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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                    No. 16-CF-699


                           DRECK S. WILSON, APPELLANT,                      10/11/2018

                                           V.

                             UNITED STATES, APPELLEE.


                           Appeal from the Superior Court
                            of the District of Columbia
                                  (CF2-22192-14)

                      (Hon. Anita Josey-Herring, Trial Judge)

(Submitted December 12, 2017                              Decided October 11, 2018)

      Cecily E. Baskir was on the brief for appellant.

       Channing D. Phillips, United States Attorney at the time the brief was filed, and
Elizabeth Trosman, John P. Mannarino, Tamika Griffin Moses, and Elizabeth Gabriel,
Assistant United States Attorneys, were on the brief for appellee.

     Before BLACKBURNE-RIGSBY, Chief Judge, EASTERLY, Associate Judge, and
FERREN, Senior Judge.

      EASTERLY, Associate Judge:          Appellant, Dreck Wilson, challenges his

convictions for perjury, D.C. Code § 22-2402 (2012 Repl.), and obstruction of

justice, D.C. Code § 22-722 (a)(6) (2012 Repl.), both premised on his allegedly
                                          2

false, sworn statements as a defendant in a small claims case. In that case, Mr.

Wilson testified that he did not have possession of his vehicle, an asset the plaintiff

in that matter, Guyler Hill, sought to seize. In this appeal, Mr. Wilson argues that

(1) the trial court plainly erred in permitting the government to constructively

amend the perjury charge in the indictment, and (2) the government’s evidence was

insufficient to support his convictions, both as to the constructively amended

perjury charge and the obstruction charge. We need not address Mr. Wilson’s

claim of plain error because we agree that the evidence is legally insufficient as to

both charges and reverse.



      When reviewing the sufficiency of the evidence, this court examines the

evidence in the light most favorable to the verdict to determine whether the

evidence was such that no reasonable factfinder could find guilt beyond a

reasonable doubt. Wade v. United States, 173 A.3d 87, 94 (D.C. 2017). Although

“[w]e make no distinction between direct and circumstantial evidence,” we do not

permit reliance on “mere speculation.” Id. Specifically with respect to charges of

perjury, “[t]he requirements of proof . . . are the strictest known to the law, outside

of treason charges.” Riley v. United States, 647 A.2d 1165, 1174 (D.C. 1994)

(internal quotation marks omitted). “To prove a defendant guilty of perjury, the

evidence must show that the defendant made a false statement of material fact
                                          3

under oath with knowledge of its falsity.       Actual falsity is necessary [for a]

conviction.” Gaffney v. United States, 980 A.2d 1190, 1193 (D.C. 2009) (internal

quotation marks and citations omitted). In addition, “the uncorroborated oath of

one witness is not enough to establish the falsity of the testimony of the accused set

forth in the indictment as perjury.” Id. at 1194 (internal quotation marks and

citations omitted); see also Hsu v. United States, 392 A.2d 972, 981 (D.C. 1978)

(explaining that under the so-called “two-witness rule,” the government need not

actually present two witnesses who provide direct evidence that the defendant’s

sworn statement was false; rather “one witness plus independent corroborative

evidence will also suffice”). The requisite corroboration “need not be sufficient,

by itself, to demonstrate guilt,” but it must corroborate “the part of the primary

witness’s testimony that proves the falsity of the defendant’s statement.” Gaffney,

980 A.2d at 1194; see also Boney v. United States, 396 A.2d 984, 987 (D.C. 1979)

(with regard to the sufficiency of the corroborative evidence, the test requires: “(1)

that the evidence, if true, substantiates the testimony of a single witness who has

sworn to the falsity of the alleged perjurious statement; (2) that the corroborative

evidence is trustworthy.”).



      We begin our analysis with the perjury charge and note preliminarily that,

although the indictment charged Mr. Wilson with “falsely testify[ing] [on April 9,
                                          4

2013] that he did not have possession of his vehicle on April 5, 2013,” the

government concedes that it sought and obtained a perjury conviction based on a

different theory, namely, that Mr. Wilson falsely testified on April 9, 2013, that he

did not have possession of his car on that day. Thus we assess the sufficiency of

the evidence to sustain a perjury conviction based on the theory the government

pursued at trial.



      The government argues that a reasonable juror could have determined that

Mr. Wilson falsely testified at the April 9, 2013, hearing that he did not possess his

car based on (1) the primary testimony of Mr. Hill, who the government represents

saw the car outside Mr. Wilson’s home on that day, and (2) the corroborating

testimony of a representative of the Howard University Employees Federal Credit

Union, Mr. Michael Hines, who explained that (contrary to Mr. Wilson’s purported

understanding), his entity had not yet repossessed Mr. Wilson’s car on April 9,

2013, and did not succeed in doing so until December 2014. For the following

reasons, we disagree that this evidence is sufficient to support Mr. Wilson’s

perjury conviction.



      Mr. Hill never unequivocally testified that he saw Mr. Wilson’s car outside

Mr. Wilson’s home on April 9, 2013. When he was initially asked on direct
                                           5

examination if he saw the vehicle on Mr. Wilson’s street at any time in April 2013,

he testified, “I cannot be sure.” When he was specifically asked about April 9,

2013, the day he and Mr. Wilson had been in court, he repeatedly qualified his

testimony with “I think” or “I believe.” Mr. Hill’s continued “I believe” answers

on cross-examination prompted defense counsel to clarify that he was not “asking

what you believe.” Defense counsel then asked Mr. Hill point blank if it was his

“testimony that you saw [Mr. Wilson] in possession of the car” on April 9, 2013.

Mr. Hill could only say that he was “pretty sure,” and declined defense counsel’s

invitation to say that he was “certain.”



      As noted above, we maintain strict standards for proving perjury in the

District of Columbia. At a minimum, the government must produce one witness

who can “in positive terms, contradict the statement of the person indicted for

perjury.” Cook v. United States, 26 App. D.C. 427, 430 (D.C. Cir. 1906);1 see also


      1
        In Cook, the central issue was whether the defendant had lied about his
location on the evening of a specific date. The court concluded, however, that
“the government failed to give that absolute and positive contradiction which is
required” where its witness testified on direct examination that the defendant had
come over to her house with her son that night, but on cross-examination “she was
unable to give any reason for fixing said date, and testified that the two boys had
often slept together at her house, and that the night [she remembered] might not
have been [the] Saturday night [in question], but might have been some other
Saturday night.” 26 App. D.C. at 430–31 (emphasis added).
                                         6

Gaffney v. United States, 980 A.2d at 1195 (“The government does not meet its

burden of proof in a perjury prosecution if it fails to pin the witness down to the

specific object [of] the questioner’s inquiry.”) (internal quotation marks omitted).2

We are in grave doubt that Mr. Hill’s less than certain testimony that he saw Mr.

Wilson’s car on April 9, 2013, amounts to evidence that unequivocally (or in the

words of Cook, “absolutely and positively,” 26 App. D.C. 430–31) contradicted

Mr. Wilson’s testimony under oath that he did not have possession of his car on

that day. Riley v. United States, 647 A.2d 1165, 1174 (D.C. 1994) (“Especially in

perjury cases, defendants may not be assumed into the penitentiary.”).



      But even assuming the government could build a perjury case on Mr. Hill’s

testimony, we do not see the requisite corroboration in this record. Mr. Hines’s

testimony is insufficient as it is unrelated to Mr. Hill’s testimony. Mr. Hines

testified only that, although the Credit Union had put a skip trace3 on Mr. Wilson’s

      2
          In support for this proposition, Gaffney cited United States v. Chestman,
903 F.2d 75, 81 (2d Cir. 1990) (Chestman I), vacated on other grounds, 947 F.2d
551 (2d Cir. 1991) (holding the evidence insufficient to support a perjury
conviction when the timing of a conversation was critical—the government needed
to prove that defendant had talked to another individual before 9:49 am—but the
only witness who testified as to timing could only say the conversation occurred
prior to 10:30 am).
      3
        As a result, “all tow companies had a listing of the [car, and] it was to be
repossessed if they found it.”
                                          7

car in February 2013, it did not succeed in seizing Mr. Wilson’s car until

December 2014. This testimony does not make it more likely that Mr. Hill saw

Mr. Wilson’s car on April 9, 2013. Gaffney, 980 A.2d at 1194 (explaining that

“[w]hat must be corroborated is the part of the primary witness’s testimony that

falsifies the defendant’s statement”). It does not even contradict Mr. Wilson’s trial

testimony that, after his car was impounded for expired plates in late March 2013,

he sought to have it towed to a Chevy dealership, but it never reached its

destination.4 It merely establishes that the credit union was not responsible for the

alleged disappearance of Mr. Wilson’s car before the April 9, 2013, hearing. See

id. (determining that the proffered corroboration was inadequate where it “neither

confirmed the critical part of [the primary witness’s] testimony nor furnished

independent evidence proving the falsity of appellant’s . . . statements”).



      Turning to the obstruction of justice conviction, we note that the government

acknowledges that this conviction was “based on the same conduct” as the perjury

conviction. We conclude that the two counts rise and fall together. Because the

trial evidence did not permit a reasonable juror to conclude that Mr. Wilson


      4
        The government appears to suggest that the requisite corroboration may be
any evidence “inconsistent with [Mr. Wilson’s] innocence.” We disagree, but as
explained above, Mr. Hines’s testimony does not even satisfy that standard.
                                         8

perjured himself when he represented under oath that he did not have possession of

his car in court on April 9, 2013, it likewise does not permit a reasonable juror to

conclude that he obstructed justice by perjuring himself.



      For the foregoing reasons, the judgment of the Superior Court is



                                             Reversed
