UNITED STATES OF AMERICA, APPELLEE,
v.
MILFORD E. COOK, APPELLANT

9th Cir. | 1973-12-04
No. 73-2504
489 F.2d 286 United States Court of Appeals for the Ninth Circuit (1973) Negative Treatment
Cited by 21 cases

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Holding

A perjury conviction cannot be based on answers that are literally true, even if they convey false information by implication.


Facts & Procedural History

Appellant was convicted of perjury. The conviction was affirmed, but a subsequent Supreme Court decision required reconsideration. The district court …

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Opinion of the Court
KILKENNY, Circuit Judge:

KILKENNY, Circuit Judge:

Appellant’s perjury conviction under 18 U.S.C. § 1621 was initially affirmed by a majority of the panel on August 23, 1972. Judge Ely, with his customary sagacity, dissented. Then along came Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), a decision which, in substantial part, considered the precise problems with which we are here concerned and, essentially, tracked the reasoning previously set forth by Judge Ely in this case. We recalled our judgment and remanded to the district judge for reconsideration in the light of the Supreme Court’s opinion in Bronston. After due consideration, the district judge denied appellant’s motion for a judgment of acquittal and for dismissal of the indictment. Hence, this second appeal.

After a careful analysis, we are unable to draw a meaningful distinction between the response to the ill phrased question before us,1 and the unresponsive answer to the question in Bronston. Fairly interpreted, Bronston stands for the precept that a perjury conviction cannot be based on answers which are literally true, even though false information is conveyed by implication. A precise grammatical reading of the challenged question and answer demonstrates that Cook’s answer was literally true. Consequently, Bronston controls on this issue.

Giving a reasonable interpretation to the entire record, we find no evidence to support a conviction under the second question and answer set forth in the indictment.2

The judgment of the lower court must be reversed and the indictment dismissed.

It is so ordered.

. “Q. Do you have any knowledge of law enforcement officers being paid by operators of gambling establishments?

A. No. I do not.”

. “Q. You don’t have any knowledge of anybody currently on the force who participated in shakedowns?

A. I do not.”


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