U.S. v. McAfee

• Decision Date: 30 November 1993
• Docket Number: No. 93-1045,93-1045
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Millard F. McAFEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1010

8 F.3d 1010

UNITED STATES of America, Plaintiff-Appellee, v. Millard F. McAFEE, Defendant-Appellant.

No. 93-1045.

United States Court of Appeals, Fifth Circuit.

Nov. 30, 1993.

John T. Montford, Ralph H. Brock, Lubbock, TX, for appellant.

William B. Mateja, Delonia A. Watson, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Lubbock, TX, for appellee.

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

Before GOLDBERG, JONES and DUHE, Circuit Judges. ¹

DUHE, Circuit Judge:

Appellant, Millard F. McAfee, was convicted of one count of wilful perjury under 18 U.S.C. § 1621 and three counts of making irreconcilable contradictory declarations in a proceeding before or ancillary to a court or grand jury under 18 U.S.C. § 1623(c). McAfee appeals raising a number of issues that he argues justify conviction reversal, dismissal of three counts, or resentencing. We decline to grant relief on any of the grounds argued and affirm McAfee's conviction and sentence.

BACKGROUND

McAfee owned a cattle hide processing company called Amarillo By-Products. In 1986 and 1987, two companies that sold cattle hides to Amarillo By-Products separately sued Amarillo By-Products and McAfee alleging that they stole higher quality hides and substituted lower quality ones. These lawsuits were consolidated, and in connection with them, the Plaintiffs' attorney, John Lovell, deposed McAfee on June 30, 1987. On December 3-4, 1990, McAfee was deposed again in connection with a lawsuit filed against an individual alleged to be involved in the stolen hides scheme. After settlement of the litigation, Lovell reported McAfee's alleged incidents of perjury to the U.S. Attorney's office and the FBI.

DISCUSSION

I. Applicability of § 1623 to Civil Depositions

An indictment under 18 U.S.C. § 1623(c) applies to statements made in "any proceedings before or ancillary to any court or grand jury of the United States." McAfee argues that § 1623(c) does not apply to depositions taken pursuant to Federal Rule of Civil Procedure 30 because such depositions are less formal than ones taken in criminal proceedings.

In Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), the Supreme Court reviewed the definition of "proceedings before or ancillary to any court" in the context of an affidavit given in an attorney's office. The Court concluded that § 1623(c) should not "encompass statements made in contexts less formal than a deposition." Id., at 113, 99 S.Ct. at 2197 (emphasis added). Although the case arose out of a criminal proceeding, the Supreme Court did not differentiate between federal civil and federal criminal proceedings.

                There is no real substantive difference between federal civil and criminal depositions.   Although a court order must be obtained to take a criminal deposition, Federal Rule of Criminal Procedure 15 states that subject to additional conditions provided by the court or the rules, a "deposition shall be taken and filed in the manner provided in civil actions."   Thus, we hold that § 1623(c) does apply to civil depositions
                

II. Sufficiency of the Indictment

Based on inconsistencies between McAfee's 1987 and 1990 deposition testimonies, he was indicted on three counts of perjury under 18 U.S.C. § 1623(c). Relying on Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), McAfee challenges the legal sufficiency of the indictments on Counts 2, 3, and 4 on the grounds that his answers to the questions asked were literally true. We review the sufficiency of an indictment de novo. United States v. Shelton, 937 F.2d 140, 142 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 607, 116 L.Ed.2d 630 (1991). An indictment is sufficient if it contains the elements of the offense charged, fairly apprises the defendant what charge he must be prepared to meet, and enables him to plead an acquittal or a conviction in future prosecutions for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); Shelton, 937 F.2d at 142.

The issue for the Supreme Court in Bronston was whether an evasive or unresponsive answer that was literally true, but might have misled the questioner, was legally sufficient to support a conviction for perjury under 18 U.S.C. § 1621. Bronston, 409 U.S. at 356, 93 S.Ct. at 599. It was undisputed that the defendant's answer was literally true. The Court held that such an answer was not sufficient to support a conviction under § 1621. Id. at 357, 93 S.Ct. at 599.

In contrast to § 1621, the Government need not prove the falsity of McAfee's declarations under § 1623(c); rather, the Government must prove that "the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false." 18 U.S.C. § 1623(c). The holding in Bronston has no application in determining the sufficiency of an indictment under § 1623(c) because an offense charged under that statute involves different elements than one charged under § 1621. Accordingly, we conclude that the indictments on Counts 2, 3, and 4 are sufficient as they meet all the criteria set forth by the Russell Court.

III. Sufficiency of the Evidence

Convictions must be affirmed if the evidence, viewed in the light most favorable to the verdict, with all reasonable inferences and credibility choices made in support of it, is such that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Kim, 884 F.2d 189, 192 (5th Cir.1989). In making this determination, we need not exclude every reasonable hypothesis of innocence. United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988). Juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir.1985) (en banc), cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986).

§ 1623(c) sets forth its own method for proving false declarations. The statute allows contradictory statements without more to form the basis of perjury prosecution and permits the jury to infer the falsity of a declaration from its inconsistency with another. The Government must show that the statements are so irreconcilable that one of the statements is "necessarily false." See 18 U.S.C. § 1623(c). We find the Fourth Circuit's explanation of § 1623(c) instructive and adopt the standard set forth in United States v. Flowers, 813 F.2d 1320 (4th Cir.1987). In Flowers, the court concluded that section 1623(c) "requires a variance in testimony that extends beyond mere vagueness, uncertainty, or equivocality. Even though two declarations may differ from one another, the § 1623(c) standard is not met unless,

                taking them into context, they are so different that if one is true there is no way the other can also be true."  Id. at 1324;  see also United States v. Porter, 994 F.2d 470 (8th Cir.1993).   Given this standard under § 1623(c), we conclude that a rational trier of fact could find McAfee guilty on each count
                

A. Count 2

Count 2 involves McAfee's testimony regarding an entity called "Southwest Exchange." ² Taking the testimony in context, a rational trier of fact could have found that the testimonies were so different that if one statement was true, the other must be false. The jury could infer that McAfee was not confused about the "Southwest Exchange" referred to during the 1990 deposition, especially when McAfee was confronted with the inconsistencies of his 1987 statement. Further, McAfee's testimony does not manifest vagueness, uncertainty, or evasiveness. His admission in 1990 that he lied in 1987 makes such a contention disingenuous. Cf. Flowers, 813 F.2d at 1325 (concluding that defendant's manifestations of uncertainty and forgetfulness corroborates claims of memory lapse).

B. Count 3

Count 3 involved testimony regarding McAfee's storage of personal bull hides. ³ McAfee argues that terms used in the questions Alternatively, McAfee argues that he recanted his 1987 testimony the first day of the 1990 deposition. A recantation of false testimony will be a bar to prosecution if it is made "in the same continuous court or grand jury proceeding in which a declaration is made." 18 U.S.C. § 1623(d). We conclude that the district court did not err in adopting the magistrate judge's finding that the 1990 deposition was not part of the same proceeding in which the false statement was made. Accordingly, any "recantation" made by McAfee in 1990 is not a bar to prosecution.

                were different and because there was no time frame mentioned in 1990, his position could have changed as to the storing of hides.   The questioning in 1990, however, involved a recounting of the testimony McAfee gave in 1987.   Further on December 3, 1990, the first day of the deposition testimony, McAfee had been confronted with the inconsistencies in his 1987 testimony.   A jury could reasonably find that McAfee was not confused as to the time frame or the meaning of the terms used during the questioning on December 4
                

C. Count 4

Count 4 involves testimony regarding the identity of a "Chester Peterson." ⁴ Again, McAfee argues that the same questions were not asked each time. The jury, however, could reasonably find from the testimony as a whole that McAfee knew in 1990 that the Chester Peterson being asked about was the same Chester Peterson he testified about in 1987. McAfee even testified at trial that he did not say who Chester Peterson was in 1987. Further, his testimony cannot be characterized as evasive, vague, or uncertain because many of his answers were "yes" and "no." See, e.g., United States v. Cuesta, 597 F.2d...