U.S. v. Garner

• Decision Date: 12 February 1976
• Docket Number: Nos. 75--1570,s. 75--1570
• Citation: 529 F.2d 962
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde Eugene GARNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lorene BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dennis Dwayne GARNER, Defendant-Appellant. to 75--1572.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 962

529 F.2d 962

UNITED STATES of America, Plaintiff-Appellee, v. Clyde Eugene GARNER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lorene BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Dwayne GARNER, Defendant-Appellant.

Nos. 75--1570 to 75--1572.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1975.

Decided Feb. 12, 1976.

Rehearing Denied in No. 75--1570 March 12, 1976.

Rehearing Denied in No. 75--1572 March 19, 1976.

Joseph C. McCarty, III, Thomason, Crawford & Hendrix, Memphis, Tenn. (Court appointed CJA), for Clyde Garner.

J. Brooke Lathram, Memphis, Tenn. (Court appointed CJA), for Lorene Brown.

Kemper B. Durand, Rosenfield, Borod, Bogatin & Kremer, P.C., Memphis, Tenn., for Dennis Garner.

Thomas F. Turley, Jr., U.S. Atty., Memphis, Tenn., W. Hickman Ewing, Jr., Asst. U.S. Atty., for plaintiff-appellee.

Before WEICK, MILLER and ENGEL, Circuit Judges.

WEICK, Circuit Judge.

These appeals were consolidated for oral argument and are from convictions relating to two sets of stolen United States Savings Bonds, forgery of the names of the payees thereof, and the cashing of the bonds by persons not entitled to the money.

In counts I through VII of a 9-count indictment Clyde Euene Garner and Lorene Brown were charged with conspiracy, in violation of 18 U.S.C. §§ 417--73, ¹ substantive violations of § 472 and 2, and perjury in violation of 18 U.S.C. § 1623. Dennis Dwayne Garner was charged in counts VIII and IX with conspiracy and a substantive offense, in violation of 18 U.S.C. §§ 371, 472 and 2.

The charges against Clyde Eugene Garner and Lorene Brown, contained in counts I through VII of the indictment, involved twenty $1,000-U.S. Savings Bonds which were taken in a burglary on February 15, 1969 and were cashed in Florida in December, 1970. Counts VIII and IX of the indictment against Dennis Dwayne Garner dealt with a separate set of stolen U.S. Savings Bonds having a face value of $25,000. Counts VIII and IX of the indictment were severed by the court sua sponte from the remainder of the indictment, and the trial of Dennis Dwayne Garner was conducted separately.

Motions to dismiss the indictments were made by all three defendants on the ground that they were denied their Sixth Amendment right to a speedy trial and that the District Court failed to follow the provisions of its own Plan for the speedy disposition of criminal cases. ² A hearing was held on these motions on September 20, 1974. The trial Judge denied the motions to dismiss and set the dates for defendants' trials.

The trials of Clyde Eugene Garner and Lorene Brown were set for November 25, 1974. On November 29, 1974 the jury returned verdicts of guilty against both defendants. Clyde Eugene Garner was convicted on the conspiracy count and on one perjury count. He was sentenced to five years' imprisonment on the conspiracy conviction and two years' imprisonment on the perjury conviction, the sentences to be served consecutively. Lorene Brown was convicted on one count of conspiracy and three counts of perjury. She was sentenced to three years' imprisonment on each count; however, her sentences were to be served concurrently.

Dennis Dwayne Garner's trial was set for November 4, 1974. Due to circumstances which are not of record and of which appellant does not complain, his trial was actually held on January 10, 1975. Dennis Dwayne Garner waived his right to a jury trial and was tried by the District Judge. He stipulated the facts. The District Judge found him guilty on the conspiracy count, and the substantive charge against him was dismissed. The Judge suspended his sentence on the conspiracy conviction and placed Dennis Dwayne Garner on probation for three years, the period of probation to run from the time of the termination of the sentence he was serving on a similar charge imposed in the District Court of South Carolina.

I

As before stated all three defendants were charged with conspiracy to violate 18 U.S.C. §§ 471--73. On appeal they contend that these sections of the Code do not relate to the forging of endorsements on genuine obligations of the United States; rather they submit that these sections prohibit the counterfeiting or altering of obligations of the United States.

There was no proof introduced at trial that the stolen United States Savings Bonds had been forged or counterfeited; the evidence indicated only that endorsements on genuine bonds had been forged. Appellants reason that because the proof submitted at trial did not constitute a violation of 18 U.S.C. §§ 471--73, the indictments against them should be dismissed.

It is clear that the proof presented at the trials of Clyde Eugene Garner and Lorene Brown and the facts stipulated by Dennis Dwayne Garner are sufficient to support a conviction for conspiracy to violate 18 U.S.C. § 495, which prohibits forgery of any writing for the purpose of obtaining or receiving money from the United States. ³ Appellants concede as much; however, the question remains whether the facts proved at trial also establish a violation of §§ 471--73.

The Supreme Court has considered this issue and has determined that the forgery of an endorsement on a genuine government obligation does not constitute a violation of §§ 471--73. In Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931), the Court held that a forged endorsement of the payee's name on a genuine government draft was not a forgery of an 'obligation of the United States' within the meaning of 18 U.S.C. § 262 (the predecessor of 18 U.S.C. § 471). We believe that analysis is directly applicable to the case at bar.

The ultimate resolution of Prussian, however, was the holding that an indictment under one penal provision was not rendered defective because it also contained the erroneous allegation that another penal provision was violated. Although the Supreme Court determined that the inappropriate statutory provision was cited in the indictment, it refused to dismiss the indictment as, first, the accused was left with no uncertainty as to the charge against him, and second the judgment was sufficient to bar any future prosecution for the same offense.

These same two factors have been used consistently by the Supreme Court in testing the sufficiency of an indictment. Russell v. United States, 369 U.S. 749, 763--64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Applying these factors to the cases before us, we are of the opinion that the indictment was not defective.

It is true that count I of the indictment incorrectly charged Clyde Eugene Garner and Lorene Brown with conspiring to violate 18 U.S.C. §§ 471--73. However, count I in eighteen separate paragraphs also specified detailed facts with regard to the conspiracy. Names of the principal actors and specification of the major overt acts and the dates on which those acts took place were included in the indictment.

Count VIII incorrectly charged Dennis Dwayne Garner with conspiring to violate 18 U.S.C. §§ 471--73. In that count twenty-six separate paragraphs set out the specific factual circumstances upon which the charge was based. None of the defendants can assert that he or she was not aware of the charge against him or her.

The facts as outlined in counts I and VIII indicate that the U.S. Savings Bonds were genuine and that the conspiracy with which the defendants were charged involved the forging of endorsements on genuine bonds. Appellants cannot claim any uncertainty as to the crimes with which they were charged. In addition, counts I and VIII are sufficiently specific to provide a bar to any future prosecution for the same offense.

Defendants have been unable to demonstrate any prejudice resulting to them because of the error in the indictment. The penalty for conspiracy is provided in 18 U.S.C. § 371. We are of the opinion that the indictment was sufficient to charge an offense against the defendants.

Further support for our view is found in Fed.R.Crim.P. 7(c)(3), which provides:

Error in the citation (of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated) for its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead defendant to his prejudice.

The fact that an indictment contains a miscitation of a statute is not grounds for dismissing the indictment unless the defendant is misled thereby. United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788 (1941); United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587, rehearing denied, 411 U.S. 941, 93 S.Ct. 1891, 36 L.Ed.2d 404 (1973); United States v. Van West, 455 F.2d 958 (1st Cir. 1972). There is no contention that the miscitation in the indictment misled the defendants as to the charges against them; indeed, the recitation of specific facts contained within the indictment, alone, is sufficient to adequately inform the defendants of the nature of the charges.

This Circuit has adhered to the principle that if the indictment charges acts that are illegally under an existing federal statute, then the indictment is not invalidated because it cited the wrong statute. United States v. Perez, 457 F.2d 555 (6th Cir. 1972); Pettway v. United States, 216 F.2d 106 (6th Cir. 1954).

We conclude that since the facts alleged in the indictment charged the appellants with respect to forged endorsements on genuine government obligations (a violation of 18 U.S.C. § 495), the fact that the proper statute was not cited in the indictment does not require dismissal of that indictment.

II

Appellants further contend that their Sixth Amendment right to a speedy trial was violated because over one year elapsed between the time they entered their pleas and the time they were finally brought to trial. The...