Conrad v. United States

¶4JOHN R. BROWN, Circuit Judge.

¶5This is an appeal from a conviction under Count One for false statements made to Internal Revenue Officers, 18 U.S.C.A. § 1001, and under Count Two for perjury before a Grand Jury, 18 U.S.C. A. § 1621. Except that each count describes differently the nature of the proceedings in which the questions were asked and answers given, both allege in identical terms that on February 25, 1957, under Count One the appellant made false, fictitious and fraudulent statements and on February 26, 1957, under Count Two willfully, knowingly, unlawfully, feloniously, corruptly and contrary to his oath swore:

*248“ … in substance and effect :1

“That

“[1] he had never knowingly

“(a) collected or

“(b) distributed graft moneys and

“[2] that he had no personal knowledge of any graft moneys paid to and distributed among members of the New Orleans Police Department for the operation of illegal businesses;

“whereas as he then and there well knew, this statement was false in that

“ [ lx] he had knowingly collected and distributed graft moneys and that

“[2x] he did have personal knowledge of graft moneys paid to and distributed among members of the New Orleans Police Department for the operation of illegal businesses.”

¶6In view of our conclusion that the evidence was not, and cannot be, sufficient to sustain these charges, we need not determine whether the indictment sufficiently alleged materiality of the statements 2made or testimony 3 given. Nor do we pass upon the contention made in the motion to dismiss that the indictment for perjury was so vague and did not sufficiently set forth the statement of facts constituting the offense charges that it did not enable the defendant to prepare his defense or plead from jeopardy. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314, 1318. While this criticism4 of the indictment does not present for us a precise point for review, it is certainly a significant factor. For it points up the fact that the charge was not for falsely stating or swearing to a specific fact in response to one or more specific questions but was, on the contrary, as the indictment so plainly said, for things generally stated “in substance and effect.”

¶7This brings us right to the heart of this case. For the Government’s theory was that if any statement made to the Revenue Agents or to the Grand Jury was in the category of [1] (a) (b) or [2] *249and was then proved to have been false, a case was made out if the jury found, as they obviously could, materiality and the essential culpable willfulness. And if the theory is right, the Government met it.

¶8At the outset, the Government proved by the transcript of the statement given to the Revenue Agents and from the reporter’s transcript of the Grand Jury proceedings that appellant denied here and there that he had collected graft money, had collected it from specified persons or places, or that he had distributed it to other policemen in his precinct. Likewise these documentary records showed that in so many words he denied having personal knowledge of any graft money being paid to New Orleans policemen for operation of illegal businesses. Following up this theory the Government then offered creditable testimony from fact witnesses showing that for all or a part of the time in 1951 through sometime in 1953, appellant had collected payoffs from specified persons engaged in illicit activities and had distributed all or a part of this from week to week to fellow officers of the precinct. Since appellant was, by this means, tied into actual graft payments, it also established that he had personal knowledge of the graft system in the police force.

¶9But it is well to remember at this point that appellant had not been indicted, as he might have been, for making these specified statements which were then proved to have been false and made under circumstances of knowledge sufficient to attribute to him an evil purpose. Rather he had been indicted for having stated the facts of [1] and [2] “in substance and effect.” That meant that all of his testimony had fairly to be considered to determine whether in its substance and by its general tenor and effect, he had really said what the Government charged.

¶10And it was here that the Government’s ease broke down. For a reading of this record, fortified by briefs and oral argument, leaves the instantaneous and ineradicable impression that while appellant was engaging in an awkward, clumsy, unimpressive and ofttimes ludicrous, coy, disingenuousness, he told both Agents and Grand Jury substantially what is now claimed he denied.

¶11After sparring and fencing, much of it in a crudely-conceived semantical debate on whether picking up envelopes (which, it was plain to all concerned, contained money) was collecting money, whether leaving such envelopes (when it was equally plain all knew what was to be done with them) in the customary file basket along with a supposed sandwich was “distributing” or “paying” money to officers, or whether he could know something “personally” unless he had seen it with his own eyes, he removed all uncertainty. For he acknowledged that he had himself received5 $5.00 each week for a considerable time, had picked up envelopes,6 had engaged as a pickup7*250man, and had known so well that graft amongst public officers unfaithful to their trust was so common 8 that he was-anxious to leave9 the precinct and his *251conscience almost drove him to tell10 all to a Revenue Agent.

¶12The Government chose to couch its charges in general terms that appellant in his testimony or statement as a whole had falsely stated these things. If that total evidence fairly considered would lead to opposite inferences and conclusions, the charges failed. Deliberately couched in this broad way as it was, the ■case was not then like those urged by the Government in which, with one or more of a series of false statements assigned in the indictment, proof of falsity in a single respect is sufficient.11 Nor, since the indictment was not for an earlier specific false statement or statements ■was the case the same as, or similar to, the unpermissible effort to escape criminal culpability as a matter of law by subsequent recantation in the same proceeding.12

¶13Here the last line of his statement and the last syllable of his testimony was as important as the first. For until all was heard and considered, one could not determine whether such testimony or such statement “in substance and effect” affirmed or denied these critical facts. If as a whole it permitted the inference which the Government asserts to have been the truth, or at least created a reasonable doubt thereon, there was nothing to recant, it was not then proved false in any such respect, and the proof was insufficient as a matter of law.

¶14As the case under this indictment turns entirely on the content of the statement and the Grand Jury testimony, each of which is now beyond expansion, contraction, alteration or repair, the deficiency in proof cannot possibly be overcome in a retrial. Consequently, no purpose would be served in exercising the discretion to reverse and remand for a new trial, Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335, re*252hearing denied 338 U.S. 957, 70 S.Ct. 491, 94 L.Ed. 590, and the case is therefore reversed with directions to enter judgment of acquittal.

¶15Reversed with directions.