Keeble v. United States

• Decision Date: 16 August 1965
• Docket Number: No. 17730.,17730.
• Citation: 347 F.2d 951
• Parties: Charles KEEBLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.2d 951 (1965)

Charles KEEBLE, Appellant, v. UNITED STATES of America, Appellee.

No. 17730.

United States Court of Appeals Eighth Circuit.

July 9, 1965.

Rehearing Denied August 16, 1965.

Raymond A. Bruntrager, of Stewart & Bruntrager, St. Louis, Mo., for appellant.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and RIDGE, Circuit Judges, and HENLEY, District Judge.

HENLEY, District Judge.

This is an appeal from a conviction of the crime of perjury. The one count indictment charged in substance that on or about October 5, 1962, at Ellington, Reynolds County, Missouri, in the Southeastern Division of the Eastern District of that State, appellant, Charles Keeble, willfully gave false testimony as to a material matter in the course of a hearing being conducted by a Trial Examiner of the National Labor Relations Board in violation of 18 U.S.C.A. § 1621. The case was tried to a jury which found appellant guilty. A motion for a new trial was denied, and appellant was sentenced to the custody of the Attorney General for a period of thirty months. This appeal followed.

The record reflects that on May 9, 1962, appellant was secretary-treasurer of Local 916 of the International Hod Carriers and Common Laborers Union of America. That Union was involved in a dispute with Owen Langston, a contractor who was performing work in the vicinity of Ellington, and on the date just mentioned about 8 o'clock in the morning the dispute between Langston and the Union erupted into violence.

Subsequently, Langston filed an unfair labor practice complaint against the Union with the National Labor Relations Board. The complaint was investigated, and a hearing before Trial Examiner Eugene Dixon was held at Ellington on October 5, 1962, the date of appellant's alleged offense.

In the course of the hearing it became material to inquire whether appellant was at the scene of the disturbance on May 9 while it was going on. He testified under oath that he was not present at the time but was in fact several miles away at the Taum Sauk Dam Project. It is this testimony which the indictment charged was false and perjurious.

The evidence produced in the course of the trial was in sharp conflict, and appellant does not contend that it was insufficient to sustain the verdict. For reversal appellant contends that error was committed in the reception of a certain item of documentary evidence; that the trial judge in the presence of the jury misquoted the testimony of a certain witness, and that the alleged misquotation, while inadvertent, was prejudicial to appellant; and that the closing argument of the Assistant United States Attorney was so improper and prejudicial as to call for a reversal.

As part of its case in chief the Government offered in evidence and the trial court admitted over the objection of appellant a "Visitors Log" maintained at the Taum Sauk Project for May 9, 1962. The bottom three lines of the first sheet of that exhibit reflect that on May 9, three men, including appellant, were admitted to the project area at 10:40 A.M., which was substantially later than the time at which the disturbance involving Langston and the Union had taken place. The exhibit indicates that the three men who entered were Arley Weekley, a carpenter, a Mr. Wilson, a Union representative, and appellant, who was also described as a Union representative. The exhibit reflects that appellant and Wilson left the project at 12:30 P.M.

As foundation for the introduction of the log, the Government called as witnesses John E. Barker, the Project Manager of the Taum Sauk Project, and Everett Crawford, a guard who was on duty at the main gate of the Project from 6:00 A.M. to 2:00 P.M. on May 9, and who actually made the log entries reflecting the arrival and departure of appellant.

The gist of the testimony of Mr. Barker was that the log was kept in the regular course of the contractor's business, that the entries were made by the guard on duty at the main gate, that at the close of each day the log would be turned over to one Palmer who was in charge of personnel and security at the Project, and that subsequently Palmer would turn the logs over to the witness for filing and safekeeping. Mr. Barker produced the log in question in obedience to a subpoena duces tecum.

Mr. Crawford testified that he was on duty during the period above stated, and that he made the entries in the log showing the admission of Weekley, Wilson, and appellant at 10:40 A.M. On cross-examination Crawford admitted he had no personal recollection of the events reflected by the log; that at times there would be some time lapse between a visitor's entering the Project and the recording of the entrance and time thereof on the log. He was shown a statement which he had given prior to the trial in which he stated that the lapse might be as much as an hour or two, but in his testimony he insisted that it would not have been that log. He was shown certain erasures appearing on the line immediately above the one on which appellant's name appeared and was unable to explain them. He admitted that it was possible that appellant entered the Project at least somewhat earlier than the time shown in the log.

The log was offered for the purpose of proving that appellant entered the Project at 10:40 A.M. on May 9 and not at some earlier hour. The log was, of course, hearsay, and appellant objected to its admission on that basis.

In support of its contention that the log was admissible the Government relies on the Federal Business Records Act, as amended, 28 U.S.C.A. § 1732(a). That statute is as follows:

"§ 1732. Record made in regular course of business; photographic copies.

"(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

"All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

"The term `business,\' as used in this section, includes business, profession, occupation, and calling of every kind."

Appellant argues that the log is not such a document as falls within the terms of the statute and, further, that in any event the concessions of Crawford in the course of his cross-examination so impugned the reliability of the log as to render it inadmissible. We do not agree.

That the log consists of a series of "business entries" and falls within the scope of the statute seems clear. The contractors on the Taum Sauk Project had a legitimate interest in recording visits to the Project and in knowing when visitors entered and left the premises, and according to the testimony of Barker and Crawford those records were kept regularly and as part of the contractors' regular routine of business. That the contractors may have been more interested in knowing who came and went than in knowing when they came and went is not material. See Finnegan v. United States, 8 Cir., 204 F.2d 105; United States v. Moran, 2 Cir., 151 F.2d 661, 167 A.L.R. 403; United States v. General Motors Corporation, 7 Cir., 121 F.2d 376.

Viewing the testimony of Crawford on cross-examination in the light most favorable to appellant, we think that his concessions about the log entries which have been mentioned simply went to the weight to be given to the log rather than to its admissibility. Cf. Thomas v. Hogan, 4 Cir., 308 F.2d 355; LaPorte v. United States, 9 Cir., 300 F.2d 878; United States v. Kimmel, 2 Cir., 274 F.2d 54.

Hence, we conclude that the trial...