Danielson v. United States, 18121.

• Decision Date: 25 July 1963
• Docket Number: No. 18121.,18121.
• Citation: 321 F.2d 441
• Parties: James Colby DANIELSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

321 F.2d 441 (1963)

James Colby DANIELSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18121.

United States Court of Appeals Ninth Circuit.

July 25, 1963.

Arthur H. Tibbits, and J. Albert Hutchinson, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before POPE, HAMLIN and DUNIWAY, Circuit Judges.

HAMLIN, Circuit Judge.

James Colby Danielson, appellant herein, Arthur James Yee and Joe Waugh, Jr., were charged in the first count of an indictment with having conspired in violation of 18 U.S.C. § 371 to commit offenses against the laws of the United States in that —

"they conspired in violation of Section 495, Title 18, United States Code, to knowingly falsely make, forge and counterfeit and knowingly utter and publish as true, with the intent to defraud the United States of America, 171 United States Savings Bonds * * *, for the purpose of obtaining and receiving from the United States and its officers and agents a sum of money."

The second count charged that Yee alone did —

"knowingly, falsely make, forge and counterfeit writings on eight United States Savings Bonds, to-wit, * * * by writing the name of the registered owner on each bond on the reverse side of each bond herein without the consent of said registered owner, for the purpose of obtaining and receiving from the United States * * * a sum of money * * *."

Yee pleaded guilty to the charge contained in the first count of the indictment and the second count was dismissed as to him.

Danielson and Waugh pleaded not guilty to the first count, were tried together and were found guilty by a jury verdict.¹

We have jurisdiction of Danielson's timely appeal under the provisions of 28 U.S.C. § 1291. Waugh did not appeal.

Appellant specifies several errors on appeal, only a few of which we find it necessary to consider. His first contention is that the indictment, quoted in pertinent part above, does not charge any offense against the United States, because it mingles the language of the first two paragraphs of section 495² and completely omits an essential element of one offense, i.e., forgery to enable another to receive a sum of money from the United States. Appellant has reference to the fact that a requisite element of the offense of forgery under 18 U.S.C. § 495 is "the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly to obtain or receive from the United States or any officers or agents thereof, any sum of money," whereas such a purpose is not a requisite for the uttering offense under section 495, which requires only an "intent to defraud the United States." (Emphasis supplied.) The indictment contains allegations as to both types of intent (excepting the italicized phrase), but does not indicate which type of intent is applicable to forgery and which to uttering.

In charging a conspiracy to commit an offense, however, it is not the law that all of the elements of the offense be charged with technical precision.³ The gist of the offense is the conspiracy and only "certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit,"⁴ is necessary. Further, alleging in one count a conspiracy to commit more than one offense, e.g., forging and uttering, is not duplicitous.⁵ Although it is not a model of good pleading, we feel that the allegations of the first count of the indictment were sufficient to charge a conspiracy to commit offenses under section 495 and also sufficiently apprised appellant of the offenses he allegedly conspired with others to commit. The absence of the phrase italicized above, appearing as it does in the disjunctive in the statute, did not affect the validity of the indictment.

Although the indictment was not fatally defective, we agree with appellant that the evidence in the record is insufficient to prove the particular conspiracy that was charged. Appellant was charged with having conspired with Waugh and Yee to forge and utter as true United States Savings Bonds. The evidence reveals, however, that the bonds were valid bonds which had been stolen from their registered owner (who at all times was entitled to receive the value thereof) and that Arthur James Yee signed the rightful owner's name on the reverse side of the bonds in the place provided therefor.⁶ A distinction has been recognized in the cases between the forgery of an obligation or security, such as a bond, and the forgery of endorsements or other writings upon genuine obligations or securities.⁷ Yee was in fact charged in the second count of the indictment with having forged writings on the bonds and not with having forged the bonds. While perhaps it could be argued that appellant could have been charged with a conspiracy to commit the offense charged against Yee in the second count, he was not so charged.⁸ We do not feel that the variance in this case can be dismissed as harmless error.

Even assuming for the moment that the evidence had been sufficient to prove the particular conspiracy that was charged in the indictment, we would be forced to reverse on the ground that the instructions given by the district court on the element of intent were prejudicially erroneous.⁹ In this regard, it is well settled that at least that degree of criminal intent necessary under the substantive offense must be proved to sustain a conviction of conspiracy to commit that offense.¹⁰ As noted earlier, an essential element of the forgery offense under section 495 is "the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money." Although the district court mentioned this as an element of the substantive offense of forgery, in instructing the jury as to the elements of a conspiracy to forge and utter, the court stated:

"Intent to defraud is the essence of the offense with which the defendants are charged with conspiracy to commit; that is, forging and uttering United States Treasury bonds. The intent to defraud is the essence of that offense."

While an intent to defraud the United States would be an essential element of a conspiracy to utter a forged instrument, a mere showing of an intent to defraud without evidence that the purpose was to obtain or enable others to obtain a sum of money from the United States would not suffice, in our view, for the purpose of showing a conspiracy to forge. Since a general verdict was rendered, it is impossible for us to tell what evidence the jury linked together in reaching its verdict. Accordingly the verdict can not stand.

The judgment of the district court is reversed.

1 Danielson was sentenced to five years imprisonment and Waugh received a $1,000 fine.

2 18 U.S.C. § 495 provides in pertinent part as follows:

"Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to...