United States v. Booth

• Decision Date: 31 January 1972
• Docket Number: No. 71-1510.,71-1510.
• Citation: 454 F.2d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James BOOTH, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

454 F.2d 318 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. James BOOTH, Jr., Defendant-Appellant.

No. 71-1510.

United States Court of Appeals, Sixth Circuit.

January 31, 1972.

Howard Moore, Jr. (Court Appointed), Atlanta, Ga., for appellant.

Larry E. Parrish, Asst. U. S. Atty., Memphis, Tenn., Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief, for appellee.

Before CELEBREZZE, PECK and MILLER, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from Defendant-Appellant Booth's conviction after a jury trial for making a false statement to his local Selective Service Board and for failing to keep his local board informed of his current address. For the reasons set forth below, we affirm the judgment of the District Court.

Appellant's conviction arose out of facts relating to a notice of reclassification from 4-F to 1-A, which Local Board No. 84 mailed to Appellant's mother's address in Memphis, Tennessee, on December 12, 1967. On or about January 8, 1968, the notice was returned to the local board with the following notation appearing on the face of the unopened envelope:

"No one here by that name. Forward to, School of Marxist Studies, Montreal, Quebec, Canada."

The envelope bore a Montreal postmark, revealing that delivery had been attempted at the address indicated.

The local board thereafter mailed the notice in a new envelope to an Acklen Street address of Appellant's cousin in Nashville, Tennessee, which had been provided by the F.B.I. This envelope was returned unopened with the following notation on its face: "Wrong address, Karl Marxist Student, Canada." The local board then mailed the notice to a dormitory on the campus of Tennessee State A & I University in Nashville, where Appellant had previously received mail when he was a student at that University. The notice was returned after two days marked "unclaimed."

The notice was once again mailed to the Memphis address of Appellant's mother on January 19, 1968. In a subsequent telephone call by the Clerk of the local board, Appellant's mother informed the Clerk that she did not know where Appellant could be located and that she was holding his mail for him.

On March 19, 1968, the F.B.I. located Appellant at a Nashville address where he was then living. In response to the F.B.I.'s instructions, Appellant wrote to his local board on March 20, 1968, informing them of his current Nashville address. On May 1, 1968, the local board sent Appellant a notice to report for induction. Appellant failed to report, and he was subsequently indicted for failing to keep his local board informed of his current address on or about May 1, 1968, and for failure to report for induction. On January 5 and 6, 1970, Appellant was tried without a jury and acquitted on both of these counts before the Honorable Bailey Brown, United States District Court for the Western District of Tennessee, Western Division. At this January 1970 trial, Appellant testified that he did not know who had written the notes referring to the School of Marxist Studies in Montreal on the envelopes containing the notice of reclassification.

After his acquittal in the January 1970 trial, the Government submitted the envelopes which had been returned to the local board with notations thereon to a questioned documents examiner and a fingerprint expert. The documents examiner concluded that some of the writing on the envelopes was Appellant's, and the fingerprint expert identified Appellant's latent finger and palm prints on the envelopes. As a result of these findings, Appellant was indicted on the following three counts which are the basis of the present appeal: (I) perjury in his testimony at the January 1970 trial that he did not know who had written the note referring to the Marxist School on the envelope sent by the local board on December 12, 1967, in violation of 18 U.S.C. § 1621; (II) wilfully and knowingly making a false, fictitious statement and representation to his local board on or about January 8, 1968, to the effect that he no longer resided or received mail at his mother's Memphis address, by writing the note "No one here by that name. Forward to, School of Marxist Study, Montreal, Quebec, Canada" on the envelope containing the December 12, 1967, reclassification notice and sent to Appellant's mother's Memphis address, in violation of 18 U.S.C. § 1001; and (III) wilfully and knowingly failing to keep his local board informed of his current address on or about January 8, 1968, in violation of 50 U.S.C.App. § 462(a) and the regulations thereunder. Appellant's jury trial under this indictment commenced on December 7, 1970, in the United States District Court for the Western District of Tennessee, Western Division, Hon. Robert M. McRae, Jr., presiding and on December 11 and 15, 1970, the jury returned verdicts of not guilty on count I and guilty on counts II and III. Appellant's motions for arrest of judgment, new trial, and acquittal were denied, and the District Court sentenced Appellant to two years probation on each of counts II and III, the sentences to run concurrently.

On appeal, Appellant asserts that his conviction must be reversed because (1) the jury verdicts of not guilty on count I and guilty on counts II and III are fatally inconsistent, and (2) there was insufficient evidence to sustain the verdict of guilty under count III.

With respect to the asserted conflict between the verdict of not guilty on count I and guilty on counts II and III, this Court has consistently held that an apparent inconsistency in a jury's guilty and not guilty verdicts on a multi-count or multi-party indictment does not invalidate the verdicts. United States v. Bevins, 430 F.2d 601, 602-603 (6th Cir. 1970); United States v. Shipp, 359 F.2d 185, 189 (6th Cir. 1966); United States v. McGee, 315 F.2d 479, 481 (6th Cir. 1963); Conley v. United States, 257 F.2d 141, 144 (6th Cir. 1958). See also Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925). This rule is particularly applicable to the alleged inconsistency between the jury's verdict of not guilty on the perjury charge in count I and the guilty verdicts under counts II and III in the present case. There is a "unique and stringent burden of proof" which must be borne by the prosecution in perjury charges, United States v. Johnson, 414 F.2d 22, 25 (6th Cir. 1969), Spaeth v. United States, 232 F.2d 776, 777 (6th Cir. 1956), including the requirements that the falsity of the defendant's testimony be supported by at least two witnesses or one witness corroborated by independent circumstances, Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), and that the defendant's intent to testify falsely be clearly proven. See United States v. Osborn, 415 F.2d 1021, 1026 (6th Cir. 1969); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967). It therefore cannot be said that the jury's failure to find Appellant guilty of perjury under count I in any way affects the validity of the verdicts under counts II and III.

Appellant further argues, however, that the guilty verdicts on both counts II and III are themselves manifestly irreconcilable, relying on Thomas v. United States, 314 F.2d 936 (5th Cir. 1963). In Thomas, the defendant was found guilty on count I, charging the smuggling of marihuana into the United States, as well as count II, charging the transportation and concealment of marihuana within the United States without having paid a transfer tax. Ruling that the conviction under count I was necessarily predicated on the conclusive evidence that the defendant had acquired the single shipment of marihuana in Mexico, whereas count II was predicated on the defendant's having obtained the marihuana within the United States, the Court of Appeals reversed the conviction under count II.

We find no such inherent conflict between Appellant's convictions under both count II and count III in ...