree. Documentary matter such as Exhibit D-56 written by the person charged is the direct proof of the crime. It need not be by personal testimony. United States v. Wood, 14 Pet. 430, 440, 10 L.Ed. 527. Cf. Hammer v. United States, 271 U.S. 620, 627, 46 S.Ct. 603, 70 L.Ed. 1118. In Radomsky v....