Russell v. United States, No. 26589 Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation429 F.2d 237
Docket NumberNo. 26589 Summary Calendar.
Decision Date22 July 1970
PartiesVaney RUSSELL, Appellant, v. UNITED STATES of America, Appellee.

429 F.2d 237 (1970)

Vaney RUSSELL, Appellant,
v.
UNITED STATES of America, Appellee.

No. 26589 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 22, 1970.


429 F.2d 238

James E. Nickolson, Jr., Atlanta, Ga. (Court-appointed), for appellant.

Vaney Russell, pro se.

William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Asst. U. S. Atty., Macon, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.

PER CURIAM:

In this direct appeal from conviction upon a jury verdict of guilty of conspiracy to transport forged securities in interstate commerce, 18 U.S.C. §§ 371, 2314, the defendant assigns the following five points of error.1

I

DEFECTIVE INDICTMENT

The indictment as returned by the grand jury alleged that the offense occurred "on or about February 19, 1967." On the morning the trial commenced, and after the jury had been empaneled, the Assistant United States Attorney notified the court that the date alleged in the indictment was a typographical error — the correct date being February 19, 1966. The court allowed the change and denied the defendant's motion to dismiss the indictment.

The defendant vigorously asserts that the allowed change in the date has deprived him of potential defenses and otherwise prejudiced him in preparing his defense. We reject the alleged claim of prejudice. It seems well settled that an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and, "within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient." 1 Wright, Federal Practice and Procedure, § 125 at 247. See also, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898); United States v. Covington, 411 F.2d 1087 (4th Cir. 1969); Hale v. United States, 149 F.2d 401 (5th Cir. 1945), cert. denied, 326 U.S. 732, 66 S.Ct. 40, 90 L.Ed. 436 (1945).

Because time is not of the essence in connection with the crime charged here, the trial court did not err in refusing to dismiss the indictment and admitting evidence pertaining to the 1966 date. Moreover, the record reflects that the defendant, as well as his retained counsel, was aware of the erroneous date but did not file a bill of particulars to clarify the allegation nor move for a continuance in order to prepare a defense for the earlier date. Under these circumstances, and viewing the record as a whole, we are unable to discern any prejudice to the defendant.

II

INADEQUATE WARNING OF CONSTITUTIONAL RIGHTS

The defendant here raises for the first time, the issue of whether the waivers given by him, which preceded two incriminatory statements to F.B.I. agents, were intelligently and knowingly given. A lengthy recital of the facts surrounding the defendant's execution of the voluntary appearance form and the waiver of rights form would serve no useful purpose. The record clearly indicates that...

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55 practice notes
  • U.S. v. Arteaga-Limones, ARTEAGA-LIMONES and M
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 8, 1976
    ...elements of the offenses, the inability of the government to prove the dates with precision was not fatal. Russell v. United States, 429 F.2d 237, 238 (5th Cir. On appeal Arteaga claims that because his defense of alibi was dependent upon a showing that he was no where near the place where ......
  • U.S. v. Phillips, Nos. 79-3189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1981
    ...the Government established some time reasonably near. United States v. Grapp, 653 F.2d 189, 195 (5th Cir. 1981); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970). Proof of the acts charged on any date within the statute of limitations and before the return date of the indictment ......
  • U.S. v. 09–3176), Nos. 08–3997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 2011
    ...an essential element so long as the time frame proved was within the period alleged in the indictment.”) (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir.1970)). Thus, the evidence was sufficient so long as the government proved a conspiracy within the relevant chronological bou......
  • U.S.A v. Steven Warshak, No. 08-3997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 14, 2010
    ...an essential element so long as the time frame proved was within the period alleged in the indictment.") (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970)). Thus, the evidence was sufficient so long as the government proved a conspiracy within the relevant chronological bo......
  • Request a trial to view additional results
55 cases
  • U.S. v. Arteaga-Limones, ARTEAGA-LIMONES and M
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 8, 1976
    ...elements of the offenses, the inability of the government to prove the dates with precision was not fatal. Russell v. United States, 429 F.2d 237, 238 (5th Cir. On appeal Arteaga claims that because his defense of alibi was dependent upon a showing that he was no where near the place where ......
  • U.S. v. Phillips, Nos. 79-3189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1981
    ...the Government established some time reasonably near. United States v. Grapp, 653 F.2d 189, 195 (5th Cir. 1981); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970). Proof of the acts charged on any date within the statute of limitations and before the return date of the indictment ......
  • U.S. v. 09–3176), Nos. 08–3997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 2011
    ...an essential element so long as the time frame proved was within the period alleged in the indictment.”) (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir.1970)). Thus, the evidence was sufficient so long as the government proved a conspiracy within the relevant chronological bou......
  • U.S.A v. Steven Warshak, No. 08-3997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 14, 2010
    ...an essential element so long as the time frame proved was within the period alleged in the indictment.") (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970)). Thus, the evidence was sufficient so long as the government proved a conspiracy within the relevant chronological bo......
  • Request a trial to view additional results

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