Neely v. United States

• Decision Date: 30 April 1962
• Docket Number: No. 17564.,17564.
• Citation: 300 F.2d 67
• Parties: Warren R. NEELY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

300 F.2d 67 (1962)

Warren R. NEELY, Appellant, v. UNITED STATES of America, Appellee.

No. 17564.

United States Court of Appeals Ninth Circuit.

February 26, 1962.

Certiorari Denied April 30, 1962.

Lewis, Roca, Scoville, Beauchamp & Linton, John P. Frank, Phoenix, Ariz., for appellant.

C. A. Muecke, U. S. Atty., Sheldon Green, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.

Certiorari Denied April 30, 1962. See 82 S.Ct. 1030.

HAMLIN, Circuit Judge.

Appellant, Warren R. Neely, appeals to this court from a conviction by a jury on each of two counts of an indictment charging him with violations of 18 U.S. C.A. § 1001.¹ The court imposed the same sentence upon each count and ordered that the sentences run concurrently. Jurisdiction is in this court pursuant to 28 U.S.C.A. § 1291.

When the evidence is viewed in the light most favorable to the government,² it shows the following facts. On December 14, 1954, appellant leased 1280 acres of land near Chandler, Arizona, for a term of three years at a rental of $55,000 per year. The lease contained an option in favor of appellant to purchase the property which could be exercised between November 1, 1957, and December 15, 1957, for the sum of $165,000. In his 1955 tax return appellant claimed the sum of $55,000 as a business expense deduction upon his income. In 1957, before Neely had attempted to exercise the option in the lease, Internal Revenue Agent Albert was assigned to review Neely's tax return for 1955. He met Neely on July 17, 1957, in the office of and in the presence of one Campbell who was Neely's accountant. Albert told Neely that the main matter under discussion was the rental deduction of $55,000 taken by Neely. Albert testified that he asked Neely if the lease contained an option to purchase and that Neely answered that it did not. Albert testified that he then said "`Good' because if it had contained an option to purchase, then the lease might be considered as a purchase agreement, which in that case the rental deduction of $55,000 would not be allowed, but would be considered as a part payment of the purchase price." Neely assured Albert that there was no option to purchase clause in the lease. Albert told Neely that it would be necessary to obtain a copy of the lease agreement in order to substantiate his statement and in order that Albert could attach the copy to the body of his report. In that way the rental deduction could be allowed to Neely. Neely said that he would obtain a copy of the lease agreement. He then went to the attorney who had prepared the original lease and had the attorney prepare a new lease by copying all the original provisions except those which made reference to an option to purchase. In preparing this new document the attorney, at Neely's direction, made red marks around the provisions relating to the option to purchase in order to indicate what parts of the lease were to be deleted from the new "copy". The attorney testified that he suggested the omission of the notarized part of the lease since he didn't know any notary who would notarize the "copy" of the agreement made in 1957 which was antedated to 1954. A few weeks later Albert again met Neely in his accountant's office. Neely gave Albert a copy of the newly prepared lease agreement which contained no reference to the option to purchase. After looking it over Albert said to Neely, "There doesn't seem to be any indication of an option here, therefore, I can allow the rental deduction and close the case."

Count 1 of the indictment charged appellant with having given to the Internal Revenue Agent the lease agreement which omitted the provisions of the option to purchase, and charged that appellant did "wilfully and knowingly conceal and cover up, by a trick and scheme, a material fact in a matter within the jurisdiction of the Internal Revenue Service of the United States Treasury Department, in violation of 18 U.S.C.A. § 1001."

Count 2 of the indictment charged that the appellant did "wilfully and knowingly make a false and fraudulent statement and representation in a matter within the jurisdiction of the Internal Revenue Service of the United States Treasury Department, in that he orally stated to Nathan Albert, Internal Revenue Agent, that there was no option to purchase involved in said NEELY's lease * * * whereas, in truth and in fact * * * NEELY well knew, the lease agreement in effect at the time such oral statement was made contained an option to purchase."

Appellant first contends that the court erred in failing to grant the motion for acquittal because the Government had failed to sustain its burden of proof. In making this argument appellant points out that Albert testified that in the initial conversation he asked appellant if the lease contained an option to purchase and that appellant denied that it did, but that appellant testified that no such question was asked him and that the other person present — his accountant — testified that he had no recollection of this occurrence. Appellant contends that the perjury rule requiring confirmation by two witnesses or corroboration in addition to one witness applies,³ and that since Albert's testimony concerning his conversation with appellant is uncorroborated it is insufficient to support the charges made. It is admitted by appellant, however, that this court has held to the contrary on several occasions,⁴ and that the Tenth Circuit has followed this circuit upon the same subject.⁵ Relying on statements appearing in the dissenting opinion of the Tenth Circuit case,⁶ the appellant urges us to reconsider our prior decisions on this point and to adopt a different view. This we decline to do. We adhere to our prior decisions and we hold that the perjury corroboration rule does not apply to prosecutions under 18 U.S.C.A. § 1001. Fisher v. United States, 254 F.2d 302, (9th Cir. 1958); De Casaus v. United States, 250 F.2d 150 (9th Cir. 1957); Fisher v. United States, 231 F.2d 99 (9th Cir. 1956); Todorow v. United States, 173 F.2d 439 (9th Cir. 1949). See also United States v. Killian, 246 F.2d 77 (7th Cir. 1957) and Travis v. United States, 269 F.2d 928 (10th Cir. 1959), rev'd on other grounds, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961).

In addition to his contention for the perjury corroboration rule the appellant argues that when a statement alleged to be in violation of section 1001 has not been made under oath and is proved only by the testimony of a single witness which testimony is controverted by the testimony of another witness there is insufficient proof of an offense under section 1001 since one witness' word is as good as another's. In other words the appellant argues that one oath (that of agent Albert herein) against another contrary oath (that of appellant) is not sufficient to prove that the statement for which the appellant was indicted was made. We cannot agree. One witness' oath is not as good as another's if the jury disbelieves the one and believes the other.

In Marzani v. United States, 83 U.S. App.D.C. 78, 168 F.2d 133 (1948) affirmed by an equally divided court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431 (1948), the appellant contended that the predecessor statute of section 1001 did not apply to statements made at a private conference which were not required to be made, which were not made under oath or which were not reduced to writing. The testimony of the only two witnesses (one of whom was the defendant) was conflicting. The court said:

"It is true, as the appellant says, that the statements were not under oath and were not stenographically transcribed; that the interview was at appellant\'s request; and that there were only two participants in the conference * * *. However, it appears with equal clarity that Mr. Panuch was appellant\'s superior in office, that he had requested appellant\'s resignation, and that the purpose of the interview was to afford the appellant an opportunity to discuss the requested resignation and the charges upon which it was based. The pertinent statute does not limit the offense to formal statements, to written statements, or to statements under oath. It applies to `any false or fraudulent statements or representations, * * * in any matter within the jurisdiction of any department or agency of the United States.\'"⁷

Statements for which there can be convictions under section 1001 are not limited to those required to be made by law or regulation.⁸ Since such voluntary statements made to government agents can be made under an infinite variety of circumstances and since many of these circumstances would undoubtedly include the making of false statements in the presence of only one person, there should be no prohibition against proof of the circumstances under which a false statement was made by the testimony of the person to whom the statement was made. That one person to whom a false statement is made can prove the making of the statement by his testimony clearly follows from the decisions which hold that the perjury corroboration rule does not apply to cases involving section 1001.⁹ Furthermore, the individual witness' credibility is subject to the scrutiny of court and jury, and such testimony is not to be held insufficient to prove the fact merely because the defendant denies the truth of the testimony. Thus, we hold that the making of a false statement which is covered by section 1001 can be proved by the testimony of the person to whom the statement is made even though such testimony is uncorroborated by other witnesses and even though such testimony is contrary to that of the defendant.

Appellant next contends that the conviction under Count 1 of the indictment is against the weight of the evidence. There is no merit to this contention. Appellant argues that he was only asked to produce a copy of the lease and that nothing was said about a purchase option. He says that in light of this...