U.S. v. Gordon

• Citation: 641 F.2d 1281
• Decision Date: 16 March 1981
• Docket Number: Nos. CA,s. CA
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack GORDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph DALY, Defendant-Appellant. 79-1661, CA 79-1664.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1281

641 F.2d 1281

UNITED STATES of America, Plaintiff-Appellee, v. Jack GORDON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph DALY, Defendant-Appellant.

Nos. CA 79-1661, CA 79-1664.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1980.

Decided March 16, 1981.

Richard A. Wright, Heaton & Wright, Las Vegas, Nev., argued, for defendant-appellant.

Lawrence R. Leavitt, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before TRASK and FLETCHER, Circuit Judges, and MUECKE, ^* District Judge.

MUECKE, District Judge:

The present appeals follow appellants' convictions for violation of 18 U.S.C. § 371, conspiracy to violate the Travel Act.

On August 8, 1978, a federal grand jury sitting in Las Vegas, Nevada, returned a three-count indictment against appellants herein, and a co-defendant, charging them with two counts of Travel Act bribery and one count of conspiracy.

The Travel Act, 18 U.S.C. § 1952, provides felony sanctions for

(a) Whoever travels in interstate or foreign commerce or uses a facility in interstate or foreign commerce, including the mail, with intent to (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs ... (3) ....

Subsection (b) of § 1952 defines "unlawful activity" as including "extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States."

Counts I and II of appellants' indictment charged them with placing an interstate phone call and with engaging in interstate travel with intent to "promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, namely: Bribery of a Public Officer, in violation of Nevada Revised Statutes, Section 197.020," and with thereafter performing certain other acts for the same purpose. The public officers in question were identified as Nevada Gaming Commissioners.

Count III, the conspiracy count, covered the same facts alleged in Counts I and II. It did not, however, specifically state that the unlawful activity comprising the purpose of appellants' conspiracy was the violation of N.R.S. § 197.020. Count III simply referred to "Bribery of a Public Officer, in violation of the laws of the State of Nevada ...."

At the close of the Government's case-in-chief, the trial court granted appellants' motions for judgment of acquittal with respect to Count I and II. The court's order was based on its finding that Nevada Gaming Commissioners, the objects of appellants' bribery attempts, were not "other public officers" within the meaning of N.R.S. § 197.020, the statute cited in the indictment. ¹ The court ruled that Gaming Commissioners were in fact "executive or administrative officers," and that under Nevada law, the bribery of such officials is proscribed by N.R.S. § 197.010. ²

The trial court denied appellants' motions for judgment of acquittal as to Count III, however, for the reason that the conspiracy count did not specifically limit itself to N.R.S. § 197.020. The court subsequently instructed the jury with respect to Count III using § 197.010 as the predicate state offense for the violation of 18 U.S.C. § 1952; it refused to read § 197.020 to the jury, and refused to permit appellants to argue that the Government had relied on the wrong statute. We affirm.

Facial Validity

While appellants have not pressed the issue, it is relevant to observe that the Government's failure to cite the predicate state statute did not, in and of itself, render Count III of the indictment invalid. ³

An indictment must furnish the defendant with a sufficient description of the charge against him to enable him to prepare his defense (the notice function), and to enable him to plead double jeopardy against a second prosecution (the double jeopardy function). See United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976). See also Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). To these ends, Rule 7(c)(1), Federal Rules of Criminal Procedure, provides that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged," and that it shall "state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated."

While correct citation to the relevant statute is always desirable, both the Federal Rules and the cases interpreting them make it clear that an error or omission is not necessarily fatal.

Rule 7(c)(3), Federal Rules of Criminal Procedure, provides that "error in the citation or its omission shall not be ground for dismissal of the indictment ... or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice." (Emphasis added).

In United States v. Clark, 416 F.2d 63 (9th Cir. 1969), a Ninth Circuit decision relying on Rule 7(c)(3), this Court upheld the district court's refusal to dismiss an indictment where appellant, who was accused of submitting a false travel voucher to the federal government, had been charged under 18 U.S.C. § 287 instead of 18 U.S.C. § 1001. In so doing, the Court stated:

The statutory citation is not, however, regarded as part of the indictment.... We read Rule 7(c) to permit the citation of a statute on an indictment to be amended where, as here, the facts alleged will support such a change.

Id. at 64. ⁴

We have not been referred to a case in which a Travel Act indictment was attacked for failure to cite the statute comprising the predicate "unlawful activity." The cases that do discuss § 1952 make it clear that the statutory language embodies all of the essential elements ⁵ and that reference to state law is necessary only to identify the type of unlawful activity involved. ⁶

In the present case, the allegations regarding appellants' use of facilities of interstate commerce and the unlawful activity to which it was related were set forth in the language of § 1952. Count III identified the unlawful activity as "Bribery of a Public Officer in violation of the laws of Nevada," and gave a detailed statement of appellants' alleged behavior in this regard. The objects of appellants' bribe attempts, the Nevada Gaming Commissioners, were listed by both name and title.

Under these circumstances we do not find that the Government's failure to cite § 197.010 could have prejudiced appellants. They were fully informed of the charges they faced.

Variance

Appellants' primary contention is that the grand jury relied on § 197.020 in returning their indictment, ⁷ and therefore, that conviction pursuant to 197.010 permits a variance between indictment and proof. This variance, argue appellants, violates their fifth amendment right to be tried only upon indictment by a grand jury.

The fifth amendment to the United States Constitution provides that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment of indictment of a grand jury." In a series of cases beginning with Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the Supreme Court has invalidated attempts by the Government to avoid these restrictions through the actual or constructive amendment of a defendant's indictment. The Court has never gone so far, however, as to hold that the fifth amendment precludes amendment per se without regard to possible prejudice. See United States v. Dawson, 516 F.2d 796 (9th Cir. 1975), cert. denied 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975). Its decisions have been limited to circumstances where amendment might undermine a defendant's right to be tried only upon "presentment or indictment of a grand jury."

In Ex parte Bain, supra, defendant was indicted for submitting a false report "with intent to deceive the comptroller of the currency and the agent (of the comptroller of the currency) appointed (by the comptroller) to examine the affairs of said association." 121 U.S. at 4, 7 S.Ct. at 783. (Emphasis in original). The trial court struck the italicized portion of the indictment as surplusage, holding that it was neither material nor necessary to the charge. Emphasizing the possibility that one or more of the indicting grand jurors may have found probable cause to believe that defendant intended to deceive the comptroller but not his agent, the Court held that defendant's fifth amendment right to be tried only upon indictment by a grand jury had been violated. 121 U.S. at 10, 7 S.Ct. at 786. Under the circumstances before the Court, amendment permitted the Government to side-step the grand jury and deprive the defendant of its protective function:

If it lies within the province of the court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.

Id. at 10, 7 S.Ct. at 786.

The Supreme Court reaffirmed the Bain principle in United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) and Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), both of which involved government efforts to amend the charging portion of an indictment. In Stirone, supra, the Court disallowed an amendment which alleged an alternative ...