475 F.2d 55 (5th Cir. 1973), 72-1779, United States v. Deutsch

Docket Nº:72-1779.
Citation:475 F.2d 55
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DEUTSCH and Alan Brooks, Defendants-Appellants.
Case Date:March 09, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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475 F.2d 55 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert E. DEUTSCH and Alan Brooks, Defendants-Appellants.

No. 72-1779.

United States Court of Appeals, Fifth Circuit.

March 9, 1973

Argued Feb. 5, 1973.

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Charles E. Wood, J. C. Rary, Atlanta, Ga., Court-appointed, C. Ronald Ellington, Court-appointed, and Roger Groot, Professors of Law, University of Georgia, Wayne McCormack, Athens, Ga., for defendants-appellants.

John W. Stokes, Jr., U. S. Atty., George H. Connell, Jr., Gale McKenzie, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before ALDRICH [*], SIMPSON and CLARK, Circuit Judges.

ALDRICH, Circuit Judge:

Defendants Brooks and Deutsch were jointly indicted in two counts for violation of 18 U.S.C. § 201(b)(3): count one for, during the period between November 16 and December 8, 1970, offering to pay a postal employee the sum of $50. for each credit card he should abstract from the mail and deliver, and count two, for giving a postal employee $50. "with intent to induce [him] to do an act in violation of his lawful duty." Defendants were found guilty by a jury on both counts and given concurrent sentences. They appeal.

To some extent the evidence was in sharp dispute. The postal employee, one Morrison, testified that on November 16, 1970 Brooks, in the company of Deutsch, went up to him while his delivery truck was parked on a country road having his "break" and offered to buy all the credit cards he could get for $50. apiece. Brooks testified he approached Morrison because he was smoking, and had long hair, and he thought he might sell him some marihuana. Subsequent encounters occurred, with no transactions taking place, and ultimately. On December 7, Brooks (who was always accompanied by Deutsch) gave Morrison $50. Morrison testified it was paid with the statement that it was "to prove we mean business." Brooks, on the other hand, testified it was merely a loan out of kindness because Morrison was having trouble paying doctors' bills. The next day, pursuant, according to Morrison, to prearrangement, the parties met again, Morrison with two credit cards in his pocket, obtained from his superiors. The government agents, who Morrison's superiors had arranged for, jumped the gun and arrested Brooks and Deutsch before any transaction had taken place. Brooks was found to have exactly $100. on his person.

Defendants' first complaint is that the indictments are duplicitous. We do not agree. This is not a case where the two offenses merged, as in Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (unlawful entry into bank, and robbery of bank); Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (stealing and receiving the same property). If defendants had purchased cards on two separate days, there would have been separate offenses. Here defendants performed different acts, on different days, each a separate offense. The offer on November 16 was a completed offense. United States v. Jacobs, 2 Cir., 1970, 431 F.2d 754.

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Three weeks later, when nothing had materialized, defendants made a payment as earnest money. This was a new matter. Cf. United States v. Barnes, 9 Cir., 1970, 431 F.2d 878.

Defendant Deutsch asserts that he committed no offense. The mere fact that he was present on every occasion, and standing sufficiently close to hear all the conversations, would not have been enough. However, his providing the transportation facilitated the events. Furthermore, Morrison was not shaken with respect to his testimony that Brooks said the payment was to show that "we" mean business. Under all the circumstances, although the question may be close we believe the jury could conclude that the plural was accurate, and that Deutsch attended for a purpose. See, in general, United States v. Garguilo, 2 Cir., 1962, 310 F.2d 249; United States v. Bickford, 1 Cir., 1971, 445 F.2d 829, cert. denied 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262. Nor, while we are on the subject of Deutsch, do we see any prejudicial error in the charge.

Brooks presents an esoteric argument on entrapment which we cannot agree with. It hinges around the claim that Morrison, by asserting that he had a sick wife, induced Brooks to...

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