Elkins v. United States

• Decision Date: 28 May 1959
• Docket Number: No. 15738.,15738.
• Parties: James Butler ELKINS and Raymond Frederick Clark, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F.2d 588 (1959)

James Butler ELKINS and Raymond Frederick Clark, Appellants, v. UNITED STATES of America, Appellee.

No. 15738.

United States Court of Appeals Ninth Circuit.

April 27, 1959.

Rehearing Denied May 28, 1959.

COPYRIGHT MATERIAL OMITTED

Walter H. Evans, Jr., Burton J. Fallgren, Portland, Or., for appellants.

C. E. Luckey, U. S. Atty., Portland, Or., for appellee.

Before MATHEWS, CHAMBERS and HAMLIN, Circuit Judges.

MATHEWS, Circuit Judge.

On February 4, 1957, in the United States District Court for the District of Oregon, appellants (James Butler Elkins and Raymond Frederick Clark), hereafter called defendants, were indicted in nine counts. On February 18, 1957, defendants were arraigned, pleaded not guilty and were granted permission "to move against the indictment" on or before March 18, 1957.¹ Defendants did not so move on or before March 18, 1957.

On March 19, 1957, defendants filed a motion improperly entitled "Motion to dismiss the indictment."² On March 29, 1957, defendants filed a motion improperly entitled "Supplemental motion to dismiss the indictment."³ The motion of March 19, 1957, was denied on April 2, 1957. The motion of March 29, 1957, was denied on April 12, 1957.

On March 25, 1957, defendants filed a motion improperly entitled "Motion for return of seized property and suppression of evidence."⁴ That motion was denied on April 12, 1957.

On March 12, 1957, the case was set for trial on March 26, 1957. On March 18, 1957, defendants filed a motion for continuance, thereby seeking postponement of the trial to a date at least 90 days after March 26, 1957 — in other words, to June 24, 1957, or later. On March 20, 1957, the District Court ordered the trial postponed to April 16, 1957, thus granting in part and denying in part the motion of March 18, 1957. On April 13, 1957, each defendant filed a motion for continuance, thereby seeking postponement of the trial to a date at least 30 days after April 16, 1957 — in other words, to May 16, 1957, or later. The motions of April 13, 1957, were denied on April 15, 1957.

Defendants had a jury trial beginning on April 16, 1957, and ending on May 11, 1957. On May 9, 1957, at the close of the evidence offered by the Government, defendants moved for judgments of acquittal. Thereafter, on May 9, 1957, counts 3 and 4 of the indictment were dismissed, and the motions for judgments of acquittal were denied. No evidence was offered by either defendant. However, on May 10, 1957, the motions for judgments of acquittal were renewed and again denied. Thereafter the case was argued, the jury was charged, and on May 11, 1957, a verdict was rendered finding defendants guilty on counts 1, 2 and 5-9 of the indictment.

On May 15, 1957, the time for filing a motion for a new trial and a motion in arrest of judgment was extended to May 21, 1957.⁵ On May 16, 1957, defendants renewed their motions for judgments of acquittal.⁶ On May 21, 1957, defendants filed a motion for a new trial and a motion in arrest of judgment. On May 24, 1957, two judgments of conviction were entered — one against Elkins and one against Clark.

The judgment against Elkins sentenced him on count 1 to be imprisoned for a period of ten months and to pay a fine of $1,000; on count 2 to be imprisoned for a period of ten months and to pay a fine of $1,000; on each of counts 5-9 to be imprisoned for a period of six months; the two periods of ten months each to run consecutively; the five periods of six months each to run concurrently with each other and with the second period of ten months. Thus Elkins was sentenced to be imprisoned for a total period of twenty months and to pay fines totaling $2,000.

The judgment against Clark sentenced him on count 1 to be imprisoned for a period of four months and to pay a fine of $250; on count 2 to be imprisoned for a period of sixty days and to pay a fine of $250; on each of counts 5-9 to be imprisoned for a period of sixty days; the period of four months and the first mentioned period of sixty days to run consecutively; the five remaining periods of sixty days each to run concurrently with each other and with the first mentioned period of sixty days. Thus Clark was sentenced to be imprisoned for a total period of four months and sixty days and to pay fines totalling $500.

On June 17, 1957, the District Court entered an order denying the motions for judgments of acquittal, the motion for a new trial and the motion in arrest of judgment. On June 18, 1957, the District Court entered supplemental judgments, supplementing the judgments of May 24, 1957, by adding to and including in each of them an award of costs to the Government. These appeals are from the judgments of May 24, 1957, and the supplemental judgments of June 18, 1957.⁷

Defendants' brief contains 15 specifications of error.⁸ These will be considered in such order as may seem to us convenient.

Specification 14 says that the District Court erred "in failing to allow specification VI of defendants' motion to dismiss the indictment." The only motion of defendants to dismiss the indictment was the motion of March 29, 1957.⁹ There was no "specification VI" of that motion.

Specification 14 also says that the District Court erred "in failing to allow defendants' motion in arrest of judgment," meaning, we suppose, that the District Court erred in denying the motion in arrest of judgment.

The stated ground of the motion in arrest of judgment was, in substance, that each count of the indictment failed to charge an offense against the United States. As indicated above, counts 3 and 4 of the indictment were dismissed at the close of the evidence offered by the Government. Furthermore, as indicated above, the sentences on counts 5-9 of the indictment added nothing to the sentences on counts 1 and 2. Hence, in so far as the motion in arrest of judgment related to counts 3-9, its denial — right or wrong — did not prejudice defendants. Hence we are not required to decide whether counts 3-9 charged offenses against the United States.¹⁰ There remain for consideration counts 1 and 2.

Count 1 alleged: "That from on or about the 1st day of August, 1955, and continuously thereafter up to and including the month of July, 1956, in the District of Oregon, defendants did unlawfully, willfully and knowingly conspire, combine, confederate and agree together and with each other and with diverse other persons whose names are to the Grand Jury unknown, to commit certain offenses against the United States of America, to-wit: to intercept wire communications and divulge and publish the existence, contents, substance, purport, effect and meaning of said intercepted wire communications of others, without the authority of the senders of said communications, in violation of 47 U.S.C.A. §§ 501 and 605; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America. * *"

Count 1 further alleged that it was a part of the conspiracy that certain acts would be done by defendants. These acts were described in four paragraphs of count 1 numbered 2 to 5, inclusive. Count 1 further alleged that, to effect the object of the conspiracy, eight overt acts were done — six by Elkins, one by Clark and one by both defendants. These acts were described in eight paragraphs of count 1 numbered (1) to (8), inclusive. Thus count 1 charged an offense against the United States, namely, a violation of 18 U.S.C.A. § 371.¹¹

Count 2 alleged: "That defendants, on or about August 23, 1955, in the District of Oregon, did knowingly, willfully and unlawfully, without authority of the senders thereof, intercept and record or cause to be intercepted and recorded, wire communications between William M. Langley and Thomas E. Maloney, and divulge or cause to be divulged the existence of such intercepted communications to others, to-wit: William M. Langley, Clyde C. Crosby and others whose names are to this Grand Jury unknown; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America." Thus count 2 charged an offense against the United States, namely, a violation of 47 U.S.C.A. §§ 501¹² and 605.

The relevant provision of § 605 — the provision on which count 2 was based — is that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." As used in this provision, the term "any communication" includes intrastate communications.¹³ Defendants therefore contend that this provision is unconstitutional. There is no merit in this contention.¹⁴

Specification 1 says that the District Court erred "in denying defendants' motion to dismiss (or in the alternative) a motion to require the Government to furnish a bill of particulars in certain instances," meaning, we suppose, that the District Court erred in denying the motion of March 19, 1957 — the motion which sought (1) dismissal of counts 2-9 of the indictment and (2) a bill of particulars if counts 2-9 were not dismissed.

The stated ground of that part of the motion of March 19, 1957, which sought dismissal of counts 2-9 was, in substance, that counts 2-9 failed to charge offenses against the United States. We have shown that count 2 charged such an offense, and that no decision is necessary as to whether counts 3-9 charged such offenses.

That part of the motion of March 19, 1957, which sought a bill of particulars was addressed to the District Court's discretion, the exercise of which, in the absence of abuse, is not reviewable.¹⁵ The record shows no abuse of that discretion.

Specification 2 says that the District Court erred in denying "the motion to suppress," meaning, obviously, the motion of March 25, 1957, reading as follows: "Come now defendants, by and through their attorneys, and move the District...