Wheatley v. United States, 6439.
| Decision Date | 21 January 1961 |
| Docket Number | No. 6439.,6439. |
| Citation | 286 F.2d 519 |
| Parties | Ronald WHEATLEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. B. Champion, Jr., Ardmore, Okl., for appellant.
Erwin A. Cook, Asst. U. S. Atty., Oklahoma City, Okl. (Paul W. Cress, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.
Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and RICE, District Judge.
The defendant Wheatley was indicted, tried and convicted of the crime of perjury in violation of 18 U.S.C.A. § 1621. The charge was premised upon testimony given by Wheatley in his own defense at a prior trial in which he and others were accused of conspiracy to commit and committing the offense of carrying on a wholesale liquor business without paying the applicable taxes, a violation of 26 U.S.C.A. § 5691. This appeal asserts that the perjury charge is but a re-trial of the original accusation and is therefore effectively barred by Wheatley's acquittal in the first case. The factual background of each prosecution must thus be examined.
During the years 1956 to 1959 the defendant was Chief of Police of Lawton, Oklahoma; James Warren was Police Inspector. In June 1959, these two, together with a number of liquor dealers, were charged in a two-count indictment with the unlawful conspiracy to violate and the violation of Title 26, supra. The record of this trial is not before us but it is undisputed that upon trial all defendants except Wheatley were convicted; that no defendant testified in the case except Wheatley; and that the following material testimony was given by Wheatley as a witness in his own defense:
One month after Wheatley's acquittal in that case he was indicted for the instant crime of perjury upon the premise that the quoted testimony was false. To prove such falsity at trial the government relied upon the testimony of a number of the convicted, but then unsentenced, conspirators. Two such witnesses, Weaver and Tisdell, both liquor dealers, testified to direct contact with Wheatley that clearly outlined the inference that Wheatley and his subordinate Warren were collecting money from them for directing raids against retail dealers who did not obtain their whiskey from Weaver and Tisdell. Warren was named as the contact and collection man. He, in turn, testified directly to an agreement with Wheatley to collect the money from bootleggers (Oklahoma then being dry) and to instances of dividing the money so collected with Wheatley. No other witness testified to a direct involvement with Wheatley and the latter reiterated his earlier statement of denial and labeled the testimony of Weaver, Tisdell and Warren to be utterly false.
It is well established that the charge of perjury is not barred by the simple fact of acquittal in the case in which the false testimony is given. Kuskulis v. United States, 10 Cir., 37 F.2d 241. But in the cited case we noted that the doctrine of res judicata was applicable to criminal cases and operates to put at...
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