Johnson v. United States

• Decision Date: 17 September 1953
• Docket Number: No. 14437.,14437.
• Citation: 207 F.2d 314
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

207 F.2d 314 (1953)

JOHNSON v. UNITED STATES.

No. 14437.

United States Court of Appeals Fifth Circuit.

September 17, 1953.

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Ellis Stuart Rubin, Miami, Fla., for appellant.

Fred Botts, Asst. U. S. Atty., Miami, Fla., Herbert S. Phillips, U. S. Atty., Tampa, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

RUSSELL, Circuit Judge.

Appellant was indicted, tried and convicted on a single count charging him with violating 18 U.S.C. § 2314,¹ in that he transported certain specifically designated and described articles of jewelry having a value of more than $5,000 from Miami, Florida to Havana, Cuba, on April 18, 1952, and that he knew that the jewelry "had therefore (sic) been stolen, converted or taken by fraud." Since there is no contention that the evidence was not sufficient to sustain the verdict, we do not recite it in detail. For present purposes it is sufficient to say that the jury was justified in finding that appellant acquired possession of the jewelry from Daniel Richter by means of a scheme designed to lead the latter to believe that his, Richter's, son had been kidnapped. The jewelry was placed in a locker-box at the local bus terminal by Richter, as he was directed to do by appellant, to secure the release and safe return of the Richter child. After removing the jewelry from the locker-box appellant transported it from Miami to Havana. He was there arrested by the Cuban authorities two days after his arrival and was subsequently deported to the United States as an undesirable alien. He was induced to deliver the jewelry to the Cuban Secret Police by promises that they would divide its proceeds with him. After he delivered it to them, they arrested him and incarcerated him in the local jail. He was returned to Miami accompanied by members of the Cuban Secret Police and upon his arrival was placed under arrest by the Chief of Detectives of the Miami Police Department. The jewelry was delivered to the detective by the Cuban police. Appellant was acquitted after trial in the State court on the charge of kidnapping. Thereafter, the present trial was had and a sentence of nine years was imposed. Appellant has elected to commence service of the sentence pending this appeal.

Prior to trial appellant filed a motion to dismiss the indictment upon stated grounds. The grounds upon which he now relies are that the indictment failed to apprise him of the offense with which he was charged and to sufficiently protect him from a future indictment on the same charge. Formal parts omitted, the indictment is set forth in the margin.² The indictment did not charge appellant with stealing, converting or taking the jewelry by fraud. The manner in which the property was unlawfully taken from its possessor is a subsidiary element of the offense. By enacting the statute which appellant stands convicted of violating, Congress intended to prohibit the channels of interstate and foreign commerce from being employed to evade and escape State detection and prosecution of certain criminal offenses committed within its boundaries. Appellant was charged with transporting the jewelry in foreign commerce with knowledge that it had been "stolen, converted or taken by fraud." The quoted words relate to the quality of the property he transported and not to the manner in which he acquired it. For this reason the cases cited and relied upon by appellant in support of his contention that the court erred in overruling his motion to dismiss the indictment are inapposite. Those cases³ hold generally that if a statute denounces several things as crime, or creates only one offense but states more than one way in which it may be committed, an indictment may, in a single count, charge violation of the statute in any or all of the ways stated therein, provided that the various ways by which the offense may be committed are alleged conjunctively rather than disjunctively, or alternatively. This rule, however, is not applicable to the present case, although it would not have been fatal to the indictment if the elements had been alleged conjunctively.

The gravamen of the offense prohibited by 18 U.S.C. § 2314 is the transportation in interstate or foreign commerce of goods with knowledge that they have been secured by the unlawful means referred to in the statute. It is immaterial whether the accused is guilty of any offense in connection with the primary wrongful taking of the goods, nor is it significant how the accused acquired possession of the goods, except that this may be shown in order to prove his knowledge of their character as being stolen, converted or taken by fraud. To sustain a conviction under this statute it is necessary to prove that the accused transported the goods in interstate or foreign commerce, that the value of the goods so transported was $5,000 or more and that he knew they had either been stolen, converted or taken by fraud. These are the essential elements of the crime. The indictment charged these elements with particularity.

An indictment must contain a plain, concise and definite statement of the essential facts constituting the offense charged.⁴ The purpose of an indictment is to apprise the accused of the crime charged against him with such reasonable certainty as will enable him to make his defense and avail himself of his conviction or acquittal for protection against another prosecution for the same offense. Thus, as stated by the Supreme Court in Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L. Ed. 861:

"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.\'"

Appellant's primary argument is predicated upon the contention that his defense was embarrassed by the use of the disjunctive "or" rather than the conjunctive "and" which he claims necessitated his preparing three different defenses to the single count of the indictment. Obviously, he would have been in no different position if the conjunctive had been used, since proof of his knowledge that the jewelry had either been stolen, converted or taken by fraud at the time he transported it would sustain a conviction. There can be no valid contention that appellant's defense was embarrassed or that he was surprised by the evidence offered against him at the trial merely because the indictment alleged the prohibitive character of the goods in the disjunctive rather than in the conjunctive. The indictment did not charge appellant in the alternative with having committed one or another of several offenses. He was charged with only one offense. This evidences our rejection of his contention that the court erred in overruling his motion to compel the Government to elect upon which allegation of the indictment it would proceed to trial. We think the indictment alleged the essential ingredients of the offense charged with sufficient certainty and did not infringe upon appellant's right to be informed of the crime charged against him.⁵ Likewise, it is sufficiently definite so that either a conviction or an acquittal could be pleaded in bar to a subsequent prosecution for the same cause.

It is contended that the inclusion of the word "therefore" in the indictment between the words "had" and "been" immediately preceding "stolen, converted or taken by fraud"⁶ rendered the indictment fatally defective because it failed to state when the jewelry was unlawfully obtained. Appellant admits that as used in the indictment the word has no meaning, but urges that it makes the indictment uncertain and ambiguous. It is obvious that the word "theretofore" was intended to be used instead of "therefore",⁷ however, we need not consider whether or not the end result was a clerical or typographical error. It was not necessary that the indictment allege when the jewelry was illegally obtained or when it came into the defendant's possession. It is sufficient that it be charged that the defendant knew that it had been so obtained at the time he transported it. The indictment meets this requirement. Appellant also urges that the court erred in striking this word from the indictment upon motion of the Government made at the close of its evidence, insisting that the result was to amend the indictment in a substantial way. He argues that it completely changed or confused the time element as to when the jewelry was unlawfully taken with relation to when it was transported. We do not think so. As it appeared in the indictment, the word "therefore" was absolutely devoid of meaning. It neither added to, nor subtracted from, the meaning of the phrase in which it appeared or the context of the indictment as a whole. In short, it was surplusage, the striking of which did not affect the substance of the indictment and in no way prejudiced the rights of the defendant.⁸

Appellant timely filed a motion for a bill of particulars requesting, among other things, that he be informed of the "details which compose the vital elements of fraud" alleged in the indictment. The overruling of this motion is assigned as error. The Government should not be compelled by a bill of particulars to give a detailed disclosure of its evidence, as would have been required by compliance with the motion. Pines v. United States, 8 Cir., 123 F.2d 825, 828. Furthermore, there is nothing in the record to indicate that appellant was surprised or prejudiced by the action of the court in overruling the motion. The granting or denial of a bill of particulars rests within the sound discretion of the trial court, and in the...