Ramsey v. United States

• Decision Date: 24 June 1964
• Docket Number: No. 17552.,17552.
• Citation: 332 F.2d 875
• Parties: Howard Lawrence RAMSEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

332 F.2d 875 (1964)

Howard Lawrence RAMSEY, Appellant, v. UNITED STATES of America, Appellee.

No. 17552.

United States Court of Appeals Eighth Circuit.

June 24, 1964.

Roger M. Hibbits, St. Louis, Mo., made argument for the appellant and filed typewritten brief for appellant.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., made argument for the appellee and filed typewritten brief for appellee, with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Ramsey was indicted, found guilty by a jury, and sentenced on a charge of unlawfully and willfully causing a described falsely made, forged and counterfeited check to be transported in interstate commerce with fraudulent intent in violation of 18 U.S.C.A. § 2314. Defendant filed a timely motion for new trial wherein he raised in substance the errors here relied upon for reversal. Such motion was overruled. This appeal is from the denial of such motion and from the final judgment and sentence.

Defendant asserts the court erred in denying his motion for new trial and in entering judgment of conviction for the following reasons:

I. The evidence is insufficient to support a conviction in that there is no proof that defendant caused the forged check to be transported in interstate commerce.

II. The court improperly limited defendant's argument to the jury and improperly overruled defendant's objections to the Government counsel's argument.

III. The court unduly restricted defendant's cross-examination of Government witness Tracy.

Defendant at the trial made no motion for acquittal nor did he except to any instruction given or request any instruction. The appropriate way to challenge the sufficiency of the evidence to support a verdict is by motion for acquittal. Harris v. United States, 8 Cir., 297 F.2d 491, 492; Cox v. United States, 8 Cir., 284 F.2d 704, 709.

The proper foundation for establishing a basis for questioning the applicable law as stated by the court in its instruction is by exceptions to instructions and request for instructions. Defendant raised his point "I" contention challenging the sufficiency of the evidence only by motion for new trial. Ordinarily, the ruling upon a motion for new trial is not reviewable upon appeal and in any event a ruling upon such motion can be upset only for abuse of discretion. Dranow v. United States, 8 Cir., 307 F.2d 545, 567.

It is of course possible for the court under criminal rule 52(b) to notice plain error but such procedure is to be used only in exceptional circumstances to avoid a miscarriage of justice. We would be warranted in summarily affirming upon point "I" upon the basis that there is nothing before us for review. We are satisfied that no plain error situation is presented. The parties have argued the issues raised upon this appeal upon the merits and although not required to do so, we have chosen to consider the issues raised by the defendant upon their merits.

I.

The indictment charges that the defendant did on May 3, 1963, with unlawful and fraudulent intent, cause to be transported in interstate commerce from St. Louis County, Missouri, to Nashville, Tennessee, a falsely made, forged and counterfeited check for $87.50 purportedly drawn by Service Lines, Incorporated, upon the First American National Bank of Nashville, Tennessee, in violation of 18 U.S.C.A. § 2314. The statute so far as here material defines the crime here involved as follows:

"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; * * *."

Substantial evidence supports the jury's determination that the defendant presented the $87.50 check described in the indictment at a teller's window at the North Side Bank in St. Louis County, Missouri, and received payment thereof; that the check was forged; that the defendant knew the check was forged, and that the act was done willfully with an unlawful and fraudulent intent. The sufficiency of the evidence to establish such facts is not challenged.

Defendant's position is that there is no substantial evidence to establish that he caused the forged check to be transported in interstate commerce. He contends that the check came to rest when the North Side Bank discovered, shortly after it had paid the check, that it was a forgery. Defendant in support of such theory places principal reliance upon United States v. Gardner, 7 Cir., 171 F.2d 753. The opinion in that case expresses grave doubt as to whether there was any evidence to connect the defendant with the transaction. The court does state that Chenoweth, who received a forged check drawn on an out of state bank, learned of the forgery before he placed the check in bank channels and stated that he deposited the check "for the purpose of making a case from the federal standpoint." The court then uses the language relied upon by the defendant reading:

"The transportation was caused by and was that of Chenoweth and nobody else (assuming that the Richmond bank had no knowledge of the situation). While we are referred to no case directly in point, we are of the view that the checks came to rest insofar as interstate commerce is concerned when Chenoweth learned that they were forgeries." 171 F.2d 753, 756.

The case before us differs materially from the Gardner case. There is no evidence in our present case that the check was placed in interstate channels solely for the purpose of creating a federal offense. On the contrary, the bank by sending the check out for collection received the proceeds of the check.

It is established that the North Side Bank at the time it received and paid for the forged check acted in good faith and thought that it was accepting a genuine instrument. It is true, as contended by defendant, that the bank after subsequently receiving on the same day several similar forged checks became suspicious and made inquiry and learned from Service Lines, the purported drawer of the check, that some of its check blanks together with a check signing device had been stolen and that the check involved in this case was not a genuine or authorized check. North Side Bank received the check on May 3 but did not place it in banking channels for collection until May 22. The reason for delay in transmitting the check for payment is not explained. The record further shows that the Nashville bank received advice that the forged checks were in circulation before the check here involved was received by such bank and paid. The Nashville bank received the check on May 23 and paid it on that date, charging it to Service's account, and said bank in due course returned such cancelled check...