U.S. v. Crim, 75--1117

• Decision Date: 29 March 1976
• Docket Number: No. 75--1117,75--1117
• Citation: 527 F.2d 289
• Parties: UNITED STATES of America, Appellee, v. Robert Lawrence CRIM, a/k/a Robert L. Crim, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 289

527 F.2d 289

UNITED STATES of America, Appellee, v. Robert Lawrence CRIM, a/k/a Robert L. Crim, Appellant.

No. 75--1117.

United States Court of Appeals, Tenth Circuit.

Argued Nov. 11, 1975.

Decided Dec. 8, 1975.

Certiorari Denied March 29, 1976.

See 96 S.Ct. 1497.

E. Edward Johnson, U.S. Atty., District of Kansas, Topeka, Kan., for appellee.

Frank M. Rice, Topeka, Kan., for appellant.

Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Robert Lawrence Crim (Crim) appeals his jury conviction of issuing checks in violation of 18 U.S.C.A. § 2314. ¹

Crim was indicted on two counts:

On or about May 25, 1973, - - - ROBERT LAWRENCE CRIM - - - wilfully, unlawfully and knowingly and with fraudulent intent, - - - caused to be transported in interstate commerce - - - a falsely made, - - - security - - - Check No. 119 dated May 25, 1973, in the amount of $180.00, payable to Robert L. Crim, purportedly signed by Richard B. Cole, - - -.

On or about September 20, 1973, - - - ROBERT LAWRENCE CRIM - - - wilfully, unlawfully and knowingly and with fraudulent intent, - - - caused to be transported in interstate commerce - - - a falsely made, - - - security, - - - Check No. 135 dated September 20, 1973, in the amount of $86.00, payable to Robert L. Crim, purportedly signed by Richard B. Cole, - - -.

The Government's case relied on the testimony of four principal witnesses:

Cornelius F. Cole (Cole), a utility clerk for City National Bank and Trust Company (Bank) of Kansas City, Missouri, testified and presented evidence that: Crim, using the alias of 'R. Bob Cole', along with several other people, opened an account at Bank on December 11, 1970, under the name of the Committee of Concerned citizens (Committee); checks written on the account required the signatures of the Committee's two coordinators, 'Allen Wilson' and 'R. Bob Cole'; the two checks at issue herein were the only checks written on the Committee's account containing one drawer signature only; and, that the account was closed on October 29, 1971, by the Bank after four 'insufficient funds' checks had been returned in March of 1971. Cole further testified that notice of the account's closure was effectuated in the Bank's normal manner, but that he was unable to state categorically that notice of closure was actually received. He identified numerous checks drawn on the account prior to its closure signed by 'R. Bob Cole' and 'Allen Wilson'. He identified the Committee checks involved herein which were made after the account had been closed for more than one year and a half, made payable to 'Robert L. Crim' and signed by 'Richard B. Cole, President.'

James C. Codigan, a handwriting expert and special agent of the Federal Bureau of Investigation, testified that he had examined numerous handwriting exemplars of Crim; that he had compared the writing on the two checks in question; and that, in his expert opinion, Crim had written both checks and had also endorsed 'Robert L. Crim' on each of them.

Donald Rasch identified Crim as the person for whom he had cashed the Count I check for $180.00 on May 27, 1973.

Martha Goff identified Crim as the person for whom she had cashed the Count II check for $86.00 on September 20, 1973.

In each instance Crim represented or identified himself to be 'Robert L. Crim', the payee designate of the checks, and he endorsed the checks in that name.

Crim did not testify. However, several defense witnesses did testify relative to Crim's usage of the name 'R. Bob Cole' and of the establishment of the Committee.

Allen Wilson testified that Crim had been hired as 'Bob Cole' to direct a summer youth program in Kansas City, Missouri, in 1970; that Crim pursuant to his employment was issued identification cards under the name of 'Cole'; that Crim, using the name 'Cole' was involved in the formation of the Committee; that he and Crim were the coordinators for the Committee; and that Bank was directed to send the Committee's 'checks, notices and so forth' to Crim's home in Kansas City which served as the Committee headquarters. Wilson stated that 'naturally all information concerning it (Committee's account with Bank) went back to' Crim's address.

On cross-examination Wilson testified that he knew Crim by the name of 'Crim' when they were both prisoners at a diagnostic center in 1965; that he had no knowledge as to the status of the Committee in 1973; and that he was not prepared to introduce evidence establishing that the authorization to withdraw funds from Committee's account had been changed from two designated persons to one.

Fran Wilson, wife of Allen, testified that she knew Crim as 'Cole', that she occasionally went to Committee meetings, and that the Committee's headquarters were at Crim's house.

Shirley Crim, appellant's estranged wife, testified that when she first met appellant he had used the name 'Crim'; that she and Crim 'had been together' for six years; that he had assumed the name of 'Cole' because he had had some problems with a family in Omaha; that while they were living in Kansas City in 1969--1970 he was using the name 'Cole'; that during their stay in Kansas City they had a son whom they named 'Bobby Crim'; that she was not aware that the Committee account had been closed; and that she had some knowledge of the Committee's account but she did not know if a deposit had been made to it during the 1971--1973 period after they departed Kansas City.

On appeal Crim contends that: (1) the Trial Court erred in failing to grant his motion for a bill of particulars; (2) as a matter of law there was not a falsely made or forged security; (3) the Trial Court erred in refusing to allow the introduction of evidence relative to the number of signatures required on the Committee's check; (4) the Trial Court erroneously allowed the introduction of evidence concerning his criminal record; (5) he was denied a fair trial because of publicity surrounding the Trial Judge; and (6) he was denied a fair trial because the Trial Court failed to provide adequate funds for an investigator.

I

Crim contends that the Trial Court erred in refusing to grant his motion for a bill of particulars. Crim argues that as a result of this denial 'he was not sufficiently informed of the nature and cause of the accusation and therefore could not properly prepare his defense.' We hold that the indictment was sufficiently definite to adequately apprise Crim of the charges against him. United States v. Baca, 494 F.2d 424 (10th Cir. 1974).

Crim summarily alleges that the indictment was inadequate. He has not, however, established that there were problems of surprise, vagueness, or indefiniteness. Fed.R.Crim.P., Rule 7(c), 18 U.S.C.A., requires, inter-alia, that the indictment 'shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.' We hold that the indictment met legal requirements. Absent prejudice the denial of a motion for a bill of particulars is not error. In United States v. Smaldone, 484 F.2d 311 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974), we noted:

There was no problem of surprise and no problem of vagueness or indefiniteness. Defendant was apprised of the charge against him and was not prejudiced in the preparation of his defense. 484 F.2d at 320.

Crim has completely failed to show any prejudice to his defense because the indictment did not list the details of each count with greater specificity. Sufficiency is determined by practical rather than technical considerations. Clay v. United States, 326 F.2d 196 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964); United States v. Miller, 491 F.2d 638 (5th Cir. 1974), cert. denied, 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186 (1974). The indictment was more than adequate as drafted and any possible deficiencies inherent therein were not of such a substantial nature so as to vitiate the efficacy of Crim's defense. Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968). See also United States v. Tucker, 473 F.2d 1290 (6th Cir. 1973), cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973), and United States v. Gray, 464 F.2d 632 (8th Cir. 1972).

II

Crim argues that, as a matter of law, there was not a 'falsely made' or 'forged security' involved in the case at bar. He urges that this necessarily follows because he could validly use another name, since the two checks were drawn on his 'own name' there was no forgery; and because the Committee's bank account was not established with a fraudulent intent.

The fallacy inherent within the above postulate, and which in our view renders it void of rationality, is that Crim cannot have two 'real' names during any one given period of time.

An appellate court must, following a conviction, view the evidence in the light most favorable to the Government to decide if there is substantial proof, direct or circumstantial, together with all reasonable inferences to be drawn therefrom, from which a jury might find an appellant guilty beyond a reasonable doubt. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975); United States v. Downen, 496 F.2d 314 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Yates, 470 F.2d 968 (10th Cir. 1972).

It is uncontested that: the Committee's account required that each check have two drawer signatures; the two checks involved herein were the only checks drawn on the account consisting of one drawer signature; Crim was identified as the person who passed both checks; the Committee's account was closed in October of 1971 and the checks were written in May and September of 1973; the account was closed pursuant to the Bank's normal procedure and notice was tendered by the Bank following the account's closure; and that Wilson, a Committee coordinator with Crim, had no knowledge of the status of the Committee...