Rimerman v. United States

• Decision Date: 29 May 1967
• Docket Number: No. 18431.,18431.
• Parties: Robert RIMERMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

374 F.2d 251 (1967)

Robert RIMERMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 18431.

United States Court of Appeals Eighth Circuit.

March 14, 1967.

Certiorari Denied May 29, 1967.

Gerald M. Smith, of Guilfoil, Caruthers, Symington, Montrey & Petzall, St. Louis, Mo., for appellant; Rexford H. Caruthers and Gerhard J. Petzall, of Guilfoil, Caruthers, Symington, Montrey & Petzall, St. Louis, Mo., on the brief.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

Certiorari Denied May 29, 1967. See 87 S.Ct. 2053.

MEHAFFY, Circuit Judge.

Robert Rimerman, defendant-appellant, was tried to a jury and convicted on each of two counts in an indictment charging him in Count I with possessing and concealing counterfeit obligations of the United States in violation of 18 U.S.C.A. § 472, and in Count II with selling, transferring and delivering counterfeit obligations of the United States in violation of 18 U.S.C.A. § 473.¹ Defendant was sentenced to a term of thirty months on each count, the sentences to run concurrently. We affirm.

Defendant, a grocer, did business with the Jefferson Bank & Trust Company in St. Louis, Missouri, and was acquainted with Stephen E. Wood, one of the bank tellers. On October 18, 1965, defendant, while making his usual bank deposit, asked Wood to check the genuineness of a ten dollar bill. Wood noted the serial number and upon checking it against the bank's record of counterfeit bills found it authentic. Defendant then asked Wood if he would like to make $1,000 and Wood replied "who wouldn't?" Defendant then told Wood that if he would circulate $7,000 in counterfeit bills through the bank, he would pay him $1,000. Wood refused but defendant told him to think it over. After this conversation, Wood reported it to his superior, the bank auditor, and report was also made to the United States Secret Service. Following this, Wood called defendant and advised that he had decided to accept the offer. Other conversations followed between defendant and Wood in which it appeared that the original scheme had gone awry, but defendant told Wood that he would bring him $300 in ten dollar counterfeit bills in exchange for six fifty dollar bills, agreeing that Wood should be paid $50.00 for making the exchange. This transaction was accordingly made and Wood delivered six fifty dollar bills, which had been marked by the Secret Service. Defendant gave Wood one of the fifty dollar bills. The serial number on some of the counterfeit bills was the same as that on the bill Wood previously checked as to authenticity. After this transaction, defendant left the bank and returned to his store. Later in the day he was arrested by the Secret Service while possessing the five marked fifty dollar bills.

It is not disputed that defendant possessed and transferred the counterfeit ten dollar bills and received in exchange the fifty dollar bills, one of which he returned to Wood. Defendant, however, denied knowing the ten dollar bills were counterfeit and testified he had received them from a salesman who owed him money. He explains his return of one of the fifty dollar bills to Wood as a loan. Thus, his sole defense to the charge was denial of knowledge that the bills were counterfeit or that he attempted to have Wood circulate them.

Defendant initially contends that the court erred in overruling his motions for judgment of acquittal at the close of the Government's case and at the conclusion of all the evidence. He asserts that a fatal variance exists in the indictment and proof, basing his argument on the Government's failure to prove "concealment" in the first count and "sale" in the second count of the indictment. The statutes denounce the crimes in the disjunctive whereas the indictment charges them in the conjunctive.²

In Count I, the indictment charges defendant with knowingly "possessing and concealing" counterfeit bills. The Government made no effort to prove "concealment," but it is undisputed that defendant "possessed" the counterfeit bills. Similarly, the argument is made that the Government did not prove a "sale" as charged in Count II, but here again there is no question but that defendant "transferred and delivered" the counterfeit bills to the bank teller. It was not incumbent upon the Government to prove either the "sale" or "concealment," as it has long been settled that where a crime is denounced disjunctively in the statute but charged conjunctively in the indictment, proof of any one of the allegations will sustain a conviction. As stated in United States v. Conti, 361 F.2d 153, 158 (2nd Cir. 1966):

"Charging alternative ways of violating a statute in the conjunctive is permissible, and a conviction under such an indictment will be sustained if the evidence indicates that the statute was violated in any of the ways charged. Smith v. United States, 234 F.2d 385 (5th Cir. 1956)."

Accord, Turf Center, Inc. v. United States, 325 F.2d 793, 796 (9th Cir. 1963); Arellanes v. United States, 302 F.2d 603, 609 (9th Cir. 1962), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962).

Defendant next assigns as error the court's failure to instruct the jury as to the essential elements of the offenses charged. The crux of defendant's argument is that the court failed to define for the jury the operative words of the statutes and indictment — "possess," "conceal," "sell," "passing," and "publishing." It is argued that these words constitute essential elements of the offense and, therefore, must be defined. Defendant neither requested the trial court to make such definitions nor did he object to their omission from the charge. The court included in its charge the relevant parts of the statutes and also read to the jury from the indictment. It was entirely proper for the court to utilize the language of the statute in charging the jury. Speaking for this court in Williams v. United States, 328 F.2d 256, 262 (8th Cir. 1964), Chief Judge Johnsen stated:

"A court may and generally should, where the law governing a case is expressed in a statute, employ the language of the statute in its instructions. (Citations omitted.) Except where the statute is complex or not expressed in ordinary language — which is not the situation here — any amplification which a party may desire to have made must be the subject of a requested instruction by him."

To the same effect see Lumetta v. United States, 362 F.2d 644, 648 (8th Cir. 1966);³ Caldwell v. United States, 338 F.2d 385, 391 (8th Cir. 1964).

It must be assumed that the jury had ordinary intelligence and comprehended the plain and simple language of the statutes. In fact, an attempt to explain such simple words as "possess," "conceal," "sell," "pass" and "publish" could well lead to confusion rather than clarification. The late Judge Sanborn, speaking for this court in Guon v. United States, 285 F.2d 140, 142 (8th Cir. 1960), stated:

"Guon\'s criticism of the trial court\'s instructions is without merit. Stated briefly, the contention is that the trial court was required, regardless of any request, to define `aiding and abetting\' and to explain what is meant by the words `directly or indirectly\' as used in the charge. We cannot agree. `Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion.\' (Citation omitted.) Frequently, to attempt to explain understandable language is merely to confuse. If the instructions given cover the case and are correct, that is enough. (Citations omitted.)"

See also and compare United States v. Allegrucci, 299 F.2d 811, 814, 815 (3rd Cir. 1962); Popeko v. United States, 294 F.2d 168 (5th Cir. 1961); Bohn v. United States, 260 F.2d 773 (8th Cir. 1959), cert. denied, 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); United States v. Malfi, 264 F.2d 147 (3rd Cir. 1959); Kahn v. United States, 251 F.2d 160, 162 (9th Cir. 1958); Ramsey v. United States, 245 F.2d 295, 296 (9th Cir. 1957); United States v. Jonikas, 197 F.2d 675 (7th Cir. 1952).

By using language of the statutes, the trial court fully instructed the jury on the elements of the crime and certainly should not have undertaken to define simple words, particularly when no request was made for definitions or objection made to the language of the instructions. In any event, defendant is not entitled to a review because of his noncompliance with Fed.R.Crim.P. 30, 18 U.S.C.A., in failing to raise the question at trial and acquaint the trial court with the grounds for objection.

The court elaborately instructed the jury on the meaning of intent, knowingly, the presumption of innocence, the burden of proof and reasonable doubt, and completely protected all rights of defendant in its charge. Additionally, the court instructed on the Government's position as well as the defendant's.

Finally, defendant assigns as error the giving of the following instruction:

"When a defendant in a case of this kind takes the stand, which he has a perfect right to do, he is subjected to all the obligations of a witness, and his testimony is to be treated like the testimony of any other witness, that is to say, it will be for you to say, remembering the matter of his testimony and the manner in which he gave it, his cross-examination and everything else in the case, whether or not he told the truth. Then, again, it is for you to remember, you have a perfect right to do so and it is your duty to do so, the interest the defendant has in the outcome of this case."

Defendant candidly calls attention to our approval of similar instructions five times in the last five years in the cases of Caldwell v. United States, supra; Black v. United States, 309 F.2d 331 (8th Cir. 1962); Hance v. United States, 299 F.2d 389 (8th Cir. 1962); Rizzo v. United States, 295 F.2d 638 (8th Cir. 1961); ...