U.S. v. Girdner, 84-2469

• Decision Date: 11 September 1985
• Docket Number: No. 84-2469,84-2469
• Citation: 773 F.2d 257
• Parties: 18 Fed. R. Evid. Serv. 796 UNITED STATES of America, Plaintiff-Appellee, v. John Harve GIRDNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 257

773 F.2d 257

18 Fed. R. Evid. Serv. 796

UNITED STATES of America, Plaintiff-Appellee, v. John Harve GIRDNER, Defendant-Appellant.

No. 84-2469.

United States Court of Appeals, Tenth Circuit.

Sept. 11, 1985.

Harry Scoufos, Sallisaw, Okla., for defendant-appellant.

Christopher G. Caldwell, Trial Atty., Criminal Div., U.S. Dept. of Justice, Washington, D.C. (Stephen S. Trott, Asst. Atty. Gen., and William S. Lynch, Senior Counsel for Litigation, Criminal Div., U.S. Dept. of Justice, Washington, D.C., with him on brief) for plaintiff-appellee.

Before MOORE, BREITENSTEIN and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Appellant-defendant, John Harve Girdner, was charged in a three-count indictment with making false statements to the court in violation of 18 U.S.C. Sec. 1623. He was found guilty by a jury on all three counts and duly sentenced by the court. He now appeals. We affirm.

The case arose out of the investigation into, and prosecution for, absentee ballot fraud in Oklahoma. The defendants were Dan Draper, Jr., Speaker of the House of Representatives, and Joe Fitzgibbon, majority leader of the House of Representatives. Appellant-defendant, John Girdner, testified as a government witness in the trial. Both men were found guilty and sentenced to three-year terms. On February 3, 1984, Draper and Fitzgibbon filed a motion for new trial alleging newly-discovered evidence. Appellant testified on February 16, 1984, as a defense witness, on the motion and recanted various aspects of his testimony given at the trial. Tr.Vol. III, pp. 228-231. He also claimed that he had been told by government prosecutors to testify to certain matters which were untrue. Id. The motion for new trial was granted.

A cooperation agreement was reached between the Girdner family and the United States Attorney's Office in which the Girdners agreed to cooperate with the government's investigation and resulting trials. Barney Girdner agreed to plead guilty to one felony count in exchange for the government foregoing any prosecution of other family members including his son, John Harve Girdner, the present appellant-defendant. Id. pp. 111-112. Barney Girdner did plead guilty and was sentenced to a term of five years on his plea. Id. p. 127.

Appellant was indicted on three counts of giving materially inconsistent testimony under oath in violation of 18 U.S.C. Sec. 1623. The indictment charged that appellant's testimony of February 16, 1984, was irreconcilably inconsistent with his previous testimony given on August 12, 1983, in the trial of Draper and Fitzgibbon. After a jury trial, appellant was found guilty on all three counts and was sentenced to a term of five years on each count, the sentences to run concurrently.

The first argument is that the use of testimony from the Draper-Fitzgibbon trial in the prosecution for giving inconsistent testimony violates his Fifth Amendment rights. He does not claim that in the Draper-Fitzgibbon trial he claimed any Fifth Amendment rights. Accordingly, the argument is without merit.

The next argument is that the use of the testimony from the Draper-Fitzgibbon trial violated 18 U.S.C. Sec. 6002. That section provides that whenever a witness refuses to testify on the basis of his privilege against self-incrimination in a proceeding before a federal district court and the court issues an order compelling testimony, the witness may not refuse to testify on the basis of self-incrimination. No testimony compelled under the order may be used against the witness in any criminal case, except for prosecution for perjury, giving false statement, or otherwise failing to comply with the order.

The fundamental flaw in appellant's argument is that he entered into an informal agreement with the prosecution to provide truthful testimony in exchange for immunity from prosecution as a result of his substantive testimony. Id. pp. 246-247. Appellant's testimony was not compelled by court order as required by Sec. 6002. We have recently had before us a similar informal agreement involving a witness in the Draper-Fitzgibbon trial. We found in United States v. Hembree, 10 Cir., 754 F.2d 314, 317, that it is "simply a contract." The agreement was void when appellant recanted his previous trial testimony at the hearing of the Draper-Fitzgibbon motion for a new trial. Tr.Vol. III, pp. 246-247. Because a court order under Sec. 6002 was neither requested nor obtained, appellant's claim under Sec. 6002 must fail.

Appellant contends that the court erred in denying his motion to dismiss the indictment on the ground that the allegedly inconsistent statements made by him were not material. R. pp. 52-71. Section 1623(a), Title 18 U.S.C., makes it a crime for a person "under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly [to] mak[e] any false material declaration ..." Materiality is a question for the court to decide. United States v. Goguen, 1 Cir., 723 F.2d 1012, 1016, n. 4; and United States v. Martellano, 7 Cir., 675 F.2d 940, 942. See also United States v. Masters, 10 Cir., 484 F.2d 1251, 1254 (prosecution for perjury under Sec. 1621). "The test of materiality is 'whether the false statement has a natural tendency to influence, or was capable of influencing, the decision ... required to be made.' " United States v. Moore, D.C.Cir., 613 F.2d 1029, 1038, cert. denied 446 U.S. 954, 100 S.Ct. 2922, 64 L.Ed.2d 811. See Masters, supra, 484 F.2d at 1254, "for testimony to be material it must be capable of influencing the tribunal on the issue before it."

Count I of the indictment concerns whether appellant was asked to lie by any government prosecutor or agent at the Draper-Fitzgibbon trial. R. pp. 3-5. At that trial he was asked whether anyone in the United States Attorney's Office or the postal inspector's office asked him to lie. He answered negatively. Tr.Vol. III, p. 228. At the hearing on the motion for new trial, he testified that a government prosecutor told him to testify falsely to certain matters. Id. pp. 230-231. The inconsistent testimony was capable of influencing both the jury at the Draper-Fritzgibbon trial and the court in reviewing the motion for new trial.

Counts II and III concerned testimony given by appellant at the Draper-Fitzgibbon trial as to two conversations he had overheard involving his father. Count II concerns whether appellant overheard a conversation between Draper, Fitzgibbon and his father in which his father was asked if he could get as many absentee ballots for the runoff election as he had gotten in the primary election. R. pp. 5-7; Tr.Vol. III, p. 124. At the Draper-Fitzgibbon trial appellant testified that he had overheard such conversation. Tr.Vol. III, pp. 226-228. At the motion for new trial he testified that his earlier testimony was false. Id. pp. 228-229.

The testimony on Count III concerned a conversation in which the mailing of the ballots was discussed. R. 7-9. At the Draper-Fitzgibbon trial appellant testified that there was a discussion between his father and Draper about when the ballots should be mailed because the ballots might be challenged. Tr.Vol. III, pp. 227-228. At the motion for a new trial, appellant testified that his previous testimony was false to the extent that there had not been a discussion about the ballots being challenged. Id. p. 229. His testimony at the...