UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-1045
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MILLARD F. McAFEE,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
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(November 30, 1993)
Before GOLDBERG, JONES and DUHÉ, Circuit Judges.1
DUHÉ, Circuit Judge:
Appellant, Millard F. McAfee, was convicted of one count of
wilful perjury under 18 U.S.C. § 1621 and three counts of making
irreconcilable contradictory declarations in a proceeding before or
ancillary to a court or grand jury under 18 U.S.C. § 1623(c).
McAfee appeals raising a number of issues that he argues justify
conviction reversal, dismissal of three counts, or resentencing.
We decline to grant relief on any of the grounds argued and affirm
McAfee's conviction and sentence.
BACKGROUND
McAfee owned a cattle hide processing company called Amarillo
By-Products. In 1986 and 1987, two companies that sold cattle
1
Judge Jones did not sit for oral argument due to illness, but did
participate in the opinion with the aid of the tape recordings.
hides to Amarillo By-Products separately sued Amarillo By-Products
and McAfee alleging that they stole higher quality hides and
substituted lower quality ones. These lawsuits were consolidated,
and in connection with them, the Plaintiffs' attorney, John Lovell,
deposed McAfee on June 30, 1987. On December 3-4, 1990, McAfee was
deposed again in connection with a lawsuit filed against an
individual alleged to be involved in the stolen hides scheme.
After settlement of the litigation, Lovell reported McAfee's
alleged incidents of perjury to the U.S. Attorney's office and the
FBI.
DISCUSSION
I. Applicability of § 1623 to Civil Depositions
An indictment under 18 U.S.C. § 1623(c) applies to statements
made in "any proceedings before or ancillary to any court or grand
jury of the United States." McAfee argues that § 1623(c) does not
apply to depositions taken pursuant to Federal Rule of Civil
Procedure 30 because such depositions are less formal than ones
taken in criminal proceedings.
In Dunn v. United States, 442 U.S. 100 (1979), the Supreme
Court reviewed the definition of "proceedings before or ancillary
to any court" in the context of an affidavit given in an attorney's
office. The Court concluded that § 1623(c) should not "encompass
statements made in contexts less formal than a deposition." Id. at
113 (emphasis added). Although the case arose out of a criminal
proceeding, the Supreme Court did not differentiate between federal
civil and federal criminal proceedings. There is no real
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substantive difference between federal civil and criminal
depositions. Although a court order must be obtained to take a
criminal deposition, Federal Rule of Criminal Procedure 15 states
that subject to additional conditions provided by the court or the
rules, a "deposition shall be taken and filed in the manner
provided in civil actions." Thus, we hold that § 1623(c) does
apply to civil depositions.
II. Sufficiency of the Indictment
Based on inconsistencies between McAfee's 1987 and 1990
deposition testimonies, he was indicted on three counts of perjury
under 18 U.S.C. § 1623(c). Relying on Bronston v. United States,
409 U.S. 352 (1973), McAfee challenges the legal sufficiency of the
indictments on Counts 2, 3, and 4 on the grounds that his answers
to the questions asked were literally true. We review the
sufficiency of an indictment de novo. United States v. Shelton,
937 F.2d 140, 142 (5th Cir.), cert. denied, 112 S. Ct. 607 (1991).
An indictment is sufficient if it contains the elements of the
offense charged, fairly apprises the defendant what charge he must
be prepared to meet, and enables him to plead an acquittal or a
conviction in future prosecutions for the same offense. Russell v.
United States, 369 U.S. 749, 763-64 (1962); Shelton, 937 F.2d at
142.
The issue for the Supreme Court in Bronston was whether an
evasive or unresponsive answer that was literally true, but might
have misled the questioner, was legally sufficient to support a
conviction for perjury under 18 U.S.C. § 1621. Bronston, 409 U.S.
3
at 356. It was undisputed that the defendant's answer was
literally true. The Court held that such an answer was not
sufficient to support a conviction under § 1621. Id. at 357.
In contrast to § 1621, the Government need not prove the
falsity of McAfee's declarations under § 1623(c); rather, the
Government must prove that "the defendant under oath has knowingly
made two or more declarations, which are inconsistent to the degree
that one of them is necessarily false." 18 U.S.C. § 1623(c). The
holding in Bronston has no application in determining the
sufficiency of an indictment under § 1623(c) because an offense
charged under that statute involves different elements than one
charged under § 1621. Accordingly, we conclude that the
indictments on Counts 2, 3, and 4 are sufficient as they meet all
the criteria set forth by the Russell Court.
III. Sufficiency of the Evidence
Convictions must be affirmed if the evidence, viewed in the
light most favorable to the verdict, with all reasonable inferences
and credibility choices made in support of it, is such 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); United States v. Kim, 884 F.2d 189, 192 (5th Cir.
1989). In making this determination, we need not exclude every
reasonable hypothesis of innocence. United States v. Henry, 849
F.2d 1534, 1536 (5th Cir. 1988). Juries are free to use their
common sense and apply common knowledge, observation, and
experience gained in the ordinary affairs of life when giving
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effect to the inferences that may reasonably be drawn from the
evidence. United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47
(11th Cir. 1985) (en banc), cert. denied, 475 U.S. 1049 (1986).
Section 1623(c) sets forth its own method for proving false
declarations. The statute allows contradictory statements without
more to form the basis of perjury prosecution and permits the jury
to infer the falsity of a declaration from its inconsistency with
another. The Government must show that the statements are so
irreconcilable that one of the statements is "necessarily false."
See 18 U.S.C. § 1623(c). We find the Fourth Circuit's explanation
of § 1623(c) instructive and adopt the standard set forth in United
States v. Flowers, 813 F.2d 1320 (4th Cir. 1987). In Flowers, the
court concluded that section 1623(c) "requires a variance in
testimony that extends beyond mere vagueness, uncertainty, or
equivocality. Even though two declarations may differ from one
another, the § 1623(c) standard is not met unless, taking them into
context, they are so different that if one is true there is no way
the other can also be true." Id. at 1324; see also United States
v. Porter, 994 F.2d 470 (8th Cir. 1993). Given this standard under
§ 1623(c), we conclude that a rational trier of fact could find
McAfee guilty on each count.
A. Count 2
Count 2 involves McAfee's testimony regarding an entity called
"Southwest Exchange."2 Taking the testimony in context, a rational
2
During the 1987 deposition, McAfee testified as follows:
Q. Do you know the names of any persons who have sold any
hides to the hide plant for cash?
5
A. Um, Chester Peterson, he always wants cash; and there's a
guy out of El Paso that we call "Southwest Exchange", and
he always wants cash. He's a Mexican man; I don't know
anything else about him.
Q. What is the name of this guy from El Paso?
A. I don't know.
During the 1990 deposition, testified that "Southwest Exchange"
was Warren Pugh. He testified as follows:
Q. Looking at check number 13162, where did the money go to
Southwest Exchange, the $1,770?
A. That would have went to Warren Pugh.
. . .
Q. Let's look at this next Southwest Exchange check, it's
got an exhibit sticker Deposition Exhibit 26 to your
deposition, previous deposition, dated June 26,
1985, made out to Southwest Exchange for $750. Who
would have got that check?
A. Warren Pugh.
. . .
Q. And Southwest Exchange was Warren Pugh, so when you wrote
it to --
A. That's right.
Q. -- Southwest Exchange you knew it was Warren Pugh?
A. Knew it was Warren Pugh.
Q. Why didn't you tell us that when we asked you who
Southwest Exchange was in the Amarillo case?
A. I don't remember.
Q. Did you just not want us to know that Warren was involved?
A. I just -- yeah, you know, I wasn't -- I'm not cooperative
today, you know, I get ornery in a minute. He gave me a
lesson here at noon to be nice.
. . .
Q. And you knew who Southwest Exchange was?
A. Yes, sir.
Q. We've been through this before once but do you recall me
taking your deposition June 30th and July 1st, 1987?
A. Yes, sir, I guess so.
. . .
Q. Now, why is it that in June and July of 1987 you testified
under oath that Southwest Exchange was a Mexican guy out
of El Paso but today you're telling us it's Warren Pugh
and has always been?
A. That's right.
Q. Well, which is the truth?
A. It's Warren Pugh. I didn't want to tell you.
Q. So you just lied to me?
A. That's right. I'm not going to help you.
. . .
Q. Well, Mac, if you're going to lie to us when it suits you
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trier of fact could have found that the testimonies were so
different that if one statement was true, the other must be false.
The jury could infer that McAfee was not confused about the
"Southwest Exchange" referred to during the 1990 deposition,
especially when McAfee was confronted with the inconsistencies of
his 1987 statement. Further, McAfee's testimony does not manifest
vagueness, uncertainty, or evasiveness. His admission in 1990 that
he lied in 1987 makes such a contention disingenuous. Cf. Flowers,
813 F.2d at 1325 (concluding that defendant's manifestations of
uncertainty and forgetfulness corroborates claims of memory lapse).
B. Count 3
Count 3 involved testimony regarding McAfee's storage of
personal bull hides.3 McAfee argues that terms used in the
or when you don't like the question, how are we going to
know when to believe what you say?
A. You don't.
3
During the 1987 deposition, McAfee testified as follows:
Q. Have you ever stored, at the Amarillo By-Products
facility, any hides that you have purchased for your own
account?
A. No, I haven't.
Q. Have you ever stored anywhere in your warehouse facility,
hides that you purchased for your own account?
A. No.
During the 1990 deposition, the following exchange took place:
Q. Yes. When I asked you if you stored any of your hides at
Amarillo By-Products' hide house, you told me you hadn't.
Now, were you being evasive then?
A. Yes, sir.
Q. So what you told me then wasn't correct but what you're
telling me now is correct that you did, in fact, have
your own personal bull hides in there?
A. Little dabs of them, yes, sir.
Q. Why are you telling me this -- the truth now when you
didn't before.
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questions were different and because there was no time frame
mentioned in 1990, his position could have changed as to the
storing of hides. The questioning in 1990, however, involved a
recounting of the testimony McAfee gave in 1987. Further on
December 3, 1990, the first day of the deposition testimony, McAfee
had been confronted with the inconsistencies in his 1987 testimony.
A jury could reasonably find that McAfee was not confused as to the
time frame or the meaning of the terms used during the questioning
on December 4.
Alternatively, McAfee argues that he recanted his 1987
testimony the first day of the 1990 deposition. A recantation of
false testimony will be a bar to prosecution if it is made "in the
same continuous court or grand jury proceeding in which a
declaration is made." 18 U.S.C. § 1623(d). We conclude that the
district court did not err in adopting the magistrate judge's
finding that the 1990 deposition was not part of the same
proceeding in which the false statement was made. Accordingly, any
"recantation" made by McAfee in 1990 is not a bar to prosecution.
C. Count 4
Count 4 involves testimony regarding the identity of a
"Chester Peterson."4 Again, McAfee argues that the same questions
A. On the Chester Peterson deal, I was trying to protect
Garth and his father.
Q. Okay. What about your bull hides?
A. I didn't think that was any of your business.
4
The testimony in 1987 by McAfee was:
Q. I would like to first ask you if you know a person by the
name of Chester Petersen [sic].
A. No, I've never met him.
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were not asked each time. The jury, however, could reasonably find
from the testimony as a whole that McAfee knew in 1990 that the
Chester Peterson being asked about was the same Chester Peterson he
Q. Have you ever heard of him?
A. Yes.
. . .
Q. Where have you heard of Chester Petersen [sic]?
A. Oh, he's a guy that brings some hides in occasionally.
He's not very regular.
Q. Do you know where he has his business or where he is from?
A. Huh-uh. No, I don't.
. . .
Q. Do you know the name of any company he is affiliated with?
A. No.
Q. He doesn't have a business name or a corporation he is
involved with, or --
A. Not that I know --
Q. -- an associate?
A. Individual.
In 1990 the testimony was:
Q. Who's Chester Peterson?
A. Chester Peterson, was -- he was a guy that worked for
Garth, some kind of mechanic, carpenter or something.
Q. And how do you come to find that out?
A. I'm really not sure who he was. I never met him. Garth
had us make checks to him periodically.
. . .
Q. Going back to July 30th, 1987 deposition, I asked you
about Chester Peterson . . .
. . .
Q. Well, that's not really correct, is it, if Chester
Peterson was Garth or somebody working for Garth, you
knew where his business was, didn't you?
A. Chester Peterson was a name that Garth gave us to pay for
those calf skins, I don't even remember this here.
Q. Why didn't -- in 1987, why didn't you tell me that when
you were asked?
A. I didn't want to answer it.
Q. Question on line 13 on page 5: Do you know the name of
any company he is affiliated with?
A. No.
Q. Well, today you just told us Chester Peterson is
affiliated with Hereford Bi-Products.
A. What I'm telling you today is the truth.
Q. So what you told me then wasn't?
A. Those were evasive answers.
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testified about in 1987. McAfee even testified at trial that he
did not say who Chester Peterson was in 1987. Further, his
testimony cannot be characterized as evasive, vague, or uncertain
because many of his answers were "yes" and "no." See, e.g., United
States v. Cuesta, 597 F.2d 903, 920 (5th Cir.), cert. denied, 444
U.S. 964 (1979).
IV. Failure to Give Recantation Instruction
On Count 1, McAfee was charged under 18 U.S.C. § 1621 for
falsely testifying in his 1987 deposition that he split proceeds
from checks with another. McAfee contends that the district court
abused its discretion in failing to give a jury charge regarding
recantation of his false 1987 testimony.
The trial court has broad discretion to formulate jury
instructions, "as long as they are fundamentally accurate and not
misleading." Gates v. Shell Offshore, Inc., 881 F.2d 215, 218 (5th
Cir. 1989), cert. denied, 494 U.S. 1017 (1990). A trial judge's
refusal to deliver a requested instruction is reversible error if:
(1) the instruction is substantially correct; (2) it is not
substantially covered in the charge actually given to the jury; and
(3) it concerns an important point in the trial so that the failure
to give it seriously impairs a defendant's ability to present a
given defense effectively. United States v. Hudson, 982 F.2d 160,
162 (5th Cir.), cert. denied, 62 U.S.L.W. 3245 (1993).
Recantation is not a defense to an action brought under 18
U.S.C. § 1621. United States v. Norris, 300 U.S. 564, 573-74
(1937); United States v. Denison, 663 F.2d 611, 616 n.6 (5th Cir.
10
1981). Recantation may have a bearing on whether an accused
perjurer intended to commit the crime. See Beckanstin v. United
States, 232 F.2d 1, 4 (5th Cir. 1956). The district court's
instruction, however, adequately covered the relevant issue of
intent. Further, McAfee's counsel, in both his opening and
closing, called the jury's attention to McAfee's recantation of his
1987 testimony. Thus, the district court did not abuse its
discretion in denying McAfee's requested recantation instruction.
V. Materiality of Statements in Count 4
Under § 1623(c), the Government must prove that "each
declaration was material to the point in question." Materiality is
a question of law. United States v. Salinas, 923 F.2d 339, 340
(5th Cir. 1991). McAfee contends that the district court erred in
concluding as a matter of law that his statements alleged in Count
4 were material.
We review the district court's materiality finding de novo.
Id. Testimony is material if it "would have the natural effect or
tendency to influence" the decision of the tribunal to which it is
addressed. United States v. Gremillion, 464 F.2d 901, 905 (5th
Cir.), cert. denied, 409 U.S. 1085 (1972). We are unconvinced by
McAfee's attempt to extend the definition of tribunal, an obvious
reference to the court, to include the questioning attorney. At
issue in the civil cases were numerous racketeering activities, one
of which was the writing of checks to phantom entities to remove
cash from Amarillo By-Products to finance commercial bribes.
Chester Peterson was one of the names on the checks. McAfee's
11
statements were relevant to determining which checks to Chester
Peterson were valid and which were used as a phantom entity. Thus,
each declaration was relevant to a point in question, and the
district court did not err in determining that McAfee's statements
were material.
VI. Cross-examination of John Lovell
McAfee argues that the district court abused its discretion in
limiting the cross-examination of John Lovell. McAfee alleges that
Garth Merrick, the president of a company represented by John
Lovell, made a $20,000 loan to an individual who had previously
been deposed in one of the civil cases. McAfee also alleges that
Lovell instructed an investigator to supply a listening device to
a non-party to tape record a meeting of individuals who were
witnesses, but not parties, to the civil suits. The investigator
also recorded a telephone conversation with McAfee. McAfee
contends that he should have been able to cross-examine Lovell on
these points.
We review the exclusion of evidence only for an abuse of
discretion. United States v. Eakes, 783 F.2d 499, 506-507 (5th
Cir.), cert. denied, 477 U.S. 906 (1986). With respect to the
alleged $20,000 loan by Garth Merrick, the record shows that Lovell
knew nothing about the loan prior to its occurrence, and when he
did discover it, he brought it out during the direct examination of
Merrick. It is the practice of this Circuit to exclude highly
prejudicial evidence that attempts to taint a witness's character
through guilt by association. See United States v. Ochoa, 609 F.2d
12
198, 205 (5th Cir. 1980).
Under 18 U.S.C. § 2511(2)(d), an individual is permitted to
tape record so long as one of the parties to the communication has
given prior consent to such interception. Because the party tape
recording the meeting was present, nothing illegal occurred.
Moreover, there is no evidence in the record that reflects that an
individual at the meeting would become a party in a future lawsuit
or that Lovell authorized the taping of the conversation with
McAfee. The district court did not abuse its discretion in holding
that cross-examination on those issues would have little probative
value and should be excluded.
VII. Sentencing on Count 2
Finally, McAfee contends that the district court's application
of the sentencing guidelines to Count 2 of the indictment was
improper.5 The district court found by a preponderance of the
evidence that the 1990 statement alleged in Count 2 was false and
sentenced McAfee on Count 2 under the guidelines. We give due
regard to the opportunity of the trial court to judge the
credibility of the witnesses and shall accept the findings of fact
of the trial court unless they are clearly erroneous. 18 U.S.C. §
3742(e); United States v. Medina-Saldana, 911 F.2d 1023, 1024 (5th
Cir. 1990).
5
Because in each count one statement occurred prior to the
effective date of the sentencing guidelines, and one occurred after
the guidelines were adopted, the count would be treated as
preguideline if only the preguidelines statement was false. On the
other hand, if the post-guideline statement was false or if both
statements were false, the count would be treated as post-
guideline.
13
The record reflects substantial evidence that McAfee's 1990
testimony regarding "Southwest Exchange" was false. Warren Pugh
testified at trial that although he did use the d/b/a "Southwest
Exchange," he was not the "Southwest Exchange" denoted on the
checks questioned about in the deposition. Further, Richard
Jerome, a fellow owner of Amarillo By-Products, testified that
"Southwest Exchange" was really McAfee, the president of Amarillo
By-Products, David Kennedy, and himself. Given this testimony,
together with the other evidence, the district court was not
clearly erroneous in finding that McAfee's 1990 testimony was
false.
CONCLUSION
For the foregoing reasons, Mcafee's conviction and sentence
are affirmed.
AFFIRMED.
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