Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

MEMORANDUM^* 

Aaron Katz was convicted by a jury in Santa Clara County Superior Court of one count of perjury. Katz received a suspended sentence and was ordered to pay a fine. After he served probation, his conviction was expunged pursuant to Cal.Pen.Code Sec. 1203.4a. Katz now appeals the district court's denial of his section 2254 habeas corpus petition. He claims that there was insufficient evidence to support his conviction, and that his due process rights were violated because he had insufficient notice of the subject of the perjury charge.

Respondent asserts that the district court lacked jurisdiction to hear Katz's section 2254 petition. We disagree. Katz was serving probation, and therefore in sufficient custody to support initiation of the habeas petition, at the time the petition was filed. See United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988), cert. denied, --- U.S. ----, 110 S. Ct. 51 (1989) (district court's jurisdiction measured at time habeas petition is filed); Birdsell v. Alabama, 834 F.2d 920, 921 (11th Cir. 1987) (probation constitutes custody); United States v. Condit, 621 F.2d 1096, 1098 (10th Cir. 1980) (same). The grant of appellant's Rule 60(b) motion relieved the appellant of the effect of the mistaken voluntary dismissal and permitted the lawsuit to proceed on the basis of the original, valid filing.

On the merits, Katz claims that the district court erred in determining that there was sufficient evidence to support his conviction for perjury. Under California law, to establish the crime of perjury, the state must prove (1) an oath before a competent tribunal or officer; (2) a false statement; (3) intent to swear falsely; and (4) materiality of the statement. See People v. Gamble, 8 Cal. App. 3d 142, 87 Cal. Rptr. 333 (Ct.App.1970); People v. Davidson, 227 Cal. App. 2d 331, 38 Cal. Rptr. 660 (Ct.App.1964); 2 B.E. Witkin, California Crimes Sec. 831 (1963 & Supp.1985). Katz contends that the prosecution failed to prove the literal falsity of his testimony.

We reject this contention. Here, a reasonable jury could conclude that Katz's statement that CAARCO owned two vehicles used "in respect to its branch office operations in Oregon" was literally false. The only branch office alleged by Katz was an address at Jump Off Joe Creek Road, Sunny Valley, Oregon. The state presented testimony that this address was a mailbox in the midst of rural Oregon; that it could only be reached by a four-wheel drive vehicle; that the only resident and the local mail carrier had never heard of Katz or CAARCO nor seen Katz or the Mercedes in the vicinity; and that the shack Katz asserted was the branch office had no telephone, septic system, heat or electricity. Katz failed to produce any documentary evidence demonstrating CAARCO's business operations at the Oregon address or even in general. Katz's former client testified about how she obtained one of the Mercedes for Katz and how Katz asked her to sign registration forms listing the Oregon address.

Katz also claims that his due process rights were violated because he was not adequately informed of the charges against him. He claims that the dismissal of certain counts against him misled him into failing to present evidence that would have resulted in his acquittal. This argument is without merit.

Katz was convicted of Count One of the information, which charged that he committed perjury when he testified that "CAARCO, INC. owns two vehicles used in respect to its branch office operations at 3060 Jump Off Joe Creek Road, Sunny Valley, Oregon." Count One clearly placed Katz on notice that whether CAARCO conducted branch office operations at the Jump Off Joe Creek Road address was a pivotal issue. Contrast Sheppard v. Rees, 909 F.2d 1234, 1235-37 (9th Cir. 1989) (insufficient notice where felony murder never raised in pleading, pretrial proceedings or at trial, but only in jury instructions); Givens v. Housewright, 786 F.2d 1378, 1380-81 (9th Cir. 1986) (information charging murder "by striking [victim] about the head and body with his fists" insufficient to charge murder by torture); Kreck v. Spalding, 721 F.2d 1229, 1232-33 (9th Cir. 1983) (indictment insufficient where it failed to specify what crime was predicate for felony murder).

Katz's claim that the dismissal of Count Six resulted in the prosecution fashioning a new theory of the case is also without merit. Count Six asserted that Katz perjured himself when he testified that "CAARCO, INC. conducted activities in Oregon since October or November 1980." Count Six is sufficiently distinguishable from Count One that dismissal of Count Six could not "mislead" Katz into believing branch office operations were no longer an issue. Count Six does not mention the phrase "branch office operations" and does not mention the Jump Off Joe Creek Road address. It is entirely possible that Katz could have conducted some sort of business activity within the state of Oregon, or that the government had insufficient evidence to prove Katz did no business in the entire state, but that the government still could prove that Katz lied about the existence of a branch office at Jump Off Joe Creek Road.

Because the indictment clearly states the charges against Katz, and because his counsel was on notice that the existence of a branch office would be at issue, there was no violation of Katz's due process rights.

AFFIRMED.