Glenn v. United States

Decision Date25 May 1962
Docket Number18940.,No. 18859-18861,18859-18861
PartiesDock Perry GLENN and William M. Belvin, Appellants, v. UNITED STATES of America, Appellee. Ronnie J. EVERITT, Appellant, v. UNITED STATES of America, Appellee. Ronnie J. EVERITT and Clifton Hawkins, Appellants, v. UNITED STATES of America, Appellee. Clifton L. HAWKINS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

S. Gunter Toney, Tallahassee, Fla., Larry E. Temple, Austin, Tex., Ronnie J. Everitt, Panama City, Fla., Robert B. Reynolds, Houston, Tex., for appellants.

Edward L. Stahley, Asst. U. S. Atty., Tallahassee, Fla., C. W. Eggart, Jr., Acting U. S. Atty., Pensacola, Fla., for the United States.

Before JONES, WISDOM and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

These four cases arise out of a series of "automobile accidents" in Georgia during 1955 and 1956 which the appellants in these proceedings allegedly staged for the purpose of defrauding certain insurance companies. The appellants were indicted in the United States District Court for the Northern District of Florida February 7, 1958, for violation of the federal Mail Fraud Statute, 18 U.S.C.A. § 1341. In the first, second, and fourth cases this is the second appeal. The defendants obtained a reversal of their first convictions, but on retrial they were convicted again. Belvin et al. v. United States, 5 Cir., 1960, 273 F.2d 583; Everitt v. United States (Thompson v. United States, and Glenn v. United States), 5 Cir., 1960, 281 F.2d 429. In the third case this is the first appeal. We affirm the convictions.

GLENN and BELVIN v. UNITED STATES
Joint First Argument: Defective Indictment

Glenn and Belvin, in this case, and all of the defendants in the other cases, argue that there is a fatal defect in the indictments on which their cases were submitted for trial before the petit jury. Section 1341 provides, in part, as follows: "Whoever, having devised or intending to devise any scheme or artifice to defraud * * * places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail * * any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both." (Emphasis added). The indictments against these defendants charged that they formed a scheme to defraud and that "for the purpose of executing the aforesaid scheme and artifice and attempting to do so caused to be delivered by the post office" the letters in question. (Emphasis added). The defendants argue that the indictments do not include all the ingredients of the offense since they fail to charge the defendants with knowingly causing use of the mails.

Sufficiency of an indictment is not to be lightly dismissed as a mere formality or technical nicety. History and constitutional enactment have impressed it with a special importance. "The formality, certainty, and verbal precision required in an indictment has always been one of the most salient characteristics of English criminal procedure." 3 Holdsworth, History of English Law (3d ed. 1926) 616. See also Ex parte Wilson, 1885, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89. The Fifth Amendment states that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *." This constitutional provision and Rule 7 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., must be read as intending that the indictment shall cover all essential elements in the offense. See United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.

In this case the defendants are correct in asserting that their indictments were required to cover the element of knowledge that their actions would cause a use of the mails, since if the only use of the mails caused by their fraudulent conduct had been unanticipated and incidental, they would not have violated the mail fraud statute. In interpreting Section 1341, courts have established the rule that for a scheme to come within the reach of that provision it must have "reasonably contemplated" a use of the mails. Compare Steiner v. United States, 5 Cir., 1943, 134 F.2d 931, cert. denied, 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721 and Hart v. United States, 5 Cir., 1940, 112 F.2d 128, cert. denied, 311 U.S. 684, 61 S.Ct. 60, 85 L.Ed. 441 with Getchell v. United States, 5 Cir., 1960, 282 F.2d 681. See also Pereira v. United States, 1954, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435.1

The appellants' argument falters on their assertion that their indictments did not cover the essential element of "knowingly" causing a use of the mails. A defendant has no right to have his indictment phrased in the exact language of the statute; any language is sufficient so long as it plainly describes each element of the offense. United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; Kreuter v. United States, 5 Cir., 1955, 218 F.2d 532, cert. denied, 349 U.S. 932, 75 S.Ct. 777, 99 L. Ed. 1262. The flaw asserted in this case is that the indictment does not use the word, "knowingly." But the element established by "knowingly" is satisfactorily described by the phrase, "for the purpose of executing the aforesaid scheme and attempting to do so." A person may unintentionally cause an event to occur, but it is impossible for a person to cause an event for a specific purpose without knowledge of what he is doing. This indictment did not charge the defendants simply with forming a scheme and causing the use of the mails; it charged them with forming a scheme and, for the purpose of accomplishing the scheme, causing a use of the mails. The additional phrase unmistakably indicates that the use of the mails was caused knowingly, and any layman on the grand jury must have realized this. The indictments were sufficient.

Belvin's Second Argument: Improper Restriction of Cross-Examination

The appellant Belvin argues that the trial judge improperly restricted his rights of cross-examination. The prosecution's primary witness was Harold W. Snow, an accomplice in the fraudulent accidents, who described to the jury the scheme and its execution. For purposes of impeachment, appellant's counsel questioned Snow about discrepancies between his testimony and statements he made shortly after the accident. A letter that Snow wrote to a United States Attorney May 30, 1959, contained statements in direct contradiction to portions of Snow's trial testimony. Snow admitted frankly that he had made the earlier inconsistent statements. Belvin's attorney then sought to read selected sentences from the letter to the jury. The trial judge stated that he would allow the attorney to introduce the letter in its entirety but that it was not permissible to read excerpts. The appellant chose not to introduce the letter, presumably because of its other contents.

We cannot agree that the defendant's right to impeach adverse witnesses was improperly restricted. No prejudice has been shown. The defendant brought out the substance of the earlier statements and the fact that they contradicted the witness's trial testimony, and he was allowed to introduce the letter. Reading selected sentences from the letter might have heightened their impact but would not have brought any additional information to the attention of the jury. Since the statements had been admitted already, there was no need to prove them. In denying permission to read excerpts from the letter, the trial judge properly guarded against the possibility that sentences read out of context may be misleading.

Belvin's Third Argument: Insufficiency of the Evidence

Belvin argues that the evidence was insufficient to support his conviction. There is not a shadow of substance to this argument. First, Belvin asserts that the evidence does not show whether the victim, the Iowa Mutual Insurance Company, is an individual, a partnership, or a corporation. This argument was disposed of with full and adequate reasons the first time this case was here on appeal. Belvin v. United States, 5 Cir., 1960, 273 F.2d 583, 584. Second, Belvin says that there is no evidence to tie him in to the fraudulent scheme. We have carefully considered the evidence pertinent to this assertion. We find the contention without merit.

Glenn's Second Argument: Failure to Return Indictment Into Open Court

Glenn (and the other defendants) contends that his conviction was defective since the record fails to show that the indictment was returned into open court. Rule 6(f) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., provides that "the indictment shall be returned by the grand jury to a judge in open court." See Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 68 L.Ed. 680; Breese v. United States, 1912, 226 U.S. 1, 33 S.Ct. 1, 57 L.Ed. 97; Renigar v. United States, 4 Cir., 1909, 172 F. 646, 26 L.R.A.,N.S., 683; Orfield, The Federal Grand Jury, 22 F.R.D. 343, 373-375 (1959). The appellant's point was arguable when made. It has been undercut, however, by a subsequent amendment of the record making clear that the indictment was returned into open court.

On motion by the appellee, this Court ordered correction of the record by the inclusion of certified copies of pages 17 and 18 of the Criminal Minute Book F, for January 28, 1958, to September 22, 1960, of the United States District Court for the Northern District of Florida. Such a correction is authorized by Rule 39(b) (1), F.R.Cr.P., and Rule 75(h), F.R.Civ.P., 28 U.S.C.A. The supplemental pages declare that at a stated term of the District Court before Judge DeVane "the Grand Jury, heretofore duly impaneled and sworn of February 5, 1958, to inquire in and for the body of the Northern District of Florida, came into court and presented the following...

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