United States v. Cobert

• Citation: 227 F. Supp. 915
• Decision Date: 20 March 1964
• Docket Number: No. 33101 CD.,33101 CD.
• Parties: UNITED STATES of America, Plaintiff, v. Frank COBERT, Defendant.
• Court: U.S. District Court — Southern District of California

227 F. Supp. 915

UNITED STATES of America, Plaintiff, v. Frank COBERT, Defendant.

No. 33101 CD.

United States District Court S. D. California, Central Division.

March 20, 1964.

Francis C. Whelan, U. S. Atty., by Benjamin S. Farber, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Morton Galane, Las Vegas, Nev., David H. Cannon, Glendale, Cal., for defendant.

BYRNE, District Judge.

On January 8, 1964, the United States of America, plaintiff, filed an indictment against Frank Cobert, defendant. The indictment alleges that on or about February 28, 1963, within the Southern District of California, defendant took an oath before the Grand Jury which was duly impaneled, and sitting in the said District, and was inquiring into an unspecified matter then before it. It is then alleged that the defendant swore that he would testify truly, and that contrary to that oath he stated "material matter" which he did not believe to be true in that he testified as follows:

"Q. Hy Kamin isn't just a listing post there at the pay phone taking action and turning some of it over to you?

"A. No.

"Q. You know nothing about the situation?

"A. No. I would be tickled if he did if I wanted the action. In other words, the kind of action that Hy and I would bet jointly, I wouldn't want if it was hot.

"Q. You certainly wouldn't want any part of any action made by Hy Kamin when he stays by the telephone and gets telephone bets from people and then turns it over to you?

"A. Certainly not.

"Q. In fact, if you were a party to such a thing, you could lose your license?

"A. Yes.

"Q. To your knowledge such a thing is not taking place?

"A. To my knowledge.

"Q. Between you and Hy Kamin has there ever been any discussion about lay-offs?

"A. About lay-offs?

"Q. Yes, sir.

"A. No. We don't lay off. We cut the bet down at source. That's why I told you I'd rather take you at 10 per cent and not him. His I'd sooner turn down." Emphasis added

The testimony is alleged to be false because the defendant then knew that Hy Kamin was a listing post at the pay telephone at the Derby Turf Club in Las Vegas, Nevada; that Kamin was accepting wagers and turning them over to the defendant; and that Kamin and defendant had discussed "layoffs" of wagers. All of this was said to be in violation of 18 U.S.C. § 1621, which reads as follows:

"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly * * * will fully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury * * *."

On March 3, 1964, defendant made a motion to dismiss the indictment for failure to comply with the requirement that it be a "plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7(c), Fed.Rules Crim.Proc. It is also alleged that the indictment violates the Sixth Amendment to the Constitution of the United States in that it does not inform the defendant of the "nature and cause of the accusation". Defendant assigns five deficiencies in the indictment, each of which will be discussed below.

Should the first ground of defendant's motion be sustained? The indictment uses the words and phrases: listing post; taking action; turning some of it over to you; situation; a thing; layoffs; and turns it over to you. These expressions are italicized above, insofar as the defendant objects to their use. Defendant contends that this language is so vague and equivocal and subject to varying interpretations that it cannot be used to sustain the indictment against him.

The best statement of the principles to be applied when such a contention is made is found in United States v. Lattimore, 94 U.S.App.D.C. 268, 215 F.2d 847 (1954). In Lattimore the defendant had been asked if he knew someone was a "Communist", and he answered in the negative and indicated that he understood there was a distinction between a Communist and a Socialist. He was also asked if he was a Communist "sympathizer", to which he answered in the negative. These answers were assigned as perjury, and defendant claimed that the terms used were too vague to support an indictment. The court, discussing the word "sympathizer", said, 215 F.2d at page 849:

"The word `sympathizer' is not of sufficiently certain meaning to sustain a charge of perjury. This count is that Lattimore said he had never been a sympathizer whereas he had been a sympathizer. There is no definition of the term `sympathizer' or any concrete specification of its content either in the indictment or in the statute. Without such definition or specification the term has no certain meaning."

But, in discussing the word "Communist" the court said, at pages 852-53:

"Lattimore says this count is invalid for vagueness, in that the word `Communist' has no certain meaning and so the meaning of neither the question nor the answer can be ascertained. * * * So far as the face of the indictment is concerned the question put to Lattimore was whether he knew something. Upon the face of it Lattimore understood the question. His alleged answer not only reflected an understanding of the term used by his questioner but indicated a specific and clearly defined understanding of it. Answering, he drew a line between a Socialist and a Communist, surely an act which would not be attempted except by one who thought he knew what the subject of the question was. It may be true that the word `Communist' may be used with different shades, gradations or variations of meaning, but all such are within a clearly established generic meaning. The word is not without a meaning which can be used with mutual understanding by a questioner and an answerer. The face of this indictment indicates that the term was so understood. If it was not so — if there was a misunderstanding between the two men — that fact should be asserted and shown as part of the defense."

Thus, Lattimore teaches that the test which is applied in such cases is neither wholly objective, nor wholly subjective. It would seem that the meeting of minds is the most important thing. Usually the words used are of such well known content that it will be quite apparent that the questioner and answerer understood each other. But, even if this would not be objectively obvious, if from the face of the indictment it appears that the minds of the questioner and answerer did, in fact, meet on the definition of the words used, the indictment will not be too vague. See also, United States v. Larocca, 245 F.2d 196 (3d Cir. 1957) (use of the word "business" not too vague in context); Boehm v. United States, 123 F.2d 791 (8th Cir. 1941), cert. denied, 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200, rehearing denied, 315 U.S. 828, 62 S.Ct. 794, 86 L. Ed. 1223 (1942) (use of phrases, "pad expense accounts", "kick backs" and "slush fund" did not make the indictment too vague. But they appeared in at least one dictionary.); United States v. Schaier, 175 F.Supp. 838 (S.D. N.Y.1959) (use of expression "suggested" something was proper where it was perfectly obvious that the defendant understood the word as used.); and United States v. Lattimore, 127 F.Supp. 405 (D.D.C.), affirmed, 98 U.S.App.D.C. 77, 232 F.2d 334 (1955) (use of phrase, "follower of the Communist line" was too vague to support an indictment). Thus, in the case at hand the court, by the use of the above-mentioned standards, must determine whether the indictment shows that the minds of the defendant and his questioner met.

By an objective standard it is difficult to ascertain what is meant by "listing post", "action", and "lay-off". These do not appear to have any truly accepted meaning; at least not to the untutored layman. Of course, there may be a dictionary that indicates the definition of these words, but the court's attention has not been directed to one. Therefore, the indictment will only be found sufficient in these particulars if it shows on its face that it is probable defendant understood the terms used and answered accordingly.

There is nothing in the indictment to indicate that the defendant understood the phrase "listing post". In fact, the plaintiff has compounded the confusion by stating that "listing post" should read "listening post". Opposition in part to defendant's motion for bill of particulars Thus, plaintiff would convict defendant for indicating that Hy Kamin isn't "just a listing post", where plaintiff itself says Kamin in fact wasn't, but was a "listening post" instead. Suffice to say that the phrase "listing post" is so vague that it will not support a perjury indictment.

On the other hand, the form of the defendant's answers shows that he probably knew what was meant by "action" and "lay-off". He used the words freely in his answers, just as anyone familiar with a particular trade's jargon would use it. So in one answer he said: "I would be tickled if he did if I wanted the action. In other words, the kind of action that Hy and I would bet jointly * * *." Emphasis added And at another point he not only indicates familiarity with the phrase "lay-off", he distinguishes it from another phrase by saying: "We don't lay-off. We cut the bet down at the source." Thus, on the face of the indictment, it appears that the minds of the questioner and the defendant met, and that there was complete mutual understanding when these words were used. If that was not truly the case, that can be "asserted and shown as part of the defense". United States v. Lattimore, supra.

The other words and phrases which defendant objects to are clear enough when read in context, and do not, in any way, vitiate the indictment.

Since all assignments of perjury can be put into a single count and proof of any one of them will sustain the count, it would seem that the whole count cannot be dismissed due to a vitiating...