Morgan v. United States

• Decision Date: 23 August 1967
• Docket Number: No. 17245,19293.,17245
• Citation: 380 F.2d 686
• Parties: Robert E. MORGAN, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

380 F.2d 686 (1967)

Robert E. MORGAN, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 17245, 19293.

United States Court of Appeals Ninth Circuit.

June 19, 1967.

Rehearings Denied August 23, 1967.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert E. Morgan, in pro. per.

Milton Stern, Jr., San Francisco, Cal., for appellant (17245).

Joseph H. Lewis, Hollywood, Cal., for appellant (19293).

Cecil F. Poole, U.S. Atty., Charles W. Getchell, Asst. U.S. Atty., San Francisco, Cal., for appellee (17245).

John K. Van de Kamp, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief Crim. Div., Arthur I. Berman, Asst. U. S. Atty., Los Angeles, Cal., for appellee (19293).

Mitchell Rogovin, Asst. Atty. Gen., John P. Burke, Atty., Tax Div. Dept. of Justice, Washington, D. C., Melvin Sears, Regional Counsel, Internal Revenue Service, San Francisco, Cal., of counsel.

Before CHAMBERS and BARNES, Circuit Judges, and SMITH,^* District Judge.

BARNES, Circuit Judge:

This opinion relates to two appeals, each taken in forma pauperis, from two convictions of two counts each.

I

No. 17,245 is an appeal from the United States District Court for the Northern District of California, Southern Division, of a judgment of conviction for using a false document in violation of 18 U.S.C. § 1001; and for theft by false pretenses and conversion of a United States Treasury check for $444.11, in violation of 18 U.S.C. § 641; as each were charged in two counts (Counts I and II) of a twelve count indictment, and which related to United States 1955 income tax returns filed by appellant and others.

During the time the acts alleged in No. 17,245 took place, appellant was confined as an inmate in Folsom Prison, a California State Penal Institution. Appellant was also charged and tried on Counts III and VI, but the jury disagreed. Appellant was charged jointly with codefendant Davenport in Counts III and IV; with codefendant Escarrega in Count IX; with codefendant Holley in Count XI. Davenport was the sole defendant in Counts VII and VIII. Escarrega was the sole defendant in Count X. Count XI was a conspiracy count charging codefendant Holley. Counts IX to XII were severed, and appellant and codefendant Davenport only went to trial on Counts I to VIII. Davenport then pled guilty, and the trial proceeded as to appellant alone. All defendants named were inmates of the California State prison at the time the offenses allegedly occurred.

II

No. 19,293 is an appeal from a judgment of conviction on Counts III and IV of a six count indictment filed in the United States District Court for the Southern District of California, Central Division (now the Central District of California). Count III charged the making and presenting of a false claim for $428.80, based on an alleged income tax refund due William G. Steinhoff; and Count IV charged the making and presenting of a false claim for $428.80 based on an alleged income tax refund due appellant himself.

During the time the acts alleged in No. 19,293 took place, appellant was an inmate of the Wayside Honor Ranch, a California State Penal Institution, where he worked as a trusty in the maximum security hospital. His alleged confederate and codefendant who pleaded guilty, was one "Maximillian B. Michelson."

Michelson pleaded guilty to Counts IV and VI, and the court granted appellant an acquittal as to Counts I, II and V. The conviction of appellant was on each of the remaining two Counts, III and IV, appellant not being charged in Count VI.

III

Jurisdiction below was predicated on 18 U.S.C. §§ 287 and 3231 in No. 19,293; on 18 U.S.C. §§ 641 and 1001 in No. 17,245; and in each case, jurisdiction here rests on 28 U.S.C. §§ 1291 and 1294.

IV

Appellant files documents on his behalf in never ending cascades, and without regard to court rules.

To clear out some underbrush, and to enable us to reach the issues, we hold and order as follows:

1. Appellant's application (filed April 12, 1967) for stay of the hearing of his two appeals (referring to both No. 17,245 and No. 19,293) then calendared for April 17, 1967, was denied on that date, April 17, 1967.

2. Appellant's "Memorandum to the Court" in No. 17,245, dated April 12, 1967, received by the clerk of this court on April 18, 1967, is ordered "Lodged."

3. Appellant's "Motion" in No. 19,293 for order "to have reporter's transcript prepared on Hearings of Motions for Bill of Particulars, Discovery and Inspection, etc., etc., on September 25, 1962," which motion is dated April 20, 1967, and which was received by the clerk of this court on April 24, 1967, is denied as untimely, and the document is ordered to be marked "Received."

4. Appellant's "Request" in No. 17,245 "that election not to serve sentence filed March 1, 1965 be made part of record," etc., which "Request" bears date of service of April 20, 1967, and which was received by the clerk of this court on April 24, 1967, is denied as untimely, and the document is ordered to be marked "Received."

5. Appellant's alleged "Affidavit," numbered in No. 17,245 and No. 19,293, "in support of Motion for Order to Clerk to file Supplement (sic) Appellant Brief," and failing to show date of any oath, which was received by the clerk of this court is ordered not to be filed, as it is not timely, and the document is ordered to be marked "Received."

6. Appellant's Opening Brief in No. 19,293 was filed herein on September 13, 1966. Appellant's so-called "Supplemental Brief" in No. 19,293 was filed herein on January 31, 1967. Appellant's so-called "First Traverse Brief" in No. 19,293 was received by the clerk of this court on January 31, 1967 and lodged on February 27, 1967. Appellant's "Reply Brief" was presented for filing out of time, having been received by the clerk of this court on April 10, 1967, and thereafter "Lodged."

It is hereby ordered that said "Appellant's First Traverse Brief," and said "Appellant's Reply Brief" be filed, and so marked by the clerk of this court.

7. It is hereby further ordered that appellant's motion to amend his brief entitled "Appellant's First Traverse Brief to Appellant's Reply Brief" be denied.

8. It is hereby further ordered that "Appellant's Oral Argument Hearing Memorandum" in No. 19,293, received by the clerk of this court on April 13, 1967, and so marked, be filed.

V

We note the two count conviction in No. 17,245 resulted, on December 22, 1960, in sentences of two consecutive five year terms, "to run consecutively to any period of actual confinement under sentence or sentences of imprisonment now being served by the defendant in California State Prison", etc.

The two count conviction in No. 19,293 resulted, on January 28, 1963, in sentences of two five years terms, consecutive to each other, "and to run consecutive to the sentence defendant is now serving with the State, and consecutive to Federal sentence defendant may have to serve pursuant to judgment" rendered in No. 17,245.

VI

Errors alleged in No. 17,245 are as follows:

(1) The court lacked jurisdiction.

This is based upon appellant's statement that the offense, if any, was committed at Represa, California, the site of Folsom Prison, within the Northern Division of the Northern District of California, while San Francisco was in the Southern Division of the Northern District of California.

A short answer is a reference to Rules 18 and 19 of the Federal Rules of Criminal Procedure. Rule 18 refers to the District where the offense was committed, not the Division. And, under Rule 19, the defendant must consent to a trial in another District. If he raises no objection, it is assumed he consents. Entirely apart from the Rules or any waiver, however, appellant was actually tried in the Division where the offense was committed.

Exhibit No. 1 is a Federal Income Tax Form 1040A for 1955, made out in Morgan's name, with its Represa address, and his box number, similar to his number as a state prisoner. This Exhibit was filed with and processed by the District Director of Internal Revenue in San Francisco, as required by law (26 U.S.C. § 6091). Its processing number was R166332, which number was placed on, and only on, the refund check arising out of that return. Exhibit 2 was the Treasury check, bearing number R166332, issued to appellant and his wife, and addressed to them at the prison. Appellant testified he received Exhibit 2 through the mail and sent it to his Los Angeles attorney for cashing. This attorney arranged for the second endorsement, cashed the check, and divided the proceeds; $200 of which went to appellant.

These facts clearly establish that the Form 1040A was "made" in Represa, filed and processed in San Francisco, that the refund check was issued and mailed there. Count I charges appellant "used" the false document in San Francisco, not the conjunctive that he "made and used" the false document there, as the statute reads. (18 U.S.C. § 1001.) The false pretenses required to establish a violation of 18 U.S.C. § 641, and to constitute a stealing were made to the Federal government in San Francisco. See Smith v. United States, 233 F.2d 744, 747 (9th Cir. 1956). Cf. Morissette v. United States, 342 U.S. 246, 249, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The cashing of the check was effected in Los Angeles, outside of the Northern District entirely, thus completing the proscribed act, begun in one District, and completed in another. 18 U.S.C. § 3237 reads as follows:

"(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

"Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired

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