U.S. v. Cina, 82-1605

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation699 F.2d 853
Docket NumberNo. 82-1605,82-1605
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John CINA, Defendant-Appellant.
Decision Date24 January 1983

Franklyn M. Gimbel, Gimbel, Gimbel & Reilly, Milwaukee, Wis., for defendant-appellant.

James Wm. Morrison, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before WOOD and ESCHBACH, Circuit Judges, and BARTELS, Senior District Judge. *

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant John Cina appeals from his conviction in a jury trial of one count of conspiracy to willfully reset and alter the odometer on a motor vehicle in violation of 18 U.S.C. Sec. 371 and 15 U.S.C. Secs. 1984 and 1990c; one count of mail fraud, in violation of 18 U.S.C. Secs. 1341 and 1342; and two counts of willfully resetting and altering the odometer on a motor vehicle in violation of 15 U.S.C. Secs. 1984 and 1990(C)(8)(b) and 18 U.S.C. Sec. 2. This appeal raises three issues: whether the trial court erred in permitting an amendment of the indictment on the conspiracy count to allege the commencement of the conspiracy two years earlier than indicated in the initial indictment; whether the trial court erred in denying defendant's motion to dismiss count four for its failure to allege an offense under 18 U.S.C. Secs. 1341 and 1342; and whether the trial court erred in refusing to submit to the jury certain instructions proffered by the defendant. Because we conclude that the trial court erred in refusing to dismiss count four but that the court acted properly in allowing the amendment of the conspiracy count and in refusing to tender to the jury certain of the defendant's proposed instructions, we reverse defendant's conviction under the mail fraud count but affirm his conviction under the conspiracy and tampering accounts.

I.

The defendant, a used car dealer, was charged initially in an eleven count indictment. Count one alleged that he had conspired to willfully reset and alter the odometer on five separate motor vehicles between May, 1977 and October, 1979. Pursuant to this conspiracy, the government alleged, the defendant employed a mechanic who specialized in "rolling back" odometers to signify a lower mileage, and instructed the mechanic to do so in relation to specific vehicles, thus enabling the defendant to resell those vehicles at enhanced prices. However, count one also alleged that certain overt acts in connection with two of the vehicles occurred in 1976 and early 1977, before the conspiracy was alleged to have commenced. 1 When this inconsistency was noted by the defendant in his motion to strike before trial, the government moved to amend the indictment to antedate by two years the alleged starting time of the conspiracy, to May, 1975, claiming that the inconsistency on the face of the indictment appeared only as a result of a "typographical error." The court denied the defendant's motion to dismiss, noting that it had been made only a week prior to trial, and granted the government's motion to amend count one. The defendant was convicted of this count.

Counts two through five of the indictment alleged that, in connection with four of the five vehicles mentioned in count one, the defendant had used the mails to send to the Wisconsin Department of Transportation, Division of Motor Vehicles, registration papers bearing the fraudulent odometer readings of each vehicle. The indictment charged that each of these mail frauds took place between September, 1977 and July 28, 1978. However, in the case of count four, upon which defendant was convicted Counts six through eleven alleged that the defendant had altered or reset or caused to be altered or reset the odometers of four of the five vehicles named in count one, and one additional vehicle. The defendant was convicted of counts six and eleven, and acquitted on counts seven, eight, nine and ten.

                the actual mailing was alleged to have taken place on August 22, 1978, nearly a month after the termination of the alleged statutory violation.  In count two, upon which defendant was acquitted, the actual mailing was alleged to have taken place on August 1, 1977, a month before the commencement of the alleged statutory violation.  When these inconsistencies were brought to the attention of the court in defendant's motion to dismiss counts two and four for failure to allege an offense under the mail fraud statute, the government expressly moved to amend count two to allege the commencement of the mail fraud in 1975;  the government, however, made no such express attempt to amend count four to allege that the mail fraud in that count extended to encompass the August 22, 1978 mailing. 2   The trial court denied the defendant's motion to dismiss counts two and four.  The trial court, however, never explicitly addressed the government's motion to amend count two, nor did it indicate that it believed it had before it any motion to amend count four.  The defendant was convicted of the incident of mail fraud alleged in count four and acquitted of the incidents of mail fraud alleged in counts two, three and five
                

At the close of trial, the defendant submitted proposed jury instructions outlining certain defense theories to the trial court. The court, before offering these instructions to the jury, excised four sentences which stated the jury's obligation to acquit on various charges if it found certain facts, e.g., that the odometer tamperings were concealed from the defendant, that the defendant did not participate in the odometer tamperings, or that the defendant employed the mails for purposes of complying with state law rather than completing a scheme to defraud.

After the jury found defendant guilty under counts one, four, six and eleven, the defendant moved under Fed.R.Crim.P. 29(c) for acquittal on the bases, inter alia, that the court's amendment of count one was in error, that count four failed to allege an offense under the mail fraud statute, and that the trial court's excision of certain portions of the defendant's proposed jury instructions deprived him of his right to have his defense theory heard. Defendant's motion was denied. Defendant then appealed to this court, requesting a reversal of his conviction for the same reasons set forth in his post-trial motion.

II.
A. The Amendment of Count One

The defendant first argued that the trial court's amendment of count one to antedate the commencement of the conspiracy by two years violated the Fifth Amendment which provides, inter alia, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury...." The government, by contrast, seeks to characterize the present situation as a mere "variance" between allegation and proof which is permissible in the absence of "substantial prejudice" to the defendant. The trial court itself apparently rejected the government's categorization, ruling that the change was "more than in the nature of a variance ... it is a substantive amendment of the indictment." The trial court, however, embraced the government's basic rationale, holding the amendment permissible in view of the defendant's failure to demonstrate "any prejudice" resulting from the amendment, and citing the We note at the outset that, while the existing jurisprudence delineating the boundaries of permissible amendments and variances is far from fully systematized, there has been a distinct merging of the standards governing both. In general, either an amendment or a variance will be allowed to stand if it does not change an "essential" or "material" element of the charge so as to cause prejudice to the defendant. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962); United States v. Nicosia, 638 F.2d 970, 976 (7th Cir.1980); United States v. Joyner, 539 F.2d 1162, 1164 (8th Cir.1976), cert. denied, 424 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976); United States v. Goldstein, 502 F.2d 526, 528 (3d Cir.1976); Wharton's Criminal Procedure, Sec. 503 (12th ed. 1975).

liberal amendment policy embodied in United States v. Reece, 547 F.2d 432 (8th Cir.1977), and United States v. Powell, 564 F.2d 256 (8th Cir.1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 495 (1978). Although the trial court's expression of its rationale was somewhat imprecise, we believe that it applied the correct test and properly found no prejudice sufficient to bar the amendment in the particular circumstances.

It was not always the case that amendments were amenable to "materiality" and "prejudice" analysis. The seminal case, Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886), relied on a strict construction of the Fifth Amendment and appeared to forbid any express or tacit variation from the initial indictment, holding that the accused "party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part." Ex Parte Bain, 121 U.S. 1, 9-10, 7 S.Ct. 781, 785-86, 30 L.Ed. 849. Later, the Supreme Court in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), carved out an exception for a literal "variance" between the proof offered at trial and the unamended charging terms of the indictment. Where the variance is not "material" and does not "affect the substantial rights" of the accused, the Court held, there is no violation of the Fifth Amendment. Berger, 295 U.S. at 81, 82, 55 S.Ct. at 630. The Court indicated that "material" or "substantial" variances were those which trammeled the defendant's rightful expectations (1) that he be "definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." Id. at 82, 55 S.Ct. at...

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