1 Judge Jones did not sit for oral argument due to illness, but did

participate in the opinion with the aid of the tape recordings. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 93-1045

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MILLARD F. McAFEE,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

______________________________________________________ (November 30, 1993)

Before GOLDBERG, JONES and DUHÉ, Circuit Judges. 1

DUHÉ, Circuit Judge:

Appellant, Millard F. McAfee, was convicted of one count of

wilful perjury under 18 U.S.C. § 1621 and three counts of making

irreconcilable contradictory declarations in a proceeding before or

anci llary to a court or grand jury under 18 U.S.C. § 1623(c).

McAfee appeals raising a number of issues that he argues justify

conviction reversal, di smissal of three counts, or resentencing.

We decline to grant relief on any of the grounds argued and affirm

McAfee's conviction and sentence.

BACKGROUND

McAfee owned a cattle hide processing company called Amarillo

By-Products. In 1986 and 1987, two companies that sold cattle2

hides to Amarillo By-Products separately sued Amarillo By-Products

and McAfee al leging that they stole higher quality hides and

substituted lower quality ones. These lawsuits were consolidated,

and in connection with them, the Plaintiffs' attorney, John Lovell,

deposed McAfee on June 30, 1987. On December 3-4, 1990, McAfee was

deposed again in connection with a lawsuit filed against an

individual al leged to be involved in the stolen hides scheme.

After settlem ent of the litigation, Lovell reported McAfee's

alleged incidents of perjury to the U.S. Attorney's office and the

FBI.

DISCUSSION

I. Applicability of § 1623 to Civil Depositions

An indictment under 18 U.S.C. § 1623(c) applies to statements

made in "any proceedings before or ancillary to any court or grand

jury of the United States." McAfee argues that § 1623(c) does not

apply to depositions taken pursua nt to Federal Rule of Civil

Procedure 30 because such de positions are less formal than ones

taken in criminal proceedings.

In Dunn v. United States

, 442 U.S. 100 (1979), the Supreme

Court reviewed the definition of "proceedings before or ancillary

to any court" in the context of an affidavit given in an attorney's

office. The Court concluded that § 1623(c) should not "encompass

statements made in contexts less formal than a deposition ." I d. at

113 (emphasis added). Although the case arose out of a criminal

proceeding, the Supreme Court did not differentiate between federal

civil and federal criminal proceedings. There is no real3

substantive difference between federal civil and criminal

depositions. Although a court order must be obtained to take a

criminal deposition, Federal Rule of Criminal Procedure 15 states

that subject to additional conditions provided by the court or the

rules, a "deposition shall be taken and filed in the manner

provided in civil actions." Thus, we hold that § 1623(c) does

apply to civil depositions.

II. Sufficiency of the Indictment

Bas ed on inconsistencies between McAfee's 1987 and 1990

deposition testimonies, he was indicted on three counts of perjury

under 18 U.S.C. § 1623(c). Relying on Bronston v. United States

,

409 U.S. 352 (1973), McAfee challenges the legal sufficiency of the

indictments on Counts 2, 3, and 4 on the grounds that his answers

to the questions asked were literally true. We review the

sufficiency of an indictment de novo. U nited States v. Shelton

,

937 F.2d 140, 142 (5th Cir.), cert. denied

, 112 S. Ct. 607 (1991).

An indictment is sufficient if it contains the elements of the

offense charged, fairly apprises the defendant what charge he must

be prepared to meet, and enables him to plead an acquittal or a

conviction in future prosecutions for the same offense. R ussell v.

United States

, 369 U.S. 749, 763-64 (1962); Shelton

, 937 F.2d at

142.

The issue for the Supreme Court in Bronston was whether an

evasive or unresponsive answer that was literally true, but might

have misl ed the questioner, was legally sufficient to support a

conviction for perjury under 18 U.S.C. § 1621. B ronston

, 409 U.S.4

at 356. It was undisputed that the defendant's answer was

literally true. The Court held that such an answer was not

sufficient to support a conviction under § 1621. Id. at 357.

In contrast to § 1621, the Government need not prove the

falsity of McAfee's declarations under § 1623(c); rather, the

Government must prove that "the defendant under oath has knowingly

made two or more declarations, which are inconsistent to the degree

that one of them is necessarily false." 18 U.S.C. § 1623(c). The

holding in Bronston has no application in determining the

sufficiency of an ind ictment under § 1623(c) because an offense

charged under that statute involves different elements tha n one

charged under § 1621. Accordingly, we conclude that the

indictments on Counts 2, 3, and 4 are sufficient as they meet all

the criteria set forth by the Russell Court.

III. Sufficiency of the Evidence

Convictio ns must be affirmed if the evidence, viewed in the

light most favorable to the verdict, with all reasonable inferences

an d credibility choices made in support of it, is such that any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S.

307, 319 (1979); United States v. Kim

, 884 F.2d 189, 192 (5th Cir.

1989). In making this determination, we need not exclude every

reasonable hypoth esis of innocence. U nited States v. Henry

, 849

F.2d 1534, 1536 (5t h Cir. 1988). Juries are free to use their

common sense and apply common knowledge, observation, and

experience gained in t he ordinary affairs of life when giving2 During the 1987 deposition, McAfee testified as follows:

Q . Do you know the names of any persons who have sold any

hides to the hide plant for cash?

5 effect to the inferences that may reasonably be drawn from the

evidence. U nited States v. Cruz-Valdez

, 773 F.2d 1541, 1546-47

(11th Cir. 1985) (en banc), cert. denied , 475 U.S. 1049 (1986).

Section 1623(c) sets forth its own method for pr oving false

declarations. The statute allows contradictory statements without

more to form the basis of perjury prosecution and permits the jury

to infer the falsity of a declaration from its inconsistency with

another. The Government must show that the statements are so

irreconcilable that one of the statements is "necessarily false."

See 18 U.S.C. § 1623(c). W e find the Fourth Circuit's explanation

of § 1623(c) instructive and adopt the standard set forth in United

States v. Flowers

, 813 F.2d 1320 (4th Cir. 1987). In F lowers

, the

court concluded that section 1623 (c) "requires a variance in

testimony that extends beyond mere vaguene s s, uncertainty, or

equivocality. Even though two declarations may differ from one

another, the § 1623(c) standard is not met unless, taking them into

context, they are so different that if one is true there is no way

the other can also be true." Id. at 1324; see also United States

v. Porter

, 994 F.2d 470 (8th Cir. 1993). Given this standard under

§ 1623(c), we conclude that a rational trier of fact could find

McAfee guilty on each count.

A. Count 2

Count 2 involves McAfee's testimony regarding an entity called

"Southwest Exchange." 2 Taking the testimony in context, a rationalA. Um, Chester Peterson, he always wants cash; and there's a

guy out of El Paso that we call "Southwest Exchange", and

he always wants cash. He's a Mexican man; I don't know

anything else about him.

Q. What is the name of this guy from El Paso?

A. I don't know.

During the 1990 deposition, testified that "Southwest Exchange"

was Warren Pugh. He testified as follows:

Q. Looking at check number 13162, where did the money go to

Southwest Exchange, the $1,770?

A. That would have went to Warren Pugh.

. . . Q. Let's look at this next Southwest Exchange check, it's

got an exhibit sticker Deposi tion Exhibit 26 to your

deposition, previous deposition, dated June 26,

1985, made out to Southwest Exchange for $750. Who

would have got that check?

A. Warren Pugh.

. . . Q. And Southwest Exchange was Warren Pugh, so when you wrote

it to --

A. That's right.

Q. -- Southwest Exchange you knew it was Warren Pugh?

A. Knew it was Warren Pugh.

Q. Why didn't you tell us that when we asked you who

Southwest Exchange was in the Amarillo case?

A. I don't remember.

Q. Did you just not want us to know that Warren was involved?

A. I just -- yeah, you know, I wasn't -- I'm not cooperative

today, you know, I get ornery in a minute. He gave me a

lesson here at noon to be nice.

. . . Q. And you knew who Southwest Exchange was?

A. Yes, sir.

Q. We've been through this before once but do you recall me

taking your deposition June 30th and July 1st, 1987?

A. Yes, sir, I guess so.

. . . Q. Now, why is it that in June and July of 1987 you testified

under oath that Southwest Exchange was a Mexican guy out

of El Paso but today you're telling us it's Warren Pugh

and has always been?

A. That's right.

Q. Well, which is the truth?

A. It's Warren Pugh. I didn't want to tell you.

Q. So you just lied to me?

A. That's right. I'm not going to help you.

. . . Q. Well, Mac, if you're going to lie to us when it suits you

6or when you don't like the question, how are we going to

know when to believe what you say?

A. You don't.

3 During the 1987 deposition, McAfee testified as follows:

Q. Have you ever stored, at the Amarillo By-Products

facility, any hides that you have purchased for your own

account?

A. No, I haven't.

Q. Have you ever stored anywhere in your warehouse facility,

hides that you purchased for your own account?

A. No.

During the 1990 deposition, the following exchange took place:

Q. Yes. When I asked you if you stored any of your hides at

Amarillo By-Products' hide house, you told me you hadn't.

Now, were you being evasive then?

A. Yes, sir.

Q. So what you told me then wasn't correct but what you're

telling me now is correct that you did, in fact, have

your own personal bull hides in there?

A. Little dabs of them, yes, sir.

Q. Why are you telling me this -- the truth now when you

didn't before.

7 trier of fact could have found that the testimonies were so

different that if one statement was true, the other must be false.

The jury could infer that McAfee was not confused about the

"Southwest Exchange" referred to during the 1990 deposition,

especially when McAfee was confronted with the inconsistencies of

his 1987 statement. Further, McAfee's testimony does not manifest

vagueness, uncertainty, or evasiveness. His admission in 1990 that

he lied in 1987 makes such a contention disingenuous. C f. Flowers

,

813 F.2d at 1325 (concluding that defendant's m anifestations of

uncertainty and forgetfulness corroborates claims of memory lapse).

B. Count 3

Count 3 involved testimony regarding McAfee's storage of

pers onal bull hides. 3 McAfee argues that terms used in theA. On the Chester Peterson deal, I was trying to protect

Garth and his father.

Q. Okay. What about your bull hides?

A. I didn't think that was any of your business.

4 The testimony in 1987 by McAfee was:

Q. I would like to first ask you if you know a person by the

name of Chester Petersen [sic].

A. No, I've never met him.

8 questions were different and beca use there was no time frame

mentioned in 1990, his position could have changed as to the

storing of hides. The questioning in 1990, however, involved a

recounting of the testimony McAfee gave in 1987. Further on

December 3, 1990, the first day of the deposition testimony, McAfee

had been confronted with the inconsistencies in his 1987 testimony.

A jury could reasonably find that McAfee was not confused as to the

time frame or the meaning of the terms used during the questioning

on December 4.

Alternatively, McAfee argues that he recanted his 1987

testimony the first day of the 1990 deposition. A recantation of

false testimony will be a bar to prosecution if it is made "in the

same cont inuous court or grand jury proceeding in which a

declaration is made." 18 U.S.C. § 1623(d). We conclude that the

district court did n ot err in adopting the magistrate judge's

finding that the 1990 deposition was not part of the same

proceeding in which the false statement was made. Accordingly, any

"recantation" made by McAfee in 1990 is not a bar to prosecution.

C. Count 4

Count 4 involves testimony regarding the identity of a

"Chester Peterson." 4 Again, McAfee argues that the same questionsQ. Have you ever heard of him?

A. Yes.

. . . Q. Where have you heard of Chester Petersen [sic]?

A. Oh, he's a guy that brings some hides in occasionally.

He's not very regular.

Q. Do you know where he has his business or where he is from?

A. Huh-uh. No, I don't.

. . . Q. Do you know the name of any company he is affiliated with?

A. No.

Q. He doesn't have a business name or a corporation he is

involved with, or --

A. Not that I know --

Q. -- an associate?

A. Individual.

In 1990 the testimony was:

Q. Who's Chester Peterson?

A. Chester Peterson, was -- he was a guy that worked for

Garth, some kind of mechanic, carpenter or something.

Q. And how do you come to find that out?

A. I'm really not sure who he was. I never met him. Garth

had us make checks to him periodically.

. . . Q. Going back to July 30th, 1987 deposition, I asked you

about Chester Peterson . . .

. . . Q. Well, that's not really correct, is it, if Chester

Peterson was Garth or somebody working for Garth , you knew where his business was, didn't you?

A. Chester Peterson was a name that Garth gave us to pay for

those calf skins, I don't even remember this here.

Q. Why didn't -- in 1987, why didn't you tell me that when

you were asked?

A. I didn't want to answer it.

Q. Question on line 13 on page 5: Do you know the name of

any company he is affiliated with?

A. No.

Q. Well, today you just told us Chester Peterson is

affiliated with Hereford Bi-Products.

A. What I'm telling you today is the truth.

Q. So what you told me then wasn't?

A. Those were evasive answers.

9 were not asked each time. The jury, however, could reasonably find

from the testimony as a whole that McAfee knew in 1990 that the

Chester Peterson being asked about was the same Chester Peterson he10

testified about in 1987. McAfee even testified at trial that he

did not say who Chester P eterson was in 1987. Further, his

testimony cannot be characterized as evasive, vague, or uncertain

because many of his answers were "yes" and "no." S ee, e.g.

, United

States v. Cuesta , 597 F.2d 903, 920 (5th Cir.), cert. denied , 444

U.S. 964 (1979).

IV. Failure to Give Recantation Instruction

On Count 1, McAfee was charged under 18 U.S.C. § 1621 for

falsely testifying in his 1987 deposition that he split proceeds

from checks with another. McAfee contends that the district court

abused its discretion in failing to give a jury charge regarding

recantation of his false 1987 testimony.

The trial court has broad discretion to formulate jury

instructions, "as long as they are fundamentally accurate and not

misleading." G ates v. Shell Offshore, Inc.

, 881 F.2d 215, 218 (5th

Cir. 1989), cert. den ied , 494 U.S. 1017 (1990). A trial judge's

refusal to deliver a requested instruction is reversible error if:

(1) the instruction is substantially correct; (2) it is not

substantially covered in the charge actually given to the jury; and

(3) it concerns an important point in the trial so that the failure

to give it seriously impairs a defendant's ability to present a

given defense effectively. U nited States v. Hudson

, 982 F.2d 160,

162 (5th Cir.), cert. denied , 62 U.S.L.W. 3245 (1993).

Recantation is not a defense to an action brought under 18

U.S.C. § 1621. U nited States v. Norris

, 300 U.S. 564, 573-74

(1937); United States v. Denison , 663 F.2d 611, 616 n.6 (5th Cir.11

1981). Recantation may have a bearing on whether an accused

perjurer intended to commit the crime. S ee Beckanstin v. United

S tates

, 232 F.2d 1, 4 (5th Cir. 1956). The district court's

ins truction, however, adequately covered the relevant issue of

intent. Further, McAfee's counsel, in both his opening and

closing, called the jury's attention to McAfee's recantation of his

1987 testimony. Thus, the district court did not abuse its

discretion in denying McAfee's requested recantation instruction.

V. Materiality of Statements in Count 4

Under § 1623(c), the Government must prove that " each

declaration was material to the point in question." Materiality is

a question of law. U nited States v. Salinas

, 923 F.2d 339, 340

(5th Cir. 1991). McAfee contends that the district court erred in

concluding as a matter of law that his statements alleged in Count

4 were material.

We review the district court's materiality finding de novo.

Id. Testimony is material if it "would have the natural effect or

tendency to influence" the decision of the tribunal to which it is

addressed. U nited States v. Gremillion

, 464 F.2d 901, 905 (5th

Cir.), cert. denied , 409 U.S. 1085 (1972). We are unconvinced by

McAfee's attempt to extend the definition of tribunal, an obvious

reference to the court, to include the questioning attorney. At

issue in the civil cases were numerous racketeering activities, one

of which was the writing of checks to phantom entitie s to remove

cash from Amarillo By-Products to finance commercial bribes.

Chester Peterson was one of the n ames on the checks. McAfee's12

sta tements were relevant to determining which checks to Chester

Peterson were valid and which were used as a phantom entity. Thus,

each declaration was relevant to a point in question, and the

district court did not err in determining that McAfee's statements

were material.

VI. Cross-examination of John Lovell

McAfee argues that the district court abused its discretion in

limiting the cross-examination of John Lovell. McAfee alleges that

Garth Merrick, the president o f a company represented by John

Lovell, made a $20,000 loan to an individual who had previously

been deposed in one of the civil cases. McAfee also alleges that

Lovell instructed an investigator to supply a listening device to

a non-party to tape record a meeting of individuals who were

witnesses, but not parties, to the civil suits. The investigator

also recorded a telephone c onversation with McAfee. McAfee

contends that he should have been able to cross-examine Lovell on

these points.

We review the exclusion of evidence only for an abuse of

discretion. U nited States v. Eakes

, 783 F.2d 499, 506-507 (5th

Cir.), cert. denied

, 477 U.S. 906 (1986). With respect to the

alleged $20,000 loan by Garth Merrick, the record shows that Lovell

knew nothing about the loan prior to its occu rrence, and when he

did discover it, he brought it out during the direct examination of

Merrick. It is the practice of this Circuit to exclude highly

prejudicial evidence that attempts to taint a witness's character

through guilt by association. S ee United States v. Ochoa

, 609 F.2d5 Because in each count one statement occurred prior to the

effective date of the sentencing guidelines, and one occurred after

the guidelines were adopt ed, the count would be treated as

preguideline if only the preguidelines statement was false. On the

other hand, if the post-guideline statement was false or if both

s tatements were false, the count would be treated as postguideline.

13 198, 205 (5th Cir. 1980).

Under 18 U.S.C. § 2511(2)(d), an individual is permitted to

tape record so long as one of the parties to the communication has

given prior consent to such interception. Because the party tape

recording the meeting was present, nothing illegal occurred.

Moreover, there is no evidence in the record that reflects that an

individual at the meeting would become a party in a future lawsuit

or that Lovell authorized the taping of the conversa tion with

McAfee. The district court did not abuse its discretion in holding

that cross-examination on those issues would have little probative

value and should be excluded.

VII. Sentencing on Count 2

Finally, McAfee contends that the district court's application

of the sentencing guidelines to Count 2 of the indictment was

improper. 5 The district court found by a preponderance of the

evidence that the 1990 statement alleged in Count 2 was false and

s entenced McAfee on Count 2 under the guidelines. We give due

regard to the opportunity of the trial court to judge the

credibility of the witnesses and shall accept the findings of fact

of the trial court unless they are clearly erroneous. 18 U.S.C. §

3742(e); United States v. Medina-Saldana

, 911 F.2d 1023, 1024 (5th

Cir. 1990).14

The record reflects substantial evidence th at McAfee's 1990

testimony regarding "Southwes t Exchange" was false. Warren Pugh

testified at trial that although he did use the d/b/a "Southwest

Exchange," he was not the "Southwest Exchange" denoted on the

checks questi oned about in the deposition. Further, Richard

Jerome, a fellow owner of Amarillo By-Products, testified that

"Southwest Exchange" was really McAfee, the president of Amarillo

By-Product s, David Kennedy, and himself. Given this testimony,

together with the other evidence, the district court was not

clearly erroneous in finding that McAfee's 1990 testimony was

false.

CONCLUSION

For the foregoing reasons, Mcafee's conviction and sentence

are affirmed.

AFFIRMED.