Radomsky v. United States

• Decision Date: 20 March 1950
• Docket Number: No. 12369.,12369.
• Citation: Radomsky v. United States, 180 F.2d 781 (9th Cir. 1950)
• Parties: RADOMSKY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

180 F.2d 781 (1950)

RADOMSKY v.UNITED STATES.

No. 12369.

United States Court of Appeals Ninth Circuit.

March 20, 1950.

Russell H. Fluent, Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., Vaughn Evans, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before BONE and ORR, Circuit Judges, and McCORMICK, District Judge.

ORR, Circuit Judge.

Appellant was convicted of perjury under 18 U.S.C.A. § 1621, the charge being that at a trial in a United States District Court of one Robert Olson, then and there being prosecuted for mailing a threatening letter, appellant testified falsely that she, and not Olson, mailed the letter in question.Her testimony at the former trial was, in substance, that she had gone to Olson's house in Bremerton, Washington, on the morning of January 13, 1948, a date arrived at by later addition and subtraction, to pick up some laundry, and saw the letter lying on a table ready to be mailed.Being unable to catch Olson who had just left, she put the letter in a specified corner mailbox.Olson was acquitted.

At the perjury trial, appellant identified the letter and reiterated her testimony that she had mailed it under the circumstances described.Olson also appeared and denied having mailed the letter.The letter was postmarked "Bremerton, Wash., January 14, 5:00 p. m., 1948."The Government produced six postal employees who described the operations of the Bremerton postoffice in general and, in particular, as to the collections made on January 13th and 14th, 1948.They testified that two collections and no more were made on each of the two days in question from the mail box in which appellant claimed to have posted the letter.The first collection on each of the two days was made by a truck driver who left the postoffice at 8:30 a. m. and returned before 10:00 a. m. All letters which he brought back would, in the normal course of business, bear a postmark of not later than 10:30 a. m. even though some of the letters may have missed being cancelled on the first run through the cancelling machine.The second collection of mail on January 13th from the mail box into which appellant testified she dropped the letter was made by a foot carrier who left the postoffice at 11:45 a. m. and returned at 12:34 p. m. The second collection on the 14th was made by a carrier who left the postoffice at noon and returned at 1:14 p. m. All letters brought in by the carrier on this trip would, in the normal course of business, bear a postmark of not later than 1:30 p. m. on the 13th, or 2:00 p. m. on the 14th, and this would be true notwithstanding some of the letters so returned missed being cancelled the first time through the machine.Some letters go through the cancelling machine without being cancelled; these are placed in a separate pigeonhole and later, after a sufficient number of uncancelled letters have accumulated, are run through the cancelling machine a second time.There was evidence presented to the effect that appellant was at work two miles distant from the mail box in which she testified she had mailed the letter, at 7:45 a. m. on the 13th and on the 14th.

The Court, in accordance with the general rule, instructed the jury that in order to sustain a conviction for perjury there must be direct and positive evidence of the falsity of the statement under oath, and that circumstantial evidence of such falsity, no matter how persuasive, was insufficient.This instruction was not objected to by the Government and the case was tried on that theory of the law.No contention is here made that such is not the law as applied by the federal courts.¹Our problem, therefore, is to determine whether the evidence in this case is sufficient to meet the requirement in perjury cases.Our answer requires a brief statement as to what constitutes circumstantial as well as a definition of direct evidence.

Circumstantial evidence is that which establishes the fact to be proved only through inference based on human experience that a certain circumstance is usually present when another certain circumstance or set of circumstances is present.Direct...