U.S. v. Dawson

• Citation: 516 F.2d 796
• Decision Date: 02 May 1975
• Docket Number: No. 73-2356,73-2356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold DAWSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 796

516 F.2d 796

UNITED STATES of America, Plaintiff-Appellee, v. Harold DAWSON, Defendant-Appellant.

No. 73-2356.

United States Court of Appeals, Ninth Circuit.

May 2, 1975.

P. Vernon Zeitsoff, Deputy Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant.

Arthur W. Vance, Jr., Sp. Asst. U. S. Atty. (argued), for plaintiff-appellee.

OPINION

Before BARNES and BROWNING, Circuit Judges, and McNICHOLS, ^* District Judge.

BARNES, Circuit Judge:

This is an appeal from a one-count conviction of bribery (18 U.S.C. § 201(d)). Appellant was found guilty of making an offer of money on January 4, 1973, with the intent to influence the testimony, under oath, of defendant's brother, Earl Dawson, respecting the burglary of the United California Bank in Laguna Niguel, California, which had occurred on March 25-26, 1972.

There are three issues raised by appellant. We use our own language to describe them:

1. In withdrawing from the trial jury's consideration (for lack of evidence) a portion of the indictment under which defendant was tried, did the trial judge amend the indictment in violation of defendant's Fifth Amendment right not to "be held to answer for . . . (an) infamous crime, unless on . . . indictment of a Grand Jury"?

2. Did the seizure, and subsequent admission into evidence, of defendant's hand printed note, taken from him in the visiting room of a prison in which defendant was incarcerated, constitute a violation of either defendant's Fourth Amendment right to be free from unreasonable searches and seizures, or his Fifth Amendment right not to be compelled to give self-incriminating testimony?

3. Did the trial judge abuse his discretion in admitting into evidence what appellant regards as irrelevant and prejudicial?

There is no dispute as to the proceedings occurring in the district court.

The defendant, Harold Lee Dawson, was indicted by a Federal Grand Jury for the Central District of California on April 30, 1973, in Case No. 12468-CD, for violation of 18 U.S.C. § 201(d), bribery of a witness, to wit: Earl Dawson, "with the intent to influence the testimony under oath of said Earl Dawson as a witness upon" the trial of United States v. Ronald Barber, et al., Case No. 11874-CD.

The defendant was arraigned upon that indictment before the Honorable Manuel L. Real, United States District Judge, on May 7, 1973, and trial thereon was set for June 12, 1973.

On June 11, 1973, superseding indictment No. 12719-CD was returned, charging defendant with violation of 18 U.S.C. § 201(d): bribery of Earl Dawson "with the intent to influence the testimony of said Earl Dawson as a witness at" the trial of United States v. Charles Albert Mulligan, et al., Case No. 10652-CD, and United States v. Ronald Barber, et al., Case No. 11874-CD, "and such hearings and other proceedings held in connection with the aforesaid cases." (C.T. 1-2.)

The original and the superseding indictments differ in only one regard; that is, the original indictment charges that the money was offered with the intent of influencing Earl Dawson's testimony in the Barber case, and the superseding indictment charges that the intent was to influence his testimony in both the Mulligan and the Barber cases. Defendant moved that the superseding indictment be dismissed, because of duplicity and undue reliance on hearsay testimony before the Grand Jury. The motion was denied.

Defense counsel also filed a motion to suppress a note taken from the defendant in jail by a guard. This motion was heard and denied prior to trial (R.T. 13). The testimony on this motion showed that a jail guard on duty in the visitor's room saw conduct on the part of the defendant and another prisoner, (one James Dinsio, another jail inmate, and a co-defendant in the Barber trial), which led him to believe that the two prisoners were passing a note from one to another. Because such conduct was forbidden by prison regulations, the guard seized the note from the defendant, questioned the defendant about it, returned the note to the defendant, and shortly thereafter, being unsatisfied with the defendant's explanation, seized the note again.

The district court having denied defendant's motions to suppress and dismiss, Dawson was tried by a jury beginning on June 12, 1973. Final arguments were heard on the morning of June 14, and that afternoon Judge Real instructed the jury and sent them off to deliberate. One of the instructions given to the jury by the trial judge (the construction of which as either being to "amend" or "strike surplusage" is here at issue) was as follows:

"There is removed from your consideration the conduct of the defendant as it might refer in any way to the Case Number 11874 entitled, 'United States versus Ronald Barber, Harry James Barber and James Frank Dinsio.' "

"So you are to consider only the conduct of the defendant with reference to the Case Number 10652, which is the United States versus Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher and Amil Alfred Dinsio." (R.T. 543.)

At 5:17 p. m. that same day the jury returned a verdict of guilty.

Dawson was sentenced, on June 29, 1973, to seven years imprisonment under the provisions of 18 U.S.C. § 4208(a)(2), and was made eligible for parole at such time as the Board of Parole may determine, and was required to pay a fine of Forty Thousand Dollars.

Defendant appeals. This Court has jurisdiction to entertain the appeal. (28 U.S.C. §§ 1291 and 1294.)

We find no error, and affirm.

I. Defendant's Right to a Grand Jury Indictment.

The court, in instructing the jury as hereinbefore set forth, took from the jury the consideration of the following bracketed portion of the indictment:

". . . defendant . . . corruptly did . . . promise money . . . to Earl Dawson, a witness, before the United States District Court for the aforesaid District in cases pertaining to the burglary of a California Bank in Laguna Niguel, California, on March 25th, 26th, 1972, and captioned 'United States versus Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher and Amil Alfred Dinsio,' Number 10652 Criminal, (and United States versus Ronald Barber, Harry James Barber and James Frank Dinsio, Number 11874 Criminal,) with the intent to influence the testimony under oath of the said Earl Dawson as a witness at such trials and such hearings and other proceedings held in connection with the aforesaid cases." (R.T. 542, 543.)

Both criminal cases named in the preceding indictment were prosecutions arising out of one bank robbery, that of the Laguna Niguel Branch of the United California Bank on March 25 and 26, 1972. The first criminal prosecution filed by the Government, No. 10652 was against Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher, and Amil Alfred Dinsio. The second criminal prosecution filed by the Government, No. 11874, was against Ronald Barber, Harry James Barber and James Frank Dinsio.

The only proof of an offer of money to Earl Dawson by defendant Harold Dawson to have Earl Dawson change his testimony as a witness at any one trial, was that appellant asked Earl Dawson "to help his friend Chuck Mulligan that was earlier convicted of this here bank burglary" (R.T. 105); that Earl should go back to "the lawyers" in Cleveland, and tell these people "that the FBI has made me lie during these other court proceedings" (R.T. 106); and that if I did so "they would set aside a large sum of money ( "twenty or twenty-five thousand dollars" ) if I would cooperate." (R.T. 105.)

Charles Mulligan was not named or charged in any way in the Barber case; and as the defendant only mentioned Mulligan as the person for whom "help" was asked, the trial court concluded that no evidence existed of bribery to help anyone involved in the Barber case. So concluding, and fearing that the jury might be needlessly confused by the reference to the Barber case, the trial court removed that issue from the jury's consideration by means of the aforementioned instruction.

The issue we now face is whether that instruction by the court constituted a violation of defendant's constitutional right to a Grand Jury Indictment. Or, stated alternatively, whether the trial court's removal of the issue of bribery relative to the Barber case amounted to a constitutionally impermissible amendment of the Grand Jury's indictment, or the innocuous striking of mere surplusage therefrom?

The Fifth Amendment guarantees that in federal criminal cases "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ."

In Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the United States Supreme Court announced the rule that an amendment to the body of an indictment violates defendant's Fifth Amendment rights and renders a conviction based thereon void. ¹ The Court reasoned (Id. at 9-10, 7 S.Ct. 781 ²) that due to the amendment of the indictment, the defendant was not tried on the indictment returned by the Grand Jury, as is his constitutional right, and that trial on the amended indictment is constitutionally repugnant because there is no way of knowing whether the Grand Jury would have returned the indictment as amended if they had been given the opportunity.

Although the language and rationale of Bain are exceptionally broad, in the considerable time that has passed since Bain was decided, the courts have engrafted several exceptions and limitations on this "no amendment rule," foremost being that making corrections of typographical errors, or making changes that are "merely a matter of form," are not constitutionally impermissible. ³

"In addition to the rule permitting amendment on matters of form, another ameliorating doctrine is the rule that a portion of an indictment that the evidence does not support may be withdrawn from the jury, and this...