Fisher v. United States

• Decision Date: 02 July 1958
• Docket Number: No. 15581.,15581.
• Citation: 254 F.2d 302
• Parties: Avalo Allison FISHER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

254 F.2d 302 (1958)

Avalo Allison FISHER, Appellant, v. UNITED STATES of America, Appellee.

No. 15581.

United States Court of Appeals Ninth Circuit.

April 9, 1958.

Rehearing Denied July 2, 1958.

R. Max Etter, Spokane, Wash., for appellant.

Charles P. Moriarty, Bruce J. Terris, Philip R. Monahan, Asst. U. S. Attys., Seattle, Wash., for appellee.

Before HEALY, FEE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Avalo Allison Fisher appeals from a judgment of conviction on four counts of a six-count indictment charging violations of the False Statements Act, 18 U.S.C.A. § 1001. He contends here that the perjury corroboration rule should have been applied, that the counts of the indictment were duplicitous, and that improper cross-examination of a character witness resulted in irreparable prejudice.

In 1951, 1952, and 1953, Fisher was an executive board member of District 23, Local 93, International Woodworkers of America. In order for that organization to have access to the processes of the National Labor Relations Board, it was necessary for Fisher to annually file with the board a noncommunist affidavit.¹ He filed the required affidavits for each of those years.

An indictment consisting of six counts was thereafter returned against Fisher, charging him with having violated the False Statements Act, in making and filing these affidavits. In count I, he was charged with having falsely attested in his 1951 affidavit that he was not, as of the date of the affidavit, a "member" of the Communist party. Count II charged that he falsely attested in the same affidavit that he was not "affiliated" with the party. Counts III and IV made similar charges with regard to the 1952 affidavit, and counts V and VI made the same charges with respect to the 1953 affidavit.

Following a jury trial, Fisher was acquitted on counts V and VI, and found guilty on counts I to IV. A judgment was entered accordingly, and he was sentenced to five years imprisonment on each of the four counts the terms to run concurrently. Fisher appealed. This court set the judgment aside and granted a new trial, because of errors relating to the exclusion of evidence and instructions to the jury. Fisher v. United States, 9 Cir., 231 F.2d 99.

Fisher was thereafter retried on counts I to IV. On March 21, 1957, he was again convicted on these counts and was once more sentenced to five years imprisonment on each count, the terms to run concurrently. The present appeal is from this second conviction.

The first question which appellant presents is whether the perjury corroboration rule applies to this case involving the False Statements Act.² This rule bars a conviction for perjury on the uncorroborated testimony of one witness.³

Contending that the perjury corroboration rule should have been applied, appellant argues that the trial court erred in refusing to give his requested instruction on the matter. He also urges that the evidence was not of the kind required by the perjury rule, and is therefore insufficient to support the verdict.

This precise question was presented and considered on the previous appeal. We there said, 231 F.2d at page 106:

"The question is a close one, but the reasons behind the perjury rule do not seem applicable. The trial court did not err."⁴

Appellant acknowledges that the question was determined adversely to him on the prior appeal. He urges us, however, to reconsider the issue at this time. In this connection, our attention is called to the more recent case of Gold v. United States, 99 U.S.App.D.C. 136, 237 F.2d 764, involving a similar prosecution.

In the Gold case, an En Banc order was entered affirming a conviction by an equally divided court, and reserving for each judge the right to file a "statement of his vote and his reasons." Circuit Judge Bazelon was the only judge of the court to file such a statement. It was his view that a prosecution for "false statement" under § 1001 is virtually identical with one for "perjury," under § 1621, and that the same rule should therefore be applied in prosecutions under either section.⁵

The same reasons and considerations which are discussed in Judge Bazelon's well-documented statement were advanced in this court on the prior appeal. This is likewise true, in substantial respect, with reference to all of appellant's arguments on the point presented on this second appeal. We therefore do not feel warranted in departing from our former ruling.⁶

The second question which appellant presents is whether the two counts with regard to each affidavit are prejudicially duplicitous of each other. The first count directed to a particular affidavit charges falsity with respect to the denial of membership in the Communist party. The second count directed to a particular affidavit charges falsity with respect to the denial of affiliation with the party.

The paired counts are duplicitous of each other, appellant argues, since a person cannot conceivably be a "member" of an organization, and at the same time be "affiliated" with it. Because of this, it is contended, the trial court erred in denying appellant's motion to require an election of counts, and in failing to give a requested instruction on the point.

Without explicitly ruling that the counts were duplicitous, we said, in our prior opinion (231 F.2d at page 103):

"Doubt should be resolved against turning a single transaction into a multiple offense."

But this court then went on to say:

"However, appellant was only sentenced to five years on each count to run concurrently. The attack on splitting the cause of action would leave at least one good count for each of the three years. This alone does not justify reversal. See Kiyoshi Hirabayashi v. United States, 1943, 320 U.S. 81, 85, 105, 63 S.Ct. 1375, 87 L.Ed. 1774; Pinkerton v. United States, 1946, 328 U.S. 640, 641-642 note 1, 66 S.Ct. 1180, 90 L.Ed. 1489. * * *"

The sentences imposed after the retrial are identical with those imposed after the first trial — five years imprisonment on each count, the terms to run concurrently. It follows that, for the reasons stated in our earlier opinion, the failure at the second trial to require an election of counts, or to give the requested instruction, was not prejudicial error.

The final question which appellant here submits has to do with the concededly improper cross-examination of one of his character witnesses.

Appellant's main character witness, Murle C. Hitchcock, was one of three members of a partnership which then employed appellant. On cross-examination, it was developed that when Fisher approached Hitchcock, about fifteen days before the first trial, and asked him to testify as a character witness, Hitchcock was with A. W. Morgenthaler, one of his partners. The cross-examination further disclosed that, at that time, Fisher also asked Morgenthaler to provide character testimony. The following cross-examination then occurred:

"* * * Q. Do you recall what happened when he asked Mr. Morgenthaler to testify for him? A. Mr. Morgenthaler has a very bad heart condition and he thought it might upset him.

"Q. Do you recall that when he asked Mr. Morgenthaler to testify for him, that Mr. Morgenthaler said that, `If you will look me in the eye and tell me you were not a member of the Communist Party, I will come down there\'? A. No, sir.

"Q. You were not present when that occurred? A. No, sir."

Counsel for appellant then moved that the quoted cross-examination be stricken "unless counsel is prepared to call Mr. Morgenthaler down here for purposes of impeachment." Counsel for the government stated that he would call Morgenthaler. The court then told the jury that the testimony concerning the statement made by Morgenthaler might be stricken if Morgenthaler was not produced. The jury was instructed that, if this evidence was ultimately stricken, they were to give no consideration to it whatsoever.

During a jury recess which followed, counsel for appellant added some further objections to the cross-examination in question. During the colloquy which followed, the court ruled that the questioned...