United States v. Joann Wiggan

BACKGROUND

Joann Wiggan was a facilities technician at SBC Communications (“SBC”). In that capacity, she had the technical skill and opportunity to implement surreptitious wiretaps. Agents of the Federal Bureau of Investigation interviewed her on October 18, 2004, in connection with an investigation into a wiretapping conspiracy led by Anthony Pellicano. That investigation had revealed that Pellicano’s source for the acquisition and implementation of wiretaps was Ray Turner, a former SBC employee who had retired in 2001. By examining Turner’s telephone records, the FBI determined that he had contacted SBC employees Michelle UNITED STATES V . WIGGAN

Malkin, Teresa Wright, and Wiggan. The FBI suspected that those individuals were helping Turner implement the wiretaps, and Turner’s telephone records indicated that he had made a number of calls to telephone number 323-889- 0813, which was a voicemail account at SBC assigned exclusively to Wiggan.

During that October interview, Wiggan admitted that the voicemail account was hers, but she claimed that she had not used that voicemail account in so long that she could not remember the password and that she had only…

Opinion by Judge FERNANDEZ; Dissent by Judge EBEL.

OPINION

Joann Wiggan appeals her conviction and sentence for perjury and for making a false statement. See 18 U.S.C. §§ 1001 (a), 1623(a). Principally she challenges the district court’s admission of testimony from a grand juror. She also challenges the district court’s rejection of her claim of recantation, the sufficiency of the evidence, and her sentence. Because we hold that the admission of the grand juror’s testimony was unduly prejudicial, we reverse.

BACKGROUND

Joann Wiggan was a facilities technician at SBC Communications (“SBC”). In that capacity, she had the technical skill and opportunity to implement surreptitious wiretaps. Agents of the Federal Bureau of Investigation interviewed her on October 18, 2004, in connection with an investigation into a wiretapping conspiracy led by *1208 Anthony Pellicano. That investigation had revealed that Pellicano’s source for the acquisition and implementation of wiretaps was Ray Turner, a former SBC employee who had retired in 2001. By examining Turner’s telephone records, the FBI determined that he had contacted SBC employees Michelle Malkin, Teresa Wright, and Wiggan. The FBI…

dissenting:

I join in the parts of the majority opinion finding no error in the district court’s ruling declining to submit the recantation defense to the jury and determining that the evidence was sufficient to support Ms. Wiggan’s conviction for the count of perjury at her first trial. However, I respectfully dissent from the majority opinion concluding that the district court committed reversible error in allowing the grand jury foreperson, Mr. Venable, to testify that he did not believe that Ms. Wiggan was being truthful in her testimony before the grand jury.

I readily acknowledge the paucity of precedent on whether it is error to submit testimony from a grand juror on a defen *1219 dant’s demeanor or credibility as part of the Government’s evidence in support of a charge that the defendant committed perjury before the grand jury. As the majority opinion accurately notes, the other federal circuit case that has directly considered the issue before us in any substantive way is United States v. Awadallah (Awadallah II), 436 F.3d 125 (2d Cir. 2006). 1 In that case, the Second Circuit found that the district court had not committed an abuse of discretion in excluding such…