United States of America, Plaintiff-appellee, v. Betty Rae Whimpy, Defendant-appellant, 531 F.2d 768 (5th Cir. 1976)

Defendant-Appellant, Betty Rae Whimpy, was convicted of perjury under 18 U.S.C.A. § 1623 in connection with false testimony which she gave in a prior criminal conspiracy trial. In this appeal Whimpy asserts three grounds of error: (i) the trial court erred in ruling as a matter of law that the statements made by the defendant in the prior conspiracy trial were material declarations, (ii) the trial court erred as a matter of law when he refused to grant a mistrial for prosecutorial misconduct in eliciting objectionable rebuttal testimony after assuring the court and opposing counsel that the testimony would be limited to another issue, (iii) the trial court erred in instructing the jury as to how they should weigh conflicting testimony. Although we find no merit in defendant's first argument we believe the Appellant's second point of error is meritorious and we do not reach the third issue.

On then with the facts relevant to the issues of this appeal. The parties stipulated that Betty Rae Whimpy, Herman Jerry Brackett¹  and Billy Nicholson²  were duly sworn under oath when they testified as witnesses in the prior criminal conspiracy trial.³  Whimpy testified in that trial that on April 25, 1974, she was the girl who accompanied Brackett to the waffle house on highway 129 south of Pendergrass, Georgia on the evening of November 1, 1973. She went on to testify that she was present outside a tavern in Winder, Georgia, sitting in an automobile when Brackett and Nicholson were arrested by federal agents. Apparently, the significance of this testimony is that she went on to state that Brackett and Nicholson's conversation at their meeting at the tavern in Winder concerned an old model car Brackett wanted to buy from Nicholson rather than any matters pertinent to the liquor conspiracy prosecution.

The government, presented the testimony of four agents of the Bureau of Alcohol, Tobacco and Firearms Division which gave testimony indicating that Ms. Whimpy was not present with Brackett at the waffle house or in the car in front of the tavern but rather that the girl present was Mrs. Willard Jones who apparently had a romantic relationship with Brackett. Thus, since Brackett, Nicholson, and Whimpy allegedly falsely testified that Whimpy was the girl present at the time of these occurrences the government brought the perjury prosecution which is the subject of this appeal.

Defendant's False Testimony Was Material As A Matter Of Law

Five elements must be proved to establish a case under 18 U.S.C. § 1623 for perjury: (i) the declarant must be under oath, (ii) the testimony must be given in a proceeding before a court of the United States, (iii) the witness must knowingly make, (iv) a false statement, and (v) the testimony must be material to the proof of the crime. The Defendant concedes all of the elements except the last which deals with materiality arguing that even though the statements were false they were not material to the conspiracy.

Proceeding on this premise we have no difficulty in holding that the statements were material to the liquor conspiracy prosecution. The case law has established very broad parameters to what is considered material and essentially anything that could influence or mislead the trial court or the jury is considered to be material. See Barnes v. United States, 5 Cir., 1967, 378 F.2d 646, cert. denied, 390 U.S. 972, 88 S. Ct. 1056, 19 L. Ed. 2d 1184; see also United States v. Lardieri, 3 Cir., 1974, 497 F.2d 317; United States v. Koonce, 8 Cir., 1973, 485 F.2d 374; United States v. Parker, 7 Cir., 1957, 244 F.2d 943, cert. denied, 355 U.S. 836, 78 S. Ct. 61, 2 L. Ed. 2d 48. Since the false testimony was obviously designed to negate the conspiratorial nature of the previous prosecution and in addition had the ancillary effect of confusing the facts which were to be considered by the court and the jury, we hold that the testimony of Ms. Whimpy falls within the ambit of the statute.

Prosecutorial Misconduct

Prior to the testimony of Owen Strickland, an agent of the Alcohol, Tobacco and Firearm Division, which was proffered by the prosecution as rebuttal evidence, there was a conference between the court and the counsel for both parties out of the presence of the jury. Although this conference was not made a part of the record it is obvious from the statements in the record of the court and counsel that the Assistant United States Attorney, as prosecutor, mislead both the court and opposing counsel as to the content of Strickland's testimony. It was the understanding of the court and the parties that this testimony would only relate to Brackett's residence but instead the prosecutor either led or allowed the witness to stray into an area which was unquestionably prejudicial to the defendant's case. Agent Strickland testified that he had had two conversations with Brackett in which Brackett had told him⁴  that in the liquor conspiracy trial he had told the same lie as the two girls had told in that trial.⁵ 

Unquestionably, the statements by Strickland implicated the defendant and their effect could not be erased by the Judge instructing the jury to disregard agent Strickland's testimony. We refuse to countenance the conduct of the prosecutor in not only proffering testimony well beyond the scope of legitimate rebuttal, see, e.g., United States v. Sadler, 5 Cir., 1974, 488 F.2d 434, but also conducting the rebuttal examination in a way which was in direct conflict with the ruling of the court.⁶  To allow government prosecutors to act in disregard of understandings and agreements with opposing counsel and the court would create an atmosphere of distrust which would impede the criminal trial process and is fundamentally in conflict with the concept of our vaunted adversary system.

Although the trial court unequivocally instructed the jury to disregard agent Strickland's testimony, R. at 254, we feel that under the circumstances this was inescapably insufficient so the only proper remedy was for the trial court to grant defendant's motion for mistrial. See R. at 245--250. Moreover, we believe that the defendant adequately preserved his error for appeal by making motion for mistrial outside the presence of the jury rather than objecting immediately to the harmful testimony. An immediate objection under the circumstances would only serve to accentuate the harmful testimony. Upon this record, there is no doubt that defendant's timely motion for mistrial placed the matter squarely before the trial court for resolution at the earliest possible time which was tactically appropriate.

REVERSED.