U.S. v. Sparrow

Decision Date10 January 1980
Docket NumberNo. 78-2017,78-2017
Citation614 F.2d 229
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Dahle SPARROW, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, with him on brief), for plaintiff-appellee.

Wendell P. Ables, Salt Lake City, Utah (Daniel J. Sears, Federal Public Defender, Denver, Colo., with him on brief), for defendant-appellant.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Robert Dahle Sparrow (Sparrow) appeals his jury conviction of two counts of interstate transportation of a falsely made or forged security in violation of 18 U.S.C.A. § 2314 and one count of submitting a false statement to a bank in violation of 18 U.S.C.A. § 1014. The dispositive facts are not in dispute.

On May 26, 1976, Sparrow contacted the Sandy, Utah, branch of the Walker Bank and Trust Company (Bank) to secure financing for the purchase of a used 1976 Cadillac. On May 28, 1976 Sparrow received a loan from Bank in amount of $8,700 to purchase the car. In effecting the loan, an officer of Bank recorded its lien on the back of the original Oregon certificate of title for the vehicle which had been endorsed over to Sparrow as its purchaser. Bank then allowed Sparrow to take the title certificate in order that he could refile it in his own name in Idaho.

On July 12, 1976, Sparrow applied for an Idaho title for the car. In so doing, he submitted the original Oregon certificate of title for the car, endorsed over to him as purchaser. Bank, however, was no longer recorded on the back of the title certificate as a lienholder. Sparrow was, at that time, listed as both the owner and lienholder.

Although Sparrow's listing as both owner and lienholder was questioned, an Idaho title certificate was issued to him on or about July 12, 1976. On July 14, 1976, Sparrow traded the Cadillac for a new Chevrolet Monza at Streater Chevrolet in Salt Lake City. Sparrow warranted, by a bill of sale, that the Cadillac was free and clear of any third party interests. As part of the deal, Sparrow received a $2,846.00 check for the difference in value of the two cars.

On August 9, 1976, although he had already traded it, Sparrow notified his insurance company that the Cadillac was stolen on August 7, 1976. A claim was filed by Sparrow for the alleged loss and the police were also notified.

On September 7, 1976, Sparrow applied for a duplicate Oregon certificate of title and transfer. Thereafter, an Oregon title was issued in Sparrow's name and sent to Bank, showing Bank as lienholder.

On September 9, 1976, Gerald Smith, manager of Bank, called Sparrow to check on the status of the Oregon title. Sparrow related to Smith that the title certificate had been applied for but that the car had been stolen and the theft reported to the insurance company. Thereafter Smith called the insurance company to confirm that the loss had been reported. Subsequently the Oregon title was received by Bank.

On April 19, 1978, a grand jury handed down an indictment charging Sparrow as follows:

COUNT I

On or about a day between the 28th day of May, 1976, and the 12th day of July, 1976, ROBERT DAHLE SPARROW did transport in interstate commerce from Sandy, Utah, within the Central Division of the District of Utah, to Boise, Idaho, a falsely made, forged and altered security, that is, a title to a 1976 Cadillac Coupe DeVille vehicle, knowing the same to have been falsely made, forged and altered; all in violation of Section 2314, Title 18, United States Code.

COUNT II

On or about the 8th day of September, 1976, ROBERT DAHLE SPARROW did transport or cause to be transported in interstate commerce from Salem, Oregon, to Sandy, Utah, within the Central Division of the District of Utah, a falsely made, forged and altered security, that is, a title to a 1976 Cadillac Coupe DeVille vehicle, knowing the same to have been falsely made, forged and altered; all in violation of Section 2314, Title 18, United States Code.

COUNT III

On or about the 8th day of September, 1976, at Sandy, Utah, in the Central Division of the District of Utah, ROBERT DAHLE SPARROW knowingly did make a materially false statement in a security submitted as collateral on a loan previously obtained from the Walker Bank and Trust Company, Sandy, Utah Branch, a bank the deposits of which were then insured by the Federal Deposit Insurance Corporation, for the purpose of influencing the action of said bank regarding its security interest in a 1976 Cadillac Coupe DeVille vehicle, in that ROBERT DAHLE SPARROW stated and represented that the vehicle had been registered in the State of Oregon and stolen in the State of Idaho, when in truth and in fact, as ROBERT DAHLE SPARROW then and there well knew, the 1976 Cadillac vehicle had been registered in the State of Idaho and sold in the State of Utah; all in violation of Section 1014, Title 18, United States Code. (R. Vol. II, at pp. 1-2.)

On appeal Sparrow contends that: (1) there is no evidence that the certificate of title described in Count I was altered before being transported interstate; (2) the certificate of title described in Count II was not a forgery or falsely made document within the meaning of § 2314; (3) he was denied effective assistance of counsel; and (4) the evidence does not support a verdict of guilty to Count III.

I.

Sparrow contends that the government presented no evidence that the certificate of title described in Count I was altered before being transported interstate. Sparrow argues that under § 2314 a violation occurs Only when a party Transports in interstate or foreign commerce "any falsely made, forged, altered or counterfeited securities" and that the Government failed to establish that the certificate of title referred to in Count I was altered prior to being transported in interstate commerce, i. e., from Sandy, Utah to Boise, Idaho. Sparrow cites to United States v. Owens, 460 F.2d 467 (5th Cir. 1972) as supportive of his contention. In Owens, supra, the Court observed:

Under 18 U.S.C.A. § 2314, it is unlawful for any person to transport "in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; . . ." It is obvious that to prove the commission of an offense under this portion of section 2314 the Government must show that the instrument traveled interstate in its forged or altered condition. The difficulty of detecting and proving the locale of the alteration or forgery of the security has engendered a presumption in aid of proof. As early as 1822 Judge Story instructed a jury that there exists a presumption that an instrument was forged where it was first found in its altered state or uttered. United States v. Britton, C.C.D.Mass.1822, 24 Fed.Cas. 1239, 1241 (No. 14,650). Applying this rule to the instant case, a presumption arises that the five money orders which the defendant attempted to utter were falsely made and forged in Louisiana. Of course, as the Government correctly notes, this presumption does not obtain when circumstances reasonably indicate that alteration or forgery occurred outside the jurisdiction where the instrument was first found in its forged state or uttered. See, e. g., Castle v. United States, 5 Cir. 1961, 287 F.2d 657. In the instant case the Government advances several circumstances which allegedly assuage the probative force of this presumption and affirmatively show beyond a reasonable doubt that the five money orders did not make an interstate journey in their pristine state. 460 F.2d at p. 469.

In his reply brief, Sparrow further contends that the sole circumstance relied on by the Government to overcome the presumption that the title certificate was altered in Utah rather than in Idaho, i. e., his continued possession thereof, is without merit, when as here, he maintained a residence in Idaho and insured the car with an Idaho insurance agent.

We decline to adopt Owens, supra. We hold, contrary thereto, that a § 2314 conviction may be obtained without proof that a security was altered prior to movement in interstate commerce, when, as here, continued possession thereof is not challenged. Sparrow misapprehends the import of § 2314. The "Essence of the offense is the fraudulent scheme itself and the interstate element" is included solely to afford federal jurisdiction. This principle was enunciated in detail by this Court in United States v. Newson, 531 F.2d 979 (10th Cir. 1976):

As to the substantive charge under section 2314, the courts have been consistent in holding that the cashing of a check or money order in one state, drawn on a bank in another state, is competent evidence that the instrument would of necessity have to travel in interstate commerce. There is no requirement of actual physical transportation by a defendant and it is sufficient that a defendant cause the instrument to be transported by the negotiation process. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; United States v. Gundersen, 9 Cir., 518 F.2d 960; United States v. Roby, 10 Cir. 499 F.2d 151. It is also clearly established that actual knowledge of the interstate transportation of the instrument on the part of the defendant is not required. United States v. Masters, 9 Cir., 456 F.2d 1060; United States v. Powers, 9 Cir., 437 F.2d 1160; United States v. Mingoia, 2 Cir., 424 F.2d 710. The essence of the offense is the fraudulent scheme itself and the interstate element is only included to provide a constitutional basis for the exercise of federal jurisdiction. United States v. Roselli, 9 Cir., 432 F.2d 879, Cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828. (Emphasis supplied.) 531 F.2d at p. 981.

Our analysis of § 2314, as set forth in Newson, supr...

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4 cases
  • U.S. v. McElroy
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 17, 1981
    ...recent Tenth Circuit en banc decision, United States v. Sparrow, 635 F.2d 794 (10th Cir. 1980) (en banc ) reversing United States v. Sparrow, 614 F.2d 229 (10th Cir. 1980), which held that the statute required proof that the checks were already forged at the time they crossed the state line......
  • U.S. v. Fontana
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 11, 1991
    ...from a false or fraudulent statement. The words relate to genuineness of execution and not falsity of content." United States v. Sparrow, 614 F.2d 229, 233-34 (10 Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981). See also United States v. Crim, 527 F.2d 289 (10 ......
  • U.S. v. Sparrow, 78-2017
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 2, 1980
    ...bank. A majority of the panel which originally heard this appeal affirmed the conviction on all three counts. United States v. Sparrow, 614 F.2d 229 (10th Cir. 1980). We granted rehearing en banc to consider whether § 2314 requires proof that the security was altered prior to its being tran......
  • U.S. v. Cotoia
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 6, 1986
    ...and New Jersey certificates with the reduced mileage entries). United States v. Sparrow, 635 F.2d 794 (10th Cir.1980) (en banc ), rev'g 614 F.2d 229, cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981), indeed, held that "falsely made" securities cannot be those validly issue......

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