United States v. Allen
| Decision Date | 11 May 1955 |
| Docket Number | No. 34555.,34555. |
| Citation | 131 F. Supp. 323 |
| Parties | UNITED STATES of America, Plaintiff, v. Cyrus R. ALLEN, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Fred W. Kaess, U. S. Atty., Ronald L. Greenberg, Asst. U. S. Atty., for plaintiff.
Leslie W. Fleming, Detroit, Mich., for defendant.
This is a perjury case in which the government charges that defendant falsely testified in the trial of a case before the United States Court of Claims entitled McSweeney Trade School, Inc., v. United States, 127 F.Supp. 591, in that defendant, while under oath, "did then and there wilfully and contrary to such oath state and testify that he was a certified Public Accountant pursuant to a Certified Public Accountant's Certificate, issued by the State of Ohio." By stipulation of the parties, the government filed, as its bill of particulars, a copy of a transcript of the former proceedings wherein the alleged false testimony was given.
Materiality as to what was falsely sworn being a question for the court, Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692; Travis v. United States, 10 Cir., 123 F.2d 268; Blackmon v. United States, 5 Cir., 108 F. 2d 572, defendant moved to dismiss the indictment on the ground that the alleged false testimony was not material to the issues before the court in the former case. Defendant contends that he was called as a witness in the former case solely for the purpose of identifying certain documents and not as an expert accountant witness, that the testimony which he gave was not in the capacity of an expert witness and that it was not claimed that defendant ever certified any statements as a certified public accountant.
An examination of the transcript of the former proceedings discloses that defendant was called as a witness for the purpose of identifying an exhibit which plaintiff sought to have admitted into evidence. Attached to the exhibit were numerous financial statements such as cost analysis sheets, cost summaries and the like. Defendant testified that he prepared or at least aided in preparation of all of these various documents, taking the figures and information contained therein from the books and records of his employer McSweeney Trade School and from a projection of estimated costs. Preliminary to this, however, defendant, in stating his name, address, background and qualifications, said in response to a question that he had practiced accountancy for about twenty-five years. He was then asked by counsel for McSweeney:
At the close of defendant's direct testimony in that case, counsel for the then plaintiff offered the documents which defendant Allen had identified. Counsel for the government stated that he would like to defer any possible objection until after he had cross-examined the witness "because there may be certain defects in this, and I first also want to go into his knowledge and bases for some of the information," which right he was granted. Thereupon, government counsel interrogated defendant as to places and dates of his past employment. After stating that he had worked for various-named accounting firms, one during 1931, he was asked:
Later in the trial, defendant testified from a summary prepared by him as to the amounts yet unpaid for tools and tuition which constituted the amount of plaintiff's claim, as revised. On cross-examination, inquiry was again made of defendant as to times and places of defendant's past employment. He was also asked:
In recanting, the defendant testified:
Thereafter, defendant admitted that his previous statement, early in the trial, that he had received a charter as a certified public accountant was untrue.
Perjury means the wilfully giving of false testimony as to any material matter before a competent tribunal, under oath. United States v. Slutzky, 3 Cir., 79 F.2d 504. Whether such false testimony is material depends on whether it was capable of influencing the tribunal on the issue before it. Blackmon v. United States, 5 Cir., 108 F.2d 572; Fraser v. United States, 6 Cir., 145 F.2d 145. A material matter does not necessarily mean a matter that directly affects the ultimate issue of the trial. United States v. Slutzky, supra. It is sufficient if the false testimony gives weight and force to or detracts from testimony as to matters that are material. Pyle v. United States, 81 U.S.App.D.C. 209, 156 F.2d 852; Blackmon v. United States, supra; Doan v. United States, 9 Cir., 202 F.2d 674. Hence, it is generally said to be perjury to swear falsely to anything affecting the credibility of the witness, since such credibility is material to the inquiry in the sense in which that term is used in the perjury statute, 18 U. S.C.A. §§ 1621, 1622. United States v. Weiler, 3 Cir., 143 F.2d 204, reversed on other grounds 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495; Blackmon v. United States, supra; United States v. Landsberg, C.C., 23 F. 585; United States v. Shinn, C.C., 14 F. 447, 453. In the Landsberg case, it was stated 23 F. 586:
"`Every question in cross-examination, which goes to the witness' credit, is material for this...
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Thurston, In re
...is not eliminated merely because the lie is readily exposed or the prevarication is recanted or corrected. United States v. Allen, 131 F.Supp. 323, 326 (E.D.Mich., 1955). Second, this Court was in fact misled, and we emphasize that the Court properly should have been thus misled. 12 Whateve......
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United States v. Cobert
...testimony was material thereto. The specific United States Code sections involved were pleaded in the indictment); United States v. Allen, 131 F.Supp. 323 (E.D.Mich.1955) (where the indictment indicated that the defendant testified falsely at a certain trial in saying he was a C.P.A. and th......
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State v. Winters
...grounds, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945); Blackmon v. United States, 108 F.2d 572 (5 Cir. 1939); United States v. Allen, 131 F.Supp. 323 (E.D.Mich.1955). False testimony bearing solely on credibility may, but need not, be material. Harrell v. United States, 220 F.2d 516 (5 C......
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United States v. Masters
...affect the court in its decision on the issue that it was not material. This actual effect argument was refused in United States v. Allen, 131 F.Supp. 323 (E.D. Mich.1955): . . . the actual effect of the false testimony is not the determining factor, but rather its capacity to affect or inf......