U.S. v. Von Stoll

• Decision Date: 24 February 1984
• Docket Number: No. 83-1144,83-1144
• Citation: 726 F.2d 584
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard VON STOLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 584

726 F.2d 584

UNITED STATES of America, Plaintiff-Appellee, v. Richard VON STOLL, Defendant-Appellant.

No. 83-1144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 16, 1983.

Decided Feb. 24, 1984.

Fred Morrison, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Sandra Gillies, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before WRIGHT, CHOY and POOLE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Von Stoll was convicted of two violations of 18 U.S.C. Sec. 2314 and two of 18 U.S.C. Sec. 1343. There are two major issues: (1) whether the conviction on Count I should be reversed because the indictment charged that Von Stoll took $10,000 from one person, while the proof showed that he took it from that person's business partner; and (2) whether the conviction on Count III should be reversed because it was based on Von Stoll's confession without adequate corroborating evidence.

FACTS

Von Stoll's convictions arose from his involvement in an advance fee scheme. He communicated with persons who needed loans and promised funds from a nonexistent family trust, collected an advance fee, and absconded with the money.

Count I of the indictment charged Von Stoll with transporting in interstate commerce $10,000 that was taken by fraud from Ron McCallum. The proof showed that McCallum and his business partner Count III charged Von Stoll with inducing Robert Chester to travel to Sacramento to defraud him of $10,000. The proof of this charge came largely from confessions that Von Stoll gave the FBI. The government corroborated the confessions with proof that Chester met earlier with Von Stoll and with proof of a payment order for $10,000 issued by a San Francisco bank on October 26, 1981.

Helmut Hofer, met Von Stoll in the Grand Cayman Islands. They discussed a possible loan, but did not pay Von Stoll an advance fee. Later, Hofer met with Von Stoll and gave him $10,000. The trial judge's instructions allowed the jury to find Von Stoll guilty on Count I if it found that the $10,000 was taken from "the owner."

A jury found Von Stoll guilty on all counts. He was sentenced to five years each on Counts I, II, and III, with the sentences to run concurrently. He was given a suspended sentence and probation on Count IV.

ANALYSIS

A. The Inconsistency Between the Indictment and the Proof as to Count I

Von Stoll urges a reversal on Count I because the indictment charged him with transporting money taken from McCallum and the proof showed it was taken from Hofer, McCallum's partner. He argues that this constructively amended the indictment, requiring reversal. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Miller, 715 F.2d 1360 (9th Cir.1983).

We disagree. Von Stoll cites cases that are inapplicable because they involved an amendment of the indictment, not a simple variance between the facts charged and those proved.

An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.

United States v. Cusmano, 659 F.2d 714, 718 (6th Cir.1981) (emphasis in original); (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969)).

The cases have found a constructive amendment where there is a "complex of facts distinctly different from those set forth in the charging instrument and not ... where there is a single set of facts." C. Wright, Federal Practice and Procedure, Crim.2d, Sec. 516 at 27 (1982). See United States v. Knuckles, 581 F.2d 305, 312 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978); Jackson v. United States, 359 F.2d 260, 263 (D.C.Cir.), cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Here, there is but one set of facts with a single divergence: the identity of the person that Von Stoll defrauded.

In addition, courts have found constructive amendments where the crime charged was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.

In Stirone, the indictment alleged that the defendant had obstructed interstate shipments of sand to a site where a steel mill was under construction. The proof tended to show only that the defendant had obstructed prospective shipments of steel from the mill. 361 U.S. at 213-14, 80 S.Ct. at 271.

The Stirone Court thought it a difficult question "whether prospective steel shipments from the new steel mills would be enough, alone, to bring the transaction under the [Hobbs] Act." Id. at 215, 80 S.Ct. at 272. It avoided the question because it found no evidence that the grand jury would have "included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with." Id. at 219, 80 S.Ct. at 274. See also Ex parte Bain, 121 U.S. 1, 13, 7 S.Ct. 781, 787, 30 L.Ed. 849 (1887) (error to amend defective indictment so it stated crime); United States v. Mastelotto, 717 F.2d 1238 Here, the divergence between the indictment and proof did not affect the sufficiency of the complaint or alter the crime charged. It did not constitute a constructive amendment.

1251 (9th Cir.1983) (instructions defective because they allowed conviction for a crime for which defendants would not have been indicted); United States v. Miller, 715 F.2d at 1363 (constructive amendment found because grand jury may not have returned indictment for the narrower charge proved at trial).

"A variance between indictment and proof does not require reversal unless it affects the substantial rights of the parties." United States v. Kaiser, 660 F.2d 724, 730 (9th Cir.), cert. denied, 455 U.S. 956, 102 S.Ct. 1467, 71 L.Ed.2d 674 (1981). We are unable to see how this variance affected Von Stoll's substantial rights. The only inconsistency is that the indictment specified that Von Stoll took the money from one partner, while the proof showed he got it from the other. The identity of the defrauded person is irrelevant to a conviction under 18 U.S.C. Sec. 2314. The inconsistency did not affect any substantial rights of the defendant. See United States v. Heimann, 705 F.2d 662 (2d Cir.1983); United States v. Kartman, 417 F.2d 893 (9th Cir.1969). We find no constitutional error.

B. Corroboration of the Evidence on Count III

Von Stoll argues that Count III must be reversed because the only evidence that he induced Chester to travel to Sacramento came from Von Stoll's confessions to the FBI. He asserts that the government failed to corroborate the confessions. See Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954).

While "a confession must be corroborated by independent evidence, the corroboration need not independently establish any element beyond a reasonable doubt, but must merely fortif[y] the truth of the confession." United States v. Lopez-Garcia, 683 F.2d 1226, 1228 (9th Cir.1982) (quoting United States v. DeGeorgia, 420 F.2d 889, 890 n. 3 (9th Cir.1969)).

The primary evidence on Count III came from confessions that Von Stoll made to the FBI on January 14 and 15, 1982. Portions of the confessions were reduced to writing in the government's Exhibit 15. The rest was introduced through the testimony of Agent Biniek. Von Stoll was advised of his rights and disclaimed any duress.

Von Stoll said that he met Robert Chester in the Grand Cayman Islands in October 1981. Nova, another victim of the advance fee scheme, corroborated that statement.

Von Stoll confessed that Chester transferred $10,000 to him at the Crocker Bank in San Francisco. The government produced a record of a transfer of that amount from Michael Chester to Von Stoll at that bank on October 26, 1981. George Miller testified that he accompanied Von Stoll to the same bank on October 26, and saw him receive a wire transfer for $10,000.

The confessions also described the advance fee scheme in detail and described Von Stoll's dealings with Nova and McCallum on the Grand Cayman Islands. The testimony of Nova and Hofer, McCallum's business partner, thoroughly corroborated the confessions.

All of this evidence suffices "to establish that the self-incriminating declarations are trustworthy." United States v. Allen, 455 F.2d 509 (9th Cir.1972). The lack of corroboration for the specific element that Von Stoll induced Chester to travel to Sacramento does not invalidate the conviction on Count III because the government produced sufficient evidence to support the truth of the confessions as a whole. See Id.; United States v. Lopez-Garcia, 683 F.2d at 1228.

C. Other Contentions

Von Stoll makes two contentions that do not warrant extensive discussion.

(1) The government did not violate Fed.R.Crim.P. 16(a)(1)(A) by failing to inform Von Stoll of oral statements made by him to IRS Agent Beyer. The rule is specifically Because Von Stoll's statements were voluntary and not in response to interrogation, we need not decide whether he was prejudiced by the failure to disclose them. See United States v. Bailleaux, 685 F.2d 1105, 1115 (9th Cir.1982).

                limited to statements made by a defendant "in response to interrogation."    Von Stoll initiated the conversation with Beyer and his comments do not fall within the rule.    See United States v. Navar, 611 F.2d 1156, 1158 (5th Cir.1980);  United States v. Johnson, 562 F.2d 515, 518 (8th Cir.1977)
                

(2) The evidence was sufficient to convict Von Stoll on all counts. See United States v. Kaiser, 660 F.2d 724, 730 (9th Cir.1981), cert. denied, 455 U.S. 956, 102 S.Ct. 1467, 71 L.Ed.2d 674 (1982).

CONCLUSION

The divergence...