U.S. v. Thompson, 77-3555

• Decision Date: 21 April 1978
• Docket Number: No. 77-3555,77-3555
• Citation: 576 F.2d 784
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 784

576 F.2d 784

UNITED STATES of America, Plaintiff-Appellee, v. Donald THOMPSON, Defendant-Appellant.

No. 77-3555.

United States Court of Appeals Ninth Circuit.

April 21, 1978.

Rehearing Denied June 16, 1978.

James L. Vonasch (argued), Seattle, Wash., for defendant-appellant.

Christine McKenna, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before SNEED and TANG, Circuit Judges, and SCHNACKE, ^* District Judge.

SCHNACKE, District Judge.

Donald Thompson, after a jury trial, was adjudged guilty of forging the name of a payee on a United States treasury check, in violation of 18 U.S.C. § 495. He appeals.

It is not denied that Thompson, in July 1977, took a treasury check payable to one Olden Howard, signed Howard's name on the back of the check, and cashed the check at a bank. At trial, Thompson claimed that he cashed the check with Howard's permission. Howard testified that Thompson lacked such permission. Howard further testified that Thompson had told him he would pay Howard the amount of the check if Howard went to see Thompson's lawyer. Howard went to the lawyer and signed an affidavit in which it was stated that Howard was Thompson's uncle; that Thompson had Howard's permission to receive and cash the check; and that Thompson had performed this service before July 1977 at Howard's request because Howard has difficulty hearing and writing.

At trial Howard testified that he understood the affidavit to be the way the charges against Thompson, who had been Howard's roommate, could be dropped and Howard could get the full amount of the check. Howard also testified that the aforementioned statements in the affidavit were all false, and Thompson concedes Howard is not his uncle.

Thompson contends on appeal that the indictment against him should have been dismissed because the grand jury which indicted him was never told of Howard's affidavit, which, conceivably, might have borne on Howard's credibility. The contention is without merit. The grand jury need not be advised of all matters bearing on the credibility of potential witnesses. Dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way, as where perjured testimony has knowingly been presented (see U. S. v. Kennedy, 564 F.2d 1329, 1335-1338 (9th Cir. 1977)). There is nothing shocking to the conscience in the circumstances here.

Thompson's other contentions on appeal relate to the trial judge's failure to give two of Thompson's proposed jury instructions. The first stated, in substance: A witness's testimony may be discredited or impeached by showing that he previously made statements inconsistent with his trial testimony. The jury is to determine what, if any, credibility to give his testimony. If a witness is shown...