*1
holdings
prior
so) upon
do
Supreme
States
Court
the United
Kahriger,
v.
[United States
(1963)]
97 L.Ed.
States, 348 U.S.
United
[Lewis v.
415,
(1955)]; e) impact unlim- retroactivity upon the administra-
ited justice be substantial
tion adverse.” judgment present case final become well over conviction had 19, 1969, years May prior
four to the
Covington Leary decisions. Applying criteria decreed Denno, supra, present v. Stovall guided by we were them Gra
case as Covington
ham it is concluded that “largely
Leary applied pro should
spectively” require do and that
vacation conviction under 4744(a) (1).
Section
Affirmed. VITELLO, Appellant,
Leo America,
UNITED STATES Appellee.
No. 23450. Appeals, Court States Ninth Circuit.
April 13, 1970.
Rehearing May Denied
operated by appellant. Between 1958 1962, Harrison, and who not a book- maker, arrangement appel- had an with whereby regularly lant the former took appellant passed bets from and them on appellant to the bookmakers. Because place did not want to bets his own name, agreed it was would be placed under Harrison’s name. Harri- son, however, told the bookmakers that appellant placing actually the bets. appellant, Harrison It is clear during period 1958- Spencer, and frequently. Spencer estimat- met meetings between ed number of the hundred, and while two three Spencer only ten he had seen said appel- twenty Spencer said that times. Al- placed him. bets with lant had Langford (argued), Die- Perry San J. though appellant testified before Cal., appellant. go, for grand jury and did not know that he (argued), U. Raymond Asst. Zvetina Spencer, he Otis had never met Charles Atty., Steward, Atty., Harry U. S. D. S. known on trial that he had testified Diego, Cal., appellee. for San Spencer “Spence” and that he did not Spencer at time he recall or think of MERRILL, and KIL- ELY Before jury. grand Subse- testified before KENNY, Judges. Circuit indictment, requested quent permission again appear before KILKENNY, Judge: Circuit testimony grand jury correct his Spencer. he did not know Permis- Appellant was convicted perjury1 was refused. crime of in connection with given certain Hughes (Hughes) Ruth testified charged appellant jury. The indictment from she had taken bets first, particulars; in three through through one Lee Harrison and placed falsely swearing never testified, ap- occasion, On one she Hill. in the a bet with bookmaker placed pellant Hill had missed Lee Harrison; than sec- States other a Mr. her, asking her bet to record ond, swearing falsely did not that he “Woody”. The bet under the name and, third, Spencer; know Charles Otis this time record reveals that at swearing falsely never proprietor Art was the Wood Hughes. a bet with Ruth We affirm. Shop Appellant, on that in Oceanside. Although there are a minor dis- few occasion, he would leave stated following putes, the fair statement money pharmacy. theOn at Harrison’s of the evidence on which the con- Hughes following day, found that he appellant. well victed He was a failed do so. went to She Oceanside, known businessman in Cali- directly shop and collected player fornia also a horse who particular oc- recalled lant. directly claimed he didn’t want to deal go casion when she received a call with bookmakers. up pick Harrison’s home a bet on a home, pharma- ap- tip”. Harrison was the owner of a “hot found At the she cy shop pellant, located in the same as the block James Harrison a third uni-
1. § 18 U.S.C. having person. The bets were written statements as dentified perjured, together or three hundred order to return down two guilty. The record not clear as a verdict dollars. delivering doing writing person allegedly III. Where an false state- Hughes, it is clear that but subject ment more the bet. Harrison in on three were interpretation, than one that on another testified appellant occasion required Government is ei- *3 coming ther to establish suffi- Hughes money, appellant wanted cient evidence that 2 said, go so’s “Let’s over to so and statement is false all house.” said this occurred Harrison interpretations, prove or to having few drinks with while was a defendant intended Hughes that he told about meaning a under which the occasion, Hughes subsequent it. On a statement is shown suf- requested apology. Appellant an did not ficient evidence to be false. although apologize, trial hesitate to Hughes’ testimony IV. Ruth apologizing, admitted but did not rec- the defendant had having Hughes ollect a bitch. called by telephone bet with her driver, Byers, bakery testified and that she had later col- making route, while deliveries on his personally lected from him carry one bets from was uncorroborated. McKellar, Alice bookmaker Although question V. wheth- Appellant only person route. was the er was material Byers for whom carried bets. On to the issues shown occasion, dispute when there over was a evidence is one of law particu- had won on a court, the trial court horse, Byers suggested lar he call taking erred in from the However, bookmaker. said jury question the factual of anything he didn’t want to do with scope of bookie. jury’s investigation at Appellant following makes the conten- time the defendant testified tions : before it. perjury I. Where a indictment VI. ruling The trial court erred in charged three false state- alleged- that the defendant’s count, in one ments and the ly false statements were ma- jury was instructed terial. might predicate I, II, We believe Contentions III and upon any one, closely that, IV are so related for intelli- defendant is entitled to a gent treatment, they must be considered appeal upon reversal on together. showing prejudicial of error any as to one statement. Appellant question does not the consti right tutionality
II. The defendant’s to a of statute under which he trial, guaranteed by challenge the was convicted. Nor does he Sixth Amendment permitting the well settled law the inclu Constitution, specifications United falsity States sion of several violated, single perjury because the in a count of proof trial court failed specifications to instruct one of such ju- that all support twelve sufficiént a verdict agree guilty. rors must States, unanimous- Arena v. United 226 F. ly upon (9th 1955), at least one of the 2d 227 Cir. cert. denied 350
2. Bitch’s.
419 830; brief, purposes, 342, mental accepts intents 954, L.Ed. 100 76 S.Ct. U.S. government’s Edmondson, adopts fact 410 F.2d v. States United 1969); v. (5th statement. 673, Stassi 6 Cir. n. States, F.2d 401 259 United Only on the Ruth argues things, He, among 1968). other specification falsity appel does the including record, the instruc- lant make a claim a serious lack court, shows a violation tions of the corroborating evidence, essential right to a Amendment his Sixth required in a case. Weiler v. instruct failed to court trial because States, United 65 S.Ct. jurors must twelve that all the unanimously agree (1945). Appellant L.Ed. least one of corroborating concedes evidence charged the indict- statements not, itself, corpus need establish the ment, could a verdict return delicti, Arena United v. F.2d guilty. 232-234, 236. This contention nec U.S. Yates essarily brings falsity before us the L.Ed.2d 311, 312, *4 charge in the indictment with reference California, 283 Stromberg (1957); v. Hughes. It follows: 532, L.Ed. 367-368, 359, 51 S.Ct. U.S. Hughes? “Q. you know Ruth Do (1931); United v. Cramer “A. Yes. 918, L. 45, 65 S.Ct. n. 325 U.S. you “Q. long Leary known (1944); How Ed. 1441 L.Ed.2d 57 her? 89 S.Ct. York, 394 U. (1969), New Street v. and years Probably or so. ten “A. L.Ed.2d 89 S.Ct. S. wager you placed “Q. a ever Have appellant’s support general, (1969), in her? with however, each of Significantly, theory. No, “A. sir. Yates, exception cases, the the with place “Q. you a bet Did ever with might have which a conviction involved Hughes? Ruth based, upon part, constitution- in a No, Yates, ally In the court “A. sir. statute. invalid acts, jury in- two overt to the submitted "Q. you Did to Ruth ever talk cluding had been an overt act Hughes ? her establishment about of limi- statute the California barred No, “A. sir. way there was Since tations. “Q. wager you placed ever a Have knowing its ver- the based telephone person with Ruth or act, other al- or the dict the barred Hughes ? ternative, Supreme reversed. Court No, “A. sir.” decision, purposes we of this For appellant’s accept view of effect agree appellee that the sub- We teaching Yates, of that de- that the and on corroboration stance of grounded rule applied if we find should here cision principle a on convic- (1) evidence there insufficient entirely rest tion for upon should not on one to be submitted against The an oath an oath. falsity, specifications of or more argument principal appellant’s thrust of on or instructions that the court’s deals with the lack corroboration unanimity sufficiently clear were not alleged telephone men- conversation drawing specific the in- warrant our Hughes’ tioned the indictment and it understood that that the ference subject on same trial. agreement guilt must find unanimous might support We view well specifications be- or more of grand if his denial before guilty. fore could return single wager. telephone limited to charge trial, dispute on We find no such limitation On was little there appellant's supple- indictment, tes- appellant, nor in in his facts. grand jury. timony appellant There would call him that tell testified, qualification Hughes money. or limita- those without needed On wager placed occasions, to, tion, promise had never that he would Hughes, telephonic or other- and did with Ruth later take the to Harri- trial, Hughes Later, Hughes drop testified son’s wise. store. telephonic appel- by up. only pick to the bet Harrison also re- lant, two three but to a bet of called another time when he asked by appellant Hughes Appellant hundred dollars made to his home. They gave home. Addi- two others in Harrison’s a drink and both there. had objection, tionally, Hughes testified without she a bet. that she took bets Appellant quibbles fully un- about through through Mr. Har- Lee Hill derstanding questions the nature of the occasion, Hughes rison. On one fully jury. before the He was Anita, at Lee reservations Santa completely na- informed as to the go along. Appel- Hill asked grand jury hearing. ture of the He accompanied lent them to the race track grand jury inquiring knew the into over, they and after the races betting gambling, horse race and other together. had dinner It was on re- subjects. The record demonstrates trip turn from this occasion that normal intelli- is man of least calling apologized lant gence. ques- When he was asked the apology, “bitch”. Hughes Previous Hughes, tions with you “Have reference had related to wager ever with her?” and Harrison had told her about the circum- you place “Did ever a bet Ruth *5 placed prom- stances under which he Hughes?”, you and “Did to talk ever Hughes. iscuous brand on Harrison’s Hughes her Ruth about establish- testimony paralleled Hughes. that of ment?”, you and “Have ever passed appellant’s He he testified that wager person telephone with or Spencer Hughes, on bets to Mr. and to Hughes?”, Ruth he well knew that perhaps week, interrupted twice a with “Yes”, answers should be while he was period bets, an occasional of no and that questions, responding to each of appellant per- he told the name of the “No, sir.” passing sons to whom he was the bets. origi- proof appellant Additional that He further testified that he had conver- nally thought questions quite unam- length appellant sations with the non-use about biguous is that he testified at placing of his name in with bets during the of course the trial and never Hughes. agreement Harrison’s with any claimed once that he misunderstood Hughes appellant’s was that bets would questions. one of the to His answers be made under Harrison’s name. Harri- questions during the exam- course his occasion, son recalled one on a collection clearly not ination show he did intend Hughes, from go wanted wager”, “place to limit a transac- get night, saying it over and that person tion with a with whom he was betting money coming that he had some dealing directly. contrary, his To the Hughes, go from “Let’s over to so that trial, testimony, on demonstrates and so’s house.” Harrison said he sub- instinctive reaction was to consider his sequently told the substance the con- Harrison, placed, the “bet” with as Hughes. Clearly, during versation to Hughes, person it to whom but with period question, appellant became conveyed. ultimately Under Hughes gambling indebted to on his ac- interpretation other can we understand tivities. Harrison so testified. also He testimony ref- with the vast volume Hughes testified that would come to his winnings picking up erence store, making inquiry he as to whether Hughes, claiming win- additional from gam- appellant’s making for her on de- nings her from bling payment of bets. debts. Harrison said on mands
421
affidavit,
and, handicapped
are,
as we
we could
post-trial
Harrison’s
misunderstood
appellant’s conten-
thrust
support
attempts
inquiries
grand jury
“give a
before the
bet”
appellant did
tion
admission,
place
By
ap-
on the trial.
his
thereby attempting
own
Hughes,
betting
pellant
on
from
had been
horses
entirely
construction
an
different
II to the time of
if
the end of World
Even
War
phrase
he had at trial.
than
grand jury
expertise
us,
inquiry.
His
his affidavit
properly before
precludes
misunder-
his clear-
the field
obviously
at variance
.so
meaning
ques-
standing
of trial
as to the
testimony
time
at the
cut
grand jury. The
should be
trial
tions before
in the affidavit
the statement
analysis
at-
court’s
grano salís.
taken cum
a new trial
motion for
titude
his
defining
legion
a “bet”
are
The eases
worthy
quotation.3
“wager”.
nothing
than a
less
more
as
trial, appellant’s
Oreck,
Cal.App.2d
168
to relevant
People
answers
On
74
quite
(1946).
are
questions
evasive
words
were sometimes
P.2d
satisfactory.
synonymous
the Federal
won-
far
Small
treated
1084(a),
Gaming Statutes, 18
members
resolved
§
U.S.C.
der the
States,
against
Sagansky
F.2d
him. The
the issues
v. United
1966).
(1st
carefully
the most
one of the
Even
instructed that
es-
dictionaries,
Webster’s
commonplace of
of the crime
sential elements
Collegiate,
prosecution
gives
proved
similar
was that
words
New
treatment.
knowledge
given willfully and with the
enough
believe
not naive
We are
was false. The
or belief
distinguished
actually
be-
issue for its mem-
was told that was an
wager”.
“give
and “make
a bet”
tween
guid-
appeal,
to decide.4 On
we are
bers
sug-
impressed with the
are we
Neither
ed
the evidence must be
the rule
answering
gestion
thought
light
favorable to the
viewed in the
most
grand jury
questions before
government. Glasser v. United
pointed
inquiries
toward
S.Ct;
60, 80,
L.Ed.
U.S.
Hughes,
arrangement
direct
(1942); Moody v. United
intermediary
through
than
rather
*6
(9th
1967);
376 F.2d
Cir.
may
of us
those
who
Even
Harrison.
States, 354 F.2d
Vuckson v. United
justice
lonely halls of
the
be confined to
1966). Likewise,
(9th
all rea-
Cir.
days
other
of
recollections
have dim
*
attorney.
Appellant’s trial
:*
is no basis
There
SCHWARTZ
3. “MR.
224-225).
(R.T.Vol.
pp.V,
lying.
for
impressed
not
I am
THE COURT:
perjury is that
element of
4.
essential
“One
impressed
the
I
wasn’t
with that.
oath and
be made under
statement
the
any-
protect
trying to
He wasn’t
time.
by
person
wilfully
who knows
made
trying
protect
body
He was
to
else.
or is
is false
that
the statement
believes
good
thought
name. For
his own
he
was
ignorance,
whether or
his
aware of
he wanted to have
or other
some reason
Hence,
was
where there
the same is true.
bookies,
nothing
and so
do with
consequently
wilfull,
criminal
no
no
and
insulate himself
as best
could to
tried
is made
as the statement
intent
as far
Instead,
use
he would
from bookies.
and a belief that
an honest mistake
go through
somebody
He would
else.
though
perjury,
true,
even
there
Byers
that,
something
like
Harrison or
actually may be false.
the statement
anybody
acknowledge
but he would
in-
in these
‘wilfull’ as used
The word
help
that
dealt
he could
that
alleged
making
an
the
of
structions means
bookies,
very same
he tried to do the
and
perjurous
conscious-
with the
statement
Jury,
thing
the
and he
Grand
false,
con-
or with the
ness
it was
that
protecting Spencer. He wasn’t
wasn’t
did not
that
the maker thereof
sciousness
try-
protect Hughes.
trying to
He was
And with the
know that
it was true.
ing
protect
that
the Chamber
Vitello so
as a
it should be received
intent
that
say,
true.”
still
‘He doesn't
of what was
of
statement
Commerce
”
2-13).
p.
IX,
(R.T.Vol.
lines
bookies.’
deal with
supporting
given
by
court;
inferences
than
sonable
ver
that
to them
government.
(4)
in favor of
dict are
in
indictment was
one count
only;
(5)
Diaz-Rosendo v. United
357 F.2d
the four essential elements to
1966),
proved
cert. denied
in
order to establish the crime
(6)
perjury;
particu-
17 L.Ed.2d
of
that
the three
alleged
in which
lars
was
falsely
knowingly,
have testified
The
was corrobo-
single
contained in
count
by Harrison,
only
rated
but also
indictment;
(7)
government
that
totality
of circumstances
shown
only prove, beyond
need
a reasonable
the entire record. What
we
said
doubt,
falsity
particu-
of one of such
concerning
phrases
“take a
bet”
government
lars
order
to sus-
“place wager”
equally applicable
proof;
(8)
its
tain
burden
charges
Spencer
the Harrison
government
prove
must
each essential el-
falsity.
beyond
doubt;
ement
(9)
reasonable
ample
We hold there was
evi
every
crime there must exist a
guilt
charges.
dence of
each of the
joint operation
union
aor
of act and in-
demonstrate,
jury,
The
as we shall later
prosecution
tent with the burden on the
guilty
beyond
found
a reason
prove
beyond
both act and intent
able
on at
least one of
those
doubt
doubt;
(10)
reasonable
or-
charges.
necessary
der
return a verdict
it was
Here,
juror
shall discuss
agree,
we
for each
in other words
deprived
contention
he was
their
must
be unanimous.
guaranteed
jury trial as
the Sixth
Implicit
in the instructions
ais
alleged
of the
Amendment because
fail-
direction to the
members
of the court to
ure
instruct
they
could not return a verdict of
jurors,
finding
twelve
a ver-
guilty
unless
were unanimous on
agree
guilty,
unanimously
dict of
must
charges
one
falsity
or more of the
falsity
of at
least one of the
specified in
the indictment. Under
charged
in the indictment.
statements
interpretation
reasonable rule of
or con
alleged
error
the instructions
applied
instructions,
struction
discretely
so
concealed that
told
must be ac
lant’s able counsel failed to
discover
quitted
government
proved
unless
instructing
jury.
court
beyond a reasonable doubt
to the entire
Moreover,
alleged
error continued to
escape
judgment
him on the motion for
on at
least
of the three
acquittal
for a new trial.
motion
charges
set forth
the indictment.
alleged
addition,
error was not
appellant’s original
raised in
brief
filed
jury system
Our whole
is based
*7
alleged
in
To
this court.
discover
the
recognized
ability
jury
the
of the
error,
searching
we have to await
the
Opper
to follow instructions.
v. United
hindsight
lawyer,
of another
able
who
States,
84, 95,
348 U.S.
99
S.Ct.
prepared
appellant’s
the
sup-
and filed
Moreover,
(1954).
L.Ed. 101
we must
plemental brief.
jury
assume that
the
in
followed the
States, 354
The court’s
to
v. United
exhaustive instructions
structions.
Cook
(9th
1965);
Mfg.
jury
the
Shotwell
members of the
F.2d
Cir.
consume fifteen
States,
pages
example,
the
v.
371 U.S.
S.
of
record.
For
the Co. United
(1963);
single,
Fine
ters. We
to
were material
So,
too,
as
on
a matter
of facts
what occurred
of law.
on
state
before
us,
including
grand jury,
record before
the statement
the lower
court cor-
ruled,
scope
rectly
law,
to
as matter of
on
questions
body’s investigation.7
propounded
material.
view, appellant’s con
In our
Other
contentions advanced
grounded
prem
on a
tention is
defective
lant,
(1)
weight
given
such as
to be
obviously
ise. He
the false
believes
testimony
government
of certain
actually
impede
statements must
witnesses,
effect
grand
investigation.
This is
delayed
court’s instructions on a
offer States, 16
the law.
F.
Carroll v. United
portion
retract
of the
951,
(2d
1927),
2d
denied
Cir.
cert.
grand jury,
completely
are so
with-
763,
880;
S.Ct.
L.Ed.
out substance
do not warrant dis-
Woolley
97 F.2d
cussion.
1938).
Judge
Cir.
Learned
A careful examination
of the entire
Hand,
usual, gives
aus
definitive
record
us
convinces
had a
subject
statement
in United
trial,
fair
which was
impar-
conducted
Siegel,
(2d
States v.
263 F.2d
tially
irregularities
and without
or de-
1959),
cert.
Cir.
denied 359 U.S.
any way affecting
fects in
his substan-
After
7. T.R.Vol. 15-31. *9 may contemplated or possibly predicated then be The indictment viction. predicated alleged perjurious ques- answers the answers to the upon three during tions. given by his interro- the accused best, grand jury. gation At its perjurious before alleged third state- The imprecise, language English is often ment, negative question answer to the not one should to me that anyone it seems he named Charles whether knew an- result of perjury as a type for Spencer, be indicted of a that should Otis given questions characterized justify swers hardly unless conviction ambiguity by whatsoever. clearly proves prosecution the de- gave answer, fendant, he ac- when his questions put to Vitello One of the by particular tually individual knew wager” “placed a he had was whether Here, not particular name. it Hughes. The Government Ruth with that, ques- the time of his established at question rea- this form admits that tioning, as the man whom Vitello knew oppos- sonably susceptible to least two at “Spence” Spen- in fact Charles Otis e., ing had interpretations he whether —i. to Whaley known cer and so Vitello. given transmitted her F.2d 938 actually he had someone else or whether 1966), per- we reversed a conviction for personally on the outcome her bet with jury in identical circumstances. almost particular race. Since Vitello of a regard- believe, questioning would, permitted if in the I to act led to While wager” ing Harrison, “place alone, particular judgment re- this reverse employing an inter- another as for the rea- ferred to of conviction above stated bookmaker, sons, my principal objection ma- mediary ultimate opinion portion jority he may continued is the thereof be assumed well interpretation in mind when with the issue of which deals to have this Hughes.1 Thus, rights. his Amendment As Ruth lant’s Sixth asked about out, pointed have indictment was could framed as to answer count, alleging truthful, fact in that Vitello had based perjured particulars. personally but had himself three with her had bet general employ an intermedi- was instructed her as intended reason- return a ary. explanation could also terms that could not This negative unanimity opinion. his without ably answer account advised, not, however, ever di- question It was either of whether anyone rectly indirectly, “placed other than it must reach a bet” unanimity opinion falsity submit I therefore Harrison. among employ particular interrogator did least one answer original precision should set forth in the indictment. It three that caution interrogator jury could seems clear to me that of an be demanded giv- believed, charges either under the instruction are have subsequent gave accept majority’s it to someone else casual tion himself 1. I cannot yet question with. we are concerned treatment Yes, fully I “A. have.” have understood Vitello could jury. ex questions When demonstrated this The confusion certainly “place wager” change subject must have carried over first came questioning concerning interrogation up, Ruth follows: was as placed wager Moreover, despite majority’s you Hughes. ever “Q. Have claimed that Vitello never once Harrison? assertion on a horse race with Mr. questions, be indefinite. have misunderstood “A. Well —that replete Harrison, If he— record of the trial no. With Mr. by Vitello, well as both with efforts “You— prosecution may counsel and bet for and defense carried a “A. —he court, draw between the distinctions me to someone else. you ways way: put wrhich bets could be Did various me Let it this “Q. ways placed give the various horse and between a bet on a Mr. Harrison ever actually kept bets. the ac- which Vitello had Whether or not race? *10 en, it could return verdict of guilty jurors each of the if found that perjury
there one or more of the regard answers, without agreed that at least one of an- perjurious. example, swers was For six
jurors perjury could have believed that answer,
had committed in first
while perjury five believed
been committed the second answer
only remaining juror believed only had been committed
to the third answer. The instruction
given by the trial court would enable the to find the defendant jurors’
such opinions. combination of
Since we are unable to determine from general ground jurors conclusion, reached their
, judgment of conviction
be vacat-
should
See
ed.
Yates v. United
U.S.
1064,
77 S.Ct.
U.S. n. L.Ed. 65 S.Ct. (1945).
I would reverse. al., Appellees,
Lindahl et KING
SADDLEBACK JUNIOR COLLEGE DIS- al., Appellants. TRICT et
No. 25464. Appeals, States Court Ninth Circuit.
April Orange Kuyper, County Adrian Coun-
sel, Powell, County Deputy John F. Ana, Cal., Counsel, appellants. Santa for Wirin, Okrand, Ange- A. Fred L. Los les, Cal., Herzog, Patricia Corona Del Mar, Cal., appellees. HAMLEY, Before WRIGHT and TRASK, Judges. Circuit