Pines v. United States

• Decision Date: 02 January 1942
• Docket Number: No. 11951.,11951.
• Citation: 123 F.2d 825
• Parties: PINES v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 825 (1941)

PINES v. UNITED STATES.

No. 11951.

Circuit Court of Appeals, Eighth Circuit.

December 5, 1941.

Rehearing Denied January 2, 1942.

Eugene D. O'Sullivan, of Omaha, Neb. (Peter C. Rasmussen, of Council Bluffs, Iowa, on the brief), for appellant.

Cloid I. Level, Asst. U. S. Atty., of Des Moines, Iowa (Maurice F. Donegan, U. S. Atty., of Davenport, Iowa, and William R. Sheridan, Asst. U. S. Atty., of Keokuk, Iowa, on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant was indicted in an indictment containing three counts for transporting and causing to be transported in interstate commerce certain falsely made, altered, forged and counterfeited securities, in violation of the provisions of Sections 413 to 419, Title 18 U.S.C.A. We shall refer to the appellant as defendant.

Count 1 of the indictment charged that the defendant "on or about the 27th day of November, A. D. 1939, did then and there unlawfully, wilfully, knowingly and feloniously, with intent to defraud, transport and cause to be transported in interstate commerce from the City of Minneapolis, in the State of Minnesota, to the City of Council Bluffs, County of Pottawattamie and State of Iowa * * * a falsely made, forged, altered and counterfeited security, to-wit, a U. S. Dollar Travelers Cheque purportedly issued by Gotham Trust Company of New York, a fictitious bank, in denomination of One Hundred Dollars ($100.00), knowing the same to have been falsely made, forged, altered and counterfeited, and a photostatic copy of which said falsely made, forged, altered and counterfeited security aforesaid, is hereto attached marked Exhibit `A', and made a part of this count by reference." Count 2 is identical with Count 1, except that it describes six such cheques as that described in Count 1. Count 3 charges the defendant with the transportation of "a falsely made, forged, altered and counterfeited security, to-wit, a Circular Letter of Credit purportedly issued by Gotham Trust Company of New York, a fictitious bank, bearing Number 44139, knowing the same to have been falsely made, forged, altered and counterfeited, and a photostatic copy of the face (marked Exhibit `B') and a photostatic copy of the back (marked Exhibit `B-1') of which said falsely made, forged, altered and counterfeited security aforesaid are hereto attached and made a part of this Count by reference." In each Count the defendant was referred to as "Davis Pines, alias David Pinas, alias Joseph L. Lewis, alias `Little Davie'", and he was so designated in the caption of the indictment.

Following the return of the indictment and before entering his plea, defendant filed a motion for a bill of particulars, which was denied, and he then, before plea, filed a motion to quash the indictment and a special demurrer based upon identical grounds. These were likewise overruled, whereupon defendant entered his plea of not guilty. At the conclusion of all the evidence he moved for a directed verdict, which was denied, and the case was submitted to the jury upon instructions to which certain exceptions were saved by the defendant. The jury by its verdict found the defendant guilty on all three counts, upon which verdict the court entered its judgment sentencing the defendant to the United States Prison for four years on each of the three counts of the indictment, the sentences to run concurrently. From the judgment and sentence so entered defendant prosecutes this appeal and seeks reversal on substantially the following grounds: (1) the court abused its discretion in refusing to grant his motion for a bill of particulars; (2) the court erred in overruling his motion to quash and special demurrer; (3) the court erred in denying his motion for a directed verdict; (4) the court erred in receiving in evidence Exhibits 1 to 8 inclusive; (5) the United States Attorney was guilty of prejudicial misconduct in placing a number of unproven aliases in the caption and body of the indictment; (6) the court erred in refusing to give an instruction relative to the necessity for independent evidence to corroborate the extra judicial admission proved.

The motion for a bill of particulars is addressed to the sound discretion of the trial court and in the absence of an abuse of such discretion the court's ruling will not be reversed on appeal. Hartzell v. United States, 8 Cir., 72 F.2d 569; Bedell v. United States, 8 Cir., 78 F.2d 358. In his motion defendant requested that he be informed of the names of the persons whom it was claimed he intended to defraud. The statute provides that, "* * * whoever with unlawful or fraudulent intent shall transport or cause to be transported in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited * * * shall be punished," etc. 18 U.S.C.A. § 415.

The statute merely requires "unlawful or fraudulent intent." Such intent is specifically alleged in the indictment and characterizes the act of transportation. As a matter of pleading the indictment charged this intent and thus apprised defendant with reasonable certainty of the crime charged against him. Wolpa v. United States, 8 Cir., 86 F.2d 35. Under this statute, one might properly be found guilty of transporting an instrument, the transportation of which is forbidden by the statute, without proof that he had the intent to defraud any specific person, it being sufficient that he had the general intent to defraud any member of the public who might later become a victim to his fraud.

The demand for bill of particulars also requested that defendant be informed whether the Government expected to prove that the defendant actually transported or caused to be transported the described securities, and if he caused them to be transported, the way, means and precise agency or person used in causing the transportation to be made. The indictment sufficiently advised the defendant of the charge against him and the particulars called for did not go to the description of the offense but called on the Government to advise the defendant as to its proof. The denial of this request was clearly proper and certainly not an abuse of discretion. Bedell v. United States, supra; Hartzell v. United States, supra. Likewise, the third request was properly denied as being within the court's discretion. By that request, defendant asked to be informed of the precise way and means it was claimed that the defendant did transport or cause to be transported.

The fourth matter on which more definite information was requested was whether or not in Counts 1 and 2 it was the claim of the Government that there ever was a genuine security called a U. S. Dollar Travelers Cheque or such a security known as a Circular Letter of Credit, as set out in Count 3 of the indictment. The denial of this request was not prejudicial. It called for no fact which might further describe the offense charged, but sought to have the Government disclose its contentions or theories with reference to the facts charged. It is clear from the reading of the indictment that the bank alleged to be the purported bank of issue was fictitious, and it was so stipulated during the trial. There could therefore be no genuine instrument. The denial of the motion for bill of particulars was not prejudicial error.

The sufficiency of the indictment was challenged by motion to quash and special demurrer. Section 414(b) 18 U.S.C.A. elaborately defines "securities," as the term is used in Section 415 of the Act. The term includes check, draft, traveler's check, letter of credit, evidence of indebtedness, and in general any instrument commonly known as security.

In each Count the particular instrument is embodied by attaching a photostatic copy of it. A "circular letter of credit," which is the kind of instrument described in the third count, is a letter of credit. Defendant contends that it is not complete. A letter of credit is a letter authorizing one person to pay money or extend credit to another on the credit of the writer. It need not be in any particular form. Second Nat. Bank v. Columbia Trust Co., 3 Cir., 288 F. 17, 30 A.L.R. 1299. The third count alleges that the purported issuer, the Gotham Trust Company, was fictitious. All that was required was that some innocent person act upon the letter. It was complete as a letter of credit and was falsely made. As to the Travelers Cheques it is contended that they were not complete; hence, could not be unlawfully transported. A Travelers Cheque has the characteristics of a cashier's check of the issuing bank. As said by us in Mcllon Nat. Bank v. Citizens Bank & Trust Co., 8 Cir., 88 F.2d 128, 132.

"It is a bill of exchange drawn by the issuing bank upon itself and is accepted by the act of issuance, and the right of countermand as applied to ordinary cheques does not exist as to it."

The purported Travelers Cheques alleged to be fictitious were payable to order when countersigned by Joseph L. Lewis, whose signature purported to appear on them. As the obligation created by the issuance of a Travelers Cheque is complete as against the bank when issued, even though requiring the signature of the one to whom issued, it constituted a security within the purview of the statute because falsely made.

It is also urged that the indictment is duplicitous because the defendant is charged in each count with falsely making, forging, altering and counterfeiting the security described. Manifestly, the words "altering" and "counterfeiting" could refer only to a crime based upon a preexisting genuine instrument. Forgery, however, does not necessarily carry such presumption but indicates that there is a genuine or real obligor in existence whose obligation has been simulated. To "falsely make" is a crime not of changing or forming an instrument to resemble an existing...