U.S. v. Simmons

• Decision Date: 08 June 1982
• Docket Number: Nos. 81-1613,81-1877,s. 81-1613
• Citation: 679 F.2d 1042
• Parties: 10 Fed. R. Evid. Serv. 1270 UNITED STATES of America v. Mattie Doll SIMMONS, Appellant. UNITED STATES of America v. Maurice BROWN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1042

679 F.2d 1042

10 Fed. R. Evid. Serv. 1270

UNITED STATES of America v. Mattie Doll SIMMONS, Appellant.

UNITED STATES of America v. Maurice BROWN, Appellant.

Nos. 81-1613, 81-1877.

United States Court of Appeals, Third Circuit.

Argued Feb. 16, 1982.

Decided May 14, 1982.

Rehearing and Rehearing In Banc Denied June 8, 1982.

William W. Robertson, U.S. Atty., Samuel Rosenthal, Asst. U.S. Atty. (argued), Newark, N. J., for appellee.

Peter W. Till (argued), Stephen R. Fogarty, Aron, Till & Salsberg, Jersey City, N. J., for appellant, Mattie Doll Simmons.

Philip Rosenbach (argued), Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, A Professional Corp., Roseland, N. J., for appellant, Maurice Brown.

Before ADAMS and SLOVITER, Circuit Judges, and VAN ARTSDALEN, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The principal issue on this appeal is whether evidence of a comprehensive scheme to negotiate checks bearing forged signatures is encompassed within statutory language proscribing "tak(ing) and carr(ying) away, with intent to steal or purloin" property or money belonging to a federally insured bank. 18 U.S.C. § 2113(b). We join those circuits representing the majority view and hold that such activity is covered by the statute. Finding the defendants' remaining contentions to be without merit, we affirm their convictions.

II.

Appellants Maurice Brown and his wife, Mattie Doll Simmons, were tried before a jury on a twenty-two count superseding indictment charging them and co-defendants, William Baucom, his wife Elizabeth, and her father Anthony Bilotti, with participating in a scheme to cash forged checks at various federally insured banks. The indictment charged all five defendants with:

(a) criminal conspiracy, in violation of 18 U.S.C. § 371 (Count 1);

(b) nine substantive counts of stealing and purloining money from federally insured banks on various occasions, in violation of 18 U.S.C. § 2113(b) (Counts 2 through 7, 14, 21, and 22); and

(c) twelve substantive counts of interstate transportation of falsely made and forged checks, in violation of 18 U.S.C. § 2314 (Counts 8 through 13, and 15 through 20).

The principal testimony was provided by Jennifer Straker and Sherry Stormes, unindicted co-conspirators, and was corroborated by substantial independent evidence, including bank photographs showing Simmons and Bilotti cashing forged checks, fingerprints of Brown and William Baucom found on various checks, and a written confession signed by Elizabeth Baucom.

The scheme worked essentially as follows: Brown purchased blank corporate checks (which had been stolen or belonged to a closed account) from William Baucom, Straker, and other sources, and purchased or obtained, usually from the Baucoms, originals or photocopies of checks drawn on personal checking accounts of third parties. The drawer's name, signature, and personal checking account number from the valid personal checks were used as the payee's name, endorsement signature, and payee Generally, the proceeds from the operation were divided in the following manner: $10 was paid for each blank corporate check which was to be forged and negotiated, $50 or $75 was paid for the photocopied personal check from which the payee's name, signature and account number were taken, and, if Brown did not drive the check-casher to the bank, $25 was paid to the driver. The remainder of the proceeds from every check was split evenly between Brown and the person cashing the check. Tr. at 2.124, 5.173. Profits of up to $7,000 a week were made by one check-casher, and Brown made at least that amount. Tr. at 2.124-2.125. ¹

account number on the blank corporate checks, which were then presented by the conspirators at the branch banks where the personal checking accounts were maintained. Some of the original or photocopies of valid personal checks were obtained by Elizabeth Baucom, who worked as a bank teller during part of the relevant period. Tr. at 2.135, 4.113, 6.110. Brown filled in the blank corporate checks, stamped them with a checkwriter machine, and forged signatures on them. On a regular basis, he drove various co-conspirators to banks to cash these checks, and waited in the car while they went inside. Straker had been recruited during the summer of 1979 by Brown who told her that he had been cashing checks with Simmons, a black woman, but that he "needed a white woman to work (with) in the white belt." Tr. at 2.99. In addition to cashing the forged checks, Straker also supplied Brown with some "New Jersey paper", i.e., blank corporate checks drawn on New Jersey banks for the operation. Tr. at 2.115-2.117.

After Straker was arrested on November 5, 1979, while attempting to cash a forged check at a bank, Brown escaped detection and enlisted Stormes' participation as Straker's replacement, teaching her the operation, giving her the fraudulent checks to cash, and driving her to the banks to cash the checks. Tr. at 5.170-5.171, 5.192-5.195. Brown told Stormes that Simmons and others were involved in the operation. Tr. at 5.174. Both Straker and Stormes testified that they worked directly with Brown many times, and that they had witnessed him completing and/or forging the checks. Tr. at 2.117, 2.144-2.146, 5.170-5.171.

While in jail following her arrest, Straker agreed to cooperate with law enforcement authorities. A telephone conversation between Straker and Brown was tape recorded by the authorities, in which Brown indicated his involvement in the fraudulent check-passing scheme. Tr. at 4.59-4.82. This conversation was introduced into evidence. Also read into evidence was a redacted statement which Elizabeth Baucom had given to the FBI regarding her involvement in the scheme. It stated in part:

About three or four weeks ago I began to Xerox checks that I handled as a teller at the United Jersey Bank at Summit and Essex Street, Hackensack, New Jersey. In all I copied about 25 checks which I took from the bank. The reason that I took these copies of the checks is because someone else and I agreed to do it. This other person had contacts with people and planned to sell each copy of a check to them for 20 or 25 dollars each. I assumed that they used them for something to do with fraudulent checks. ²

Tr. 6.110 (emphasis added).

At trial, each substantive count of the indictment was supported by a specific fraudulent check, with the exception of The jury convicted all five defendants of the conspiracy charged in Count 1 and of various substantive counts. Brown was found guilty on all counts (with the exception of the count which had been dismissed), and Simmons was found guilty on Counts 1 through 7. ⁴

Count 16, ³ and each fraudulent check was linked to one or more of the defendants by evidence such as: the testimony of Straker or Stormes regarding that particular check or type of check; bank surveillance camera photographs showing Simmons, Bilotti, Straker, or Stormes cashing that particular check; fingerprints of Brown, Baucom, Straker, or Stormes on that check; bank tellers' testimony identifying the check-cashers of certain checks; and/or bank records of the photocopied personal checks that were handled by Elizabeth Baucom and used as "accounts" in the operation. It was stipulated by all defendants that the checks introduced were in fact fraudulent.

III.

APPEAL OF MAURICE BROWN

A.

Applicability of 18 U.S.C. § 2113(b)

Nine of the counts on which Brown was convicted alleged violations of 18 U.S.C. § 2113(b), and one additional count alleged a conspiracy to violate that section. 18 U.S.C. § 2113(b) provides in relevant part that:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.

Appellant argues that, at most, the only evidence of criminal activity presented to the jury showed that he and the other defendants agreed to use forged checks to withdraw proceeds from banks whose funds were insured by the Federal Deposit Insurance Corporation. He contends that this constitutes obtaining money by false pretenses and is not encompassed within the term "steal or purloin" in 18 U.S.C. § 2113(b). This narrow construction of the statutory language has been rejected by three circuits, see United States v. Guiffre, 576 F.2d 126, 128 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978); United States v. Fistel, 460 F.2d 157, 162-63 (2d Cir. 1972); Thaggard v. United States, 354 F.2d 735, 736, 738 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). These decisions relied in the main on the Supreme Court's decision in United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), where the Court construed the Dyer Act, 18 U.S.C. § 2312, which makes it illegal for one to transport a motor vehicle in interstate commerce while knowing it to have been "stolen". The defendant in Turley had "borrowed" an automobile with the owner's consent and subsequently sold the automobile after crossing state lines. Defendant argued that his conduct constituted only "embezzlement" and not "stealing" which he claimed was limited to those acts constituting larceny at common law. The Court rejected the argument that the terms "stolen" and "steal" have a common law meaning that is " 'equated or exclusively dedicated to larceny' ". Id. at 411-12, 77 S.Ct. at 399. Instead the Court relied on dictionary definitions of "steal" and "stolen" which give these terms broader scope, and referred specifically to Black's Law Dictionary (4th ed., 1951) which stated that "steal" "may denote the criminal taking of personal property either by larceny, embezzlement, or false pretenses." See id. at 412 "(S)tolen" a...