600 F.2d 19 | 6th Cir. | 1979
Lead Opinion
Defendant was convicted of perjury in violation of 18 U.S.C. § 1623.
The facts of the case are undisputed. On February 15, 1977, defendant was called to testify before a federal grand jury that was investigating narcotics traffic in the State of Tennessee. In his testimony, and while under a grant of immunity, defendant admitted that he had previously acted as a drug courier for a Ronald McKinley, a target of the grand jury investigation. Specifically, defendant referred to several drug-related trips he had made to California in the years 1974 and 1975, and he detailed a series of incidents in which he connected Ronald McKinley with illegal drug traffic. Two days after he had given his grand jury testimony, on February 17, 1977, defendant talked to the attorney who represented McKinley, a Mr. Vincent, in Vincent’s law office. In the course of their conversation, Vincent informed defendant that he was under no obligation to speak and that anything he said would probably be used in court if McKinley was brought to trial. In
In arguing to this Court that defendant made inconsistent declarations in a “proceeding before or ancillary to a [federal] court or grand jury,” the government reasons, first, that the events in Vincent’s law office on February 17, in and of themselves, amounted to a “proceeding” that was “ancillary to” the grand jury that had heard defendant’s testimony two days earlier. We disagree. Congress did not define the term “ancillary proceeding” in section 1623, and the courts have seldom construed its meaning. Nonetheless common experience indicates that every proceeding, including an ancillary proceeding, must incorporate certain notions of formality and convention.
The government reasons, next, that even if all the elements of section 1623 were not established when defendant and Vincent met on February 17, they were subsequently established when Vincent presented defendant’s affidavit to a federal district court. We again disagree. To make a case under section 1623, the government is required to prove that the accused himself has made inconsistent declarations within the course of a proceeding before a United States court or grand jury, or in a proceeding ancillary thereto.
“In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury.”
18 U.S.C. § 1623(c) (emphasis added). Pursuant to this section, a sworn affidavit that is submitted to a federal court by an individual or his authorized agent may properly
The indictment below did not mention the fact that defendant had affirmed and adopted the contents of his February 17 affidavit at the trial of Ronald McKinley. Nonetheless, the government introduced a stipulation to this effect at defendant’s trial. The admission of this stipulation into evidence cannot now be used to support defendant’s conviction. Such evidence was outside the scope of the indictment and its employment created a material variance in the proofs at trial. It is well-settled that a variance between an indictment and evidence is fatal if the accused is misled to his prejudice or if the accused is exposed to the danger of double jeopardy. United States v. Enright, 579 F.2d 980, 988 (6th Cir. 1978); Stone v. Wingo, 416 F.2d 857, 864 (6th Cir. 1969). However, we need not decide whether the admission of the stipulation in question misled defendant to his prejudice because receipt of the stipulation placed defendant in the danger of double jeopardy. As indicated, defendant was convicted of committing perjury either on February 17 or later when Vincent presented defendant’s affidavit to a federal court. Thus, consistent with the indictment, defendant could subsequently have been indicted for, and convicted of the separate offense of committing perjury when he testified at the trial of Ronald McKinley. Because defendant’s testimony at the McKinley trial would have formed the basis of such subsequent indictment, the use of this testimony to support the charges actually contained in the indictment below placed defendant in the danger of being tried twice for the same offense. Cf. United States v. Dunn, - U.S. -, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979).
The judgment of the district court is vacated, and the case is remanded to the district court for dismissal of the indictment.
. Following a jury trial in the district court, defendant was convicted under a two-count indictment of perjury in violation of 18 U.S.C. § 1623 and of making false statements in an affidavit in violation of 18 U.S.C. § 1001. The trial judge granted a judgment of acquittal as to the second count.
18 U.S.C. § 1623(a) provides that:
“(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information . . knowing the
same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
18 U.S.C. § 1623(c) provides a statutory method of charging a witness with a violation of § 1623(a):
“(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false . . ”
Additionally, § 1623(c) sets forth a method of proving false declarations:
“In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury.”
Thus, under § 1623(c), the government need not prove through extrinsic evidence which of two or more declarations is false. Rather, the falsity of one of the declarations will be inferred from its inconsistency with the other(s).
. In Black’s Law Dictionary (4th Ed. 1968), the word “proceeding” is defined as . the form and manner of conducting juridical business before a court or judicial officer . . . and the term “ancillary proceedings” is defined as “one subordinate to or in aid of another primary action.”
. The final draft of this opinion was submitted to the printer prior to the Supreme Court’s announcement of its decision in United States v. Dunn, - U.S. -, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979).
. See note 3, supra.
Concurrence Opinion
concurring.
The recently decided case of Dunn v. United States, -U.S. -, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), is squarely in point and disposes of the issue presented in this case. The same question, arising under the same criminal statute, based on the same variance between the indictment and the proof, is presented in both this and the Dunn case. I concur for the reason that the Dunn case controls our decisions here.