Hsu v. United States

• Decision Date: 29 September 1978
• Docket Number: No. 11342.,11342.
• Citation: 392 A.2d 972
• Parties: Shao T. HSU, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 972

392 A.2d 972

Shao T. HSU, Appellant, v. UNITED STATES, Appellee.

No. 11342.

District of Columbia Court of Appeals.

Argued December 8, 1977.

Decided September 29, 1978.

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Barry S. Simon, Washington, D. C., with whom David Povich, Washington, D. C., was on the brief, for appellant.

Jonathan Lash, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Stanley M. Weinberg, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, KERN and FERREN, Associate Judges.

FERREN, Associate Judge:

On June 17, 1976, the grand jury indicted appellant, Shao T. Hsu, for one count of perjury, D.C.Code 1973, § 22-2501.¹ After a two-day trial on September 9 and 10, 1976 — at which Dr. Hsu represented himself — the jury returned a verdict of guilty. On September 22, 1976, following the denial of his motion for a new trial, the court sentenced Dr. Hsu to prison for a term of twenty months to eight years. Dr. Hsu now appeals, maintaining that (1) the indictment was deficient, (2) the trial court admitted much irrelevant and prejudicial evidence, (3) the evidence did not satisfy the "two-witness" requirement for perjury convictions, and (4) he did not validly waive his Sixth Amendment right to assistance of counsel. Because we cannot discern from the record a legally sufficient — a "knowing and intelligent" — waiver of appellant's right to counsel, we reverse the conviction and remand for a new trial.

I. Facts and Proceedings to Date

On December 12, 1976, David Marshall, Esq., a supervising attorney at Southeast Legal Clinic, filed a civil landlord-tenant action against Dr. Hsu on behalf of Patsy Thomas, a tenant in a building he owned. The complaint sought to compel Dr. Hsu to remedy a number of substandard conditions in the Thomas apartment. Soon thereafter, on December 14, Mr. Marshall personally served on Dr. Hsu at his home an application and supporting papers for a temporary restraining order. At the same time, according to Mr. Marshall, he informed Dr. Hsu that he intended to take the application before a judge the next morning.

When he arrived at the Superior Court Clerk's office in the Pension Building on the morning of December 15, Mr. Marshall encountered Dr. Hsu, who apparently was present on other legal business. Because he had amended the application in certain details, Mr. Marshall handed revised copies of his pleadings to Dr. Hsu, then proceeded alone to Judge Hyde's chambers. (It appears that other legal business kept Dr. Hsu from going along.)

After obtaining the judge's signature on the temporary restraining order, Mr. Marshall returned to the Pension Building, again encountering Dr. Hsu. He also saw District of Columbia Housing Inspector James Johnson, showed the temporary restraining order to him, pointed out that it was an "order," and said that he wanted Mr. Johnson to witness service upon Dr. Hsu. Mr. Johnson agreed, then observed Mr. Marshall hand the paper to appellant, who looked at it, then placed it with other papers nearby. Mr. Marshall certified on the original that he had effected service of the temporary restraining order at 11:30 a. m. on December 15.

When Dr. Hsu did not make repairs in accordance with the court order, Mr. Marshall sought an order to show cause why Dr. Hsu should not be held in contempt. On January 5, 1976, Judge Hyde conducted a hearing on both the order to show cause and on plaintiff's motion for a preliminary injunction. During the hearing, Dr. Hsu denied receiving the restraining order from "Marshall" or anyone else. He denied ever hearing about the TRO prior to a phone call from the judge's clerk, informing him that he should be present in court on January 5. (The date of this call was not specified, but Dr. Hsu implied that it was close to the hearing date.) The court evidently did not believe Dr. Hsu, for it found him contumacious and fined him $100.00.

The perjury indictment in the present case resulted from Dr. Hsu's denial of receipt of the TRO. The grand jury charged:

On or about January 5, 1976, within the District of Columbia, Shao T. Hsu, having taken an oath before a competent tribunal, that is, the Honorable DeWitt S. Hyde, an Associate Judge of the Superior Court of the District of Columbia, sitting in the Civil Branch of the Superior Court in Civil Action No. 11294-75, in a case in which a law authorized such an oath to be administered, that he would testify truly, did unlawfully, wilfully, knowingly and contrary to such oath, state material matters which he did not believe to be true, that is:

"THE COURT: you have heard the testimony of Mr. Johnson on the question of service of this temporary restraining order. What do you have to say about it?

MR. HSU: . . . I have never received . . . anyway, I have never received any order from Marshall. I have never received it. If I knew about the order, I would be looking for it, but the first time I knew about it was on that day the Clerk of Judge in Chambers called me and said I should come down here. That's the first time I knew anything about it. That's the first time I ever heard about the order. . . . But I have never received any restraining order from anybody."

At his arraignment, Dr. Hsu expressed a desire to represent himself, and the court acquiesced. The jury convicted him; he now appeals.

II. Adequacy of the Indictment

In assessing the sufficiency of an indictment, we must deal with three prescribed considerations: the pertinent constitutional criteria, derived from the Fifth and Sixth Amendments; the general rule governing the form of indictments, Super.Ct.Cr.R. 7(c); and a special rule on perjury indictments, D.C.Code 1973, § 23-323.

As a constitutional matter, an indictment must contain all the elements of the offenses charged and sufficiently apprise the defendant of the charges so that he or she can prepare to meet them. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Nichols v. United States, D.C.App., 343 A.2d 336, 340 (1975). Further, it must be clear enough, when coupled with the record of the proceedings, to preclude double jeopardy; i. e., the nature of the acquittal or conviction based on the indictment must be sufficiently clear to bar future prosecution for the same crime. Russell v. United States, supra, 369 U.S. at 764, 82 S.Ct. 1038; Nichols v. United States, supra at 340. As elaborated below, Dr. Hsu's principal argument on appeal is that the indictment is not sufficiently precise to satisfy these criteria.

If Dr. Hsu is correct, the constitutional validity of Super.Ct.Cr.R. 7(c), as usually interpreted, is called into question.² Rule 7(c), along with its identical federal counterpart, represents the modern approach to the pleading of crimes. Nichols v. United States, supra at 342. It purports to satisfy the constitutional mandate of specificity, see Russell, supra, while eliminating the burden and inefficiency of overly detailed pleading requirements. This modern view eschews emphasis on technical requirements and deficiencies, casting some of the burden on a defendant to pursue additional details, if needed, by way of a bill of particulars. Super.Ct.Cr.R. 7(f). See United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Nichols v. United States, supra at 343; Hall v. United States, D.C.App., 343 A.2d 35, 37-38 (1975); Gebhard v. United States, 422 F.2d 281, 285 (9th Cir. 1970).

According to appellant, the overall validity of Rule 7(c) need not be addressed. A constitutional application of the rule — the constitutional requirement of specificity — will be assured by the gloss of the special provision on perjury indictments in the Criminal Procedure chapter of D.C.Code 1973, § 23-323.³ Appellant contends that this statute, in calling for "the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned," id., mandates that the indictment highlight the falsity by spelling out, in detail, the government's version of the truth, without regard to the arguably less stringent requirements of Super.Ct. Cr.R. 7(c). We conclude that appellant is incorrect. Section 23-323 is purely procedural, cf. Young v. United States, 94 U.S. App.D.C. 54, 56, 212 F.2d 236, 238, cert. denied, 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137 (1954) (construes another clause in predecessor statute), and there is no legislative history that would add any credence to the argument that when the government indicts for perjury, § 23-323 modifies the balance struck between specificity and conciseness in Super.Ct.Cr.R. 7(c). We hold that as to the allegations of falsity required for a valid perjury indictment, the procedural requirements of § 23-323 and Super. Ct.Cr.R. 7(c) are the same.

The question, therefore, is whether the indictment meets the procedural requirements of these rules and, in turn, the constitutional requirements of Russell, supra. We can best pursue this inquiry by taking up appellant's specific assertions of error.

A. Is Falsity Alleged?

Appellant contends, first, that the indictment fails to allege falsity and therefore violates the rule that an indictment must contain the essential elements of the crime charged. The elements of perjury are: (1) an oath, (2) before a competent person or tribunal; (3) a statement of false, (4) material facts; and (5) knowledge of the falsity. D.C.Code 1973, § 22-2501. See United States v. Debrow, supra, 346 U.S. at 376, 74 S.Ct. 113; United States v. Young, 113 F.Supp. 20, 21 (D.D.C.), aff'd, 94 U.S. App.D.C. 54, 212 F.2d 236 (1953), cert. denied, 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137 (1954). Because actual falsity is necessary to conviction, see Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), appellant...