Guon v. United States

• Decision Date: 29 December 1960
• Docket Number: No. 16389.,16389.
• Citation: 285 F.2d 140
• Parties: Norton GUON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.2d 140 (1960)

Norton GUON, Appellant, v. UNITED STATES of America, Appellee.

No. 16389.

United States Court of Appeals Eighth Circuit.

December 29, 1960.

Clifford Jansonius, Bismarck, N. D., for appellant. Jansonius, Fleck, Smith, Mather & Strutz, Bismarck, N. D., were with him on the brief.

Robert Vogel, U. S. Atty., Fargo, N. D., for appellee.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

Norton Guon was one of eight defendants charged, in two indictments, which were consolidated for trial, with various violations of the Mail Fraud Statute, 18 U.S.C.A. § 1341, and of the Securities Act, as amended, 15 U.S.C.A. § 77q(a) (1) and (2), in connection with the sale of securities by Universal Securities, Inc., of Bismarck, North Dakota. Guon and others were charged, in Count 55 of the indictment known as number 95, with violating the Securities Exchange Act, 15 U.S.C.A. § 78o(a) and (b); in Count 56, with a violation of 15 U.S.C.A. § 77e (a) (1); in Count 57, with a violation of 15 U.S.C.A. § 77e(a) (2); and, in Count 58, with a violation of 15 U.S.C.A. § 78o(a) and (b). A jury trial resulted, on November 9, 1959, in the acquittal of Guon upon all counts submitted to the jury, except Counts 55, 56, 57 and 58. Based upon the jury's verdict, the District Court, on November 23, 1959, entered the following judgment:

"It Is Adjudged that the defendant has been convicted upon his plea of not guilty and a verdict of guilty of the offenses of unlawfully engaging as a dealer in interstate transaction in securities, without registration, in violation of Title 15 U.S. C.A., Sec. 78o(a) and (b), as charged in Counts 55 and 58 of the Indictment, and of unlawfully making use of the United States mails or instruments of interstate commerce in the sale or offer of sale of unregistered securities, in violation of Title 15 U.S.C.A., Sec. 77e(a) (1) and (2), as charged in Counts 56 and 57 of the Indictment, and the court having asked the defendant whether he has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or appearing to the court,

"It Is Adjudged that the defendant is guilty as charged and convicted.

"It Is Adjudged that defendant is placed on probation for a period of Two (2) years, commencing at Twelve o\'clock noon of this date."

The only specific condition of Guon's probation was that he "conduct himself as a law-abiding, industrious citizen."

From this seemingly innocuous disposition of his case, Guon — who was shown by the evidence to have played a very minor role in connection with the accused scheme — has appealed. He asserts that the trial court committed reversible error: (1) in denying him a separate trial; (2) in refusing to require the Government to furnish him with a bill of particulars relating to the counts upon which he was convicted; (3) in denying his motion, made at the close of the evidence, for a directed verdict of acquittal on the ground of the alleged inadequacy of the evidence; and (4) in failing to fully instruct the jury.

Guon was not entitled to a separate trial as a matter of right. His motion for a severance was addressed to the discretion of the trial court, and no abuse of discretion is shown. See and compare: United States v. Marchant, 12 Wheat. 480, 484-485, 25 U.S. 480, 484-485, 6 L.Ed. 700; United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L. Ed. 300. In Stilson v. United States, 250 U.S. 583, 585-586, 40 S.Ct. 28, 29, 63 L.Ed. 1154, the court said:

"* * * That it was within the discretion of the court to order the defendants to be tried together there can be no question, and the practice is too well established to require further consideration."

See, also: Duke v. United States, 9 Cir., 255 F.2d 721, 729, and Rules 13 and 14 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. In our opinion, there was no showing of either error or prejudice in connection with the denial of Guon's motion for a separate trial.

A motion for a bill of particulars by a defendant may be granted or denied by a trial court, in the exercise of a sound legal discretion. Hewitt v. United States, 8 Cir., 110 F.2d 1, 7 and cases cited; Bunn v. United States, 8 Cir., 260 F.2d 313, 316. There is no basis for a ruling that Guon was taken by surprise during the trial or that his substantial rights were prejudiced in any way by the denial of his motion for a bill of particulars. See and compare, Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545. Guon has failed to demonstrate that the trial court abused its discretion in this regard. Cf. Blackwell v. United States, 8 Cir., 244 F.2d 423, 426; Duke v. United States, supra, at page 729 of 255 F.2d. The burden of demonstrating both error and prejudice is upon an appellant. Hunt v. United States, 8 Cir., 231 F.2d 784, 788.

Guon's criticism of the trial court's instructions is without merit. Stated briefly, the contention is that the trial court was required, regardless of any request, to define "aiding and abetting" and to explain what is meant by the words "directly or indirectly" as used in the charge. We cannot agree. "Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion." United States v. Bayer, 331 U.S. 532, 536, 67 S.Ct. 1394, 1396, 91 L.Ed. 1654. Frequently, to attempt to explain understandable language is merely to confuse. If the instructions given cover the case and are correct, that is enough. Railway Company v. McCarthy, 96 U.S. 258, 265-266, 24 L.Ed. 693. Cf. Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447, 451.

We think this Court is not called upon to state or to discuss in detail in this opinion the evidence which Guon contends was insufficient, and which the Government contends was sufficient, to sustain his conviction under each of the four counts in suit. If what befell Guon as a result of his conviction by the jury on those counts did not exceed what might lawfully have befallen him if he was properly found guilty on any one of the counts, we think that is enough to justify an affirmance. See: Bunn v. United States, supra, at page 315 of 260 F.2d; Gantz v. United States, 8 Cir., 127 F.2d 498, 501; Hulahan v. United States, 8 Cir., 214 F.2d 441, 442; Estep v. United States, 5 Cir., 223 F.2d 19, 21. Surely, if Guon had been convicted upon all counts of the indictment which were submitted to the jury, and had appealed from a judgment and order placing him on probation for two years, it is not conceivable that, on appeal, this Court would be required to review the sufficiency of the evidence to sustain every count.

We shall confine our consideration of the evidence to that relating to Count 58, which charged Guon with violating 15 U.S.C.A. § 78o(a) and (b). The last three paragraphs of that Count read as follows:

"That at all times herein stated, the said defendant Universal Securities, Inc., was not registered with the Securities and Exchange Commission as a broker or dealer in accordance with subsection (b) of Section 15 of the Securities Exchange Act of 1934 (15 U.S.C. Section 78o(b).

"The defendant Universal Securities, Inc., aided and abetted by the defendants Norton Guon, Samuel Parker Pandolfo and Frederick C. Scadding, and said Defendants acting in

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