## Facts

- Joann Wiggan worked as a facilities technician for SBC Communications and had technical access relevant to a wiretapping investigation involving Anthony Pellicano and Ray Turner, a retired SBC employee.
- Investigators identified frequent calls from Turner to SBC personnel, including to a specific SBC voicemail account assigned exclusively to Wiggan.
- In an FBI interview, Wiggan acknowledged the voicemail account was hers but claimed she had not used it for a long time, could not remember the password, and used it only as an “away from desk” message; she also stated she had not spoken with Turner in five or six years.
- In grand jury testimony, Wiggan stated she had not retrieved messages from the voicemail account during the relevant period.
- In a later grand jury appearance, Wiggan admitted her earlier statement about not accessing the voicemail was false and attempted to explain her revised account by referencing information her husband provided.
- Wiggan was indicted and convicted of making false statements to the FBI (18 U.S.C. § 1001(a)) and perjury before the grand jury and district court (18 U.S.C. § 1623(a)).
- At trial, over objection, the government called the grand jury foreman, who testified that Wiggan “was not credible” and that the grand jury concluded she was lying.

## Issues

1. Whether admitting a grand jury foreman’s testimony that the defendant was “not credible” and that the grand jury did not believe her was an abuse of discretion under Federal Rule of Evidence 403 in a perjury/false-statements trial.
2. Whether Wiggan’s later grand jury testimony qualified as a statutory recantation under 18 U.S.C. § 1623(d), requiring submission of a recantation defense.
3. Whether the evidence was sufficient to support the convictions and whether aspects of the sentence were erroneous.

## Decision

- The Ninth Circuit reversed the convictions and remanded for further proceedings.
- The court held the district court abused its discretion by admitting the grand jury foreman’s opinion testimony that Wiggan was not credible and that the grand jury believed she lied.
- The court concluded the error was unduly prejudicial and not harmless because Wiggan’s credibility was central to the charged offenses.
- A dissent would have affirmed, reasoning any evidentiary error was harmless given other evidence of falsity.

## Legal Principles

- Credibility determinations are reserved for the petit jury; testimony opining that a witness “was lying” or was “not credible” regarding contested testimony is generally improper because it invades the jury’s role.
- Under Federal Rule of Evidence 403, marginal probative value is substantially outweighed by unfair prejudice when a witness’s credibility opinion is likely to mislead the jury or substitute an authoritative assessment for the jury’s own evaluation.
- The risk of unfair prejudice is heightened when the credibility opinion comes from a grand juror, because it may be perceived as an official prior determination of dishonesty or guilt by another body of citizens.
- The statutory recantation defense in 18 U.S.C. § 1623(d) requires an admission of falsity in the same continuous grand jury or court proceeding, made before the false declaration has substantially affected the proceeding or before exposure of the falsity becomes manifest; equivocal explanations may not satisfy the statute.

## Conclusion

The Ninth Circuit vacated Wiggan’s perjury and false-statement convictions because the jury heard a grand jury foreman’s credibility judgment that she was lying, a form of opinion testimony that carried substantial risk of unfair prejudice and improperly displaced the petit jury’s function in a case turning on credibility.


United States v. Wiggan, 700 F.3d 1204 (9th Cir. 2012)