In a prosecution for violation of what is now 18 U.S.C. § 242,
arising out of the alleged beating of persons to coerce
confessions, and for conspiracy against Fourteenth Amendment rights
of citizens in alleged violation of what is now 18 U.S.C. § 241,
appellee Williams was convicted and the other three appellees were
acquitted of the substantive offenses, and the jury was unable to
agree on a verdict on the conspiracy counts. Appellees were
reindicted for the conspiracy and were convicted, but, on appeal,
the Court of Appeals reversed and ordered the indictment quashed on
the ground that § 241 does not embrace Fourteenth Amendment rights.
An indictment of appellees under 18 U.S.C. § 1621 for perjury in
the first trial, charging Williams with falsely testifying that he
had not beaten the victims, and charging the other appellees with
falsely testifying that they had not seen Williams beating the
victims, was dismissed by the District Court.
Held:
1. The conviction of Williams on the charge of beating the
victims did not bar, as double jeopardy, his prosecution for
perjury in testifying falsely that he had not beaten them. P.
341 U. S.
62.
2. That the other appellees had been acquitted of the
substantive offense of aiding and abetting Williams in abusing the
victims did not bar, on the ground of
res judicata, their
subsequent prosecution for perjury in testifying that they had not
seen Williams beating them.
Sealfon v. United States,
332 U. S. 575,
distinguished. Pp.
341 U. S.
63-65.
3. Testifying falsely in the first trial on the conspiracy
charges constituted perjury under 18 U.S.C. § 1621 even though, on
appeal, it was determined that the later indictment for conspiracy
was defective. Pp.
341 U. S.
65-69.
(a) In the trial of the first conspiracy charges, the District
Court had jurisdiction of the subject matter (an alleged violation
of a federal conspiracy statute) and of the parties, and therefore
was a "competent tribunal" within the requirement of the perjury
statute. Pp.
341 U. S.
65-66.
Page 341 U. S. 59
(b) The circumstance that ultimately it is determined on appeal
that the indictment is defective does not affect the jurisdiction
of the trial court to determine the case presented by the
indictment. P.
341 U. S.
66.
(c) Where the court in the proceedings in which the alleged
perjury occurred had jurisdiction to render judgment on the merits
in those proceedings, defects developed
dehors the record
or in the procedure, sufficient to invalidate any judgment on
review, do not bar a conviction for perjury. Pp.
341 U. S.
67-69.
93 F. Supp. 922, reversed.
The District Court dismissed an indictment of appellees for
perjury under 18 U.S.C. § 1621. 93 F. Supp. 922. On direct appeal
to this Court under 18 U.S.C. § 3731,
reversed, p.
341 U. S.
69.
MR. JUSTICE REED delivered the opinion of the Court.
The United States appeals from an order of the United States
District Court for the Southern District of Florida dismissing an
indictment against the appellees here. 18 U.S.C. § 3731. That
indictment, 18 U.S.C. § 1621, charged each appellee with the crime
of perjury while testifying in a prior criminal trial. The former
trial was on charges of using "third degree" methods to force
confessions from prisoners.
In that prior trial six defendants -- the four appellees and two
others not here involved -- were prosecuted under an indictment,
four counts of which charged them, 18
Page 341 U. S. 60
U.S.C. § 241, with conspiring
"to injure, oppress, threaten and intimidate [under color of
state law, four citizens of the United States] in the free exercise
and enjoyment of the rights and privileges secured . . . and
protected by the Fourteenth Amendment. . . . [
Footnote 1]"
The other four counts of the indictment, 18 U.S.C. § 242,
charged that Williams, Bombaci, Ford, and another not here
involved, as police officers acting under state laws, committed
substantive crimes by subjecting four persons to deprivation of
certain "of the rights, privileges and immunities secured . . . and
protected by the Fourteenth Amendment," [
Footnote 2] and that Yuhas and another willfully aided
and abetted in the commission of these substantive offenses.
In the prior trial, during which this indictment charges perjury
was committed, Williams was found guilty by a jury of the
substantive offenses. His conviction is affirmed today.
See No. 365,
Williams v. United States, post, p.
341 U. S. 97. The
jury found Bombaci and Ford not guilty of these offenses and Yuhas
not guilty of aiding and abetting in the commission of these
offenses. However, the jury was unable to agree on a verdict as to
the four counts which charged conspiracy. Later, a new
indictment
Page 341 U. S. 61
was presented which framed once again the conspiracy charges,
and this time the appellees in this case were found guilty. The
perjury charges not before us are not based on the proceedings in
the second conspiracy trial. On appeal from the conviction in the
second trial, and before the trial for perjury, the Court of
Appeals quashed the conspiracy indictment and reversed. So far as
here important, the basis for the reversal was that § 241 did not
apply to the general rights extended to all persons by the
Fourteenth Amendment. 179 F.2d 644, 648. This Court today affirms
the Court of Appeals. No. 26,
United States v. Williams,
decided today,
post, p.
341 U. S. 70.
In dismissing the indictment in the case now before us, the
District Court held, 93 F. Supp. 922, that, since Williams had been
convicted in the first trial of the substantive counts based upon
his beating certain victims, to convict Williams of perjury for
testifying that he had not beaten the victims -- which is the gist
of the perjury indictment against Williams -- would constitute
double jeopardy.
The District Court further reasoned that the jury's finding that
Yuhas, Ford, and Bombaci had not been guilty of the substantive
offenses in the first trial was a determination of their innocence
"whether as principals or accessories," and therefore none of the
three could be found guilty of the charge made by the perjury
indictment: testifying falsely that they had not seen or observed
Williams beating the victims.
Finally, the District Court reasoned that, since the later
indictment which repeated the conspiracy charges had been quashed
on appeal, there was no jurisdiction to try the defendants on the
conspiracy counts in the first criminal trial, and therefore the
perjury counts based on the conspiracy counts in the prior case
were bad.
The United States, in its appeal, urges that the District Court
erred in all three grounds for quashing the perjury
Page 341 U. S. 62
indictment. The federal perjury statute, 18 U.S.C. § 1621, reads
as follows:
"Whoever, having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify,
declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed, is true,
willfully and contrary to such oath states or subscribes any
material matter which he does not believe to be true, is guilty of
perjury, and shall, except as otherwise expressly provided by law,
be fined not more than $2,000 or imprisoned not more than five
years, or both."
Its terms cover parties as well as other witnesses. If any
incident or judgment of a former trial bars a prosecution for
perjury under § 1621, that effect must be imported into the perjury
trial by a legal rule distinct from the statute.
I.
Former Jeopardy. -- The conviction of Williams at a
former trial, for beating certain victims is not former or double
jeopardy. Obviously perjury at a former trial is not the same
offense as the substantive offense, under 18 U.S.C. § 242, of
depriving a person of constitutional rights under color of law. "It
is only an identity of offenses which is fatal."
Pinkerton v.
United States, 328 U. S. 640,
328 U. S. 644,
and cases cited. The trial court does not cite any authority for a
contrary position, and appellees concede that the ground for
dismissal cannot be sustained. It would be no service to the
administration of justice to enlarge the conception of former
jeopardy to afford a defendant immunity from prosecution for
perjury while giving testimony in his own defense. Appellees' brief
treats Williams' conviction as grounds for estoppel or
res
judicata.
Page 341 U. S. 63
II.
Res Judicata. -- Though former jeopardy by trial
for the substantive crimes is not available as a defense against
this perjury indictment, it could be that acquittal on the
substantive charges would operate "to conclude those matters in
issue which the verdict determined though the offenses be
different."
Sealfon v. United States, 332 U.
S. 575,
332 U. S.
578.
Petitioner in the
Sealfon case was acquitted of a
conspiracy charge of defrauding the United States of its
governmental function of conserving and rationing sugar. One item
of evidence was a letter to an alleged co-conspirator said to
furnish a basis for getting sugar illegally. On another indictment
for uttering false invoices for the same sugar involved in the
conspiracy, Sealfon moved to quash on the ground of
res
judicata. The motion was denied, and Sealfon was convicted.
The test of the soundness of the motion was whether the "verdict in
the conspiracy trial was a determination favorable to petitioner of
the facts essential to conviction of the substantive offense." 332
U.S. at
332 U. S. 578.
We thought the acquittal of conspiracy determined that Sealfon did
not conspire with Greenberg, the only alleged co-conspirator.
Admittedly, Sealfon wrote a certain letter.
"As we read the records of the two trials, petitioner could be
convicted of either offense only on proof that he wrote the letter
pursuant to an agreement with Greenberg."
332 U.S. at
332 U. S. 580.
The core of the two cases was the same. As the first trial cleared
him of sending the letter pursuant to a corrupt agreement, that
fact was
res judicata. A like basis for
res
judicata does not exist here.
Ford and Bombaci were acquitted in the former trial on all
counts charging substantive crimes. Yuhas was charged and acquitted
of aiding and abetting. We shall assume with the District Court
that Ford and Bombaci were acquitted also of that charge. 18 U.S.C.
§ 2(a). In essence the first prosecution was for arrest and
abuse
Page 341 U. S. 64
through beatings by police officers Williams, Ford and Bombaci,
acting under the laws of Florida, with Yuhas aiding and abetting.
The perjury charged in this present indictment, allegedly committed
at that former trial in which all except Williams were acquitted of
the substantive offenses, is that the three acquitted men testified
falsely that they had not seen Williams abuse the prisoner. The
trial court thought that
"Whether they had seen or observed Williams beat the victims was
a part and parcel of the charge against them in the substantive
counts"
of abuse and aiding and abetting the abuse.
Ehrlich v.
United States, 145 F.2d 693, was cited. [
Footnote 3] 93 F. Supp. 922.
We do not think the facts bring any of these defendants within
the protection of
res judicata, as recently expounded in
Sealfon. Aiding and abetting means to assist the
perpetrator of the crime. [
Footnote
4] The substantive former
Page 341 U. S. 65
charge against appellees here was abuse of a prisoner by police
officers under color of state law. An acquittal of such a crime or
of aiding and abetting was certainly not a determination that Ford,
Bombaci, or Yuhas did not see Williams assaulting the
prisoners.
III. The counts in this indictment which charge that perjury was
committed in the first conspiracy trial rely on the same facts to
prove the perjury as are detailed above to support the counts of
the indictment which charge perjury in the trial of the substantive
counts. The trial court in the present case dismissed the counts
for perjury committed in the first trial of the conspiracy charge
for a different reason than that it gave for dismissal of the other
perjury counts. In the first trial, no verdict was reached by the
jury on the conspiracy counts. The trial court in this case,
however, relying upon the determination of the Fifth Circuit in the
second conspiracy trial,
Williams v. United States, 179
F.2d 644 (now affirmed here, No. 26,
United States v. Williams,
post, p.
341 U. S. 70,
decided today), ruled that the former conspiracy indictment did not
state an offense, and consequently perjury could not have been
committed. The Court said it reached this conclusion because the
court that tried the conspiracy indictment had "no jurisdiction."
Evidently, the trial court was led to this conclusion by the
requirement of the perjury statute, 18 U.S.C. § 1621, that there
must be a "competent tribunal" before a false statement in
perjurious.
The charge in the conspiracy counts that the appellees, police
officers and others, conspired to abuse a prisoner in their hands
was based on 18 U.S.C. § 241. The District Court had jurisdiction
of offenses against the laws of
Page 341 U. S. 66
the United States. 18 U.S.C. § 3231. [
Footnote 5] Hence, it had jurisdiction of the subject
matter, to-wit, an alleged violation of a federal conspiracy
statute, and, of course, of the persons charged. This made the
trial take place before "a competent tribunal": a court authorized
to render judgment on the indictment. The circumstance that
ultimately it is determined on appeal that the indictment is
defective does not affect the jurisdiction of the trial court to
determine the case presented by the indictment.
This was held as to a civil proceeding in
Bell v. Hood,
327 U. S. 678. In
that case, a suit in a federal district court for damages against
federal officers for violation of plaintiff's rights to due process
in arrest and freedom from unreasonable search and seizure under
the Fourth and Fifth Amendments was held to give the district court
jurisdiction sufficient to call for judgment on the merits, even
though that judgment should dismiss the complaint for failure to
state a cause of action. 327 U.S. at
327 U. S. 682.
"Jurisdiction is the power to decide a justiciable controversy, and
includes questions of law, as well as of fact."
Binderup v.
Pathe Exchange, 263 U. S. 291,
263 U. S. 305.
Even the unconstitutionality of the statute under which the
proceeding is brought does not oust a court of jurisdiction.
Chicot County District v. Baxter State Bank, 308 U.
S. 371,
308 U. S. 376.
See also Stoll v. Gottlieb, 305 U.
S. 165;
M'Cormick v.
Sullivant, 10 Wheat. 192.
It is true that there are certain essential facts that must
exist to give any power to a court.
Noble v. Union River
Logging R. Co., 147 U. S. 165,
147 U. S. 173.
As the existence of those facts are so plainly necessary,
e.g., process, examples of decisions are rare. Absence of
such facts makes the
Page 341 U. S. 67
proceedings a nullity. Such a case was
Kalb v.
Feuerstein, 308 U. S. 433. We
there held that the Federal Government, in the exercise of its
plenary power over bankruptcy, had ousted state courts of all
independent power over farmer bankrupts. Therefore any subsequent
orders in the state courts were void. 308 U.S. at
308 U. S.
440-444. In a criminal case, we have said that a person
convicted by a court without jurisdiction over the place of the
crime could be released from restraint by habeas corpus where there
were exceptional circumstances such as a conflict of jurisdiction
between the state and the Federal Government.
Bowen v.
Johnston, 306 U. S. 19,
306 U. S. 27.
The kind of judicial controversies presented for adjudication in
the cases cited above in this paragraph were not cognizable by the
respective courts. It is absence of such basic facts of
jurisdiction that has led courts to say that false testimony in the
proceedings is not punishable as perjury. Where perjury charges
arise from alleged false statements by the defendant in former
trials, whether, in that former trial he was also a defendant or
only a witness, the same distinctions appear. Where the court of
the first trial had no jurisdiction of the kind of judicial
controversies presented for adjudication, a number of courts have
held that false testimony in those proceedings is not punishable as
perjury. [
Footnote 6] So, in a
case where the court had general jurisdiction of the kind of
prosecution, larceny less than felony, but not of the particular
proceeding, larceny as a felony, there was no perjury.
Johnson
v. State, 58 Ga. 397. But where the court in the trial where
the alleged perjury occurred had jurisdiction to render judgment on
the merits in those proceedings, defects developed
dehors
the record [
Footnote 7] or in
the procedure, sufficient to invalidate any
Page 341 U. S. 68
judgment on review, [
Footnote
8] do not make a subsequent conviction for perjury in the
former trial impossible.
One can find inconsistent and indeed conflicting rulings among
the cases, even from the same jurisdictions, perhaps attributable
to the use of the word "jurisdiction" in the heterogeneous
situations that occur. The line is narrow and often wavering
between errors in the proceedings and lack of jurisdiction.
Wharton, Criminal Law (12th ed.), § 1538. Here, however, we have a
federal statute enacted in an effort to keep the course of justice
free from the pollution of perjury. We have a court empowered to
take cognizance of the crime of perjury and decide the issues under
that statute. The effect of the alleged false testimony could not
result in a miscarriage of justice in this case, but the federal
statute against perjury is not directed so much at its effects as
at its perpetration -- at the probable wrong done the
administration of justice by false testimony. That statute has led
federal courts to uphold charges of perjury despite arguments that
the federal court at the trial affected by the perjury could not
enter a valid judgment due to lack of diversity jurisdiction,
[
Footnote 9] or due to the
unconstitutionality of the statute out of which the perjury
proceedings arose. [
Footnote
10]
Where a federal court has power, as here, to proceed to a
determination on the merits, that is jurisdiction of the
proceedings. The District Court has such jurisdiction. [
Footnote 11] Though the trial court
or an appellate court may
Page 341 U. S. 69
conclude that the statute is wholly unconstitutional, or that
the facts stated in the indictment do not constitute a crime or are
not proven, it has proceeded with jurisdiction and false testimony
before it under oath is perjury.
Reversed.
MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER dissent.
[
Footnote 1]
The indictment specified the following "rights and
privileges":
". . . the right and privilege not to be deprived of liberty
without due process of law, the right and privilege to be secure in
his person while in the custody of the Florida, the right and
privilege not to be subjected to punishment without due process of
law, the right and privilege to be immune, while in the custody of
persons acting under color of the laws of the Florida, from illegal
assault and battery by any person exercising the authority of said
State, and the right and privilege to be tried by due process of
law and if found guilty to be sentenced and punished in accordance
with the laws of the Florida. . . ."
[
Footnote 2]
The specific "rights and privileges" are the same as those
listed in
note 1
[
Footnote 3]
In the
Ehrlich case an acquittal of a charge of
violation of the Price Control Act, 50 U.S.C. App. § 901
et
seq., by collecting more than the sale bills for meat showed
was held to bar a perjury charge that Ehrlich had sworn falsely
that he had not received any payment for any sale at a price in
excess of that shown on the sales slips. It was held that the plea
in bar of the second prosecution was good on the ground that the
allegedly perjurious words were the basis of the former crime
charged, and therefore the acquittal barred the perjury
prosecution.
A number of other cases are cited in appellees' brief. They
support the rule that an acquittal on facts essential to conviction
on the subsequent charge bars a later prosecution. None deal with
the situation of Williams, who was convicted on the prior trial of
abuse under 18 U.S.C. § 242. He can, of course, claim no bar
against prosecution on a theory of estoppel, since the facts in the
former trial, if applicable to the subsequent one, were found
against him. The cases are:
United States v. De Angelo,
138 F.2d 466,
United States v. Butler, 38 F. 498;
Chitwood v. United States, 178 F. 442;
Allen v. United
States, 194 F. 664;
Youngblood v. United States, 266
F. 795;
Kuskulis v. United States, 37 F.2d 241.
[
Footnote 4]
To be present at a crime is not evidence of guilt as an aider or
abettor.
Hicks v. United States, 150 U.
S. 442,
150 U. S. 447,
150 U. S. 450.
Cf. United States v. Di Re, 332 U.
S. 581,
332 U. S. 587.
The instructions at the trial of the substantive crimes followed
this rule.
E.g.,
"I can't make it too emphatic to you, gentlemen, that mere
presence when a crime is committed is, of course, not sufficient to
render one guilty as aider or abettor."
[
Footnote 5]
"The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States."
"Nothing in this title shall be held to take away or impair the
jurisdiction of the courts of the several States under the laws
thereof."
[
Footnote 6]
E.g., Collins v. State, 78 Ala. 433;
Paine's
Case, Yelv. 111, 80 Eng.Rep. 76 (1792).
[
Footnote 7]
82 A.L.R. 1138.
[
Footnote 8]
82 A.L.R. 1137.
[
Footnote 9]
West v. United States, 258 F. 413, 416.
[
Footnote 10]
Boehm v. United States, 123 F.2d 791, 809.
Cf. Kay
v. United States, 303 U. S. 1,
303 U. S. 6;
Howat v. Kansas, 258 U. S. 181,
258 U. S. 186,
258 U. S. 189;
Blair v. United States, 250 U. S. 273;
United States v. United Mine Workers, 330 U.
S. 258,
330 U. S.
289-295.
[
Footnote 11]
The validity of § 241 has been repeatedly upheld.
E.g.,
United States v. Mosley, 238 U. S. 383,
238 U. S. 386;
Logan v. United States, 144 U. S. 263,
144 U. S. 293;
Ex parte Yarbrough, 110 U. S. 651,
110 U. S. 667.