Gebhard v. United States

• Decision Date: 09 February 1970
• Docket Number: No. 22980.,22980.
• Parties: Edwin Nathaniel GEBHARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.2d 281 (1970)

Edwin Nathaniel GEBHARD, Appellant, v. UNITED STATES of America, Appellee.

No. 22980.

United States Court of Appeals, Ninth Circuit.

February 9, 1970.

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Harold Ungerleider (argued), Miami Beach, Fla., Alan Saltzman, Hollywood, Cal., for appellant.

David R. Nissen (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and SMITH,^* District Judge.

DUNIWAY, Circuit Judge:

On September 1, 1967 the federal grand jury for the Central District of California indicted Gebhard on eight counts of perjury. On November 30, 1967 the original indictment was superseded and Gebhard was charged with thirty-two counts of perjury, the original eight plus twenty-four new counts. The indictment resulted from testimony given by Gebhard before a grand jury investigating cheating at gambling in the Los Angeles Friars Club. Of the thirty-two counts finally alleged, Gebhard was convicted on fifteen, the government dropped four, nine were dismissed by the judge, and he was acquitted on the rest. The district court sentenced him to various terms on the different counts, the shortest being six months and the longest two years. The sentences are to run consecutively and the total sentence is seventeen years. Gebhard appeals. We affirm in part and reverse in part.

Gebhard was one of many witnesses called before the grand jury in the summer of 1967 during its investigation of illegal card games at the Friars Club. The first two times Gebhard appeared before the grand jury he invoked his privilege against self-incrimination. He was then taken before the District Judge who entered an order compelling Gebhard to testify under a grant of immunity. Gebhard returned to court and gave testimony on August 10, 17 and 31. Gebhard was questioned about his part in the installation and operation of electronic devices which were placed in the Friars Club to enable gamblers to fleece fellow club members. Peek holes were made in the ceiling of the card rooms; then an observer stationed in the attic observed the players' cards and communicated his knowledge to one of the players by means of electronic devices. It was Gebhard's testimony about these matters and his relationship to various of the gamblers ultimately charged that led to his perjury indictment.

Gebhard raises six questions on this appeal. Each will be considered separately.

1. Cruel and unusual punishment.

Gebhard contends that a sentence of seventeen years for perjury constitutes cruel and unusual punishment in violation of the Eighth Amendment. It is true that this sentence is far larger than those normally given for perjury. It is also true that Gebhard received a much larger sentence for lying about what happened at the Friars Club than did those who were ultimately indicted by the grand jury for substantive offenses. However, there is another aspect of the case. Gebhard was under a grant of immunity during the course of his testimony He chose to lie after being given protection from any prosecution that might have been generated by his testimony.

The statute involved in this case, 18 U.S.C. § 1621,¹ provides for sentences of up to five years on each count. Thus it is conceivable that Gebhard could have received a sentence of as high as seventy-five years under the fifteen counts on which he was convicted. Instead, he was given sentences of from six months to two years on the various counts. The fifteen different sentences, to run consecutively, total seventeen years.

The settled rule is that appellate courts will not change a sentence which falls within the limits of the statute. See Bryson v. United States, 9 Cir., 1959, 265 F.2d 9, 13 (the sentence, being within the limits of the statute, will not be disturbed on the grounds that it is cruel and unusual punishment); Pocatello v. United States, 9 Cir., 1968, 394 F.2d 115; McCartney v. United States, 9 Cir., 1967, 382 F.2d 116; Jones v. United States, 1963, 117 U.S.App.D.C. 169, 327 F.2d 867. We cannot hold that the sentences, permitted by 18 U.S.C. § 1621, are cruel and unusual punishment merely because they were imposed as consecutive sentences.

2. Insufficiency of the indictment.

Gebhard contends that the indictment should have been dismissed because it did not sufficiently allege proper materiality. The indictment does allege that Gebhard "did unlawfully, knowingly and willfully, and contrary to said oath state material matter which he did not believe to be true, * * *" (Emphasis added) The crux of this argument is that the indictment is insufficient because it failed to state the nature of the grand jury's investigation. It is true that the indictment did not state the nature of the grand jury's investigation. The relevant portion of the indictment is reproduced in the margin.²

The general rule is that the materiality requirement of a perjury indictment may be met by a general statement that the matter was material. Woolley v. United States, 9 Cir., 1938, 97 F.2d 258; Paternostro v. United States, 5 Cir., 1962, 311 F.2d 298; Bilderback v. United States, 5 Cir., 1957, 249 F.2d 271; Williams v. United States, 5 Cir., 1957, 239 F.2d 748; Travis v. United States, 10 Cir., 1941, 123 F.2d 268. There is also authority in this circuit that an indictment for perjury which follows the wording of the statute is sufficient, Vuckson v. United States, 9 Cir., 1966, 354 F.2d 918, 922; Arena v. United States, 9 Cir., 1955, 226 F.2d 227. See also United States v. Debrow, 1953, 346 U.S. 374, 377, 74 S.Ct. 113, 115, 98 L.Ed. 92 where the Court said, "The charges of the indictments followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly informed the defendants of that with which they were accused, * * *"

Gebhard relies on United States v. Cobert, S.D.Cal., 1964, 227 F.Supp. 915. In that case Judge Byrne's opinion acknowledged the general rule that the materiality requirement can be met by a general statement that the matter was material. He then distinguishes a number of cases applying this rule (including those cited above) by showing that there was more information in the indictments in those cases than mere allegations of materiality. Judge Bryne was concerned that a defendant would not be well enough informed to prepare a defense.³

In the present case, we feel that no harm could have come to the defendant because of a failure to state the nature of the grand jury's investigation in the indictment. First, assuming that he did not know what the nature of the grand jury's investigation was after appearing before it five times, it seems clear that merely by reading through the thirty-two counts of the indictment, Gebhard could have ascertained the nature of the investigation, i. e., crooked gambling at the Friars Club. The purpose of an indictment is to inform a defendant about the charges against him so he can defend himself. In a perjury trial, assuming that, as in this case, the indictment lists the questions asked and the answers given, there is little else needed to enable the accused to prepare a defense. He knows that the questions have been asked, and he is told that the government believes his answers were false. He must be prepared to defend his answers. Under these circumstances the indictment fairly warned Gebhard of the charges against him. We see no prejudice from the failure to include the nature of the grand jury's investigation. Any ambiguity in the indictment could have been cleared up by a request for a bill of particulars under F.R.Crim.P. 7 (f) and this, in fact, was done.

3. Selection of the jury.

Gebhard says that the selection of both the grand and petit juries was unconstitutional because they did not involve an adequate cross-section of the community. The juries were selected at random from the telephone directory. Gebhard lauds the new federal jury law⁴ which requires juries to be selected from voter registration lists, as a system that avoids blue ribbon and key man juries. Random selection from the telephone directory also substantially avoids both of these problems. Juries selected from telephone directories have been found constitutional in the following cases: Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (jury selected from city directories, church lists, and telephone directories); Local 36 of International Fishermen and Allied Workers v. United States, 9 Cir., 1949, 177 F.2d 320, 341; Billingsley v. Clayton, 5 Cir., 1966, 359 F.2d 13. We find nothing unconstitutional in the method of jury selection.

4. Sufficiency of the evidence to show that the testimony was given under oath.

Gebhard contends that there was insufficient proof to establish that his testimony was given under oath. 18 U.S.C. § 1621 requires that the false testimony be given while the speaker is under oath. Gebhard testified on three different days, the 10th, 17th, and 31st of August. As to the 10th of August, the court reporter, Mr. Raven, could not remember of his own knowledge that the oath had been given. However, both his notes of the proceeding and the subsequently typed transcript show that Gebhard was sworn. It is less clear that the oath was administered on the 17th of August. The court reporter's notes do not indicate it although, the typed transcript of the hearing states that Gebhard was sworn again. It is clear from the record that the oath was again administered on August 31, the court reporter testified that she recalled the oath being administered.

There was sufficient evidence for the jury to find that Gebhard had been sworn on the first day, the 10th of August. Subsequent testimony was all part of the same hearing, and Gebhard was bound by his original oath. Thus regardless of whether or not Gebhard was resworn on the 17th of August, he remained bound by the oath he had given on the 10th....