U.S. v. Bass, 77-5111

• Decision Date: 11 November 1977
• Docket Number: No. 77-5111,77-5111
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Wilford BASS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 967

562 F.2d 967

UNITED STATES of America, Plaintiff-Appellee, v. Jack Wilford BASS, Jr., Defendant-Appellant.

No. 77-5111.

United States Court of Appeals, Fifth Circuit.

Nov. 11, 1977.

Charles W. Tessmer, Dallas, Tex., for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Judith A. Shepherd, Stafford Hutchinson, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, Circuit Judge, SKELTON, Senior Judge, ^* and HILL, Circuit Judge.

PER CURIAM:

Defendant-appellant Bass was convicted of participation in a conspiracy to pass forged payroll drafts in violation of 18 U.S.C. §§ 2314 and 371. On appeal he contended that the government's evidence failed to establish his participation in the alleged conspiracy, that the government charged one but proved two conspiracies, that the indictment was fatally flawed because it charged interstate transportation of forged "payroll checks" while the prosecution proved the transportation of forged "sight drafts", that the jury charge fatally amended the indictment, and that the trial court erred in admitting evidence of co-conspirators' guilty pleas. We find no merit in any of these contentions and affirm the conviction.

The government's case established a conspiracy to pass what purported to be the payroll checks of local trucking companies. ¹ Although Bass was not an initiator of the scheme, the government's evidence showed that once he was recruited for the operation, he told others how to become involved, drove them to liquor stores to cash the checks and shared in the proceeds. Bass does not challenge the conspiracy's existence, but asserts that the evidence was insufficient to connect him with the conspiracy. While mere knowledge of a conspiracy is not sufficient to hold an alleged co-conspirator a culpable participant, Roberts v. United States, 416 F.2d 1216 (5 Cir. 1969), an individual whose actions clearly and unmistakably furthered the conspiracy may be connected to that conspiracy, once it is established, by slight evidence, United States v. Trevino, 5 Cir. 1977, 556 F.2d 1265; United States v. James, 528 F.2d 999, 1099 (5 Cir. 1976); United States v. Warner,441 F.2d 821 (5 Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); Lopez v. United States, 414 F.2d 909 (5 Cir. 1969). In light of this rule, the evidence to connect Bass with the conspiracy was more than sufficient.

Bass also contended that his conviction should be set aside because the government charged one but proved two conspiracies. The government's evidence showed a central group of counterfeiters and several groups of check cashers. This circuit has recognized that the character of the property and the nature of the criminal scheme involved dictate the existence of single or multiple conspiracies. United States v. Morrow, 537 F.2d 120, 126 (5 Cir. 1976). The government proved a single scheme which evidenced a series of check cashings rather than unconnected "one shot" efforts. See United States v. Perez, 489 F.2d 51 (5 Cir. 1973).

Bass's third argument that the indictment was fatally defective because it charged the forgery and passing of payroll checks although the companies involved actually paid their employees with sight drafts is also meritless. Applying the traditional tests for sufficiency of the indictment, United States v. London, 550 F.2d 206 (5 Cir. 1977), Bass was fairly apprised of the charges facing him. Whether the securities were checks or sight drafts, their illicit manufacture and use by the defendants was covered by 18 U.S.C. § 2314. The hyper-technical distinction between sight drafts and checks could not have mislead the defendants concerning the charge facing them, nor do they have legitimate double jeopardy complaints. ²

Finally Bass seeks to set aside his conviction on the ground that the introduction of the prior guilty pleas of his codefendants was plain error. The test in this circuit is whether such evidence was admitted for proper evidentiary purposes...