U.S. v. DeZarn

• Decision Date: 14 October 1998
• Docket Number: No. 97-5156,97-5156
• Citation: 157 F.3d 1042
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert DeZARN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1042

157 F.3d 1042

UNITED STATES of America, Plaintiff-Appellee, v. Robert DeZARN, Defendant-Appellant.

No. 97-5156.

United States Court of Appeals Sixth Circuit.

Argued June 11, 1998.

Decided Oct. 14, 1998.

Kenneth R. Taylor (argued and briefed), Asst. U.S. Attorney, Lexington, KY, for Appellee.

John K. West (argued and briefed), R. Burl McCoy (briefed), McCoy, Baker & West, Lexington, KY, for Appellant.

Before: NELSON and RYAN, Circuit Judges; ROSEN, District Judge. ^*

OPINION

ROSEN, District Judge.

This appeal calls upon us to clarify the law of this Circuit as to whether a person may be found guilty of perjury where he gives sworn testimony which, from the context of the questioning and circumstances surrounding the investigation, can reasonably be inferred to be knowingly untruthful and intentionally misleading, even though the specific question to which the response is given may itself be imprecise.

Because we believe that the crime of perjury depends not only upon the clarity of the questioning itself, but also upon the knowledge and reasonable understanding of the testifier as to what is meant by the questioning, we hold that a defendant may be found guilty of perjury if a jury could find beyond a reasonable doubt from the evidence presented that the defendant knew what the question meant and gave knowingly untruthful and materially misleading answers in response. Accordingly, for the reasons more fully developed below, we affirm the Defendant's conviction and sentence in this case.

I. FACTUAL BACKGROUND

In the spring of 1990, a group of active and retired officers of the Kentucky National Guard, including Defendant Robert DeZarn, Billy Wellman, John Julian, and Ed Gill, met at Billy Wellman's home to discuss raising funds for Brereton Jones' gubernatorial campaign. At that meeting, they selected officers from a list of active officers in the guard from whom funds were to be solicited by designated members of the group. The funds were to be collected at a "Preakness Party" being held at Wellman's home on May 19, 1990.

As indicated, the "Preakness Party" was held in May 1990. Invitations were sent out, inviting guests to "a Preakness Party ... for an evening of fun on the farm". Sixty guests attended and gubernatorial candidate Jones made a short speech. Contributions to Jones' campaign were collected at that event. DeZarn admitted in his trial testimony that he received contributions to Jones' campaign at that party. Other witnesses testified to giving contributions to DeZarn at that party, to seeing DeZarn, Wellman and others counting checks at the party, and to discussing with DeZarn the sources of cash contributions at the party.

A year later, in June of 1991, Wellman held another party which DeZarn also attended. This was a small dinner party, attended only by six people: Wellman and his wife, DeZarn and his wife, and another couple. They had dinner, watched the Belmont Stakes horse race on television, and then went to a horse show afterwards. No active guardsmen attended, nor were campaign contributions made or collected. Governor Jones neither attended nor was invited to that party.

After Jones was elected governor in November 1991, he appointed DeZarn Adjutant General of the Kentucky National Guard. The Adjutant General is the chief commanding officer of the Kentucky National Guard. In 1992, DeZarn convened a Selective Retention Board. Every few years, a Selective Retention Board, consisting of three officers, is picked by the Adjutant General of the Guard. This board is designed to review the military records of officers eligible for retirement and determine which officers will be retained beyond that point, and which of them have reached their "maximum potential" and should be let go or, in Guard parlance, "non-retained."

Normally, the Board removes only a small number of officers. However, in 1992, an unusually large number of officers were "non-retained," several of whom complained to the Inspector General of the Army, alleging that they were let go because they did not support Jones' gubernatorial campaign. Among other things, these officers alleged that individuals who attended the Preakness Party at Wellman's and made a campaign contribution were not released.

In response to those allegations, the Inspector General sent two army officers, Colonel Thomas Mulrine and Colonel Robert Tripp, to investigate the allegations. The investigators conducted interviews of about 30 witnesses. Prior to conducting the interviews, each interviewee was contacted by phone and apprised of the investigation and its subject matter. Every witness interviewed was asked about the Preakness Party and the Selective Retention Board. The investigators did not know about the pre-party planning meeting nor did any of the individuals interviewed provide them with any information concerning that meeting.

One of the witnesses interviewed during the investigation was Defendant Robert DeZarn. In pertinent part, the interview, which was conducted by Colonel Tripp under oath pursuant to 10 U.S.C. § 936(b), was as follows:

Q: Okay, sir. My question is going to deal with General Wellman, though. Was it traditional for General Wellman to hold parties at his home and invite Guardsman to attend?

A [by DeZarn]: Well, I suppose you could say that for a number of years that going back to the late 50s he has done this on occasion.

Q: Okay. In 1991, and I recognize this is in the period that you were retired, he held the Preakness Party at his home. Were you aware of that?

A: Yes.

Q: Did you attend?

A: Yes.

* * * * * *

Q: Okay. Sir, was that a political fundraising activity?

A: Absolutely not.

Q: Okay. Did then Lieutenant Governor Jones, was he in attendance at the party?

A: I knew he was invited. I don't remember if he made an appearance or not.

Q: All right, sir. You said it was not a political fundraising activity. Were there any contributions to Governor Jones' campaign made at that activity?

A: I don't know.

Q: Okay. You did not see any, though?

A: No.

Q: And you were not aware of any?

A: No.

One witness interviewed by Colonels Mulrine and Tripp indicated that DeZarn received a contribution for Jones at the Preakness Party. The investigators, however, did not credit that witness' testimony because it was not substantiated and because they interpreted one of DeZarn's answers in his interview as a denying that he received contributions. Therefore, the investigators' final report indicated that they were unable to sustain the allegations of improper political influence over the Selective Retention Board, although they noted the fact that a retired colonel, Ed Gill, had been brought out of retirement to fill a slot which had been vacated by the Board "gave a perception of favoritism."

The report did reveal, however, that there was evidence that one officer, John Julian, had improperly solicited funds from fellow officers, in violation of the Hatch Act, 18 U.S.C. § 602. Following that revelation, Julian came forward with additional information about the Preakness Party. He also provided information concerning the planning meeting for that party which had not been disclosed to Colonels Mulrine and Tripp in their witness interviews which formed the basis of their initial report.

In light of the new information provided by Julian, additional investigations were subsequently conducted which revealed DeZarn's involvement in the planning meeting and his collection of contributions at the Preakness Party.

DeZarn was then charged with perjury on the basis of his sworn answers in his interview with the investigators. ¹

The indictment charged that DeZarn knew the testimony he gave the investigators--specifically, his denial of the "Preakness Party" being a fundraising activity and his denial of knowledge of campaign contributions being made at that party--was false when he gave it

in that he had helped organize an effort to solicit or request that contributions be made by National Guardsmen to the Brereton Jones campaign, to be collected at the "Preakness Party"; and at said Preakness Party, he had personally collected from National Guardsmen several cash and check contributions for the Jones campaign.

On March 11, 1996, DeZarn moved to dismiss the indictment against him arguing that the indictment against him was insufficient to charge him with perjury because when he was questioned by the Inspector General's investigators, he was asked about a Preakness Party at Billy Wellman's house in 1991 as opposed to 1990, and he gave literally truthful answers with respect to Wellman's 1991 dinner party. The District Court denied DeZarn's motion finding from the full context of the investigator's questioning and DeZarn's answers that DeZarn and the investigator "were on the same song sheet" with respect to the Preakness Party in question, that being the party in 1990. Therefore, the court found Defendant's "literal truth" argument inapplicable, and accordingly, found no insufficiency in the indictment. The case, therefore, proceeded to trial.

At trial, DeZarn testified that Colonel Tripp, by mistakenly setting the questions in his interview about the Preakness Party in 1991, rather than 1990, led him to answer the questions with reference to the 1991 dinner party, which was not a fundraiser and at which he did not collect any contributions.

Evidence was presented at trial, however, to establish that DeZarn was not misled by the 1991 date but had answered the investigators' questions as he had with intent to deceive them. Specifically, all of the individuals questioned by the investigators described the same party, even though some were questioned about a "Preakness Party", some were questioned about a "1990 Preakness Party", and some, like DeZarn, were questioned about a "1991 Preakness Party". Witnesses further testified that "the Preakness Party" was a singular event and was the subject of much...