United States v. Ghazi H. Qaisi and Abdul M. Qaisi , 786 F.2d 242 ( 1986 )

786 F.2d 242

UNITED STATES of America, Plaintiff-Appellee,
v.
Ghazi H. QAISI and Abdul M. Qaisi, Defendants-Appellants.

No. 85-5274.

United States Court of Appeals,
Sixth Circuit.

March 27, 1986.

Before MARTIN and WELLFORD, Circuit Judges and WEICK, Senior Circuit judge.

1

Prior Opinion: 6 Cir., 779 F.2d 346.

ORDER

2

Upon consideration of the petition for rehearing filed herein by the plaintiff-appellee, the Court concludes that the issues raised were fully considered upon the original submission and decision of this case.

3

IT IS THEREFORE ORDERED that the petition for rehearing be and it hereby is denied.

4

WELLFORD, Circuit Judge, concurring.

5

I concur in the denial of the petition but set forth briefly my reasons.

6

Unfortunately, in this case the government proved an attempt to suborn false testimony of Barbara Qaisi. She was wrongfully induced and bribed to give untrue testimony but that testimony was not material at the proceeding since the marriage of Barbara and Abdul Qaisi was, at the outset, legal on its face, and it was immaterial as to whether they were still living together at the time of the hearing. Materiality is an essential element of a perjury charge. See United States v. Brumley, 560 F.2d 1268, 1274 (5th Cir.1977); United States v. Damato, 554 F.2d 1371 (5th Cir.1977); United States v. Slavik, 548 F.2d 75 (3d Cir.1977). The argument made by the government in the petition to rehear has some merit; regrettably, it was not presented adequately by brief and at oral argument. I therefore with some reluctance join in the denial of the petition for rehearing.