McGee v. United States

• Decision Date: 10 March 1969
• Docket Number: No. 9967.,9967.
• Citation: 402 F.2d 434
• Parties: Floyd Lenox McGEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

402 F.2d 434 (1968)

Floyd Lenox McGEE, Appellant, v. UNITED STATES of America, Appellee.

No. 9967.

United States Court of Appeals Tenth Circuit.

October 30, 1968.

Certiorari Denied March 10, 1969.

Edward M. Boyle, Olathe, Kan., for appellant.

Benjamin E. Franklin, U. S. Atty., Kansas City, Kan., for appellee.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

Certiorari Denied March 10, 1969. See 89 S.Ct. 1020.

HILL, Circuit Judge.

The appeal is from a judgment of conviction and sentence following a jury verdict by which appellant was found guilty on each of two counts. Both counts charged a violation of 18 U.S.C. § 2314, which makes it unlawful to knowingly transport in interstate commerce falsely made, forged, altered or counterfeited securities.

The Parkview Drug Store No. 73 in Kansas City, Missouri, an authorized agent for the issuance of American Express Money Orders, was robbed on October 3, 1966, and a number of blank money orders were taken. On October 20, 1966, a man, later identified as the appellant, appeared at Snow's Frozen Food Locker in Kansas City, Kansas, and purchased meat by presenting an American Express Money Order in the amount of $85.00 that was made payable to one John L. Price. The purchaser received change in the amount of $71.00. On October 21, 1966, a man, identified as appellant, purchased water pipe from the Sonken-Galamba Corp., in Kansas City, Kansas, and also presented an $85.00 American Express Money Order in payment and received $75.05 in change. These money orders were identified as having been stolen from the Parkview Drug Store; consequently, after being transported in the regular course of business to the American Express Company in New York City, they were returned as falsely made and remain unpaid.

Prior to the trial, counsel for the appellant moved for separate trials on the two counts under Rule 14, F.R. Crim.P. The denial of this motion for a severance is attacked here by appellant. We find no merit in this point. Rule 14 permits a severance of counts only when the defendant shows that he would be prejudiced by going to trial without a severance. No showing of prejudice was made at the hearing on the motion or on this appeal. Appellant argues here that a separate trial on each of the two counts would have precluded the admission of evidence in each trial not pertaining to the particular charge upon which he was being tried. This is not correct because of the rule that evidence of similar offenses is admissible to prove the intent of the defendant.¹ Thus, all of the evidence adduced in this trial would have been admissible in both trials if appellant had been granted a severance and two separate trials held.

After the identification testimony of two witnesses had been received at the trial pertaining to count number two, counsel for the defendant moved to strike such testimony because of the out of court identification of photographs of the defendant in the absence of counsel. This motion to strike was denied. In support of this contention here appellant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966). Those cases concern the so-called lineup identification and are factually different from this case. What is complained of here is nothing more than preparation for trial by the Government. No lineup identification is involved and there was no form of confrontation of the accused. The trial judge was correct in refusing to extend the doctrine of Gregory and Wade and in denying the motion to strike the questioned evidence.

Appellant next contends that the trial court failed and refused to properly instruct the jury as to the necessity of positively identifying the appellant as the individual committing the alleged violations. In this regard, the instruction proposed by the appellant purported to caution the jury by calling attention to the fallibility of the human memory with regard to eye-witness identification. To sustain the necessity for this type of instruction, reliance is placed upon Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966) citing Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537 (1966) and Salley v. United States, 122 U.S. App.D.C. 359, 353 F.2d 897 (1965). An analysis of those decisions, as well as the decisions of other Circuits,² plainly indicates that in situations where the conclusiveness of identification has been challenged, it is incumbent upon the court to call attention to the fact that the jury must find beyond a reasonable doubt that it was the defendant on trial who had committed the acts as alleged.³ A review of the instructions given in the present case,⁴ indicates that the court instructed the jury in a manner properly focusing attention upon "the fact that it not only had to find beyond a reasonable doubt that the crimes had been committed as charged before the defendant could be convicted, but also that beyond a reasonable doubt it was the defendant on trial who had committed them."⁵ We conclude that the defense of mistaken identification was accurately presented to the jury.

It is also urged that the court improperly instructed the jury as to the effect to be given the fact that appellant had forged the endorsement of the money orders in question. The jury was instructed that while the mere forging of an endorsement is not in itself a violation of 18 U.S.C. § 2314, it can be considered in determining whether appellant was aware of the forged, altered or falsely made nature of the instruments in issue. Appellant cities Pauldino v. United States, 379 F.2d 170 (10th Cir. 1967) and Beatty v. United States, 357 F.2d 19 (10th Cir. 1966), to support the proposition that the existence of a forged endorsement is completely irrelevant to the determination of the accused's knowledge of the fraudulent character of the security.

While it is true that this court declared in Pauldino and Beatty that: "Whether defendant actually endorsed the check is of no significance in establishing the elements of the offense," it does not follow that evidence that the defendant forged the endorsement is of no value whatsoever. Evidence of the forging of an endorsement is of no significance only in the sense that in and of itself it does not constitute a violation of § 2314. Nevertheless, such conduct can be viewed as circumstantial evidence tending, when taken with other evidence, to demonstrate the requisite guilty knowledge.⁶ As a result, the instruction correctly reflected the existing state of the law and therefore it was properly given....