Flynn v. United States, 11720.

• Citation: 172 F.2d 12
• Decision Date: 04 February 1949
• Docket Number: No. 11720.,11720.
• Parties: FLYNN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

172 F.2d 12 (1949)

FLYNN v. UNITED STATES.

No. 11720.

United States Court of Appeals Ninth Circuit.

January 10, 1949.

Rehearing Denied February 4, 1949.

Arthur Lee Flynn, in pro. per.

James M. Carter, U. S. Atty. and Ernest Tolin, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

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

STEPHENS, Circuit Judge.

Arthur Lee Flynn was indicted by a United States Grand Jury in four counts for falsely representing himself to be a United States officer, 18 U.S.C.A. § 76.¹ Upon trial he was acquitted upon all counts and subsequently he was indicted in seven counts for perjury, 18 U.S.C.A. § 231² allegedly committed in the course of the trial to which reference has just been made. He was tried upon the perjury accusations by a court and jury, and the jury returned a single verdict which specifically stated that the jury found him guilty of each separate count of the indictment. Thereafter he was adjudged guilty and was sentenced to a federal penitentiary for three years and sentenced to pay a fine of one cent upon each count of the indictment, all terms of imprisonments and all fines to run concurrently. Flynn appealed to this court.

In due course Flynn made a motion to remand the case to the trial court under the authority of Rules 17 (subpœnas) and 28 (expert witnesses) of Criminal Procedure, 18 U.S.C.A.

In support of the motion Flynn has filed a long statement of fact in affidavit form purporting to show his innocence. They are not statements of newly discovered evidence, but are detailed statements which, if material and competent, should have been introduced in the trial. The petitioner requests the issuance of various subpœnas, but unless a new trial is ordered they would be useless. He requests the issuance of a writ of habeas corpus ad testificandum and his release from incarceration and from all consequences of the conviction.

Insofar as the motion is intended as a petition to this court for the issuance of the writ of habeas corpus, it is sufficient to say that this court is without jurisdiction to issue such writ. The motion is denied and the petition is dismissed.

We now give attention to the appeal.

Prior to the opening of the trial, defendant moved the court for a continuance and for subpœnas to issue under Rule 17, Rules of Criminal Procedure, but the motion was denied. At the conclusion of the Government's evidence in chief, defendant made a motion for an acquittal which motion was denied. After the verdict had been returned by the jury, defendant made a motion for a new trial and for arrest of judgment. Both of these motions were denied.

Appellant contends that all of the indictments are bad for the reason that it is not specifically stated in them that the testimony alleged to have constituted perjury is false. We have examined each count of the indictments and the three necessary elements are present in all of them. First, the counts are substantially in the language of the statute; second, the counts adequately inform the accused of the acts and the offenses of which he is charged; and, third, the counts are stated in terms to protect the accused from the danger of being put in double jeopardy.

The appellant bases his contention that the counts of the indictment are bad upon the fact that the word "false" is not used in describing the nature of the testimony alleged to constitute perjury. The indictment is drawn in accord with Rule 7(c), Federal Rules of Criminal Procedure, which we quote in part: "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

It is recited in each count of the indictment that "* * * while so testifying under oath said defendant appellant did wilfully and contrary to such oath state in open court certain material matters which he did not believe to be true." Appellant's testimony is then described and alleged facts are then stated in the indictment which are exactly contrary to the testimony, with the further statement that appellant well knew the alleged facts to be true. In short, if appellant knew the facts, as they were alleged in the indictment, were true, the facts as related by him could not be true. We are of the opinion that this method of alleging the testimony of the accused to be false and corrupt was as effective as though the words "false" and "corrupt" had been used.

It is also claimed that the counts in the indictment are defective because they do not charge that the false testimony was given "feloniously and corruptly" and Hogue v. United States, 5 Cir., 184 Fed. 245, 247 and Wharton's Criminal Law, Vol. 2, § 1552, are cited in support. The indictment in the cited case uses the terms "feloniously and corruptly", but there is no point in the case in reference to them. The case does discuss the requirement that the allegations must clearly inform the accused of the crime with which he is charged and that the falsity and materiality of the testimony must be charged. We have not examined the Wharton reference for the reason that it could not require a federal court to follow any text rule which is contrary to the applicable federal statute.

We hold that the falsity of the testimony given and which is claimed to constitute perjury is sufficiently alleged in the several counts of the indictment. The matter of materiality will be referred to in a subsequent part of this opinion.

Before the date set for the trial of the case, appellant made a motion for the issuance of a subpœna, under Rule 17, Rules of Criminal Procedure, and for a continuance, but the court denied it without prejudice. Before going to trial appellant made a motion that the case be continued because certain letters had not been received or witnesses subpœnæd, and this motion was renewed at the close of the Government's case in chief.³ At the conclusion of the Government's case appellant made a motion in which he requested an instruction of acquittal for lack of sufficient evidence to sustain a verdict of guilty, and after return of the verdict he moved for a new trial and for arrest of judgment upon the same ground and upon the ground that the indictment was wholly bad. All of these motions were denied and we think properly so.

Appellant claims the alleged perjured testimony was not material to the issues being tried and that the testimony in the case does not support the verdict of guilty as to any count of the indictment. There is no denial of the fact that the testimony allegedly perjurous was actually given in the case. The trial at which the alleged perjured testimony was given was upon an indictment containing four counts, each of which charged appellant with impersonating a special agent of the Federal Bureau of Investigation and that in such pretended character he obtained various sums of money from Harry O. Wetzel. It is alleged in the instant case that appellant received the sums of money on the dates mentioned, each sum being alleged in counts one to seven as follows: $15 on November 30, 1946, $10 on December 2, 1946, $35 on December 3, 1946, and $136 on December 3, 1946.

The evidence involves several "impersonation" cases, therefore, for clarity, the case in which the alleged perjury was committed will be referred to as the "F.B.I." impersonation case.

It will be remembered that there was a conviction on each count of the indictment specifically and that the sentence on each conviction is the same and within the statute and ordered to run concurrently. In the circumstances, the judgment cannot be reversed if the judgment as to any one count is valid. In Claassen v. United States, 142 U.S. 140, at page 146, 12 S.Ct. 169, 170, 35 L.Ed. 966 it is stated: "This count the first count of the indictment, and the verdict of guilty returned upon it, being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered." The courts have generally followed this principle and the Claassen case is the source from which many like expressions have flowed. See Samuel v. United States, 9 Cir., 169 F.2d 787 decided by this court August 24, 1948 for full discussion of the subject. See also 40 U.S.Stat. 1181, Federal Rules, Criminal...