LEMMON, Circuit Judge.
In a perjury case, the rule requiring corroboration of a single witness as to the falsity of the defendant's testimony is, like Iago's wine, "a good familiar creature, if it be well used."
But when the rule is perverted so as to require the prosecution to "prove its case twice", it cannot be said to be "well used".
The appellant, however, professes that he "does not contend that the government should be compelled to prove its case twice". He also complains that "Appellee's brief incorrectly attributes to appellant the proposition that `the corroborative evidence must "of itself" prove guilt'". Yet such double proof is precisely what the appellant exacts of the appellee when he says:
The law does not demand of the appellee so inordinate a measure of proof.
1. Statement of the Case
The indictment charged the appellant in two counts with violations of 18 U.S. C.A. § 1621, infra. The District Court entered a judgment of acquittal on the second count. The charging part of the first count is set out in full in the margin.
The jury found that appellant was guilty on the first count, and he received a sentence of three years' imprisonment.
Section 1621, the perjury statute, reads as follows:
2. The Facts
The appellant did not take the witness stand and no evidence was offered in his behalf. Since one of the errors specified by him is that "The evidence was insufficient as a matter of law to sustain the verdict", in considering the facts we must grant every reasonable intendment in favor of the appellee.
Irving Baskin testified that in Oakland, California, he was employed part time by Zola S. ("Tiny") Heller, in taking care of the records of the latter's "legitimate businesses" — "a hotel and a bar and a liquor store". Heller was also a "betting commissioner", defined by the witness as "a person that takes wagers". Baskin also prepared Heller's tax returns, did his banking for him, obtained
Baskin had known the appellant since 1941 or 1942. The appellant was in the Heller establishment during the end of Heller's operations in 1947 three or four times a week. On two or three occasions, the witness was handed sealed envelopes by Heller for delivery to the appellant at the latter's liquor store. The witness would deliver the envelopes.
In early December, 1947, Heller, in the appellant's presence, handed Baskin a group of checks and told him to "get them cashed into one thousand dollar bills and then give them to Jimmy (the appellant)". The checks amounted to $38,000.
The appellant and Baskin left Heller's liquor store and went to the bank, about two blocks away. They stepped to the window of Herman Wirth,
Baskin's precise testimony at this crucial point is as follows:
The next witness was F. W. Whitted. He was employed by Heller from April, 1941, until the end of October, 1947. His duties were to "make the prices" on baseball games; that is to say, to determine the odds on a particular game.
The appellant was on Heller's premises "five or six times a week at least" during the period in which Whitted was associated with Heller. In 1946 and 1947 the appellant placed bets ranging "from $100 to two or three thousand dollars". The witness sometimes recorded the appellant's bets. Five cards or "parlay tickets" admitted in evidence showed that the appellant had won $7900 in one transaction, on October 26, 1946.
The foregoing bet, however, was placed by the appellant on behalf of Arthur H. Samish, whose income tax liability was being investigated by the grand jury before which the appellant is charged to have sworn falsely. At first, Samish placed his own bets, but later the appellant did so. When the appellant placed the bets, the bettor was designated in Heller's books as "SA": when Samish himself did the placing, the designation was "AS". Whitted recorded transactions on behalf of Heller.
Heller's widow testified that she recorded bets for her husband. He conducted his betting activities at home as well as in his office behind the liquor store. She identified a number of his business papers as being in his own handwriting. She testified that in her husband's books the initials "S.A." meant "Artie Samish Account to James Arena (the appellant)".
The checks were for $6,050, $13,700, $9,350, and $8,900.
Finally, there was read to the jury a portion of the transcript of the appellant's testimony before the Grand Jury on May 6, 1953. In that testimony the appellant declared that he knew nothing about five "Sacramento Football Selections" cards for Saturday, October 26, 1946, all bearing the initials "J.A." He also denied that he had placed the bets represented by the cards, denied that he had placed the bets with Whitted, and expressed the belief that he had never placed any bets with the latter.
It will be recalled that Whitted testified that in 1946 and 1947 the appellant placed bets ranging in size from $100 to $2,000 or $3,000. Whitted also identified five "parlay cards" that he had written, showing the appellant as the bettor who won $7,900 in that transaction.
3. There Was Sufficient Corroboration of the Direct Testimony of Baskin
In open court, counsel for the appellant stipulated that the latter's testimony was "material to the proceedings before the Grand Jury". It is also conceded that there was "direct evidence" — albeit it is asserted to be "The only direct evidence" — "offered by the government to show the alleged falsity of appellant's statements, if believed"; namely, "the testimony of Irving Baskin that early in December, 1947, he went to a branch of the Bank of America in Oakland accompanied by appellant and there cashed four checks for which he received thirty-eight one thousand dollar bills from the teller, Herman Wirth, which he (Baskin) then and there counted out and turned over to appellant."
There remains, however, a final factual question that must be resolved by this Court:
Was Baskin's testimony sufficiently corroborated to support the verdict and the judgment below?
The problem is a unique one, confined almost exclusively to the law of perjury. In Weiler v. United States, 1945, 323 U.S. 606, 608-609, 65 S.Ct. 548, 550, 89 L.Ed. 495, the Court said:
The rule has been sharply criticized by some courts and some text writers. It has been pointed out for example, that it is inconsistent to rule that evidence sufficient to warrant the death penalty for murder is insufficient to convict a man of perjury.
The leading case, not cited in the briefs, in which the rule and its confines were discussed is United States v. Wood, 1840, 14 Pet. 430, 440, 10 L.Ed. 527. There the Court said:
But even where the rule requiring corroboration in perjury cases is applicable, it does not purport to prescribe the quantum of corroboration. Citing the Wood case, supra, the Supreme Court, in Hammer v. United States, 1925, 271 U.S. 620, 627, 46 S.Ct. 603, 604, 70 L.Ed. 1118, pointed out:
This same liberal canon has been applied by this and other courts of appeals. In Doan v. United States, 9 Cir., 1953, 202 F.2d 674, 680, we said:
Adverting to the ancient rule that required two witnesses, the Court in Hashagen v. United States, 8 Cir., 1909, 169 F. 396, 399, said:
In Marvel v. State, supra, 42 A.L.R. at page 1062, the Supreme Court of Delaware observed:
The Supreme Court has related an uncorroborated confession to the testimony of a single prosecution witness in a perjury case. In Warszower v. United
Accordingly, we advert to the decisions dealing with the quantum of corroboration required in confession cases.
In Opper v. United States, 1954, 348 U.S. 84, 92, 93, 75 S.Ct. 158, 164, the Supreme Court stated:
In Mangum v. United States, 9 Cir., 1923, 289 F. 213, 216, a frequently cited case, this Court affirmed a judgment by District Judge Sawtelle, who later became a member of the Court of Appeals. In that case the following language was used:
During the intervening third of a century, the doctrine in the Mangum case has been endorsed by this and other appellate courts. A recent expression is that by Chief Judge Denman in Davena v. United States, 9 Cir., 1952, 198 F.2d 230, 231, certiorari denied, 1952, 344 U.S. 878, 73 S.Ct. 168, 97 L.Ed. 680:
This view has received distinguished support elsewhere. After stating the older and narrower view that the corpus delicti must be established independently of the confession, Judge Learned Hand, in Daeche v. United States, 2 Cir., 1918, 250 F. 566, 571-572, commented:
The appellant vigorously rejects the authority of confession cases in perjury prosecutions, arguing that "where the evidence emanates directly from the defendant the rule generally applied in perjury cases has been relaxed". While it is true that a defendant's own confession is usually more impressive than the accusatory testimony of a disinterested witness, the difference goes merely to the weight of the two types of evidence and not to the legal sufficiency of the corroboration.
At any rate, the short answer to the appellant's objection is that, as we have seen, the Supreme Court has recognized the cognation between corroboration in confession cases and corroboration in perjury prosecutions. In neither case need the corpus delicti be proved by the corroboration, independently of the confession or of the testimony of the single accusing witness.
While vehemently insisting upon the necessity of corroboration in a perjury case, the appellant is extremely hypercritical of the appellee's efforts to satisfy that necessity. For instance, two specified errors are that the court below admitted the testimony of Whitted and Mrs. Heller, it being asserted that these witnesses were "permitted to testify as to transactions and conversations with the appellant completely unrelated in time or event to the transactions involved in the alleged perjurious statement," etc.
We know of no such rigid limitation of time or place in connection with the evidence of corroboration, so long as the factual relation is logical and reasonable. The authorities agree that the corroborative evidence need only "tend" to show that the defendant is guilty of perjury.
We have already set out a summary of the testimony in the instant case. We believe that there was sufficient evidence, both oral and documentary, to corroborate Baskin's testimony, and we so hold.
4. Heller's Business Records Were Admissible
The appellant complains that the District Court erred in admitting certain of Heller's business records in evidence. One of these records was a book containing a running account of the bets made during the day, in which book Baskin saw Heller make entries, although Baskin did not "prepare" the daily book record and was not the custodian of the books. Whitted testified that he had seen Heller make entries in the book in question, and that it was in Heller's handwriting. Similar testimony was given by Mrs. Heller.
Another book was an exemplar of "certain business records" kept by Heller, in which Whitted testified that "all the bets that came in" were recorded. Mrs. Heller testified that she had seen her husband prepare records of that sort, and that it was in his handwriting.
Two other exhibits consisted of books
One exhibit consisted of "two blue sheets of paper" containing "Heller's handwriting on the inside and (Whitted's) handwriting on the outside". Whitted's writing on these papers or "tickets" was intended to represent "Whether the tickets were winning tickets or losing tickets, and to (the?) total amount of money that was — the man won or lost". They were admitted for the "limited purpose" of showing that the appellant was sometimes referred to as "J.A." and sometimes as "Jimmy A."
Exhibit No. 10 consisted of the five "parlay cards" already mentioned, which showed that the appellant had won $7900 on October 26, 1946. The final exhibit objected to is the excerpt of the appellant's testimony before the Grand Jury, in which, as we have seen, the appellant denied any knowledge of the five cards, etc.
So far as the admissibility of the various business records is concerned, 28 U.S.C.A. § 1732(a) is applicable:
Construing a predecessor statute almost identical in language, in all pertinent respects, to the one at bar, the Court in Harper v. United States, 8 Cir., 1944, 143 F.2d 795, 806, used the following language:
With regard to Mrs. Heller's testimony "as to the meaning of initials, figures, dates and symbols contained" in certain exhibits — concerning which testimony the appellant complains — it has been generally held that persons familiar with given types of documents may testify as to the meaning of symbols and abbreviations used in such documents. Meyer v. Everett Pulp & Paper Co., 9 Cir., 1912, 193 F. 857, 862, 100 A.L.R. 1465-1466.
Finally, as we have seen, Baskin, Whitted, and Mrs. Heller all testified regarding the manner in which Heller's books were kept. All three knew his handwriting.
The question of whether the authenticity of a document has been sufficiently proved prima facie to justify its admission in evidence rests in the sound discretion of the trial judge. Lewis v. United States, 9 Cir., 1930, 38 F.2d 406, 416. We cannot say that in the instant case there was an abuse of discretion.
5. The Indictment Was Not Duplicitous
The appellant maintains that the first count of the indictment charges "two or more offenses". He does not seem to be able to make up his mind as to how many offenses are thus charged. In his main brief, he counts "five separate offenses". In his reply memorandum, he trims it down to four.
As a matter of fact, the appellant is mistaken in both figures. The indictment charges only one offense. True, several searching queries were asked of the appellant during the Grand Jury investigation, but they were all ancillary to the $64 question — or, rather, the $38,000 question; namely, did Baskin hand him the thirty-eight one-thousand-dollar bills that Baskin had just obtained from the teller? The minor questions were all directed toward refreshing the appellant's recollection, so that there could be no mistake as to the deliberateness of his lie that he had not received the money.
In Cornes v. United States, 9 Cir., 1941, 119 F.2d 127, 129, we said:
The rule is thus stated in 2 Wharton's Criminal Law, 12th ed., 1932 (Ruppenthal), Sec. 1567, p. 1826:
6. The Instructions of the District Court Were Adequate
The appellant objects that the trial court failed to give certain requested instructions and also that it gave one erroneous instruction. All the instructions referred to dealt with corroboration.
One requested instruction contains the statement that the corroborating evidence must be "inconsistent with the innocence of the defendant". We have already seen that the weight of authority is opposed to so severe a standard for the corroborating evidence. It is sufficient if the corroborating evidence tends to establish the defendant's guilt, and if such evidence together with the direct evidence is "inconsistent with the innocence of the defendant".
Another refused instruction asserts that the corroborative evidence "must be equally strong and convincing as the direct testimony which would be regarded as sufficient proof". We have already pointed out that this is tantamount to demanding that the appellee prove its case twice. Such proof is not required by law.
The third requested instruction that the court below declined to give verbatim specified that in the evidence of similar acts was included evidence of "acts and declarations and exhibits relating to the transactions of the defendant other than those covered by the statements alleged in the indictment to have been made under oath by the defendant". As we shall see in a moment, the instructions as given referred generally to "evidence" of similar acts, without spelling out the various possible forms or types in which such evidence might be found. Clearly, the lack of such particularization does not constitute error.
Finally, the appellant complains that
As we have seen, the Supreme Court has repeatedly held that, with regard to either the quantum or quality of corroboration, the rule "does not relate to the kind or amount of other evidence required * * *." Hammer v. United States, supra, 271 U.S. at page 627, 46 S.Ct. at page 604, 70 L.Ed. 1118. Needless to say, this does not refer to corroboration as to trivia; neither does the context of the instruction as given so indicate.
The charge of the District Judge on the subject of corroboration and evidence of similar acts follows in full:
Taking this charge by its four corners and considering it as a whole — as we must — we find that it is adequate and exhibits no reversible error.
We have carefully considered the elaborate specification of errors — inaccurately denominated "specifications of error" — compiled by industrious and resourceful counsel. We find nothing in it or in the able supporting briefs that warrants a reversal.
The appellant's guilt is plain. Baskin's accusatory testimony was straightforward and unequivocal on direct examination, and was unshaken on cross. As we have seen, the corroboration, both oral and documentary, was ample.
The judgment is affirmed.
"Q. (By Mr. Olney): I see. On this occasion Mr. Baskin says you accompanied him to the bank while he proceeded to cash some checks in return for which there were 38 one thousand dollars (sic) bills which were obtained from the bank, and that the teller counted that $38,000 out in your presence to him and he in turn counted the $38,000 in these one thousand dollars (sic) bills to you and give (sic) you the bills. A. I didn't get them sir.
"Q. Did that happen? A. No sir.
"Q. Anything like it? A. No sir.
"Q. Did you ever go there to the bank with this Baskins (sic)? A. No, but I was in that bank most every single day in my own business. I have seen and been in there dozens of times, I will say, but I am always in that bank ever since I had my liquor business, that is where I used to bank.
"Q. Has Mr. Baskin ever delivered any money to you? A. No sir.
"Q. Even one cent? A. Never had occasion to.
"Q. (By Mr. Burke): Your testimony is that on no occasion did anyone ever pay you any amount of money, one dollar or $38,000 to be delivered to you personally as your own money or on behalf of Mr. Samish or anyone else? A. That's correct, Mr. Burke.
"Q. (By the Foreman): Did you ever do any business with Mr. Baskin or have any transaction with Mr. Baskin in any bank in Oakland? A. I did not, sir.
"Q. And you never received $38,000 from Mr. Baskin? A. No sir.
"(4) That in truth, as the defendant James Arena then and there well knew and believed, the foregoing testimony was false.
"(5) That the questions asked and the testimony of the defendant, heretofore alleged, were material to the proceedings then being conducted by the Grand Jury, and the testimony of the said defendant, by reason of its falsity and known untruthfulness, so known to the defendant, did thereby impede and dissuade the Grand Jury in performing an expeditious inquiry."