Roberto Molinares appeals his conviction for making a false declaration before a court in violation of 18 U.S.C. § 1623 (1976 & Supp. V 1981). We affirm.
We recite only so much of the facts as are necessary to our disposition of this case. In August 1980, two agents of the Criminal Investigation Division of the Internal Revenue Service (IRS) interviewed Molinares at his home in connection with possible income tax and currency violations. They also served him with a subpoena that commanded him to appear before a grand jury and to bring certain business records. Molinares moved to quash that subpoena, and on October 3, 1980, the district court conducted an evidentiary hearing on his motion to quash. The government alleges that during this evidentiary hearing, as well as during the interview in his home, Molinares made several false statements. The government sought to indict and convict Molinares for making these false statements.
On August 20, 1981, a grand jury did indict Molinares, alleging six separate counts. Count I charged Molinares with making a false statement in a matter within the jurisdiction of an agency of the United States, in violation of 18 U.S.C. § 1001 (1976). It was based upon a statement Molinares made during the interview in his home. Counts II-VI charged Molinares with making five different false statements during the October 3, 1980, evidentiary hearing before the district court, in violation of 18 U.S.C. § 1623.
To prove that Molinares made the false statements charged in counts II-VI while under oath, an essential element of a section 1623 offense, the government called Paul Haferling, the court reporter from the October 3, 1980, evidentiary hearing. Haferling testified that the transcript that he had made of the hearing was a true and accurate transcription of the hearing. The government then moved to introduce into evidence the transcript which contained Haferling's recitation that Molinares "was called as a witness and having been first duly sworn, was examined and testified as follows: . . ." Record, vol. 6, at 190 (emphasis added). Molinares objected to the admission of the transcript on the general grounds of relevancy, materiality, and competency. The court overruled these objections, however, and allowed the transcript into evidence. There was no other testimony during the government's case in chief that Molinares took an oath before making a false statement.
At the close of the government's case, Molinares moved for a judgment of acquittal on all counts pursuant to Fed.R.Crim.P. 29(a). Molinares argued, as to counts II-VI, that the government had failed to prove that he had made statements under oath. The government responded that the evidence was sufficient; alternatively, it moved to reopen its case so that it could introduce further evidence that Molinares had made the false statements while under oath. The court heard oral argument on this motion and noted:
Record, vol. 7, at 452-53. It then granted the government's motion to reopen.
The government recalled IRS special agent Raul DeArmas. DeArmas testified that he had participated in the October 3, 1980, evidentiary hearing and that Molinares was placed under oath before testifying. DeArmas further testified that the
Molinares began his defense by attacking the oath element of the section 1623 offenses; he recalled Haferling, the court reporter. Haferling testified that he had not administered an oath to Molinares at the October 3, 1980, evidentiary hearing; he stated that he was sure of this because he had "never administered an oath to any witness since I have been in federal court." Id. at 632. Haferling did testify, however, that "[Molinares] was given the oath." Id. at 633.
At the close of his defense, Molinares again renewed his rule 29(a) motion to dismiss the remaining section 1623 counts. The court denied the motion as to count II and ordered the government to elect either count III or count IV, or consolidate them. It withheld ruling on count V. The government then dismissed count IV, leaving counts II, III, and V for the jury. The jury returned a verdict of guilty on count II, and not guilty on counts III and V.
Molinares appeals this conviction arguing, inter alia, that (1) there was insufficient evidence to prove that he made a false statement while under oath, and (2) the court improperly allowed the government to reopen its case to introduce additional evidence that he made a false statement while under oath. We now address these arguments, and others Molinares makes as grounds for reversal.
Molinares' first argument is that there was insufficient evidence to prove that he made a false statement while under oath.
Our review of the record reveals ample evidence to convince a reasonable trier of fact beyond a reasonable doubt that Molinares gave his testimony under oath at the October 3 evidentiary hearing. The jury heard direct testimony from two witnesses that the oath was administered to Molinares at the October 3 hearing.
Nonetheless, Molinares argues that under Smith v. United States, 363 F.2d 143 (5th Cir.1966), we must find the evidence that he was duly sworn insufficient. In Smith, the government also prosecuted a defendant for perjury and the question there was whether the defendant had been duly sworn. To prove this the government did not call the court reporter as a witness. Instead, the government called the court clerk who identified a certified copy of the transcript of the hearing in which the alleged perjury occurred. The clerk gave no additional testimony other than that he had been the court clerk for nine years. He did not testify that he was present at the hearing, that he administered the oath, or that he observed anyone else do so. Therefore, we held that the bare statement in the transcript, unsupported by testimony, that the defendant had been duly sworn was insufficient evidence to support a conviction of perjury. Molinares argues that we must do the same in this case. We disagree for several reasons.
First, the quantum of proof on the oath element in this case far exceeds that in Smith. In addition, Smith involved a prosecution under a different statute, 18 U.S.C. § 1621 (1976).
Molinares next argues that the district court erred in allowing the government to reopen its case to present additional evidence that he was duly sworn. Of course, "[i]t is well established that a trial court may permit the reopening of a case in order that omitted evidence may be presented. Considerable latitude in discretion is vested in the trial court in such matters." Maggard v. Wainwright, 432 F.2d 941, 942 (5th Cir.1970) (citations omitted), cert. denied, 402 U.S. 946, 91 S.Ct. 1639, 29 L.Ed.2d 116 (1971). Thus, we will not disturb the district court's exercise of discretion unless the circumstances of the case show that Molinares suffered actual prejudice in the conduct of his defense. See United States v. Marino, 562 F.2d 941, 944 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978).
Our review of the record indicates that the district court did not prejudice Molinares by allowing the government to reopen. Molinares had not yet presented any evidence, and his defense was not prejudiced in any way. We find no error.
Molinares next presents several additional but equally meritless arguments for reversal. First, Molinares argues that the court improperly denied his motion to dismiss or consolidate counts II-VI of the indictment prior to trial. He contends that the counts were multiplicious in that they
In United States v. De La Torre, 634 F.2d 792, 795 (5th Cir.1981), this court
Our review of counts II-VI of the indictment indicates that they were not multiplicious under the De La Torre test. Each charged separate and distinct false declarations made during the October 3 hearing and each, at least prior to trial, required different factual proof of their falsity. Contrary to Molinares' contention, it is simply irrelevant that each false statement was material to the same question before the court at the October 3 hearing; this is indicative more of a systematic attempt to mislead the court rather than of any multiplicity in the indictment.
Molinares next argues that the court erred in failing to dismiss count I of the indictment prior to trial, instead waiting until the close of the government's case. This contention borders on the frivolous. The record strongly indicates that the court dismissed count I because the government failed to prove that the statement in question was in fact false (not the ground for which dismissal was sought prior to trial). Dismissal on this ground could only occur after the presentation of the government's evidence. The court, therefore, properly denied Molinares' motion to dismiss count I prior to trial.
Molinares' final argument is that there was insufficient evidence to prove the materiality of the false statement charged in count II. In this circuit,
United States v. Cuesta, 597 F.2d 903, 921 (5th Cir.) (citations omitted), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). The test is satisfied if the statements "may be material to collateral matters that might influence the outcome of decisions before the [court]." United States v. Cosby, 601 F.2d 754, 756 (5th Cir.1979). Materiality is exclusively a legal question to be decided by the court. United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981).
The judgment of the district court is
We note, further, that in permitting reopening, the district court adverted to Molinares' failure to object specifically to the trial transcript on the ground that it did not prove administration of the oath. Record, vol. 7, at 495. Indeed, the record reveals that when offered an opportunity by the court to clarify his objection to the "competency" of the transcript, Molinares did not make his objection more specific. Record, vol. 7, at 300-01. Under these circumstances, even assuming arguendo a failure of proof by the government, we find any omission inadvertent and subject to cure by reopening. See Marino, supra; Ard, supra.