United States v. George Raymond Dipp
581 F.2d 1323
9th Cir.
1978
Check Treatment

*2 HUFSTEDLER, Before SNEED KENNEDY, Judges. Circuit SNEED, Judge: Circuit Dipp appeals from his conviction for per- violation of 18 U.S.C. § perjury charge arose out of testimony he gave in his own behalf at an earlier trial in which he was' accused of conspiracy to smuggle drugs into the United Ap- States. pellant acquitted of the conspiracy charge. appeal On this decide, must first, whether the perjury barred either by the doctrine of collateral estoppel prosecutorial and, second, barred, if not so whether there was sufficient evidence introduced at the perjury trial to establish the materiality of allegedly false in the initial trial. We find no bar to cution and that the evidence was sufficient We, establish materiality. therefore, af- firm the conviction.

I.

Facts. Dipp was charges indicted on of conspir- smuggle controlled substances into the United States from Mexico. His al- leged co-conspirators, Donald Johnson and Timothy Melancon, against testified him at trial. Dipp alleged provided financial support for the smuggling opera- tion, while Johnson actually Melancon flew the drugs into the United States. Dipp’s defense at trial was that he had agreed give Johnson financial support legitimate for a venture, but had no idea that the airplanes he helped purchase were being marijuana. used to smuggle In order be barred against Dipp, govern- doctrine of collateral es- case its to bolster testimony of Paul Fine- ment introduced toppel. While did raise this issue regarding smuggling opera- a later frock brief, appellate appropriate in his it is plane sup- flew which Finefrock tion in sponte consider this issue the light sua subsequent evidence of by Dipp. This plied the intervening of this decision *3 Dipp’s was used to show acts criminal Hernandez, 572 F.2d 218 operations and as knowledge smuggling of re- of his intent circumstantial transaction. On the previous garding the beyond It is now ques established stand, meeting Finefrock more Dipp denied tion the of estoppel doctrine collateral in- categorically denied once and than applies part to criminal cases the as of smuggling operation a in volvement protection constitutional against double conspiracy acquitted was of him. Swenson, 436, jeopardy. Ashe 397 U.S. charge. 1189, (1970). 90 25 469 S.Ct. As defense Before Supreme Court there stated —“the of rule discovery sought broad from the estoppel collateral criminal cases is stated that no prosecutor The prosecution. hypertechnical with the ar applied and relating or statements recorded written approach century pleading of a 19th chaic Finefrock existed. When the defendant book, rationality.” but with realism and Id. stand, request a further for Jencks took 90 at to him was made. regard material Act at that time were the produced All that This court in Hernandez described notes from his interview with prosecutor’s estoppel collateral as doctrine follows: Appellant admits that at the witness. actually When an issue of fact or law is neither took the stand time Finefrock litigated and determined final Drug of Enforce- prosecutor nor judgment, valid and the determination is (DEA) agents directly ment Administration judgment, essential to the the determina- prosecution were aware of in the involved is conclusive a subsequent tion action However, after any other material. parties, between the whether on the same agent a DEA the Reno conspiracy trial or a different claim. that the DEA office El discovered office recording a conversation tape had a of Law, 2d, Paso (Restatement Judgments, of the addition, In Dipp. between Finefrock (Tent. 1973)) Draft No. March § debriefing statement was a of there at 220. F.2d agents DEA follow- by Finefrock to made doctrine, Application we said in Her- Dipp. the monitored conversation ing nandez, a three-step process involves par- tapes established that These analysis: ticipated smuggling operation in a with Fine- (1) An identification of the issues in the frock. for purpose two actions of determin- Following discovery tapes, Dipp these sufficiently whether issues are violating 18 U.S.C. was indicted § sufficiently similar and material in both testimony the false he had reason of doctrine; justify actions to invoking concerning given at the (2) an examination of the record of the relationship with Finefrock. prior case to decide whether issue was this trial and a convicted introduced at case; ‘litigated’ (3) an perjury. appeal prior examination of the record of the conviction. proceeding to ascertain whether the issue II. necessarily decided in the first case. Id. Estoppel As A Bar. Collateral we applied three-step In Hernandez pre-trial appellant motions one perjury prosecution process should and concluded that defendant’s

argued that subsequent barred a acquittal former fn. 2 Cir.), denied, cert. respect cution for to certain U.S. 97 S.Ct. 51 L.Ed.2d 784 (1977). acquittal defendant in the trial that An charge on such a need acquittal. in his not mean that resulted truthfulness all elements required to prove testimony was a conspiracy of this a material issue were no found to be lack ing. If several proceedings, in both the truthfulness or no elements were litigated, ac case, quittal can mean that litigated and the first found in favor necessarily decided that defend- defendant on case one element. A general verdict, however, was true.1 ant’s relevant does not reveal the identity of that element. United States presents The instant case substan Tramunti, (2d Cir.), cert. tially Dipp’s different situation. While re denied, 95 S.Ct. lationship with Finefrock was issue in *4 (1974) (acquittal trials, say it both cannot that was “liti does not necessarily determine whether de gated” in the trial nor can we say first fendant not was at a meeting con “necessarily it was decided” in the first trial spirators, particularly light of weak evi jury acquittal. verdict of Fine- agreed dence he conspire ever to even if he testimony frock’s at the first trial did not there); see also United v. Gugli States relate to the for which aro, (2d Cir. tried, being a but involved later conspiracy Similarly, Dipp’s acquittal cannot be involving persons. different viewed as turning solely on the jury’s ac- only Dipp’s admissible to show knowl ceptance of his denial of Finefrock’s testi- smuggling edge operations ap and his mony as true. Dipp vigorously denied the parent engage intent to such behavior. assertion that he had connection with jury acquittal charged verdict of on the the conspiracy at all. Under these circum- conspiracy did necessarily not decide that jury stances the could have disbelieved jury Dipp’s credited version the rela Dipp’s testimony about Finefrock but ac- tionship with Finefrock. The reason quitted Therefore-, him nonetheless. collat- ably have believed eral estoppel is inapplicable. heavily in smuggling operations involved Finefrock, with that there was but insuffi III. cient evidence to link him with the Johnson Therefore, conspiracy. Melancon collateral Prosecutorial Misconduct As A Bar. estoppel not bar Dipp’s prosecution does for Appellant alleges prosecutorial falsely testifying regarding relationship (1) first using with Finefrock. perjured testimony from (2) Finefrock and estoppel

Invocation of collateral bar failing to to reveal a of a conversation prosecution for perjury acquit- an following between Finefrock pursuant and Dipp, ato conspiracy charge tal on a frequently order, discovery broad should bar the subse- Brown, difficult. See United v. 547 quent States perjury prosecution. initially ings partner

1. In Hernandez the defendant was with the with whom he worked charged overbilling government partner alone. This had been located after the minority legal provided services business- first trial and now asserted that he had never men. At the trial testified that he met had meetings such individual with the de- partners a certain busi- fendant. This court found that the issue in together, ness but that he had also worked both trials was the number of hours the defend- extensively partners with one of the alone. spent legal giving partner ant had advice to this partner presented That was not as witness acquittal alone. The in the first case meant the mistrial was trial. After the deadlocked judge that the believed that the defendant had declared, judg- the court entered a partner Thus, worked with this alone. acquittal. ment of necessarily decided that the defendant’s Some three later a months indict- relevant estop- was true. Collateral defendant, against pel precluded relitigation ment was returned of the truthful- charging regarding testimony. that he had lied his meet- ness of that tape’s cutor knew of the arguendo that existence and in- Assuming testimony at the withheld it perjured tentionally used order to induce knowingly could have appellant’s perjury. conviction to commit any alleged Nor is any reasonable if there was perjury regarding reversed Finefrock’s status as a been testimony could the false agent so government serious as likelihood to render jury. judgment affected Dipp’s predisposition lie irrelevant. 97, 103, 96 Agurs, States United Appellant argues further (1977). Fed.R. 2392, 49 L.Ed.2d 342 governmental misconduct here denied him 16(a)(1)(A) requires prose Rule Crim.P. counsel, the effective assistance of since if Fine- recording produce cutor been everything had disclosed his counsel while Dipp, and conversation frock’s would have advised him not to take the in de- judge has broad discretion the trial reject this argument. stand. The Su to com for failure termining the sanctions has preme clearly Court established that order, 16(d)(2), dis Rule with such ply permissible response is not a even charges may appropri be an missal of rights argu when a witness’ constitutional the failure in situations where sanction ate Thus, ably have been violated. failure severely preju is both wilful and produce give warnings Miranda to a witness be Roybal, States United dicial. grand jury fore does not insulate him 1977); Stof Cir. perjury prosecution. denied, 1975), (2d cert. F.2d 237 sky, *5 174, 1823, 431 Wong, v. U.S. 97 52 S.Ct. 80 819, 97 50 L.Ed.2d S.Ct. 429 U.S. (1977); 231 L.Ed.2d United States v. Man (1976). 425 dujano, U.S. 96 S.Ct. 48 however, are, inap These sanctions (1976). In 212 these cases the Dipp was case. in this posite no Court found fundamental unfairness in he was conspiracy charge; acquitted of choice, witness to putting the should he by prejudiced at the first clearly not all, answer at of either incriminating him misconduct. alleged prosecutorial any of the lying. Wong self or Court in held that Instead, prose we must decide whether “[ijndeed, could, even if the Government on a in the first case bars cutorial sanctions, pain compel of criminal an an perjury. On subsequent incriminating questions, swer to its a citizen bar. this case we find no such facts liberty to falsely. is not at answer . wilfully in the lied Appellant question, the citizen answers the the an- If government saw that the when he must be truthful.” Id. 97 swer S.Ct. Fi supporting strong physical evidence no testimony. Admittedly, the in nefrock’s Similarly, other circuits held that less had lie would have been ducement is no bar to complete even denial of counsel tape and clar produced the government subsequent perjury prosecution. United a informant- position as an Finefrock’s ified Masters, (10th 484 v. F.2d 1251 Cir. States However, prosecutorial misconduct agent. Winters, 1973); United States v. inducement merely increases the which Cir.), denied, (2d cert. 204 86 with a vest the defendant lie does not (1965). The case S.Ct. 360 predisposi was appellant’s lie. It license to us, involving only before minimal interfer which this crime. Cf. to lie led to tion counsel, presents ence retained even Nickels, (7th v. F.2d 1173 502 States United prosecution. less reason to bar a perjury denied, 1974), cert. 426 96 Cir. (1976). 48 L.Ed.2d 837 IV. that miscon- recognize governmental We Materiality Perjured Testimony. committing entrap can witness into duct States, 337 LaRocca v. United perjury. perjury prosecution Cf. Since the barred, appellant’s (8th 1964). This is not such must Cir. examine F.2d 39 regarding no that of error the substantive There is evidence claims case. 1328 18 the in order necessary perjury. to establish establish materiality.

elements “[wjhoever that un- provides 1623 United v. recognize that in States Dam- § U.S.C. proceeding be- ato, any ... der oath (5th 1977), F.2d 1371 Cir. the court grand jury of . . . court or fore held that there was insufficient evidence of knowingly makes States United materiality when only allegedly false . . . .” shall material declaration false jury. was introduced to the Appellant argues of a crime.2 guilty be case, however, there was no evidence insufficient evidence intro- there was judge in the perjury trial con- show at the trial to duced anything sidered excerpt. more than this A original testimony was material false proper by judge determination of materi- ality as requires a matter of law more than excerpt. Presence of the very case law has broad entire established tran- script of materiality. the first trial and its parameters for the definition consideration “[Ejssentially anything that could influence judge perjury trial eliminates the trial or the the Damato defect. or mislead to be material.” United States considered Damato recognized that since the Whimpy, (5th F.2d Cir. materiality issue is to be 1976). expan This circuit also follows this court, bearing solely on materiali the materiality sive element. definition ty should presence be received outside the Anfield, States v. (9th United Id. jury. Thus, at 1373. Damato 1976). Cir. impliedly approved procedure utilized in materiality We note further is a case, whereby the whole transcript was court, question of law to be decided judge, shown to the while the allegedly Percell, jury. not the false was introduced to the jury. 1975); F.2d 189 Cir. procedure reduces the danger preju Rivera, There dice the defendant which fore, sufficiency regard of the evidence placing result of transcript entire be *6 ing materiality judged must be in terms of Cf. Gebhard v. United jury. fore the what was to judge. available the States, (9th 1970); Cir. In judge the instant case the considered States, Harrell United the materiality hearing issue at a held on 1955). Cir. The failure to introduce the pretrial various motions made the de- complete transcript the jury to was not judge complete fendant. The tran- had a error. script of the at available to him AFFIRMED. hearing. transcript clearly testimony regarding showed that his Dipp’s HUFSTEDLER, Judge, Circuit concur- Finefrock, relationship with whether be- ring: not, lieved or could have influenced the appellant on the issue of whether had the agree I my with Brothers that double knowledge to requisite guilty and intent be jeopardy not Dipp’s prosecution does bar charged there. conspiracy of the perjury following acquittal his of con- materiality judge’s finding of thus fits easi- spiracy because the question whether ly definition. within broad met Finefrock more than once not nec- however, Appellant argues, essarily that the acquit- when it transcript complete must be introduced to him.1 I agree Dipp’s ted also that testimo- only upon laying proper 2. note that that had tion or foundation. Unit- Arias, placed oath been under at the first trial was the ed States v. reporter’s transcript in that statement “having duly Dipp’s prior been sworn” witness relationship testified. with Finefrock was recently hearsay, directly The statement we have but in issue in the first trial because the upon that it is sufficient oath held to establish the Government relied Finefrock’s offense, perjury objec- prove Dipp’s knowledge. of a absent element to intention and Blackledge Perry (1974) sufficiently materi- prior trial at his ny Finally, I and its charge. progeny, support perjury toal record on filed an Agent stating that the Cameron affidavit with the conclusion agree establish that he learned insufficient to that of the existence of the appeal is direct tape recordings trial, foreclosed the misconduct after the governmental join majority 2, 1976, September do not that he trial. I on received perjury however, implies that because it tapes from the El Paso DEA on opinion, Office Dipp’s in claims not substance may September 1976. When there Cameron testi tainted the governmental trial, perjury fied he said that he appearance that an trial and 16,1976, tapes July received the El Paso on infected the second trial. vindictiveness of the ending conspir one month after trial, acy September and not as he with on Decem- meeting Finefrock’s in his In earlier stated affidavit. addition 15, 1975, debriefing and Finefrock’s ber to inconsistencies in Cameron’s own tes agents to in El Paso were DEA statement timony, other facts in the record cast seri trial, prosecut- taped. In the first both upon ous doubt Cameron’s truthfulness to the court that represented denying knowledge tapes during writings respect Dipp, with existed no the first trial and at least an raise inference own notes taken prosecutor’s than other Cameron not candid with the Through- him.2 during an interview way when testified Agent DEA Cam- out by way affidavit and of oral attorney at prosecuting sat with eron The record does re- counsel table. Cameron, response by any audible veal Finefrock testified that he met Cameron attorney asked him prosecuting when Reno, Jones, Nevada, his partner, on state- written the existence about arranged November 1975. Cameron Defense counsel regarding Dipp. ments meeting about four or five earlier days nodded head that Cameron has asserted at his when he called Finefrock home in prosecuting attor- affirmatively when to come Reno Oklahoma and asked him relating material if the ney asked him respond Dipp. questions Acting about prosecutor’s was the Dipp’s statements offices, cooperation DEA several notes. own December, Finefrock was sent to El Paso This was the Dipp. to meet motion to response to defense counsel’s meeting on recorded. From perjury prosecution, both dismiss events, sequence an inference arises prosecutorial misconduct on grounds *7 vindictiveness, agents par- DEA upon based Cameron was one of the grounds the of Dipp litigated does [The and record not reveal re- was because audible issue relationship sponse by Camron, in that the testified to but defense has Finefrock counsel However, the was not neces- trial. issue his stated that Cameron nodded affirm- head by sarily atively.] it could have the because proof of the the Government’s concluded The The Court: Government can’t disclose a charged conspiracy with Johnson and Melan- doesn’t witness it know about. reaching unconvincing in- without the con Claiborne: He did know about it to this make knowledge issue. tent and knowledge must motion? He had of it have time,' I at some am sure— proceedings transcript the the of con- of you When The Court: did find out about this relating spiracy in to this matter most trial witness? part pertinent is as follows: discovery, response Pike: In to the Govern- reports with re- “Pike: There are no written to was a ment indicated counsel there testimony regarding Dipp. spect Mr. to the possibility go of another witness that would any writing at all Court: You don’t have intent, by to it the Act with stood Jencks it? about your Primarily, respect to that witness. just my I took I own notes that Mr. Pike: Honor, frankly quite I in fear for because was talking to That is all the material the him. safety.” his correct, aware of. Is that Mr. is Government Cameron? Although Decem- the setting up Finefrock’s before in record us on ticipating direct appeal tape reveals that However, recordings neither the fact of meeting. ber all possession were at times in the of it nor the extent of is participation his government agents and Cameron knew course, record. Of if Cam- revealed tape that the of recording Finefrock’s meet- arranging participant in eron was an active ing taped, been is record Dipp, it meeting with Finefrock’s December inadequate permit to us to decide whether Cameron unlikely that highly would be deliberately Cameron withheld his knowl- of the fully been aware would not have of edge tapes at conspiracy or trial well before tried tape recordings whether he misled both defense counsel and conspiracy. for the court when he was later asked ex- to trial, perjury filed his affidavit plain the post-conspiracy trial discovery that he learned of the Cameron testified tapes. Under Federal Rules of Crimi- from at the time tape recordings Finefrock 16(a)(1)(A), nal Procedure the Government “With of the He stated: obligated disclose statements meeting of a respect tape recording to the which were “within defendant the pos- a motel between Finefrock session, custody, or control the Govern- Paso, Texas, at the time of room in El ment, the which known, [the existence of conspiracy] your Finefrock did state to exercise diligence of due be- may known, tape had been record- come attorney affiant that there Thus, Government.” even if the prosecut- affiant ing meeting, your of such a did not know about Brazill, the exist- Agent instructed Dick here DEA tapes trial, ence of the at Lubbock, Texas, inquire of the El chargeable may sup- Government be tape Paso office as to the existence of this pression prosecutor of evidence if recording. affiant Your was told have learned of the existence of that evi- Agent that was no there such record- by the dence exercise reasonable dili- However, ing. September 2, on (Cf. gence. United States Alvarado-San speaking Agent Hal of the Kent El 645; Cir.1977) doval 557 F.2d office, your Paso DEA affiant learned that v. Ruesga-Martinez 1976) did, tape recording, fact, exist and at 1367.) your request, affiant’s Kent sent this If, evidentiary after hearing, it should Force, recording DEA to the Reno Task be sup- established that the Government it by your Septem- received affiant on pressed knowledge of existence ber 1976.” tapes the first and then used Cameron did not disclose to the purpose obtaining same for the knowledge of the conviction, the second prosecution existence tape recordings, of the did he nor would foreclosed because on reveal that had tried unsuccessfully part Government would be recordings. obtain the He never offered process. (Cf. violation of due Giglio any explanation for the inconsistencies be- (1972) tween the statements he made 104.) inquiry An prej- into affidavit and his at the udice the defendant is beside the point. *8 concerning time that he learned follows, The result not because defendant’s tape recordings still existed. Cameron excused, should ever be but because was not upon cross-examined the state- misconduct of the affects the ments affidavit. The record barren integrity the administration of criminal which we could deter- justice. Moreover, taint under such cir- mine whether Cameron told prosecuting stop cumstances does not with an acquittal about or recordings about Rather, in the first trial. the stain spreads may efforts that he have made to lo- to the second trial it appears if during cate them the conspiracy trial. advantage Government took of its own pri- its up cover tried to misconduct or trial. the second course of

misdeeds conclusion majority opinion’s join

I did not bar governmental view, the because, my second appeal is not direct us on this before

record us to deter- developed permit

sufficiently Cameron, or the either whether

mine knew about

cuting attorney, and failed to reveal recordings trial and

knowledge participant or both was a either

whether

covering prior misconduct up JONES, R.

Harold

Plaintiff-Appellant/Cross-Appellee, & MACHINE WELDING

BENDER Caterpillar

WORKS, Tractor INC.

Co., Defendants-Appellees/Cross-Appel-

lants. 76-2684, 76-2114.

Nos. Appeals, Court

Ninth Circuit.

Aug. 1978. Rehearing on Denial

As Amended

Sept.