United States v. Branan
| Decision Date | 31 March 1972 |
| Docket Number | No. 71-1263-71-1265.,71-1263-71-1265. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clifford BRANAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fred Jackson FRITTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Olen Lee HENDON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
B. Bruce Guthrie, Chattanooga, Tenn. (Court Appointed), for appellants Branan and Hendon.
B. Stewart Jenkins, Chattanooga, Tenn. (Court Appointed), for appellant Fritts.
Robert E. Simpson, Knoxville, Tenn. (John L. Bowers, Jr., U. S. Atty., George H. Garrett, Asst. U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.
Before WEICK, EDWARDS and KENT, Circuit Judges.
On May 12, 1965, a Grand Jury sitting in the Eastern District of Tennessee, returned a Five-Count Indictment against a total of five individuals (not all of whom were included in each Count), among whom were the three appellants in this case.
After jury trial each of the appellants was found guilty as charged. By an order entered on November 6, 1970, this Court reversed the convictions and remanded the cases for a new trial. A second trial was held commencing on January 7, 1971, and on January 12, 1971 the jury returned a verdict finding each of the defendants guilty of the offense charged in Count I; the appellant Branan innocent, and the appellant Hendon guilty of the offense charged in Count II; the appellant Hendon innocent, and the appellant Branan guilty of the offense charged in Count III; and the appellant Fritts guilty of the offense charged in Counts IV and V. From these convictions this appeal is taken.
The appellants raise several issues with respect to the indictment which was returned against them and also claim errors in the trial judge's conduct of the trial. The appellants claim that the language of Count I, the conspiracy count, is so broad that they were not sufficiently informed of the nature of the offense charged in Count I of the Indictment. We do not find it necessary to consider the effect of a second trial upon the claimed ignorance of the appellants as to the offense charged in Count I. Rule 7(c), Fed.R.Crim.P., 18 U.S.C.A., requires:
"The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * *."
The motion upon which the appellants rely is very short. It states:
"Come now the above defendants and move the court to dismiss the indictment."
The brief in support of the motion contains no authorities and recites only:
The appellant Fritts did not file a written motion but the trial judge gave him the benefit of the motion filed on behalf of the other two appellants.
This Court has carefully considered the language of Count I of the Indictment and concludes that it was at least adequate to inform the appellants of the charges against them and to prevent any possibility of double jeopardy. As stated by the United States Supreme Court in Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927):
It is well settled that in an indictment for conspiring to commit an offense—in which the conspiracy is the gist of the crime—it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense, Thornton v. United States, 271 U.S. 414, 423, 46 S.Ct. 585, 70 L.Ed. 1013; Jelke v. United States (C.C.A.7), 255 F. 264, 275; Anderson v. United States (C.C. A.8), 260 F. 557, 558; Wolf v. United States (C.C.A.7), 283 F. 885, 886; Goldberg v. United States (C.C.A.8), 277 F. 211, 213. In charging such a conspiracy "certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary." Williamson v. United States, supra, 207 U.S. 447, 28 S.Ct. 163; Goldberg v. United States, supra, 277 F. 213.
In Davis v. United States, 253 F.2d 24 (6th Cir. 1958), this Court considered an indictment charging a conspiracy. Speaking at 253 F.2d 25, the Court stated:
Appellant disregards the fact that the indictment in the present case contains more than the allegation that defendants conspired to "carry on the business of retail liquor dealers." Prior to that allegation the indictment charges that the defendants conspired to commit certain acts "made offenses against the United States of America by Section 5691, Title 26 United States Code." This reference to a specific section of the statutes was sufficient to meet the test that the indictment must sufficiently apprise the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, that the record show with accuracy to what extent he may plead a former acquittal or conviction. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Debrow, 346 U. S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92. See also: Kempe v. United States, 8 Cir., 151 F.2d 680, 684; United States v. Goldberg, 8 Cir., 225 F.2d 180, 183, 185; Contreras v. United States, 5 Cir., 213 F.2d 96; Reynolds v. United States, 5 Cir., 225 F.2d 123, 125.
And see also United States v. Mixon, 374 F.2d 20 (6th Cir. 1967). It is clear that the indictment in the instant case meets the test established in Davis. We do not find that the allegations in any Count of the Indictment are vague as claimed in the motion filed by the appellants, and no motion for a bill of particulars was ever made. We are in accord with the language of the Court in Cefalu v. United States, 234 F.2d 522, 524 (10th Cir. 1956):
And the further accepted general rule is that if the indictment charges in general language all of the essential elements of the offense with sufficient certainty that it is not open to attack on the ground of being fatally infirm but fails to inform the accused with sufficient particularity of the charges against which he will have to defend at the trial, the remedy is to move for a bill of particulars. Billingsley v. United States, 8 Cir., 16 F. 2d 754; O\'Neill v. United States, 8 Cir., 19 F.2d 322.
Accord: Adams v. United States, 375 F.2d 635 (10th Cir. 1967).
A further objection to the Indictment by appellants Hendon and Branan was first raised on this appeal. They point out that Counts II and III of the Indictment lack any allegation of the location where the alleged offenses were committed. In a multiple count indictment each count must be considered as a separate indictment for purposes of ascertaining its sufficiency. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Russo, 335 F.2d 299 (7th Cir. 1964); United States v. Andreadis, 366 F.2d 423 (2nd Cir. 1966). Rule 7(c), Fed.R. Crim.P., contains no requirement that any jurisdictional statement must appear in the indictment. This is in sharp contrast to the requirement of Rule 8(a), Fed.R.Civ.P.
There can be no question about the right of a person charged with crime to be tried in the forum (venue) in which the crime is alleged to have been committed. Article III, § 2, Constitution of the United States; Sixth Amendment, Constitution of the United States; Rule 18, Fed.R.Crim.P. This venue right may be waived. Earnest v. United States, 198 F.2d 561 (6th Cir. 1952); and see also United States v. Choate, 276 F.2d 724 (5th Cir. 1960) and Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). There can be no question about the obligation of the Government to establish proper venue in a criminal prosecution. As stated in United States v. Jones, 174 F.2d 746, 748 (7th Cir. 1949):
The Courts which have considered the issue are in accord. United States v. Provoo, 215 F.2d 531 (2nd Cir. 1954); Hill v. United States, 284 F.2d 754 (9th Cir. 1960); United States v. Budge, 359 F.2d 732 (7th Cir. 1966), and the Courts have not hesitated to reverse a conviction where the Government failed to prove venue. Cain v. United States, 12 F.2d 580 (8th Cir. 1926); Brightman v. United States, 7 F.2d 532 (8th Cir. 1925); United States v. Jones, 174 F.2d 746 (7th Cir. 1949).
The necessity for proof of venue does not, however, require an allegation of venue in the indictment itself. When presented with the issue the Court in Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964), stated as follows at page 733 of 314 F.2d:
To the same effect is Hemphill v. United States, 392 F.2d 45, 47 (8th Cir. 1968), where the Court commented:
"Allegations of * * * venue are no more essential elements of an indictment than the name of a purchaser of narcotics."
While we do not suggest that as a general practice we would countenance the lack of allegations of venue in an indictment, we do not...
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