La Placa v. United States

• Decision Date: 15 December 1965
• Docket Number: No. 6567.,6567.
• Citation: 354 F.2d 56
• Parties: Charles P. LA PLACA, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

354 F.2d 56 (1965)

Charles P. LA PLACA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6567.

United States Court of Appeals First Circuit.

Heard November 3, 1965.

Decided December 15, 1965.

Certiorari Denied February 28, 1966.

Francis J. DiMento, Boston, Mass., with whom James J. Sullivan, Jr., and DiMento & Sullivan, Boston, Mass., on brief, for appellant.

John Paul Sullivan, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., on brief, for appellee.

Before ALDRICH, Chief Judge, and HASTIE^* and McENTEE, Circuit Judges.

Certiorari Denied February 28, 1966. See 86 S.Ct. 932.

McENTEE, Circuit Judge.

Defendant was convicted of giving perjured testimony in violation of 18 U.S.C. § 1621.¹ The alleged perjury occurred on December 12, 1963 in the United States District Court in Boston at the trial of one Alfred Fagundes who was charged with armed robbery of the Brookline Trust Company in Brookline, Massachusetts. It was established at the trial that the robbery took place between one o'clock and 1:20 in the afternoon of September 5, 1963. Fagundes claimed that about that time he was in Middlesex Superior Court in Cambridge; that he arrived there "about 1:50" on that afternoon and appeared before the court at 2 p. m. to have a default removed in connection with some charges then pending against him.

The testimony of the appellant, La Placa, at the Fagundes trial substantiated this alibi and it is this testimony that is the basis of the perjury indictment against him. La Placa testified he was a bondsman by occupation and had provided bail for Fagundes in the cases pending against him in Middlesex Superior Court; that he remembered the events of September 5, 1963 the day of the robbery "very well;" that having heard Fagundes had been defaulted in Middlesex Superior Court that morning, he went looking for him, and failing to locate him arrived at Middlesex Superior Court in Cambridge shortly before one o'clock; that he was afraid the bond would be defaulted; that when court adjourned at one o'clock he had a brief conversation at the court house with a Lieutenant Collins of the Somerville police in which he mentioned the Fagundes default; that "sometime around 1:30 p. m." Fagundes came into the court house with his lawyer and the three of them went upstairs to the court room; and after a brief wait, Fagundes and his attorney went into the court room and the default was removed. La Placa carefully explained that he fixed the time of Fagundes' arrival at Middlesex Superior Court at 1:30 to 1:40 p. m. because he thought it was during the noon recess, that he assumed court would start again at 2 p. m. and that Fagundes came in about a half hour before court resumed that afternoon.

To show the falsity of this testimony the government produced three witnesses. The testimony of the official court stenographer who was on duty in Middlesex Superior Court on September 5, 1963, showed that when the case of Commonwealth v. Fagundes was called at the afternoon session shortly after 2 p. m., no one appeared.

The Assistant District Attorney of Middlesex County who was also on duty during the afternoon session of that day, which he said commenced at 2 p. m., testied that when the Fagundes case was first called Fagundes was not in court; that at 2:20 p. m. he was not in court; that at 2:30 p. m. Fagundes' attorney addressed the court and a recess was called; that upon returning to the court room about 2:50 he saw Fagundes in court for the first time that day.

The government also produced Lieutenant Collins, with whom La Placa had testified he had a conversation at about one o'clock that day. Collins testified that this conversation took place at 2:30 p. m. and not 1 p. m. He also testified that he saw Fagundes hurriedly come into the court room at 2:45 p. m.

La Placa took the stand in his own defense and readily admitted that the testimony quoted in the indictment against him that Fagundes came into Middlesex Superior Court "sometime around 1:30 p. m." on the day of the robbery was the testimony he gave at the Fagundes trial. He again explained that he judged the time to be sometime around 1:30 because he knew it was after a recess and thought it was the noon recess. He now contends that if in fact this was not the time Fagundes arrived at Middlesex Superior Court he had merely made an innocent mistake as to time.

The principal question raised on appeal is — what degree of proof is necessary to uphold a perjury conviction. The degree and character of the proof required in a perjury prosecution are different than in an ordinary criminal case. United States v. Magin, 280 F.2d 74 (7th Cir. 1960). There are two essential elements of proof in perjury cases.² First, the statements made by the defendant must be proven to be in fact false. Secondly, it must be proven that the defendant did not believe the statements when made to be true. Young v. United States, 94 U.S.App.D.C. 54, 212 F.2d 236 (1954), cert. denied, 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137.

It is well settled that the objective falsity of the statements made must be established in conformity with "the two witness rule" which is peculiar to perjury prosecutions. Properly stated, this rule requires direct proof of the falsity of the statements made by the testimony of two witnesses or by the testimony of one witness plus corroborating circumstances. Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 89 L.Ed. 495 (1945). In effect, then, the rule prohibits conviction based on the testimony of only one witness. Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118 (1926). The testimony of Assistant District Attorney Irwin and Lieutenant Collins satisfies this rule.

It is the appellant's contention that "the two witness rule" should be invoked not only to prove the objective falsity of the statements, but also to prove the second element of the crime, namely, that the defendant knew his...