United States v. Johnson, 18377.

• Decision Date: 19 June 1969
• Docket Number: No. 18377.,18377.
• Citation: 414 F.2d 22
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Catherine JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

414 F.2d 22 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Catherine JOHNSON, Defendant-Appellant.

No. 18377.

United States Court of Appeals Sixth Circuit.

June 19, 1969.

John S. McLellan, Kingsport, Tenn., and Moses Krislov, Cleveland, Ohio, D. Bruce Shine, Kingsport, Tenn., on brief, for appellant.

Thomas A. Williams, Asst. U. S. Atty., Chattanooga, Tenn., J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on brief, for appellee.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant Catherine Johnson was indicted, and was convicted of perjury in violation of 18 U.S.C. § 1621 (1964) after a jury trial before the United States District Court for the Eastern District of Tennessee, Southern Division. She was sentenced to three years in the federal penitentiary.

In the aftermath of the trial and conviction of James Hoffa,¹ a third motion for new trial on his behalf was filed. Attached thereto (among others) was an affidavit signed by appellant on August 15, 1965, under the name of Patsy Jo Harris. In this affidavit appellant alleged that during the Hoffa trial in Chattanooga, Tennessee, and while the jury was sequestered on the 10th floor of the Read House Hotel under guard of United States Marshals, she was procured to render professional services as a prostitute to four members of the jury.

Subsequently, a federal grand jury was convened to investigate violations of the federal criminal laws in relation to the Hoffa new trial motions. Appellant was subpoenaed before the grand jury and on being questioned declined to answer on Fifth Amendment grounds. She was thereupon brought before a United States District Judge and granted immunity in relation to her testimony under the immunity provision of the Federal Communications Act, 47 U.S.C. § 409(l) (1964). Appellant thereupon testified, generally reiterating the allegations in her affidavit and identifying certain jurors and United States Marshals involved in the Hoffa trial from photographs.

On cross-examination she was indefinite as to her identification of two of the named jurors, but she was positive in asserting that she had sexual relations with jurors Curbow and Link several times on the 10th floor of the Read House Hotel during the course of the Hoffa trial. And she was positive in identifying a particular bellboy, Seymour Ball, as having procured her services, and a particular United States Marshal, James Kemp, as having escorted her to and from the 10th floor.

On March 24, 1967, the grand jury handed down a single-count indictment charging that appellant committed perjury when she testified before the grand jury that she had had sexual relations with jurors Curbow and Link during the course of the Hoffa trial.

At the trial the prosecution introduced the record of appellant's grand jury testimony and then called jurors Curbow and Link and Marshal Kemp. Each juror flatly denied ever having seen appellant (before the convening of the grand jury) and specifically denied having sexual relations with her during the course of the Hoffa trial. Marshal Kemp also testified that he had never seen or met appellant until the perjury trial. He denied knowing Seymour Ball and also specifically denied taking appellant to the 10th floor of the Read House Hotel during the Hoffa trial.

The prosecution called two other marshals — one who had overall and one who had direct supervision over the arrangements for sequestration of the Hoffa jury. Their testimony was that the 10th floor of the Read House Hotel had been carefully selected because its physical characteristics lent themselves to protection of the jury; that during the trial the hotel elevator operators generally did not go to the 10th floor (the top floor) except on order of a marshal; that 20 to 30 marshals were employed on three shifts, 7 days a week to be with the jury at the Read House Hotel at all times; that at least three were on duty at all times when the jury was in the hotel, with one of them stationed at each end of the long corridor at the exit doors and the other stationed midway in the corridor across from the two elevators; that each juror (including Curbow and Link and four married women) had individual rooms on this floor, and that anyone going onto the floor, could be seen by the three marshals on duty.

During the trial of this case the jury was taken to the 10th floor of the Read House Hotel to inspect the physical layout described above.

Appellant did not testify (as, of course, she had a clear right not to do). Seymour Ball was not called as a witness at this trial, although testimony showed his presence in Chattanooga in company with a Teamsters Union agent, Charles O'Brien.

There was no witness called at trial by appellant who offered direct support for the statements which occasioned the perjury charges. Three witnesses for the defense did, however, testify to facts which, if believed by the jury, would have tended to dispute elements of the prosecution's case and raise a reasonable doubt about appellant's guilt.

Ezell Ervons, who had been a bellboy at the Read House Hotel during the Hoffa trial, testified that he had been approached by a man whom he believed to be a United States Marshal and asked about a girl; that he had one; and that she went to the 10th floor of the hotel and subsequently came back and paid him. He identified the prostitute only by the name of Jo. He said that Jo was not appellant; that he had never seen Jo before or since, and he did not identify the marshal or the juror. He testified that after leaving the Read House Hotel he had worked on a job in Atlanta, Georgia, which Teamster agent O'Brien had secured for him.

Venette Weaver testified that in 1967 (three years after the Hoffa trial, but before this one) she had been rooming with a Mrs. Odom, whom Hoffa trial juror Curbow had been dating, and that in her presence a discussion between Curbow and Mrs. Odom had taken place. Her testimony was:

"Q. (Interposing) Who is she?

A. Mrs. Odom. Asked how he felt to have sexual intercourses with a girl younger than his own daughter.

Q. What, if anything, did Mr. Curbow say in response to that?

A. He said that, `She will have to be able to identify me.\'

Q. Was anything else said?

A. No, sir.

Q. With respect to this?

A. Huh-uh.

Q. And at that time I believe you testified you were sharing the same residence with —

A. (Interposing) Yes, she was sharing the residence, we were sharing the residence together.

Q. That is, you and Mrs. Odom?

A. Yes.

Q. And Mr. Curbow had been dating her?

A. Yes."

Curbow on cross-examination denied making such a statement. Mrs. Odom did not testify.

Troyce Maydean Henry testified that in company with United States Marshal Reidy she attended a party on the 10th floor of the Read House Hotel on the night the Hoffa trial ended. She testified that there were other women there. She also testified that she had seen no jurors there nor had she seen the appellant. She also testified that during the Hoffa trial she saw a man whom she later identified from photographs as juror Curbow at a V. F. W. hall on one occasion and at the Alamo Plaza Motel on another. She testified that she had never met this man before or since; that the identification was made approximately two years after the Hoffa trial and a year and a half after she had failed to identify anyone when she had first been shown the pictures of the Hoffa jury. She testified that she had originally gone to talk with Teamster Union officials at the behest of her brother-in-law, whom she identified as working for the Teamsters.

We have gone this much into the factual detail of this trial because of appellant's insistence in her first appellate question that she was entitled to have her motion for acquittal granted by the District Judge because of the failure of government proof to meet required legal standards.

There is, of course, no doubt that the prosecution does have a "unique and stringent burden of proof" in perjury cases. Spaeth v. United States, 232 F.2d 776, 777 (6th Cir. 1956). To sustain a perjury conviction there must be 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). Appellant argues vigorously in this case that jurors Curbow and Link by denying any contact with appellant cannot be regarded as meeting the "two witness" rule, since neither could support the other's denial. Assuming arguendo the validity of this contention (But see May v. United States, 280 F.2d 555 (6th Cir. 1960)), we believe there is ample independent corroboration. Appellant's story charged that United States Marshal Kemp escorted her to the 10th floor of the Read House Hotel on each occasion when she had sexual relations with Curbow and Link. Kemp positively denied doing any such thing. His testimony must be regarded as independent corroboration of that of Curbow and Link. So, too, is the mass of testimony pertaining to the physical and personnel arrangements made by the United States Marshal to protect this jury.

We conclude that the District Judge was correct in denying both the motion for acquittal at the close of proofs and the motion for new trial after the jury verdict of guilty. The factual issues were for jury determination.

Appellant also attacks the indictment as fundamentally defective because it failed to employ the word "willfully" which is contained in the perjury statute, 18 U.S.C. § 1621 (1964).² The District Judge rejected this argument because he held that the language of the indictment³ sufficiently alleged willfulness. See Finn v. United States, 256 F. 2d 304 (4th Cir. 1958). While we agree with this view, we affirm also on the ground that Rule 7(c) of the Federal Rules of Criminal Procedure greatly liberalized pleading practice so that the citation of the statute itself served to allege willfulness. Cochran v. United...