United States v. Koonce, 72-1726.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 485 F.2d 374
• Docket Number: No. 72-1726.,72-1726.
• Parties: UNITED STATES of America, Appellee, v. Carl E. KOONCE, Jr., Appellant.
• Decision Date: 03 October 1973

485 F.2d 374 (1973)

UNITED STATES of America, Appellee,
v.
Carl E. KOONCE, Jr., Appellant.

No. 72-1726.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1973.

Decided October 3, 1973.

Rehearing Denied November 12, 1973.

485 F.2d 375

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Robert G. Duncan, Kansas City, Mo., for appellant

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, LAY and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

Defendant Carl E. Koonce, Jr. appeals from his conviction of making a false material declaration before a grand jury of the United States in violation of 18 U.S.C. § 1623.¹

Defendant Koonce, a captain in the North Kansas City Police Department, was charged in a four-count indictment May 10, 1972, with having made false material declarations before a duly impaneled grand jury of the Western District of Missouri on December 7, 1971. A jury acquitted defendant on three counts and found him guilty on count II of the indictment. He was sentenced to three years' imprisonment.

On appeal defendant raises four issues: (1) the constitutionality of 18 U. S.C. § 1623; (2) error in not giving his requested instruction on credibility; (3) illegal search and seizure of the allegedly stolen boat; and (4) the Government failed to prove that the declarations made were material to any matter that was properly under investigation by the grand jury. The facts necessary to a resolution of the issues presented will be set out in the course of the opinion.

I. Constitutionality of 18 U.S. C. § 1623. Defendant, relying upon Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), argues that 18 U.S.C. § 1623 is unconstitutional because it modifies the traditional "two-witness" rule for perjury convictions; which rule the defendant would have us find is constitutionally mandated. While we would agree with defendant that the "two-witness" rule has a long tradition in common law jurisdictions, see 7 Wigmore, Evidence, § 2040-43, we are unable to find it has been elevated to a constitutional principle and that Congress may not pass a statute in derogation of the rule. This conclusion is in accord with the principles enunciated in the cases relied upon by the defendant.

In Wood v. United States, 39 U.S. (14 Pet.) 429, 439 (1840) the Supreme

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Court said regarding the traditional rule

"It is said to be an inflexible rule of the common law, applicable to every charge of perjury; that it cannot be changed but by the legislative power; that until some statutory change is made, courts must enforce it . . . ." (emphasis supplied).

And, almost a century later in Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926), the Court noted:

"The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention." (footnote omitted).

In Weiler v. United States, supra, relied upon by the defendant the Court refused the government's request to abandon the rule, commenting, "we cannot reject as wholly unreasonable the notion that a conviction for perjury ought not to rest entirely upon `an oath against an oath'" and then went on to say, "whether it logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule." Weiler at 609, 65 S. Ct. at 550.

A study of these decisions leads us to the conclusion that the "two-witness" rule in perjury cases is not constitutionally mandated. Where the framers of the Constitution felt a rule of evidence should have constitutional protection they specifically provided that protection in unambiguous terms.² We, therefore, find that elimination of the rule by 18 U.S.C. § 1623(e)³ was within the power of Congress. This conclusion is in accord with the other courts that have considered the question. United States v. Ceccerelli, 350 F.Supp. 475 (W.D.Pa. 1972); United States v. McGinnis, 344 F.Supp. 89 (S.D.Tex.1972).⁴

Defendant also argues that § 1623 is unconstitutional as a denial of equal protection. He contends that because a defendant may be punished under 18 U.S.C. § 1621 for perjury for any sworn testimony, which could include those situations covered by § 1623, there is an equal protection violation, since all persons who commit the same crime must be subject to the same range of punishment, citing Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

We think the defendant's argument is not well taken and that § 1623 does not deprive defendant of the equal protection of the laws. "While the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is `so unjustifiable as to be violative of due process.' Bolling v. Sharpe, 347 U. S. 497, 499 74 S.Ct. 693, 694, 98 L.Ed. 884." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). Applying the equal protection standard, that all persons standing in the same relationship to the governmental action challenged be treated uniformly, Eisenstadt v. Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), we can find no unjustifiable discrimination here. Section 1623 applies only to cases where false declarations

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are made before a court or grand jury of the United States; § 1621 applies in all cases where testimony is given under oath. Congress could rationally conclude that cases involving false testimony before a court or grand jury are different in specie from and more detrimental to the common cause than other instances of false testimony and decide to punish them differently,⁵ as well as provide for a different standard of proof to apply in such a prosecution.⁶ Defendant has not here made out a case approaching the discrimination held violative of the equal protection clause in Skinner v. Oklahoma, supra, or McLaughlin v. Florida, supra.

II. The Refused Instruction. Defendant claims that the trial judge committed reversible error when he refused to give defendant's proffered "falsus in uno, falsus in omnibus" instruction.⁷

Kane v. United States, 431 F.2d 172 (8th Cir. 1970), which defendant cites as support for his claim of error, does not support the proposition that such an instruction should be given whenever requested by the defendant. There we found that the giving of such an instruction, challenged by the defendant Kane was at most harmless error. As was stated in Shelton v. United States, 83 U.S.App.D.C. 257, 169 F.2d 665, 667 (D.C. Cir. 1946), cert. denied, 335 U.S. 834, 69 S.Ct. 24, 93 L.Ed. 387 (1948):

"The maxim, `Falsus in uno, falsus in omnibus,\' as applied to witnesses, is not an inflexible rule of evidence, nor is it mandatory; the trial court need not require the jury to disregard a witness\' testimony altogether even if it is proved or conceded to be false in part. As Professor Wigmore has pointed out, the maxim has to do solely with the weight of the testimony, not with its admissibility." (footnote omitted).

Nor do the other cases cited by defendant support his claim of error. The trial judge gave an instruction respecting credibility⁸ which conveyed materially the same impression to the jury as that requested by the defendant. The judge also carefully charged the jury as to the weight to be given the testimony of an informer and an accomplice. We fail to see how the refusal to give the requested charge could have prejudiced

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any substantial right of the defendant. Rule 52(a), Fed.R.Crim.P

III. Search and Seizure Issue. Defendant further contends that the failure of the trial judge to grant his motion to suppress evidence relating to the allegedly stolen boat and in allowing evidence obtained by execution of a search warrant admitted at trial was a violation of his Fourth Amendment right to be free from any unreasonable searches and seizures.

The factual background is basically uncontested. On July 5, 1971, Trooper William Bell of the Missouri Highway Patrol was engaged in investigation of a report that defendant was in possession of a stolen boat. The boat was stored by defendant in a rented shed at the Rock Harbor Resort, a private area at the Lake of the Ozarks. After receiving the resort owner's permission, Bell proceeded to the shed, took various photographs of the boat from positions both inside and outside the shed, and climbed upon the boat in order to secure various identification numbers from it. This was done without defendant's consent and without a warrant.

On July 28, 1971, Trooper Bell, relying on information gathered on July 5, made a second trip to the resort with two employees of Sears, Roebuck & Co., the purpose of this trip being to see whether they could identify the boat as one stolen from a Sears warehouse in North Kansas City in May 1965. The two employees identified the boat as a Sears boat, one of them specifically indicating that it was this particular boat that had been stolen, he having done some repair work on it before the theft and noticing a part missing at present that was missing then. This second visit was also without the defendant's consent and without a warrant. No further action was taken upon the information gathered by Trooper Bell at this time.

Defendant Koonce testified before the federal grand jury December 7, 1971, at which time he was questioned about his ownership of the boat. On December 13, 1971, application was made for a search warrant to the Camden County magistrate to seize the defendant's boat. This application was supported by two affidavits, one by Trooper Bell alleging facts...