720 F.2d 1156 (10th Cir. 1983), 82-1307, United States v. Janoe

Docket Nº:82-1307.
Citation:720 F.2d 1156
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Scott Brian JANOE, Defendant-Appellant.
Case Date:November 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1156

720 F.2d 1156 (10th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Scott Brian JANOE, Defendant-Appellant.

No. 82-1307.

United States Court of Appeals, Tenth Circuit

November 4, 1983

Certiorari Denied Feb. 21, 1984.

See 104 S.Ct. 1310.

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C. Thomas Bastien, Denver, Colo., for defendant-appellant.

Robert S. Streepy, Asst. U.S. Atty., Topeka, Kan. (Jim J. Marquez, U.S. Atty. and Vernon E. Lewis, Asst. U.S. Atty., Topeka, Kan., were on brief), for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY, Circuit Judge, and ARRAJ, District Judge [*].

HOLLOWAY, Circuit Judge.

Defendant Scott Brian Janoe was convicted, after a jury trial, of bank robbery and aiding and abetting the robbery, in violation of 18 U.S.C. Secs. 2113(a) and 2. 1 Defendant appeals, claiming error on grounds that (1) the trial court improperly amended the indictment under which defendant was charged; (2) defendant did not knowingly and voluntarily waive his right to testify; (3) defendant did not receive effective assistance of counsel; and (4) the trial court erred in refusing to hold a hearing under 18 U.S.C. Sec. 3501 on the voluntariness of defendant's confession. We disagree with the first three of defendant's contentions but conclude that a hearing is required under Sec. 3501, and remand for that reason.

I

The grand jury charged that on September 4, 1981, defendant and his brother 2 took $809.50 from the Mutual Savings Association in Leavenworth, Kansas (the Association), in violation of 18 U.S.C. Secs. 2113(a) and 2. I R. 2. The trial court granted defendant's motion for a mental examination pursuant to 18 U.S.C. Secs. 4244 and 3006A(e). Supp. I R. 1-4. The Final Psychiatric Evaluation concluded, among other things, that defendant was competent to commit the offense at the time of the robbery, and was competent to stand trial. Id. at 8. As a result of this evaluation, defendant's pretrial attorney did not pursue an insanity defense. IV R. 2-3.

At a pretrial hearing on February 10, 1982, defendant's pretrial attorney stated that due to another commitment, he would be unable to try the case as scheduled on February 16. Supp. V R. 2. Defendant agreed to have an associate of his pretrial attorney, who previously had met with defendant and "reviewed the file," try the case. Id. at 2-3.

On the morning of the trial on February 16, the court considered two oral motions. First, the trial court granted the Government's motion to amend the indictment to reflect the appropriate federal agency that insured the association at the time of the robbery; the words "Federal Deposit Insurance Corporation" were replaced with "Federal Savings and Loan Insurance Corporation." Defendant made no objection to the amendment. I R. 44; II R. 6. Second, the trial court denied, without an evidentiary hearing, defendant's motion to suppress his

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confession on the ground that it was not voluntarily made. I R. 47; II R. 3-6.

At trial, the evidence, when viewed favorably to the Government as it must be on this appeal, showed the following facts. A young man entered the association at 4:15 p.m. on September 4, 1981. He handed a teller a note which read "I have a gun. Put all of the money in this envelope." The teller put $809.50 in an envelope that the young man handed her, and he left. II R. 7-9, 40. The teller then informed her fellow employees of the robbery and went out of the building and into the parking lot. She thought she saw the young man who had just robbed the association in a pickup truck in the lot with other occupants. She communicated this information to the police. Id. at 9-10.

At 4:22 p.m., the police stopped a pickup truck matching the description given by the teller. Defendant was one of the two occupants in the truck. The police recovered $809.50 from a manilla envelope found in the truck, including five $20 bait bills. Id. at 46-55.

At 6:35 p.m., Agents Yates and Moore of the Federal Bureau of Investigation interrogated defendant. They obtained a written waiver of defendant's Miranda rights. Id. at 60-62; Supp. II R. Exhibit 4. Defendant admitted that he robbed the association and explained the mechanics of the robbery and his brother's participation. 3 II R. 64-65. With defendant's consent, the police and the two FBI agents searched the hotel room of defendant and his brother. They found, among other things, fourteen manilla envelopes in a fifteen-envelope package.

Other evidence produced by the Government indicated that the association was insured by the Federal Savings and Loan Insurance Corporation on the date of the incident, id. at 39, Supp. II R. Exhibit 7, and that the two FBI agents detected an odor of alcohol on defendant's breath at the time of his interrogation. II R. 63, 79.

At the close of the Government's case, the trial court denied defendant's motion for acquittal. Defendant then rested without offering any evidence, id. at 82-83, and was found guilty by the jury.

II

The indictment

The indictment 4 under which defendant was charged 5 incorrectly identified the Government agency that insured the deposits of the association; the indictment should have named the Federal Savings and Loan Insurance Corporation (FSLIC) 6 rather

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than the Federal Deposit Insurance Corporation (FDIC). See 18 U.S.C. Sec. 2113(b) (referring to FDIC insurance of deposits of a "bank"). In granting the Government's pretrial motion to amend the indictment, the trial court noted that the amendment was designed to reflect the "correct designation of the government insurance ... [c]orporation involved," and had "nothing to do with the substance of the indictment." II R. 6. Defendant argues that the amendment was improper because the identity of the federal insuring agency was an essential element of the offense under 18 U.S.C. Sec. 2113 that must be included in the original indictment.

We believe that this challenge to the amendment of the indictment implicitly calls into question the sufficiency of the indictment as returned by the grand jury. For reasons that follow we hold that the indictment is legally sufficient and that the amendment was proper.

  1. Sufficiency of the indictment as returned

    An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. See, e.g., United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980); United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.1976); 1 C. Wright, Federal Practice and Procedure Sec. 125, at 363-64 (2d ed. 1982). The original indictment here meets these requirements.

    The indictment specifically informed defendant of the nature of the alleged offense and the statutory violations involved. Defendant was put on notice that a federal agency insured the deposits in the association. The indictment's erroneous reference to the FDIC did not subject defendant to the possibility of double jeopardy.

    Two other circuits have held that an erroneous reference to the FDIC in an indictment is not fatal. In United States v. Radowitz, 507 F.2d 109, 112 (3d Cir.1974), the Third Circuit held that a mistaken reference to the FDIC, rather than the FSLIC, is a "harmless" defect. In United States v. Hoke, 610 F.2d 678 (9th Cir.1980), the indictment stated that a savings and loan association was insured by the FDIC. The Government proved at trial that the FSLIC insured the association. The Ninth Circuit held that the variance in proof is "without prejudice as an obvious inadvertence that did not affect substantial rights of the defendant. It is to be disregarded." Id. at 679.

    Moreover, courts in analogous cases have sustained indictments under Sec. 2113 despite alleged defects in the description of the federal insuring agency involved. 7 Only the failure to mention any federal insuring agency constitutes a fatal defect in an indictment. E.g., Hewitt, supra, 110 F.2d at 5 (emphasis added) ("The complete omission of any allegation [in the indictment] which might reasonably be construed to mean that the bank was [federally] insured would be fatal ...."); United States v. Cox, 285 F.Supp. 367, 369 (E.D.Wis.1968) (indictment insufficient because "absolutely no factual federal connection was alleged"). We therefore conclude that the original indictment

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    is sufficient, despite the mistaken reference to the FDIC rather than the FSLIC.

  2. Propriety of the amendment of the indictment

    Our analysis of defendant's challenge to the amendment of the indictment is guided by our discussion of the sufficiency of the indictment. Because we hold that the original indictment is sufficient, despite the reference to the incorrect federal insuring agency, we find that the trial court's amendment to insert the correct agency name was proper.

    The Supreme Court has held that "an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form." Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240 (1962). See also United States v. Hall, 536 F.2d 313, 319 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976). Matters of form include amendments "to correct a misnomer." 1 C. Wright, supra, Sec. 127, at 420. 8 See, e.g., United States v. McGrath, 558 F.2d 1102, 1105 (2d Cir.1977) (amendment corrected name of state commission which employed defendant); Dye v. Sacks, 279 F.2d 834, 837 (6th Cir.1960) (amendment corrected misdescription of victim's name); United States v. Denny, 165 F.2d 668, 668-70 (7th Cir.1947), cert. denied...

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