JOHNSON v. U.S.

• Citation: 613 A.2d 1381
• Decision Date: 18 August 1992
• Docket Number: No. 89-CF-554,89-CF-554
• Parties: Oliver W. JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

613 A.2d 1381

Oliver W. JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 89-CF-554.

District of Columbia Court of Appeals.

Argued March 2, 1992.

Decided August 18, 1992.

Appeal from the Superior Court, Ricardo M. Urbina, J.

Daniel E. Ellenbogen, Washington, D.C., appointed by this court, for appellant.

Douglas K. Klein, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and STEADMAN, Associate Judge, and GALLAGHER, Senior Judge.

ROGERS, Chief Judge:

Appellant Oliver Johnson was convicted by a jury of seventeen counts of forgery and seventeen counts of uttering forged checks, D.C.Code §§ 22-3801 and -3842(c) (1989 Repl.), and one count of first degree theft, id. §§ 22-3801 and -3812(a) (1989 Repl.).¹ On appeal he contends principally that there was a constructive amendment of the indictment counts charging forgery, and that he was deprived of his right to a fair trial because repeated references to his exercise of his right to remain silent. We agree that because the indictment was constructively amended, appellant's forgery convictions must be reversed, but otherwise find appellant's contentions unpersuasive.

I

In April, 1982, appellant Oliver Johnson was elected president of the American Federation of Government Employees (AFGE) Local 1000, a union which represented non-management employees of the Department of Employment Services in the District of Columbia. The union consisted of an elected executive board of officers and non-management employees such as clerks and secretaries. The union followed the general fiscal policy set forth in the AFGE Local Officers' Manual, including a general rule that the union membership must approve all union expenditures. The only exception to this rule empowered the executive board to make its own decisions on discretionary funds up to a total of $250 per month. The executive board adopted a policy that the union not make any checks out to "cash." All checks written on the union's account required two signatures, those of the president and the treasurer of the union. In the event that either of those officers was unavailable to sign a check, an unwritten union policy permitted the executive vice-president to sign in the place of whoever was unavailable. The union also had apolicy which required executive board members who wished to be reimbursed for out-of-pocket expenses related to the union to provide a receipt of their expenditure to the treasurer.

Early in 1984 Fred Zackary, a union member, began to question appellant's leadership of the union² and his fiscal responsibility, particularly the fact that appellant's verbal financial reports did not correspond with the union's written reports. As a result, Zackary made a written request that appellant provide him with copies of the March and April, 1984 financial reports. When appellant failed to produce them, Zackary contacted the union's national vice-president, Don Mclntyre, about his concerns.

In December 1986, the union met to discuss the allegations that appellant had been fiscally irresponsible, and it authorized a committee to conduct an audit of the union's financial records. Over the objections of appellant, the audit committee requested the union's cancelled checks from the bank. Upon examining the checks, the audit committee noticed that some of the signatures on checks written in 1984, specifically those of Rufus Norris, did not look like Mr. Norris' regular signature. In addition, some of the 1984 checks written and endorsed by appellant were made out to "cash."

Angela Satterthwaite, a union vice-president and member of the audit committee, reported her suspicions that Mr. Norris' signature³ on the 1984 checks had been forged to Mr. Mclntyre of the national union office. In May 1987, after discussions with Mr. Mclntyre, Ms. Satterthwaite reported her suspicions to the U.S. Attorney's office. In July 1987, Detective Sally Kirk of the Metropolitan Police Force interviewed appellant in her office about the checks for "cash" that contained his and Norris' signatures. After advising him "briefly what the nature of the investigation was," appellant admitted during the interview that he had written, signed his signature, endorsed and cashed the checks, and stated that the checks had also been signed by Rufus Norris.⁴ Detective Kirk told appellant that Rufus Norris had denied signing the checks.

James Brown, a Metropolitan Police Department handwriting expert, testified that he had compared handwriting exemplars provided by appellant, Mark Harris and Rufus Norris to the handwriting on the seventeen checks. In his expert opinion, neither Mark Harris nor Rufus Norris had signed any of the checks in question. Mr. Brown also testified that, to a scientific certainty, appellant had not written the signatures of Harris or Norris. Appellant did not present any evidence.

II

The indictment charging appellant with forgery of seventeen checks made payable to cash stated that:

On or about, within the District of Columbia, Oliver W. Johnson, with intent to defraud, falsely made and altered the signature on a bank check.

Appellant contends that there was a constructive amendment of the indictment because the forgery counts in the indictment stated that he "falsely made and altered the signature on [17] bank check[s]," while the government's proof at trial was that appellant did not write the second signature on the checks, but that it had been made by a second, unnamed person, and the jury may have convicted him for his unauthorized completion of other portionsof the checks.⁵

The Grand Jury Clause of the Fifth Amendment states that: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." An indictment, as a charging instrument, offers three protections to the accused: it must inform the accused of the charges against him so that he may adequately prepare his defense, it must describe the crime with sufficient specificity to protect the accused against future prosecution for the same offense,⁶ and it "protect[s] against oppressive actions of the prosecutor or a court, which may alter the charge to fit the proof."⁷ The Constitution guarantees the right to be tried only on charges made by the indictment, and thus ensures that a defendant will not be convicted on the basis of facts not found by, or presented to, the grand jury which indicted him. See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240 (1962).

Heretofore the court has summarized the law by stating that "[t]he law recognizes two types of departures from the original indictment:

An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.

(Terrence) Ingram v. United States, 592 A.2d 992, 1005 (D.C. 1991) (quoting Scutchings, supra note 7, 509 A.2d at 636) (emphasis in original); see Gaither, supra note 7, 134 U.S.App.D.C. at 164, 413 F.2d at 1071. Because an amendment infringes on the constitutional right to grand jury indictment, the Supreme Court has adopted a per se reversal rule. Ex parte Bain, 121 U.S. 1, 7, 7 S.Ct. 781, 784, 30 L.Ed. 849 (1887); see (Terrence) Ingram, supra, 592 A.2d at 1005; Scutchings, supra note 7, 509 A.2d at 637.

Generally described, a constructive amendment occurs when the trial court permits the jury to consider, under the indictment, "an element of the charge that differs from the specific words of the indictment." (Terrence) Ingram, supra, 592 A.2d at 1005; see Stirone v. United States, 361 U.S. 212, 217-218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960) (indictment limited to extortion by interference with interstate transportation of sand expanded by constructive amendment to include interference with sand and steel.) "A variance becomes a constructive amendment . . . when 'facts introduced at trial go to an essential element of the offense charged, and the facts are different from the facts that would support the offense charged in the indictment.'" Scutchings, supra note 7, 509 A.2d at 637 (quoting Giles v. United States, 472 A.2d 881, 883 (D.C. 1984)) (emphasis in original).

In contrast to an amendment, a variance occurs when the facts proved at trial "materially differ from the facts containedin the indictment 'but the essential elements of the offense are the same.'" (Terrence) Ingram, supra, 592 A.2d at 1006 (quoting United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990)); see United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (variance where indictment charged defrauding insurer both by consenting to the burglary in advance and by lying to the insurer about the value of the loss, and proof at trial concerned only the latter charge). Thus, while the Supreme Court held that there was a constructive amendment in Stirone, supra, 361 U.S. at 213, 80 S.Ct. at 271, because the trial evidence broadened the possible bases for conviction from that charged in the indictment, the Court found only a variance in Miller, supra, 471 U.S. at 131, 105 S.Ct. at 1812, since the conviction was based on trial proof that supported a significantly narrower and more limited basis for conviction than that charged in the indictment. A variance between the indictment and the government's proof at trial implicates notice and double jeopardy guarantees and requires reversal only upon a showing of prejudice. Scutchings, supra note 7, 509 A.2d at 637; Kotteakos v. United States, 328 U.S. 750, 757, 766, 66 S.Ct. 1239, 1244, 1248-49, 90 L.Ed. 1557 (1946); ...