672 F.2d 239 (1st Cir. 1982), 81-1340, United States v. McLennan

Docket Nº:81-1340.
Citation:672 F.2d 239
Party Name:UNITED STATES of America, Appellee, v. Earl McLENNAN, Defendant, Appellant.
Case Date:March 15, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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672 F.2d 239 (1st Cir. 1982)

UNITED STATES of America, Appellee,


Earl McLENNAN, Defendant, Appellant.

No. 81-1340.

United States Court of Appeals, First Circuit

March 15, 1982

Argued Jan. 5, 1982.

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Jeanne Baker, Cambridge, Mass., with whom Leslie J. Rosen, David L. Kelson, Todd Cronan, and Baker & Fine, Cambridge, Mass., were on brief, for defendant, appellant.

John H. La Chance, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, TIMBERS [*] and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Defendant Earl McLennan appeals from his conviction, under 18 U.S.C. § 3, 1 as an accessory after the fact to Jamiel Chagra's August 23, 1979 bail jump. 2 McLennan was tried by a jury in April 1981, found guilty, and sentenced to a one-year prison term. This appeal followed.

The parties stipulated in the district court that in 1979 Jamiel Chagra was released on bail by the United States District Court for the Western District of Texas; that Chagra was present at an August 15, 1979 hearing

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where he was ordered to appear at an August 23 hearing on a government motion to increase his bail; that when Chagra failed to report as required to a probation officer on August 21, his bail was revoked and a higher bail set; and that he "willfully" failed to attend the scheduled August 23 bail hearing. A warrant then issued for his arrest. McLennan further stipulated that Chagra was apprehended some six months later in Las Vegas, Nevada.

At McLennan's trial, the government introduced evidence tending to show that McLennan and Chagra were close friends and business associates. Witnesses reported seeing the two men together at each other's homes on a number of occasions in 1978. They were also seen together during 1978 and perhaps early 1979 at Caesar's Palace in Las Vegas. The senior vice president of Caesar's Palace reported that Chagra had guaranteed a $20,000 line of credit for McLennan at the casino and that, as of December 14, 1978, McLennan owed the casino some $17,500, a debt which has never been paid. He said that Chagra was also a heavy gambler and a good customer at Caesar's Palace.

Respecting McLennan's alleged role in Chagra's bail jump, the government showed that McLennan, who apparently lived in Florida, was in Wisconsin on September 13, 1979 (some three weeks after Chagra disappeared) and purchased, in his own name, an automobile. Three weeks later, on October 5, McLennan appeared in Worcester, Massachusetts, where he purchased a 1979 Winnebago using a phony Wisconsin driver's license and other identification papers bearing the name "Christopher P. Titchell." He paid the $23,000 purchase price in three cash payments of $5,000, $5,000 and $13,000. McLennan stipulated at trial that the Winnebago salesman was under the impression McLennan was buying the vehicle for a third party.

At about the same time that McLennan was purchasing the Winnebago, Leon Nichols, Chagra's brother-in-law, drove his sister (Chagra's wife) and her two children from their home in El Paso, Texas to Pittsburgh, Pennsylvania where, Nichols testified, they were to meet Jamiel Chagra. They arrived in Pittsburgh on October 5. Nichols returned to Texas the next day, leaving Chagra's wife and children behind at a motel.

Four days later, on October 9, one "Chris Titchell" checked into a campground in Iowa with one other adult and two children. He was driving a Winnebago with the same Massachusetts registration as the one purchased by McLennan on October 5. On December 24, 1979, a "Phillip Titchell" registered at a Holiday Inn in Kansas City. On December 26, a Kansas City real estate agent took a "Chris and Martha Titchell" to see a house for rent in a suburb of Kansas City. Two days later, this agent visited the "Titchells" at a motel where they executed a lease for the house. While at the motel, the agent saw a large Winnebago and later identified the man calling himself "Chris Titchell" as, in fact, Jamiel Chagra. Chagra was finally apprehended on February 21, 1980, near a Las Vegas motel where he had registered using the Titchell alias. Leon Nichols was also registered at the same motel.

At the time of his arrest, Chagra's wallet contained a phony Wisconsin driver's license bearing the name "Christopher P. Titchell" and displaying the same identification number as the phony license used by McLennan when he purchased the Winnebago in October. The wallet also contained a paper with McLennan's wife's residential telephone number in Florida written on it and a number of other false identification papers, some of which linked Chagra to McLennan.

Some months later, in May 1980, the FBI located the Winnebago on a farm in El Paso, Texas. Inside, they were able to develop both McLennan's and Chagra's fingerprints. In one instance, the two men's prints were on facing pages of the owner's manual.

McLennan now contends that the district court erred in denying his pretrial motion to dismiss the indictment and that the evidence was insufficient to establish an essential element of the offense. He also argues

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that the district court's instruction to the jury on reasonable doubt was erroneous and that a remark made by the district court in its opening communications with the jury panel was improper. We deal with each of these issues.

McLennan timely moved to dismiss the indictment prior to trial arguing that it was fatally defective because it did not specifically allege that Chagra's bail jump, to which McLennan was allegedly an accessory, was willful. 3 See 18 U.S.C. § 3150; note 2. In challenging the court's denial of his motion, McLennan does not argue that he was misled or otherwise prejudiced in his defense by this deficiency. Rather, he argues that his right under the fifth amendment not to be held to answer for a crime unless on indictment of a grand jury was violated because his indictment as an accessory after the fact failed to include all the elements of the offense (encompassing, as he asserts, see infra, both the accessory crime and the offense which underlies it).

The general rule is that an indictment is sufficient under the Constitution so long as it fairly pleads all of the essential elements of an offense and "apprises a defendant of the crime with which he is charged so as to enable him to prepare his defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense." Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963). See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Indictments, however, need not always plead required scienter elements in precise statutory terms such as "willfully" or "knowingly" so long as other words or facts contained in the indictment "necessarily or fairly import guilty knowledge." Madsen v. United States, 165 F.2d 507, 509-10 (10th Cir. 1947). See also Hughes v. United States, 338 F.2d 651, 652 (1st Cir. 1964) (scienter element is sufficiently pleaded if "other allegations in the indictment compel an inference of intent"); Griffith v. United States, 230 F.2d 607 (6th Cir. 1956) (word "knowingly" not required when other words "plainly and definitely indicate ... the essential ingredient of scienter").

In Portnoy, the defendant was convicted of assaulting a United States marshal. Before trial he moved to dismiss his indictment because it failed to state that, at the time of the assault, he knew his victim was a federal officer. The indictment did state, however, that the defendant committed the assault "on account of (the officer's) official duties." Examining this language, this court found that the words "on account of" necessarily implied that the defendant had the requisite knowledge of the victim's official status at the time of the attack and upheld the indictment. By contrast, in Hughes v. United States, we held that the word "unlawfully" was alone insufficient to import the specific felonious intent which constituted a necessary element of the statutory crime. The present case comes somewhere between these two examples, but we think it closer to Portnoy.

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We observe initially that an indictment charging one as an accessory after the fact must plead the underlying offense, meaning here the bail jumping offense, as well as the accessory offense. See United States v. Balano, 618 F.2d 624, 633 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980) (accessory crime "presupposes the completion of an underlying crime"); 42 C.J.S. § 149. In the present case "willfully" is undoubtedly a necessary element of bail jumping under section 3150: were one to fail to appear negligently or for good cause, the statutory crime would not be committed. The question is thus whether, in the absence of an express allegation in the present indictment that Chagra's bail jump was "willful," the allegation is nonetheless so implicit in the language constituting the indictment as to render the omission immaterial. We think it is.

The indictment states that Jamiel Chagra was convicted of a federal crime "on or about August 15, 1979"; that about a week later he "failed to appear" before the district court "after having been ordered to do so"; that this failure constituted a "violation of 18 U.S.C. § 3150"; and that Chagra was "defaulted" by the court for this act. In addition, the indictment asserts that Earl McLennan knowingly and willfully aided Chagra during a period of some eight months "in order to hinder and prevent (Chagra's) apprehension and punishment." The obvious import of this last assertion is that Chagra was fleeing the authorities during this period with the "willful"...

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