McENTEE, Circuit Judge.
Defendant, Shepard A. Brightman, was charged in a four count indictment brought under 18 U.S.C. § 1621
with having given perjured testimony in a civil trial in the United States District Court in Boston. The jury found him guilty on all four counts. The trial in which the testimony in question was given was a proceeding brought by the Trustee in Bankruptcy of Herman Brightman, the defendant’s father, against Herman Brightman & Sons, Inc., a Massachusetts corporation, the defendant himself, and other members of the Brightman family, seeking among other things, an accounting of the proceeds from a certain auction sale of property standing in the name of the corporation. This sale was held on the corporation premises on May 6, 1960, and resulted in a net of some $46,336. The defendant and the government stipulated that out of these proceeds a total of $12,975 was paid to the defendant and $5,350 was paid to his brother, Saul J. Brightman. It was also stipulated that the testimony of the defendant in the civil case as to the disposition of these two amounts was material to the issues being tried in that case. On this point defendant testified that after the auction sale on May 6, 1960, several employees of the corporation were paid compensation “from the proceeds of the money that was out of the auction” for work that was required to be performed by the corporation after that date in dismantling the machinery sold at the auction and preparing it for shipment to those who purchased it.
When asked who some of these employees were, defendant listed the four persons subsequently named in the four counts of the indictment.
'
At the trial, each of these former employees testified that he had not worked for or been paid by the corporation after May 6, 1960. This testimony was corroborated by one Baronas, formerly a foreman for the corporation, who testified that he and these four employees
were laid off by the Brightmans in April 1960. In addition, the auctioneer stated that the terms of sale provided that all property auctioned was sold “as is— where is.” A large number of purchasers or their representatives testified that they or their employees had done the very work that the defendant claimed these four employees were kept on to do. Defendant produced no testimony that these four men were in fact employed by the Brightmans after May 6, 1960. He contends, however, that as a matter of law the government’s case does not satisfy the rigorous requirements of proof in perjury cases. “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal.” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926).
First we shall consider the law with reference to the corroboration requirement and then whether that requirement is satisfied in the instant case. Relying principally on United States v. Neff, 212 F.2d 297, 308 (3d Cir. 1954), defendant takes the position that corroborating evidence must be inconsistent with the defendant’s innocence. While it is true that the corroboration must be of a substantial nature, we think that this proposed test is too rigorous. In our opinion the better rule is that expressed in Arena v. United States, 226 F.2d 227 at 236 (9th Cir. 1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956), where the court stated:
“One requested instruction contains the statement that the corroborating evidence must be 'inconsistent with the innocence of the defendant’. We have already seen that the weight of authority is opposed to so severe a standard for the corroborating evidence. It is sufficient if the corroborating evidence
tends
to establish the defendant’s guilt, and if such evidence
together with
the direct evidence is ‘inconsistent with the innocence of the defendant’.” (emphasis in original)
The defendant calls our attention to the very recent case of United States v. Thompson, 379 F.2d 625 (6th Cir. 1967). That case is not inconsistent with our holding here. In
Thompson
there was no corroboration of the key conversation in question. There the defendant testified that he had asked a police officer to call a lawyer. The officer testified that he had had only one conversation with the defendant on the day in question and that the defendant did not ask him to contact a lawyer. Two FBI agents corroborated the officer’s testimony as to the one admitted conversation but did not know whether the officer had other conversations with the defendant that day. For the proposition that there had been only one conversation between them on that day there was only the testimony of the police officer. Therefore, the FBI testimony was not substantial evidence that the defendant had perjured himself no matter which standard of corroboration was applied.
A further point raised by defendant concerns the relationship between the general rule in criminal cases requiring proof of guilt beyond a reasonable doubt and the special rule in perjury cases requiring corroboration. Citing United States v. Nessanbaum, 205 F.2d 93, 95 (3d Cir. 1953), he contends that in perjury cases a higher standard than proof beyond a reasonable doubt is required.
It is necessary, to be sure, that there be corroborating as well as primary evidence on the issue of falsity but the evidence in its entirety need convince the jury only beyond a reasonable doubt. The corroboration rule, then, is an additional requirement and not a qualification of the reasonable doubt rule. In Hammer v. United States, supra, 271 U. S. at 627, 46 S.Ct. at 604, the Court stated: “ * * * the rule, which forbids conviction on the unsupported testimony of one witness as to falsity of the matter alleged as perjury, does not relate to the kind or amount of other evidence required to establish that fact.”
“The jury should be instructed not to convict [in perjury prosecutions] unless the testimony of the principal witness has been so corroborated that they believe it to be true beyond a reasonable doubt.” Wigmore, 3d ed. jf 2042. See also Mangum v. United States, 289 F.213, 216 (9th Cir. 1923).
The evidence in the instant case must be considered in the light of the above principles. Defendant calls into question the credibility of the four former employees. It is elementary law that the credibility of witnesses is primarily for the jury and we see no reason to interfere with the jury’s function on the facts of this case.
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McENTEE, Circuit Judge.
Defendant, Shepard A. Brightman, was charged in a four count indictment brought under 18 U.S.C. § 1621
with having given perjured testimony in a civil trial in the United States District Court in Boston. The jury found him guilty on all four counts. The trial in which the testimony in question was given was a proceeding brought by the Trustee in Bankruptcy of Herman Brightman, the defendant’s father, against Herman Brightman & Sons, Inc., a Massachusetts corporation, the defendant himself, and other members of the Brightman family, seeking among other things, an accounting of the proceeds from a certain auction sale of property standing in the name of the corporation. This sale was held on the corporation premises on May 6, 1960, and resulted in a net of some $46,336. The defendant and the government stipulated that out of these proceeds a total of $12,975 was paid to the defendant and $5,350 was paid to his brother, Saul J. Brightman. It was also stipulated that the testimony of the defendant in the civil case as to the disposition of these two amounts was material to the issues being tried in that case. On this point defendant testified that after the auction sale on May 6, 1960, several employees of the corporation were paid compensation “from the proceeds of the money that was out of the auction” for work that was required to be performed by the corporation after that date in dismantling the machinery sold at the auction and preparing it for shipment to those who purchased it.
When asked who some of these employees were, defendant listed the four persons subsequently named in the four counts of the indictment.
'
At the trial, each of these former employees testified that he had not worked for or been paid by the corporation after May 6, 1960. This testimony was corroborated by one Baronas, formerly a foreman for the corporation, who testified that he and these four employees
were laid off by the Brightmans in April 1960. In addition, the auctioneer stated that the terms of sale provided that all property auctioned was sold “as is— where is.” A large number of purchasers or their representatives testified that they or their employees had done the very work that the defendant claimed these four employees were kept on to do. Defendant produced no testimony that these four men were in fact employed by the Brightmans after May 6, 1960. He contends, however, that as a matter of law the government’s case does not satisfy the rigorous requirements of proof in perjury cases. “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal.” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926).
First we shall consider the law with reference to the corroboration requirement and then whether that requirement is satisfied in the instant case. Relying principally on United States v. Neff, 212 F.2d 297, 308 (3d Cir. 1954), defendant takes the position that corroborating evidence must be inconsistent with the defendant’s innocence. While it is true that the corroboration must be of a substantial nature, we think that this proposed test is too rigorous. In our opinion the better rule is that expressed in Arena v. United States, 226 F.2d 227 at 236 (9th Cir. 1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956), where the court stated:
“One requested instruction contains the statement that the corroborating evidence must be 'inconsistent with the innocence of the defendant’. We have already seen that the weight of authority is opposed to so severe a standard for the corroborating evidence. It is sufficient if the corroborating evidence
tends
to establish the defendant’s guilt, and if such evidence
together with
the direct evidence is ‘inconsistent with the innocence of the defendant’.” (emphasis in original)
The defendant calls our attention to the very recent case of United States v. Thompson, 379 F.2d 625 (6th Cir. 1967). That case is not inconsistent with our holding here. In
Thompson
there was no corroboration of the key conversation in question. There the defendant testified that he had asked a police officer to call a lawyer. The officer testified that he had had only one conversation with the defendant on the day in question and that the defendant did not ask him to contact a lawyer. Two FBI agents corroborated the officer’s testimony as to the one admitted conversation but did not know whether the officer had other conversations with the defendant that day. For the proposition that there had been only one conversation between them on that day there was only the testimony of the police officer. Therefore, the FBI testimony was not substantial evidence that the defendant had perjured himself no matter which standard of corroboration was applied.
A further point raised by defendant concerns the relationship between the general rule in criminal cases requiring proof of guilt beyond a reasonable doubt and the special rule in perjury cases requiring corroboration. Citing United States v. Nessanbaum, 205 F.2d 93, 95 (3d Cir. 1953), he contends that in perjury cases a higher standard than proof beyond a reasonable doubt is required.
It is necessary, to be sure, that there be corroborating as well as primary evidence on the issue of falsity but the evidence in its entirety need convince the jury only beyond a reasonable doubt. The corroboration rule, then, is an additional requirement and not a qualification of the reasonable doubt rule. In Hammer v. United States, supra, 271 U. S. at 627, 46 S.Ct. at 604, the Court stated: “ * * * the rule, which forbids conviction on the unsupported testimony of one witness as to falsity of the matter alleged as perjury, does not relate to the kind or amount of other evidence required to establish that fact.”
“The jury should be instructed not to convict [in perjury prosecutions] unless the testimony of the principal witness has been so corroborated that they believe it to be true beyond a reasonable doubt.” Wigmore, 3d ed. jf 2042. See also Mangum v. United States, 289 F.213, 216 (9th Cir. 1923).
The evidence in the instant case must be considered in the light of the above principles. Defendant calls into question the credibility of the four former employees. It is elementary law that the credibility of witnesses is primarily for the jury and we see no reason to interfere with the jury’s function on the facts of this case.
Defendant suggests that as a matter of law there was insufficient corroborating evidence on the issue of falsity and that his motion for acquittal should have been granted.
We do not agree. In our opinion the foreman’s testimony that the four employees in question had been laid off before the date of the auction, coupled with the testimony of the auctioneer that the sale was on an “as is — where is” basis and with that of some thirty-eight purchasers
that either they or their representatives dismantled and removed the’property they purchased, amply supports the testimony of the four employees that they had not worked for or been paid by the Bright-man corporation after May 6,1960. This phalanx of purchaser witnesses established that the Brightman employees did not assist in dismantling and removing the equipment they purchased. From this it can be reasonably inferred that these employees were not on the Bright-man payroll after May 6, 1960, because the work the defendant testified they were doing was in fact done by others. The total evidence, including all reasonable inferences therefrom, when put together was sufficient, in our opinion, to warrant the jury to conclude that this defendant was guilty beyond a reasonable doubt. Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964).
Affirmed.