Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding DC No. 2:06-cr-00109-DSF-1
The opinion of the court was delivered by: Fernandez, Circuit Judge
Argued and Submitted October 9, 2012--Pasadena, California
Before: David M. Ebel, Ferdinand F. Fernandez,*fn1 and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fernandez; Dissent by Judge Ebel
Reversing a conviction for making a false statement to the FBI and perjury before a grand jury and a district court, the panel held that the district court abused its discretion by admitting the grand jury foreman's testimony that the defendant was not credible.
The panel held that the danger of undue and unfair prejudice far outweighed the probative value of the foreman's testimony, and that the error, which was devastating to the defendant's defense, was not harmless.
The panel rejected the defendant's contentions that the district court erred when it determined that she had not recanted her testimony before the grand jury and that the district court should have submitted the defense of recantation to the petit jury. The panel also rejected the defendant's contention that the evidence was insufficient to support the verdict that she perjured herself at her first trial.
Judge Ebel dissented from the majority's conclusion that the district court committed reversible error in allowing the grand jury foreperson to testify that he did not believe the defendant was being truthful in her testimony before the grand jury.
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.
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 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 used it to inform callers that she was away from her desk. Wiggan admitted that she had worked with Turner before 1990, but further stated that she had not spoken to him in the last five or six years (i.e., since 1998 or 1999). That was inconsistent with Turner's telephone records, which showed that Turner had called her voicemail multiple times after 1999. Wiggan could not explain why Turner would have called her and insisted that she had not spoken with him during the year 2002.
One year later, on October 26, 2005, Wiggan testified before the grand jury that was investigating the Pellicano*fn3 conspiracy. She admitted that the voicemail account had been assigned to her since 2000, but she claimed that she did not use it at all until 2003. She also testified that she knew Turner because they had worked together in the 1980s, and that while they were acquaintances, they did not socialize outside of work. However, she did say that she had a chance meeting with Turner in 2000 or 2001. She indicated that she spoke to him about her marital problems, and that she and Turner talked on the telephone about those problems approximately ten times, but she then testified that she had not had any conversations with Turner after December 2000.
Upon being shown Turner's records and seeing a large number of calls from Turner to her voicemail, Wiggan claimed that she had never received any of those calls and did not use her voicemail prior to 2003. She asserted that she first activated her voicemail in 2003, and even then she never retrieved any messages from the voicemail. She was reminded a few times that she was testifying under oath, was subject to the penalties of perjury, and that her telephone records could be subpoenaed.
A few days after that appearance, Wiggan left a message for the prosecutor saying that she wished to correct some of her Grand Jury testimony. She then appeared before the Grand Jury again on January 11, 2006, and testified that on her way home after her first day of testimony, her husband had told her that he thought she was using her voicemail during the period in question. She said that she thought he might be right, and that she "might have accessed it." She also acknowledged that the voicemail was activated prior to 2003, but she could not remember how often she had actually accessed it or when she began or stopped using it. She still denied having retrieved any messages left by Turner and claimed that she had just retrieved a few messages from her boss or from her husband. Moreover, she said that she had not used her voicemail in the years prior to 2003, so that SBC had to activate her voicemail that year. However, upon close questioning and after much tergiversation, when asked whether her prior testimony that she had never used her voicemail before 2003 was true or false, she replied, "False. My husband said I did."
Wiggan was indicted on five counts of perjury on February 15, 2006. Those counts all stemmed from her two days of testimony before the Grand Jury. Trial began in September of 2006, and she testified in her own defense. At trial Wiggan admitted that she had spoken with Turner from 2001 to 2003, even though she had previously denied that, but reiterated that she could not recall having received any voicemail from him. She also testified that because she could not remember receiving voicemail from Turner, it was not possible that she had received any. Wiggan then said that most of the messages she received on voicemail were annoying complaints from her children, so she did not check voicemail very often. The jury acquitted Wiggan on most counts of the indictment, but deadlocked on Count Three, on which the district court later granted a mistrial.
A first superseding indictment was then returned against Wiggan. Count Two realleged the mistried count from the original indictment; that is, Wiggan's testimony in her first appearance before the Grand Jury that she never retrieved any messages from her voicemail account was false. *fn4 Count One charged that Wiggan had made a false statement when she told the FBI in 2004 that she had not spoken with Turner in five or six years. Count Three alleged that Wiggan had perjured herself at her 2006 trial when she testified that she could not remember if she had ever received a voicemail message from Turner.*fn5
At the 2009 trial, the government called the Grand Jury foreman, Thomas Venable, to testify regarding the materiality of Wiggan's statement to the Grand Jury, the atmosphere of the Grand Jury room, Wiggan's demeanor, and the demeanor of the grand jurors and the prosecutor during her testimony. Venable also testified a number of times that he and the other grand jurors did not think that Wiggan was credible or believable. Venable had not testified at Wiggan's first trial.
At her 2009 trial, Wiggan testified in her own defense. She denied that she ever told the FBI that she had not spoken to Turner in five or six years. She reiterated her claim that at the time of her Grand Jury testimony, she did not remember that she had used her voicemail and that she had been reminded of that by her husband at a later time. She also said that she told the truth at her 2006 trial when she said that she did not remember receiving any voicemail from Turner, and she reiterated her testimony from that trial that most of the voicemail messages she had received were annoying messages from her children.
Wiggan's son, Chaz Wiggan, testified that he and his sister, Linnett, frequently called Wiggan's voicemail regarding their disagreements. He also testified that when he*fn6 left voicemails, he expected that Wiggan would receive the messages and call him back.
Wiggan was convicted and sentenced on all counts. This ...