United States v. Branan, 71-1263-71-1265.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 457 F.2d 1062
• 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.
• Decision Date: 31 March 1972

457 F.2d 1062 (1972)

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.

Nos. 71-1263-71-1265.

United States Court of Appeals, Sixth Circuit.

March 31, 1972.

457 F.2d 1063

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.

KENT, Circuit Judge.

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. * * *."

457 F.2d 1064

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:

"* * * a conviction under the indictment would not pose as a bar to further prosecution of criminal actions vaguely alleged in same.

It does not succinctly advise the defendants what they are called upon to defend, nor the particular times they may be called upon to account for their whereabouts."

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,

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