Cummings v. United States

• Citation: 398 F.2d 377
• Decision Date: 24 July 1968
• Docket Number: No. 19004.,19004.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Robert Donald CUMMINGS, Appellant, v. UNITED STATES of America, Appellee.

398 F.2d 377 (1968)

Robert Donald CUMMINGS, Appellant, v. UNITED STATES of America, Appellee.

No. 19004.

United States Court of Appeals Eighth Circuit.

July 24, 1968.

Gray Carroll Stirbling, Jr., St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Chief Judge, HEANEY, Circuit Judge and REGISTER, Chief District Judge.

HEANEY, Circuit Judge.

The defendant and his wife were convicted of uttering and publishing a United States Savings Bond¹ in violation of Title 18 U.S.C. § 495. The defendant was sentenced to three years. His wife was given a suspended sentence. Both testified in their own behalf, their defense being that the owner of the bond had authorized Mrs. Cummings to cash it and other bonds, and to open an account from the proceeds in the name of the owner and the defendant. The defendant urges that the District Court erred: (1) in refusing to grant a continuance, (2) in overruling the defendant's motion for judgment of acquittal on the grounds that there was not sufficient evidence for conviction, (3) in receiving admissions made by the defendant to Secret Service Agent Allen, and (4) in instructing the jury.

(1) Motions for a continuance.

We initially consider whether the court erred in refusing to grant the defendant's pretrial motion for a continuance. This motion was filed with the court on the morning that the trial was scheduled to commence without advance notice to the government. It stated that the trial had been set on July 3rd, twenty-one days earlier. It alleged that the defendants had not had time to adequately confer with their attorney and to advise him regarding their defense, and that the defense counsel had not had adequate time to prepare the case for trial, particularly in the light of other civil and criminal matters that he was handling. The government resisted the motion on the grounds that its witnesses were present and ready for trial. The court overruled the defendant's motion and indicated that he had given consideration to counsel's other commitments in so doing.²

During the course of the trial, the motion to continue was renewed under the following circumstances: Counsel for the defendant, in cross-examining an officer of the Crestwood Bank, asked whether or not the bank had checked to determine whether the defendant's wife had similarly cashed other bonds for the owner on earlier occasions. When the officer answered in the negative, the defendant asked the court to issue a subpoena duces tecum for the information and to continue the trial when the information was produced. The defendant offered to prove that Mrs. Cummings had, in fact, cashed "E" Bonds for the owner at the Crestwood Bank using the same technique as in the instant case. The court stated that the defendant had an ample opportunity before trial to obtain the information by subpoenas if he wanted it. He added that when examination of the witness had been completed, a determination would be made as to how long it would take the bank to produce the information and that the bank would be required to produce the information if it were available. The officer of the bank subsequently stated that it would take a couple of days to determine whether or not other bonds had been cashed in the month of March, 1967, particularly without knowing the dates of such other transactions. No further requests were made by the defendant.

It is a well settled rule that a motion for a continuance is left to the sound discretion of the court, the exercise of which will not ordinarily be reviewed. Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968); Stamps v. United States, 387 F.2d 993 (8th Cir. 1967).

We find no abuse of discretion here. Counsel for the defense was advised almost a month before trial that the case would be heard on July 24th. He later advised the court that he would be ready for trial on July 29th, as he had a case to try in another court during the week of the 24th. When this trial was not held, the trial court was well within its discretion in insisting that the originally scheduled date be kept.

The trial court also properly denied the request for a continuance made during the course of the trial. While the testimony that the defense counsel desired to introduce was material to the defense offered by the Cummings', the reason advanced for not subpoenaing this information before trial was the fact that the defense counsel anticipated that the bank would have records of prior transactions by the Cummings' for Mrs. Bieze available in court. While this may or may not have been a reasonable expectation, the fact is that the bank denied knowledge of any earlier transactions and there is no showing that the government had knowledge of any. See, United States ex rel. Rizzi v. Follette, 367 F.2d 559, 561 (2d Cir. 1966). Accord, Thomas v. United States, 343 F.2d 49 (9th Cir. 1965); United States v. Zborowski, 271 F.2d 661, 668 (2d Cir. 1959). See generally, Jones v. United States, 358 F.2d 383 (8th Cir. 1966).

The reason advanced by the defendant for failing to subpoena the records loses some of its plausibility when it is noted that Mrs. Cummings testified that she had cashed bonds for the owner at other banks on at least three occasions and returned the money to the owner, but failed to support this testimony by subpoenaing the records of the other banks or calling their officers as witnesses.

Under such circumstances, we believe the trial court properly denied the motion for a continuance.

(2) The sufficiency of the evidence.

We have carefully reviewed the record and believe that it supports the jury verdict. It is clear that Mrs. Cummings forged the owner's signature on the bonds and caused them to be cashed at the Crestwood Bank. It is equally clear that he drove his wife to the shopping center where the bank was located; that he signed a signature card permitting him to draw on the joint account opened with funds obtained from the sale of the bonds; that he cashed four checks on the account for $454.13 and used the money for his personal purposes; and that he attempted to persuade the employees of the bank not to contact the owner of the bonds when the bank became suspicious of the circumstances under which they were cashed. In our view, these circumstances warranted a jury finding that "the defendant knowingly and willfully associated himself with his wife in the venture and aided in some way its commission,"³ and that he was thus guilty as a principal. E. g., Greenberg v. United States, 297 F. 45 (8th Cir. 1924); Melling v. United States, 25 F.2d 92, 93 (7th Cir. 1928). Cf., United States v. Chappell, 353 F.2d 83 (4th Cir. 1965). We add that the defendant's attempted concealment of material facts is evidence of guilt. Ashcraft v. State of Tennessee, 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667 (1946). Accord, United States v. Howard, 228 F.Supp. 939 (Neb. 1964).

The defendant argues that his withdrawal of funds and his attempt to persuade the bank not to investigate the circumstances under which the joint account was opened occurred after his wife had uttered the bonds and were thus inadmissible. He further argues that if admissible, they should be given very little, if any, weight.

No objection was made to the introduction of this testimony. Thus, unless it was plain error or for the lower court to receive it, it need not be reviewed by us. Fed.R.Crim.P. 52(b); Johnson v. United States, 362 F.2d 43 (8th Cir. 1966); Lucas v. United States, 343 F.2d 1 (8th Cir.), cert. denied, 382 U.S. 862, 86 S.Ct. 125, 15 L. Ed.2d 100 (1965). We find no error, plain or otherwise. The evidence was properly received, and is entitled to weight. While the subsequent acts were not elements of the offense charged, they were admissible as bearing upon the purpose and intent of the defendant. Neff v. United States, 105 F.2d 688 (8th Cir. 1939).

(3) Admissions to the Secret Service.

The defendant's guilt is further demonstrated if his statement to Secret Service Agent Allen, that he was with his wife in the bank and saw her endorse the bond, was properly received. We believe it was.

The circumstances surrounding the taking of the statement were developed by the testimony of Allen, who was called as a government witness. The defendant objected at the outset to Allen's testifying. (The grounds for the objection do not appear in the record.) The trial court then took Allen's testimony outside of the presence of the jury. It gave the defendant a similar opportunity, but he declined.

Allen testified that the defendant, a forty-five year old business man, was taken into custody at his place of business, that he was advised of his "Miranda" rights and then driven to the Secret Service Headquarters, where the warnings were repeated, that the defendant stated that he understood his rights, that he was unwilling to sign a written waiver because he had earlier spoken to an attorney who advised him not to sign anything, but that he was willing to answer questions put to him by Allen, that the defendant was asked if he wanted to call his attorney and that he answered in the negative. Allen further testified that the defendant told him that he drove his wife to the bank and was present in the bank with her when she cashed the bonds; that he signed the signature card and drew some money from the joint account; and that the money had not been used for his personal purposes.

At the conclusion of Allen's testimony, the trial court ruled that any statements made by the defendant to Allen were made after the defendant was fully advised as to all of his constitutional rights and, accordingly, such statements that the defendant "made may be admitted in evidence." The following colloquy then took place:

"MR. HOLLINGSWORTH: May my exceptions, Your Honor, show without particularizing those exceptions?

"MR. NEWTON:

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