U.S. v. Forrest

• Decision Date: 14 August 1980
• Docket Number: No. 79-5530,79-5530
• Citation: 623 F.2d 1107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Henry FORREST, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1107

623 F.2d 1107

UNITED STATES of America, Plaintiff-Appellee, v. William Henry FORREST, Defendant-Appellant.

No. 79-5530

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Aug. 14, 1980.

Jeffries H. Duvall, Tallahassee, Fla. (Court-Appointed), for defendant-appellant.

Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant Forrest was convicted by a jury of perjury in violation of 18 U.S.C. § 1621 (1976) and of jury tampering ¹ in violation of 18 U.S.C. § 1503 (1976). The perjury and jury tampering charges grew out of alleged misconduct on the part of appellant during a prior trial on charges of interstate transportation of stolen motor vehicles and other charges. The perjury conviction which we are now asked to review relates to testimony appellant Forrest gave during a pre-trial suppression hearing in connection with the prior trial. The jury tampering charge relates to certain actions appellant was alleged to have taken while that prior trial was in progress. Appellant Forrest was sentenced to three years imprisonment on the perjury count and three years on the jury tampering count, to be served concurrently.

In this direct appeal, appellant asks this court to order the lower court to enter a judgment of acquittal ² or to reverse the lower court's denial of his motion for new trial. Appellant urges three grounds in support of his motion for a judgment of acquittal: (1) that evidence to support the perjury conviction was insufficient as a matter of law; (2) that any false statement was immaterial and therefore not in violation of 18 U.S.C. § 1621; and (3) that the evidence was insufficient to support the jury tampering conviction. In addition, appellant raises three grounds in support of his motion for new trial: (1) that the trial judge erred in denying severance of the charges; (2) that the trial judge erred in denying his pre-trial motion for continuance; and (3) that he was deprived of a fair trial due to the substantial prejudice resulting from his appearance in prison garb before the jury venire. We have examined each of these allegations of error. Finding them to be without merit, we affirm the judgment of the district court.

PERJURY CONVICTION

Appellant was convicted of perjury in connection with his testimony at a pre-trial suppression hearing. ³ He challenges his

conviction on the perjury count on the grounds that as a matter of law the government did not present sufficient evidence to support a guilty verdict and that even if appellant did lie during the suppression hearing, such falsehood was not material to the issue before the court and therefore did not constitute a violation of 18 U.S.C. § 1621 (1976).

a. Sufficiency

Appellant argues that the government's evidence was insufficient as a matter of law because the government failed to present direct evidence that appellant lied. ⁴ In order to prove that a defendant committed perjury, the government must prove that his statements were false and that he did not believe them to be true. United States v. Nicoletti, 310 F.2d 359 (7th Cir. 1962), cert. denied, 372 U.S. 942, 83 S.Ct. 935, 9 L.Ed.2d 968 (1963), quoting United States v. Magin, 280 F.2d 74, 76 (7th Cir.), cert. denied, 364 U.S. 914, 81 S.Ct. 271, 5 L.Ed.2d 228 (1960). Appellant makes no argument concerning the inadequacy of the government's proof concerning the latter element, i. e., defendant's knowledge of falsity. ⁵

With respect to the government's proof that appellant's statements were false, appellant argues that the government failed to satisfy the requirement of the so-called "two witness rule." The traditional "two witness rule," developed in perjury cases to overcome the problem of allowing proof of perjury to rest upon the oath of a single witness against the oath of the defendant, requires "that the falsity ( ⁶ of a defendant's testimony be proved by the testimony of two witnesses, or one witness corroborated by independent evidence." United States v. Marchisio, 344 F.2d 653, 664-665 (2d Cir. 1965). Accord, Vuckson v. United States, 354 F.2d 918 (9th Cir.), cert. denied, 384 U.S. 991, 86 S.Ct. 1896, 16 L.Ed.2d 1007 (1966). "Technically, the 'two witness' rule is a misnomer because the rule requires We have reviewed the record carefully and we find that the government satisfied the two-witness rule. Specifically, we hold that the government proved by sufficient evidence that appellant could not have purchased vehicles at Dealers Auction Company in Tuscaloosa, Alabama, as he testified he did, because the Dealers Auction Company did not exist and that appellant, therefore, lied.

either the testimony of a second witness or other evidence of independent probative value, circumstantial or direct, that is 'of a quality to assure that a guilty verdict is solidly founded' " United States v. Maultasch, 596 F.2d 19 (2d Cir. 1979), quoting, U.S. v. Collins, 272 F.2d 650, 652 (2d Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960). In some perjury cases, the rule is abandoned altogether, as, for example, where the government's case rests predominantly on documentary evidence (as in Stassi v. United States, 401 F.2d 259 (5th Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) ) or where the objective falsity of defendant's statement depends upon defendant's subjective state of mind and therefore is incapable of direct proof (as in United States v. Nicoletti, 310 F.2d 359 (7th Cir. 1962), cert. denied, 372 U.S. 942, 83 S.Ct. 935, 9 L.Ed.2d 968 (1963)).

In order to prove that Dealers Auction Company was a fictitious entity, the government presented an array of evidence. Edwin Hodge testified for the government that he knew the Dealers Auction Company did not exist because appellant told him that there was no such place as Dealers Auction Company. Record, vol. IV, at 162. We consider Hodge's testimony to be direct evidence that appellant's statement was false. ⁷ In addition, the government offered a considerable amount of circumstantial evidence corroborating Hodge's testimony that Dealers Auction Company did not exist. This evidence satisfies the second prong of the two-witness rule. An FBI agent testified for the government that he physically tried to find the purported address (he learned it did not exist) ⁸; and that he tried to find evidence of the company's existence by checking city and telephone directories (he found that the company was not listed), by interviewing the postmaster (who said the address was nonexistent), by checking with the water company, the electric company, Tuscaloosa Credit Association, Alabama Gas, Alabama Power, the Chamber of Commerce, the tax assessor's office, the telephone company, the local police department and sheriff's office (all of which had no knowledge or record of the company). The station manager for the United States Postal Service in Tuscaloosa, Alabama, testified that there was no such address as 6231 Highway 82 South, Tuscaloosa, Alabama. A clerk in the Tuscaloosa County License Commissioner's Office testified that there was no record of such a business as the Dealers Auction In addition, the government introduced evidence that the appellant had arranged to have printed bills of sale bearing the name and purported address of Dealers Auction Company, and that appellant had paid for these bills of sale. Record, vol. IV, at 79-89. The government further showed that some of these bills of sale were filled out and submitted to Florida officials by appellant to obtain Florida motor vehicle titles.

                Company in her office.  None of these leads checked out by the FBI agent turned up evidence of the existence of the Dealers Auction Company.  Every effort of these government witnesses to find evidence of the existence of the Dealers Auction Company yielded negative results.  9  No one testified that Dealers Auction Company was a real entity
                

Finally, Elsie Rhodes testified for the government that appellant requested and obtained her assistance in forging the name "Betty Kirkland" on Dealers Auction Company bills of sale. Record, vol. IV, at 151-57. Several bills of sale bearing the name "Betty Kirkland" were introduced into evidence. The bills of sale purported to convey vehicles to appellant, his business, or Edwin Hodge. They bore the signature of "Betty Kirkland" as purported acknowledgements of receipt of cash in payment for the vehicle. Elsie Rhodes testified she made the "Betty Kirkland" signature on two of these Dealers Auction Company bills of sale. An FBI handwriting expert testified that the "Betty Kirkland" signatures, which appeared on several Dealers Auction Company bills of sale introduced into evidence by the government, were prepared by more than one person. He testified, in addition, that the "Don Langford" signatures, which appeared on many of these bills of sale as notary signatures, were also made by more than one person. Considering all the evidence, we hold that the government has satisfied the requirements of the two-witness rule and that there was sufficient evidence to support the perjury conviction.

b. Materiality

Appellant argues that materiality is an essential element of the crime of perjury, ¹⁰ that the allegedly false statements made at the suppression hearing were not material to the issue before the court and that therefore no violation of 18 U.S.C. § 1621 (1976) occurred. The issue before the court was whether the seizure and search of a number of trucks by the FBI was carried out in violation of appellant's Fourth Amendment rights so that the evidence (trucks) should be suppressed.

The test of materiality in a perjury prosecution is "whether the false testimony was capable of influencing the tribunal on...