United States v. John Bruce Hubbard

DAVID A NELSON, Circuit Judge,

concurring in part and dissenting in part.

Under our circuit-precedent rule, it seems to me that United States v. Erhardt, 381 F.2d 173 (6th Cir.1967), requires us to reverse defendant Hubbard’s conviction on the three counts of the indictment (Counts V through VII) that charged him with having made false statements in violation of 18 U.S.C. § 1001 .

Erhardt involved an indictment with two counts, one of which charged the defendant with perjury ( 18 U.S.C. § 1621 ) and the other of which charged him with using a false writing in violation of 18 U.S.C. § 1001 . Only the reversal of the conviction on the § 1001 count is directly relevant here.

*704 Erhardt’s holding on the § 1001 issue was not based primarily on the two-witness rule, as I read the panel’s somewhat cryptic opinion. The panel began its discussion of the § 1001 issue by saying that “[t]he two-witness rule is not dispositive of appellant’s conviction under the count charging the introduction of a false document, since it is generally held that the two-witness rule does not apply to prosecutions under 18 U.S.C. § 1001 .” Id. at 175 (citations omitted). It is true that the panel seemed to be talking about its construction of § 1001 when it said, at the end of the opinion, that “[a] contrary construction would undermine the effectiveness of the two-witness rule and of the perjury statute itself.” Id. I do not understand this statement to represent the principal basis for the panel’s holding on the § 1001 issue, however, given the panel’s explicit ac-knowledgement that the two-witness rule applied only to perjury prosecutions under § 1621 and not to false writing prosecutions under § 1001.

The principal basis for the holding on the § 1001 issue, as I understand it, was the passage from Morgan v. United States, 309 F.2d 234, 237 (D.C.Cir.1962), cert. denied, 373 U.S. 917 , 83 S.Ct. 1306 , 10 L.Ed.2d 416 (1963), quoted by the Erhardt panel as follows:

“We are certain that neither Congress nor the Supreme Court intended the statute to include traditional trial tactics within the statutory terms ‘conceals or covers up.’ We hold only, on the authority of the Supreme Court construction, that the statute does apply to the type of action * * * which essentially involved the ‘administrative’ or ‘housekeeping’ functions, not the ‘judicial’ machinery of the court.”

In adopting this statement as the basis for its holding that “§ 1001 does not apply to the introduction of false documents as evidence in a criminal proceeding,” the Erhardt panel was saying, I believe, that § 1001 does not apply to conduct engaged in by the defendant in connection with the operation of a court’s “ ‘judicial’ machinery,” as opposed to the performance of the court’s “‘administrative’ or ‘housekeeping’ functions.”

If the introduction of false documents in court proceedings is conduct connected with the operation of the court’s judicial machinery, and not with the performance of an administrative or housekeeping function, I can see no principled basis for concluding that the making of unsworn false statements in court proceedings is not likewise connected with the operation of the judicial machinery. Accordingly, I respectfully dissent from the affirmance of defendant Hubbard’s conviction on the false statement counts of the indictment. I concur in the affirmance of the convictions on the remaining counts.