United States v. Rose

• Decision Date: 10 July 1953
• Docket Number: No. 12217.,12217.
• Citation: 113 F. Supp. 775
• Parties: UNITED STATES v. ROSE.
• Court: U.S. District Court — Middle District of Pennsylvania

113 F. Supp. 775

UNITED STATES v. ROSE.

No. 12217.

United States District Court M. D. Pennsylvania.

July 10, 1953.

COPYRIGHT MATERIAL OMITTED

Frank W. Towey, Jr., Sp. Asst. to the Atty. Gen., Washington, D. C., Arthur A. Maguire, U. S. Atty., Scranton, Pa., for plaintiff.

John H. Bigelow and Anthony J. Ciotola, Hazleton, Pa., Francis J. Myers and Cornelius C. O'Brien, Jr., Philadelphia, Pa., for defendant.

MURPHY, District Judge.

Defendant convicted of perjury, 18 U.S. C.A. § 1621, moves for judgment of acquittal¹ and for a new trial. A grand jury, investigating whether the government was defrauded as to the cost of operations of "G. I. Schools", questioned defendant as a supplier of York Painters and Paperhangers Training School, Inc. It appeared that the school purchased tools from the Peerless Wall Paper Company for $5870.08. There was, however, apparently covering the same transaction defendant's invoice and a cancelled school check to defendant's order for $10,583.04.

Inquiring into the good faith of the transaction the grand jury asked defendant what he did with the check and the proceeds thereof. He said he cashed it at the Northwestern National Bank; paid about $1500.00 cash on one transaction to the Federal Wall Paper Company; about $3000.00 cash on another transaction to the Fidelity Paint and Varnish Company; placed the balance in a bureau drawer at home; and that he did not have a safe deposit box. One commits perjury when he knowingly states contrary to his oath any material matter which he does not believe to be true. United States v. Seavey, 3 Cir., 180 F.2d 837, certiorari denied 339 U.S. 979, 70 S.Ct. 1023, 94 L.Ed. 1383.

There was sufficient competent evidence from which the jury could reasonably find that defendant testified falsely in each instance.

Defendant asserts absence of material matter; the evidence does not meet the standard required in perjury cases; error in ruling on defendant's points for charge, and in refusing his requests to inspect the transcript of his grand jury testimony.²

Materiality was a question of law for the court. Sinclair v. United States, 279 U.S. 263, at page 298, 49 S.Ct. 268, 73 L.Ed. 692; Carroll v. United States, 2 Cir., 1927, 16 F.2d 951, at page 954; United States v. Slutzky, 3 Cir., 1935, 79 F.2d 504, at page 506; Steinman v. McWilliams, 6 Pa. 170 at page 177. The test is whether the testimony has a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation. United States v. Moran, 2 Cir., 1952, 194 F.2d 623, at page 626. It is not negatived by the fact that a truthful answer would not have made the inquiry more successful. United States v. Goldstein, 2 Cir., 1948, 168 F.2d 666, at page 671. The scope of the inquiry should not be limited by doubts as to whether or not anyone would be indicted. Blair v. United States, 250 U.S. 273, at page 282, 39 S.Ct. 468, 63 L.Ed. 979. Defendant had a duty to give truthful answers. United States v. Johnson, 1943, 319 U.S. 503, at page 510, 63 S.Ct. 1233, 87 L.Ed. 1546; United States v. Norris, 300 U.S. 564, at page 574, 57 S.Ct. 535, 81 L.Ed. 808. The grand jury had a right to know whether or not the criminal laws of the United States had been violated. The matter involved was obviously material.

As to quantum and quality of the evidence.

A vice president of the Northwestern Bank testified (Count I) that defendant deposited the entire amount of the check to the account of Maurice or Bessie Rose. Against the deposit he drew a check—not the usual counter check—to cash for $3534.72;³ drew a check payable to Peerless Wall Paper Company for $5870.08, and requested it be certified. Certification was delayed several days until the $10,583.04 check cleared the drawee bank. As corroboration the government produced the three checks, the deposit ticket, the bank's ledger card, and microfilms reflecting the transactions involving defendant's account.

Philip Cohen, of Federal (Count II) and John Urban, of Fidelity (Count III) each denied having any such transaction with defendant. As corroboration they produced their books of account, records, invoices and deposit tickets.

There was testimony that defendant requested Mr. Urban to write and date back a letter to prove the defendant had a transaction with him about the time covered in defendant's testimony, and that defendant threatened him with jail if he did not comply. He refused.

Evidence of misconduct of a party in connection with the trial of his case is admissible as tending to show that he was unwilling to rely upon the truth of his cause. United States v. Katz, D.C.M.D. Pa., 78 F.Supp. 435, at page 438, affirmed 3 Cir., 173 F.2d 116; Vetterli v. United States, 9 Cir., 1952, 198 F.2d 291 at page 294.

A bank employee testified defendant did have a safe deposit box at the bank (Count V). Originally in defendant's name only, the names of his wife and daughter were later added. As corroboration there was the rental contract signed by defendant and the record of visits indicating by defendant's signatures thirty-eight visits thereto.

To prove defendant placed no proceeds of the $10,583.04 check in a bureau drawer (Count IV) the government relied upon the foregoing evidence, particularly that under Count I. The various witnesses and circumstances were competent for that purpose. The government need not corroborate the particular circumstances but merely prove the falsity of the oath itself. United States v. Palese, 3 Cir., 133 F.2d 600, at page 603; United States v. Seavey, supra, 180 F.2d at page 840; United States v. Hiss, 2 Cir., 185 F.2d 822, at page 830; United States v. Moran, supra, 194 F.2d at page 627; Com. v. Schindler, 170 Pa. Super. 337 at page 342, 86 A.2d 151; Com. v. Gore, 171 Pa.Super. 8 at page 13, 90 A.2d 405.

"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 * * *." Hammer v. United States, 1926, 271 U.S. 620, at page 626, 46 S.Ct. 603, 604, 78 L.Ed. 1118, and see Weiler v. United States, 1945, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496; Maragon v. United States, 1950, 87 U.S.App.D.C. 349, 187 F.2d 79.

The converse is also true: the direct testimony of one witness is sufficient⁴ if that testimony is supported by proof of corroborative circumstances. United States v. Palese, supra, 133 F.2d at page 602; United States v. Seavey, supra, 180 F.2d at page 839; United States v. Nessanbaum, 3 Cir., 205 F.2d 93.

"* * * the rule * * * does not relate to the kind or amount of other evidence required to establish that fact." Hammer v. United States, supra, 271 U.S. at page 627, 46 S.Ct. at page 604, and see Vetterli v. United States, supra, 198 F.2d at page 293; United States v. Marachowsky, 7 Cir., 1953, 201 F.2d 5.

"As to the nature of the corroboration, no detailed rule seems to have been laid down, nor ought to be laid down." VII, Wigmore on Evidence, 3d Ed. § 2042, pp. 278-279.⁵

"Two elements must enter into a determination that corroborative evidence is sufficient: (1) that the evidence, if true, substantiates the testimony of a single witness who has sworn to the falsity of the alleged perjurious statement; (2) that the corroborative evidence is trustworthy. To resolve this latter question is to determine the credibility of the corroborative testimony, a function which belongs exclusively to the jury." Weiler v. United States, supra, 323 U.S. 606, at page 610, 65 S.Ct. 548, 550, 89 L.Ed. 495, 156 A.L.R. 496. "The jury should be instructed not to convict unless the testimony of the principal witness has been so corroborated that they believe it to be true beyond a reasonable doubt." Wigmore Id.

"Beyond that the rule requires nothing." Com. v. Schindler, supra, 170 Pa.Super. at page 342, 86 A.2d 151, 153; Com. v. Gore, supra, 171 Pa.Super. at page 14, 90 A.2d 405.

The several business records were duly authenticated. See 28 U.S.C.A. § 1732; 28 P.S.Pa. § 91b; Mass. Bonding & Insurance Co. v. Norwich, 2 Cir., 1927, 18 F.2d 934, at page 937; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1950, 183 F.2d 467, at page 473. The circumstances under which they were prepared go to their weight rather than admissibility. Congress has power to prescribe what evidence is to be received in federal courts. Tot v. United States, 319 U.S. 463, at page 467, 63 S.Ct. 1241, 87 L.Ed. 1519. There was no violation of the VI Amendment to the United States Constitution. See United States v. Leathers, 2 Cir., 1943, 135 F.2d 507.⁶

The records were admissible as corroboration. United States v. Seavey, supra, 180 F.2d at page 839; Littieri v. Freda, 241 Pa. 21 at page 30, 88 A. 82; In re Croushore's Estate, 79 Pa.Super. 286 at page 289; Grosch v. Trexler, 66 Pa.Super. 485; Henry Pennsylvania Trial Evidence, 3d Ed. 1940, § 104; 2 Wharton Criminal Evidence, 11th Ed. § 809;⁷ and see Butler v. United States, 10 Cir., 1931, 53 F.2d 800, at page 806.

Defendant argues that none of the records were admissible because a witness could not be corroborated by business records if he had anything to do with their preparation or supervision. Further, that corroboration must come from a separate and independent source equivalent to another witness. In support of his claim defendant relies upon a case cited in Wigmore § 2042, Note 5, sub. nom., R. v. Boulter, 1852, 2 Den.Cr.C. 3966, 5 Cox Cr. 543, 16 Jur. 135, holding that entries made at the time by a single witness were insufficient because "it is corroborating him by himself". But see in the same footnote R. v. Webster, 1859, 1 F. & F. 515, holding that a memorandum made at the time by a single witness was sufficient.

The question was raised but not answered in United States v. Goldstein, 2 Cir., 168 F.2d 666 at page 668. It was decided contrary to the defendant's position in United States v. Seavey, supra, 180 F.2d at page...