U.S. v. Diggs, 75--1417

• Decision Date: 30 December 1975
• Docket Number: No. 75--1417,75--1417
• Citation: 527 F.2d 509
• Parties: UNITED STATES of America, Appellee, v. Ronald Leroy DIGGS, a/k/a Donald E. Wilson, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 509

527 F.2d 509

UNITED STATES of America, Appellee, v. Ronald Leroy DIGGS, a/k/a Donald E. Wilson, Appellant.

No. 75--1417.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1975.

Decided Dec. 30, 1975.

Frank G. (Jerry) Wieslander, Altoona, Iowa, for appellant.

Paul A. Zoss, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before HEANEY, BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Ronald Leroy Diggs, defendant below, was found guilty by a jury in the United States District Court for the Southern District of Iowa of having wilfully and with fraudulent intent transported and caused to be transported in interstate commerce from Des Moines, Iowa to Los Angeles, California a falsely made, forged, and counterfeited security, towit, a check in the sum of $235.00 in favor of 'Joyce Smith', purportedly drawn on a California bank by a division of Rockwell International, a large insurance company operating in California. ¹ 18 U.S.C. § 2314. Judgment was entered on the verdict, and the defendant appeals.

For reversal the defendant contends principally that the district court erred in submitting the case to the jury and that the evidence was not sufficient to sustain the verdict; another serious contention is that the district court erred in giving over the objection of the defendant Instruction No. 13 which dealt with proof of guilty knowledge and fraudulent intent.

I.

The theory of the government was that the defendant knowingly and wilfully caused his wife, Monica Louise Diggs, to pass the check described in the indictment and other checks in Des Moines, thus causing them to move through regular banking channels in interstate commerce to California, or that the defendant knowingly and wilfully aided and abetted his wife in so doing. Under the government's theory defendant would be considered guilty as a principal under U.S.C. § 2.

The indictment charged that the offense was committed on or about October 17, 1974. The undisputed evidence is to the effect that prior to that date a number of serially numbered checks were printed for Rockwell by a commercial printer; one of those checks bore the serial number 457,836. The checks were designed to be filled out manually by employees of the particular division of Rockwell for the use of which the checks had been printed. The manual completion of the checks involved typing in a date, a voucher number, the name of the payee, and the amount of the check. From the exhibits before us, it is not entirely clear whether the blank checks bore a facsimile signature of an authorized official of Rockwell or whether they had to be signed manually prior to their issuance.

It is inferable from the record that a large number of copies of Check No. 457,836 were made by some unauthorized person and circulated. The defendant admitted that he came into possession of a number of the copies which for convenience we will call the 'checks.'

The undisputed evidence establishes that on or about October 17, 1974 a blonde woman, resembling Mrs. Diggs, cashed the check described in the indictment at the Des Moines Savings and Loan Association. On or about the same date a blonde woman, also resembling Mrs. Diggs, cashed another of the checks that have been described at a Hinky Dinky Store in Des Moines. When the check was cashed at the Hinky Dinky Store, a surveillance camera photographed both the check and the person cashing it; the photograph of the individual cashing the check was imperfect; however, it is possible to ascertain from the photograph that the check was cashed by a blonde woman not dissimilar in appearance to Mrs. Diggs. The check, as it appears in the photograph, is clearly legible.

Both of the checks moved in interstate commerce from Des Moines to Los Angeles where they were dishonored and returned to Des Moines. In the course of a subsequent or on-going investigation by the FBI and the Des Moines Police Department a latent fingerprint of the defendant was found on the check that was cashed at the Savings and Loan Association.

The defendant and his wife were separately indicted in late March, 1975 and were arrested by FBI agents and local officers at their apartment in Cedar Rapids, Iowa, on March 27, 1975. The two subjects were separated, and the defendant was questioned by two Special Agents of the FBI after he had been advised adequately of his 'Miranda rights.' The defendant admitted that he had received seven or eight of the checks from an unidentified individual, that he turned three or four of them over to his wife, and that he gave the rest of them to a third person likewise unidentified. He also admitted that he knew that his wife had cashed two or three of the checks.

At the trial of the case the agents were permitted to testify as to the admissions just mentioned, but their testimony as to other damaging admissions was suppressed on motion of the defendant on the ground that the existence of those admissions had not been disclosed to defense counsel in advance of trial as required by an omnibus hearing order entered by a United States Magistrate at an early stage of the proceedings.

Upon trial, the government introduced evidence justifying the jury in finding that the checks were not valid obligations of Rockwell and that they had moved in interstate commerce. Over the objections of the defendant the government was permitted to make proof with respect to the check passed at the Hinky Dinky Store as well as with respect to the check passed at the Savings and Loan Association and mentioned in the indictment. The evidence admitted included the photograph or photographs taken by the surveillance camera at the Hinky Dinky Store and a known photograph of Mrs. Diggs taken while she was in the custody of the Des Moines Police Department in May, 1974. And it was proved by expert testimony that the latent fingerprint found on the check that was passed at the Savings and Loan Association was that of the defendant.

While employees of both the Savings and Loan Association and the Hinky Dinky Store testified that the respective checks were passed by a blonde woman with long hair, no witness was called upon to identify the police photograph of Mrs. Diggs as being that of the woman who had passed the checks. ²

The third paragraph of 18 U.S.C. § 2314 under which defendant was indicted makes it a felony for any person 'with unlawful or fraudulent intent' to transport in interstate commerce any falsely made, forged, altered or counterfeited securities 'knowing the same to have been falsely made, forged, altered, or counterfeited.' 18 U.S.C. § 2 upon which the government relies ultimately is as follows:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

In view of those statutory provisions, it was incumbent upon the government to prove by evidence, whether direct, circumstantial, or both, and beyond a reasonable doubt that when the defendant turned the Rockwell International checks over to his wife, he knew that they were spurious, and that he turned them over to her with the fraudulent intent that she pass them as true and genuine and with knowledge that she would pass them or attempt to do so. And if, as a matter of law, the government failed to introduce evidence sufficient to convince a jury beyond a reasonable doubt of the defendant's guilty knowledge and fraudulent intent, then it was the duty of the district court to grant the defendant's motions for entry of a judgment of acquittal.

In determining whether the government made a submissible case we are required to view the evidence in the light most favorable to the government and to give to the government the benefit of all reasonable inferences logically deducible from the evidence. United States v. Shahane, 517 F.2d 1173, 1174 (8th Cir.), and cases there cited. Moreover, we recognize that it is as competent for a jury to convict on circumstantial evidence as on direct evidence provided that the whole body of the evidence relied on by the government convinces a jury beyond a reasonable doubt that the defendant is guilty. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Shahane, supra, 517 F.2d at 1177; United States v. Kye, 411 F.2d 120, 122 (8th Cir. 1969); United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969). And we also recognize that in some circumstances unexplained acts or omissions on the part of a defendant may justify inferences adverse to him. United States v. Shahane, supra, 517 F.2d at 1177--78.

Had the government been permitted to prove the admissions and other statements of the defendant which the district court properly excluded, there would have been little, if any, question with respect to the sufficiency of the evidence to carry the case to the jury and to sustain the verdict. But, in the absence of testimony as to those admissions and statements, we are forced to the conclusion that the case which the government made was simply too weak to go to the jury.

In the last analysis all that the government was able to prove was that the defendant at one time had a number of the checks in his possession, that he turned some of them over to his wife and the rest to an unidentified person, and that the defendant knew that his wife had cashed two or three of the checks. While it may be assumed perhaps that the defendant knew that the checks in his possession purported to be those of the same company, there is no evidence that he appreciated the fact that they all bore the same serial number. There is no evidence from which it can be determined whether 'Joyce Smith' was or is a real person or whether the name of the payee in the checks that were...