Foster v. United States

• Decision Date: 16 March 1935
• Docket Number: No. 1177.,1177.
• Citation: 76 F.2d 183
• Parties: FOSTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

76 F.2d 183 (1935)

FOSTER et al. v. UNITED STATES.

No. 1177.

Circuit Court of Appeals, Tenth Circuit.

March 16, 1935.

Howard Dailey, of Dallas, Tex. (George R. Craig, of Albuquerque, N. M., on the brief), for appellants.

Gilberto Espinosa, Asst. U. S. Atty., of Albuquerque, N. M. (Wm. J. Barker, U. S. Atty., of Santa Fé, N. M., on the brief), for the United States.

Before LEWIS, McDERMOTT, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

Appellants were indicted in four counts. The first charged that they "unlawfully, wilfully, knowingly, feloniously, and with intent to defraud, each did falsely alter a certain obligation of the United States, to-wit, a United States Note in the denomination of Five and no/100ths ($5.00) Dollars, Series of 1928, Serial Number C46904308A, and which said genuine obligation of the United States was altered in this, in that the said Serial Number was changed to read C46904803A, and the Check Letter `D' was altered to read `I' and the Face Plate number changed from `342' to `3,' contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."

The second charged similar alterations in the check letter and face plate number of a different United States note of $5 denomination. The third and fourth charged respectively sales of the described altered notes to I. Billington. The first and second were drawn under section 148 of the Criminal Code, and the third and fourth under section 151 thereof (18 USCA §§ 262, 265).

A demurrer was lodged against the indictment on the grounds: First, that the altered instruments were not set forth in hæc verba or in tenor and effect, and, second, that the alleged alterations were not material. The demurrer was overruled and appellants were convicted on all counts.

The first question engaging our attention is the action of the trial court in overruling the demurrer. An indictment should charge the offense in the language of the statute with sufficiently definite averments to advise the accused with reasonable certainty of the crime with which he is charged, to enable him to prepare his defense, and after judgment be able to plead the record and judgment in bar to a subsequent prosecution for the same offense. The indictment here described the instruments in detail. Their denominations, serial numbers, plate numbers, and check letters were stated with precision. The changes made were alleged clearly and definitely. United States notes circulate quite widely, and every one is thoroughly familiar with them. Appellants could not have failed to understand the crimes with which they were charged as thoroughly as though the instruments were pleaded in hæc verba. They were furnished the information necessary to prepare their defense, and certainly enough was set forth to sustain the record and judgment as a bar to further prosecution for the same offenses. The contrary is not asserted. It is merely contended that the instruments should have been pleaded in hæc verba. The contention is a technical one and presents no merit because the rights of appellants were not prejudiced in any wise. Dell Aira v. United States (C. C. A.) 10 F.(2d) 102; Blum v. United States (C. C. A.) 46 F.(2d) 850; Davis v. United States (C. C. A.) 49 F.(2d) 267; Hagner v. United States, 285 U. S. 427, 52 S. Ct. 417, 76 L. Ed. 861.

The offense denounced by section 148, supra, is the alteration of an obligation of the United States with intent to defraud. The alteration need not be one which destroys or impairs the validity of the obligation. It is enough if an alteration is made in furtherance of a scheme to defraud and it is not necessary that the United States be the intended or actual victim of the scheme. An alteration made as a material part of a scheme to defraud any person comes within the terms of the statute. Crouch v. United States (C. C. A.) 298 F. 437. The test, therefore, is whether the alterations in question were material to a scheme to defraud. The scheme was to convince Billington that through a chemical and rolling process appellants were producing replicas of genuine $5 bills, to persuade him to furnish $2,500 in new bills of five, ten, and fifty dollar denominations under the pretext that they would make replicas and divide the profit, but in fact to abscond with the money thus furnished. In order to convince him that they were producing replicas of genuine notes, it was necessary to exhibit to him two bills bearing the same serial numbers, check letters, and face plate numbers. That was accomplished by the alterations set forth in the indictment. The alterations were not only material to the fraudulent scheme, but they were essential to it. They were the essence of it in the sense that the fraud could not be effected without them. Plainly, the contention that they were immaterial cannot be sanctioned.

Next, it is urged that the evidence is not sufficient to support the verdict. Appellants were together in Albuquerque, N. M. They went to a place conducted by Leopoldo Arias, and requested Arias to take them to Belen, stating that they desired to enter a big game of poker. Arias took them to a pool hall in Belen operated by Rafael Baca and introduced them to Baca. Foster went under the name of Smith and Dillard under the name of Anderson. Foster told Baca that he wanted...