Justia Federal District Court Opinions

Clizer appeals from a judgment of conviction on two counts, I and III, of perjury committed before a grand jury. We affirm the conviction on Count I and reverse the conviction on Count III.

A. Background.

In the summer of 1970, the National Farmers Organization, of which Clizer was a member and leader, was attempting, in the area of Grant County, Washington, to raise the price of hay. Clizer was active in these efforts. NFO tried to persuade its members and non-members to withhold prorated quantities of hay from the market. This program had failed because of lack of participation by area farmers, and it was even resisted by many NFO members. Clizer had attended NFO meetings in which violence had been advocated by some NFO members as a method of forcing dissenting farmers to comply.

During the early morning hours of August 7, 1970, a large number of hay stack fires occurred in the area. One result was an investigation by a federal grand jury for the Eastern District of Washington. It was seeking to determine whether 18 U.S.C. Secs. 371, 837, 1951 and 1952 had been violated. Clizer was summoned before the grand jury and testified on November 10, 1970. On November 12, he was indicted.

B. Count I.

Count I was based on Clizer's denial that in or about February, 1970, he had fusees, dynamite, or a dynamite box in his home. Count I charged:

"Said testimony was then and there false in that in or about February, 1970 Wayne B. Clizer did have fuses, dynamite and a dynamite box in his house, all in violation of Section 1621, Title 18 United States Code."

1. Sufficiency of the evidence.

The government's chief witness, James Michel, testified that in late January, 1970, he went to Clizer's farm to inquire about obtaining a head gasket for his pick-up truck. While he was in the Clizer home, he observed three boxes stacked against a nearby wall. Two of the boxes were identical, and were painted white with red lettering. The words "flare fusees," "Diamond National," and "Ohio" appeared on these boxes. The boxes were approximately fifteen to eighteen inches long, twelve inches wide, and ten to fifteen inches high. The third box was "cardboard color[ed]" and appeared to Michel to have been waxed or greased. The words, "danger dynamite" were printed on it in red letters. This box was fifteen to eighteen inches long, fifteen to sixteen inches wide, and six to eight inches high.

Gail Clarence (Bill) Wells, a self-employed mechanic and friend of Clizer, testified that in November or December of 1969, Clizer told Wells that he wanted to remove several willow stumps on his property, and asked whether Wells knew where some dynamite could be obtained. Finally, two government witnesses described the boxes in which dynamite and fusees are commonly sold, a description that coincided with the description of the boxes in the Clizer home offered by Michel.

a. The two witness rule.

Clizer argues that this evidence is insufficient to satisfy the "two witness" or "one witness plus corroboration" rule in perjury cases. That rule has long been in effect in the federal courts. Hammer v. United States, 1926, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118; Weiler v. United States, 1945, 323 U.S. 606, 607-608, 65 S.Ct. 548, 89 L.Ed. 495.¹ If we were to apply it here, we doubt that the conviction could stand.

We need not decide that question, however, because the Congress has changed the rule. On October 15, 1970, Congress enacted Pub.L. 91-452 (Organized Crime Control Act of 1970), which added Section 1623 to Title 18 of the United States Code, and contained the following provisions:

"(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.