U.S. v. Morris, s. 82-1372

Citation700 F.2d 427
Decision Date23 May 1983
Docket NumberNos. 82-1372,82-1409,s. 82-1372
Parties12 Fed. R. Evid. Serv. 1284 UNITED STATES of America, Appellee, v. Wayne MORRIS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Carl GRAHAM, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Thomas A. Tarro III, Providence, R.I., with whom Rodio, Tarro & Ursillo, Ltd., Providence, R.I., was on brief, for appellant Wayne Morris.

Robert B. Mann, Providence, R.I., with whom Mann & Roney, Providence, R.I., was on brief, for appellant Carl Graham.

James E. O'Neil, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before CAMPBELL and BREYER, Circuit Judges, and SMITH, * Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Appellants Wayne Morris and Carl Graham were convicted in the district court of multiple counts of transporting minors across state lines for purposes of prostitution and one count of conspiring to do so. See 18 U.S.C. Sec. 2423(a)(1); id. Sec. 371. Graham was also convicted of a single count of transporting an adult across state lines for purposes of prostitution. See id. Sec. 2421. The government's primary evidence was the testimony of five females. Each described meeting the defendants in Providence, Rhode Island, travelling with them, usually in Graham's car, to New Jersey and Massachusetts, and working there for one or the other as a prostitute.

We find no merit in appellants' claims of error.

I. VARIANCE

Appellants contend their convictions on the first four counts were obtained without due process because of variances between the dates given in the indictment, those mentioned in the bill of particulars, and those proved at trial. The first count charged both defendants with conspiracy "between on or about January 1980 and continuing to on or about May 1981." 1 Counts two through four charged both defendants with transporting minors from Rhode Island to Boston in January 1980, to Fall River, Massachusetts, in February 1980, and to Newark during the summer of 1980, respectively.

In a later bill of particulars, the U.S. Attorney repeated the allegation of interstate transportation "between the dates of January 1980 and May 1981," specifying that "it is anticipated that evidence will be offered concerning the dates of January 27, 1980; September 2, 1980; and September 19, 1980." He added, however, that "[b]y providing the above dates the government in no way intends to limit itself to those dates at the time of trial in offering proof supportive of the alleged offenses."

While the female witnesses testified to numerous acts of transportation and prostitution within the period January 1980 to May 1981, they were vague as to exact dates--one was uncertain even as to what year she had worked for the defendant; the others testified in terms of months or seasons. Their testimony indicated that both defendants had transported minors to Boston in the fall or winter (rather than in January) of 1980. Travel to Fall River appears to have occurred late in 1980 rather than in February 1980. And while the testimony indicated there were trips to New Jersey in 1980, as alleged, much of the activity there seems to have occurred early in 1981. Hotel records put in evidence by the government related to late 1980 and early 1981. Finally, a police officer testified to observing certain of the witnesses and the defendants in Fall River in November 1980. Thus the government's proof did not correspond exactly with the dates alleged in the substantive counts nor with the three specific dates given in the bill of particulars. All conduct occurred, however, within the 16 months from January 1980 to May 1981 during which the conspiracy and transportation were alleged to have taken place. 2 The conduct, moreover, was of a continuing nature, occurring, it was testified, over substantial periods within the 16 month time frame.

We find no denial of due process. Where a particular date is not a substantive element of the crime charged, strict chronological specificity or accuracy is not required. This court has accepted both generality in the dates alleged in the indictment, e.g., United States v. Nunez, 668 F.2d 10 (1st Cir.1980) ("on or about 1977"), and variance between what is alleged and what proved, e.g., United States v. Antonelli, 439 F.2d 1068 (1st Cir.1971). A commentator states, "proof of any date before the return of the indictment and within the statute of limitations is sufficient." 1 C. Wright, Federal Practice & Procedure: Criminal Sec. 125 at 383 (1982). See also United States v. Nunez, 668 F.2d 1116, 1127 (10th Cir.1981) ("since time is not an essential element of the offense charged, any variance in the evidence from the date alleged in the indictment as to the time of possession may be disregarded"). While the cases appellants cite contain general language indicating that a conviction may be set aside because of such imprecision, none in fact does so. 3

In this case, the date is not an element of the crime charged, nor is there any indication that the offenses occurred after return of the indictment or outside the period of limitations. The critical inquiry is therefore not whether there was a variance, but whether the defendants were prejudiced thereby. United States v. Hall, 632 F.2d 500, 504 (5th Cir.1980); United States v. Wright, 573 F.2d 681, 685 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978); United States v. Joyner, 539 F.2d 1162, 1164 (8th Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976); United States v. Austin, 448 F.2d 399, 401 (9th Cir.1971); United States v. Antonelli, 439 F.2d 1068, 1070 (1st Cir.1971); United States v. Haskins, 345 F.2d 111, 114 (6th Cir.1965) (bill of particulars). See Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.") (emphasis added). 4 We find no prejudice. The defendants knew they were charged with transportation between Providence, Rhode Island, and Boston, Fall River, and Newark during the period January 1980 until May 1981. The bill of particulars warned that the government did "intend to introduce into evidence testimony concerning those general time periods covering the months of January 1980 through May 1981." 5

While defendants assert that they were unable to prepare a defense, they fail to say how this was so. No facts are referred to indicating how the variances occasioned surprise, precluded any defenses, or undermined cross-examination. Essentially no evidence was presented by the defense, and there is no hint that this absence of evidence resulted from defendants' having prepared a defense to charges of transportation on different dates than surfaced at trial. Defendants never sought a continuance. Nor did they object to the general course of the testimony, but only, late in the trial, to the prosecution's introduction of the hotel records. Defense counsel were provided with a list of the government's witnesses, some of the hotel records, and other materials; they thus had access to most of the prosecution's case. Finally, the judge allowed defendants every afternoon off to work on the case. Support for their claim of prejudice is thus speculative at best, see United States v. Celaya-Garcia, 583 F.2d 210, 211 & n. 3 (5th Cir.1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1259, 59 L.Ed.2d 481 (1979), if not simply nonexistent.

Appellants assert that the court improperly usurped the jury's function by instructing it that the variances were reasonable as a matter of law. They point to the usual jury instruction that the prosecution need not prove the exact date of an offense, but only that it was committed reasonably close to the date in the indictment. E.g., United States v. Williams, 657 F.2d 199 (8th Cir.1981); Tafoya v. United States, 386 F.2d 537 (10th Cir.1967), cert. denied, 390 U.S. 1034, 88 S.Ct. 1433, 20 L.Ed.2d 294 (1968). See Mathes, Jury Instructions for Federal Criminal Cases, 27 F.R.D. 39, 88 (1960). 6 We do not take that instruction, however, as an indication that the reasonableness of a variance is normally a question of fact for the jury. Were this so, the jury's verdict of guilty would foreclose the court from later finding a prejudicial variance. In this circuit, as elsewhere, the court decides whether the variance is acceptable as a matter of law. See United States v. Antonelli, 439 F.2d 1068; cf. United States v. Nunez, 668 F.2d 10. A jury can seldom have access to all the facts necessary to judge whether a variance prejudiced a defendant in the preparation of his defense, nor are laymen well suited to that inquiry. We think the standard instruction is meant not to put the reasonableness of the variance to the jury, as an element of proof, but merely to make clear that the government need not prove occurrence of the particular crime on the precise date charged.

The government's difficulty with dates, while understandable given the witnesses and the nature of the charges, was in some respects extreme. However, defendants were well aware of the overall chronological parameters of the government's proof and of the general shape of the case against them. They have failed to demonstrate prejudice. The variances were therefore acceptable, and the district judge was correct in so instructing the jury. We see no reason to overturn the convictions on this ground.

II. EVIDENTIARY CHALLENGES
A. Evidence of Other Wrongs

At trial, one witness testified that Graham had on different occasions broken into her apartment, abducted her, and beaten her. Hospital records and the testimony of the witness's mother corroborated her story. Graham objected to the admission of this evidence at trial, and now contends that it was improper propensity evidence,...

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