Vitello v. United States
| Decision Date | 13 May 1970 |
| Docket Number | No. 23450.,23450. |
| Citation | 425 F.2d 416 |
| Parties | Leo VITELLO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Perry Langford (argued), San Diego, Cal., for appellant.
Raymond Zvetina (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL, ELY and KILKENNY, Circuit Judges.
Appellant was convicted by a jury of the crime of perjury1 in connection with certain testimony given before a grand jury. The indictment charged appellant with perjury in three particulars; first, in falsely swearing that he never placed a bet with any bookmaker in the United States other than a Mr. Harrison; second, in falsely swearing that he did not know Charles Otis Spencer; and, third, in falsely swearing that he never placed a bet with Ruth Hughes. We affirm.
Although there are a few minor disputes, the following is a fair statement of the evidence on which the jury convicted the appellant. He was a well known businessman in Oceanside, California and also a horse player who claimed he didn't want to deal directly with bookmakers.
Harrison was the owner of a pharmacy located in the same block as the shop operated by appellant. Between 1958 and 1962, Harrison, who was not a bookmaker, had an arrangement with appellant whereby the former regularly took bets from appellant and passed them on to the bookmakers. Because appellant did not want to place bets under his own name, it was agreed that they would be placed under Harrison's name. Harrison, however, told the bookmakers that appellant was actually placing the bets.
It is clear that appellant, Harrison and Spencer, during the period 1958-1962, met frequently. Spencer estimated the number of the meetings between two and three hundred, while appellant said he had seen Spencer only ten to twenty times. Spencer said that appellant had placed bets with him. Although appellant testified before the grand jury that he did not know and had never met Charles Otis Spencer, he testified on trial that he had known Spencer as "Spence" and that he did not recall or think of Spencer at the time he testified before the grand jury. Subsequent to indictment, appellant requested permission to again appear before the grand jury and correct his testimony that he did not know Spencer. Permiswas refused.
Ruth Hughes (Hughes) testified that she had taken bets from appellant through Harrison and through one Lee Hill. On one occasion, she testified, appellant had missed Lee Hill and placed a bet with her, asking her to record the bet under the name "Woody". The record reveals that at this time appellant was the proprietor of the Wood Art Shop in Oceanside. Appellant, on that occasion, stated that he would leave the money at Harrison's pharmacy. On the following day, Hughes found that he had failed to do so. She went to appellant's shop and collected directly from appellant. Hughes recalled one particular occasion when she received a call to go to Harrison's home and pick up a bet on a "hot tip". At the home, she found appellant, James Harrison and a third unidentified person. The bets were written down together for two or three hundred dollars. The record is not clear as to the person doing the writing or delivering the money to Hughes, but it is clear that all three were in on the bet. Harrison testified that on another occasion when appellant had money coming from Hughes and wanted the money, appellant said, "Let's go over to that so and so's2 house." Harrison said this occurred while he was having a few drinks with appellant and that he told Hughes about it. On a subsequent occasion, Hughes requested an apology. Appellant did not hesitate to apologize, although on trial he admitted apologizing, but did not recollect having called Hughes a bitch.
Byers, a bakery driver, testified that while making deliveries on his route, he would carry bets from appellant to one Alice McKellar, a bookmaker on the route. Appellant was the only person for whom Byers carried bets. On one occasion, when there was a dispute over whether appellant had won on a particular horse, Byers suggested that he call the bookmaker. However, appellant said he didn't want anything to do with the bookie.
Appellant makes the following contentions:
I. Where a perjury indictment
charged three false statements
in one count, and the
jury was instructed that it
might predicate a guilty
verdict upon any one, the
defendant is entitled to a
reversal on appeal upon a
showing of prejudicial error
as to any one statement
II. The defendant's right to a jury
trial, guaranteed by the
Sixth Amendment to the
United States Constitution
was violated, because the
trial court failed to instruct
the jury that all twelve jurors
must agree unanimously
upon at least one of the
statements as having been
perjured, in order to return
a verdict of guilty
III. Where an allegedly false statement
is subject to more
than one interpretation, the
Government is required either
to establish by sufficient
evidence that the
statement is false under all
interpretations, or to prove
that the defendant intended
a meaning under which the
statement is shown by sufficient
evidence to be false
IV. Ruth Hughes' testimony that
the defendant had placed a
bet with her by telephone
and that she had later collected
from him personally
was uncorroborated
V. Although the question whether
testimony was material
to the issues shown by the
evidence is one of law for
the court, the trial court
erred in taking from the
jury the factual question of
the scope of the grand
jury's investigation at the
time the defendant testified
before it.
VI. The trial court erred in ruling
that the defendant's allegedly
false statements were material.
We believe Contentions I, II, III and IV are so closely related that, for intelligent treatment, they must be considered together.
Appellant does not question the constitutionality of the statute under which he was convicted. Nor does he challenge the well settled law permitting the inclusion of several specifications of falsity in a single count of perjury and that proof of any one of such specifications is sufficient to support a verdict of guilty. Arena v. United States, 226 F. 2d 227 (9th Cir. 1955), cert. denied 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830; United States v. Edmondson, 410 F.2d 670, 673, n. 6 (5th Cir. 1969); Stassi v. United States, 401 F.2d 259 (5th Cir. 1968). He, among other things, argues that the record, including the instructions of the court, shows a violation of his Sixth Amendment right to a jury trial because the court failed to instruct the jury that all twelve jurors must unanimously agree upon at least one of the statements as charged in the indictment, before they could return a verdict of guilty.
Yates v. United States, 354 U.S. 298, 311, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Stromberg v. California, 283 U.S. 359, 367-368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Cramer v. United States, 325 U.S. 1, 36, n. 45, 65 S.Ct. 918, 89 L. Ed. 1441 (1944); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Street v. New York, 394 U. S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), in general, support appellant's theory. Significantly, however, each of the cases, with the exception of Yates, involved a conviction which might have been based, in part, upon a constitutionally invalid statute. In Yates, the court submitted to the jury two overt acts, including an overt act which had been barred by the California statute of limitations. Since there was no way of knowing whether the jury based its verdict upon the barred act, or the other alternative, the Supreme Court reversed.
For the purposes of this decision, we accept appellant's view of the effect of Yates, and that the teaching of that decision should be here applied if we find (1) that there was insufficient evidence to be submitted to the jury on any one or more of the specifications of falsity, or (2) that the court's instructions on unanimity were not sufficiently clear or specific to warrant our drawing the inference that the jury understood that it must find unanimous agreement of guilt on one or more of the specifications before it could return a verdict of guilty.
On trial, there was little dispute on the facts. The appellant, in his supplemental brief, to all intents and purposes, accepts and adopts the government's fact statement.
(1) Only on the Ruth Hughes specification of falsity does the appellant make a serious claim of a lack of essential corroborating evidence, which is required in a perjury case. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945). Appellant concedes that the corroborating evidence need not, of itself, establish the corpus delicti, Arena v. United States, 226 F.2d 227, 232-234, 236. This contention necessarily brings before us the falsity charge in the indictment with reference to Hughes. It follows:
We agree with appellee that the substance of the rule on...
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