United States v. Powers, 25308.
| Decision Date | 20 January 1971 |
| Docket Number | No. 25308.,25308. |
| Parties | UNITED STATES of America, Appellee, v. John Joseph POWERS, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles G. Warner, argued, San Francisco, Cal., for appellant.
Richard W. Nichols, argued, Asst. U.S. Atty., Dwayne Keyes, U.S. Atty., Sacramento, Cal., for appellee.
Before HAMLEY and WRIGHT, Circuit Judges, and BURKE, District Judge.*
John Joseph Powers appeals from his conviction for transporting an altered security in interstate commerce in violation of the third paragraph of 18 U.S.C. § 2314.
Under the statute, it must be proved that the defendant transported the security in interstate or foreign commerce "with unlawful or fraudulent intent." Powers argues that this required the United States to prove that he knew or should have known that the money order he cashed would go into interstate commerce and that he fraudulently placed the security into interstate commerce to escape state prosecution. Powers correctly notes that the Government did not prove the existence of either of these circumstances.
There is no requirement under 18 U.S.C. § 2314 that the accused know, foresee, or intend that instrumentalities of interstate commerce will be used. United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946), relied upon by defendant, is not to the contrary. In fact, note 11, on page 385, 67 S.Ct. 332 of that opinion supports the view expressed above.
Powers also attacks the instruction given to the jury on the defense of insanity.
The trial court, bound by the then existing law of the Ninth Circuit (see Ramer v. United States, 390 F.2d 564 (9th Cir. 1968); Sauer v. United States, 241 F.2d 640 (9th Cir. 1957)), gave a modified M'Naghten instruction. Defendant offered and the court rejected an instruction set out in the A.L.I. Model Penal Code. During the pendency of Powers' appeal, however, this court abandoned the M'Naghten rules and adopted the first paragraph of section 4.01 of the A.L.I. Model Penal Code (Final Draft, 1962) as a rule of criminal responsibility for this Circuit. Wade v. United States, 426 F.2d 64 (9th Cir. 1970).
The Government concedes that the case now before us falls within the limited retroactivity of the Wade decision, since Powers' conviction had not become final on the date Wade was announced. The Government also agrees that, under the circumstances, failure to object to the instruction given does not preclude defendant from questioning the insanity instruction on this appeal. See United States v. Wanger, 426 F.2d 1360 (9th Cir. 1970).
It is the Government's position, however, that no prejudicial error resulted from giving the M'Naghten instruction on insanity rather than the instruction subsequently approved in Wade.
This court in United States v. Porter, 431 F.2d 7 (9th Cir. 1970), held that the failure to give the Wade instruction on insanity can be, and was in that case, non-prejudicial error. In Porter, we noted that "the Government's evidence established, almost conclusively, that defendant would not have been able to prove that he lacked `substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.'" 431 F.2d at 8-9. In that case, no significant evidence was offered by the defense to refute the Government experts' conclusions that the defendant was sane at the time of the commission of the offense.
The case now before us is substantially different. Dr. Edward J. Delehanty, a psychiatrist, testified as an expert witness for the defense and was cross-examined by the prosecution. This witness not only testified repeatedly that Powers was unable to make a judgment between right and wrong, but also discussed other aspects of the defendant's mental condition. Dr. C. H. Hardin Branch, the Government's expert witness, testified to Powers' mental condition, expressing his opinion that the defendant was competent to stand trial and was sane at the time the offense was committed. His responses to questions framed strictly within the M'Naghten, definition of insanity were unequivocal and no doubt weighed heavily with the jury.
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U.S. v. Franklin
.... . . that the accused know, foresee, or intend that instrumentalities of interstate commerce will be used." United States v. Powers, 9 Cir., 1971, 437 F.2d 1160-1161. This is so because the statute "is aimed at the evils of theft, fraud, and counterfeiting and not at the regulation of inte......
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U.S. v. Anderson
...other objections relate to the law of conspiracy. Section 2314 does not require intent to use interstate commerce. United States v. Powers, 437 F.2d 1160, 1161 (9th Cir. 1971). Nor does such a conspiracy. United States v. Greer, 467 F.2d 1064, 1071 (7th Cir. 1972). Statements of a co-conspi......
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U.S. v. Vaccaro
...knowledge of use of an interstate facility is an essential element of a violation of 18 U.S.C. Secs. 1952 or 2314. United States v. Powers, 437 F.2d 1160, 1161 (9th Cir.1971); United States v. Roselli, 432 F.2d 879, 890-91 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d......
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U.S. v. Sparrow
...of the instrument on the part of the defendant is not required. United States v. Masters, 9 Cir., 456 F.2d 1060; United States v. Powers, 9 Cir., 437 F.2d 1160; United States v. Mingoia, 2 Cir., 424 F.2d 710. The essence of the offense is the fraudulent scheme itself and the interstate elem......
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§ 5.05 Interstate Transportation of Stolen Property (18 U.S.§ 2314)
...(7th Cir. 1997). Eighth Circuit: United States v. Ludwig, 523 F.2d 705, 706-08 (8th Cir. 1975). Ninth Circuit: United States v. Powers, 437 F.2d 1160, 1161 (9th Cir. 1971). Tenth Circuit: United States v. Newson, 531 F.2d 979, 980-81 (10th Cir. 1976). [788] United States v. Bottone, 365 F.2......