Leonard v. United States

• Decision Date: 06 April 1960
• Docket Number: No. 16114.,16114.
• Parties: Andrew J. LEONARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F.2d 834 (1960)

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

No. 16114.

United States Court of Appeals Ninth Circuit.

April 6, 1960.

Edgar Paul Boyko, Los Angeles, Cal., for appellant.

William T. Plummer, U. S. Atty., George N. Hayes, Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

On the 24th day of January, 1958, appellant was committed to the custody of the Attorney General of the United States for imprisonment for a period of six years, following his conviction by a jury of the offense of transporting in interstate commerce a forged instrument, in violation of the provisions of Title 18 U.S.C.A. § 2314.¹ Notice of appeal was timely filed in this Court on the 31st day of January, 1958.

Jurisdiction of the district court was conferred by Title 48 U.S.C.A. § 101. Jurisdiction of this Court is based upon Title 28 U.S.C.A. §§ 1291 and 1294, prior to the amendments appearing in Public Law 85-508, 72 Stat. 339. For such amendment see Parker v. McCarrey, 9 Cir., 1959, 268 F.2d 907.

Appellant contends that the district court erred in admitting into evidence a written confession which appellant claims was obtained under circumstances of duress; in refusing to declare a mistrial because of alleged prejudicial misconduct of the prosecuting attorney in his opening statement; in the giving of an instruction to the jury in relation to the opening statement which appellant claims was inadequate and damaging; and in failing to grant a motion for acquittal based upon lack of proof of the corpus delicti.

We will first consider the appellant's contention that the district court erred in refusing to grant appellant's motion for a mistrial.

It appears that as soon as the jury was empaneled to try the cause the court directed government counsel to make his opening statement, to which counsel replied, "Your Honor, may I have about 5 minutes. We've got the jury faster than I contemplated and I'd like to complete putting something on the board that I want to use in my statement * * *." Following the recess, the court again directed counsel to make his opening statement, to which counsel replied:

"Thank you, your Honor. May I have the pointer, please? Now, what I say to the court and jury, I thought it might be helpful to you and lend clarity to the presentation of the Government\'s case as well as your visualization of the defense, if there is any, to enumerate the several elements of the crime that the Government is charging in this indictment."

Counsel then proceeded to enumerate the elements of the offense charged in the indictment, and then stated:

"In most criminal cases the prosecution is unable to show any other crimes committed by the defendant. I am going to be able to do that in this case, however, because the defendant\'s plea of not guilty has put in issue every material ingredient of offense charged against him, and remember that an element, or ingredient No. 4 in the charge against the defendant is that he caused the check to be transported. He had the intent to defraud Morrison-Knudsen Company.

"Now, it has been an ancient and honorable doctrine in the law that the prosecution is not able to show a jury any other crimes committed by the defendant because the law in its wisdom has it that no one shall be convicted because a jury shall conclude from other crimes that he is a bad man and because he is a bad man reasoned that he must have committed this particular crime. And that is a very good rule. However, that rule has about seven classical exceptions and two of the exceptions fit this case and thus enable the Government in this instance to bring to your attention some of the other crimes.

"Now, when I say `other crimes\', I am not talking about previous convictions. I make no intimation whatsoever on the subject of previous convictions. When I say that the Government by the exceptions that exist to this ancient doctrine to the law is able to show other crimes committed by this defendant I am speaking about crimes that have never been made the subject of indictment or in which this defendant stands unconvicted and unpunished. How am I able to do that? By virtue in this case of two of those seven exceptions that I mentioned. The rule is ordinarily you can\'t show other crimes, but in this case we are able to do it on two exceptions to that principle of law.

"The first exception is that whenever a defendant denies having the specific intent charged by the Government, and he does in this case because his plea of not guilty puts it into issue and constitutes a denial of the Government\'s claim, that he had the specific intent to defraud and the law says that whenever an individual denies by his plea of not guilty of having a specific intent or a particular kind of intent, the Government may bring in other crimes to show that he did have that intent.

"That is our purpose in bringing to your attention these other crimes to show you that this defendant did have the specific intent to defraud Morrison-Knudsen Company as the company says in the indictment.

"The other exception to that ancient rule I mentioned is that whenever it is desirable or necessary to identify the defendant as the person committing the instant crime, the Government may introduce similar crimes, crimes of a similar nature committed by the defendant in order to assist in establishing that identity. Thus it is that the Government brings to you, not alone the one crime charged in the indictment, but a great number of other crimes, all of which will be shown to you as having been confessed to by this defendant, although they have not as yet been the subject of indictment or prosecution, conviction, or penalty. These crimes number 84. They are all felonies. Yes, you heard me correctly. I said 84. Incredible, but true. I should say, to be absolutely accurate, 83 other crimes other than the indictment crime. Thus it is that the presentation of our evidence falls into three parts. Would the bailiff turn around the blackboard. (The bailiff did so.)

"I was just saying that the presentation of our evidence will fall roughly into three parts. And I have put these three parts on the blackboard and I hope that each of you can see. If there is any juror who can\'t see a raising of the hands will probably permit us to shift this blackboard. Now, I have used a little system that I have seen accountants or bookkeepers use and what I have done here is the subject parts of these various crimes I have put in tabular order here and then I have added them up, you see, and carried that over in that fashion and then in the very last imaginary table of all I have put my grand total.

"A part of our presentation will concern the crime alleged in the indictment. There is only one crime, one count in the indictment and therefore it contributes to the grand total. The central portion of our presentation to you, which will not actually take very long because it will be handled by the route of presenting to you one confession, one document and that confession by the defendant will constitute what I term the middle group. That is `B\' part here, the middle group of crimes, and `C\' part, of what I term here for convenience, the Fairbanks group will show the Fairbanks crimes. Now, the middle group we have here, William A. Smith, Contracting Company. The letter `F\' hyphen `U\' I have used as sort of a shorthand to indicate forging and uttering and I must advise you that in the totals out here the subtotals here and of course in the grand total I have counted each forgery as one crime and each uttering as another crime. Ordinarily, when a check is forged and then passed by getting it cashed, you have one unitary transaction, one transaction, but it gives rise to two violations of law, one being forgery and the other being uttering. In the case of William A. Smith, Contracting Company, the evidence of the Government will show that there were 14 felonies committed by this defendant consisting of forgeries and utterings, seven forgeries, seven utterings.

"The second group here in our middle group, `FWS,\' standing for Fish and Wildlife Service. The `FOS\' is my own little abbreviation for false official statement. The evidence on this Fish and Wildlife Service crime will show you that the defendant made out, that is, made an application for a fishing license under a false name. And this last one, `A.H.A.\' stands for Alaska Housing Authority, 12 felonies forging and uttering, six checks here, seven checks up here, a false official statement here. And subsequent to this conduct or at about the same time the defendant betook himself to Fairbanks and there engaged in a conspiracy and an attempt to commit a gigantic swindle in cooperation and colleague with one Robert Jackson an importation from the States brought into the ring here for certain services that will be in a moment explained to you, a local man.

"Now, these 56 crimes that were committed in the Fairbanks episode occurred in this fashion. They break down as follows: six crimes committed by forging and uttering, there being six checks involved and two crimes on each check. And I have abbreviated this `C.A. to F.U.\' conspiracy and an attempt to forge and utter 50 other checks. That is, 25 other checks which give us a total of 50 crimes because each forgery and uttering constitutes a separate crime giving for the Fairbanks group a total of 56 crimes conspired to or attempted, which includes six crimes actually committed. That is, six checks actually forged and actually passed by this defendant, giving us the astonishing total of 84 crimes including the one for which he is presently being prosecuted.

"Now, will the bailiff assist me, please, in turning around the blackboard. (The bailiff did so.)

"Before I give you the explanation of the crime charged in the indictment I want to recite for you some of the false

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