Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 CR 402 -- Frank J. McGarr, Judge .
Before Fairchild and Swygert, Circuit Judges, and Bartels*fn* , 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 18 U.S.C. § 1623 following a bench trial. The indictment of Walter Tranowski (Walter) stemmed from testimony he had given at the earlier trial of his brother Stanley Tranowski (Stanley) for uttering a counterfeit $5 bill at a Burger King restaurant on the afternoon of May 12, 1974. In addition to his evidentiary challenge, Walter further alleges that the trial judge was improperly exposed to his past record of arrests and convictions.
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 abandoned. Soon afterwards, McGhee found a Burger King bag containing two uneaten "Whoppers" in a garbage can in a yard through which the individual had run. McGhee had been an employee at the NorClaire Drug Store for several years, and recognized the individual he had been chasing as a regular customer of the drug store. From McGhee's description, the store manager recalled that the individual had purchased a newspaper at the store on May 12, 1974 between 6:30 and 7 p. m. He testified at the trial that this individual, accompanied by another person later identified as his brother Walter, had purchased a newspaper on the average of four or five times a week since May 1973. Both McGhee and the store manager were able to make in-court identifications of Walter and Stanley Tranowski.
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.*fn1
II. Walter's Trial: Evidence of Walter's Perjury
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 McGraw-Hill's Yearbook of Science and Technology. He had taught astronomy to gifted high school students, and was a member of a local professional organization. He was accepted by the court, without objection, as an expert capable of making astronomical calculations. Ciupik testified that as it revolves around the sun, the earth is fixed in its orientation towards the North Star. The sun's path as we perceive it in the daytime sky therefore repeats itself from year to year. Twice a year, on dates equidistant from the summer or winter solstices, the sun will be in precisely the same location with respect to both the horizon and the North Star. Ciupik then expounded the theory that if one knew the compass orientation of an object in a photograph, it would be possible to date that photograph by: 1) measuring the directional angle of the shadow cast by that object to determine the azimuth of the sun;*fn2 and 2) measuring the angle of elevation of a complete shadow cast by another object in the photograph to determine the altitude of the sun.*fn3 Ciupik stated that the intersection point of the altitude and the azimuth, defining the sun's position in the sky, corresponds to the only two dates of the year on which the photo could have been taken.*fn4
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.*fn5 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. On cross-examination, Ciupik admitted that although he had made numerous measurements of lunar mountains with the aid of the chart, neither he nor anyone else as far as he knew had ever used it prior to this trial for the purpose of dating a photograph. Nor could he point to any published text suggesting or detailing the method one would use for such calculations. Finally, there was no evidence that Ciupik's skill in measuring lunar mountains had ever been verified or corroborated.
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.*fn6 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 ...