Barone v. United States

Decision Date22 July 1953
Docket NumberNo. 14735.,14735.
Citation205 F.2d 909
PartiesBARONE v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

Eugene D. O'Sullivan, Omaha, Neb. (Eugene D. O'Sullivan, Jr., Omaha, Neb., on the brief), for appellant.

Edward J. Tangney, Asst. U. S. Atty., Omaha, Neb. (Joseph T. Votava, U. S. Atty., Omaha, Neb., and John E. Deming, Asst. U. S. Atty., Omaha, Neb., on the brief), for appellee.

Before GARDNER, Chief Judge, and SANBORN and JOHNSEN, Circuit Judges.

GARDNER, Chief Judge.

Bennie Barone was indicted, tried, and convicted on Count I of an indictment which charged that on or about November 3, 1950, in Omaha, Douglas County, Nebraska, then knowing that an offense against the United States had been committed,

"to-wit: A violation of 18 U.S.C. 2314, in that Kenneth Allen Kitts, Yancy Douglas Hardy and Pasquale Joseph Belcastro had transported and caused to be transported in interstate commerce from Laurens, and Sioux City, Iowa, to Omaha, Nebraska, certain stolen lawful money of the United States and securities exceeding $5,000.00 in value, the securities consisting of American Express Company and Bank of America Traveler\'s Checks, knowing the same to have been stolen, did receive, relieve, comfort, and assist the said Yancy Douglas Hardy and Pasquale Joseph Belcastro in order to hinder and prevent their, the said Yancy Douglas Hardy\'s and Pasquale Joseph Belcastro\'s apprehension, trial and punishment."

The indictment contained two other Counts on both of which he was acquitted. We shall refer to the appellant as defendant. On defendant's motion he was furnished a Bill of Particulars. In his motion he asked that the government be required to set forth the way or manner in which it was claimed that the defendant "* * * `did receive, relieve, comfort and assist' said Hardy and Belcastro in order to prevent their apprehension, trial and punishment together with the exact time and exact place in Omaha, Nebraska, where it is contended they were received, relieved, comforted and assisted." In response to the order based upon defendant's motion, the government in its Bill of Particulars stated:

"A. That the violation of 18 U.S. C. 2314 committed by Kenneth Allen Kitts, Yancy Douglas Hardy and Pasquale Joseph Belcastro was committed on the morning of November 3, 1950. That the stolen money and securities were transported by the said Kenneth Allen Kitts, Yancy Douglas Hardy and Pasquale Joseph Belcastro in an automobile on November 3, 1950.
"That to the best of our knowledge the actual amount and kind of money transported was as follows:
"Approximately $4,480.00 in lawful silver money of the United States,
"Approximately $8,000.00 in lawful paper money of the United States,
"Approximately $17,450.00 in American Express Traveler\'s Checks, consisting of the following:
(Description omitted for brevity.)
"Approximately $8,020 in Bank of America Traveler\'s Checks, consisting of the following:
(Description omitted for brevity.)
"It is further alleged that to the best of our knowledge said above American Express and Bank of America Checks were in the form shown on Exhibit `A\' attached hereto, except that at the time, no signature, other than that of the facsimile signature of the Treasurer of the American Express Company Checks and of the Founder-Chairman on the Bank of America Checks — appeared on the same nor did there at that time appear thereon any date, payee, bank stamp or perforation, and many of same were of different value.
"B. It is alleged that the defendant Bennie Barone did receive, relieve, comfort, and assist said Hardy and Belcastro in order to prevent their apprehension, trial and punishment, by receiving from them approximately $3,100.00 of stolen lawful silver money of the United States and exchanging said money for lawful paper currency, which the said defendant Bennie Barone did thereafter deliver to the said Pasquale Joseph Belcastro; that said Bennie Barone received said silver money at about 10 A. M. on the morning of November 3, 1950 in Omaha, Nebraska at the house at 1314 South 24th Street, Omaha, Nebraska, and gave the paper currency to the said Belcastro in two instalments of $1,500.00 each on or about November 3, 1950 and November 6, 1950.
"C. It is alleged that said Kitts, Hardy and Belcastro drove in Belcastro\'s car in the early morning hours of November 3, 1950 from Laurens, Iowa to Sioux City, Iowa, arriving there at about 6 A. M. and leaving there about 8 A. M. still in Belcastro\'s car and taking with them all of the proceeds of the Laurens Bank Burglary except about $800.00. That after leaving Sioux City, Iowa said Kitts, Hardy, and Belcastro drove to Omaha, Nebraska with said stolen money and securities."

After being furnished the Bill of Particulars defendant moved to dismiss the indictment because it did not charge a crime against the laws of the United States, because it was duplicitous, because it was vague, indefinite and uncertain, and because the law under which it was drawn was unconstitutional. This motion was denied. Thereafter defendant was tried by the court and a jury and at the close of all the testimony he interposed a motion for acquittal which was denied and the case was submitted to the jury which returned a verdict of "guilty" on Count I and "not guilty" on Counts II and III of the indictment.

On his appeal defendant contends: (1) That the court erred in overruling his motion to dismiss the indictment because it is indefinite and non-informative and lacks precision, certainty and particularity in advising defendant as to the nature and cause of the accusation made against him; (2) That the court erred in overruling his motion for acquittal because the government failed to prove defendant guilty by evidence beyond a reasonable doubt and that there is no substantial evidence sustaining the verdict of guilty; (3) That substantial evidence is not sufficient to sustain a conviction in a criminal case, but the evidence must be such as to prove the defendant's guilt beyond a reasonable doubt and that any other rule or law would deny defendant due process of law as guaranteed by Article V of the Amendments to the United States Constitution; (4) That the court erred in overruling objections of defendant to various offers of hearsay testimony set out in his brief; (5) That the court erred in that it failed to instruct the jury on its own motion relative to the basic law governing the determination of the case in view of the fact that the government's Bill of Particulars limited the prosecution to proof within the area of the Bill; (6) That the court erred in that it denied bail to defendant pending this appeal.

Defendant's challenge to the indictment is based on the assertion that it is too indefinite and uncertain to inform him of the nature of the accusation against him. It is not pointed out in what particular the indictment is defective and it is observed that in the Bill of Particulars furnished him he was advised in unusual detail not only of the nature of the accusation against him, but of the alleged facts upon which the accusation was based. The test is not whether the indictment could possibly be made more definite and certain, but whether it contains every element of the offense intended to be charged and sufficiently informs the defendant of what he must be prepared to meet and whether in the event of his conviction he can plead that conviction as a defense in case other criminal proceedings are subsequently brought against him for the same offense. Hale v. United States, 8 Cir., 25 F.2d 430; Holmes v. United States, 8 Cir., 134 F.2d 125; Hewitt v. United States, 8 Cir., 110 F.2d 1; Keys v. United States, 8 Cir., 126 F.2d 181. In Hewitt v. United States, supra 110 F.2d 5, we said, "The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.'" The same test is substantially reiterated by us in Holmes v. United States, supra 134 F.2d 129, where we said, "An indictment is sufficient if the defendant is able to ascertain from the charge what he is called upon to answer, to prepare his defense, and if necessary to plead the judgment on such charge as a bar to a second prosecution for the same offense. * * * The test is whether it contains every element of the offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet, and not whether the indictment might possibly be made more definite...

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