Doan v. United States, 13458.

• Decision Date: 30 March 1953
• Docket Number: No. 13458.,13458.
• Citation: 202 F.2d 674
• Parties: DOAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F.2d 674 (1953)

DOAN v. UNITED STATES.

No. 13458.

United States Court of Appeals Ninth Circuit.

February 27, 1953.

Rehearing Denied March 30, 1953.

Kenny & Morris, Los Angeles, Cal., for appellant.

Walter S. Binns, U. S. Atty., Ray H. Kinnison and Richard F. C. Hayden, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

Doan appeals from a judgment upon a verdict finding him guilty of perjury, subornation of perjury and obstruction of justice. In January, 1950, in the Southern District of California, the Grand Jury returned an indictment against the appellant and fifteen other defendants charging a conspiracy to violate the narcotics laws of the United States. On Monday, February 27, 1950, Doan appeared in the court at Los Angeles and was arraigned on this indictment. The trial was then set for April 25, 1950. One of the defendants in the indictment, Abraham Davidian, was to be the principal government witness at the trial. On the day following Doan's arraignment, at some time between the hours of 11 A.M. and 2 P.M., Davidian was shot through the head by some assailant while he was lying on a couch in his home at Fresno, California.

Doan had driven to Los Angeles in his automobile the evening before he was arraigned. He was accompanied by one Arthur Miller. On the morning of February 28, which was the day following the arraignment and the day on which Davidian was shot, Doan and Miller drove north through Bakersfield, Fresno, Merced and on to Oakland. At Fresno they stopped to eat at the California Hotel. Miller went to the offices of a vineyard company in the hotel building where he engaged in a conversation at some time between 11 and 12 o'clock. Doan was not then present. Miller put the departure of Doan and himself from Fresno at 11:25 A.M. The vineyard company representative who talked with Miller indicated that their visit may have terminated just prior to the noon hour. If the hour at which they reached Merced after driving the 56 miles from Fresno could be ascertained, it would furnish an important clue as to the probable time of their departure from Fresno.

Because the Government was unable to proceed under its indictment without Davidian's testimony, Doan and his code-fendant were never brought to trial on that indictment, but in June, 1950, the Grand Jury in the District Court of the Southern District of California, undertook an inquiry and investigation of matters relating to an obstruction of justice arising out of the murder of Davidian. As a part of these investigations, the Grand Jury subpoenaed Doan and he was questioned under oath. He testified that after leaving Fresno on the occasion mentioned, he arrived at Merced at approximately 12:30 to 12:45 P.M. on February 28, 1950, and that he and Miller left Merced in the automobile at 1:15 P.M. Doan said that while in Merced he called on one Georgia Martin at her apartment. He also testified that he had not at any time within two years prior to the date of his testimony before the Grand Jury, possessed any hand weapons, revolvers or automatics; that he had prior to 1941 or 1942 owned a revolver when he operated a cafe in Merced but had not had it since that date. As it appeared that Davidian had been shot with a 7.65 mm. bullet from an automatic pistol, he was asked if he had owned a weapon of that description and testified that a soldier returning from Germany during the Second World War had given him such an automatic which he himself had given to one Gordon Melcher in 1945.

Count I of the indictment was predicated upon Doan's testimony as to the time of his arrival at and departure from Merced, the indictment charging perjury¹ in that his testimony in this regard was corruptly and intentionally false in that his arrival and departure were in truth and in fact an hour later than the time he gave in his testimony.

Count II charged perjury in respect to his testimony as to the giving of the automatic pistol to Gordon Melcher.

Count III charged perjury in his testimony that he had not owned or possessed any hand weapons for two years prior to the Grand Jury investigation, it being alleged in that count that he had owned and possessed two such weapons less than 30 days prior to the date when Davidian was shot.

In connection with this investigation the Grand Jury also subpoenaed Georgia Martin, the person whom Doan had visited during his stay in Merced at the time previously mentioned. Georgia Martin testified (1) that Doan visited her at her apartment between 12:30 and 1 P.M. on the day in question; and (2) that she knew that Doan had left her apartment by 1 o'clock for the reason that she had an appointment at a local beauty parlor for 1 o'clock on that day (February 28), and that she kept it.

Count IV of the indictment charges that this testimony of Georgia Martin was false and perjured and that Doan was guilty of subornation of such perjury² in that he corruptly and feloniously induced and procured Georgia Martin to give such false testimony to the effect that he had left her apartment for his trip to Oakland before 1 P.M. whereas the true time he left her apartment was approximately 2 P.M. and so known to the defendant.

This count further charged that defendant directed that Georgia Martin should testify that the reason she knew that Doan left her apartment before 1 P.M. was that she had the beauty parlor appointment on that day and that she kept that appointment, whereas in truth and in fact she had no such appointment but her beauty shop appointment was on a previous day as was well known to the defendant.

Count V of the indictment charged Doan with corruptly obstructing justice³ in that he induced and attempted to induce Georgia Martin to give this false testimony.

Count II of the indictment was dismissed during the trial. Doan was found guilty under counts I, III, IV and V, and sentenced to serve a term of four years on each count, said periods to run concurrently.

Georgia Martin was the Government's principal witness. She testified with great particularity and circumstantiality as to Doan's arrival at her apartment on February 28, 1950, not at the hour of 12:30, as Doan and she had testified before the Grand Jury, but at the hour of 1:30 on that day, and she testified that he left her apartment on the same day at ten minutes before 2 P.M. She testified that on that day she had no appointment at the beauty parlor although she had had a 1 o'clock appointment which she kept on the preceding day, February 27; that some days later Doan returned to her apartment and made inquiries of her as to whether she had been interviewed by officers of the F. B. I. and with threats and considerable show of violence told her that if any inquiry was made of her she should state that he had arrived at 12:30 and left at 10 minutes to 1 o'clock. He discussed with her the question of whether she had had a beauty parlor appointment on that day. She told him she had not and he told her to get hold of the beauty parlor appointment book and change the records to show that she did, and to report to any person inquiring that she had had that appointment for 1 o'clock on February 28, that she kept the appointment and hence she knew that Doan left her place before 1 o'clock. Her testimony was that she did cause the beauty parlor appointment book to be altered and falsified to show an appointment on February 28; and that later, after she had received her subpoena to testify before the Grand Jury Doan warned her to be sure to tell the Grand Jury the same false account of the hour of his arrival, and of her beauty shop appointment. She also testified to facts which would tend to show that Doan owned two hand weapons of the kind described in the third count within a period of two or three weeks before the date when Davidian was killed.

Appellant contends that the court should have granted his motions for judgment of acquittal on counts, I, III and IV, on the ground that there was not the requisite quantum of proof to support a conviction of perjury or subornation of perjury within the rule of Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118, and of Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed 495, which bars a conviction of perjury on the uncorroborated testimony of a single witness.

With respect to count V, drawn under the obstruction of justice statute, (footnote 3, supra), while appellant concedes that the same rule as to the quantum of evidence was not required to support a conviction, yet he asserts that the judgment of conviction upon that count should be reversed and a new trial ordered because of prejudice which he asserts he suffered by reason of the failure of the court to grant his motion for an acquittal as to counts I, III and IV at the close of the Government's case. He says that that motion should have been granted at that stage of the proceedings, and that if it had been so granted, the appellant could and would have taken the stand in his own defense and would then have been able to deny the testimony of Georgia Martin. He says that as long as counts I, III, and IV remained in the case he could not safely take the stand lest under the rule of Vedin v. United States, 9 Cir., 257 F. 550, he might by testifying in his own behalf, supply the corroboration necessary to satisfy the rule relating to perjury cases. He contends that the court's failure to eliminate these perjury and subornation of perjury counts at the end of the Government's case put him in a delemma where he had either to run the risk of furnishing corroboration lacking on the three counts or to do without the benefit of his own testimony on the fifth count.

We find it unnecessary to consider this contention with respect to the fifth count for the reason that we are satisfied that the Government supplied the requisite quantum of proof under at least one of the other...