U.S. v. Phillips

• Citation: 869 F.2d 1361
• Decision Date: 17 October 1988
• Docket Number: No. 87-1007,87-1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold Lloyd PHILLIPS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1361

869 F.2d 1361

UNITED STATES of America, Plaintiff-Appellee, v. Harold Lloyd PHILLIPS, Defendant-Appellant.

No. 87-1007.

United States Court of Appeals, Tenth Circuit.

Oct. 17, 1988.

William L. Lutz, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Before SEYMOUR and ANDERSON, Circuit Judges, and BROWN, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Harold Lloyd Phillips appeals his conviction on two counts of violating 18 U.S.C. Sec. 2314 which makes it a crime to knowingly and wilfully transport in interstate commerce forged and falsely made securities with intent to defraud. He contends that the district court erred in its instructions to the jury by enlarging and thus amending the charging indictment. Similarly, because of the same instruction, Phillips contends he was deprived of his right to a unanimous jury verdict. Two additional issues are raised: whether the district court abused its discretion in not allowing objections to instructions prior to charging the jury; and whether the district court erred in giving an "on or about" instruction when Phillips' defense was that of alibi. We affirm.

On August 14, 1986 Phillips was charged in a two count superseding indictment with knowingly transporting a forged and falsely made security--two bad checks--in interstate commerce with intent to defraud. The indictment reads as follows:

Superceding Indictment

The Grand Jury charges:

Count I

On or about the 11th day of December 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Needham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Andrews, Texas, a falsely made and forged security, to wit: Check No. 2649 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.

In violation of 18 U.S.C. 2314.

Count II

On or about the 12th day of December, 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Needham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Littlefield, Texas, a falsely made and forged security, to wit: Check No. 2470 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.

In violation of 18 U.S.C. 2314.

R.Vol. I, doc. 17 (emphasis added).

At Phillips' trial, the checks in question were introduced. Both checks were signed in the name of George Smith. Store clerks from Andrews and Littlefield, Texas, testified that Phillips had cashed these checks at their places of business representing himself to be the payee, "Jimmy Needham." Evidence was offered to show that Phillips was president of United States Vacuumite Corporation, and that he was the only individual authorized to write checks on the account, that "George Smith" was one of Phillips' favorite deceased uncles and that the account had been closed since 1980, five years before the checks were cashed in Texas. Handwriting samples in which Phillips had repeatedly signed the name George Smith were admitted into evidence.

Further, a briefcase similar to one used by Phillips was found in a place where Phillips had been on at least three previous occasions. The briefcase contained blank checks, checks made out to J.A. Needham in the amount of $389.20 drawn on the United States Vacuumite Corporation account at the Capital Bank of Santa Fe, other checks in the names of Sheryl or Phil Phillips, and various maps. The prosecution also produced James Needham at trial. Needham testified that he had known the defendant as both Harold and Phil Phillips for a number of years, but that he had never been an employee of the United States Vacuumite Corporation and had not endorsed the two checks listed in the counts of the indictment, nor had he been in Andrews or Littlefield, Texas in December, 1985.

In his defense, Phillips introduced two witnesses who offered testimony suggesting that at the time he allegedly cashed the checks in Texas, Phillips had been in the state of Washington. In rebuttal, another store clerk testified that on the date in question, in Andrews, Texas at a different store, Phillips presented a check to him for $389.20 drawn on the Capital Bank of Santa Fe account of the United States Vacuumite Corporation. The clerk testified that he observed Phillips endorse the back of the check as J.A. Needham, the payee. A handwriting expert testified that Phillips was the author of the payee endorsement "Jimmy Needham" signed to the back of this check to the exclusion of all others.

I.

The Fifth Amendment requires that a felony defendant be tried only on an offense alleged in a grand jury indictment. United States v. Miller, 471 U.S. 130, 135, 140, 105 S.Ct. 1811, 1814, 1817, 85 L.Ed.2d 99 (1985). "Ever since Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887 it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960). Any such amendment effected by the court's instructions would constitute plain error and be reversible per se.

At the end of trial the court instructed the jury that:

"A check is falsely made or forged for the purpose ... of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two, the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient."

R.Vol. IV at 405. Thus, the jury instructions allowed the jury to find the check falsely made and forged if, (1) the maker of the check was not authorized to sign on the account from which the check was drawn; (2) the check was drawn on a closed account; or (3) the check was made payable to a fictitious payee.

Phillips contends that this instruction constitutes a constructive amendment of the indictment on the premise that the indictment referred to a forged signature of the maker but not to a closed account or fictitious payee. We disagree with that premise.

In interpreting an indictment, we are governed by practical rather than technical considerations. United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986) ("Charging documents are tested by whether they apprise the defendant of what evidence he must be prepared to meet.... An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied.") (citations omitted); see also United States v. Maggitt, 784 F.2d 590, 598 (5th Cir.1986) ("An indictment is to be read in light of its purpose, which is to inform the accused of the charges.") (citation omitted). Additionally, where, as in this case, there was no objection to the evidence, the instructions, or the indictment at trial, the court, in order to preserve judicial efficiency, must construe any ambiguities in the indictment in favor of validity. United States v. Freeman, 813 F.2d 303, 304 (10th Cir.1987) (Indictments which are tardily challenged are liberally construed in favor of validity.) (citing United States v. Watkins, 709 F.2d 475, 478 n. 2 (7th Cir.1983), and United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977)); United States v. Joseph, 781 F.2d 549, 554 (6th Cir.1986) ("When an indictment is challenged for the first time only after verdict, it will be liberally construed in favor of its sufficiency, and there will be no reversal, in the absence of prejudice 'unless the indictment cannot, within reason be construed to charge a crime.' ") (quoting in part United States v. Hart, 640 F.2d 856, 857-58 (6th Cir.), cert. denied, 451 U.S. 992, 101 S.Ct. 2334, 68 L.Ed.2d 853 (1981)). Finally, as Phillips concedes, since there was no objection at trial, reversal is not justified unless the district court's instruction constituted plain error. Brief of Appellant at 19; see also Fed.R.Crim.P. 52; Freeman, 813 F.2d at 305 ("Freeman's failure to object to the alleged omission and addition in the instructions at trial precludes us from finding error unless the error cited is plain error under Rule 52(b) of the Federal Rules of Criminal Procedure."). With these factors in mind, we cannot conclude that the trial court's instruction broadened the charge against the defendant beyond that set out in the indictment.

Phillips argues that the final four lines in each count of the indictment restrict the element of falsity to an unauthorized maker's signature; but the language states otherwise. Each count consists of but a single sentence which describes the check and material facts relating to the charge in detail, and concludes with the words "the defendant then and there knew said check to be forged and falsely made."

The fictitious payee aspect of the check is directly...