UNITED STATES of America, Plaintiff-Appellee, v. Walter TRANOWSKI, Defendant-Appellant.
No. 80-1413.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 5, 1980. Decided Aug. 31, 1981.
659 F.2d 750
BARTELS, District Judge.
The overall evidence to which I have adverted previously presents a powerful case of guilt and it would be indeed a strange jury that would find the claim of self defense on this evidence other than frivolous.
While I think we could reverse on harmless error for the reasons outlined in the evidence of the trial, certainly with the addition of the evidence permitted by Jenkins that Allen did not mention self defense in circumstances in which that fact would naturally be asserted, to wit, at the time the police officer first arrived and Allen was vocal, the guilt was overpowering and the meager, non-specific references to post-Miranda silence are harmless error. Finally, in considering this case under Jenkins, we should do so on the basis that what the jury heard in the first trial as to the failure to claim self defense up to the time of the Miranda warning was proper for it to hear. Insofar as there was evidence of non-proclaiming at a time subsequent to the Miranda warning this was merely cumulative.
Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.
Joseph J. Duffy, Asst. U. S. Atty., Chicago, Ill., Robert Walter Tarun, U. S. Atty., Dept. of Justice, Chicago, Ill., of counsel, for plaintiff-appellee.
Before FAIRCHILD and SWYGERT, Circuit Judges, and BARTELS*, Senior District Judge.
This appeal involves the admission of a novel application of untested mathematical and astronomical theories at appellant‘s perjury trial. Appellant was convicted of perjury in violation of
I. Stanley‘s Trial: The Alibi Defense
In order to focus upon the materiality of the issues at Walter‘s trial, it is appropriate, if not necessary, to relate the pertinent evidence at Stanley‘s trial. At that trial Michelle Bonsanto, an employee of the Burger King restaurant at Cicero and North Avenue in Chicago, testified that on May 12, 1974, a little after 4 p. m., a person subsequently identified as Stanley made a purchase of two so-called Burger King “Whoppers” for which he paid $5 with a counterfeit bill. She described the purchaser to the assistant manager David Jochum as being white, of average height, in his 40‘s, with dark hair, wearing an overcoat and carrying a newspaper under one arm. Jochum then conferred with Burger King manager Ed Peterson about the bill. Immediately thereafter both gave chase; within minutes Jochum and Peterson spotted the individual described by Bonsanto heading west on the opposite side of the street. After Jochum and Peterson crossed the street, the individual started running. Neither Peterson nor Jochum was able to keep abreast after running through alleys and yards.
It so happened that at the time one Peter McGhee and a number of friends with whom he had been playing soccer saw the chase and joined the pursuit. Although they reached a point where they were able to confront the fleeing individual, he quickly ran off again and the chase was aban
Walter took the stand in Stanley‘s defense. He testified—the government alleges perjuriously—that he took a photograph (Gov‘t Ex. 4-A, of which an enlargement, introduced as Gov‘t Ex. 8, is attached) of Stanley, their mother Mrs. Cecelia Kniebusch, and a dog named Jerry in the backyard of the Kniebusch-Tranowski home on May 12, 1974 (Mother‘s Day), between the hours of 2:00 and 3:00 p. m. Walter further testified that he and Stanley went afterwards to the Diplomat Steak House, and then to a wake. He stated that he was in his brother‘s company until 7:25 that evening. If true, Walter‘s testimony gave Stanley an alibi to the charge that he passed a counterfeit bill at the Burger King that day. The jury, however, rejected Stanley‘s alibi defense and returned a verdict of guilty on December 16, 1977. Walter was not indicted for perjury until June 29, 1979.1
II. Walter‘s Trial: Evidence of Walter‘s Perjury
Ciupik‘s Testimony
The burden rested on the government to prove beyond a reasonable doubt that Walter knew he was giving false testimony when he stated that Stanley was in his company throughout the afternoon of May 12, 1974. Since there was no testimony directly rebutting Walter‘s statements as to his whereabouts in the late afternoon of that day, the government‘s case rested on a rebuttal of the testimony surrounding the picture-taking in the family backyard. To establish the falsity of Walter‘s statements, the government offered the testimony of an astronomer, Larry Ciupik, that the photograph alleged to have been taken on May 12 could not have been taken on that day. Instead of May 12, Ciupik testified that the photo could have been taken on the morning of one of two other days—April 13 or August 31, 1974.
Ciupik testified that he was an associate astronomer at the Adler Planetarium in Chicago, working chiefly as the Observatory Director; he had authored two children‘s books on astronomy, worked as a consultant for Rand, McNally, and written articles for
Ciupik further testified that he could determine those two dates by entering his findings for altitude and azimuth on a “sun chart” (Gov‘t Ex. 7A, attached). Although Ciupik could not ascertain who prepared the chart, or even under whose supervision it had been prepared some fifteen years ago, he testified that he had verified its accuracy with an Analog Computer and through continued usage. He stated, however, that the lines on the chart corresponding to the sun‘s path in the daytime sky were based on the sun‘s path on the 22nd day of each month, and that one would be compelled to interpolate the data obtained through his reverse calculations in order to determine the sun‘s position on any other day. Moreover, the only purpose for which the chart had been used in the past was to measure the height of lunar mountains.5 The chart, a pivotal piece of evidence, was nevertheless admitted over Tranowski‘s objection that it was unverified, hearsay, and therefore formed an inadequate basis for Ciupik‘s calculations.
Neighbors’ Testimony
While Ciupik‘s testimony was the most telling evidence of Walter‘s guilt, the government also called two next-door neighbors of the Kniebusch-Tranowski household, Mrs. Florence Lojkutz and Mrs. Johanna Dressel.6 Mrs. Lojkutz testified that she had known both Walter and Stanley for over twenty years; she recognized certain photographs (Gov‘t Exs. 4B-4E) as having been taken by Walter and Stanley in the front of their mother‘s house sometime after July 3, 1974. She insisted that the photos could not have been taken any earlier than that date, because she only witnessed the picture-taking session after being summoned to the window by her dog Fonzie‘s bark, a dog she first acquired the day before July 4, 1974. Moreover, Mrs. Lojkutz recalled the date clearly because she had only recently purchased a peach-colored gown, and noticed that Mrs. Kniebusch was wearing a similarly-colored gown at the time the pictures were taken. She testified that she did not, however, see the photograph on which Ciupik based his calculations being taken in the backyard of the house, and was of course therefore unable to express any opinion as to when it had been taken.
Mrs. Dressel, also a long-time neighbor, recalled that on April 29, 1974 she had had certain plumbing work done, and was sure that the photograph in question had been taken some three or four months after that date.7 She further testified that the Kniebusch-Tranowskis were often taking pictures, but although she was shown several others in addition to the photo in question, she was unable to state when they had been taken.
III. Discussion
Appellant claims that his conviction was irreparably tainted by the admission of the “scientific evidence” of the astronomer because the “chart” on the basis of which the witness made his calculations was of unknown origin and unknown accuracy, and the method by which the witness made such calculations had no indicia of reliability and no acceptance in the scientific community. Since the indictment was expressly predicated on Walter‘s statements that the photograph (Ex. 4A) was taken between 2 and 3 p. m. on May 12, 1974, the conviction depended upon the admissibility of the astronomer‘s testimony and the acceptability of the chart upon which his testimony rested.
The applicable Federal Rules of Evidence are Rules 702 and 703, which deal with testimony by experts8 and the acceptable bases for their opinions.9 There is no ques-
Ciupik‘s qualification as an expert is only the beginning of the case. The admissibility of his testimony was intertwined with the quality of the data on which it was based. The court decided to admit both the data,
Based upon the witness’ testimony that the chart is verified in usage, and its continuing use is a continuing verification of it, I‘ll overrule the objection and it may be admitted.
In essence, the trial court deemed the chart to be admissible because it had “circumstantial guarantees of trustworthiness.”
Aside from the untrustworthiness of the chart, and in spite of the particularly wide discretion of a trial judge in admitting or not admitting expert testimony, Hamling v. United States, 418 U.S. at 108,†
In reaching our conclusion it is unnecessary to question the soundness, as a theoretical proposition, of dating a photograph by means of measuring the lengths of shadows on the photo and then trigonometrically calculating the altitude and azimuth of the sun. Our rejection is addressed to Ciupik‘s application of that theory to the photograph in question. This should not be surprising, since neither Ciupik nor anyone else to his knowledge had ever attempted this procedure before. But despite the year and a half that the government had to prepare its case against Tranowski—with the photograph in its possession—Ciupik was never requested to perform any control experiments to verify the accuracy of his techniques.11
Under
It was critical to Ciupik‘s calculations that the measurements he took of the shadows on the photograph accurately reflected the actual lengths of the shadows cast at the time the photograph was taken.12 Yet no evidence was offered to substantiate these measurements by testimony as to the type of lens used, and the probable position and angle of the camera when the photograph was taken. Thus it is impossible to determine whether or not the photograph in question distorts the heights and lengths of the subjects in the Kniebusch-Tranowski family‘s backyard, although it was the government‘s obligation to establish that Ciupik‘s calculations were not based on distortions. As it now appears, these calculations are unreliable.
Even without these variables, Ciupik‘s measurements from the photograph do not demonstrate the necessary indicia of reliability. First, he failed to take into account any possible slope in the ground when he constructed the right triangle of the dog‘s shadow. Uncontradicted testimony was admitted to the effect that the backyard did in fact slope somewhat. Second, the orientation of the back wall of the house in an east-west directional plane was never verified, even though it was essential to the determination of the sun‘s azimuth that a precise compass orientation be obtained.
Ciupik‘s shadow measurements were the data base for his trigonometric calculations. It is not necessary to question the accuracy of those calculations; it is sufficient to note that they were predicated on unreliable premises. The resulting angles were no more than another form of the same information we have already rejected. Again, when the two angles were entered onto the sun chart, the dates and times that Ciupik arrived at could be no more accurate than his original measurements from the photograph. We believe, in fact, that they were less so. The chart itself was drawn for the 22nd day of each month; any errors in the shadow measurements would only have been compounded by the roughness of Ciupik‘s interpolations on the chart. In light of Walter‘s testimony that the photograph was taken on May 12, 1974, these incremental variations become significant since one of the possible dates Ciupik arrived at in spite of the variations was April 13, 1974, plus or minus two to three days—a margin of error which could have been much greater.
The trial court should not be used as a testing ground for theories supported neither by prior control experiments nor by calculations with indicia of reliability. In United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978), the court held that opinion testimony based on the “forward looking infrared system“, a technique used for generic identification of objects, was inadmissible because the technique was not yet generally accepted for unique identification of remote objects, and the testimony failed to show that barometric pressures, temperature, humidity, and other critical atmospheric conditions had been held constant. We accordingly endorse the conclusion of the Sixth Circuit in United States v. Brown, 557 F.2d at 556 that:
A courtroom is not a research laboratory. The fate of a defendant in a criminal prosecution should not hang on his ability to successfully rebut scientific evidence which bears an “aura of special reliability and trustworthiness,” although, in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain general acceptance in its field.
Having rejected the expert‘s testimony, the critical inquiry remains whether the testimony of the neighbors and of the Burger King and drug store employees is sufficient to support a conviction beyond a reasonable doubt. Upon this evidence we do not believe that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard.” Brinegar v. United States, 338 U.S. 160, 174 (1949); In re Winship, 397 U.S. 358 (1970). Consequently, we need not reach appellant‘s further contention that the trial court was prejudiced by exposure to Walter Tranowski‘s prior arrest and conviction record. The judgment of conviction must be and hereby is Reversed.
Government Exhibit 4-A
Government Exhibit 7-A
The critical question is whether the district judge abused his discretion in admitting Ciupik‘s expert testimony, which was based on calculations made from a photograph originally used by defendant in support of his allegedly perjurious alibi testimony and a chart marking the sun‘s path as viewed from Chicago on the twenty-second day of each month. See United States v. Cyphers, 553 F.2d 1064, 1072 (7th Cir. 1977), cert. denied, 434 U.S. 834 (1977). Because I would hold that he did not abuse his discretion in admitting this evidence, I respectfully dissent.
I disagree with the majority‘s conclusion that the chart lacked “circumstantial guarantees of trustworthiness.” The chart represents easily verifiable data regarding the position of the sun at one hour intervals on the twenty-second day of each month as observed from 42° North, the latitude of Chicago. As Ciupik testified, the chart has been verified by tables giving the azimuth of the sun for various times and dates for various locations, and by the analogue computer at the Planetarium, which marks the way the sun crosses the sky day by day. Ciupik testified that he had used the chart hundreds of times and found it accurate. Surely it was reasonable for the district judge to conclude that any possible inaccuracies in the chart would have been discovered during the fifteen years the chart has been in use.
The majority finds no real fault with the theory explained by the expert that the altitude and azimuth of the sun can be computed from right triangles as described by Ciupik. That the method is not known to have been applied to a photograph before scarcely establishes that it is unsound.
Ciupik did not claim perfect accuracy in concluding that the picture was taken April 13 or August 31. He suggested a margin of error of several days. As noted by the majority, the lines on the chart correspond to the altitude and azimuth of the sun only on the twenty-second day of each month. Ciupik felt that he could interpolate between these days. In any event, his calculations, made on the chart, put the date well before April 22 or after August 22, a very substantial difference from May 12.
The majority questions the application of this theory to the photograph in question, stating that Ciupik failed to take into account any possible slope in the ground when he constructed the right triangle of the dog‘s shadow. Yet Ms. Kniebusch testified that her yard was only slightly sloped, if at all, because she had rolled it with an iron roller.
The majority also expresses concern over the accuracy of the assumed east-west bearing of the south wall of the house. It is evident from cross-examination of Mr. Ciupik that his testimony came as no surprise. Defense counsel had interviewed him concerning his calculations several days before he testified. It follows that if defense counsel had any concern about the slope of the ground or the true bearing of the wall, he had an opportunity to obtain evidence on those facts.
Judge Bartels has very meticulously suggested several other problems in obtaining precise measurements. Any inaccuracies would then have to account for a difference of twenty-nine days if the picture was actually taken on May 12. It seems to me these possibilities of inaccuracies are insufficient to demonstrate an abuse of discretion in admitting the evidence.
Regardless of Ciupik‘s testimony, there was ample evidence that Walter‘s testimony that he spent the afternoon and evening of May 12, 1974 with Stanley was untrue. The witnesses whose testimony convicted Stanley of passing counterfeit money at the Burger King that afternoon testified again at Walter‘s trial. These included Peter McGhee, who identified Stanley as the man he chased after the Burger King incident, and Robert Fusello, who saw Stanley at his drugstore between 6:00 and 7:30 p. m. Walter had also testified at Stanley‘s trial that other pictures were taken the same afternoon in front of his mother‘s home. Two neighbors testified that these pictures were taken long after May 12.
Of course, to convict of perjury, the government must convince the trier of fact not only that the testimony was untrue, but that defendant knew it was false. Ciupik‘s testimony was significant in the process of persuasion because the more palpably untrue a defendant‘s testimony can be shown to be, the more readily his knowledge of falsity can properly be inferred. Hence, the importance of the question whether the expert‘s opinion and the chart on which he based it were properly admitted. I would hold that the district judge did not abuse his discretion in admitting them and would affirm.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. HEITZINGER, Defendant-Appellant.
No. 80-2324.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 1981. Decided Sept. 10, 1981. Rehearing Denied Oct. 15, 1981.
Notes
4. On or about December 13, 1977, at Chicago, in the Northern District of Illinois, Eastern Division, defendant herein, while under oath as a witness in the United States District Court for the Northern District of Illinois in case number 76 CR 803, knowingly made false declarations with respect to the aforesaid material matter by stating in substance that on May 12, 1974 he was with his brother, Stanley Tranowski, at all times during the period from approximately 2:00 p. m. until 7:25 p. m., including but not limited to the statements that:
(a) between 2:00 and 3:00 p. m. on May 12, 1974, defendant Walter Tranowski, his mother, Cecelia Kniebusch and Stanley Tranowski, were taking photographs in front of his mother‘s house. The defendant Walter Tranowski identified six photographs, Defendant‘s Exhibit Numbers 2 through 7, as the photographs so taken on that occasion;
(b) later during the afternoon of May 12, 1974, defendant Walter Tranowski, Cecelia Kniebusch and Stanley Tranowski were at the Diplomat Steak House, Chicago, Illinois, where a photograph was taken. The defendant Walter Tranowski identified said photograph, Defendant‘s Exhibit Number 7 as the photograph so taken on that occasion.
(c) defendant Walter Tranowski and Stanley Tranowski after leaving the Diplomat Steak House, dropped their mother off at 5171 West St. Paul, Chicago, Illinois, and drove together to the Matz Funeral Parlor, Chicago, Illinois, where they remained until approximately 7:25 p. m. when they left together.
Altitude. Ciupik used Jerry‘s shadow as the only complete shadow cast by an object in the photo. With a ruler, he measured the dog‘s height to be 10.4 centimeters, and the length of its shadow 16.1 centimeters. Assuming the ground to be level (but see the discussion infra at p. 756), Ciupik used these two lengths as the legs of a right triangle. By means of basic trigonometry (tangent of an acute angle of a right triangle equals the ratio of the side opposite to the side adjacent that angle), Ciupik found the angle of the sun‘s elevation to be 32.86, or 33 degrees.
Azimuth. Ciupik used the shadow cast by the chimney at the back of the house, on the assumption (again, see the discussion infra at p. 756) that the back wall of the house lay in an east-west plane. Using an hypothetical bird‘s-eye view photograph of the chimney as it projects from the wall, Ciupik again measured two legs of a right triangle in order to determine the unknown acute angle, here the direction of the sun away from true south (after correcting for the ninety degrees east angle of the house). He found the length of the shadow cast from the intersection of the chimney and the wall to be 17.4 centimeters, and the length of the shadow cast from the outermost part of the chimney to be 18.9 centimeters. Using trigonometric calculation (cosine of the acute angle of a right triangle equals the ratio of the side adjacent to that angle to the hypotenuse), Ciupik ultimately found the angle from true south to be 67 degrees.