United States v. Clizer, 71-2209.

• Decision Date: 31 August 1972
• Docket Number: No. 71-2209.,71-2209.
• Citation: 464 F.2d 121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne B. CLIZER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.2d 121 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Wayne B. CLIZER, Defendant-Appellant.

No. 71-2209.

United States Court of Appeals, Ninth Circuit.

June 29, 1972.

Rehearing Denied August 31, 1972.

C. E. Hormel (argued), Ephrata, Wash., for defendant-appellant.

Carroll D. Gray, Asst. U. S. Atty. (argued), Dean C. Smith, U. S. Atty., Spokane, Wash., for plaintiff-appellee.

Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.

DUNIWAY, Circuit Judge:

Clizer appeals from a judgment of conviction on two counts, I and III, of perjury committed before a grand jury. We affirm the conviction on Count I and reverse the conviction on Count III.

A. Background.

In the summer of 1970, the National Farmers Organization, of which Clizer was a member and leader, was attempting, in the area of Grant County, Washington, to raise the price of hay. Clizer was active in these efforts. NFO tried to persuade its members and non-members to withhold prorated quantities of hay from the market. This program had failed because of lack of participation by area farmers, and it was even resisted by many NFO members. Clizer had attended NFO meetings in which violence had been advocated by some NFO members as a method of forcing dissenting farmers to comply.

During the early morning hours of August 7, 1970, a large number of hay stack fires occurred in the area. One result was an investigation by a federal grand jury for the Eastern District of Washington. It was seeking to determine whether 18 U.S.C. §§ 371, 837, 1951 and 1952 had been violated. Clizer was summoned before the grand jury and testified on November 10, 1970. On November 12, he was indicted.

B. Count I.

Count I was based on Clizer's denial that in or about February, 1970, he had fusees, dynamite, or a dynamite box in his home. Count I charged:

"Said testimony was then and there false in that in or about February, 1970 Wayne B. Clizer did have fuses, dynamite and a dynamite box in his house, all in violation of Section 1621, Title 18 United States Code."

1. Sufficiency of the evidence.

The government's chief witness, James Michel, testified that in late January, 1970, he went to Clizer's farm to inquire about obtaining a head gasket for his pick-up truck. While he was in the Clizer home, he observed three boxes stacked against a nearby wall. Two of the boxes were identical, and were painted white with red lettering. The words "flare fusees," "Diamond National," and "Ohio" appeared on these boxes. The boxes were approximately fifteen to eighteen inches long, twelve inches wide, and ten to fifteen inches high. The third box was "cardboard colored" and appeared to Michel to have been waxed or greased. The words, "danger dynamite" were printed on it in red letters. This box was fifteen to eighteen inches long, fifteen to sixteen inches wide, and six to eight inches high.

Gail Clarence (Bill) Wells, a self-employed mechanic and friend of Clizer, testified that in November or December of 1969, Clizer told Wells that he wanted to remove several willow stumps on his property, and asked whether Wells knew where some dynamite could be obtained. Finally, two government witnesses described the boxes in which dynamite and fusees are commonly sold, a description that coincided with the description of the boxes in the Clizer home offered by Michel.

a. The two witness rule.

Clizer argues that this evidence is insufficient to satisfy the "two witness" or "one witness plus corroboration" rule in perjury cases. That rule has long been in effect in the federal courts. Hammer v. United States, 1926, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118; Weiler v. United States, 1945, 323 U.S. 606, 607-608, 65 S.Ct. 548, 89 L.Ed. 495.¹ If we were to apply it here, we doubt that the conviction could stand.

We need not decide that question, however, because the Congress has changed the rule. On October 15, 1970, Congress enacted Pub.L. 91-452 (Organized Crime Control Act of 1970), which added Section 1623 to Title 18 of the United States Code, and contained the following provisions:

"(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.

. . . . . .

"(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence."

The legislative history of Pub.L. 91-452 shows that Congress intended to abolish the two-witness rule in cases to which 18 U.S.C. § 1623 applies. "This Title creates a new false declaration provision applicable in grand jury and court proceedings. It makes inapplicable to such prosecutions the two-witness and direct evidence rules. . . ." S.Rep. No. 91-617, 91st Cong., 1st Sess. 33 (1969). Accord, H.R.Rep. No. 91-1549, quoted in 1970 U.S.Code Cong. & Ad. News, 91st Cong.2d Sess., pp. 4007, 4008, 4024.

Section 1623, added by Title IV of Pub.L. 91-452, rather than the traditional two-witness rule, governs the nature and quantum of evidence required to convict in this case. It became effective October 15, 1970;² Clizer appeared before the Grand Jury on November 10, 1970.

b. The reasonable doubt rule.

Thus the sufficiency question in the present case turns on whether the government adduced "proof beyond a reasonable doubt. . . ." 18 U.S.C. § 1623(e).

We think that it did. Clizer and one of his daughters denied that the boxes described by Michel had ever been in their home. Clizer also testified that he did not remember the conversation with Wells, but he did not deny that he might have asked Wells where dynamite could be obtained. During Clizer's cross-examination of Michel, it became apparent that Michel's testimony conflicted in several respects with testimony he had given before the grand jury.

However, these "conflicting stories . . . presented a question of fact to be passed upon by the jury at the time of trial, and by the trial judge on the motion for new trial." Bush v. United States, 9 Cir., 1959, 267 F.2d 483, 485, and cases there cited. The jury elected to believe Michel rather than Clizer and his daughter.

We therefore hold, as the district court held in its Memorandum of Decision and Order, that the evidence was sufficient under the standard established by 18 U.S.C. § 1623(e) to sustain Clizer's conviction on Count I. See United States v. Nelson, 9 Cir., 1969, 419 F.2d 1237, 1241-1245.

2. The District Court's instruction.

Clizer also contends that his conviction on Count I should nevertheless be reversed because the jury did not follow the court's instruction on Count I. The court gave the two witness or one witness plus corroboration instruction. Clizer argues that the jury could not find him guilty because the government's evidence did not meet the requirements of the instruction, and the jury was bound to follow the instruction, even though it was erroneous.

We are not persuaded. Clizer relies on cases that do provide some support for his argument. See, e. g., Duncan v. Commonwealth, 330 S.W.2d 419 (Ky. 1959); Beach v. Commonwealth, 246 S.W.2d 587 (Ky. 1952). But whether a judge's instructions to the jury are followed is of concern to courts because in giving instructions a judge "`. . . merely acts as the mouthpiece of the law for the purpose of marking out a definite and clearly ascertained path by which the ends of justice are attained.'" Morris v. United States, 9 Cir., 1946, 156 F.2d 525, 531. In terms of policy the rule contended for makes the least sense when applied to a case where, as here, the jury's verdict conforms to the law, although not to the court's instruction. Thus it has been held that ". . . a verdict if in fact according to law will be sustained, even though the jury has arrived at it through the disregard of an erroneous instruction. . . . It would seem to be but common sense that, where a defendant was fairly tried and the jury had found that he had done a certain act which was an offense against the law, he should not escape punishment because of an erroneous statement of the law which the jury had not followed." People v. Abbott, 2d Dist., 1933, 132 Cal.App. 109, 112, 22 P.2d 566, 567.

In addition, because the evidence upon which Clizer's conviction is based conforms to the requirements of 18 U.S.C. § 1623(e), it is difficult to see how Clizer was prejudiced by the jury's failure to follow the court's instructions. Rule 52(a) F.R.Crim.P., provides that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The jury's verdict conforms to the law, and we fail to see how any substantial right of Clizer's was affected, or what purpose would be served by remanding his case for a new trial.

3. The fact that the perjury was charged under 18 U.S.C. § 1621 rather than 18 U.S.C. § 1623.

Count I expressly charges a violation of 18 U.S.C. § 1621 rather than of 18 U.S.C. § 1623. In contrast to Section 1623, Section 1621 does not define the nature or quantum of proof required for a conviction of perjury. However, the Supreme Court has held that "we must look to the indictment itself, and, if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute." Williams v. United States, 1897, 168 U. S. 382, 389, 18 S.Ct. 92, 94, 42 L.Ed. 509; Accord, United States v. Hutcheson, 1941, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788; Prussian v. United States, 1931, 282 U.S. 675, 680-681, 51 S.Ct. 223, 75 L.Ed. 610; United States v. Nixon, 1914, 235 U.S. 231, 235, 35 S.Ct. 49, 59 L.Ed. 207; United States v. Clark, 9 Cir., 1969, 416 F.2d 63, 64. Cf. Rule 7(c), F.R.Crim.P....