United States v. Beard

• Decision Date: 11 February 1971
• Docket Number: No. 28155.,28155.
• Citation: 436 F.2d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Verland L. BEARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

436 F.2d 1084 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Verland L. BEARD, Defendant-Appellant.

No. 28155.

United States Court of Appeals, Fifth Circuit.

January 4, 1971.

Rehearing Denied February 11, 1971.

Jack Paul Leon, San Antonio, Tex., for defendant-appellant.

Reese L. Harrison, Jr., Asst. U.S. Atty., Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge.

Verland L. Beard here appeals a conviction by a jury with respect to certain funds of the Mutual Aid Association at Kelly Air Force Base, Texas.¹ We reverse.

Beard was the office manager of the Mutual Aid Association at Kelly Air Force Base, Texas, which is within the special territorial jurisdiction of the United States. Title 18, U.S.C., Section 7(3). He was initially indicted for embezzling funds from the Association in violation of Title 18, U.S.C., Section 13, the Assimilative Crime Act, and Article 1534 of the Texas Penal Code.² The purpose of the Assimilative Crime Act is to allow the United States to prosecute persons for acts in or on places to which the special federal jurisdiction extends provided such acts are unlawful in the State, Territory or Possession in which the federal enclave is located.

However, after the trial of the defendant-appellant had begun, a fatal defect in the government's case as to a violation of Title 18, U.S.C. § 13, came to light. It was tardily discovered by the prosecutor that under basic Texas law in order to sustain a conviction for embezzlement under the statute title must be shown to be in the injured person or entity at the time the offense is committed. Villarreal v. State, Tex.Cr.App., 385 S.W.2d 248 (1964). Further it developed that under Texas law a voluntary association, such as the Mutual Aid Association, Kelly Air Force Base, is not a person or any legal entity (described in Art. 1534 of the Texas Penal Code) capable of holding title to funds subject to embezzlement. Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074 (1936); Daniel v. State, 128 Tex.Cr.R. 660, 83 S.W.2d 335 (1935). It developed at trial that a Mr. McMillan was the legal custodian of the funds, not Beard as charged; Beard was simply the office manager. Additionally, government counsel conceded that the Mutual Aid Association, Kelly Air Force Base, had not complied with Article 14.54 of the Insurance Code of Texas and therefore it could not invoke the protection of Article 14.55 of the Insurance Code of Texas, making it a criminal offense to convert funds of a mutual aid association.

Faced with these obstacles, the government proceeded to urge that while the operative facts did not charge a violation of Title 18, U.S.C., Section 13, they did charge a violation of Title 18, U.S.C. Section 661.³ The government argued that a change in the statute relied upon, without a change in the operative facts alleged in the indictment, would not render the prosecution defective. Williams v. United States, 168 U. S. 382, 18 S.Ct. 92, 42 L.Ed. 509 (1897); Masi v. United States, 5 Cir. 1955, 223 F.2d 132, 133; F.R.Crim.P. 7(c). The appellant moved to dismiss the indictment as charging a violation of Title 18, U.S.C., Section 661, because under this statutory provision embezzlement committed within the special territorial jurisdiction of the United States is not a crime, only taking and carrying away with intent to steal or purloin. The district court after consideration rejected this argument and denied the motion to dismiss the indictment. Beard's counsel then moved for a mistrial on the grounds of surprise and unpreparedness. The district court was considering this request and questioning counsel regarding any possible double jeopardy problems which might arise from the declaring of a mistrial when appellant's counsel stated that he withdrew the request for a mistrial and was ready to proceed at that time with the trial. The trial was completed and the appellant was convicted.

We think that the conviction must be reversed. This is so regardless of the withdrawal of the motion for mistrial or continuance on the ground of surprise. Appellee appears to urge that this action was a waiver of some sort of the error already committed, the denial of the motion to dismiss or for judgment of acquittal. The error here was as to a basic and fundamental right of the appellant. Amendment V to the Constitution of the United States speaks in unmistakable terms: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, * * * nor be deprived of life, liberty, or property, without due process of law * * *." "Due process" in Fifth Amendment terms requires at a minimum that a defendant be given reasonable notice and opportunity to defend against that with which he is charged. The Fifth Amendment entitles a defendant in a criminal case to be indicted for the offense for which he is to be tried, or to be tried only for the offense for which he is under indictment. The proceedings below manifest to us the disregard of these constitutional rights.

The only case ever presented by the prosecution to the Grand Jury necessarily was on the theory that the actions of the appellant constituted a violation of Title 18, U.S.C., Section 13, by reason of violation of the Texas embezzlement statute, Section 1534 of the Texas Penal Code. The appellant was tried and convicted for violating a wholly different statutory provision, Title 18, U.S.C., Section 661. Permission was not asked of or given by the trial judge for formal amendment of the indictment, but nevertheless the indictment was in effect amended by the government's change in position during the course of the trial when the fatal defects in the proof came to light, and the court refused to grant the motion to dismiss the indictment. The D. C. Circuit has recently had occasion to advert to the recognized potential for prejudice to the defendant when a variance is permitted between indictment and proof, or when an indictment is actually or effectively amended. Gaither v. United States, 1969, 134 U.S. App.D.C. 154, 413 F.2d 1061. The court noted:

"An amendment is thought to be bad because it deprives the defendant of his right to be tried upon the charge in the indictment as found by the grand jury and hence subjected to its popular scrutiny. A variance is thought to be bad because it may deprive the defendant of notice of the details of the charge against him and protection against re-prosecution." 413 F.2d at 1071-1072.

See also Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). The government's theory of guilt under the two contradictory statutes would of course necessarily be completely dissimilar. No one can say whether the Grand Jury under the facts present would have indicted the appellant for violation of Title 18, U.S.C. Section 661. All we know is that the Grand Jury did not indict Beard under this section. We cannot indulge in speculation as to this point. Rather, the conviction based upon such a shaky foundation, resting upon such uncertainty, must be reversed. The cases cited by appellee, supra, are applicable where only a technical or typographical error in the indictment is involved, where the statute involved is incorrectly set out, or the like. They are of no help here, where after the deficiencies in the government case were revealed at trial, a statute totally different and unrelated to Title 18, U.S.C. Section 13, was brought forth and relied upon as supporting conviction.

The appellee also seeks to apply Criminal Rule 7(c)'s admonition that "Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice." This was not a simple error in citation. The applicable rule we think is Criminal Rule 7(e). Rule 7(e). F. R.Crim.P., allows the court to permit informations — not indictments — to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. Observe that only informations may be amended and then only if no additional or different offense is charged.

The reason indictments may not be amended is clear. This would substitute the prosecutor's judgment for that of the constitutional body, the Grand Jury, in framing the charge against a defendant. This is the fatal flaw in the proceedings below. Ex Parte Bain, supra; Stirone v. United States, supra; Russell v. United States, supra. Compare Thomas v. United States, 5 Cir. 1967, 398 F.2d 531; Overstreet v. United States, 5 Cir. 1963, 321 F.2d 459 (but see dissenting opinion).

The action of appellant's counsel, in withdrawing his motions for mistrial and continuance and proceeding with the trial without further objection, may not, as suggested by the appellee's brief, be construed as a waiver of the denial of the motion to dismiss the indictment because of demonstrated fatal variance. The prior denial of constitutional rights was by then⁴ an accomplished fact.⁵

The considerations which require reversal here were not present in a case strongly relied upon by appellee, United States v. Armata, D.C.Mass.1961, 193 F.Supp. 624, assuming that Armata was correctly decided.⁶

First, the Armata indictment charged that Title 18, U.S.C., Section 661, was violated by "taking, and carrying, away with intent to steal or purloin * * * $532 from the Children's Christmas Party Fund of the Civilian Welfare Funds Director of said Boston Naval Shipyard", so that the charge as made included all types of theft. In the case before us, on the other hand, the narrow and specific indictment...