United States v. Milford E. Cook

lack convicting of sufficient evi- ELY, Before WRIGHT KILKEN- and Hence, only charges dence. involv- NY, Judges. Circuit (a) (b) items were submitted jury, general read, whose verdict “We the guilty find the KILKENNY, Defendant Judge: Circuit charged in the indictment.” appeals Cook from his conviction charged perjury, prosecution great established, The have been grand testimony, committed before a federal volumes of some direct gam- policemen violation payoffs of 18 U.S.C. taken had from § bling establishments. The evidence with grand jury generally The was investi- knowledge reference to Cook’s gating gambling racketeering in Se- payoffs was both direct and circumstan- attle, Washington, and, at the time Cook testimony appellee tial. The introduced testified, specifically was concerned operators of business and owners who system alleged payoffs and shake- police victims shakedowns practices down in which the Seattle Po- policemen participated of numerous who Department lice had been involved. payoff system. system in the Cook, joined police who had force detail, described in evidence 1941, was an Assistant Chief Police little room for doubt there leaves grand jury’s at the time of the investi- perjury widespread corruption had been gation, but he retired after Department. Regarding Seattle Police indictment filed. involvement, Major alleged Police charged Jessup The indictment that Cook had Fuller both Assistant Chief willfully false before exist- testified that discussed the grand February payoff operation system on ence and Jessup separate particulars when testified three with Cook occasions. on monthly follows: also testified he received payments Chief from Cook. Assistant “(a) Corr testified observed Cook that he had any knowledge Q. you receiving envelopes Do have surreptitiously from being paid officers enforcement law others. by appellant hearing en at defense, of- produced a dozen Cook In sponse question by grand juror: to a testified former officers who ficers or knoweldge any they did not have you Juror: no “Grand And heard gambling having policemen paid been flying payoffs scuttlebutt about they did not and that any establishments Department time currently any of officers can recall? participated force who had Yes, I have Witness: Yes. addition, himself shakedowns. heard all kinds of rumors and having any personal knowl- had denied but, none, gossip, much heard payoffs. edge character Numerous say involvement, no I mean veracity. vouched for his witnesses investigation can ease that assignments of discuss shall We recall, far so substantiated appellant’s order in error outlined these officers were concerned.” brief. background The factual 549, F.2d Brown CHALLENGE. CONSTITUTIONAL 1957), appel upon Cir. which agree do not with We sufficiently to re relies is not close lant argument questions which that the quire to insert comment. The failure “indefinite, charge so based are missing questions answers and ambiguous” vague, require de and as to give did the answers the indictment itself termination that the indictment meaning wholly dif (a) (b) “a and unconstitutionally vague. manifest ferent” from that which Marchisio, (2d light of the in the read 1965). vagueness If in the there is weAs questions and answers. omitted “any knowledge,” term necessari such is appel mention, of issue later shall ly inherent. Gebhard v. United Cf. “understanding” for the was lant’s against him. they resolved and “gam phrases holdWe mat a inadequate as was indictment bling “being paid” establishment” and ter of law. phrases everyday are common used in conversational are nei intercourse and EVIDENCE OF THE SUFFICIENCY indefinite, ambiguous. vague, ther nor question quoted above, set the first As might In what be considered a collat- inquiry as in the indictment made forth sufficiency eral attack on the of the in- “any possessed knowl- to whether dictment, appellant contends being edge of law enforcement officers questions (a) and to Items and answers gambling paid by operators establish- of (b) context, lifted a re- were out of question was asked ments.” of er- sult which his answers were argues February 25, 1970. Cook meaning. points roneous He out “being paid” present and refers to the following (a) prior (b), fol- and no whatsoever there was evidence lowing interchange occurred: being paid payments at were “Q. knowledge Do inquiry. True time of about taking any law enforcement officers payоffs enough, no there is evidence money? shakedown However, after October 1968. years’ expe- twenty-nine A. In in the read answer must be and investigation rience have had some of the of the nature things being these have existed as a and before conducted was people sult that were involved grand jury. separated Police De- from appellant The record discloses partment.” (Emphasis supplied). age years time at the was Likewise, charges graduated July, he that the indictment from He 1970. following testimony giv- high Oregon June, also omitted school years a named followed Chief of for the next the Patrol Division. eleven ap- variety variety assignments, After occupations. 1941, he a In he was appointed plied Po- Chief position the Seattle Divi- for Detective a group sion in Department and six lice and out a months later was assigned top position applicants to the selected Assistant primary responsi- Chief of week course Police. The He then took a thirteen assigned bility Academy the Police and was Assistant Chief was com- police Division, mand the division of Patrol to the traffic which ca- pacity years, major super- he was his force. For the next two function was to assigned patrolman December, 1969, vise. In then and was was named charge motorcycle In Assistant division. Chief in enforcement of the Tactical passed he took and Services the examina- Bureau. position sergeant, tion for the then Reading appellant’s the record of University attended Northwestern Traf- grand jury Chicago period before the at fic Institute in trial, promoted appellant five months. he was convinces us that is a Captain. person ordinary intelligence, principal His duties were very investigation least, superior probably, traffic in Fol- division. lowing year serving tellect. and a half in that We are that he convinced capacity fully acting completely expert as an witness informed as eases, grand jury hearing promoted in traffic he nature of the to Su- and grand pervising knew, beyond Captain, question, capacity in he August, inquiring police payoffs served until In the into 1956. mean- time, during period years prior in to he taken some had an examina- position grand tion for the inquiry January of Chief of Police in and and had finished third. he was this rec- February, 1970.1 Faced with for the Western ed.” organized tection is set understand inquiring is you within the Western probably As on a mate. miles an hour. Jury average an hour. You on community, possible level of “MR. PITKIN: A. “Q. Would as practically a level hour, a street ^[*] you, in this area are the so-called Yes, 30-mile Take understand it.” and enforcement speed interested to enforce I am and no tickets this is basically into criminal sir. doWe it? ^[*] payoff system that has exist where and what every phase enforcement federal violations you on that sure, mayor, There is the Federal the level speed District It tolerance outline activity myself hour District, not enforce every ^[*] is are gambling, they street law, speed city are a tolerance aware, street law for this drive duty people given. policy, and ^[*] and also insist council, enforcement. Grand enforcement Washington want. This is 35 is 30 every area. to its ulti- generally to advise it instance, any pro it and to course, as Grand is is the There policy at 31 miles miles work ^[*] Jury into you im- believe that for a don’t have that or the course, tenth of try play penny ante, though they have other serious loss would nance that we be abilities of the loser? concern to the citizens was that a level and member all private clubs, punchboards, bingo time. ivas in told that it. has been in existence Would lar A. “Q. A. “Q. course, ^[*] reference Quite take enforcement action and we Well, quarter So at which There have policy What yon existence until a short while policy mayor those areas it interpretations gamble cent a too, ^[*] are not inwas run through my career, often, yes. was the is broader to as it was would be unreasonable many police of a cent a saw policy they and in those down poker, pinballs point, permitted depend existence licensed, ^[*] fit did not cause serious your amount policy as through to which the council or to interpreted slight changes this is far We, of that than that. Of license and is officers. And own ^[*] to prior community.” presently, as I point play course, cardrooms, operate areas, gambling, and home, financial policy— particu- raffles? course, can to that bridge thing? to me or a ^[*] I am is a ordi- just ago, we al- re- say ord, position appellant in no Vitello v. United 425 F.2d question and he misunderstood 1970), denied 400 cert. thought referring present, it was 27 L.Ed.2d long experi- past. His rather than the distinguished Here, from Department over- ence in the Police Lattimore, F.Supp. United States v. intelligence, precludes all demonstrated (D.D.C.1955), U.S.App.D.C. aff’d 98 meaning misunderstanding (1955) 232 F.2d 334 and United questions. of the indicated Wall, States v. Appellant’s 1967), appellant, contention in the context questions propounded misunderstood other urged by strikingly him grand jury, similar one before the could not against appellant question. him and resolved have misunderstood At anybody currently from the money? things ticipated law enforcement officer people enforcement officers tors try instances who do it. much as we power one is sum of were tolerance tolerance lic officials chief, council, instructions operations do a favor of a tolerance them as well as we could it function? implementing A. A. Q. A. Q. Q. A. A. Q. Do “Q. Did Q. What have had some A. A. At Q. What applies in ^[*] to enforce No, plays golf, Do Do No, policed particular You I have been told I have that were involved were that was have existed and as damaged by this, and so we don’t do not. gambling money my twenty-nine years’ I do nоt. yon you you Police I was told that some policy policy, namely, should cease don’t have being paid shake downs? do ^[*] many, many possibly role, from have the tolerance tried to in other not. it. ? available, thing generally plays ever receive Department. they establishments? on the force who you in the any any knowledge any knowledge anyone regarding ‍​​​‌​​​‌‌​​‌​‌​​​​‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​​​​‌‌‌‌​‌‍We couldn’t 3: policy? it is not being paid any, could time, for their with were taking interpret any knowledge words, to see that knowledge their areas. and that do with the man- policy, none. regard supervised as ^[*] a any specific you play shake operations. serious, mayor, past? directed to experience result position we particular separated by opera- Everyone for some it.” possibly making policed places down these some ^[*] par- pub- any law no rect? phasis terrupted ment of tolerance law, ence there was could well thing, cized, everybody knew, everybody in this which we are operator town knew indirectly through intermediaries from the course, any wrongdoing. are ceive shake down. And the other ly what I mean? the term means? you downs. And I A. Q. A. Yes. The same as A. No. Not [Grand “Q. Q. The A. A. Q. Have Q. Have A. Yes. A. Q. Q. time, person operator know. 116, 117, is that talking that, And publicized Yes.” operate. I I have not. Well, Explain By supplied). Mr. Pitkin. This something. It has been well known have would is the shake down for paid of a over the Jury Transcript, poliсy shake nothing with some policy which has no connotation of exactly not correct? you accepted any money you about is where there is two of a Police not. gambling policy 118, 119, 120, 121], a certain it it for the Grand speaking presume down, in the ever not? would is a really. gambling pretty for a years, the level at which Let me tell This is one Department public has at accepted police do violation of state establishment? sum, change policeman newspapers, speeding is, also, that the one much was well is that not cor- gambling policy you In types Exhibit knew. establishment? times been action unless you or if my experi- know exact- by manage- any from time Jury the same. you of shake type, weapons threaten type to sell. you It 1, pp. money publi- (Em- some- what from they was you misunderstanding least, on v. the issue structions were before us Vitello jury. supra, p. care States, The court for the 425 F.2d fully jury said, “Implicit that one instruc- instructed where we in the perju the crime of elements of tions is a essential direction the members beyond ry government, proof jury was they could not return testimony doubt, a reasonable guilty unani- verdict of unless false, grand jury was before charges mous one more of the willfully that such was falsity specified in the indictment. Un- something specific do intent interpretation der reasonable rule of resolution which the law forbids. applied instruc- or construction properly left of the issue was tions, jury appellant told that was jury. type Essentially, of is the same government acquitted must be unless adversely appel sue decided was beyond proved doubt to a reasonable contention in Vitello v. United lant’s guilty appellant entire that the States, supra. say, Needless to we the three guided on at least one of appeal ev the rule that on charges most idence must be viewed set forth the indictment.” government. favorable to Glasser mention the We shall later authorities 60, 80, United 457, 62 S.Ct. U.S. require which us to assume that (1942); 86 L.Ed. 680 United States In this followed instructions. Wilson, (9th 1971); Cir. v. Kay case, duty jury performed if the States, 421 F.2d v. United instructions, re- stated Additionally, all appel- quired to be unanimous on supporting the reasonable inferences guilt. instructions, the lant’s Under the government. verdict are favor only ar- manner in could Diaz-Rosendo United find verdict was rive at an unanimous 1966), denied cert. guilt beyond one doubt on a reasonable 17 L.Ed.2d 83 Vitello or more of the two items. against appellant. this issue solves judge patiently the trial We note that the elements as to instructed MATERIALITY ISSUE to be the crime of which had Next, appellant contends that beyond proven doubt before reasonable instructing the trial court erred arriving guilty also verdict. We materiality. jury subject The on the carefully judge just in- note that the as judge held, law, that trial a matter as they jury find the that could structed questions (a) (b) the and were material appellant guilty both the or innocent on by subjects investigation to the under appellant guilty on items could find suggests grand jury. Appellant the guilty on another. one item and materiality the issue should have been Similarly, jury that before he told the jury. This submitted juror guilty returning each a verdict of was before us States, supra, Vitello v. United agree thereto and the had to verdict 423-424, pp. and resolved enough, the True had to unanimous. be against appellant. States v. United Cf. judge separate the items in tell- did not 1971). Tyrone, 451 F.2d 16 ing jury be verdict must the charges Along line, appellant the same unanimous. government completely to the failed comprehensive of the discharge instructions The proving materi its burden judge pages of the tran- ality. grand consumed 26 transcripts jury The of the among script. told, members were proceedings the trial court were before single things, one in- out other not to and are now before us. These tran struction, instruc- to consider the but scripts crystal the make it clear that Pointedly in- tions similar grand jury making general as a whole. was inves- a failure, Rule racketeering F.R.Crim.P. This in it- tigation gambling and into self, considering preclude us from Washington, Seattle, time and the this contention. specifically appellant was testified it alleged system pay- concerned with an practices offs and shakedown HEARSAY TESTIMONY Department had been

the Police Seattle by During employed the procedure trial, the course of the involved. conditionally court approved in Vitello v. Unit- admitted certain the court hеarsay testimony States, as to supra, as out-of-court well United ed as (2d statements and directives of other of- Alu, v. Department. ficers of Although Seattle Police All can said Sinclair again jury was cautioned v. United again disregard hearsay, and to such (1929) and 73 L.Ed. Bowers appellant relying upon Krulewitch U.S.App.D.C. 79, 202 States, 92 69 S.Ct. appellant, (1953), F.2d 447 cited cases, (1949), and similar materiality L.Ed. 790 must be hold that argues cautionary instructions grand jury proved. Our review of jury to the conditional before transcripts ques- convinces us hearsay strik- admission of and the later (a) (b) tions were material wipe testimony “could not investigation. scope grand jury of the image the defend- clean the tarnished grand The fact that the testimo- disagree. ant.” We ny accompanied by stip- in Vitello was transcript to ac- ulation that the was On the occasions of the condi signif- cepted true, particular as is of no hearsay, tional of the in each admission grand jury Here, icance. each of instance, cautioned transcripts is certified to the court might warned that the later statements reporter, giving authenticity thus to be stricken should not be considered material examined in camera eventually until court ruled court. Additionally, portion Exhibit hearsay whether properly before grand jury proceedings, is suffi- during them. Time after time cient ty itself to establish materiali- trial, course of the court warned questions (a) (b) scope to disregard testimony any hearsay grand jury investigation. objection to which an had been taken. Later, passing, appellant final we note that his instructions the court repeatedly exception failed cautioned warned the take disregard materiality required by hearsay.2 struction on presented you “During allowed to be under Court course Conspiracy exception constantly you disregard so-called Rule warned Hearsay Rule, disregarded. hearsay testimony was to be that has been ob- Now, specifically, you recall, some, jected includes to. did strike Major Jessup regarding amount, some, narrations of con- substantial there was Lyle Moore, with Chief versations heard it and it was stricken. Chief LaPointe, Now, you again narration of Chief Fuller once would remind Sergeant regarding hearsay testimony, is, his conversations that state- that Buher, Gustin’s narration of and Chief third what some ment of witness as to party with LaPointe. his conversation evi- to be is not considered said Now, card that was read also the little dence. stricken, from, be Now, that has to hearsay, but a written I mean also you disregarded, completely anything hearsay that may ad- be unless is document interpreted may So, general- exception. read or that was recall mitted under some by ly hearsay from that card. speaking, the witness someone is what disregard you Now, said, are to not else someone testifies completely, relating said, matters to these he tes- the witness himsеlf what way they response. be considera- tify in no said, should not what but your hearsay. deliberations.” tion That is pp. 2079-2080]. previously [T. advised conditionally testimony, hearsay

761 point. lent, did interpose Krulewitch is not It not objection, no and after hearsay testimony, involve stricken verdict raise for the first time a claim warnings by repeated much less improper preju that comments were court should not consider Cozzetti, dicial. United F. 441 v. hearsay which had been stricken. 344, (9th 1971); Ignacio 2d 352 Cir. Appellant’s other cases are no more People Territory Guam, of F.2d of 413 point. this Under circumstances of 513, (9th 1969), de Cir. cert. and, particular, case in the of 959, nied 943, 397 90 25 L. U.S. S.Ct. repeated dis court’s instructions enough, Ed.2d 124 these True regard hearsay evidence, we are re counsel, cases involved rath remarks quired to assume followed er than the In the court. circumstances willfully and did instructions not presented, logical why find we no reason disobey States, them. Vitello v. United applied rule should not be 421; supra, p. 425 F.2d United States v. court’s remarks. United States v. Work (9th Friedman, F.2d 1076, 445 1083 Cir. 1127; man, supra, 1124, pp. 454 F.2d 1971). Allen, United States v. 713 (9th 1970); Duran v. United Cir. States, (9th 413 F.2d Cir. INSTRUCTION ON RIGHT 1969); States, Carroll v. United 326 F. OF APPEAL (9th 1963). 2d Cir. Next, appellant argues the trial told the court should guilty, that, “If the defendant always that, appeal” there can or an EMPLOYMENT OF GEBHARD error, “The can er Court make an those RULE usually appel rors are corrected damaging Traditionally,

late court if have been because of a need any encourage way.” approve potential While we do witnesses to testi giving fy instructions, freely willingly, such witnesses have Workman, States v. 454 F.2d protection been afforded from unfound (9th appellant posi 1972), Cir. no perjury prosecutions by imposi ed complain. tion to It is well stringent settled tion of requirement more objection this proof circuit is not commonly known as the “two witness made at the time we will not invoke example, rul e”.2a For Weiler plain provisions 52(b), error of Rule 606, 608-609, F.R.Crim.P., except very excep in the (1945). Proper 89 L.Ed. 495 appears tional situation wherein it ly stated, the rule uncor necessary prevent in order to a miscar roborated oath of is not one witness riage justice preserve or to integ enough establish, purposes for the rity reputation judicial proc falsity conviction perjury, Bacall, ess. United States v. 443 F.2d testimony. Recently, sworn our court (9th 1971); Cir. recognized Marshall v. difficulty practical United States, proving perjury under the traditional 1969). Here, we do not believe that alleged falsity lodged rule when the the remarks of the court resulted in a belief, memory or miscarriage justice or, man permitted proof guilt the accused and ner, integrity invaded reputation in such cases circumstantial evidence. judicial process. general It is á Gebhard v. United 422 F.2d 281 principle that counsel cannot remain si- judge here in 2a. The rule has States 464 F.2d 121 now been Clizer, (C.A.9, abolished 1623(a), (e). 18 U.S.C. § 1972). See United that, appel- given by court. Besides in accordance with structed the portion object failed to to that lant in law as stated Gebhard com- he now the instructions of which argues: (1) over- that we Appellant 30, F.R.Crim.P., precludes plains. Rule hold that circumstan- and rule Gebhard asserting error. him from now knowledge insuffi- is tial evidence Ely’s suspect con- Brother We that distinguish cient, (2) Geb- or that we tinuing probity on the of circum- assault by saying there indictment hard that the in evidence as stated stantial different court included 32 before the (9th Nelson, Cir. 419 F.2d 1237 States v. here, count counts, one while we have again 1969) , in the so is reflected views indis- that the court with items and two dramatically expressed in his exhaustive criminately two applied the so-called Brown, dissent. See United States v. evi- the circumstantial witness rule and Be- decline dence items. We rule to both yond question, precluded trial Nelson Gebhard invitation overrule judge giving from certain of the distinguish on inability it confess our requested by appellant. structions Here, grounds urged counsel. made in instructions court us convinces review the record Our abundantly in crime stated clear that the appellant trial and had a fair that entirely separate dis- (a) Item judgment of the trial court (b). in Item tinct stated from must be affirmed. Likewise, emphasized that the court It so ordered. is ap- rule circumstantial evidence Gebhard charge plied only (a), in in to the Item Judge (dissenting): ELY, Circuit knowledge which the issue of respectfully dissent. While presented. The court’s Gebhard instruc- disagree numerous Brothers and tion is not vulnerable to attack. difficulty issues, specific my principal majority opinion concerns its

with the approach it, which, insensi- as I see is KNOWLEDGE INSTRUCTION tive to the delicate nature Appellant quibbles about the dangerously prosecution unrestrie- give failure of the requested court to his pervasive impact of tive of the Gebhard “knowledge”. instruction on The court’s v. United 422 F.2d 281 knowledge instruction on consisted 1970) By isolating of Cook’s con- . each lines and over 110 words. The instruc regard inherent tentions to its without tion, view, adequately in our ev covered others, my relationship Broth- with the erything requested appellant’s in re fraught opinion with ers issue an that is quest. language While the of the last distressing inconsistencies. paragraph might of the instruction precisely employed, more ordinary we feel A not an is when it is prosecution. read context the other The crime criminal subject, instructions on the same it mea unique perjury, unlike offenses up requirements sures robbery, arson, murder, stated such lacks supra. Lattimore, objectively ‍​​​‌​​​‌‌​​‌​‌​​​​‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​​​​‌‌‌‌​‌‍actus reus. demonstrable any event, appellant’s requested gravamen instruc the offense lies Since enlightening tion is no more than that calculating utterance of apply “Therefore, are instructed state of the defendant’s mind, provided alleged cases such this when such evidence is sufficient produce falsity your conviction in minds of falsity beyond accused, alleged such the law is that such a reasonable doubt falsity knowledge, is, all sub- evidence the case falsity accordance, jective statements, course, with the other proved by alone, given you.” instructions circumstantial evidence is, [T., pp. the two witnesses or one witness 2074-2075]. evidence does not corroborative rule false, transcript, by the ele- probability, the actor all known con- mens rea of actus reus and shrink to less than ments one-half of its verge present 2,000 prosecution pages. recognize focuses in a While I pragmatic leading reasons of our solely person character upon adoption of the circumstantial evidence uniqueness has been This the accused. Gebhard, rule in I cannot believe that fashioning recognized by the courts in impinge the Gebhard court intended to pros- peculiar perjury rules of law ’ rights upon traditionally exalted of applica- The time-honored ecutions.1 sanctioning by perjury one accused of rule,” for ex- tion of “two witness proof. mode of The that alternate clear ample, trials with shrouded any of in est indication of the lack such by solemnity only exceeded an aura of appears itself, tention for in Gebhard treason, only prosecutions other for initiative, there, upon the court own its quantitative modern crime which a rights enlarged upon the of one accused applied. rule evidence is See Weiler of extending perjury, protection to the of 608-609, v. United interrogation stage procеedings (1945); 548, 89 L.Ed. 495 imposing on the restraint Govern (3d Wigmore Evidence §§ framing indictment. See ment an ed. at 289-290.2 Cook was accorded the full benefit by protection generally afforded teaching Gebhard, therefore, rule, however, The of “two witness” because proof the relaxation of the strict this case was submitted to the by requirement is to offset increased recently accordance with the announced vigilance part of courts and on the holding supra, Gebhard, of our court higher scruples imposition on the of permitting proof subjective falsi- prosecution. are neces- These measures ty by allegedly perjured of statements guard against sary temptation to circumstantial evidence. While Gebhard safeguards erode erected for other adequately indicates the tradition- protection perjury, un- one accused give way al “two witness” rule will facilitating guise merely der proof perjury by allow circumstantial Unfortunately, proof of the offense. evidence, explicitly that case does not ex- prey my plain relaxing fallen fear that Brothers have proof of so effect my temptation, review of requirement. pervasive impact for to that despite that, ex- me record Gebhard the whole convinces trial cannot be part tremely efforts on overlooked. If the conscientious evi- circumstantial judge, did not receive by prosecution offered of the trial dence in this record, fair trial.3 trial were excised from the directly ap- 1. these rules that are Two of injected system. sensationalism thus plicable case are the rule trial created into this Government prohibiting lifting allegedly perjurious wholly atmosphere incon- an unwholesome out of its immedi- statement of accused exacting with the standards at- sistent against prohibition context, and the ate charge trial of a tendant interrogator’s “bludgeoning” a witness prosecu- courts. While the federal giving perjurious suspected who proceeded in the utmost tion sponses, which are discussed both of clear, good faith, as the district II, ultimately recognized, Part judge infra. recently ap- Congress presented overstepped. abolished the When This were bounds plication problems which, despite the “two witness” rule the court’s best 1623(e)), (18 Cook, efforts, § certain situations U.S.C. like irremediable. against safeguard provided Accused, un- another entitled other e., perjury, ju- prosecutions judgment dispassionate for i. warranted calm and privilege U.S.C. § of recantation. testi- inadmissible rors uninfluenced considerations, 1623(d). mony improper or other p., VIII, attempt flee, judge's e. Part to conduct 3. The trial infra. extent, judge, dignified some thwarted manner in a The district prosecution’s least, apparently some Cook’s shares utilization validity payoff exposing convic- doubts about the device case as 764 disagree- terpretation, the accused is ade not intense I discuss shall charges quately apprised of the opinion under as majority

ment with prepare him enable defense. It headings. a separate

therefore to conform to re fails quirements of Amendment Sixth THE INDICT- IN I. AMBIGUITY 7(c), and Federal Rules [Rule Fed.R. MENT. Crim.P.].” recognizes majority that the term The Lattimore, F.Supp. vague, knowledge” “any the trial and is aff’d, (D.D.C.), 410-411 U.S. attempted of definition court’s App.D.C. 77, (1955) (foot variety phrase of mean- indicates the omitted). defectiveness in the indictment is all the clearly Fotie shows.” context which its egregious (8th in more misdirec- 831, F.2d 842 States, v. 137 United in tion as to the manner 1943); accord, Liew v. United Van Cir. “knowledge” (5th term should be States, Cir. F.2d 677-678 321 interpreted.6 States, 1963); F. 245 v. Brown United 1957); United 2d disturbing me, What even more is F.Supp. 727, Geller, 730 n. States v. however, majority, in reach- is that (S.D.N.Y.1957); v. United cf. ing ignore conclusion, seems Norris, 57 S.Ct. effect of on this court’s its decision L.Ed. holding prior v. Gebhard United holding disagree strongly with I States, F.2d inappli- majority rule that this During grand jury proceed- rec- IWhile cable to the case. sequence Cook ings, was asked a ognize subject case that the facts questions: three distinguishable of one from those are “out of context” in which the the cases “Q. knowledge you any Do have applied, Brown v. United rule was being paid law enforcement officers States, supra, I do that that not believe gambling by operators of establish- reason for re- as a circumstance suffices ments ? fusing apply herе. For when the rule application in other of the standard I do No, A. not. examined, obvious cases is becomes Q. knowledge any Do have purpose the rule would taking any enforcement officers law by applying be- it to the facts furthered money? shakedown example, Liew For Van fore us. twenty-nine years’ experi- my A. In supra, the court conclud- knowledge ence have had some question and answer ed things re- these have and as a existed context, read the indictment were people sult involved that were testimony of the accused separated De- were from the Police single referring to a be construed partment. manufacturing process, phase of a Q. don’t You process the Government the entire currently anybody the force who attempted lift- to establish had there participated in shakedowns? con- out of question and answer allegedly Likewise, when Cook’s text. A. I not.” do in con- perjurious are read statements queries redun- As read these testimony his remainder text with the questions dant. The first and second grand jury, it is evident before practical purposes, are, for identical. all knowledge” deny “any what- he did merely question addition, the third soever, practices. forth- He of the illicit repeat previous asks Cook to his testimony omitted rightly admitted sponse. indictment, however, In the ac- indictment, he had from the having charged with commit- knowledge” heard had quired “some perjury only respect ted police concerning “gossip” “rumors” responses. first of his and third system. payoff involvement that it not our While I realize func- question per- tion to mo- therefore, Government’s Brothers, Unlike framing indictment, tives I can between a material difference ceive perceive why “any of no valid see- reason unqualified denial apparently VII, Part 6. See infra. deleted Gebhard answer clear that the mere makes

ond asking .repetitive questions of' here. indictment from practice condemned. While a distinction practice, from the both is better “[I]t urged could be that the Government standpoint Government only precluded prem- Gebhard was from enough defendant, to set forth ising perjury upon additional counts of immediately aft- before rephrased questions, reiterated I do give alleged statements false er not believe that the in this evident error alleged coherent context some case can be avoided the Government’s statements.” false omitting offending ques- action in one Stassi charging tion from the indictment and (5th Cir. only perjury. Cook count of The one utterly to as- unreasonable It would be emphasized Gebhard court the that dam- felt that the sume that Government age designed prevent this rule is oc- perjured re- himself with had not Cook interrogator curs when an is allowed to testimony, spect omitted since the away witness, hammer at a “thus creat- entirely the other consistent with wаs ing possible perjury counts,” more nec- responses It for he was indicted. enabling essarily prosecution to likely more that the Government is responses choose the most detrimental this the inclusion of concerned that questions identical charge as the bases a question answer the indictment perjury. of giving dif- would weaken case “bludgeoning” prohibition, there- questions ferent connotation to the and fore, not “out of context” unlike the answers that included in were the indict- proscriptions rule.7 Both directed my so, Yet then ment. this were insuring allegedly perjurious that applicability above conclusion as to the statements within an indict- included of the “out of rule could context” accurately testimony ment reflect the of Assuming, logically challenged. ar- my objective, opin- accused. This guendo, majority properly has ion, accomplished in has not concluded were that Cook’s statements questions case. included context, improperly lifted out of perversion indictment reflect a only remaining explan- possible then the interroga- both Cook’s and the intervening for the ation omission hence, process; tion hold I would exchange framed Government indictment defective. appear- indictment so as to avoid the EVI- OF THE III. SUFFICIENCY attempting ance to circumvent Geb- supra. DENCE. States, hard If consideration did motivate the Govern- question The first set forth majority then, submit, only ment, inquiry to whether made as dictment been hoodwinked: possessed “any of law being paid oper- officers enforcement “[Tjhere is a defect . . . which gambling establishments.” ators appears on of the indictment. the face question on Febru- asked this Cook was ary 25, proper do not think . [W]e no evidence Yet there 1970. government bludgeon a wit- alleged payments whatsoever lying by repeating ness who is being time. made at about phrasing question, thus cre- same clearly contrary, very To record ating possible counts.” more appears majority establishes, Id., at 289-290. interrogator in his upon prohibition an bludgeoning could restraint fact, tlie In prospective de- questioning the “out extension as be viewed upon imposes the Gov- Fotie fendant stage interrogation rule to the context” framing perjury indictment. ernment essence, por- proceedings. this In type imposes the same Gebhard tion recognize, payments that the had ceased whether Cook’s conviction was based years approximately two before the upon crit- (a) (b) either item or item question ical was asked. indictment, or both, Cook is entitled to a new trial. contends, See Yates If v. United participial as Cook phrase “being 311-312, S.Ct. paid” must be construed (1957); L.Ed.2d referring ongoing activity, Vitello United then Cir.), support the evidence was insufficient cert. denied, conviction on the basis 27 L.Ed.2d 50 specified and answer first light indictment. of the follow- ing explana- authoritative definition majority opinion, As I read the three participial usage, agree tion of I must theories are relied to refute with Cook: First, majority conclusion. makes astounding somewhat “par'ti.ci.ple assertions . . . Gram. A word that, grand of the nature partakes nature of both jury investigation, disputed question adjective; adjec- verb and a verbal inquiry should tive, be viewed noun, past as an into modifying a but shar- events, arid that “superior adjuncts because of his and construction of intellect,” position Cook “is in say no to the verb it from which is derived. question English that he misunderstood the and participles: has two verb thought referring present” it (1) was to present, ending the -ing (hasti- the in (emphasis added). If, my ly as writing down, paused); Brothers (2) it he contend, question the ending must be perfect, read part the for most the context to -ed, meaning, ascertain true -d, -t, -en, (I or -n the note saw then it would posted). seem obvious that written tense These query improperly was lifted out of refer con- forms to state action progress or text wholly or as in com- occurrence different mean- ing hap- plete, than to its time when it rather was included the indict- pening, depends on the time ex- inconsistency which ment. This is a minor pressed it oc- the verb of the clause for, consideration as even a standard stairs, smiling (he dictionary demonstrates, curs climbed the only proper smiling himself, interpretation question (a) to which sentence is that it —in climbed). time as inquiry to the same refers constitutes an into еvents English phrases progress participles and their at the time it was asked. The following dis- “being characteristic participial phrase paid” show the use of the conjunction voice: tinctions time reference and with the verb “have” re- interrogator veals that only could ACTIVE PASSIVE TIME eliciting have been Cook’s VOICE DISTINCTIONS VOICE concerning payments being that were (progressive being writing written (perfect Present written arrived February made on or about 1970. interrogator (progressive revealed in his other having (perfect having written Past questioning sufficiently was fa- written English grammar miliar with to articu- havingbeen Perfect inquiries past late into transactions writing" progressive properly unambiguously past in the Dictionary International New Webster’s addition, ques- tense.8 In several of the (2d ed. posed inquire tions to to Cook did as his knowledge concerning present practices, de- impossible to virtually it Since correctly queries phrased general and these jury’s verdict from termine private clubs, Would reference (Emphasis “What was ^[*] added.) run down ^[*] punchboards, bingo pinballs policy H* through with ^[*] cardrooms, particular raffles? thing?” S¡« structions do a tolerance chief, erance “Did particular council, you policy, policy?” from ever receive in other namely, anyone regarding thing (Emphasis words, any regard mayor, specific directed to added.) the tol- in- Hence, only phrase paid,” “being in the tense.9 it is one only by question interrogator, shared Cook “misunderstood” Government, majority. and the could considered I that he cannot uphold past a conviction quiry for into events. quite likely premised upon the Gov- persuasive Perhaps indica- most agent’s “knowledge” ernment lack of majori- indefensibility of the tion of the ty’s concerning English proper usage.10 simple position fact that had is the majori- equally I question am troubled responded in the ty’s inexplicable for its con- second basis affirmative, no there could have been occurred, that no reversible clusion error doubt, in evi- uncontroverted misunder- i.e., the issue ceased, payments had dence that the standing event, was, any for the false. such answer would have been objection My principal to resolve. “up creek” without Cook was indeed theory not believe that is that can posed any paddle when semblance of a susceptible phrase disputed regardless question, for of his this sponse, merely being interpreted an inarticu- as subjecting himself to a he was inquiry past However, into events. late prosecution. not be willing join spec- even if I were majority’s opinion surprised to find “being paid” be so con- could authority ulation strued, in the future as cited conclusion I could alter “yes” unequivocal proposition that an sufficiency evidence. response question “no” prosecution, and The burden grand proceedings course not, pro- not, apparently could perju- it did presents inter- adequate that Cook duce evidence reply. rious nature preted question in manner incon- majority’s join distortion cannot English usage. proper sistent with English language, I nor con- can pro- my question I view as a over what ceal concern “In ease where a unique plausible recognition nature pounded several lack of admits perjury. meanings, If belief can- of any there be the offense of the defendant’s “misunderstanding” nec- adequately to the mean- and it tested not be spelt exempli- following interchange record, out best of a 9. The but whether guilt by facility interrogator’s has been in this re- found fies the accord- ing procedure gard to ap- : standards propriate you play role, any, do if for criminal “Q. What trials in the fed- policy, implementing eral courts.” the tolerance mak- 607, Bollenbaeh v. United it function? 614, present time, 66 At the none. S.Ct. A. 90 L.Ed. 350 (1946). past? Q. What interpret presuming “From I tried it.” A. to too often all errors to ‘prejudicial,’ judicial pendulum to be provides 10. While the record this case swing presuming need not all errors ample for a basis belief only to be appellate ‘harmless’ implicated system, payoff in the somehow court is left without doubt that one appellate judges it is not our function as process who is, claims its corrective punish him for a with which crime all, guilty. after place In view of the charged. he was not Our consideration importance by jury has in our charged is to be confined to the crime Bights, Bill suppоsed it is not to be have been committed the indictment. Congress intended to substitute the majority prop- I do believe the appellate belief judges guilt erly exercised its function when it “con- accused, justifiably however engen- victs” Cook for a mistake made dered record, the dead for ascertain- interrogator. disposition The of Cook’s guilt by ment of appro- under appeal has led me to reflect priate judicial guidance, however cum- articulately expressed by tenets so Mr. process may bersome that be.” Justice Frankfurter: 326 U.S. at 66 S.Ct. at 406. may not be amiss “[I]t to remind that question guilt is not whether essary question determine what 425 F.2d at majority, 419. The there- gave to him the dis meant when he fore, compelled seems to hold the evi- puted v. Latti answer. respect dence sufficient (a) with to item (D.C.D.C. more, F.Supp. so holding it can invoke in Vi- 1955), U.S.App.D.C. aff’d, 98 concerning tello, jury’s supposed (1955). F.2d 334 prowess divining correct rule of instructions, law from nonexistent “There was no evidence to show specified by cure the obvious error question meant to what the Mrs. Wall majority as the trial court’s failure to when she answered it. the absence “separate telling items in evidence, of such no determination its verdict must be unanimous.” I falsity of her could be made as to the see the utilization of two unsound theo- insuffi- answer. The evidence was ries as a major- weak foundation for the support cient to conviction. The ity’s application holding. of the Vitello denying the District Court erred in acquittal.” judgment motion for I objec- harbor a more fundamental majority’s application tion to the of Vi- Wall, United States v. present tello to the ease. I Hence, While still my concerning entertain doubts the cor- properly had never matured. reasoning employed by rectness of the therefore, majority, seri cannot Vitello, Brothers in see 425 F.2d at ously prosecution’s evi contend that (dissenting opinion), recog- support Cook’s was sufficient dence nize am bound the decision of respect (a) with item conviction majority Nonetheless, in that case. recognizing Apparently the indictment. am convinced that our case supporting two the dearth of reason significantly distinguishable from Vitel- above, my Brothers theories discussed lo. ground rejecting advance a third My surely most Brothers are aware applicability Cook’s contention —the unique that we here have a somewhat Vitello 425 F.2d 416 They situation for a rec- case. Cir.), denied, cert. ognize permeated the indictment 27 L.Ed.2d 50 ambiguity prosecu- and that relationship between Vitello and primarily upon tion’s case was based cir- concerning sufficiency Cook’s claim signifi- cumstantial The true evidence. prosecution’s evidence is read- has, however, cance these factors been ily apparent. The nexus becomes evi- by majority. overlooked Since these dent, however, fоllowing lan- when the by factors hitherto considered guage from Vitello is examined: only compare isolation, our court Yates, the “In court submitted to the States, supra (ambigui- Vitello v. United acts, including two overt an overt ty indictment), v. Unit- with Gebhard by act which had been barred Cal- supra (circumstantial ed evi- ifornia statute of limitations. Since rule), dence their confluence here ob- way knowing no there was whether apart viously from oth- sets Cook’s case upon the based its verdict er trials that we have reviewed. act, alternative, barred or the other Supreme Court reversed. recognizing importance the im- decision, pact purposes evi- of the Gebhard circumstantial “For of this easily accept appellant’s dence demonstrated. of the ef- we view rule teaching Yates, panel court a unanimous of this fect and that the of When adopted applied evidence rule if circumstantial that decision should be here recognized Gebhard, apparently (1) we find there insuffi- rights of the accused cient submitted to the substantial evidence thereby, impaired speci- and thus had been one more ” proceeded falsity. fashion the aforementioned . . . fications reempha- prohibition. stantially “bludgeoning” from in that the de- Vitello’s Congress precision by recent- gree that when fact afforded adherence size the “two wit- ly abrogated the here traditional to the “two ing. rule was laсk- witness” applied in some previously ‍​​​‌​​​‌‌​​‌​‌​​​​‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​​​​‌‌‌‌​‌‍I believe rule as that Gebhard commands ness” degree to af- circumstances, careful it too was us to insure that a similar countervailing per- protection trials, to a precision pervades all ford defense suspect by prescribing the whether or witness” rule “two supra. applied. See note should be re- recantation. conviction versed, reason, no other because of VI, Part Since, I demonstrate as deficiency in the court’s instructions ap- infra, my Brothers misconstrue concerning required juror unanimity. plicability circumstantial of the Gebhard instance in the one rule evidence IV. HEARSAY TESTIMONY. it, they it is understanda- discuss which catalogued Cook has numerous exam- incorrectly also ble hearsay ples of were which ad- evidence impact concern over characterize damag- objection, mitted over the most “as- as an on Cook’s trial of Gebhard stricken, which, ultimately probity of circumstantial on the sault conditionally for the limited admitted logically not, could I do evidence.” showing conspiracy purpose being deprived of not, object to Cook’s department pay- police to maintain of the “two witness” full benefit concluded, system. The court off reliability do I rule. Nor however, conspiracy no had been of the circumstantial evidence offered proved, jurors and thus instructed the merely the Government. I think it is disregard the testimony. inadmissible important recognize that Gebhard represents departure majori- strongly disagree from the tradi- with proof tional method of per- ty’s allowed in a Krulewitch v. determination that jury case, and that cases 69 S.Ct. applies, Gebhard duty, applica- we (1949), are under a is not 93 L.Ed. 790 exemplified by prior actions of our of Mr. Justice The observations ble. Congress, pro- court zealously concerning “conspiracy” of- Jackson remaining rights. (con- tect the accused’s 445-448, fense, 69 S.Ct. id. apposite especially curring opinion), are go We need not so far as the court in case—a the instant in the context of Congress. Gebhard strictly only or the needWe Gebhard, supra, perjury trial under right enforce Cook’s that his lacking accused, mantle guilt wherein should be determined unani- protection generally him afforded agreement jurors. mous theOn rule, is confronted witness” the “two us, record before there no indication evidence, damaging hearsay admit- convicted, for, that Cook was so theory unsupportable under an ted majority recognizes, judge “the did not injection my opinion, the conspiracy. separate telling the items in the trial “conspiracy” into Cook’s of that its verdict must be unanimous.” in as- considered which must be factor Neither the court’s instructions nor the sessing of this tes- prejudicial the effect general jury’s form of the verdict ex- timony. possibility cludes the that Cook’s convic- significant por tion impermissible thаt resulted from an deem it I also testimony jurors' opinions.” “combination of are Vi- of the inadmissible tions Fuller, States, supra testimony tello (dis- v. United of Jes present the at 426 senting among opinion). Corr, the majority’s only few sup, The who response my testify to to di specula- prosecution conclusion to is the witnesses jurors dealings tion tend the that would must have been with Cook rect light system. holding prior payoff unanimous implicate him in the to Yet Vitello. Cook’s differs trial sub- read trial court did not stricken The testimony prosecution, his fear cumstances of the to because I recognize “aggravate” that such believe we action would must these re- respect impinge upon situation marks integrity do with “the ce;11hence, majori reputation judicial process.” I believe eviden ty’s assumption People Morse, See could sift 60 Cal.2d through testimony Cal.Rptr. 201, (1964), and “for the mass 388 P.2d 33 cited get” hearsay portions wholly approval un with in United States v. Work- man, (9th warranted. 454 F.2d Cir. 1972). agree I am therefore unable with Hence, Brothers the trial court’s in- admittedly the effect of these disregard improper remarks, structions to virulent this tes- when considered in timony accomplish were sufficient irregularities cumulation with other goal. testimony simply occurring throughout was trial, Cook’s can- pervasive, preju- too lightly the resultant sobe dismissed. damaging dice to Cook too for the harm by any to be obliterated number in- VI. EMPLOYMENT OF GEBHARD See, g., e. structions. Odom v. United RULE. arguendo, Assuming, prop- it that was jury, er to submit this case to the then I accept majority’s determination that V. ON RIGHT OF INSTRUCTIONS correctly the trial court instructed the APPEAL. jury, in accordance with Gebhard v. majority quoted portions 422 F.2d 281 by judge the statements the trial where- 1970), subjective falsity respective parties’ in he delineated the testimony by proved could cir- rights appeal, any and intimated that cumstantial evidence. deem neces- appellate errors cured an could sary, however, to correct a statement circumstances, court.12 Under normal majority applica- made as to agree majority with the bility rule. of that That incorrect state- remarks, context, these do read judge ment is that trial instructed “plain not rise to the level error.” circumstan- “that Gebhard 52(b), Rule Fed.R.Crim.Proc. As have applied only tial rule evidence repeatedly emphasized, however, this is charge (a), the is- Item in which not a case. “normal” presented.” My sue of however, instructions, of the serious nature review peculiar

offense of eir- veals no the rule’s such limitation on discussing trial, 1. When the in counsel 1 in his final At the close judge jury, structions that would thereafter be trial instructions to expressed availability jury, judge appel- again trial his referred to the testimony damage concern over this late review: wrought, had and indicated that he would “During the trial course of the reread the stricken ultimately duty of counsel becomes the jury. objections the Court to make and for with thе to rule on them accordance judge addressing When the error, law, and the Court can make panel prospective jurors the to lie went usually those errors corrected great explain lengths them appellate been dam- Court jury. functions of the court and way. aging duty explaining While to court’s rule stated, objections evidence, on always to “It he is “The should not be influenced in particularly important, ruling any way by to the to Court’s as protect Government, any evidence, to the record from and shouldn’t draw prejudicial any error because if the defendant inference from the fact that guilty, review; question put.” no is found not there is guilty, is can al- if the ways there defendant appeal.” be an challenges guilt applicability.13 Cook limit also The trial court did of test “knowledge” proof included within instruc- evidence rule to circumstantial alleg- tion: subjective falsity of the of Cook’s your “It jurors is role as in this not, edly perjured It did statements. Jury testimony case to read the Grand properly not, and limit could the rule defendant, of the determine from the (a) (a) item item because item and both questions context of the and answers “knowledge.” (b) inquired as to Cook’s given how in- Government there applicable If to item Gebhard were not ‘knowledge’, use the term tended to (b), there would been no evidence defendant un- determine whether the support Cook’s conviction on that derstood what Government answer, and and we would be asking, then determine whether and required to reverse under v. Unit- Yates willfully perjured himself.” defendant supra. ed (Emphasis added.) deeply I am troubled trial court’s VII. KNOWLEDGE INSTRUCTION. framing guilt with reference test delving myriad defects Before into the interrogator’s intended use majority opinion portion that “knowledge” queries form- in the term ing “knowledge” pertaining to the instruc- especially charge, for the the basis necessary tion, forth to set deem presented as to no when evidence was concerning Cook’s contentions to use intended “how the Government ” disposition proper struction and . . . term. those claims. itself, clearly for- statute quarrels viewpoint” the trial court’s mulates test a “defendant’s “knowledge.” guilt: having “Whoever, definition of the term taken grave testify I entertain doubts While he will oath . . . charge basing propriety truly, willfully . . . . many upon contrary so varied word with such states oath meanings,14 impropriety in any I find no he does not material matter which defining true, to encom- guilty perjury. the term trial court’s believe to be ” direct, personal, pass (emphasis or both belief and . . . 18 U.S.C. § obviously is knowledge added). Furthermore, since the word there is abundant interpretation. susceptible authority recognizing judicial to either to the Government’s applicability this case: The trial pertains witnesses’ tablished tial evidence. While means other than statements edge can evidence of what a alleged “Now, “To ^[*] proof the distinctions hear and so be perjury requires a prosecutions, continue with falsity than particularly judge clearly rarely ^[*] rule, of, must, conformity objective the two which is be established usual ^[*] accused, and knowl- this case is through circumstan- burden of able to defendant does between, witnesses say, criminal offense. explained rules peculiar higher falsity knowledge, bear with the ‘two evidence Hi must give applicable in mind proof measure may see direct ^[*] per- es- 14. See fendants jective falsity of the you.” is sufficient your falsity witness reasonable with the does not alone, fails to of the defendant as eye “Therefore, you the case cases such possessed. proved Part accused, witness minds of such and corroborative do, other instructions I, falsity apply mind, knowledge, doubt supra. is, account of the law is that as this course, circumstantial to the state provided produce accordance, two in the are instructed to what falsity beyond the state of statements, witnesses there can all such conviction knowledge evidence the evidence is, such of the de- knowledge the sub- evidence evidence course, alleged alleged or one be no mind rule

773 assuming perjury inquiry even case is he knew how the inter- crucial rogator term, his testi intended to the if he the accused believed use whether meaning mony question truthfully of answered the to be true in the accord- interrogator, interpretation he, to attributed his own his the in- See, g., quiry. questions e. the to and answers. 398, Wall, 371 F.2d 400 United States v. (6th 1967); Win Cir. United States v. trial, fact, At the principal Cook’s (2d Cir.),

ter, 204, cert. 210 ground 348 F.2d of defense was that he construed L. denied, 429, 15 86 S.Ct. queries eliciting the “personal his Seymour (1965); Ed.2d 360 v. United knowledge” of the matters about which 1935); (8th States, Cir. 582 77 F.2d questioned, he prosecu whereas the Lattimore, F.Supp. 127 States v. United question tion contended the could U.S.App.D. (D.D.C.), aff'd, 98 408 interpreted not be in that limited fash (1955); United 232 F.2d 334 C. cf. ion. Under the instruction the Hagarty, n. F.2d court, however, jury the was not 1968); v. United Liew (7th Van Cir. permitted accept theory Cook’s to States, recognize ju case.15 While I 1963); Fotie v. rors would be free disbelieve Cook’s 831, 840, interpretation assertions as to his “any knowledge,” and thus find him charge portion court’s This guilty charged the in jury, therefore, legally incorrect dictment, I do not believe it should guilt in- a test of it formulates because they presumed be would have taken legal pre- standard consistent with they giv course action had been de- cases scribed statute legally en a correct instruction as to the Moreover, there can thereunder. cided guilt test of under Section misleading nature no doubt as to the expression this instruction. knowledge” wholly upon “any might this con- Since case turns well have subjective meaning veyed Cook, of mind of to Cook and another state one permit proof interrogator. inherently since we Cook would not this Yet vague ambiguous charge by guilty Section cireum- under jury given, 15. Under fitting phrase. instruction jurors ter Yet determining was foreclosed from whether were not allowed to determine whether response was, fact, premised Cook’s interpret question Cook did in such interpretation his avowed manner, and, hence, they could not “any knowledge.” example, term For accept primary ground defense, his even jury might fully concluded that the in- testimony. his believed terrogator intended to use term mean, course, imply any I do not “knowledge” encompass accepted “belief” as well jury belief that Cook’s tes- knowledge. as direct If timony. only point also wish to out concluded that imperfect Cook understood that instruction, under used, then, term could have been so Ias could have believed version Cook’s instruction, read the would have facts, compelled and still been required guilty. though pos- guilty. to find Cook him Even to find inuring It sibility prejudice inconceivable an indi- to Cook from possessing superior speculative, vidual misleading intellec- this instruction capacity recognized tual would have entitled to have his was nonetheless ambiguity “any knowledge.” “by appro- guilt the term under ascertained might Hence, have un- well priate judicial guidance, while Cook cum- however interrogator intended may how the process derstood be.” Bollen- bersome that words, an- still have 607, 615, he use these bach according truthfully (1946) 402, 406, swered L.Ed. 350 66 S.Ct. interpretation as bet- ascribed (emphasis added). 774 firmly evidence, believe 607, 613, 405, 402, stantial L.Ed. 66 S.Ct. 90 jury should to the (1946). the instructions 350 guilt that Cook’s perfectly clear

made it determined to be innocence was or require Yet not Bollenbach does to Ms construction reference following every reversal conviction questions. given jury has been which misleading an incorrect instruction. submission trial court’s Prior to the Implicit quotation within the above requested jury, Cook to the of the case attending application the two limitations give instruction trial court determining (1) of the rule: whether conformity to inwas substantial which upon” a conviction could said to “rest guilt.16 In accepted legally test improper instruction, the instructions objected specifically addition, See, g., e. must be read as a whole. portion court’s the defective States, U.S.App. Howard v. 128 “knowledge” specifying instruction, 287, (1967); D.C. 291 389 F.2d therein, compli in full particular defect States, Cohen with Rule Fed.R.Crim.Proc.17 ance denied, Cir.), cert. us, properly Hence, before this issue is 19 L.Ed.2d 215 appellate and, func I understand (2) The defective instruction give tion, full consid we are bound must relate to “a issue” in the basic eration. case. Supreme by concisely As stated controlling guiding thoroughly Court, principle reviewed the trial charge disposition “A entire this contention is court’s and I equiv- tending ought can find no on an other conviction to rest instruction ei- ther to highly on is- cure or to a basic ocal direction to neutralize prejudicial States, offending effect of the in- suе.” Bollenbach v. United 16. Cook’s struction Number This tion from United States cited struction, upon inquiry. criminal that what the defendant substantial other essential elements a conviction he must have was Perjury mony rupt giving, mistake If there was corrupt “You are language nature of inadvertently hypothesis ‍​​​‌​​​‌‌​​‌​‌​​​​‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​​​​‌‌‌‌​‌‍material authority motive.” Supplementary intent —he as was An essential government he swore evidence, instructed (3d under a lack of is almost had the statement must wilful, knowing import, 2 read as follows: than that of Van for the of the the issue or made the intent oath, must have have acted 1954), excluding consciousness Liew to establish element a direct Requested or there was Rose, 215 F.2d there was was crime the burden requested made or false testi- to sustain to deceive. v. United false and guilt, and cor- charged. point believed is that with a quota- every In- ‘knowledge.’ defendant asking ‘knowledge’ versus the United States in object instruction ative to the import tion Number 2 instruction would have as defined tive give requested supplemental “That “And then in “With the Fotie government ^[*] grounds and made it defendant’s trial brief ‘knowledge’, your Honor, of the what was meant portion respect to determine from the context understood the [supra based ” ^[*] third case, use and for the Court particular Fed.2d, intended to use the term to the Court’s failure to determine whether paragraph Fotie less note Court’s instruction rel- the answers Court, giving ^[*] confusing the cases set forth instruction allows versus the United 17], сlarified it and also word reason that rela- government word this ^[*] in the defini- we which refer ‘knowledge’ instruction Fed.2d. the word particular used. particular we would object as to the Brown ^[*] how hand, I reiter- the other On tice, juries struction. alone have been entrusted propose an instruction did that Cook responsibility.” ate with that stating that the rule of law and correct 611, 323 at U.S. 65 S.Ct. at 551. he the trial court’s attention also drew to the defective instruction. Supreme Both the Court18 and our staunchly own court19 have adhered to Furthermore, case record this the principles announced in Weiler and interpretation of the Cook’s reveals that perceive Bollenbach. I can “knowledge” merely no “a ba valid term was reason to cast them issue,” paramount aside here. I would issue sic but therefore hold that because of the almost erro- defense rested this case. Cook’s guilt neous standard ground entirely upon included that inter within “knowledge” instruction, inquiring preted questions into Cook is en- titled to knowledge.” obvious, a new trial. “personal It is his therefore, of Bollenbach the rule that The defects in majority's analysis ac applies with full force of this patent. issue Moreover, should noted that be tion. should cannot understand analogous how the presented given by instruction situation judge the trial 606, States, up 65 “measures to” 323 Weiler v. United de viewpoint fendant’s guilt 548, (1945), the test L.Ed. 495 Su S.Ct. 89 fol lowed in United preme Court, Lattimore, States even the benefit v. withоut 127 F.Supp. 405, Bollenbach, (D.D.C.), aff’d, subsequent its decision 98 U. S.App.D.C. 77, (1955). did not hesitate to reverse F.2d 334 Furthermore, premised may conclusively record conviction that demonstrates that requested instruction Cook’s an incorrect in were, structions jury. response use some Government’s of the ma jority’s language, enlighten Weiler, far the trial “more contention given by than jury instruct ac court’s failure to court” be cause proffered charge did correctly witness” rule cordance with the “two applicable stated the prejudice Finally, law. defendant because pass majority’s suggestion rule had been record indicated length of an stated, satisfied, instruction the Court serve as a ascertaining basis validity. its being in without convicted “The Surely, suggestion such a does not war more than structed analytical rant an reply. extended required single was witness of a no This was

justify their verdict. relating to the error mere ‘technical’ VIII. CONCLUSION. the trial. minutiae’ ‘formalities supra U. foregoing indicates, [308 Bruno United As the v. discussion 287, 293, many majority opin- S.Ct. of the faults in the S. analysis not author ion L.Ed. We are 257]. attributable record, contentions, printed separate each of Cook’s iso- ized to look conflicting lated from evidence, Perhaps reach others. resolve example dangers was clearest the error inherent the conclusion analysis in this mode of de is seen think the from the we because harmless majority’s conflicting approaches in re- guilty. Thаt would fendant spect operation judgment for to the assumed our to substitute system jus- jury. and, under our Bagby, 451 F.2d g., E. g., Yates v. United 18. E. 1 L.Ed.2d case, majority In this has elevated MID-AMERICA TRANSPORTATION my the gal le- .unrivaled tó.a.stature INC., Appellant, COMPANY, experience. eyes of In the Brothers, adapt able to it- INC., SERVICE, variety MARINE positions NATIONAL self to a with amaz- PROGRESS, Her NATIONAL ing ease,, M/V legal uncanny depth and. an Engines, Boilers, etc., Appellees. perception. agree fully ma- No. 73-1347. jority requires pre- the law us to jurors sume that in- followed the Appeals, States Court given structions them the trial court. Eighth Circuit. tinge I can therefore discern a of reason Dec. 1973. Submitted in. disposition Brothers’ of Cook’s June 1974. Decided concerning hearsay contention evi- dence. Yet one must marvel at Rehearing Rehearing and En Banc July 10, jury’s supposed ability time, Denied at the same ignore wholly to the trial court’s admit- tedly improper concerning ap- references pellate review! jury’s feats, most remarkable

however, facility di- derived from its non-

vine the correct rule of from law

existent or charge, incorrect instructions adhering presumed

while following

role of the instructions that given. majority concedes that jury

no instruction was that a guilty supported by

verdict of had agreement jurors

the unanimous guilt

as to Cook’s on at least one of the allegedly perjurious

two statements.

Nonetheless, my Brothers conclude that was able arrive at this con-

clusion on its own because of our court’s

prior holding Vitello, involving a case stating

distinct facts a limitation (cid:127) holding, which, as I have

shown, wholly inap- make that decision

plicable Also, to Cook’s situation. while majority apparently recognizes some “knowledge” defectiveness in-

struction, implicitly assumes that the improperly could not have been

fluenced the incorrect statement of law. ‍​​​‌​​​‌‌​​‌​‌​​​​‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​​​​‌‌‌‌​‌‍I cannot that the believe guided

properly applicable law pre- instructions that

sumably foreclosed all consider- followed ground principal of Cook’s ation of the

asserted defense.

I would reverse. notes See also Vitello v. Unit may expression ings which (9th Cir.) ed 425 F.2d subjected.4 Moreover, as I discuss (dissenting denied, opinion), cert. greater below,5 set detail 27 L.Ed.2d 50 (a) indictment is so forth item as ambiguous been could have regardless subjected prosecution to this II. LIFTING STATEMENTS OF OUT response query. of his to that CONTEXT. indict and proper to I do think it A of careful review the record prosecute an individual relevant me decisions convinces that ei- forming basis of questions when the ther there is merit contention vaguely inarticu- charge are so concerning lifting of his statements interrogator lately as phrased majority out of context or im- probe inner require plicitly portion overruled that of Geb- workings mind seek accused’s hard v. United plausible several to ascertain which 1970), wherein our ambigu- meanings he attributed bludg- practice court condemned the alleg- gave inquiries he ous eoning lying by “a witness who is patent edly responses. perjurious peating rephrasing ques- the same indictment, vagueness present creating tion, possible perjury thus more therefore, present a defect con- does counts.” stitutional dimension. recognizes majority es- the well indictment an charge elements “When tablished rule that “a divergent easily subject may in- are so be sustained the device of may acquaintance, During generally рroceedings on Cook’s used mean tion. trial, understanding, remarked: or awareness of facts for a new motion alleged errors, and It information as these the truth. includes other or “Now truth, may fact, perception them have some of to a a clear think rulings Court, impression belief, informing, erroneous, firm some may being mind, miscon- been some the state of aware. and there you “So, note, it intentional will it isn’t fixed don’t think duct. hand, part the term On the other on term. counsel.” ***** knowledge to mean sometimes used knowledge’. ‘personal In that case certainly “. . .1 think that would hope knowledge regard would truth means a case this allegation, particular Appeals fact or to a be reviewed the Court of depend original, in- problems does not some because does hearsay. formation or you you see; know what “You know you jury: direct knowl- That hear. what 4. The court instructed you edge. is true you charge hear know, what Whether here “As this you matter, part know alleged but is another or not on' volved presumably, you see, defendant, hear is whether what the issue knowledge. a normal condition.” or not he had ‘knowledge’ “Now, the term II, following in Part meanings note text when it is used See different ‘Knowledge’ it is infra. contexts. different knowledge,” coupled and a denial lifting out the accused a statement of explanation of one’s the extent giving it thus its immediate context and “knowledge.” present case, the In the wholly meaning different than

Case Details

Case Name: United States v. Milford E. Cook

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 28, 1972

Citation: 497 F.2d 753

Docket Number: 26458

Court Abbreviation: 9th Cir.