United States v. Brown, 73-1168.

• Decision Date: 26 April 1974
• Docket Number: No. 73-1168.,73-1168.
• Citation: 495 F.2d 593
• Parties: UNITED STATES of America, Appellee, v. Solomon Leroy BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

495 F.2d 593 (1974)

UNITED STATES of America, Appellee, v. Solomon Leroy BROWN, Defendant-Appellant.

No. 73-1168.

United States Court of Appeals, First Circuit.

Heard March 6, 1974.

Decided April 26, 1974.

Jonathan Shapiro, Boston, Mass., by appointment of the Court, with whom Burnham, Stern & Shapiro, Boston, Mass., was on brief for defendant-appellant.

Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

Defendant was convicted under 18 U. S.C. § 371 (1970) of conspiring to utter forged United States Treasurer's checks in violation of 18 U.S.C. § 495 (1970). On this appeal, he raises numerous grounds for reversal, and urges particularly that his motion for judgment of acquittal should have been granted. Since this motion tests the sufficiency of the evidence, we must state the facts adduced at trial in some detail.

In early September 1971 certain United States Treasurer's checks prepared by the Navy Regional Finance Center in Washington, D. C. were stolen, and, in a manner unknown, made their way into the hands of one Vardell McPhatter. McPhatter, in an effort to fraudulently dispose of these checks, contacted a Boston friend named James Graham, who in turn put him in touch with one Earl Sabino, the then manager of the Grove Hall branch of the United States Trust Company in Dorchester. On the evening of September 14, McPhatter, Graham, Sabino and a fourth person, Joseph Gaddy, met at Graham's apartment in Dorchester. At this meeting, a scheme was devised where Graham and McPhatter, after forging endorsements on the stolen checks, would open various accounts under fictitious names at Sabino's bank and deposit the checks therein. This plan was put into operation the next day, when the checks, along with certain completed forms for opening the accounts, were given to Sabino by McPhatter at the bank. However, after placing the checks through a National Check Protective Service (NCPS) inquiry, Sabino found that they would not clear. Consequently, it became too risky to actually attempt to deposit the checks at the bank. When Sabino informed McPhatter of the situation, he requested that the latter come down to the bank and pick up the checks. Some days later, this was done.

On September 22, McPhatter returned to the bank and asked Sabino to cash one of the forged checks. After some hesitancy because of the presence of bank auditors, Sabino complied with this request. Two days later, McPhatter again requested Sabino to cash another of the forged checks, and again Sabino complied.

Although McPhatter was able, with Sabino's assistance, to dispose of these two stolen checks, the failure of the checks to clear the NCPS inquiry compelled the abandonment of the original plan, and resulted in the development of a new scheme to sell all the remaining forged checks in a package deal. To that end, McPhatter contacted the defendant and his associate, Nathaniel Craigmiles. On October 3, McPhatter and Graham met with the defendant and Craigmiles to discuss the disposition of the checks. At this meeting, the defendant asserted that he thought he would be able to "get rid" of the checks, but no definite plan was actually arrived at. According to Craigmiles, defendant suggested the possibility of obtaining forged identifications for the checks and McPhatter indicated that he could bring somebody up from Washington with such identifications. As this meeting ended, McPhatter gave the defendant a sample of one or two of the checks.

The following day, Craigmiles and the defendant, who still held the sample checks, went to a certain store on Washington Street in Boston owned by a person known only as Billy. Defendant entered the store alone, and returned some twenty minutes later, informing Craigmiles that Billy, who allegedly would dispose of the checks, wanted to see all the merchandise. Defendant and Craigmiles then departed and eventually returned to see McPhatter and Graham. Upon their arrival, they learned from one Evelyn Robinson that a man from Washington would arrive later in the week with the fake identifications.

On the evening of October 6, Dwight Woodley, a payroll clerk at the Navy Regional Finance Center in Washington, arrived at Logan International Airport with a package of United States government drivers' licenses, which were to serve as identification for the forged checks. Although the testimony at this point becomes somewhat confused, it appears that later that same evening, Woodley, Graham and McPhatter met with the defendant, Craigmiles and an individual named Paul at Graham's apartment. The purpose of this meeting was to arrange for the disposition of the checks, and at this time defendant informed the group that the potential buyer of the checks would "give them no money without seeing the goods."¹ Ultimately, however, various disagreements arose between McPhatter and the defendant, each asserting that the other was attempting to cheat him. As a result, defendant refused to deal further with McPhatter.

The next day, Woodley, who was staying with McPhatter at Graham's apartment, spoke to the defendant by telephone and it was agreed that the defendant would deal directly with Woodley, and no longer with McPhatter. Woodley then took the stolen checks and the identifications and left McPhatter and Graham in order to meet the defendant, Craigmiles and Paul. Upon meeting, the four men drove to Billy's store on Washington Street at which time defendant asked Woodley for the checks and identifications. Woodley, with some reluctance, turned them over. Defendant then went into the store, came out with two men, crossed the street into another building, and, twenty minutes later, returned to the car. At this point, defendant asked Woodley whether he could get some alien cards, presumably to be used for identification purposes. Woodley indicated that he could not. Defendant then went back into Billy's store, and returned some minutes later, informing Woodley that "the guy told us to come back around noon and we'll get our money." Woodley was then driven back to Graham's apartment and was told that he would be picked up again around noontime. However, unfortunately for Woodley, Graham and McPhatter, noontime came and went, without any word from the defendant. Eventually, they decided to investigate the situation, and, upon returning to Billy's store learned that they had been duped, and that the defendant had stolen the forged checks.

Meanwhile, after making off with the checks, defendant, Craigmiles and Paul drove into Boston. There, defendant deposited one check in a fictitious bank account at the State Street Bank, and Craigmiles attempted to cash another at the City Bank and Trust Company. Afterwards, the defendant and Craigmiles flew to Philadelphia, where they attempted, unsuccessfully, to dispose of the checks. Upon returning to Boston some nine days later, defendant, having failed to find a buyer, destroyed the stolen checks. Shortly thereafter all the principals involved in this somewhat bizarre operation were apprehended.

Defendant was subsequently charged in a one count indictment of conspiring with Woodley, McPhatter, Sabino and Graham to utter forged United States Treasurer's checks. Craigmiles was neither indicted, nor named as an unindicted co-conspirator. At trial, after the close of the evidence, the court instructed the jury in strict accordance with the conspiracy alleged in the indictment.

On this appeal, defendant makes a two-pronged assault on the sufficiency of the government's proof. First, he asserts that the evidence in the record fails to show that he ever actually entered into a conspiracy with the above named individuals. Second, he contends that even if the evidence were sufficient to establish his participation in some conspiracy, nonetheless such conspiracy was not a conspiracy to utter forged checks.

Defendant's initial contention can be easily disposed of. Essentially, he maintains that the evidence, taken as it must be, in the light most favorable to the government, United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), conclusively refutes his participation in any conspiracy, and establishes either (1) that defendant's relationship with the McPhatter-Woodley group was simply that of prospective buyer and seller, note 1 supra, see United States v. Braico, 422 F.2d 543, 544 (7th Cir.), cert. denied, 398 U.S. 912, 90 S.Ct. 1712, 26 L.Ed.2d 74 (1970); United States v. Ford, 324 F.2d 950, 952 (7th Cir. 1963), or (2) that virtually from the beginning, defendant intended to defraud the McPhatter-Woodley group, and thus never fully possessed the requisite agreement or "stake in the outcome" essential to a conspiracy, United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940).

While the existence of a mere buyer-seller relationship might, in an appropriate case, United States v. Braico, supra; United States v. Ford, supra, preclude a finding of conspiracy, the evidence in the instant case clearly establishes substantially more participation upon defendant's part. Indeed, the evidence strongly compels the conclusion that defendant was at no point intended to be the actual buyer of the checks, but instead agreed to work with McPhatter, Graham, and later Woodley, to locate and arrange for such a buyer. As the jury could reasonably believe, defendant's request for identifications was not intended for his immediate use, but rather was intended to sweeten any deal that could be made by defendant with a potential purchaser.² Moreover, defendant's conduct at and after his initial October 4 encounter with Billy, his comment at the October 6 meeting at Graham's apartment that the proposed buyer wanted to see all the merchandise, and his October 7 statement to Woodley that "the guy told us to...