U.S. v. Williams, s. 75-2144

• Decision Date: 01 July 1976
• Docket Number: 75-2154,Nos. 75-2144,s. 75-2144
• Citation: 536 F.2d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberta WILLIAMS and Frances Harris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1202

536 F.2d 1202

UNITED STATES of America, Plaintiff-Appellee, v. Roberta WILLIAMS and Frances Harris, Defendants-Appellants.

Nos. 75-2144, 75-2154.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1976.

Decided July 1, 1976.

Jackie L. Shropshire, Calvin D. Hawkins, Gary, Ind., for defendants-appellants.

John R. Wilks, U. S. Atty., Fort Wayne, Ind., Richard A. Hanning, Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and TONE and WOOD, Circuit Judges.

TONE, Circuit Judge.

Defendants Roberta Williams and Frances Harris were convicted in a jury trial of making false material declarations in violation of 18 U.S.C. § 1623. The declarations had been made when they testified as alibi witnesses in the trial, and again in the retrial, of a federal criminal charge against Leroy Williams, the husband of Roberta Williams. On appeal the defendants argue that the district judge abused his discretion in refusing to grant a continuance and that the declarations in question were not shown to have been false.

Leroy Williams was tried in the United States District Court for the Northern District of Indiana in April 1975 on a charge of distributing heroin. Both defendants in the case at bar testified on Leroy Williams' behalf as alibi witnesses in that trial. Count I of the indictment before us charges that Roberta Williams testified falsely in that trial, and Count II charges that Frances Harris did likewise. The jury in the first trial of Leroy Williams having been unable to agree, he was tried again in May 1975, and both the defendants at bar again testified as alibi witnesses. Counts III and IV of the present indictment are based on that testimony. Defendants were convicted in the court below on all four counts.

Each count is an attempt to charge that the witness falsely testified that Leroy Williams was at his home in Gary, Indiana, participating in a birthday party for Garland Jeffers, at approximately 8:00 p. m. on January 14, 1974, whereas in fact he was observed entering the Club 400 at 2156 Broadway Avenue, Gary, Indiana, at that time. Each defendant took the stand in the trial of the case at bar and admitted that she had intended in each of the Leroy Williams trials to testify that he was at home during the entire period when he was supposed to have been seen at the Club 400. Thus the defendants admit that they intended the meaning the government imputes to their testimony.

When the case was called for trial, counsel for both defendants moved for a continuance on the ground that they had not had time to examine "the 3500 material" (i. e., recorded statements of witnesses the government proposed to call which were subject to 18 U.S.C. § 3500) received from the government at 5:00 o'clock the previous evening and thus were not in a position "to properly advise (their) clients concerning those documents" or "to properly cross-examine, based upon the material." The judge denied the motion, noting that the government was not required to deliver the 3500 material in advance of trial and had done so voluntarily, and stating that it was his custom to grant delays during the course of the trial when necessary to permit defense counsel "to thoroughly examine any and all 3500 material before cross-examination" and that he would do so in this case. No such requests were made during the trial which followed. Defendants were found guilty on all counts.

I.

Defendants' argument that the district judge abused his discretion in denying them a continuance is frivolous. In the first place, because of the express terms of 18 U.S.C. § 3500, the government could not have been required to deliver any 3500 material to defense counsel until the witness to whom the material pertained had completed his testimony on direct examination. The government's entirely voluntary disclosure of the material the evening before trial gave defendants no rights they would not otherwise have had. In the second place, the court, in denying the motion, told counsel for the defendants that he would grant recesses during the course of the trial to give defense counsel "an opportunity to thoroughly examine any and all 3500 material before cross-examination," but no such recesses were ever requested. Finally, the 3500 material in question, which defendants allege to have been seven or eight inches thick, was not made a part of the record and, even if the point were not otherwise frivolous, we could not decide it on this record.

II.

The primary issue in this case is whether statements the defendants made at the two Leroy Williams trials were "false declarations." An unambiguous answer literally true cannot be the subject of a perjury or false statement conviction even if intended to mislead. Bronston v. United States,409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). The Bronston case, on which defendants rely, "dealt with a statement literally true but unresponsive to the question asked . . . not . . . with the situation where a defendant has given a 'yes or no' answer, the truth of which can be ascertained only in the context of the questions posed." United States v. Chapin, 169 U.S.App.D.C. 303, 515 F.2d 1274, 1280 cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975). When the question and answer may have more than one meaning standing alone, their intended meaning is ordinarily an issue for the jury to determine from their context and other indicia of the witness' intent in giving the answer. Id. at 1279-1281. As the court said in the Chapin case,

". . . the possibility that a question or an answer may have a number of interpretations does not invalidate either an indictment or a conviction after a jury charge which, as here, requires the jury to determine that the question as the defendant understood it was falsely answered in order to convict." 515 F.2d at 1280. (Emphasis deleted.)

Roberta Williams (Counts I and III)

Count I charges that at the first Leroy Williams trial Roberta Williams testified that on January 14, 1974 she was in her house in Gary, Indiana, where a birthday party was being given for Garland Jeffers, and that she herself was ill and spent most of the time in a bedroom of the house with her baby. She further testified as follows:

"Q. Was your husband, Leroy, present there that day?

"A. Yes, he was.

"Q. And how frequently that day were you seeing Leroy Williams?

"A. . . . Pretty often. He was back and forth, you know, checking on me and the baby from the front to the back and from the back to the front.

"Q. Now when you were back there during the whole evening Mr. Williams continued to look in on you during the entire evening?

"A. Yes he did.

"Q. About how often would you say Mr. Williams would check on you?

"A. Ten minutes wouldn't even elapse."

It is further alleged that Leroy Williams was observed entering the Club 400 at approximately 8:00 p. m. on that date.

From the government's evidence the jury could have found that Leroy Williams was in the area of the Sugar Hill Pool Room at 18th and Broadway and the Club 400 at 2156 Broadway in Gary for approximately one hour the evening of January 14, 1974, commencing at about 7:30 p. m. If he was, he could not have been at home looking in on Roberta Williams at least every ten minutes during the same period. Count I of the indictment and the evidence under that count was therefore sufficient to support the jury's verdict.

The other count against Roberta Williams alleges that at the second Leroy Williams trial she testified that she was present at the same birthday party and further:

"Q. Did Mr. Williams leave that address to your memory or knowledge any time during January 14th?

"A. No, he didn't."

This testimony might be read either to be an affirmative statement that Williams was on the premises at all times or as merely a statement that she did not actually see him leave. The latter reading, however, is precluded by her further testimony during the second Leroy Williams trial that after 5:00 p. m. he was never "out of her sight" for more than five or ten minutes.

As we have said, the jury was entitled to believe that Leroy Williams was in the...