U.S. v. Chaplin, 93-2942

• Citation: 25 F.3d 1373
• Decision Date: 06 June 1994
• Docket Number: No. 93-2942,93-2942
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James M. CHAPLIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1373

25 F.3d 1373

UNITED STATES of America, Plaintiff-Appellee, v. James M. CHAPLIN, Defendant-Appellant.

No. 93-2942.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1994.

Decided June 6, 1994.

Steven M. Biskupic, Asst. U.S. Atty., Chris Larsen (argued), Milwaukee, WI, for plaintiff-appellee.

Annice Kelly (argued), Fox & Fox, Madison, WI, for defendant-appellant.

Before FAIRCHILD, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

In this appeal, James M. Chaplin challenges the sufficiency of the evidence to convict him of three counts of perjury under 18 U.S.C. Sec. 1621. Mr. Chaplin submits that the government failed to satisfy the evidentiary requirement of the two-witness rule. For

the reasons that follow, the judgment of the district court is affirmed in part and reversed in part.

I BACKGROUND

Mr. Chaplin owned a firm that contracted with the state of Wisconsin to build pit toilets at various state parks. In May 1990, the state declared the contracts in default because the work was not being completed according to schedule. The state then filed a claim against Mr. Chaplin's bonding company, Transamerica Premiere Insurance. In turn, Transamerica, which had hired another contractor to complete the project, sued Mr. Chaplin. The state sought, along with other relief, the return of certain construction materials that had been delivered to the construction site. These materials included doors, toilets, and urinals. At a state court hearing on this matter in August 1990, Mr. Chaplin testified that the materials were in a trailer in the overflow parking area of the Peninsula State Park. After the hearing, agents of Transamerica were unable to find a trailer or any construction materials at that location.

Because of the cancellation of these contracts, Mr. Chaplin filed for bankruptcy on October 15, 1990. Transamerica filed a proof of claim and initiated two adversary proceedings. ¹ In the course of the bankruptcy proceedings, Transamerica deposed Mr. Chaplin. During these depositions, Mr. Chaplin was asked under oath whether he had ever given his father-in-law, Joseph Voss, $8,000 in cash on October 23, 1990. Mr. Chaplin said that he did not recall doing so. Also, Mr. Chaplin was shown a picture, taken by Al Payment (who owned Voss' residence), depicting what appeared to be construction materials in Voss' garage. Mr. Chaplin denied ever putting the materials in the garage and stated that he did not recall ever removing them.

In November 1992, a grand jury returned a four-count indictment against Mr. Chaplin for crimes stemming from his involvement in the pit toilet project. Count One charged Mr. Chaplin with knowingly and fraudulently transferring and concealing his interest in certain property in violation of 18 U.S.C. Sec. 152. The remaining counts charged Mr. Chaplin with committing perjury in his bankruptcy depositions in violation of 18 U.S.C. Sec. 1621. The indictment set out the crucial deposition testimony underlying each count of perjury:

Count Two

Q. Mr. Chaplin, did you give Joseph Voss $8,000 in currency on October 23, 1990?

A. I don't recall doing that, no.

Count Three

Q. I'll represent to you that Mr. Al Payment testified in his deposition on February 6, 1992, that he took this picture [Payment exhibit 2] of his garage, on either August 23 or August 24, 1991. Did you ever deposit these materials in Mr. Payment's garage, Mr. Chaplin?

A. Assuming that what he's told you is correct, no.

Count Four

Q. Payment exhibit no. 2, Mr. Chaplin, which I'm showing you right now, Mr. Voss testified that those materials were in the garage where he resides on Laveau Lane in Oconto and that you removed them in January of 1992, did you remove any materials from Mr. Voss' garage in January of 1992?

A. Two things there, that makes a presumption that what he says is correct and then you ask the question did I remove any materials from his garage in 1992. I don't recall doing that, no. As to whether or not he may have said that I don't know about that either.

R.1.

With respect to the $8,000 payment, Voss testified at Mr. Chaplin's trial that Mr. Chaplin had asked Voss to purchase some real estate for him. To accomplish this, Mr. Chaplin gave Voss $8,000. Voss said this transfer occurred "[p]robably about October With respect to how the materials came to be in the garage, Voss testified on direct examination as follows:

                of '90."   Tr. 92.  Banking records show that Voss deposited $8,000 on October 23, 1990.  The banking records further show that, on the same day, Voss obtained a cashier's check for $8,000 made payable to Mr. Chaplin's new corporation, Neo-Genesis, Inc., and a real estate company.  An IRS examination of Mr. Chaplin's finances revealed that Mr. Chaplin had over $8,000 in unaccounted-for cash up until at least October 23, 1990
                

Q. When you were living in the property on Laveau Lane did Mr. Chaplin store anything in the garage?

A. Yes, he did.

Tr. 96. Voss was never asked to elaborate on how he knew that Mr. Chaplin stored the materials in the garage. Al Payment, Voss' landlord, testified that he observed some materials labelled as Mr. Chaplin's in the garage in August 1991. He indicated that the materials consisted of outhouse inserts and door frames. He took a photograph of these materials, although the labels are not visible in the picture. He admitted that he had no idea whether Mr. Chaplin put the materials there.

Voss testified that the materials had been removed from the garage by February or March 1992; he did not testify that Mr. Chaplin removed the materials. Donald Rhode, one of Voss' neighbors, testified that he saw Mr. Chaplin driving away from the Voss residence in a pickup truck. He stated that the pickup truck was carrying doors and door frames. He believed this incident occurred shortly after the first of the year in 1992.

In his testimony, Mr. Chaplin denied that he gave $8,000 to Voss for the purchase of any land. He further testified that, although he still did not recall storing any materials in the garage, after his deposition he had spoken with former employees and it was possible that the materials had been stored there.

A jury convicted Mr. Chaplin on all four counts on May 21, 1993. The district court sentenced Mr. Chaplin to serve one year of imprisonment for each of the four counts. The sentences were to be served concurrently. The court also sentenced Mr. Chaplin to make restitution in the amount of $47,410.00.

II ANALYSIS

On appeal, Mr. Chaplin leaves unchallenged Count One, which charged him with concealing assets in violation of 18 U.S.C. Sec. 152. He does, however, make a sufficiency of the evidence challenge to the remaining counts, Counts Two through Four, which charged Mr. Chaplin with committing perjury in violation of 18 U.S.C. Sec. 1621. Specifically, Mr. Chaplin claims that, even viewing the evidence in the light most favorable to the government, no rational trier of fact could have concluded that the government proved beyond a reasonable doubt that any of the three allegedly false statements he made were, in fact, false. Mr. Chaplin submits that, in a prosecution for perjury under 18 U.S.C. Sec. 1621, the government can secure a conviction only in conformity with the two-witness rule, and that the government failed to so conform its proof in Counts Two through Four. ²

A. Principles of Law

A person may be convicted of perjury if (1) he was under oath before a competent tribunal, (2) in a case in which a law of the United States authorizes an oath to be administered, (3) and he gives false testimony, (4) concerning a material matter, (5) which testimony was given with the willful intent to provide false testimony. See 18 U.S.C. Sec. 1621; ³ United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993) (stating generally accepted definition of perjury under federal law).

In the instant case, Mr. Chaplin challenges the government's proof with respect to the third element of the offense: the giving of false testimony. In attempting to establish this element, the government faces certain hurdles not present in other prosecutions. First, the Supreme Court has established a strict standard for what constitutes falsity for the purposes of Sec. 1621. In Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), the Court held that an answer under oath that is literally true but not responsive to the question, and arguably misleading, is not a violation of 18 U.S.C. Sec. 1621. Second, at trial, the government must meet, as a general matter, a heightened evidentiary standard for establishing falsity. Under the so-called "two-witness rule," "the uncorroborated oath of one witness is not sufficient to establish the falsity of the testimony of the accused as set forth in the indictment as perjury." Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). The two-witness rule "does not literally require the direct testimony of two separate witnesses, but rather may be satisfied by the direct testimony of one witness and sufficient corroborative evidence." United States v. Diggs, 560 F.2d 266, 269 (7th Cir.), cert. denied, 434 U.S. 925, 98 S.Ct. 404, 54 L.Ed.2d 283 (1977); see also Weiler v. U.S., 323 U.S. 606, 610, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945). The two-witness rule has two aspects: (1) the falsity of the testimony must be established by more than the uncorroborated oath of one witness, and (2) circumstantial evidence, no matter how persuasive, will not by itself support a conviction for perjury. See President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 141 (1967).

The two-witness rule arose in England, during the seventeenth century. At that time, the common law courts assumed jurisdiction over perjury cases with the abolition of the Court of Star Chamber, which had...