Segal v. United States, 15726.

• Decision Date: 13 September 1957
• Docket Number: No. 15726.,15726.
• Citation: 246 F.2d 814
• Parties: A. Ray SEGAL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F.2d 814 (1957)

A. Ray SEGAL, Appellant, v. UNITED STATES of America, Appellee.

No. 15726.

United States Court of Appeals Eighth Circuit.

August 6, 1957.

Rehearing Denied September 13, 1957.

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Linus J. Hammond and Richard B. Ryan, St. Paul, Minn., for appellant.

Clifford Janes, Assistant United States Atty., (George E. MacKinnon, United States Atty., and Kenneth G. Owens, Assistant United States Atty., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

Appellant has appealed from a judgment and sentence of conviction on an indictment of one count charging him with the offense of subornation of perjury. The indictment charged that appellant suborned one Mary K. Johnson to commit perjury as a witness in the trial of one Donald Nelson.

In that case Nelson was charged with transporting Mary K. Johnson in interstate commerce and with conspiring with one Robert Bannarn to accomplish such transportation in violation of the so-called Mann Act, 18 U.S.C.A. §§ 2421-2423. In the course of this opinion we shall refer to the appellant as defendant.

In the instant case defendant entered a plea of not guilty and on trial the jury returned a verdict of guilty. The verdict, however, on motion of defendant was set aside and a new trial granted. On the second trial defendant was again found guilty and his motions for judgment of acquittal and for a new trial were respectively overruled and judgment and sentence of conviction entered upon the verdict from which defendant prosecutes this appeal.

Defendant first challenges the sufficiency of the evidence to sustain the verdict.

While the indictment contained but one count and charged but one offense it contained nine separate paragraphs each dealing with a separate subject matter. The court submitted but four out of these nine subjects of perjury to the jury. If there was proof that the testimony referred to in any one of these paragraphs was false and proved to be suborned that would sustain the charge of subornation of perjury. The trial court so instructed the jury and we believe this statement of the applicable law is not controverted by defendant on this appeal.

Of the four subject matters constituting the allegedly perjured testimony given by the witness Mary K. Johnson at the Nelson trial one was that she did not engage in prostitution between November 11, 1952 and December 31, 1952 and did not hustle in Chicago, Illinois; second, that she did not use drugs as an addict in Chicago between November 11, 1952 and December 31, 1952; third, that she did not know she crossed a state line, and fourth, that she did not see Robert Bannarn about November 11, 1952. On the trial of the defendant she testified that her testimony on these questions given at the trial of Nelson was false and she also testified that the defendant induced her to give such false testimony. The testimony was all material to the issues involved in the Nelson case.

To sustain the charge of subornation in this case there must have been proof that the testimony given by Mary K. Johnson at the Nelson trial was false and this fact can only be established by the testimony of two witnesses or by the testimony of one witness and proof of corroborating circumstances. Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Hashagen v. United States, 8 Cir., 169 F. 396; Arena v. United States, 9 Cir., 226 F.2d 227; United States v. Palese, 3 Cir., 133 F.2d 600; Goins v. United States, 4 Cir., 99 F.2d 147. The question of the quantum of corroboration required by the rule is, however, for the jury. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495; Doan v. United States, 9 Cir., 202 F.2d 674.

On the question of the corroboration of Mary K. Johnson's testimony that she testified falsely in the Nelson case that she did not engage in prostitution between November 11, 1952 and December 31, 1952, we need not go into the sordid details recited by a number of witnesses, among them officers of the Chicago police department. We have examined the testimony and find it amply corroborates the testimony of Mary K. Johnson in the present case.

On the question of the use of narcotics the testimony of Mary K. Johnson given at the trial in the instant case was corroborated by testimony of police officers and by the testimony of a Mrs. Carlson and a Mrs. Warner. We have examined it and think it clearly sufficient to go to the jury on the question of corroboration.

On the question of the falsity of Mary K. Johnson's testimony given at the Nelson trial to the effect that she did not know whether she crossed a state line, corroboration is found in the testimony of Robert Bannarn and Rebecca Aron and other related circumstances.

The falsity of Mary K. Johnson's testimony given at the Nelson trial that she had not seen Robert Bannarn in Chicago about November 11, 1952 is corroborated by the testimony of a Mrs. Bowde who testified that Mary K. Johnson lived in an apartment building owned by her in Chicago with Robert Bannarn from November 11, 1952 to December 26, 1952, and by the testimony of Robert Bannarn to the same effect.

On this phase of the case we conclude that on the four matters submitted to the jury by the court's instructions there was ample evidence, if believed by the jury, to prove beyond a reasonable doubt that Mary K. Johnson committed perjury on the trial of the Nelson case.

It remain to consider whether the testimony was sufficient to go to the jury on the question as to whether the defendant induced Mary K. Johnson to give the above noted perjured testimony. While perjury must be established by the testimony of at least two witnesses or by the testimony of one witness and proof of corroborating circumstances, it is not necessary that the act of suborning perjury be so established. Doan v. United States, supra; Catrino v. United States, 9 Cir., 176 F.2d 884; Cohen v. United States, 2 Cir., 27 F.2d 713; United States v. Silverman, 3 Cir., 106 F.2d 750; Outlaw v. United States, 5 Cir., 81 F.2d 805. Thus, in Doan v. United States, supra, which involved the charge of subornation of perjury, the applicable rule is stated as follows 202 F.2d 678:

"* * * This means that while it was incumbent upon the Government to prove that the testimony given by Georgia Martin before the Grand Jury was false, and to prove that it was thus false by two independent witnesses, or by one such witness plus corroborating circumstances, yet as to the element of subornation of the perjury, that is to say, as to whether the defendant induced the commission of the perjury on her part, `the proof is the same as in all other crimes, — proof beyond a reasonable doubt\'."

In Catrino v. United States, supra, it is said, inter alia 176 F.2d 888:

"In a subornation of perjury case, proof that the defendant induced the commission of the offense, is not subject to this requirement."

The witness Mary K. Johnson testified positively that the defendant in the instant case induced her to give this false testimony. If the jurors believed this testimony, as they manifestly did, it was sufficient to sustain the verdict. However, we find that her testimony in this regard finds corroboration in attending circumstances. There was testimony that defendant admitted to one Shelly Warren that he induced Mary K. Johnson to commit perjury in the trial of the Nelson case, and there was proof of defendant's words and acts of admission in attempting to impede the witness Rebecca Aron on the first trial of the instant case. These and other attending circumstances will be hereinafter considered in connection with the question of admissibility of evidence. The weight of the testimony and the credibility of the witnesses were questions for the jury, at least as to this element of the offense charged, and we think, viewing the evidence in a light most favorable to the government, it was ample to prove this element of the offense beyond a reasonable doubt.

The government offered in evidence certain certificates of the Clerk of the court with attached documents designated as "Government Exhibits 3 and 4". The certificates were to the effect that the attached documents were true copies of docket entries, term minutes, Judge Nordbye's order setting aside the jury's verdict and granting motion for judgment of acquittal and the jury's verdict of guilty in the Nelson case. The offer was objected to as follows:

"Mr. Hammond: There is no objection by the defendant as to foundation. Defendant does object to the exhibits on the ground that they are, in the main, wholly irrelevant and immaterial and they put before the jury many matters that should not be before the jury.

"Mr. Ryan: As to material parts the witness can testify.

"Mr. Hammond: Most of the matters in here, that are listed in here, are things wholly irrelevant and immaterial to the trial of this case. We have no objection to Mr. Chell Smith testifying to material matters.

* * * * * *

"Mr. Hammond: We have the same objection to Government\'s Exhibit 4 on the ground that in the main the entries therein are irrelevant and immaterial to the trial of this case."

The objection was overruled. The objection was a general one and does not point out any specific grounds for excluding the testimony. This being a case involving perjury it was incumbent on the government to prove that the perjured testimony alleged to have been given in the Nelson trial was given in a competent tribunal and that such testimony was material to the cause then on trial. In 41 Am.Jur., Perjury, Sec. 64, p. 35, it is said:

"Thus, in order to convict a person of perjury alleged to have been committed on the trial of a case in a court of record, the production of the record in that case or of a duly authenticated transcript thereof, is essential, unless the formal proofs of such judicial proceeding are

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