U.S. v. Constant

• Decision Date: 04 October 1974
• Docket Number: No. 73-4015,73-4015
• Citation: 501 F.2d 1284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas CONSTANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1284

501 F.2d 1284

UNITED STATES of America, Plaintiff-Appellee, v. Thomas CONSTANT, Defendant-Appellant.

No. 73-4015.

United States Court of Appeals, Fifth Circuit.

Oct. 4, 1974.

J. V. Eskenazi, Federal Public Defender (Court-appointed, not under Act), Edward B. Greene, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Donald C. Ferguson, Don R. Boswell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

WISDOM, Circuit Judge:

Thomas Constant appeals from his conviction for causing the use of the United States mails to further a scheme or artifice to defraud, in violation of 18 U.S.C. 1341. ¹ He advances four grounds for reversal. First, he contends that counts one and fourteen of his indictment were defective in that they failed to allege that his scheme 'contemplated or caused the use of the United States mails'. Second, he argues that the trial court should have declared a mistrial. The prosecutor attempted to impeach Constant by referring to a prior conviction, but she offered no proof that Constant had been convicted of the offense in question. Constant denied having committed it, and, after a bench conference out of the hearing of the jury, there was no further mention of it. Third, the appellant argues that the evidence was insufficient to prove the allegation under the fourteenth count of the indictment that he caused a letter to be placed in an authorized depository for mail for delivery in the Southern District of Florida. Finally, he urges that the evidence adduced to prove the first count of the indictment showed that the use of the mails happened 'after the (allegedly) fraudulent scheme had reached fruition' and therefore was not reached by the statute.

Constant was originally charged with violations of 18 U.S.C. 1341 in a fourteen count indictment. Before trial, the Assistant United States Attorney moved to dismiss seven counts. The defendant was tried before a jury on the remaining counts. The jury found him guilty of two counts, and not guilty of the five others. The court entered judgment on the verdicts, and later denied the defendant's motion for a new trial. The motion was based on the alleged prosecutorial misconduct in the attempted impeachment of the defendant and the court's refusal to declare a mistrial. The court sentenced the defendant to serve three years in the custody of the Attorney General on each of the two counts, the sentences to run concurrently. In the exercise of its discretion under 18 U.S.C. 3651, the court directed that the defendant serve two months' actual incarceration, suspended the remainder of the sentence, and provided for three years' probation following imprisonment.

Constant maintained two checking accounts between March 24, 1969, and June 13, 1969, one at the Monmouth County National Bank in New Jersey, and the other at the Hollywood Bank and Trust Company in Florida. During this period, he wrote a series of checks drawn on each bank and deposited the checks drawn against the New Jersey bank in the Florida bank and vice versa. At no time during this period did he have sufficient funds to cover all the checks. The record supports the central allegation of the first count of the indictment that the defendant 'on or about June 12, 1969 . . . for the purpose of executing the . . . scheme and artifice to defraud and attempting to do so, knowingly caused to be placed in an authorized depository for mail matter to be sent and delivered by mail according to directions thereon . . . a letter containing the check (in the amount of $3200) drawn on the Monmouth County National Bank . . ..' The record also supports the charge of the fourteenth count that the defendant 'for the purpose of executing the . . . scheme and artifice to defraud and attempting to do so, knowingly caused to be placed in an authorized depository for mail matter, to be sent and delivered by mail according to the directions thereon, to the Hollywood Bank . . . from the Monmouth County National Bank . . . a letter containing the . . . check (payable to and signed by the appellant, and drawn on his Hollywood bank account in the amount of $3200)'. The defendant testified that he deposited the $3200 check drawn on the Hollywood bank in the New Jersey bank on June 9, 1969, that he withdraw $2000 in cash from the New Jersey bank on June 9 or 10, 1969, and that he deposited the $3200 check drawn on the New Jersey bank into his Hollywood bank account in person on June 11, 1969.

I.

The appellant's first contention is that the language of the first and fourteenth counts of the indictment is insufficient in not alleging that 'the depository mentioned was a facility of the United States Postal Service as opposed to some private postal system.' We hold the indictment sufficient.

Rule 7(c) of the Federal Rules of Criminal Procedure provides that the indictment must 'be a plain, concise and definite written statement of the essential facts constituting the offense charged.' In construing 18 U.S.C. 1341, the Supreme Court has held that the essential elements of the offense the statute proscribes are '(1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme,' and that 'it is not necessary that the scheme contemplate the use of the mails as an essential element.' Pereira v. United States, 1954, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435. But the use of the mails must be closely related to the furtherance of the scheme or artifice. United States v. Maze, 1974, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603. And, although the indictment must set forth all the elements of the offense, the Supreme Court has said that 'the true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92, 96, quoting Hagner v. United States, 1933, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, 865. The exact statutory words need not be used in the indictment, if it is otherwise sufficient. Glenn v. United States, 5 Cir. 1962, 303 F.2d 536.

Judged by these standards, the omission from the indictment of the allegation that the 'authorized depository for mail matter' was a depository of the United States Postal Service was not a fatal defect. The indictment adequately alleged the scheme or artifice to defraud and the use of the mail in furtherance of that scheme or artifice. It was sufficient to give the defendant notice of the offense with which he was charged and permits an accurate determination of the extent to which he may plead former acquittal or conviction if future prosecutions are brought against him. ²

II.

The appellant maintains that the trial court should have granted the motion for a mistrial on the basis of the following exchange, during cross-examination, between him and Mrs. Anderson, the prosecutor:

Q. Mr. Constant, have you ever been convicted of a felony?

A. No.

Q. Where were you in April of 1971?

A. New Jersey.

Q. Specifically where?

A. West Allenhurst.

Q. Weren't you convicted for carrying a dangerous weapon and threatening to kill?

A. No, I was not.

MR. GREENE (counsel for appellant): Objection. Objection.

THE COURT: Counsel, approach the Bench.

This exchange was all the jury heard regarding the possibility that Constant had a prior conviction for a felony. The prosecution made no effort to prove that he had been convicted of a felony, and the trial court's charge to the jury made no reference to the incident.

During the bench conference ³ immediately following the incident, the discussion centered on whether the defendant had been convicted of a felony or of a crime involving moral turpitude, offenses that may be used for impeachment. The trial court apparently assumed that the questions had been proper and that the nature of the crime made evidence of conviction admissible for impeachment purposes, because he stated, in denying the motion for a new trial and ending the bench conference, that such evidence 'goes to the credibility of the witness and that is what it is all about.' There is nothing in the record before us, apart from the prosecutor's reference in the bench conference to a 'rap sheet' listing the alleged conviction, tending to prove that the defendant had been convicted of the offense the prosecutor mentioned before the jury.

In general, we are in agreement with the view taken by the First Circuit in a similar case: '. . . to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error . . .. We would be slow to find that any such error was not prejudicial.' Ciravolo v. United States, 1 Cir. 1967,384 F.2d 54. In Ciravolo the court reversed the conviction and remanded for a new trial. It was demonstrated, by means of a certified record submitted to the appellate court at oral argument in that case, that the crime for which the defendant had been convicted was only a misdemeanor, and hence an improper predicate for an attempt to impeach him. A crucial element in the prosecution's case in Ciravolo was that the defendant had formed an intent to convert before crossing the state line. The prior misdemeanor conviction was based on facts similar to those that led to the prosecution in that case, and the defendant admitted the conviction and was examined at some length about them. Constant's case is different. Constant denied having been convicted. The offense the...