Downing v. United States

• Decision Date: 08 November 1965
• Docket Number: No. 21797.,21797.
• Citation: 348 F.2d 594
• Parties: Gene DOWNING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 594 (1965)

Gene DOWNING, Appellant, v. UNITED STATES of America, Appellee.

No. 21797.

United States Court of Appeals Fifth Circuit.

July 12, 1965.

Certiorari Denied November 8, 1965.

COPYRIGHT MATERIAL OMITTED

H. G. Bill Dickey, Tulsa, Okl., Mark F. Howell, El Paso, Tex., for appellant.

Mario J. Martinez, H. M. Raney, Asst. U. S. Attys., El Paso, Tex., Ernest Morgan, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., Western District of Texas, San Antonio, Tex., for appellee.

Before BROWN and GEWIN, Circuit Judges, and KILKENNY,^* District Judge.

Certiorari Denied November 8, 1965. See 86 S.Ct. 235.

GEWIN, Circuit Judge:

Appellant Gene Downing was tried by a jury and convicted in the United States District Court for the Western District of Texas on a ten count indictment, the first nine counts of which alleged that he and two other named defendants unlawfully transported and caused to be transported in interstate commerce from El Paso, Texas, to San Francisco, California, certain falsely made and forged Bank of America Travelers Cheques in violation of Title 18 U.S.C.A. 2314. The tenth count charged a conspiracy in the Western District of Texas and at other places outside that district to unlawfully transport and cause to be transported in interstate commerce such falsely made and forged cheques in violation of Title 18 U.S.C.A. 371. The indictment alleged twelve overt acts in furtherance of the conspiracy. Although some of the overt acts involved Downing, none charged him with having committed any specific act in the Western District of Texas.

Downing was granted a severance and tried separately. The other two defendants, Burns Trusty, Jr. and Robert Stephen Pickard, pleaded guilty to the conspiracy count and were sentenced, and the latter testified for the Government. Downing was convicted on all counts and sentenced to serve five years on each, the sentences to run concurrently. His motion for a new trial and for judgment of acquittal was overruled.

The evidence shows that on January 30, 1962, the Bank of America in San Francisco issued a number of blank travelers cheques to the First National Bank of Nash, Oklahoma, which was burglarized on February 23, 1962. Bank of America Travelers Cheques totaling approximately $6,900 were stolen along with certain other securities. The travelers cheques later appeared beneath the back seat of an automobile at the home of Downing, a used car dealer near Tulsa, Oklahoma. There on or about March 2, 1962, all three defendants discussed the matter of cashing these checks. It was agreed that Trusty and Pickard would forge and negotiate them, and the proceeds remaining after their expenses had been paid would be divided equally among the three. Trusty "purchased" a used car from Downing for the purpose of transporting the cheques in interstate commerce.¹ He also gave Trusty some money "to get out of Oklahoma." Trusty and Pickard took the blank cheques from the car located at Downing's home near Tulsa, drove to Arkansas where they stole an Oklahoma license plate and placed it on the car they had "purchased," forged some of the cheques, and then proceeded to Louisiana, Alabama, and Florida, cashing them along the way. In Mobile they wired $500 to Downing in Tulsa.² Upon their return to Tulsa, March 9, the three split the remaining proceeds at Downing's house, and returned to him the uncashed cheques.

About March 12, Downing instructed Trusty and Pickard to go West with the remainder of the cheques, and wire him money as they went along. They stole another license plate at Sayre, Oklahoma, and cashed more forged cheques en route to Amarillo, Texas, New Mexico, and El Paso. They cashed a total of $600 in cheques at motor hotels in El Paso. At the trial Pickard positively identified the cheques which he and Trusty had obtained from Downing, forged, and cashed in El Paso. It was shown by other evidence that these were the cheques which were stolen from the Oklahoma bank. They were ultimately presented to and paid by the issuing bank in San Francisco through regular banking channels. On March 15, Trusty wired $500 from El Paso to Downing in Oklahoma. The two then drove to New Mexico, Arizona, California, and Nevada before returning to Tulsa about March 21, 1962, where the three again split the proceeds.

Western Union records corroborated the payments by wire, and the records from motels in Mobile and El Paso corroborated the testimony of Pickard as to places visited, the dates, and some of the aliases used. The testimony of a motel auditor and the records of an El Paso bank established that the cheques cashed at a motel in El Paso by defendants were deposited with it and duly forwarded to the issuing bank in San Francisco. Latent fingerprints on some of the cheques were identified by FBI agents as those of Pickard and Trusty.

Downing contends that his conviction should be set aside because (1) the trial court did not have jurisdiction; (2) the indictment did not charge him with the commission of a crime; (3) the prosecution should have furnished a bill of particulars and a list of its witnesses; (4) the court admitted improper evidence; (5) the judge did not handle the jury properly; (6) the court erred in denying the motion for an instructed verdict and judgment of acquittal. These contentions will be discussed in the order listed.

Throughout the trial, Downing persistently challenged the jurisdiction of the trial court. His contentions at trial and here relate more to the subject of venue than jurisdiction. There is no doubt that the Texas federal district court has jurisdiction to try a case of this character if venue is proper.³ Downing insists that since the evidence shows that he was never in the Western District of Texas and did not communicate with anyone there during the period covered by the indictment, the court had no jurisdiction over him. Protesting vigorously and ardently contending that he is innocent of all crime, he asserts that he could be guilty only of a conspiracy and that since the conspiracy was formed in Oklahoma, he should be tried there rather than in Texas. Furthermore, he objects to the order and sequence in which the evidence was presented. It is asserted that the Government was not authorized to introduce evidence in proof of the substantive offenses alleged in counts 1 through 9 until it was first proved that he was guilty of the conspiracy charged in count 10. Downing urges that since all of the evidence shows the conspiracy to have been formed in Oklahoma, the Texas court should not be permitted to hear evidence in support of any of the counts. To permit such evidence would deprive him of his right under the 6th amendment to a trial "by an impartial jury of the state and district wherein the crime shall have been committed."

The contentions of the appellant are foreclosed both by statute, 18 U.S.C.A. § 3237,⁴ and by court decisions. A conspiracy may be prosecuted in the district where it was formed or in any district in which an overt act was committed in furtherance of its objects. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); Finley v. United States (5 Cir. 1959) 271 F.2d 777; Ladner v. United States (5 Cir. 1948) 168 F.2d 771; Chapman et al. v. United States (5 Cir. 1926) 10 F.2d 124. The place where the conspiracy was formed is immaterial if at least one of the overt acts alleged and proved took place within the district where the defendant is tried. Crosby v. United States (5 Cir. 1956) 231 F.2d 679. It is not essential that the defendant ever enter the state or district of trial. Davis v. United States (5 Cir. 1945) 148 F.2d 203; United States ex rel. Kranz v. Humphrey (3 Cir. 1949) 174 F.2d 741. The order and sequence of proof is another matter which will be discussed infra. Here it is sufficient to state that Downing was bound by the unlawful acts and statements of his co-conspirators in furtherance of the conspiracy, although such acts and statements took place in Texas out of his presence. Once the conspiracy was established, there was a partnership in crime and the partners acted for each other in carrying it forward. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1945). There was ample evidence of overt acts committed by Downing's co-conspirators within the Western District of Texas. Not only is he subject to prosecution in the Western District of Texas for any criminal conduct of his co-conspirators committed there in furtherance of the conspiracy under the rationale of Pinkerton, he is also subject to such prosecution there for such conduct on the theory that he was an aider and abettor. 18 U.S.C.A. § 2; Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1952); Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949).

Downing's attack on the indictment consists of a short motion to dismiss which contains the simple assertion that the indictment fails to allege that the defendant committed any crime against the United States. His brief fails to supplement his motion. It does not deal with the sufficiency of the allegations of the indictment, but contains only loose assertions relating to the sufficiency of the proof.⁵ An indictment which follows the language of the statute is ordinarily sufficient unless the statute omits an essential element of the offense. The indictment under which Downing was tried substantially follows the language of the statutes involved and each count contains the official citation of the statute which the defendant is alleged to have violated. We consider it sufficient. F.R.Crim.P. 7(c); Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Babb v. United States (5 Cir. 1955) 218 F.2d 538; Johnson v. United States (5 Cir. 1953) 207 F.2d 314; Robertson v. United States (5 Cir. 1948) 168 F.2d 294; Norris v. United States (5 Cir. 1946) 152 F.2d 808, cert. denied, 328...