Before CLARK, MEDINA and FRIENDLY, Circuit Judges.
The principal issue here is the sufficiency of the Government's evidence under the rule, applicable in prosecutions for perjury, "that one witness, without corroborating circumstances, does not suffice," 7 Wigmore, Evidence (3d ed. 1940), p. 273; Weiler v. United States, 1945, 323 U.S. 606, 608, 65 S. Ct. 548, 89 L. Ed. 495. Sufficient apart from this, it plainly was.
Goldberg was convicted on Counts I, II and IV of an indictment charging perjury in violation of 18 U.S.C. § 1621, Count III having been dismissed by the Court. He was sentenced to three years' imprisonment on each count, the sentences to run concurrently, and was fined $2,000 on each count.
The allegedly perjured testimony was given in May and June 1956 before a Federal grand jury investigating possible violations of the laws relating to racketeering, 18 U.S.C. §§ 1951 and 371. The investigation appears to have been particularly concerned with the activities of one Abe Chait. Defendant Goldberg and Joseph Stern had formed a partnership to engage in the trucking business, known as Stern's Express Co., in August, 1945. The Government was endeavoring to find out from Goldberg whether Chait was responsible for Goldberg's entering into the partnership and whether Chait received any money from it; Goldberg denied both. Counts I and IV of the subsequent perjury indictment related to Goldberg's denials before the grand jury that he knew Chait before forming the partnership - Count I relating to a simple denial of such knowledge, and Count IV concerning a more circumstantial statement along the same lines, including an answer that Goldberg had first met Chait after formation of the partnership, when he would see Chait "walking through the street," Chait's own business having been "across the street," and a denial that Chait had anything to do with Goldberg's going into Stern's Express. Count II related to Goldberg's denial to the grand jury that Chait ever received any money from Stern's Express. The defense stipulated the materiality of the grand jury testimony.
The Government's case was presented through three witnesses: Joseph Stern, Irving Mishel, who had lived in the same apartment house as Goldberg and who had a long criminal record, and Earl L. Hassell, Jr., an F.B.I. agent who had analyzed the books and records of Stern's Express Co.
To support Counts I and IV, the Government produced testimony by Stern that Stern had seen Goldberg and Chait together once or twice, "talking nice," before August 1945 when Stern's Express started, and that the partnership was arranged at a meeting between Stern and Goldberg which Chait attended. For corroboration the Government relied on testimony given by Mishel, in a manner hereafter discussed, that Goldberg had told Mishel "that when he come out of the service he figured he was going to go back in the shylocking business but instead he met Big Dick who was connected with the Chaits * * * And Chait said 'Listen, I got a trucking business. I will put you in. We will work out a proposition.' So he went in to Stern's Express."
To establish Count II, the Government relied on three pieces of Vidence:
(1) Testimony by Mishel. This was that Goldberg had told him Chait was getting money from Stern's Express - "something like" $200 a week, although "It could have been $150; it could have been $250."
(2) Testimony by Stern. He first said that, a few months after the formation of the partnership, there was discussion between Stern and Goldberg, at the latter's instance, as to some drawing for Chait in the form of expenses and that Goldberg had said "We got to get together" and "We will get together about what we are going to do about it." Then, having refreshed his recollection by reading his testimony before the grand jury, Stern added that he and Goldberg "agreed to a certain extent" that whenever they "drew money Abe Chait would draw money"; that "sometimes" Chait was going to draw as much as Stern and Goldberg; that "Sometimes business was bad, so we don't draw. Sometimes business was better, we draw more"; that Chait did not draw all the time but did draw "when business was better"; that Chait did not take out the same amount as Stern and Goldberg "all the time"; and that "everything was taken out of expenses." Further direct examination of Stern as a hostile witness on the basis of his grand jury testimony weakened rather than strengthened this, and cross-examination weakened it more. Stern ended up by saying, in answer to an endeavor by the Court to reconcile his testimony on direct and on cross-examination, "I don't know whether he [Chait] got any money exactly."
(3) Hassel's analysis of the distribution in the Cash Disbursements Book of Stern's Express Co. of the cash checks allocated to payroll, "expenses" and drawings. This analysis showed that from August 3, 1945 to September 30, 1947, the drawings had been $200 and that, for each week except two, the unidentified "expenses" were at least $100 but rarely exceeded $135 - the "expenses" for the last ten weeks of the period, for example, averaging $114. Commencing with the week ending October 7, 1947 and continuing through May 13, 1951, the drawings increased to $250, an equal division between Goldberg and Stern being shown from August 1, 1950. In that period, the amounts for unidentified "expenses" were never less than $125 and usually were rather more; in the ten weeks beginning October 7, 1947, for example, the average jumped from the $114 of the preceding ten weeks to $142. From May 22, 1951 through October 26, 1953, Goldberg's and Stern's drawings were increased to $150 each; coincidentally, the unidentified expenses, which had averaged $163.70 per week in the ten weeks before the increase, jumped to an average of $183.60 in the ten weeks thereafter - only on three occasions after May 22, 1951, were they less than $170 per week and never did they fall as low as $150.
We deal at this point with appellant's claim that the testimony of Mishel must be disregarded on the ground that Mishel had no present recollection but merely acknowledged he had given certain testimony before the grand jury. Although we may sympathize with the difficulties of a prosecutor in examining a witness who, if not actively hostile, was exceedingly timorous, we should have to sustain the legal contention if it were factually made out, United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 234, 60 S. Ct. 811, 84 L. Ed. 1129; Westinghouse Electric Corp. v. Wray Equipment Corp., 1 Cir., 1961, 286 F.2d 491-493, certiorari denied 1961, 81 S. Ct. 1650; 5 Wigmore, Evidence (3d ed. 1940), § 1415. It is not. Although appellant's characterization may not be incorrect as to Mishel's direct testimony, Mishel went considerably further before leaving the stand. After sharp interrogation by the defense as to his criminal record, the witness experienced an access of what the jury could have regarded as either hostility or confidence. He thought it "about time that I tell the truth and that is it and I decided to tell the whole truth." When asked "Is it the truth that you recall or don't recall these conversations which you say you had with Mannie Goldberg about Chait, now as you sit here?", he responded "How many times did I say I recall it as being true and I recall it as being absolutely true"; and "Listen. Those things took place * * * These incidents took place 10, 12 years ago, counselor, and with all due respect to you, as you know, I had been under quite a bit of pressure the last few years. So I wanted to refresh." Finally when asked again whether he had any independent recollection, he replied, "I recall conversations between Mannie and myself and many other parties regarding Chait."
Appellant contends that the special evidentiary rule in perjury trials cannot be met by the testimony of one witness as to facts inconsistent with the truth of the allegedly perjurious utterance and of another witness as to an oral admission by the defendant, which was all the Government presented as to Counts I and IV; and still less by testimony as to an oral admission by the defendant plus circumstantial evidence, which the appellant urges and the Government, we think needlessly, seems to concede to have been the proof with respect to Count II. Disposition of these contentions will be aided if we first examine the rationale of the special perjury rule and the status of admissions by the defendant in perjury cases.
The historical origins of the rule that a conviction for perjury may not be had on the basis merely of "oath against oath," Rex v. Fanshaw, Skinn. 327 (1693); Rex v. Muscot, 10 Mod. 192 (1714); Weiler v. United States, supra, 323 U.S. at page 611, 65 S. Ct. at page 551, are illuminatingly described in 7 Wigmore, Evidence (3d ed. 1940), pp. 273-275. In our time the rule rests on society's obligation to protect a witness "from oppression, or annoyance, by charges of having borne false testimony," from those "against whom his evidence tells," Best, Evidence (1849), §§ 605-606, quoted in 7 Wigmore, Evidence, at p. 276. Logically that policy would be satisfied by requiring added proof only when the "oath" relied on by the prosecutor is that of a person in an adversary relation to the defendant. However, the rule clearly goes further; it is most accurately stated in the negative fashion that Wigmore employs, "one witness, without corroborating circumstances, does not suffice," p. 273. It differs from the special rule in treason trials in that two witnesses are not ...