Hall v. United States

• Decision Date: 08 February 1967
• Docket Number: No. 18420.,18420.
• Parties: Irvin HALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

372 F.2d 603 (1967)

Irvin HALL, Appellant, v. UNITED STATES of America, Appellee.

No. 18420.

United States Court of Appeals Eighth Circuit.

February 8, 1967.

David G. Dempsey, Clayton, Mo., filed brief and made argument for appellant.

Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark., for appellee, and Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., on the brief.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

Appellant Irvin Hall appeals from his conviction under an indictment charging him with transporting a forged check in interstate commerce in violation of Section 2314, Title 18, United States Code.¹

The Indictment returned on February 14, 1966, charged:

"That on or about November 16, 1965, IRVIN HALL, also known as Irwin Hall, with unlawful and fraudulent intent, transported, and caused to be transported, in interstate commerce, from St. Louis, in the state of Missouri, to Little Rock, in Pulaski County, in the Western Division of the Eastern District of Arkansas, a falsely made and forged security, to wit, a check drawn on the First National Bank, St. Louis, Missouri, Account No. XX-XXXX-X, dated November 11, 1965, in the amount of $890.00 payable to Howard Schnall, and signed John Schwartz, and he, the said IRVIN HALL, also known as Irwin Hall, then knew said check to have been falsely made and forged, thereby violating Section 2314, Title 18, United States Code."

The appellant waived a jury trial and was tried by the District Court. The Government's testimony showed that the appellant, using the name Howard I. Schnall, opened a checking account with the First National Bank of St. Louis, Missouri, with a $200.00 cash deposit, on November 12, 1965, and was given printed checks. Four days later, he opened a $10.00 savings account in the name of Hank Schnall with the Commonwealth Savings and Loan Association of Little Rock, Arkansas. Later the same day, he made another deposit with Commonwealth of $10.00 in currency and a $890.00 check (using one of the printed checks supplied him by the Missouri bank) drawn by John Schwartz on the Missouri bank payable to Harry Schnall and endorsed by the payee, Harry Schnall and Hank Schnall. All the names used by the appellant were fictitious. The check was accepted for deposit by Commonwealth and put through normal channels, i. e., to the local bank, who forwarded it to St. Louis, from which it was returned a week or ten days later marked "No Account." The appellant followed the same or nearly the same procedure with four other banking institutions in Little Rock.² The appellant was arrested two or three hours after depositing the first check. None of the financial institutions suffered any loss as a result of the transactions.³

At the close of the Government's testimony, the appellant moved to dismiss the indictment on the grounds that the proof did not conform to the indictment, and that no forgery on the part of the defendant had been proved. This motion was denied by the court.⁴

The appellant then testified on his own behalf asserting that he had not intended to make withdrawals on any of the accounts until his father had sent him sufficient money to cover all of the checks he had written on the First National Bank of St. Louis, and that he had forgotten or became confused as to the name he had used in opening the St. Louis account. The trial court rejected the appellant's defenses and found him guilty.⁵

The appellant challenged the validity of the indictment on the ground that there was no evidence to support the indictment or judgment that the check was transported from St. Louis, Missouri, to Little Rock, Arkansas.

In its brief, the Government admitted that it customarily charges a defendant with transporting a security from the locality where it is deposited to the place where the drawee bank is located, but here, for unexplained reasons, the indictment was drawn backwards. Nevertheless, it contended that the check did, in fact, move from St. Louis to Little Rock, as alleged, and that this trip took place after the First National Bank of St. Louis marked it "No Account" and returned it to Little Rock.

In oral argument, the appellant answered this contention by asserting that the check ceased to be a security when it was marked "No Account" by the Missouri bank and returned to Arkansas — that on the return trip, it was nothing but a scrap of paper.

In our judgment, the technical⁶ argument made by the appellant is met by the technical answer of the Government. By depositing the check with the Arkansas bank, the appellant set in motion the events which led to the round-trip of the check. The check was worthless when accepted for deposit, worthless when sent from Arkansas to Missouri for collection, and worthless when marked "No Account" and returned to the Commonwealth Savings and Loan Association at Little Rock, Arkansas. Nonetheless, it was a security throughout.

The language of the Supreme Court in United States v. Sheridan, 329 U.S. 379, 391, 67 S.Ct. 332, 91 L.Ed 359 (1946), bears on this problem.

"Drawing the check upon an out-of-state bank, knowing it must be sent there for presentation, is an obviously facile way to delay and often to defeat apprehension, conviction and restoration of the illgotten gain. There are sound reasons therefore why Congress would wish not to exclude such persons * * *.

"A word will dispose of the idea that Sheridan did not `cause\' the transportation. Certainly he knew the checks would have to be sent to the Missouri bank for collection. Given the proven forgery and uttering, no other conclusion would be possible. Necessarily, too, it would follow he intended the paying bank to send the checks there for that purpose. He knew they must cross state lines to be presented. One who induces another to do exactly what he intends, and does so by defrauding him, hardly can be held not to `cause\' what is so done." See United States v. Taylor, 217 F.2d 397 (2d Cir. 1954).

It is not an extension of the Sheridan doctrine to find that the appellant was as aware that the Missouri bank would return the check to the Arkansas Savings and Loan Association marked "No Account," as he was aware that the check would be sent to the Missouri bank for collection.

Even though the appellant's argument is thus answered, we should also determine whether there was substantial prejudice to his rights caused by the alleged variance.⁷

The indictment, while inartistically drawn, described the specific check, giving the drawer and payee's name, the check number, the amount of the check, the location of the drawee bank, and the date the check was presented for deposit. The proof conformed to the allegations in each particular. Interstate commerce, an essential element of the crime, was alleged and proved. The appellant has not shown that actual prejudice resulted from the alleged misstatement of the direction in which the check moved in interstate commerce. There is also no showing that he was surprised or unable to properly prepare a defense to the accusation, or that the movement in interstate commerce from Missouri to Arkansas constitutes a separate crime for which he may be separately tried.

The appellant cites two cases to support his position: Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) and Call v. United States, 265 F.2d 167 (4th Cir. 1959).

In Call, an essential element of the crime charged in the indictment was that the defendant have direct knowledge of misrepresentations made by a third party to the Government. Since there was a total lack of proof of such knowledge, the Court ordered a jury verdict reversed. We find nothing in Call to support the appellant.

In Kotteakos, the Supreme Court found that substantial prejudice resulted to a single defendant when he and thirty-five others and eight separate conspiracies were intertwined under a single general indictment, thus (1) making it impossible to adequately prepare a defense, (2) prohibiting the trial court from giving required precautionary instructions, and (3) confusing the jurors to such an extent that they subconsciously transferred guilt from person to person or from conspiracy to conspiracy. Nothing comparable was brought to our attention in the present case.

In Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), discussed and distinguished in Kotteakos, the Court said:

"The true inquiry, therefore, is not whether there has been a variance of proof, but whether there has been such a variance as to `affect the substantial rights\' of the accused. The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense."

In the present case, there is no evidence that the rights of the defendant at trial were substantially affected as a result of the alleged variance. Indeed, there is no showing that his rights were affected in any manner whatsoever.

As a second ground for reversal, the appellant urges that there was no proof that Commonwealth Savings and Loan Association relied on the name "Hank Schnall" or "John Schwartz" or any character or personality associated with either name in accepting the check for deposit, and that in the absence of such proof, there was no forgery within the intent of the statute. More properly stated, the question is: Given the interstate transportation of the check and the necessary fraudulent intent, is the use of fictitious names as drawer, payee and endorser in this case sufficient to make the check a falsely made or forged security within the meaning of § 2314?

While the courts are in general agreement that the use of a fictitious name...