United States v. Beard, No. 17471

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtKALODNER, VAN DUSEN and STAHL, Circuit
Citation414 F.2d 1014
PartiesUNITED STATES of America v. William Edward BEARD, Appellant. UNITED STATES of America v. Harold GARRISON, Appellant.
Docket NumberNo. 17471,17472.
Decision Date20 August 1969

414 F.2d 1014 (1969)

UNITED STATES of America
v.
William Edward BEARD, Appellant.

UNITED STATES of America
v.
Harold GARRISON, Appellant.

Nos. 17471, 17472.

United States Court of Appeals Third Circuit.

Argued June 5, 1969.

Decided August 20, 1969.


Arthur A. Kusic, Harrisburg, Pa., for appellants.

Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., Bernard J. Brown, U. S. Atty., Scranton, Pa., for appellee.

Before KALODNER, VAN DUSEN and STAHL, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

On February 13, 1967, defendants were separately indicted in two counts for violation of the following offense described in 18 U.S.C. § 2314:1

414 F.2d 1015
"Whoever, with unlawful or fraudulent intent, transports in interstate * * * commerce any falsely made, forged, altered, or counterfeited securities * * *, knowing the same to have been falsely made, forged, altered, or counterfeited; * * *
* * * * * *
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

Without objection by defendants, a joint trial of both defendants was held in November 1967 and a verdict of guilty as to each defendant on each count was returned. After denial of motions for new trial, judgments of conviction were entered on the verdicts on July 10, 1968. These appeals, filed later that month, challenge the judgments of conviction.

For the first time, defendants contended on appeal that the indictments were fatally defective for failure "to state one essential element" of the above-described crime, namely, "unlawful or fraudulent intent."2

Since the counts of these indictments do not allege the essential element of "unlawful or fraudulent intent," this case is governed by United States v. Manuszak, 234 F.2d 421, 423 (3rd Cir. 1956), where Judge Staley said:

"For this reason the count is a nullity as a charge of a federal crime and should be quashed. The defect is not one of form which will be overlooked after a verdict when no prejudice is shown. Although after a verdict every intendment should be indulged in support of the count, neither the verdict nor the evidence supporting the verdict can be used as a basis for dispensing with the rule that the indictment must state all the essential ingredients of the crime."

The Government's contention that the failure to allege in these indictments the statutorily prescribed intent is a "technical deficiency which did not prejudice the accused" is not supported by the federal cases. See Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959),3 where the court said:

"But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. The use of indictments in all cases warranting serious punishment was
414 F.2d 1016
the rule at common law. Citing cases. The Fifth Amendment made the rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings."

See, also, United States v. Britton, 107 U.S. 655, 2 S.Ct. 512, 27 L.Ed. 520 (1882); United States v. Tornabene, 3 Cir., 222 F.2d 875, 878 (1955);4 cf. Rosen v. United States, 161 U.S. 29, 33, 16 S.Ct. 434, 40 L.Ed. 606 (1896).

In United States v. Blackshere, 282 F.Supp. 846 (D.N.M.1968), the court held that an allegation that the defendant knew the property to be stolen was insufficient to charge that an act was caused to be done "wilfully" under 18 U.S.C. § 2, using this language at 847:

"The allegation that the defendant knew the cattle to have been stolen does not supply the indictment with the necessary element of willfulness, for it cannot be said to have the same meaning."

Although in the instant case the trial judge included in his charge a reading of the offense as described in 18 U.S.C. § 2314 and further instructed the jury that an essential element of the crime is action "with an unlawful or fraudulent intent,"5 the grand jury, by returning the indictment as worded, made no finding of probable cause to believe that an essential element of this federal crime, namely "unlawful or fraudulent intent," was present. In Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240 (1962), the court pointed out:

"To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him."

See, also, Van Liew v. United States, 321 F.2d 664, 669 (5th Cir. 1963). In Stirone v. United States, 361 U.S. 212, 215, 217-218, 80 S.Ct. 270, 272, 273, 4 L.Ed.2d 252 (1960), the court said:

"The crime charged here is a felony and the Fifth Amendment requires that prosecution be begun by indictment.6
* * * * * *
"* * * a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. * * *
414 F.2d 1017
"The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge."

This court has rejected the Government's contention that F.R.Crim.P. 347 precludes a challenge to the sufficiency of the indictment which is first made on appeal. See United States v. Manuszak, supra, 234 F.2d at 422.8

In view of the foregoing, it is not necessary to consider the remaining arguments urged by defendants as requiring reversal of their convictions, except to note that pre-trial examination of witnesses to a lineup is...

To continue reading

Request your trial
32 practice notes
  • United States v. Lewis, No. 10–2931.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 9 Septiembre 2014
    ...(failure to allege a subsequent overt act in a prosecution for violation of the Travel Act, 18 U.S.C. § 1952(a)); United States v. Beard, 414 F.2d 1014, 1015 (3d Cir.1969) (failure to allege “unlawful or fraudulent intent” in prosecution for interstate transport of stolen property, 18 U.S.C......
  • State v. Peters, No. 87-652
    • United States
    • Court of Appeal of Florida (US)
    • 15 Noviembre 1988
    ...or trivial. See Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041, 1048 (1959); United States v. Beard, 414 F.2d 1014 (3d Cir.1969); Ratner v. Miami Beach First National Bank, 362 So.2d 273, 274 (Fla.1978); Devco Development Corp. v. Hooker Homes, Inc., 518 So.2d 922,......
  • State v. Sprattling, No. 22501.
    • United States
    • Supreme Court of Hawai'i
    • 17 Septiembre 2002
    ...in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, United States v. Beard, 414 F.2d 1014 (3rd Cir.1969); Carlson v. United States, 296 F.2d 909 (9th Cir.1961), for that would constitute a denial of due process. Thompson v. Louisville......
  • State v. Ball
    • United States
    • New Jersey Superior Court – Appellate Division
    • 6 Agosto 1993
    ...import. Id. at 1238-39 (emphasis added). Accord United States v. Wabaunsee, 528 F.2d 1, 2-3 (7th Cir.1975); United States v. Beard, 414 F.2d 1014, 1015-16 (3d Cir.1969). Such is not the case In United States v. Hooker, 841 F.2d 1225, 1227 (4th Cir.1988), also relied upon by defendants, the ......
  • Request a trial to view additional results
32 cases
  • United States v. Lewis, No. 10–2931.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 9 Septiembre 2014
    ...(failure to allege a subsequent overt act in a prosecution for violation of the Travel Act, 18 U.S.C. § 1952(a)); United States v. Beard, 414 F.2d 1014, 1015 (3d Cir.1969) (failure to allege “unlawful or fraudulent intent” in prosecution for interstate transport of stolen property, 18 U.S.C......
  • State v. Peters, No. 87-652
    • United States
    • Court of Appeal of Florida (US)
    • 15 Noviembre 1988
    ...or trivial. See Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041, 1048 (1959); United States v. Beard, 414 F.2d 1014 (3d Cir.1969); Ratner v. Miami Beach First National Bank, 362 So.2d 273, 274 (Fla.1978); Devco Development Corp. v. Hooker Homes, Inc., 518 So.2d 922,......
  • State v. Sprattling, No. 22501.
    • United States
    • Supreme Court of Hawai'i
    • 17 Septiembre 2002
    ...in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, United States v. Beard, 414 F.2d 1014 (3rd Cir.1969); Carlson v. United States, 296 F.2d 909 (9th Cir.1961), for that would constitute a denial of due process. Thompson v. Louisville......
  • State v. Ball
    • United States
    • New Jersey Superior Court – Appellate Division
    • 6 Agosto 1993
    ...import. Id. at 1238-39 (emphasis added). Accord United States v. Wabaunsee, 528 F.2d 1, 2-3 (7th Cir.1975); United States v. Beard, 414 F.2d 1014, 1015-16 (3d Cir.1969). Such is not the case In United States v. Hooker, 841 F.2d 1225, 1227 (4th Cir.1988), also relied upon by defendants, the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT