Stassi v. United States

• Decision Date: 29 August 1968
• Docket Number: No. 24734.,24734.
• Citation: 401 F.2d 259
• Parties: Joseph STASSI, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.2d 259 (1968)

Joseph STASSI, Sr., Appellant, v. UNITED STATES of America, Appellee.

No. 24734.

United States Court of Appeals Fifth Circuit.

August 29, 1968.

Herbert A. Warren, Jr., Hilton R. Carr, Jr., Miami, Fla., Percy Foreman, Houston, Tex., Carr & Warren, Miami, Fla., for appellant.

Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., William A. Meadows, Jr., U. S. Atty., Fred M. Vinson, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Paul C. Summitt, Attys., U. S. Dept. of Justice, Washington, D. C., for appellee.

Before COLEMAN and CLAYTON^*, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge:

The appellant, Joseph Stassi, Sr., was convicted for violating Title 18, § 1621, United States Code. The indictment was in one count and charged essentially, that Stassi on January 26, 1966, falsely testified under oath as to a material matter before the United States Commissioner in the Southern District of Florida at Miami. At the time Stassi testified, the commissioner was conducting, at the instance of Stassi and his counsel, an inquiry to determine, among other things, an appropriate amount for an appearance bond. The indictment set forth the following questions and answers before the commissioner:

"`Q. Do you have a United States Passport under the name of a Michael Frank Dorsi — D-O-R-S-I?

A. No, sir, I got no passport.

Q. You do not?

A. No, sir.

Q. Did you get such a passport?

A. No, I never got a passport.

Q. You never obtained such a passport?

A. No, sir.\'"

* * * * * *

"`Q. (By Mr. Bates Asst. U. S. Attorney) Just going back here, as I understand you, you did not obtain or have anything to do with an issuance of a passport in the name of a Michael Frank Dorsi — a U. S. passport F288402, issued April 10, 1965, in Washington, D.C.?\'

A. No, sir."

* * * * * *

"`THE COMMISSIONER:

Let me ask a couple of questions before you make any statement. Have you ever had a passport?

THE WITNESS:

No, sir.

THE COMMISSIONER:

Do you know anything about the questions asked you by the Government dealing with a passport in Washington, D. C.?

THE WITNESS:

No, sir.

THE COMMISSIONER:

Did you ever pose for any passport pictures?

THE WITNESS:

I have had pictures taken, but I never applied for a passport.

THE COMMISSIONER:

And is it my understanding that you do not have a passport at this time?

THE WITNESS:

Correct.\'"

The indictment then charged that, as a matter of fact, Stassi had on April 7, 1965, applied for a United States passport under the name of Michael Frank Dorsi and had obtained such a passport on or about April 10, 1965. After a 22-day trial, Stassi was convicted and upon the conviction by the jury, was duly sentenced by the District Judge.

Stassi was arrested in the Miami area of the Southern District of Florida in January, 1966, under an arrest warrant based on an indictment that had been returned in Houston, Texas, in March, 1963. As stated, the hearing before the commissioner, during which Stassi testified as set forth above, was upon Stassi's petition to reduce his bond pending completion of proceedings to remove him from Miami, Florida, to Houston, Texas. Stassi was represented at the hearing before the commissioner by three attorneys of his own choice. There is no question but that the matter of Stassi's having received a passport under the name of Dorsi in 1965 was a matter of material interest to the commissioner with respect to the advisability of reducing Stassi's bond.

The evidence offered by the Government upon the trial for perjury allegedly committed before the commissioner, reflected that an application for a passport in the name of Michael Frank Dorsi was made in person in the office of a naturalization clerk in Hudson County, New Jersey, on April 7, 1965; the application for the passport was signed in three places. Handwriting experts, on the basis of documents known to have been signed by Stassi, testified that Stassi was the person who had signed the passport application. The Government's evidence further reflected that attached to the application for the passport was a photograph identified as being a picture of Stassi, then known to the witness in 1964 as Philip Stazzone. A Government's witness also identified a photograph as being a photograph that had been taken at a studio in West New York, New Jersey, about May 1964, which was identical to the passport photograph. The evidence further reflected that in May or June, 1963, Stassi took up residence in New Jersey under the name of Philip Stazzone. Another witness who knew Stassi under the name of Stazzone identified the Government's photograph as being a picture of the man he knew as Stazzone, but who was, in fact, Stassi. The naturalization clerk did not recognize Stassi at the trial. However, she testified that the application was signed by the person who appeared and applied for it and that she would not have accepted the application had the appearance of the applicant not coincided with the picture attached thereto. The application for the passport, after being forwarded to the State Department, formed the basis for the issuance of the passport in the name of Michael Frank Dorsi on April 10, 1965. State Department records reflected that it was deposited in the mail on April 14, 1965, addressed to Dorsi in West New York, New Jersey. The passport was not returned or reported undelivered by the United States Post Office Department.

I.

Stassi's first argument on this appeal is directed to the sufficiency of the indictment. The indictment charges that the statements of Stassi were false in that Stassi applied for a passport under the name of Michael Frank Dorsi and had under such name obtained such a passport. It is evident from a reading of the indictment that it meets the standard of Rule 7(c), Federal Rules of Criminal Procedure, as being "a plain, concise and definite written statement of essential facts constituting the offense charged." The indictment tracks the language of the statute, setting forth, as above noted, the material parts of Stassi's testimony in the bail bond hearing in which Stassi denied that he had applied for, obtained, or had anything to do with the passport issued in the name of Michael Frank Dorsi in April, 1965. In his sworn testimony before the commissioner, Stassi unequivocally denied obtaining the Dorsi passport. It is not essential that all the testimony set forth in an indictment be false. As a matter of fact, it is better practice, both from the standpoint of the Government and the defendant, to set forth enough of the testimony immediately before and after the alleged false statements to give some coherent context to the alleged false statements. Contrary to appellant's argument, more than one allegedly false statement may be set forth in a single count of an indictment. Arena v. United States, 9 Cir., 226 F.2d 227, cert. denied 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830; United States v. Otto, 2 Cir., 54 F.2d 277. The trial court, therefore, properly denied Stassi's motion to dismiss the indictment.

II.

Appellant further contends that the evidence upon the trial of the case failed to measure up to the standards required in a perjury prosecution. Appellant argues the "two witness" rule. However, the "two witness" rule is inapplicable where, as was the case here, the Government's evidence of falsity rested predominately on documentary evidence. United States v. Bergman, 2 Cir., 354 F.2d 931; Barker v. United States, 9 Cir., 198 F.2d 932. The document itself (the passport) constituted sufficient "direct" evidence to support the conviction. United States v. Wood, 14 Pet. 430, 39 U.S. 430, 10 L.Ed. 527. The Supreme Court in the Wood case on this point stated:

"* * * that circumstances, without any witness, when they exist in documentary or written testimony, may combine to establish the charge of perjury; as they may combine, altogether unaided by oral proof, except the proof of their authenticity, to prove any other fact connected with the declarations of persons, or business of human life. That principle is, that circumstances necessarily make up a part of the proofs of human transactions; that such as have been reduced to writing in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; * *"

Here, not only did the Government's expert witnesses have a group of signatures by appellant in several names, including Stassi, but also had one known signature as "Michael Frank Dorsi." The expert opinions were as directly probative as the typewriting expert testimony held to be sufficient in United States v. Collins, 2 Cir., 272 F.2d 650, cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619. The general rule on this point in perjury prosecutions requires that the evidence be measured for directness by the yardstick of "whether the evidence is of a quality to assure that a guilty verdict is solidly founded." United States v. Collins, supra; Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; United States v. Bergman, 2 Cir., 354 F.2d 931. Here, the record is clear that the evidence offered by the Government in the prosecution of this perjury case — both as to handwriting and photograph — "was direct" in the sense required by the rule and this "direct" evidence was further corroborated by the circumstances showing Stassi's use of the name Dorsi in other activities, such as the purchase and trade of Rambler automobiles in New Jersey in 1965. The essence of the charge in this case against Stassi was that he, while under oath, wilfully and falsely denied having anything to do with the application for, the issuance of, or the receipt of a Dorsi passport. The evidence that he did was more than sufficient to withstand the motion for judgment of acquittal.

III.

Stassi requested the following charges be given to the jury:

"Defendant\'s Requested Instruction No. 6

"You are instructed that in this case the

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