U.S. v. Peters

• Decision Date: 28 September 1978
• Docket Number: No. 77-1972,77-1972
• Citation: 190 U.S. App. D.C. 370,587 F.2d 1267
• Parties: UNITED STATES of America, Appellee, v. Robert L. PETERS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1267

587 F.2d 1267

190 U.S.App.D.C. 370

UNITED STATES of America, Appellee, v. Robert L. PETERS, Appellant.

No. 77-1972.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1978.

Decided Sept. 28, 1978.

Daniel B. Edelman, Washington, D. C. (appointed by this court), for appellant.

Peter C. DePaolis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Also David S. Krakoff, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before LEVENTHAL and MacKINNON, Circuit Judges, and JAMESON, ^* Senior District Judge.

Opinion for the court filed by JAMESON, Senior District Judge.

JAMESON, Senior District Judge:

Appellant, Robert Lincoln Peters, was convicted following a jury trial of interstate transportation of a forged security (count one), in violation of 18 U.S.C. § 2314; and forgery (count two) and uttering a forged security (count three), both in violation of D.C.Code § 22-1401. ¹ He contends that (1) all counts should have been dismissed for failure to comply with the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; (2) the district court should have granted a mistrial or have stricken the testimony of the Government's key witness for failure to comply with the Jencks Act, 18 U.S.C. § 3500; (3) the proof was insufficient to support a conviction for forgery because (a) his writing a name on the payee line of a check did not constitute a violation of the statute and (b) there was a fatal variance between the charge in the indictment and proof at trial; and (4) he was deprived of a fair trial by prosecutorial misconduct in closing argument. We vacate the conviction on count two and otherwise affirm the judgment.

FACTUAL BACKGROUND

In early April of 1975, a burglary took place at the Maple Rock Distributing Co. of Lexington, Virginia. Among the missing items were several checks, four of which are material to this case. Special Agent Kirby Major of the Federal Bureau of Investigation was assigned to investigate the burglary, with particular attention to the whereabouts of Lee R. Lacy, who was later to become a key prosecution witness. In the course of his investigation, Major, on three occasions, contacted the appellant, who apparently was not yet a suspect, to inquire as to the whereabouts of Lacy. Lacy was thereafter apprehended in Philadelphia. On February 26, 1976, he gave a statement to Major in which he denied any participation in the Maple Rock burglary, but admitted that he had participated with appellant and Roosevelt Moses ² in the forgery and passing of four Maple Rock checks in Washington, D. C.

Lacy pleaded guilty on October 14, 1976 to one count of interstate transportation of stolen securities. Under the terms of a plea agreement, on the same day he presented testimony to a grand jury in which he implicated appellant in the forgery and passing of the Maple Rock checks. The grand jury subpoenaed handwriting exemplars from appellant, which he voluntarily gave. Although the comparison of these exemplars with the writing on the checks was completed on November 15, 1976, the grand jury took no action with respect to appellant at that time.

On January 13, 1977, FBI agents procured a warrant for appellant's arrest. ³ He was arrested on January 18 and charged by complaint with one count of interstate transportation of a forged security. This complaint was dismissed by the Government pursuant to a praecipe dated March 14 and filed March 21, 1977. On March 23, 1977, the grand jury returned the indictment under which appellant was tried and convicted, alleging four counts of interstate transportation, one count of forgery, and four counts of uttering. Counts eight and nine alleged the uttering and interstate transportation of Maple Rock check number 15898, the check involved in the dismissed complaint.

Appellant filed motions to dismiss the indictment for pre-arrest and pre-indictment delay and to suppress statements. Following a hearing, the court orally denied the motion to suppress, ordered dismissal of counts eight and nine, and reserved a ruling on the remainder of the motion to dismiss. Later in a written memorandum the court granted the motion to dismiss counts eight and nine for failure to comply with the Speedy Trial Act, and denied the motion with respect to the first seven counts.

At the opening of the trial and before selection of a jury, the Government informed the court that it was unable to produce a transcript of Lacy's grand jury testimony, which appellant had requested. Following a hearing on the question of compliance with the duty to preserve Jencks materials, the court took the matter under advisement and later denied appellant's motion to strike Lacy's testimony or grant mistrial. The court did, however, give a cautionary instruction, patterned after the "missing witness" instruction, in an attempt to neutralize any prejudice resulting from the loss of Lacy's grand jury testimony.

At trial, the Government called a handwriting expert, who stated that in his opinion the name "Leroy Jones", written on the payee space of Maple Rock check number 15867, was written in appellant's hand. He also identified the endorsement of "Leroy Jones" on the back of the check as the handwriting of Lacy. He could reach no conclusion, however, as to whether appellant's handwriting appeared on either side of the two remaining checks. ⁴ Agent Major testified regarding his investigation of the alleged offenses including his taking a written statement from appellant, which was admitted in evidence as a Government exhibit.

Lacy testified that he met appellant and Moses at a park in Washington, where one or both of them solicited his participation in a scheme to pass the Maple Rock checks. According to Lacy, appellant and Moses gave him check number 15867, which he endorsed in the name of "Leroy Jones" and cashed at a grocery. The two other checks were made and passed later in the same fashion. In all cases, according to Lacy, the proceeds of the checks were divided among the three participants. ⁵

The trial court instructed the jury that they could find appellant guilty of forgery if he was found to have falsely completed any part of the document. The jury was further instructed that one who aids and abets in the commission of an offense is punishable as a principal. In response to an inquiry from the jury, the court also instructed that the name "Leroy Jones" on the face of the check did not constitute a "signature" within the meaning of the law. The jury returned a verdict of guilty with respect to the three counts dealing with check number 15867, and not guilty as to the remaining counts.

I. SPEEDY TRIAL ACT

Appellant filed a pretrial motion to dismiss the indictment ⁶ for failure to comply with the provisions of the Speedy Trial Act, 18 U.S.C. § 3161, ⁷ as implemented by D.C.District Court Rule 2-7. ⁸ The trial court found that the Act and the Local Rule required the filing of an indictment, within 60 and 45 days respectively, ⁹ of appellant's arrest on the charge alleged in the original complaint. The indictment was in fact returned 64 days after appellant was arrested. Finding that the charges in counts eight and nine of the indictment were identical in content to the offense charged in the complaint, the court held that Speedy Trial sanctions should be applied, including dismissal, pursuant to Fed.R.Crim.P.Rule 48(b), of counts eight and nine. ¹⁰

With respect to counts one through seven, however, the court was of the opinion that the offenses involving the three checks covered by those counts were distinct, both legally and factually, from those involving the check in the original complaint and in counts eight and nine. The court concluded that appellant's "behavior was not . . . part of the same criminal episode" under § 3161(d), that "each violation charged by counts one through seven of this indictment could have been prosecuted separately, (and it) cannot be said that the offenses charged were 'required to be joined' under our Local Rule 2-7 4(b)". ¹¹ 434 F.Supp. at 362. The court therefore held that the Speedy Trial sanction would not apply to counts one through seven.

Appellant contends that all of the counts of the indictment charge offenses "arising from a single criminal episode: The alleged forgery, uttering and transportation within a short time period of checks drawn on a single payor and apparently stolen in a single burglary". Accordingly it is argued that the failure to dismiss counts one through seven "runs foul of the strict prophylactic rule established by 18 U.S.C. 3161(d)" a rule allegedly much more strict than the "required to be joined" language of Local Rule 2-7 4(b), upon which the district court relied in denying the motion to dismiss.

The Government contends that appellant has "incorrectly based his analysis upon the provisions of section 3161(d)", which "deals with the situation where, upon motion of the defendant, an information or indictment is dismissed on other than speedy trial grounds". Rather, the Government argues, section 3161(h)(6), as implemented by Local Rule 2-7 4(b)(3), "specifically deals with the problem presented in this case", i. e., "where the Government, on its own motion, dismisses a charge and then later seeks to recommence the prosecution". Applying section 3161(h)(6) and Local 2-7, the Government contends that the offenses alleged in the complaint were distinct from those charged in counts one through three of the indictment, that they were not "required to be joined" under any recognized rule, and that the time restraints of the Act and the Local Rule did not require dismissal.

The respective arguments of counsel suggest ambiguities in the statutory provisions relating to superseding charges which are difficult to resolve even with the aid of the...