United States v. Edwards, 20327.

• Decision Date: 19 July 1971
• Docket Number: No. 20327.,20327.
• Citation: 443 F.2d 1286
• Parties: UNITED STATES of America, Appellee, v. William Carey EDWARDS, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.2d 1286 (1971)

UNITED STATES of America, Appellee, v. William Carey EDWARDS, Jr., Appellant.

No. 20327.

United States Court of Appeals, Eighth Circuit.

May 20, 1971.

Rehearings Denied July 19, 1971.

Ronald M. Sokol, Kansas City, Mo., for appellant.

Charles E. French, Asst. U. S. Atty., Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.

Before VOGEL and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.

Rehearings En Banc Denied July 19, 1971.

ROSS, Circuit Judge.

This is a direct criminal appeal from a perjury conviction under 18 U.S.C. § 1621. We affirm the judgment of conviction.

On December 17, 1969, the defendant, Edwards, testified at the trial of Walter Patrick Peyson in the United States District Court for the Western District of Missouri. Peyson was being tried under an indictment brought under 18 U.S.C. § 3150 for failure to appear before that court for trial on December 3, 1968, after being released on bond.

In that trial for failure to appear, Peyson testified that he did not inform his wife, or the government, of his whereabouts after being released on bond, because he was concerned about his own safety; that he was a member of the Minutemen; and that he was afraid that if he was apprehended, he might be assassinated by agents of the FBI or others. In support of that testimony, Robert DePugh testified that in late November or early December of 1967, he received a telephone call from Edwards during which Edwards advised DePugh that a Mr. Brown and a Mr. "Z" "were working with some government agency who was determined to destroy the Minutemen organization even to using these people to assassinate Mr. Peyson and myself DePugh and frame us for these bank robberies if the assassination plot backfired." DePugh further testified that he communicated this message to Peyson and told him that for his own safety Peyson should not turn himself in.

Edwards testified that in late November of 1967, while he was a federal fugitive, he had called DePugh and told him of a conversation that he, Edwards, had engaged in the prior day with one Henry Floyd Brown. This testimony was later the basis of the perjury indictment of Edwards.¹

Prior to his trial on the perjury charge, Edwards determined to act as his own counsel and the trial court appointed an attorney to assist him in conducting his own defense.

At this trial, the government offered testimony to show that Edwards had testified at Peyson's trial as alleged in the indictment, and a stipulation was received relating to the testimony of the court reporter at the Peyson trial.²

The government's case in chief included testimony that on November 9, 1967, and immediately prior thereto, Edwards was in federal custody but escaped on that date from a U. S. Marshal at LaCrosse, Indiana. Edwards was in federal custody continuously at all pertinent times prior thereto and thereafter.

The government's witnesses also testified that Henry Floyd Brown was in federal custody in Leavenworth, Kansas from December 8, 1958, to November 24, 1967, when he was discharged on mandatory release. The position of the government was that since Edwards was free only from November 9, 1967, to November 12, 1967, and since Henry Floyd Brown was then in federal custody in Leavenworth, Kansas, that Edwards and Henry Floyd Brown could not have had a personal conversation in Indiana during that time period. At the close of the government's evidence, defendant made a motion for acquittal, which was overruled.

Edwards produced witnesses who testified that another Brown, Glen B. Brown, was in fact the person to whom Edwards had reference in his testimony in the Peyson trial and identified him by pictures produced by Mr. Zarter, Administrative Assistant, Classification and Parole, United States Penitentiary, Leavenworth, Kansas. Two witnesses, both inmates at the United States Penitentiary at Leavenworth, testified that they had seen Edwards in the company of Glen B. Brown in Lafayette, Indiana in November of 1967.

In rebuttal, the government called Glen B. Brown, who testified that he was working in Florida during the period in question, that he had not been in Indiana during 1967 and that he had not met Edwards there or anywhere else since Brown's parole in July of 1967. Two additional witnesses, fellow workers of Glen B. Brown at the Jacksonville, Florida shipyards, corroborated the testimony of Glen B. Brown as to his whereabouts during the period in question.

Defendant then renewed his motion for judgment of acquittal which the court overruled. The jury found Edwards guilty of perjury as charged, and he was sentenced to a term of four years. A written motion for judgment of acquittal and a motion for new trial were filed by Edwards and overruled. This appeal was then taken.

Edwards alleges seven grounds for reversal on appeal as follows:

1. That the indictment fails to allege a violation of Section 1621, Title 18, U.S.Code.

2. That there was no evidence before the jury that Edwards was sworn under an oath to testify truly or an oath authorized by the United States when he testified in the Peyson trial.

3. That the trial court should have instructed the jury that they must unanimously agree as to Edwards\' guilt or innocence as to each statement alleged to have been falsely made by him; that the failure of the trial court so to instruct denied defendant a fair trial and trial by jury as required by the fifth and sixth amendments.

4. That the trial court erred in admitting evidence of Edwards\' escape from federal custody on November 9, 1967.

5. That the jury was not sufficiently informed of the surrounding circumstances of Edwards\' testimony at the Peyson trial to reach an intelligent determination whether the allegedly false testimony was willfully given.

6. That there was not a finding sufficient on the record that these allegedly false statements were material to the subject under inquiry at the Peyson trial.

7. That there was not sufficient evidence for conviction as a matter of law at the close of the government\'s evidence.

I. SUFFICIENCY OF THE INDICTMENT

Edwards contends that the terms of the indictment, "duly appeared," "was sworn as a witness," "being under oath" and "testify falsely," did not suffice when the statute requires that the one charged must have "taken an oath * * * that he will testify * * * truly."

Rule 7(c) of the Federal Rules of Criminal Procedure requires that the indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." There is no requirement that the indictment be phrased in the exact words of the statute so long as it describes each element of the offense.

In United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953), the Supreme Court determined that "the essential elements of the crime of perjury as defined in 18 U.S.C. § 1621 are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing." The Court also stated at page 377, 74 S.Ct. at page 115:

"The oath administered must be authorized by a law of the United States. This requirement is met by the allegations in the indictments that the defendants had `duly taken an oath.\' `Duly taken\' means an oath taken according to a law which authorizes such oath. See Robertson v. Perkins, 129 U.S. 233, 236, 9 S.Ct. 279, 280, 32 L.Ed. 686. The name of the person who administered the oath is not an essential element of the crime of perjury; the identity of such person goes only to the proof of whether the defendants were duly sworn."

Measured by these pronouncements of the law, the wording of the indictment is obviously sufficient. The indictment alleges that Edwards "being under oath" testified in a criminal trial in "the United States District Court for the Western District of Missouri"; that he "duly appeared and was sworn as a witness in the course of the trial"; and that Edwards, "being under oath, did, in violation of Section 1621, Title 18, United States Code, wilfully and contrary to such oath, testify falsely as to matters material to said trial. * * *"

As stated by the Supreme Court in Debrow, supra at 376, 74 S.Ct. at 114-115, "an indictment is required to set forth the elements of the offense sought to be charged.

`The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606.\' Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861."

These requirements have been fully met by this indictment.

II. ADEQUACY OF PROOF THAT DEFENDANT WAS UNDER OATH

Edwards' contention that there was no evidence before the jury that the defendant was under oath when he was testifying during the Peyson trial is without merit for two reasons:

1. Edwards stipulated that if the court reporter at the Peyson trial were called as a witness, she would testify "that defendant herein, William Carey Edwards, Jr., appeared in such proceedings as a witness for the defendant, Walter Patrick Peyson, and after having taken an oath administered by a Deputy Clerk of the United States District Court, William Carey Edwards, Jr., testified before such Court; . . ." (see n. 2, supra).

2. The government offered into evidence at the Edwards trial, portions of the transcript of evidence of the Peyson trial. This includes the

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