Whaley v. United States, 19826.
| Decision Date | 26 August 1966 |
| Docket Number | No. 19826.,19826. |
| Citation | 362 F.2d 938 |
| Parties | John William WHALEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Patrick Coleman, Los Angeles, Cal., for appellant.
Manuel Real, U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before MADDEN, Judge of the United States Court of Claims, and BARNES and ELY, Circuit Judges.
Appellant was charged in an indictment consisting of eight counts. Two of them alleged violations of the provisions of 18 U.S.C. § 1621, and the remaining six alleged violations of the prohibitions of 18 U.S.C. § 1343. In a jury trial, there were acquittals as to seven counts and a conviction on one count grounded upon alleged violation of 18 U.S.C. § 1621.
The specific perjury of which appellant was convicted was his sworn answer of "No" to the question, "Do you know a man named Spindler?" The evidence reveals the existence of an individual known at various times as Julius Spindler, Morris Rosenblatz, or Russ Jones. It is clear from the record that this individual was known to the appellant, but we cannot find sufficient evidence to support the charge that the individual had ever been known to appellant by the name of Spindler. His having been so known was an indispensable condition to a valid conviction of the specific charge in question.
The appellant filed his brief on March 10, 1965. On March 17, 1965, we, at the request of the Government, extended, until April 17, 1965, the time within which it might file an answering brief. On March 30, 1965, we granted the Government's motion for supplementation of the record on appeal. To this time, the record before us has not been supplemented, and the Government has filed no brief in reply to that which the appellant filed nearly fifteen months ago.
During oral argument, the Government's attorney was unable to direct our attention to any evidence in the record before us which would support the conclusion that at the time of the commission of the alleged offense, appellant did, in fact, know any person as a person "named Spindler".
The Government's attorney maintained in his oral argument that there is "circumstantial evidence" which is sufficient to support the conviction. This evidence is claimed principally to be that when a Government investigator presented to appellant a photograph of the individual known by the several names, the appellant denied...
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...of the cases cited in support of the dictum in Matthews, Davis v. United States, 382 F.2d 221 (9th Cir. 1967), and Whaley v. United States, 362 F.2d 938 (9th Cir. 1966), involved the propriety of jury 8 Authorities are collected on the basis of a somewhat different analysis in Castro v. Uni......
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...See also Barnes v. United States, 341 F.2d 189 (5 Cir. 1965); McMillian v. United States, 399 F.2d 478 (5 Cir. 1968); Whaley v. United States, 362 F.2d 938 (9 Cir. 1966); Woxberg v. United States, 329 F.2d 284 (9 Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33. As the Fifth ......
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