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United States v. Mitchell

October 20, 1969

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT DUANE MITCHELL, DEFENDANT-APPELLANT



Hastings, Senior Circuit Judge, Fairchild and Kerner, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant Robert Duane Mitchell was convicted of perjury following a trial by jury in the United States District Court for the Eastern District of Wisconsin, Honorable James E. Doyle, district Judge, presiding.*fn1 Defendant was represented at the trial by court appointed counsel and appeals from the judgment of conviction and sentence. We affirm.

The indictment in the instant case charged defendant with willfully and knowingly testifying under oath in the bank robbery trial of one Charles Layton Cox to material matter which he did not believe to be true, in violation of Title 18, U.S.C.A. § 1621.*fn2

In the Cox trial, Cox was indicted for robbing the Silver Lake State Bank, Silver Lake, Wisconsin, on November 17, 1967, in violation of Title 18, U.S.C.A. §§ 2113(a) and 2113(d). Cox was convicted following a trial by jury in cause 67-CR-183 in the Eastern District of Wisconsin, Honorable John W. Reynolds, district judge, presiding.

Mitchell testified in the Cox trial that he, not Cox, had robbed the Silver Lake State Bank in question and had participated in the flight from the bank.

In the instant perjury trial, the parties entered into a written stipulation of the testimony Mitchell gave at the Cox trial and to the fact that Mitchell was a witness for defendant Cox and testified under oath. The stipulation further stated that when Mitchell so testified on March 28, 1968, the matter before the court "involved an Indictment charging Charles Layton Cox with committing a robbery of the Silver Lake State Bank, Silver Lake, Wisconsin on November 17, 1967 in violation of Sections 2113(a) and 2113(d), Title 18, United States Code of Laws." A certified copy of such indictment was attached to and made a part of the stipulation.

The stipulation further set out in detail Mitchell's testimony describing how he and one Phil Haas robbed the bank in question on November 17, 1967, and of their subsequent flight from the bank.

To prove the falsity of Mitchell's testimony in the Cox trial, the government first introduced records of the Thilmany Pulp and Paper Company of Kaukauna, Wisconsin. Those records showed Mitchell was employed there and at work during the hours when, according to his testimony in the Cox trial, he was allegedly robbing the Silver Lake State Bank.

The government further introduced testimony by Harold Greer, a fellow prisoner of the defendant, to the effect that Mitchell had told Greer that Cox had asked him to plead guilty to the robbery of the Silver Lake State Bank with which Cox was charged and had given him the details of the robbery. Greer further testified Mitchell told him Cox had offered Mitchell money to take the blame and had told Mitchell he would be able to serve any sentence he received concurrently with a sentence in another bank robbery case for which Mitchell was being tried.*fn3

Also testifying for the government was a deputy sheriff who had pursued the robbers of the Silver Lake State Bank and had shot and killed one of them. He testified Mitchell was not the other individual whom he had seen fleeing after the bank robbery. He identified Cox as that other individual.

Counsel appointed for defendant on this appeal was not trial counsel in the district court. He raises a single contested issue in his brief. It is asserted that an essential element of the crime of perjury under § 1621, supra, is that the sworn, false testimony go to a material matter. The government does not contest this and it is in harmony with the words of the statute. It is further asserted the government has the burden of proving materiality. Again, the government does not challenge this contention and cases from other circuits support it. LaRocca v. United States, 8 Cir., 337 F.2d 39, 43 (1964); Brooks v. United States, 5 Cir., 253 F.2d 362, 364 (1958), cert. denied 357 U.S. 927, 78 S. Ct. 1374, 2 L. Ed. 2d 1372.

The crux of defendant's contested issue is the claim that the government did not meet its burden of proving materiality in the perjury trial. We find this contention completely without merit in view of the stipulation entered into by the parties. It is clearly stipulated that the Cox trial involved the Silver Lake State Bank robbery, and the indictment in the Cox case is incorporated as a part of the stipulation. This sufficiently establishes the nature of the issue in the Cox trial. The stipulation further sets out verbatim the testimony of Mitchell given during the Cox trial and that it was given under oath by Mitchell in such trial.

In United States v. Parker, 7 Cir., 244 F.2d 943, 950 (1957), we said: "The test of materiality of false testimony is whether the testimony has a natural effect or tendency to influence, impede or dissuade the investigating body from pursuing its investigation * * *." It is too plain for argument that when Mitchell testified he had robbed the Silver Lake State Bank, his testimony would have the effect of "influencing" the jury in its determination of the question of whether Cox had robbed the Silver Lake State ...


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