U.S. v. Earp, s. 86-5564
| Decision Date | 06 March 1987 |
| Docket Number | Nos. 86-5564,s. 86-5564 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tony Douglas EARP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfred S. CHILDERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billy CARRIGAN, Defendant-Appellant. to 86-5566. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George Vernon Laughrun, II (Goodman, Carr, Nixon & Laughrun on brief), Kenneth T. Davies (Flannary & Davies on brief), Jeffrey Scanland Rupe, on brief, for defendants-appellants.
William Randall Yeomans, Dept. of Justice (Charles R. Brewer, U.S. Atty.; Kenneth Bell, Asst. U.S. Atty.; William Bradford Reynolds, Asst. Atty. Gen., Walter W. Barnett, Dept. of Justice, on brief), for plaintiff-appellee.
Before WIDENER, PHILLIPS and CHAPMAN, Circuit Judges.
This case involves separate appeals, consolidated in this court and brought by three defendants, Tony Douglas Earp, Alfred S. Childers, and Billy Carrigan. Although the defendants make several assignments of error, only one issue merits full discussion. That issue presents the question of whether defendant Carrigan's conviction for making a false declaration under 18 U.S.C. Sec. 1623(a) should be set aside on the ground that his testimony before the grand jury was not false but was, instead, literally true. Because Carrigan's statement was literally true, we reverse his conviction under Sec. 1623(a) but affirm the other convictions of Carrigan and the other defendants in all respects. 1
Carrigan was a member of the Alexander County unit of the White Knights of Liberty of the Ku Klux Klan (Klan) during 1982 and 1983. In the latter half of 1982 and in early 1983, a series of racially motivated cross burnings and shootings occurred in Alexander County and neighboring Iredell County. It is conceded that Carrigan participated in an attempted cross burning in the front yard of one John Grimes on November 27, 1982. It is this conduct of Carrigan and his testimony with respect to it that form the base of this prosecution for making a false declaration. On that date, Carrigan along with a group of other Klan members drove to Grimes' residence with a cross. As the others erected and tried to ignite the cross, Carrigan stood watch with a shotgun. When the group had trouble lighting the cross and when John Grimes opened the front door, they fled, leaving the unlit cross in Grimes' front yard.
In January, 1984, Carrigan appeared before a grand jury investigating the racially motivated burnings and shootings. During his testimony, the following questions and answers were made:
"Q. How do you feel about burning crosses at the residences of interracial couples?
A. I don't believe in it.
Q. Have you ever done it, sir?
A. No, I haven't.
Q. Are you permitted, then from Alexander County to go into Iredell County and burn crosses?
A. I don't burn crosses anywhere.
Q. Would the Klan permit you to do that?
A. No, ma'am."
The government charged that the answers underscored just above are false declarations, because Carrigan had "personally participated in the cross burning at the residence of John Grimes." In addition to this colloquy, the government offered the testimony of an FBI agent who testified that Carrigan told him that he (Carrigan) had lied to the grand jury. At the close of the government's case, Carrigan's motion for judgment of acquittal was denied by the district court, as it was at the close of all the evidence. The district court then submitted to the jury the question of whether Carrigan had made a false declaration when he testified as set forth above at the grand jury proceedings. The jury found Carrigan guilty, and we reverse. 2
In Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), the United States Supreme Court addressed an issue indistinguishable from that involved here: "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Bronston, 409 U.S. at 352-53, 93 S.Ct. at 597. In Bronston, the owner of a bankrupt company testified as follows:
"Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
A. Have you any nominees who have bank accounts in Swiss banks?
A. No, sir.
Q. Have you ever?
A. No, sir."
Id. at 354, 93 S.Ct. at 598. It was undisputed in Bronston that the owner had previously maintained a personal bank account in Switzerland for nearly five years, but did not do so at the time of questioning. Id. However, the government's theory of prosecution was that the answer to the second question, although literally true, unresponsively addressed the company's assets and not his own. Id. at 355, 93 S.Ct. at 598. This, the government argued, implied that the owner had no personal Swiss bank account during the relevant time. Id. This served as the basis for the owner's perjury conviction.
In reversing that conviction, a unanimous Court held that a literally true but unresponsive answer is to be remedied through the "questioner's acuity" and not the federal perjury statute. Id. at 362, 93 S.Ct. at 602. The Court explained Id. at 360, 93 S.Ct. at 601 (citations omitted). This conclusion, the Court added, is not escaped even where the jury finds that the answerer intended to mislead the examiner. Id. at 359, 93 S.Ct. at 600. For even if the witness evades, it is the duty of the questioner to spot that evasion and "to flush out the whole truth with the tools of adversary examination." Id. at 358-359, 93 S.Ct. at 599-600.
Applying Bronston to the case at hand leads to the conclusion that Carrigan's perjury...
To continue reading
Request your trial
-
United States v. Smith
...And if a response is evasive, it's the questioner's duty "to spot that evasion and to flush out the whole truth." United States v. Earp , 812 F.2d 917, 919 (4th Cir. 1987) (cleaned up). Though Bronston dealt with a perjury charge, we've since applied its holding to § 1001 offenses. See Unit......
-
United States v. Chujoy, Criminal Action No.: 5:15-cr-00029
...Circuit rarely invokes its protection. See, e.g. , United States v. Good , 326 F.3d 589, 591–92 (4th Cir.2003) ; United States v. Earp , 812 F.2d 917, 918–20 (4th Cir.1987). Nevertheless, the Fourth Circuit has repeatedly made clear that literally true answers, even if evasive, cannot suppo......
-
U.S. v. Hairston
...States, 409 U.S. 352, 362, 93 S.Ct. 595, 602, 34 L.Ed.2d 568 (1973) (interpreting 18 U.S.C. Sec. 1621); see also United States v. Earp, 812 F.2d 917, 919 (4th Cir.1987) (applying Bronston to Sec. 1623). A perjury conviction cannot be based upon evasive answers or even upon misleading answer......
-
United States v. Sarwari
...that the defendant used the word “prepare” in a particular manner and so her answer was literally true. And, in United States v. Earp, 812 F.2d 917, 918–20 (4th Cir.1987), we reversed a conviction when the defendant's answer to a question—had he ever burned crosses at the residences of inte......