U.S. v. De La Torre, 79-5398

• Decision Date: 19 January 1981
• Docket Number: No. 79-5398,79-5398
• Citation: 634 F.2d 792
• Parties: 7 Fed. R. Evid. Serv. 890 UNITED STATES of America, Plaintiff-Appellee, v. Rick DE LA TORRE, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 792

634 F.2d 792

7 Fed. R. Evid. Serv. 890

UNITED STATES of America, Plaintiff-Appellee, v. Rick DE LA TORRE, Defendant-Appellant.

No. 79-5398.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 19, 1981.

Joseph S. Chagra, El Paso, Tex., for defendant-appellant.

Leroy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

Rick De La Torre appeals his conviction of two counts of false declaration before a court, 18 U.S.C. § 1623, for which he was sentenced to concurrent four-year terms. We find no merit in the contentions of error in the indictment and trial and affirm.

This episode in De La Torre's experiences with the criminal justice system begins with a conviction for conspiring to import and possess marijuana with intent to distribute, a conviction reversed for reasons unrelated to this case, United States v. De La Torre, 605 F.2d 154 (5th Cir. 1979). On remand he was again convicted; that conviction is now pending appeal.

The present false declaration indictment arises out of De La Torre's testimony at the first conspiracy trial. His responses to six questions, forming the basis for the indictment, appeared in the five counts as follows:

FIRST COUNT:

Q. Was there any talk at that time about marihuana?

A. No, sir.

SECOND COUNT:

Q. All right. Did you mention to Mr. Moren during that meeting that you were hoping that everything would go well on this particular drug transaction, because you needed to make up two other losses you had had?

A. I did not.

THIRD COUNT:

Q. Did you at that time or at any other time represent yourself as the financial investor?

A. No, sir. When Mr. Renteria introduced me, he introduced me as his banker, to these two people, and that's the extent of that.

FOURTH COUNT:

Q. And you are, of course, denying that you were discussing with Mr. Gross utilizing a small aircraft and having several loads rather than the proposition of Renteria and Halliday just getting a larger aircraft and having one big load?

A. That is completely fictitious.

FIFTH COUNT:

Q. Of course, then according to your testimony, there is no truth to the story that you were explaining to them how to transpose figures for codes of the telephones?

A. That's right, sir.

Q. So, all of that is something of which you are just totally unaware?

A. Yes, sir.

The trial court consolidated counts one and two. De La Torre was found guilty on counts two and five and acquitted on counts three and four.

Separate Counts

Each of the challenged answers relate to De La Torre's involvement in the same episode or transaction, the conspiracy to import and possess marijuana. De La Torre moved for consolidation of the five counts or, in the alternative, that the government be required to elect which one of the counts it would try. The trial judge ordered consolidation of counts one and two, but denied the motion as to the other counts. De La Torre argues that the resulting four count indictment is multiplicitous because all of the declarations pertain to one matter, the conspiracies involving the marijuana. Multiplicity is the charging of a single offense in more than one count. United States v. Free, 574 F.2d 1221 (5th Cir. 1978).

We find no case in this circuit in which a multiple count indictment for false statements in trial testimony has been directly challenged as multiplicitous. There is sufficiently similar precedent, however, to guide our way. Moeller v. United States, 378 F.2d 14 (5th Cir. 1967), involved a multiple count indictment charging false statements in an application for a housing loan, contrary to 18 U.S.C. § 1010. The trial court refused to consolidate the counts. We affirmed, stating:

The appellant's theory, in complaining of the refusal of the district court to consolidate counts of the indictment is that Counts One and Two charged the making of false statements in a single application and hence, he says, there was only one offense charged. A like assertion is made as to Counts Three and Four. The answer to the argument is that the offense defined by the statute with which he was charged is the making of false statements. The statements were different and, although the offenses charged are related, either Count One or Count Two could be proved without proving the other, and the same is true of Counts Three and Four. Separate steps of a single transaction may be defined as separate offenses and furnish a basis for separate charges. United States v. Noble, 3rd Cir. 1946, 155 F.2d 315.

378 F.2d at 15.

In Richards v. United States, 408 F.2d 884 (5th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2148, 23 L.Ed.2d 775 (1969), we held that false statements made to a grand jury which were separate, distinct and unrelated could be charged in multiple counts with separate sentences imposed. This holding is not inconsistent with United States v. Edmondson, 410 F.2d 670 (5th Cir.), cert. denied, 396 U.S. 966, 90 S.Ct. 444, 24 L.Ed.2d 430 (1969), in which we upheld an indictment joining together several perjurious statements in one count, with proof of the falsity of one being sufficient for conviction. Edmondson permits but does not require that all of the allegedly false declarations be joined in one count.

We are bolstered in our conclusion by decisions of our colleagues in the Second and Eighth Circuits. In United States v. Doulin, 538 F.2d 466 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976), an indictment containing multiple § 1623 counts for false statements to a grand jury was upheld on a finding that "each query posed to appellant sought information and that proof of each falsehood necessitated the establishment of different facts." Id. at 471. Citing Doulin, the court in United States v. Williams, 552 F.2d 226 (8th Cir. 1977), upheld two counts of false declarations to a grand jury on a finding that different facts were needed to demonstrate the falsity of the two challenged responses.

We note that both the Doulin and Williams courts cited Gebhard v. United States, 422 F.2d 281, (9th Cir. 1970), in which the court declared that it is not proper for "the government (to) bludgeon a witness who is lying by repeating and rephrasing the same question, thus creating more possible perjury counts" (at 289); and that "(s)ingle punishment for a single lie should suffice" (at 290). We endorse the cautionary language in Gebhard and trust that prosecutors will not construe this decision as a license to go forth and adroitly fashion multiple-count perjury or false statement...