U.S. v. Brown, s. 79-1185

• Decision Date: 16 August 1979
• Docket Number: Nos. 79-1185,79-1194,s. 79-1185
• Citation: 605 F.2d 389
• Parties: 4 Fed. R. Evid. Serv. 1047 UNITED STATES of America, Appellee, v. Levon BROWN, a/k/a Robert L. Dennis, Daniel Clincy, a/k/a Abdullah Shabazz, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 389

605 F.2d 389

4 Fed. R. Evid. Serv. 1047

UNITED STATES of America, Appellee, v. Levon BROWN, a/k/a Robert L. Dennis, Daniel Clincy, a/k/a

Abdullah Shabazz, Appellants.

Nos. 79-1185, 79-1194.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1979.

Decided Aug. 16, 1979.

Rehearings Denied in No. 79-1194.

Sept. 11, 1979 and in No. 79-1185.

Oct. 4, 1979.

Robert W. Thompson, of Rickert & Thompson, Reinbeck, Iowa, for appellant Brown.

Stephen J. Rapp, of Gottschalk & Gilliam, Cedar Falls, Iowa, for appellant Clincy.

James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

MARKEY, Chief Judge.

Brown and Clincy ¹ appeal their conviction by jury of transporting in interstate commerce a false and forged security and a counterfeiting device, in violation of 18 U.S.C. §§ 2 and 2314 ² in a trial before Chief Judge Edward J. McManus. We affirm.

Background

Brown and Clincy were residents of Minneapolis, Minnesota during 1977 and 1978. On May 1, 1978, Clincy and Barbara Knox opened a checking account at the Riverside Community State Bank in Minneapolis, in the name of Knox Contracting Enterprises, Inc. (Knox Enterprises) with Knox as the sole authorized signator. That account was closed on June 5, 1979, the account balance being transferred into Knox's personal checking account. Knox later told the bank that some Knox Enterprises checks had been stolen. When those checks were presented to the bank, it refused them because of Knox's statements and her affidavits that the signatures on the checks were forgeries.

Clincy and Knox were married by a judge in Minneapolis on May 16, 1978. Two weeks later Clincy, Brown, and others drove to Mississippi via Iowa. After a short stay in Mississippi, Brown and Clincy returned to Iowa.

Evidence indicated that Brown and Clincy, traveling together, visited Jackson, Mississippi, Coon Rapids, Minnesota, Detroit, Michigan, and Chicago, Illinois. In each of these cities, Brown or Clincy opened a bank account, by depositing either a personal check or a stolen Knox Enterprises check The incidents leading to Brown's and Clincy's arrests occurred in Waterloo, Iowa. On August 1, 1978, Clincy opened a personal savings account at the National Bank of Waterloo, depositing $10.00 in cash and $650 by check drawn on his personal account at the National Bank of Detroit. On August 8, he deposited a $6,986.80 check drawn on Knox Enterprises. He made numerous withdrawals from the account in early August. The National Bank of Waterloo was informed by the Minneapolis bank that the Knox Enterprises check was stolen and forged. The Detroit Bank returned the personal check because it was drawn on a closed account. The Waterloo police were notified and told the bank to sound a silent alarm if Clincy or anyone else attempted another withdrawal. On August 30, 1978, Clincy made that attempt, the alarm was sounded, and Clincy was arrested. Brown, who had earlier attempted a similar scheme at another bank in Waterloo, was arrested August 31.

and then made some and attempted other withdrawals before the deposited check was returned for lack of funds, etc.

Brown and Clincy were charged with the state offense of false use of a financial instrument. Iowa Code § 715.6 (Supp.1977). On November 22, 1978 Brown and Clincy were charged in a federal complaint with transporting in interstate commerce a falsely made or forged security in violation of 18 U.S.C. §§ 2 and 2314. On December 1, 1978, the pending state charges were dismissed at the state's request.

On December 19, 1978 a four count federal indictment was returned. ³ Judge McManus granted a motion to dismiss as to count II and denied it as to counts I, III, and IV. The jury returned a verdict finding Brown and Clincy guilty of all three remaining counts. The jury found a third co-defendant innocent. Post-trial motions were denied.

Issues

Brown seeks reversal because of Judge McManus': (1) refusal to grant a mistrial and order subsequent separate trials in view of Clincy's courtroom outbursts observed by the jury; (2) refusal to dismiss for insufficient evidence; (3) refusal to grant a severance; (4) admitting evidence of other alleged crimes; and (5) admitting evidence lacking an established chain of custody.

Clincy seeks reversal for reasons (2) through (5), and because of Judge McManus': (6) refusal to dismiss the indictment as not speedily brought; (7) refusal to dismiss the indictment as lacking probable cause for his arrest; (8) admission of bank records obtained without proper legal process; (9) failure to strike testimony of his wife and a bank employee's testimony about his wife's affidavit; and (10) retaining a juror on the panel after evidence of juror communication with a federal marshall.

OPINION

(1) Clincy's Courtroom Conduct

Judge McManus instructed the jury that Clincy's behavior should not be considered in deciding guilt or innocence of the other two defendants. In United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978), involving similar circumstances, this court held that cautionary instructions and removal of the disruptive defendant from the courtroom were protections sufficient to prevent prejudicial impact on the other defendants.

That the jury found one of Clincy's co-defendants innocent reflects the absence of a prejudiced outcome in this case. The refusal to grant a mistrial and a severance reflected no abuse of discretion by Judge McManus.

(2) Insufficient Evidence

The standard of review was well stated by District Judge Paul Benson, writing for this court in Durns v. United States, 562 F.2d 542 (8th Cir.), Cert. denied, 434 U.S. 959, 98 S.Ct. 490, 54 L.Ed.2d 319 (1977):

On appellate review of the sufficiency of the evidence, the court must view the evidence in the light most favorable to the verdict rendered. It must accept as established any and all reasonable inferences from the evidence that tend to support the jury's verdict. The evidence need not "exclude every reasonable hypothesis except that of guilt (; it is enough) that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." Furthermore, because circumstantial evidence is intrinsically as probative as direct evidence, the same standard applies where a conviction rests entirely on circumstantial evidence.

Id. at 545-46 (citations omitted).

Evidence presented at the trial was sufficient for the jury to have concluded that it established the elements of the charged offense under 18 U.S.C. § 2314, I. e., transport of securities in interstate commerce with unlawful, fraudulent intent and knowledge that the securities had been falsely made or forged. Bank officials and cashiers testified that Clincy and Brown deposited out-of-state checks in newly opened accounts in two Iowa banks, and that they attempted withdrawals from those accounts.

The necessity of sending the deposited check through interstate banking channels for collection establishes the interstate transportation element of the charge. United States v. Gray, 531 F.2d 933, 934-35 (8th Cir.), Cert. denied, 429 U.S. 841, 97 S.Ct. 117, 50 L.Ed.2d 110 (1976). The jury was entitled to draw from the testimony of the bank officials and cashiers an inference of unlawful and fraudulent intent on the part of Brown and Clincy, whose presumed expectation that the banks had not yet learned that those checks were drawn on closed or insufficiently funded accounts proved to be mistaken with respect to the Iowa Banks.

The evidence that checks drawn on closed or insufficient accounts in another state were deposited in two Iowa banks, and that withdrawals were attempted before those checks might be processed, constituted sufficient circumstantial evidence of a continuing scheme or plot to allow a jury to conclude, in the light of common sense and every day experience, that Brown and Clincy knew those checks had been falsely made or forged.

Brown says there was no direct proof that he personally passed a forged check, ignoring the provision of 18 U.S.C. § 2 that whoever "aids or abets" an offense against the U.S. is punishable as a principal. The testimony that Brown and Clincy travelled together from mid-May until their arrest in late August, in a continuing scheme to deposit bad checks, withdraw the funds, and leave town before the bad check was returned to the bank, supports the jury conviction of Brown for violation of 18 U.S.C. § 2.

There is ample credible evidence in the record in support of the jury's verdict.

(3) Severance

A motion to sever is within the sound discretion of the trial court. United States v. Bohr, 581 F.2d 1294, 1300 (8th Cir.), Cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978); United States v. Smith, 564 F.2d 244, 247 (8th Cir.), Cert. denied, 434 U.S. 1079, 98 S.Ct. 1273, 55 L.Ed.2d 786 (1977); United States v. Johnson, 540 F.2d 954, 959 (8th Cir.), Cert. denied, 429 U.S. 1025, 97 S.Ct. 647, 50 L.Ed.2d 628 (1976).

Nothing of record indicates that Judge McManus' refusal to sever constituted an abuse of discretion or resulted in prejudice to any defendant. That a third defendant tried with Brown and Clincy was found innocent demonstrates that the jury was able to keep separate the evidence with respect to each defendant.

(4) Other Crime Evidence

Rule 404(b) of the Federal Rules of Evidence provides in pertinent part: "Evidence of other crimes, wrongs, or acts . . . may, however, be admissible . . . as proof of motive, opportunity, intent, plan, knowledge . . . ."

Judge McManus instructed the jury that the evidence of other crimes was admitted "solely for the purpose of its bearing on the question of intent of the particular defendant or defendants, and a common plan or scheme," and that it could consider such evidence for no other purpose. Thus was the evidence admitted under 404(b...