Streett v. United States

• Decision Date: 28 April 1964
• Docket Number: No. 17491.,17491.
• Citation: 331 F.2d 151
• Parties: Franklin Bruce STREETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

331 F.2d 151 (1964)

Franklin Bruce STREETT, Appellant, v. UNITED STATES of America, Appellee.

No. 17491.

United States Court of Appeals Eighth Circuit.

April 28, 1964.

Curtis D. Forslund, Minneapolis, Minn., for appellant.

Leigh J. Gard, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with Leigh J. Gard, Minneapolis, Minn., on the brief.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Streett appeals from his conviction and sentence on all of the eleven counts contained in two indictments against him which were consolidated and tried to a jury. Concurrent sentences of ten years imprisonment were imposed.

Each count of each indictment charged a violation of 18 U.S.C.A. § 2314. Count I of case No. 4-63 Cr. 21, which is typical of all counts, reads:

"That on or about the 27th day of September, 1962, at the City of Minneapolis, County of Hennepin, State and District of Minnesota,

FRANKLIN BRUCE STREETT aka FOREST WADE aka WES STEVENS,

did, with unlawful and fraudulent intent, cause to be transported in interstate commerce from Minneapolis, Minnesota, to New York, New York, a falsely made and forged security, to wit: `N.C.B. Traveler\'s Check\' No. 025-776-005, dated September 27, 1962, in the amount of $100.00, payable to Dr. M. A. Van Etta, signed Forest Wade and countersigned Forest Wade, and drawn on The First National City Bank of New York, knowing the same to have been falsely made and forged; in violation of Section 2314, Title 18 United States Code."

The other counts each involve a separate traveler's check varying in amount from $20 to $100. It is undisputed that each traveler's check was a genuine traveler's check drawn on The First National City Bank of New York; that such checks were purchased at a North Carolina bank by Forest Wade; that the traveler's checks were issued and delivered to Wade and that his genuine signature was placed upon each check at the appropriate place at the top of such check prior to delivery.

Based upon well-established principles that the evidence must be viewed in the light most favorable to the Government since the Government prevailed in the trial court, the evidence clearly establishes that Streett stole the traveler's checks from Wade at Rome, Georgia; that Streett took the checks with him to Minneapolis; that he forged the countersignature "Forest Wade" upon each of such traveler's checks; that he received the full value of each check from the various persons who cashed said checks; that Streett knew such checks were stolen; that he knew the countersignature on each check was forged; that he knew the instrumentalities of interstate commerce would be used in transporting the checks from Minneapolis to New York for payment; and that all such acts were done with an unlawful and fraudulent intent.

Title 18 U.S.C.A. § 2314 provides:

"Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or

"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; or

"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or tax stamps, or any part thereof —

"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

"* * *"

This appeal is based upon defendant's contention that the facts of this case show a forged endorsement of a genuine traveler's check rather than a forged security and that such forged endorsement was not included in the prohibition of paragraph 3 of § 2314. Such contention was raised in the trial court by motion to dismiss indictment and by motion for acquittal, which motions were overruled. Except for the monetary requirement of $5,000 there appears to be no question concerning the applicability of the first paragraph of § 2314. However, such paragraph does not apply as the securities did not reach $5,000 in value. Hence, the Government must bring this case under paragraph 3 within the statutory language, "falsely made, forged, altered, or counterfeited securities."

The indictment narrows the field down to falsely made and forged securities. These terms have been defined and distinguished by the court in Pines v. United States, 8 Cir., 123 F.2d 825, 828, as follows:

"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 genuine instrument or to represent that it is the act of a genuine and existing obligor, but rather to make an instrument which has no original as such and no genuine maker whose work is copied, although in form it may resemble a type of recognized security."

Thus it is apparent that the real issue is whether the traveler's checks here involved are forged securities within the meaning of such term as it is used in § 2314.

The Government contends that the acts of forgery committed by the defendant in placing the countersignature upon the traveler's checks were the very acts necessary to make them negotiable, and since the countersignature was not that of the purchaser, the checks were therefore forged securities. On the other hand, defendant argues that only the endorsement was forged, not the security itself which was complete prior to the counter-signature, and that forged endorsements are not included within the coverage of the statute.

The distinction between a forged security and a forged endorsement was recognized by this court in Gesell v. United States, 8 Cir., 1 F.2d 283, and Lewis v. United States, 8 Cir., 8 F.2d 849, and later by the Supreme Court in Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610. In the Prussian case the defendant had been indicted under §§ 29 and 148 of the Criminal Code for forging the endorsement on a United States Treasury Draft. As evidenced by the following quotation, § 148, which is now 18 U.S.C.A. § 471, contained language very similar to the relevant phrase in § 2314, to wit, "falsely made, forged, altered, or counterfeited securities." In interpreting such language, the court in Prussian states:

"Under section 148, `whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States,\' is guilty of a criminal offense. Section 147 provides: `The words "obligation or other security of the United States" shall be held to mean all * * * checks, or drafts for money, drawn by or upon authorized officers of the United States.\' It is apparent that the draft drawn on the Treasurer by an authorized officer is an `obligation * * * of the United States\' both in common parlance and by the express definition of section 147. But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language of sections 147 and 148, inadmissible in the interpretation of criminal statutes, which must be strictly construed. See Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443; United States v. Salen, 235 U.S. 237, 35 S.Ct. 51, 59 L.Ed. 210.

"The writing described in the indictment, when issued by the drawer, was a check or a draft. The added indorsement was in itself neither a check nor a draft. We need not stop to consider the argument advanced that the obligation upon the draft does not become complete until it is indorsed, see Hamil v. United States, supra, p. 371 for it overlooks the circumstance that the meaning of `obligation\' in section 148 is narrowed by the definition in section 147 to specifically enumerated written instruments, including checks or drafts for money, which are complete, as such, within the statutory definition and in common understanding, at least when issued to the payee by an authorized officer of the government. The indorsement was at most the purported obligation of the indorser, not of the United States, and a purported transfer of the title of the draft to the indorsee. In neither aspect was the indorsement itself an obligation of the United States as defined by section 147, or such a part of the draft as to constitute the forging of the indorsement a forgery of the draft." 282 U.S. 675, 677-678, 51 S.Ct. 223, 224, 225, 75 L.Ed. 610.

After holding that the endorsement was not part of the security and therefore not within § 148, the Court upheld the conviction by construing the forged endorsement as falling within § 29's (now § 495's) catch-all phrase "other writing, for the purpose of obtaining or receiving * * * from the United States * * * any sum of money." A comparable catch-all phrase does not exist for non-governmental transactions.

The Government attempts to explain away the applicability of the Prussian case by asserting that the sole reason why...