United States v. Hogue

45 M.J. 300, 1996 CAAF LEXIS 96, 1996 WL 790789

• Court: Court of Appeals for the Armed Forces
• Decided: September 30, 1996
• Docket: No. 95-0742; Crim.App. No. 30381
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was convicted at Tinker Air Force Base, Oklahoma, of false swearing, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The convening authority approved the sentence imposed by the members of 6 months’ confinement and partial forfeitures. Pursuant to Article 69(d)(1), UCMJ, 10 USC § 869(d)(1), the Judge Advocate General referred the case to the Court of Criminal Appeals. That court affirmed the findings of guilty and the sentence. 42 MJ 533 (1995). We granted review of the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY ADOPTING AN EVIDENTIARY STANDARD FOR PROOF OF THE-OFFENSE OF FALSE SWEARING THAT WAS LESS STRINGENT THAN THAT ESTABLISHED BY CASE LAW AND THE MANUAL FOR COURTS-MARTIAL.

We hold that the Court of Criminal Appeals did not deviate from case law, the UCMJ, or the Manual for Courts-Martial, because the two-witness rule only applies when there is an oath against an oath. That is not the ease under the facts presented here.

FACTS

Appellant, a civilian employee at Tinker AFB, had been rumored to be using drugs and frequenting bars where drugs were common. When appellant was called to active duty as a Lieutenant Colonel Judge Advocate in the Air Force Reserve, he was called to the Office of Special Investigations where Special Agent Kenneth E. Mallard advised him of his rights under Article 31(b), UCMJ, 10 USC § 831(b), and his right to counsel. Appellant waived his rights and, under oath, stated that he had not used or sold drugs in the past. Then he voluntarily provided a urine sample that tested positive for Benzoyleegonine, a cocaine metabolite. He was charged with using cocaine and false swearing, but because of jurisdictional questions concerning the drug offense, he was tried only for false swearing. The issue in this case is whether there was sufficient evidence to convict appellant if the “two-witness” rule applies.

The Court of Criminal Appeals held that the results of the urinalysis, coupled with the testimony of the expert witness to explain those results, was sufficient to support a finding that appellant knowingly used cocaine, and therefore falsely swore to the contrary in his statement. The evidence is more convincing than the testimony of an eyewitness and, unlike the testimony of one witness, is not susceptible to being misused to unduly harass or convict persons who testify in court or make statements under oath.

42 MJ at 537.

DISCUSSION

Since early biblical times, a quantitative rather than a qualitative rule has been employed in examining potentially perjurious testimony. It has been suggested that the two-witness rule originated in the Old Testament where it is stated: “At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.” Deuteronomy 17:6; see Rosenberg and Rosenberg, “Perhaps What Ye Say Is Based Only On Conjecture”— Circumstantial Evidence, Then and Now, 31 Hous.L.Rev. 1371, 1376-77 nn. 15 and 16 (Spring 1995). The two-witness rule also appears in the New Testament. Matthew, 18:16; 2 Corinthians 13:1; 1 Timothy, 5:19; Hebrews 10:28 (King James Version). Its purpose can be viewed as a prohibition against conjecture in a criminal case. 31 Hous.L.Rev. at 1382. The rule found a permanent place in the common law beginning in the early 1700s and was fully confirmed in England in the 1800s. J. Wigmore, Evidence § 2040 at 360 (Chadboum rev. 1978). The two-witness rule has existed in this country since colonial times. See Margolis, State v. Ross: New Life for Connecticut’s Death Penalty?, 68 Conn.B.J. 262, 268 (Aug.1994). It was even discussed at the Constitutional Convention. See Steinberg, Book Review of Essays on English Law and the American Experience (E. Cawthorn & D. Narrett, eds.), 39 Am.J.Legal Hist. 278, 280 (April 1995).

At common law, two witnesses were required to convict a defendant on a charge of perjury. S. Gard, Jones on Evidence Civil and Criminal § 29:7 at 305-06 (1972), citing State v. Hayward, 10 S.C.L. (1 Nott & McC.) (SC) 546. Presently, based on common law, the falsity of the statement in a federal perjury prosecution must be established by the testimony of two witnesses or the testimony of one witness and corroborating circumstances. C. Wright, 2 Federal Practice and Procedure § 403 at 422-23 (2d ed. 1982). The force of this rule has been lessened by more recent statutes. See, e.g., 18 USC § 1623(e) (eliminating the two-witness requirement for false declarations before a grand jury or court); 18 USC § 1001 (no two-witness requirement for proof of false official statement).

The two-witness rule in military criminal law is set forth in paragraph 57c(2)(c), Part IV, Manual for Courts-Martial, United States (1995 ed.). Its predecessor was set out in paragraph 210, Manual for Courts-Martial, United States, 1969 (Revised edition) at 28-67. Paragraph 210 contains a provision substantially the same as paragraph 57c(2)(c).

For the offense of false swearing, the discussion in paragraph 213f(4), 1969 Manual, supra (Change 4, January 1, 1981), provided: “The principles set forth in the last two paragraphs of the discussion of perjury in [paragraph] 210 apply also to false swearing.”

Paragraph 79c(1), Part IV, Manual, supra (1995 ed.), in contrast, provides the entire pertinent discussion of false swearing as it relates to perjury, as follows:

Unlike a false official statement under Article 107 (see paragraph 31) there is no requirement that the statement be made with an intent to deceive or that the statement be official. See paragraphs 57e(1), c(£)(c) and e(2)(e) concerning “judicial proceedings or course of justice,” proof of the falsity, and the belief of the accused, respectively.

(Emphasis added.)

The emphasized portions contain the only arguable linkage as to the modes of proof of false swearing under the current Manual that relate to perjury.

As to the “proof of the falsity” referenced above, paragraph 57c(2)(e) provides:

Proof. The falsity of the allegedly perjured statement cannot be proved by circumstantial evidence alone, [1]

* except with respect to matters which by their nature are not susceptible of direct proof. [2] The falsity of the statement cannot be proved by the testimony of a single witness unless that testimony directly contradicts the statement and is corroborated by other evidence either direct or circumstantial, tending to prove the falsity of the statement. [3] However, documentary evidence directly disproving the truth of the statement charged to have been perjured need not be corroborated if: the document is an official record shown to have [been] well known to the accused at the time the oath was taken; or the documentary evidence originated from the accused — or had in any manner been recognized by the accused as containing the truth — before the allegedly perjured statement was made.

While this has been referred to as the two-witness rule, a more accurate description might be the witness-plus rule. There are exceptions to this rule.

The first [1] exception in paragraph 57c(2)(c) applies where the falsity of the statement is “not susceptible of direct proof.” This is a change from the Manual for Courts-Martial, United States, 1951, and is based on United States v. Walker, 6 USCMA 158, 19 CMR 284 (1955). See para. 210, Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised edition at 28-16 (Dept. of the Army Pamphlet 27-2 (July 1970)).

The second [2] exception in paragraph 57c(2)(c) applies a single-witness rule when there is corroboration through direct or circumstantial evidence that tends to prove the falsity of the statement.

The third [3] exception in paragraph 57c(2)(c) is taken from United States v. Wood, 39 U.S. (14 Pet.) 430, 10 L.Ed. 527 (1840). See para. 210, Legal & Legislative Basis, Manual for Courts-Martial, United States, 1951 at 290. In Wood, the Court held that the two-witness rule does not apply when the offense is proved “by documentary or written testimony springing from” the defendant himself or official records known to the defendant at the time he took the oath. Id, at 441,10 L.Ed. 527.

In Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), the Court rejected the Government’s argument that perjury may be proven by the testimony of a single witness if there is sufficient corroborative evidence. Id. at 609-10, 65 S.Ct. at 550-51.

However, the Court in Weiler noted:

Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures upon which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not quantity. Triers of fact in our fact-finding tribunals are, with rare exceptions, free in the exercise of their honest judgment, to prefer the testimony of a single witness to that of many.

323 U.S. at 608, 65 S.Ct. at 549-50.

The historical underpinnings of the two-witness rule reveal that the purpose of the rule is to ensure that a defendant in a criminal trial is not convicted except upon sufficient, reliable evidence. The rule existed at a time when perjury was among the most egregious crimes that existed, and at a time when evidence was deduced primarily from the testimony of witnesses. Because equally honest witnesses could have differing recollections of the same event, a conviction was not to “rest entirely upon ‘an oath against an oath.’ ” R. Perkins and R. Boyce, Criminal Law 523 (3d ed. 1982), quoting Weiler, 323 U.S. at 608-09, 65 S.Ct. at 549-50 (“More than this is needed ‘to turn the scales against the defendant’s oath.’ State v. Sailor, 240 N.C. 113, 115, 81 S.E.2d 191, 192 (1954).”). In United States v. Diggs, 560 F.2d 266, 269 (7th Cir.1977), the court asserted that a conviction for peijury ought not rest solely on one man’s oath against that of another: that is, an oath against an oath. See Wood, 39 U.S. (14 Pet.) at 440, 10 L.Ed. 527 (“oath against oath proves nothing”).

This is not a ease of an oath against an oath. Agent Mallard testified that appellant said he had not used drugs. Even appellant agreed that he had made that statement. Further, appellant never questioned the accuracy of the laboratory results showing cocaine metabolites present in his urine, even though he stated that he had not knowingly used cocaine. Appellant claimed innocent ingestion, suggesting that someone had spiked his drinks. Thus, the record shows clear evidence that appellant made the statement that he had not used drugs and that he thereafter tested positive for “drugs.” The accuracy of the laboratory reports was never disputed, and an expert testified as to the validity of the results.

Even assuming paragraph 79c(1) incorporates paragraph 57c(2)(c), the two-witness rule does not apply here because knowledge is “not susceptible of direct proof,” see para. 57e(2)(c)[1], when innocent ingestion is claimed. We hold that proof of this element by circumstantial evidence is authorized by paragraph 79c(1). Thus, the evidence was sufficient for the factfinders to find that appellant knowingly used cocaine and, thus, that he knew he was making a false statement when he stated that he had not used drugs. See generally United States v. Fears, 11 USCMA 584, 29 CMR 400 (1960); United States v. Crawford, 6 USCMA 517, 20 CMR 233 (1955).

This case is distinguishable from United States v. Olivero, 39 MJ 246 (CMA 1994), because a laboratory report is direct evidence of perjury. In Olivero, “[t]here was no direct evidence of perjury.” 39 MJ at 251.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Judge GIERKE concurs.

We have placed brackets 1, 2, and 3 within the quoted text and throughout the opinion to help the reader understand exactly what exception we are referring to at a given time.