U.S. v. Schwab, 98-CR-076-J.

• Decision Date: 28 July 1999
• Docket Number: No. 98-CR-076-J.,98-CR-076-J.
• Citation: 61 F.Supp.2d 1196
• Parties: UNITED STATES of America, Plaintiff, v. Marvin G. SCHWAB, Daniel A. Schwab, and Vance S. Schwab, Defendants.
• Court: U.S. District Court — District of Wyoming

61 F.Supp.2d 1196

UNITED STATES of America, Plaintiff, v. Marvin G. SCHWAB, Daniel A. Schwab, and Vance S. Schwab, Defendants.

No. 98-CR-076-J.

United States District Court, D. Wyoming.

July 28, 1999.

COPYRIGHT MATERIAL OMITTED

Robert B. Carroll, Cheyenne, WY, for Marvin G. Schwab, defendant.

G. Kevin Keller, Cheyenne, WY, Lowell H. Becraft, Jr., Huntsville, AL, for Daniel A. Schwab, defendant.

James K. Lubing, Jackson, WY, for David W. Horsley, Jr., defendant.

James E. Phillips, Phillips & Lancaster, Evanston, WY, John D. Bowers, Bowers Law Office, Afton, WY, for Vance Schwab, defendant.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS INDICTMENTS AND DISMISSING INDICTMENT AND FINDING DEFENDANTS' MOTIONS FOR A NEW TRIAL AND MOTIONS FOR JUDGMENT OF ACQUITTAL TO BE MOOT

ALAN B. JOHNSON, Chief Judge

On March 25, 1999, the jury returned verdicts against defendants Marvin G. Schwab, Daniel A. Schwab and Vance S. Schwab on all counts against them in the Indictment. Marvin G. Schwab was convicted of one count of conspiracy to commit interstate transportation of monies obtained by fraud and one count of the substantive violation of causing interstate transportation of monies obtained by fraud in violation of 18 U.S.C. § 2314. Daniel A. Schwab was convicted of one count of conspiracy to commit interstate transportation of monies obtained by fraud and six counts of the substantive violation of causing interstate transportation of monies obtained by fraud in violation of 18 U.S.C. § 2314. Vance S. Schwab was convicted of one count of conspiracy to commit interstate transportation of monies obtained by fraud and one count of the substantive violation of causing interstate transportation of monies obtained by fraud in violation of 18 U.S.C. § 2314.

Defendants bring the following Motions: Motions for Judgment of Acquittal After Verdict Returned, Motions for a New Trial, Motions to Dismiss Indictment and Renewals of Motions for Judgment of Acquittal. Defendants generally contend as follows: there is insufficient evidence to support their convictions on any of the counts; there is insufficient evidence of false and fraudulent pretenses in regard to the substantive counts; they had no duty to disclose material facts and therefore they are entitled to a judgment of acquittal on the substantive counts; they were prejudiced by the government's representation before trial that they were charged under Paragraph Two of § 2314; and, they were prejudiced by a variance in or constructive amendment to the Indictment.

The government contends that there is sufficient evidence to support all of the convictions; that the indictment was sufficient; that there was no variance in the Indictment; that there was no constructive amendment of the Indictment; that the language from the incorrect paragraph of § 2314 should be disregarded as mere surplusage; and, that defendants were not prejudiced because they had adequate notice that the prosecution was based upon their alleged fraud against three insurance companies.

The standards for consideration of the present motions are as follows:

In considering a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, we must:

View the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.... [We are permitted] to enter a judgment of acquittal only if the evidence is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.

United States v. White, 673 F.2d 299, 301 (10th Cir.1982) (citations omitted); U.S. v. Peveto, 881 F.2d 844, 860 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). We must refrain from weighing conflicting evidence and from considering the credibility of witnesses, and determine whether the evidence, when viewed in the light most favorable to the government, establishes each element of the crime. White, 673 F.2d at 301-02. If so, we must not disturb the jury's verdict of guilty. Id. at 302.

In considering a motion for new trial, we have broad discretion which will not be disturbed on appeal absent plain abuse of that discretion. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987). The standards for granting a new trial are not as strict as the standards for granting judgment of acquittal. Fed.R.Crim.P. 33 provides that a court may grant a new trial "if required in the interest of justice." Additionally, any error which would require reversal on appeal is a sufficient basis for granting a new trial. 3 Charles A. Wright, Federal Practice and Procedure: Criminal § 556 (2d ed.1982). However, we disfavor new trials, United States v. Gleeson, 411 F.2d 1091 (10th Cir.1969), and exercise great caution in granting them. U.S. v. Allen, 554 F.2d 398 (10th Cir.) cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977).

U.S. v. Stiner, 765 F.Supp. 663, 664 (D.Kan.1991). Accord U.S. v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997) ("motion for new trial is not regarded with favor and should only be granted with great caution.")

An indictment is deemed constitutionally sufficient if it (1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir. 1991).

United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994).

Our concern is whether, after reading the counts of an indictment together, a defendant has "a clear understanding of each of the charges against him." United States v. Edmonson, 962 F.2d 1535, 1542 (10th Cir.1992) (reading all three counts of an indictment together, it stated all essential elements of the statute). Count 1 of the superseding indictment parrots the language of [the statute] and then incorporates Count 1 and references [the statute]. See Fed.R.Crim.P. 7(c)(1). An indictment need not quote the statute to adequately place a defendant on notice of the charges against him. United States v. Bullock, 914 F.2d 1413, 1414 (10th Cir.1990) (discussing untimely challenge to sufficiency of indictment) (citing Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)); see also Kienlen v. United States, 379 F.2d 20, 23 (10th Cir.1967) (rejecting challenge to single sentence indictment that failed "to allege the [defendant] assaulted and put lives in danger by the use of a dangerous weapon `while committing an offense in violation of 18 U.S.C. § 2113(a)'").

Defendant has not shown that he could not adequately prepare his defense or that the charge or the record at the second trial is so lacking that it provided him no protection against double jeopardy. Defendant evidently received all required access to the prosecution's discovery and concedes that the evidence in both trials was nearly identical. See United States v. Dyba, 554 F.2d 417, 420 (10th Cir.) (upholding imperfect indictment because not substantially prejudicial to defendant), cert. denied, 434 U.S. 830, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); United States v. Mason, 440 F.2d 1293, 1296 (10th Cir.) (upholding indictment that was "not a model of clarity"), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971).

Finally, defendant argues that Count 2 does not state the elements of [the statute] and the jury instructions setting out those elements impermissibly broadened the indictment. Because we have already held that the indictment was not deficient for failing to list the elements of [the statute] the jury instructions did not broaden the indictment.

U.S. v. Willis, 102 F.3d 1078, 1082-83 (10th Cir.1996) (citations partially omitted).

"A constructive amendment of an indictment occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. Hornung, 848 F.2d 1040, 1046 (10th Cir.1988) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986)).

U.S. v. Gauvin, 173 F.3d 798, 804 (10th Cir.1999).

A variance arises when the evidence presented at trial establishes facts which are different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 507 U.S. 946, 113 S.Ct. 1356, 122 L.Ed.2d 736 (1993). However, no variance occurs when the government's theory on which the case was tried is the same as that charged in the indictment. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. Moreover, even if a variance exists, we will not reverse unless the variance affects the defendant's substantial rights. Powell, 982 F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991) ("variance did not affect defendant's right to a fair trial").

U.S. v. Meyers, 95 F.3d 1475, 1487 (10th Cir.1996).

Section 2314 of Title 18 is part of the National Stolen Property Act. Section 2314 contains "five subsections, each of which constitutes a separate offense." U.S. v. Wright, 791 F.2d 133, 135 (10th Cir.1986). The first two of those five unnumbered sections or paragraphs are relevant to this case:

Whoever transports ... in interstate ... commerce any ... securities or money, of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or

Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false...