Metropolitan News-Enterprise


Friday, October 25, 2019


Page 1


Ninth Circuit:

Officers Who Arrested Man for Lying at Trial Have Immunity

Panel Says It Was Not ‘Clearly Established’ in 2008 That Perjury Charges Are Barred Against Defendant Whose Testimony Was Believed by Judge; 2015 Opinion Said to the Contrary


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday held that officers who in 2008 arrested a man for perjury based on allegedly lying on the stand in traffic court are entitled to qualified immunity in his civil rights action against them because the law, at the time, did not clearly establish that the right against double jeopardy barred perjury charges.

Yet, in a 2015 published opinion in which the Ninth Circuit granted habeas corpus relief to the man, James Wilkinson, the law was pronounced to have been “clearly established” by a 1970 U.S. Supreme court opinion. Wilkinson had prevailed in traffic court on a speeding charge, and later charged with and convicted of perjury.

Yesterday’s memorandum opinion affirms a summary judgment in favor of California Highway Patrol Officer Mark Magrann and CHP Investigator Theresa Pines in a lawsuit brought by Wilkinson.

2015 Opinion

Circuit Judge William A. Fletcher said in the 2015 opinion:

“The State of California appeals the district court’s grant of James Kendell Wilkinson’s petition for a writ of habeas corpus. Wilkinson was convicted of perjury for testifying in a traffic court proceeding that he was not the driver of a car that had been stopped for speeding and whose driver had been ticketed. The State brought the perjury prosecution alter Wilkinson was acquitted of the speeding offense. We agree with the district court that the state appellate court unreasonably applied Ashe v. Swenson, 397 U.S. 436 (1970), when it held that Wilkinson’s acquittal in traffic court did not bar the subsequent perjury prosecution.”

The opinion says that in Ashe, the Supreme Court “ ‘significantly expanded’ the protection the Double Jeopardy Clause affords criminal defendants” by importing into that clause “the doctrine of criminal collateral estoppel.”

Ashe did not involve perjury but did announce that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”

Fletcher declared:

“The principle of collateral estoppel embodied in the Fifth Amendment’s protection against double jeopardy, as clearly established in Ashe, precludes relitigation of ultimate issues that were necessarily decided in a prior proceeding between the parties.”

Decision Affirming Guilford

A three-judge panel yesterday said, in an opinion affirming a summary judgment by District Court Judge Andrew J. Guilford of the Central District of California:

“At the time that defendants investigated Wilkinson and obtained a search warrant, it was not clearly established for purposes of qualified immunity that it violated Wilkinson’s double jeopardy rights to prosecute him for perjury for allegedly testifying falsely in traffic court….Based on then existing precedent, defendants were not ‘plainly incompetent’ to believe that Wilkinson’s acquittal of the speeding charge did not necessarily decide that Wilkinson was telling the truth when he denied being the driver of the speeding car.”

Wilkinson insisted it was his British cousin, Kendall Wilkinson, who was driving. James Wilkinson’s wife, Deborah Charmaine Wilkinson, who was a passenger in the car, testified in traffic court that this was so.

Kendall Wilkinson was not present in court. He allegedly resides in the United Kingdom.

The driver who was ticketed presented a U.K. driver’s license with a different first name from that of James Wilkinson and a different date of birth.

Clarity Lacking

The memorandum opinion continues:

“In other words, at that time, the ‘contours’ of Wilkinson’s double jeopardy rights were not ‘sufficiently clear’ that ‘every reasonable official’ would have understood that prosecuting Wilkinson for perjury violated those rights.”

It goes on to say that the decision to prosecute was that of the Orange County District Attorney’s Office, and any harm to Wilkinson stemming from that decision cannot be ascribed to the officers.

 Wilkinson was convicted of perjury in the courtroom of Orange Superior Court Judge James Edward Rogan.

Court of Appeal

 The judgment was affirmed by the Court of Appeal on Aug 31, 2011 in an unpublished opinion by Justice Richard M. Aronson of the Fourth District’s Div. Three, who wrote:

“Here, Wilkinson has failed to meet his burden to show the traffic court judge ‘did indeed find’ or ‘actually decided’…he was a credible witness. The record does not show the traffic court judge necessarily determined Wilkinson’s believability as a witness, a requisite finding necessary to preclude a subsequent perjury trial testing Wilkinson’s veracity….To the contrary, the record amply supports the conclusion the trier of fact need not have passed on or weighed Wilkinson’s testimony after hearing the government’s case. Simply put, the government’s only witness—and, in a traffic case, the officer serving in effect as the government’s prosecuting agent—expressed some doubt that Wilkinson was the driver he had cited for speeding at 101 miles per hour.”

The witness, Magrann, determined after talking with Wilkinson in the hallway after the hearing that he and “Kendall Wilkinson” were one and the same. He proceeded to obtain a search warrant, executed by him and Pines.

The California Supreme Court denied review of the Fourth District decision, and Wilkinson sought habeas corpus relief in the U.S. District Court which then-Judge Gary Allen Feess (now a private judge) granted, leading to yesterday’s affirmance in Wilkinson v. Magrann, 18-55509.

Civil Rights Complaint

Wilkinson’s complaint alleging civil rights violations sets forth that the plaintiff and his wife, in January of 2008, “were engaged in building and preparing for the success of their co-owned wine import and distribution business, Wilkinson Gourmet Imports.” It continues:

“The Wilkinsons’ business, however, along with the front door to their home and the next decade of their lives, were senselessly destroyed by the malicious and petty overreaching of California Highway Patrol officers, investigators, prosecutors and other law enforcement officials from multiple agencies and offices, that joined in the personal vendetta of a frustrated officer fixated upon punishing Mr. Wilkinson for a speeding offense he did not commit.

“Mr. Wilkinson’s house was invaded and searched by CHP officers while he and Mrs. Wilkinson were held at gunpoint. He was later tried for perjury, convicted and sentenced to forty-five days in prison (served in jail)—all because he testified during a trial about a traffic ticket, which he won despite the testimony of one of those same CHP officers, Defendant Mark Magrann.”

Magrann and Pines are alleged to have to have gone through the couple’s personal possessions. The complaint Wilkinson commented:

“Defendants Magrann’s and Pines’ actions are outrageous, shocking, horrific and the common nightmare of every American who drives from one place to another.”


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