U.S. v. Anderson, Nos. 74-3291 and 74-3292

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore DUNIWAY and SNEED; PLUMMER; DUNIWAY
Citation532 F.2d 1218
Docket NumberNos. 74-3291 and 74-3292
Decision Date23 January 1976
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald ANDERSON and Jack Smith, Defendants-Appellants.

Page 1218

532 F.2d 1218
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald ANDERSON and Jack Smith, Defendants-Appellants.
Nos. 74-3291 and 74-3292.
United States Court of Appeals,
Ninth Circuit.
Jan. 23, 1976.
Rehearing and Rehearing En Banc Denied March 30, 1976.

Page 1220

Steven M. Kipperman (argued), San Francisco, Cal., for defendants-appellants in 74-3291.

Stephen Arian (argued), San Francisco, Cal., for defendants-appellants in 74-3292.

Page 1221

Michael Starrett, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

OPINION

Before DUNIWAY and SNEED, Circuit Judges, and PLUMMER, * District Judge.

PLUMMER, Senior District Judge:

Appellants were tried before a jury in the United States District Court for the Northern District of California and were convicted on both counts of a two count indictment. Count One charged a conspiracy from on or about the 22nd day of January, 1974, and continuously thereafter up to and including February 6, 1974, in the Northern District of California and elsewhere, to transport stolen stock of Flying Diamond Corporation (FDC) having a value of $405,000.00, in interstate commerce in violation of 18 U.S.C. § 371.

Count Two charged that the defendants did transport in interstate commerce from Salt Lake City, Utah, to San Francisco, California in the Northern District of California, stolen securities, that is, 90,000 shares of stock of FDC, of the value of approximately $405,000.00, knowing the same to have been stolen in violation of Title 18, United States Code, §§ 2314 and 2.

On appeal defendants have asserted twenty-one errors. We have considered all of them and found them to be without merit. We discuss those questions relating to the statute involved, the sufficiency of the indictment, the sufficiency of the evidence, variance, amendment of the indictment, objections to instructions, conduct of trial, post-arrest statement, Jencks Act, impeachment of witnesses, law of conspiracy, and motion for new trial.

The Statutes.

Paragraph 1 of Section 2314 of Title 18, United States Code, insofar as pertinent to this case provides:

"Whoever transports in interstate commerce . . . any . . . securities . . . of the value of $5,000 or more, knowing the same to have been stolen . . . "

shall be guilty of an offense against the United States.

The purpose of Paragraph 1 of Section 2314 is precisely stated therein. No cases have been cited by defendants holding or suggesting that this portion of the statute is "unconstitutionally vague."

The definition of "securities" as used in Chapter 113 of Title 18, United States Code, Section 2311 of said Title provides:

" 'Securities' include any . . . stock certificate . . .; or any forged, counterfeited, or spurious representation of any of the foregoing; "

Sections 2311 and 2314 of Title 18, United States Code, refer only to tangible items which are capable of being touched and are able to be perceived as materially existing, especially by the senses of sight or touch. Since "stock" is an intangible interest in the capital of a corporation, it is an interest incapable of being seen, touched, or transported in interstate commerce, and is an interest which does not materially exist and is not visible or corporeal. For this reason the word "stock" is not mentioned in either Section 2311 or 2314 of Title 18, United States Code.

Count Two of the indictment also charges defendants with a violation of Section 2 of Title 18, United States Code, which provides:

"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

"(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

Page 1222

Sufficiency of the Indictment.

Defendants challenge the sufficiency of the indictment. By technical construction they assert a claim that the indictment returned by the Grand Jury fails to sufficiently inform them of the nature of the charges for which they were indicted. However, an indictment is not to be read in a technical manner, but is to be construed according to common sense with an appreciation of existing realities. United States v. Pleasant, 469 F.2d 1121 (8th Cir. 1972); McKinney v. United States, 172 F.2d 781 (9th Cir. 1949). It must be read to include facts which are necessarily implied by the allegations made therein. United States v. Barbato, 471 F.2d 981 (1st Cir. 1973); United States v. Silverman, 430 F.2d 106 (2nd Cir. 1970). Even if an essential averment in an indictment is faulty in form, if it may by fair construction be found within the text, it is sufficient. Chargois v. United States, 267 F.2d 410, 412 (9th Cir. 1959), citing Craig v. United States,81 F.2d 816, 822 (9th Cir. 1936).

The purpose of an indictment is to furnish the defendant with a sufficient description of the charge against him to enable him to prepare his defense, to enable him to plead double jeopardy against a second prosecution and to inform the court of the facts alleged so that it can determine the sufficiency of the charge. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962). Fairly read this indictment does so. We see no basis for finding either count infirm. Inasmuch as the sentences imposed on both counts as to both defendants were to run concurrently, we consider only the conviction as to Count Two. United States v. Westover, 511 F.2d 1154, 1155 (9th Cir. 1974). The conspiracy count is unquestionably adequate since it charges the offense substantially in the words of the statute. United States v. Murray, 492 F.2d 178, 192 (9th Cir. 1973).

The defendants were charged in an indictment returned by the Grand Jury. Neither the Fifth Amendment nor any constitutional provision prescribes the kind of evidence upon which Grand Juries must act. In the absence of any evidence to the contrary, the presumption of regularity which attaches to Grand Jury proceedings still exists. See United States v. Hamling, 481 F.2d 307, 313 (9th Cir. 1973).

The Sixth Amendment requires that in all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusations. Rule 7, Fed.R.Crim.P., provides in substance that the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It need not contain any other matter or information not necessary to such a statement. The indictment shall state for each count the official or customary citation of the statute which the defendant is alleged therein to have violated.

Count Two of the indictment charges in pertinent part:

"That . . . the defendants did transport in interstate commerce from Salt Lake City, Utah, to San Francisco, California, . . ., stolen securities . . ., of the value of approximately $405,000 knowing the same to have been stolen . . . "

The wording of the indictment closely follows the language set forth in the statute. This is sufficient. See United States v. Hamling, supra, p. 312. The decision of this court was affirmed in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Cases upholding the validity of an indictment under 18 U.S.C. § 2314 where the allegations followed the language of the statute are United States v. Farabee, 411 F.2d 1210 (5th Cir. 1969) and Downing v. United States, 348 F.2d 594 (5th Cir. 1955).

In addition to framing the indictment in the language of the statute the government in this case included in Count Two the additional matter or information that the securities alleged in the indictment were 90,000 shares of stock of Flying Diamond Corporation (FDC). Additional matter or

Page 1223

information was provided to defendants in response to their bill of particulars in that the defendants were physically shown and were permitted to inspect and examine the evidence, the stock certificates, upon which the government based the indictment and its case.

Defendants have totally failed to support their assertions. To the contrary, the record establishes that the requirements of Russell, supra, and Williamson, supra, were fully met by the government.

Sufficiency of the Evidence.

The essential elements required to be proved beyond a reasonable doubt, by the government, in order to establish the offense charged in Count Two of the indictment are as follows:

1. Defendants transported securities in interstate commerce as alleged in Count Two.

2. The securities transported were of a value of $5,000 or more.

3. That defendants knew the securities had been stolen.

At the close of the government's case in chief, defendants moved for judgments of acquittal. Counsel were heard in oral argument, the motions were taken under advisement, and thereafter denied. At the close of all the evidence appellants renewed their motions and they were again considered and denied.

The test to be applied by the trial court in deciding a motion for judgment of acquittal in a criminal case and the test to be applied by the appellate court in reviewing that decision are, as a practical matter, identical. The evidence must be considered in the light most favorable to the verdict. United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). The court must be "satisfied that the jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as the conclusion" that the defendant is guilty as charged. United States v. Leal, 509 F.2d 122, 125 (9th Cir. 1975); United States v. Felix,474 F.2d 610, 612 (9th Cir. 1973); United States v. Nelson, supra, 419 F.2d at 1245.

1. Defendants transported securities in interstate commerce as alleged in Count Two of the indictment.

A written stipulation was read into the...

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94 practice notes
  • U.S. v. Gordon, Nos. CA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 16, 1981
    ...and to enable him to plead double jeopardy against a second prosecution (the double jeopardy function). See United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied 429 U.S. 839, 97 S.Ct. 111, 50 Page 1284 L.Ed.2d 107 (1976). See also Russell v. United States, 369 U.S. 749, 8......
  • In re Silicon Graphics, Inc. Securities Litigation, No. C 96-0393 FMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 23, 1997
    ...at issue, plaintiffs can hardly complain when defendants refer to the same information in their defense. See United States v. Anderson, 532 F.2d 1218, 1229 (9th Cir.1976) (holding that defendant who introduced hearsay statement waived objection to admission of another part of same statement......
  • U.S. v. Franklin, No. 78-5056
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 20, 1978
    ...of the crime of Page 567 conspiracy under 18 U.S.C. § 371 to violate section 2314. 12 Accord: United States v. Anderson, 9 Cir., 1976, 532 F.2d 1218, 1230, Cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107; United States v. Newson, 10 Cir., 1976,531 F.2d 979, 981; United States v. Gr......
  • U.S. v. Gironda, Nos. 83-2796
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 1, 1985
    ...(No. 84-1071); United States v. Watkins, 709 F.2d 475, 478 (7th Cir.1983). As the Ninth Circuit stated in United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir.1976), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107, an indictment "must be read to include facts which are necessari......
  • Request a trial to view additional results
95 cases
  • U.S. v. Gordon, Nos. CA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 16, 1981
    ...and to enable him to plead double jeopardy against a second prosecution (the double jeopardy function). See United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied 429 U.S. 839, 97 S.Ct. 111, 50 Page 1284 L.Ed.2d 107 (1976). See also Russell v. United States, 369 U.S. 749, 8......
  • In re Silicon Graphics, Inc. Securities Litigation, No. C 96-0393 FMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 23, 1997
    ...at issue, plaintiffs can hardly complain when defendants refer to the same information in their defense. See United States v. Anderson, 532 F.2d 1218, 1229 (9th Cir.1976) (holding that defendant who introduced hearsay statement waived objection to admission of another part of same statement......
  • U.S. v. Franklin, No. 78-5056
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 20, 1978
    ...of the crime of Page 567 conspiracy under 18 U.S.C. § 371 to violate section 2314. 12 Accord: United States v. Anderson, 9 Cir., 1976, 532 F.2d 1218, 1230, Cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107; United States v. Newson, 10 Cir., 1976,531 F.2d 979, 981; United States v. Gr......
  • U.S. v. Gironda, Nos. 83-2796
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 1, 1985
    ...(No. 84-1071); United States v. Watkins, 709 F.2d 475, 478 (7th Cir.1983). As the Ninth Circuit stated in United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir.1976), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107, an indictment "must be read to include facts which are necessari......
  • Request a trial to view additional results

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