United States v. Cook
| Decision Date | 28 September 1972 |
| Docket Number | No. 26458.,26458. |
| Citation | 497 F.2d 753 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Milford E. COOK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas P. Keefe (argued), of Walthew, Warner & Keefe, Max R. Nicolai, of Nicolai, Montgomery & Sorrel, Emmet T. Walsh, Seattle, Wash., for defendant-appellant.
Douglas D. McBroom, Asst. U. S. Atty. (argued), Richard G. McBroom, Jr., Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
Before ELY, WRIGHT and KILKENNY, Circuit Judges.
(SEE "NOTE" BELOW)
NOTE: Shortly after these majority and dissenting opinions were issued in slip sheet form, the Supreme Court of the United States handed down its opinion in Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed. 2d 568 (1973). We then recalled this court's judgment and remanded the cause to the District Court for reconsideration in the light of Bronston. The District Court did not disturb Cook's judgment of conviction, and a second appeal followed. On that appeal, we reversed Cook's conviction. 489 F.2d 286 (9th Cir. 1973). In that second, final decision, Judge Kilkenny, writing for the court, remarked that Bronston "essentially, tracked the reasoning previously set forth . . . ." in the dissenting opinion here published. We have therefore decided to direct the belated publication of the original opinions, believing that they, when reviewed in connection with Bronston, may be of some worth to those concerned with the law of perjury in the federal courts.
Cook appeals from his conviction by a jury of perjury, charged to have been committed before a federal grand jury in violation of 18 U.S.C. § 1621.
The grand jury generally was investigating gambling and racketeering in Seattle, Washington, and, at the time Cook testified, specifically was concerned with an alleged system of payoffs and shakedown practices in which the Seattle Police Department had been involved. Cook, who had joined the police force in 1941, was an Assistant Chief of Police at the time of the grand jury's investigation, but he retired after the perjury indictment was filed.
The indictment charged that Cook had willfully given false testimony before the grand jury on February 25, 1970, when he testified in three particulars as follows:
At the conclusion of the government's case, the trial judge dismissed the charge, insofar as it included item (c), for lack of sufficient convicting evidence. Hence, only the charges involving items (a) and (b) were submitted to the jury, whose general verdict read, "We the jury find the Defendant guilty as charged in the indictment."
The prosecution established, in great volumes of direct testimony, that some policemen had taken payoffs from gambling establishments. The evidence with reference to Cook's knowledge of the payoffs was both direct and circumstantial. The appellee introduced testimony of business operators and owners who were victims of police shakedowns and of numerous policemen who participated in the payoff system. The system was described in detail, and the evidence leaves little room for doubt that there had been widespread corruption in the Seattle Police Department. Regarding Cook's alleged involvement, Police Major Jessup and Assistant Chief Fuller both testified that they discussed the existence and operation of the payoff system with Cook on separate occasions. Jessup also testified that he received monthly payments from Cook. Assistant Chief Corr testified that he had observed Cook surreptitiously receiving envelopes from others.
In defense, Cook produced a dozen officers or former officers who testified that they did not have any knoweldge of policemen having been paid by gambling establishments and that they did not have any knowledge of officers currently on the force who had participated in shakedowns. In addition, Cook himself denied having had any personal knowledge of payoffs. Numerous character witnesses vouched for his veracity.
We shall discuss the assignments of error in the order outlined in appellant's brief.
We do not agree with Cook's argument that the questions upon which the charge is based are so "indefinite, vague, and ambiguous" as to require determination that the indictment itself is unconstitutionally vague. United States v. Marchisio, 344 F.2d 653, 661 (2d Cir. 1965). If there is vagueness in the term "any knowledge," such is necessarily inherent. Cf. Gebhard v. United States, 422 F.2d 281, 287-288 (9th Cir. 1970). We hold that the phrases "gambling establishment" and "being paid" are common phrases used in everyday conversational intercourse and are neither indefinite, vague, nor ambiguous.
In what might be considered a collateral attack on the sufficiency of the indictment, appellant contends that the questions and answers to Items (a) and (b) were lifted out of context, as a result of which his answers were given erroneous meaning. He points out that following (a) and prior to (b), the following interchange occurred:
Likewise, he charges that the indictment also omitted the following testimony given by appellant at the hearing in response to a question by a grand juror:
The factual background in Brown v. United States, 245 F.2d 549, 556 (8th Cir. 1957), upon which appellant relies is not sufficiently close to require comment. The failure to insert the missing questions and answers in the indictment did not give the answers to (a) and (b) "a meaning wholly different" from that which is manifest when they are read in the light of the omitted questions and answers. As we shall later mention, the issue of appellant's "understanding" was for the jury and they resolved it against him. The indictment was not inadequate as a matter of law.
As quoted above, the first question set forth in the indictment made inquiry as to whether Cook possessed "any knowledge of law enforcement officers being paid by operators of gambling establishments." The question was asked on February 25, 1970. Cook argues that "being paid" refers to the present and that there was no evidence whatsoever that payments were being paid at or about the time of the inquiry. True enough, there is no evidence of payoffs after October 1, 1968. However, the question and answer must be read in the light of the nature of the investigation which was being conducted before the grand jury.
The record discloses that appellant was 56 years of age at the time of the trial in July, 1970. He graduated from an Oregon high school in June, 1930, and for the next eleven years followed a variety of occupations. In 1941, he applied for a position with the Seattle Police Department and out of a group of 1200 applicants was selected in the top 50. He then took a thirteen week course in the Police Academy and was assigned to the traffic division of the police force. For the next two years, he was a patrolman and was then assigned to the motorcycle enforcement division. In 1947, he took and passed the examination for the position of sergeant, then attended Northwestern University Traffic Institute in Chicago for a period of five months. In 1950, he was promoted to Captain. His principal duties were in the traffic investigation division. Following a year and a half serving in that capacity and acting as an expert witness in traffic cases, he was promoted to Supervising Captain, in which capacity he served until August, 1956. In the meantime, in 1952, he had taken an examination for the position of Chief of Police and had finished third. In 1956, he was named Chief of the Patrol Division. After a variety of assignments, he was appointed Chief of the Detective Division in 1965, and six months later was assigned to the position of Assistant Chief of Police. The primary responsibility of the Assistant Chief was to command the Patrol Division, in which capacity his major function was to supervise. In December, 1969, he was named Assistant Chief in charge of the Tactical Services Bureau.
Reading the record of appellant's testimony before the grand jury and at the trial, convinces us that appellant is a person of ordinary intelligence, at the very least, and probably, of superior intellect. We are convinced that he was fully and completely informed as to the nature of the grand jury hearing and knew, beyond question, that the grand jury was inquiring into police payoffs during the period some years prior to the grand jury inquiry in January and February, 1970.1 Faced with this record, appellant is in no position to say that he misunderstood the question and thought it was referring to the present, rather than the past. His long experience in the Police Department and overall demonstrated intelligence, precludes any misunderstanding as to the meaning of the...
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