United States v. Richard A. Hernandez

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and HUFSTED-LER, Circuit Judges, and KING, District Judge.

The issue on this appeal is whether double jeopardy foreclosed the Government from prosecuting Hernandez for perjury ( 18 U.S.C. § 1623 ) based upon his alleged false testimony in his prior trial charging him with violating 18 U.S.C. § 1001 , in which he was acquitted. Applying Ashe v. Swenson (1970) 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 , we hold that Hernandez’ prosecution for perjury was barred by double jeopardy.

Hernandez’ first trial was based upon an indictment returned on May 5, 1976, charging him with multiple violations of 18 U.S.C. § 1001 (making false statements to the United States Department of Commerce). Hernandez had a contract with the Department of Commerce to provide legal services to minority businessmen. The indictment charged that Hernandez over-billed the Government for these services because he had in reality spent “substantially less” time providing legal services than he represented in his billings. The perjury prosecution grows out of Hernandez’ testimony at the first trial…