United States v. George Raymond Dipp

581 F.2d 1323 UNITED STATES of America, Plaintiff-Appellee, v. George Raymond DIPP, Defendant-Appellant. No. 77-2730. United States Court of Appeals, Ninth Circuit. July 31, 1978. Rehearing and Rehearing En Banc Denied Sept. 19, 1978. Harry E. Claiborne, Las Vegas, Nev., for defendant-appellant. Raymond D. Pike, Asst. U. S. Atty., Reno, Nev., for plaintiff-appellee. Appeal From the United States District Court For the District of Nevada. Before HUFSTEDLER, SNEED and KENNEDY, Circuit Judges. SNEED, Circuit Judge: 1 Dipp appeals from his conviction for perjury in violation of 18 U.S.C. § 1623 . The perjury charge arose out of testimony he gave in his own behalf at an earlier trial in which he was accused of conspiracy to smuggle drugs into the United States. Appellant was acquitted of the conspiracy charge. On this appeal we must decide, first, whether the perjury prosecution was barred either by the doctrine of collateral estoppel or by the prosecutorial misconduct and, second, if not so barred, whether there was sufficient evidence introduced at the perjury trial to establish the materiality of the allegedly false testimony in the initial trial. We find no bar to the perjury…

Dipp appeals from his conviction for perjury in violation of 18 U.S.C. § 1623 . The perjury charge arose out of testimony he gave in his own behalf at an earlier trial in which he was' accused of conspiracy to smuggle drugs into the United States. Appellant was acquitted of the conspiracy charge. On this appeal we must decide, first, whether the perjury prosecution was barred either by the doctrine of collateral estoppel or by the prosecutorial misconduct and, second, if not so barred, whether there was sufficient evidence introduced at the perjury trial to establish the materiality of the allegedly false testimony in the initial trial. We find no bar to the perjury prosecution and that the evidence was sufficient to establish materiality. We, therefore, affirm the conviction.

I.

Facts.

Dipp was indicted on charges of conspiring to smuggle controlled substances into the United States from Mexico. His alleged co-conspirators, Donald Johnson and Timothy Melancon, testified against him at trial. Dipp was alleged to have provided financial support for the smuggling operation, while Johnson and Melancon actually flew the drugs into the United States. Dipp’s defense at trial was that…

I agree with my Brothers that double jeopardy does not bar Dipp’s prosecution for perjury following his acquittal of conspiracy because the question whether Dipp met Finefrock more than once was not necessarily decided by the jury when it acquitted him. 1 I also agree that Dipp’s testimo *1329 ny at his prior trial was sufficiently material to support a perjury charge. Finally, I agree with the conclusion that the record on direct appeal is insufficient to establish that governmental misconduct foreclosed the perjury trial. I do not join the majority opinion, however, because it implies that there may not be substance in Dipp’s claims that governmental misconduct tainted the perjury trial and that an appearance of vindictiveness also infected the second trial.

Finefrock’s meeting with Dipp on December 15, 1975, and Finefrock’s debriefing statement to DEA agents in El Paso were both taped. In the first trial, the prosecuting attorney represented to the court that no writings existed with respect to Dipp, other than the prosecutor’s own notes taken during an interview with him. 2 Throughout the conspiracy trial, DEA Agent Cameron sat with the prosecuting attorney at the counsel…