United States v. Laughlin

• Decision Date: 22 January 1964
• Docket Number: Cr. No. 599-63.
• Citation: 226 F. Supp. 112
• Parties: UNITED STATES v. James J. LAUGHLIN.
• Court: U.S. District Court — District of Columbia

226 F. Supp. 112

UNITED STATES v. James J. LAUGHLIN.

Cr. No. 599-63.

United States District Court District of Columbia.

January 22, 1964.

Joseph A. Lowther, U. S. Atty., for United States.

William J. Garber, Washington, D. C., for defendant.

CURRAN, District Judge.

In an opinion filed by the Court on November 13, 1963, D.C.D.C. 223 F.Supp. 623, the Court dismissed the perjury indictment then pending against the defendant James J. Laughlin.

On November 18, 1963 the Government filed a motion for the Court to reconsider and vacate the Court's order dismissing the indictment.

The Government bases its motion on two propositions. First, that even excluding the taped telephone calls, "there was ample evidence from the witness Gross, corroborated by documents, that the witness Bernice Gross had talked on the telephone with the defendant Laughlin many times before his voluntary appearance before the grand jury on March 6, 1963." And second, "that in the Court's opinion dismissing the indictment in this case, the Court has applied the quantum of evidence rule of perjury cases which is applicable only at the trial level."

In support of its first proposition, the Government attached to its motion photostatic copies of the telephone company records of the telephone calls and the bills for the same.

These records prove only one thing, if they prove anything at all, and that is, telephone calls were made between certain phone numbers. To argue from a phone company record showing a call between certain phone numbers that the persons in whose names those phones are listed made the call is destructive of a very important rule of evidence; namely, that the person making the entry (in this case the telephone operator) should be making the entry based on personal knowledge. This principle has often been invoked in excluding entries made by a person who had no personal knowledge of the supposed facts recorded. (It hardly need be pointed out that this same rule applies with equal force to a person-to-person call, as there the operator has no personal knowledge of the real parties making the call, but only records the names given to her.)

With regard to the telephone company bills it should be noted that because the person in whose name the telephone is listed pays the bills for calls billed to his listing, it is no proof whatsoever that certain of those calls were made by him personally, as any of several people may have permission to use his telephone and this is especially true in the case of a business phone.

Certainly none of this so called corroboration satisfies the requirement that there must be direct and positive evidence of falsity of defendant's sworn statement, relied on by the prosecution. Smith v. United States, C.C.A.Ohio 1948, 169 F.2d 118; Clayton v. United States, C.C.A.West Virginia 1922, 284 F. 537. And circumstantial evidence thereof is insufficient, no matter how persuasive. United States v. Harris, D.C.N.J.1940, 36 F.Supp. 877 reversed on other grounds 311 U.S. 292, 61 S.Ct. 217, 85 L.Ed. 196. The rule that oral testimony of one witness is insufficient unless corroborated to sustain a conviction for perjury presents an exception to the general rule that evidence which is sufficient to convince a jury of defendant's guilt beyond a reasonable doubt is sufficient to sustain a conviction. United States v. Palese, C. C.A.Del.1943, ...