Leonard v. United States

• Decision Date: 19 November 1963
• Docket Number: No. 17939.,17939.
• Citation: 324 F.2d 911
• Parties: Andrew James LEONARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 911 (1963)

Andrew James LEONARD, Appellant, v. UNITED STATES of America, Appellee.

No. 17939.

United States Court of Appeals Ninth Circuit.

November 19, 1963.

John G. Clancy, San Francisco, Cal., for appellant.

Warren C. Colver, U. S. Atty., and James R. Clouse, Jr., Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before ORR, HAMLEY and KOELSCH, Circuit Judges.

ORR, Circuit Judge.

Appellant came into possession of two United States Treasury checks, one drawn in favor of a Phillip Mercer and one drawn in favor of a Jasper Johnson, Jr. In what manner the checks were obtained by appellant is not disclosed by the record but it is not contended that his possession was legitimate.

Having possession, appellant conceived the idea of realizing a gain therefrom, and in doing so to stand in the shadows as far as possible and induce others to perform the criminal acts. Pursuant to a criminal design he persuaded one Romeo Watkins to endorse the names of the payee thereof on the back of each check. Appellant retained the checks and then in furtherance of his fraudulent design he conceived and put into operation a scheme to get the checks cashed.

Appellant, still standing in the shadows, approached one Marcus Coleman with the idea of getting Coleman's cooperation in cashing the checks. Appellant knew that some identification would be necessary on the part of the person endeavoring to cash the checks, so he induced Coleman to take out a fishing license in the fictitious name of "Al Day".

This seems to be a favorite means of identification accepted by business places. Appellant had correctly appraised the situation. Coleman endorsed the name "Al Day" on the back of the check made payable to Phillip Mercer and cashed it at Monty's Department Store. While Coleman was cashing the check appellant was sitting in his car parked across the street. After cashing the check Coleman returned to the car in which appellant was sitting and gave the money received from cashing the check to appellant. A portion thereof was given by appellant to Coleman as his "split".

Appellant then handed to Coleman the check made payable to Jasper Johnson, Jr., upon which the endorsement had previously been forged by Watkins. They drove to Caribou's Department Store. Coleman again endorsed the name of "Al Day" on the check and presented it for cashing, using the fictitious fishing license. He received the money, returned it to appellant and received his split.

In due time the fraudulent cashing of the checks came to light. An investigation was launched and eventually the spotlight was focused upon appellant as the prime mover in the criminal transaction. The evidence was presented to a grand jury, and an indictment was returned charging appellant with several violations of 18 U.S.C.A. § 495, and of conspiring to violate 18 U.S.C.A. § 495 in violation of 18 U.S.C.A. § 371. A trial was had and appellant was found guilty on five counts. Certain other counts were dismissed. The counts of the indictment on which conviction was had charged only the forgery of the name "Al Day" on the checks, and the uttering of that forgery as true. The prior forgery of the payees' names by Romeo Watkins was not mentioned.

During the trial Romeo Watkins was permitted to testify that he did, at appellant's urging, make the endorsements. The admission of this evidence is urged as one of the main errors committed by the trial court. Appellant says that it disclosed a separate and independent crime, the admission of which is frowned on by the law.

There are well established exceptions to this rule. The questioned evidence clearly falls within at least one of them, to-wit, where a common scheme and design is shown and in the train of circumstances the commission of another crime may appear the evidence is admissible.¹ There can be no question here but that the inducement of Watkins by appellant to forge the names of Jasper Johnson, Jr., and Phillip Mercer on the back of the checks was one step used by him in facilitating the cashing of the checks.

Appellant attacks the credibility of the witnesses, impugns their motives, and attempts to implant the idea that he was framed. The short answer to this contention is that those were matters for the jury. They evidently...