United States v. Clark, No. 23281.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtJERTBERG, MERRILL and ELY, Circuit
Citation416 F.2d 63
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Leonard Joe CLARK, Defendant-Appellant.
Decision Date10 September 1969
Docket NumberNo. 23281.

416 F.2d 63 (1969)

UNITED STATES of America, Plaintiff-Appellee,
v.
Leonard Joe CLARK, Defendant-Appellant.

No. 23281.

United States Court of Appeals Ninth Circuit.

September 10, 1969.


Donald L. Ostrem (argued), and Leo Graybill, Jr., of Graybill, Graybill & Ostrem, Great Falls, Mont., for appellant.

Donald C. Robinson (argued), Asst. U. S. Atty., Moody Brickett, U. S. Atty., Butte, Mont., for appellee.

Before JERTBERG, MERRILL and ELY, Circuit Judges.

MERRILL, Circuit Judge:

Appellant, a civilian employee of the Government, was convicted of submission of a false claim in violation of 18 U.S.C. § 287, by submission of a false travel voucher supporting a permanent change-of-station move from Grafton, North Dakota, to Conrad, Montana.

The falsification was with respect to the date of travel. Appellant first submitted a voucher truthfully showing his arrival at Conrad on July 19, 1966. Upon

416 F.2d 64
learning that more liberal allowances had become available under the United States Air Force Joint Travel Regulations, effective July 21, 1966, he filed a corrected voucher showing his arrival date as July 21, 1966, in order to bring himself within the change in regulations. In support of the new voucher he submitted a false itinerary showing himself to be en route to Conrad until and including the 21st

The first trial of the case was held at Great Falls, Montana and ended in mistrial. The District Court then set the second trial at Helena, Montana, ninety miles away. This trial resulted in conviction. Appellant objected to the change as an impermissible change in venue. It was not a change in venue but a change among the court-created divisions of the District of Montana. We find neither abuse of discretion nor prejudice. Fed.R.Crim.P. 18.

The indictment charged acts on the part of appellant which would serve to bring the offense within either the false claims section (§ 287) or that dealing with false statements (18 U.S.C. § 1001). The penalties provided are the same. The indictment contained a notation that the offense charged was under § 1001. Appellant moved to dismiss the indictment as charging him under the wrong section. The District Court did not dismiss the indictment but, adopting appellant's theory, changed the citation on the indictment to § 287. Appellant here contends that the only proper course was to dismiss the indictment.

It seems well established that the court has no power to alter the substance of the indictment. E....

To continue reading

Request your trial
12 practice notes
  • U.S. v. Gordon, Nos. CA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 16, 1981
    ...of a conviction if the error or omission did not mislead the defendant to his prejudice." (Emphasis added). In United States v. Clark, 416 F.2d 63 (9th Cir. 1969), a Ninth Circuit decision relying on Rule 7(c)(3), this Court upheld the district court's refusal to dismiss an indictment where......
  • U.S. v. Lewis, No. 74-1242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 8, 1974
    ...required. Other circuits have reached results consistent with our decision of the Rule 18 issue. For example, in United States v. Clark, 416 F.2d 63, 64 (1969), the Ninth Circuit held that after one federal trial ended in a mistrial and a second trial was held 90 miles away at another locat......
  • US v. Hunter, No. 92-CR-80769-DT
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 24, 1994
    ...dealer records, the Court will permit it to amend the indictment to make the correction. See Fed.R.Crim.P. 7(c); United States v. Clark, 416 F.2d 63, 64 (9th Cir.1969) (Fed.R.Crim.P. 7 allows the government to amend citation to statute in indictment when facts alleged in the indictment supp......
  • United States v. Clizer, No. 71-2209.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1972
    ...S.Ct. 223, 75 L.Ed. 610; United States v. Nixon, 1914, 235 U.S. 231, 235, 35 S.Ct. 49, 59 L.Ed. 207; United States v. Clark, 9 Cir., 1969, 416 F.2d 63, 64. Cf. Rule 7(c), F.R.Crim.P. Paragraph I of Count I stated that "Wayne B. Clizer did commit perjury before the Grand Jury impanelled and ......
  • Request a trial to view additional results
12 cases
  • U.S. v. Gordon, Nos. CA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 16, 1981
    ...of a conviction if the error or omission did not mislead the defendant to his prejudice." (Emphasis added). In United States v. Clark, 416 F.2d 63 (9th Cir. 1969), a Ninth Circuit decision relying on Rule 7(c)(3), this Court upheld the district court's refusal to dismiss an indictment where......
  • U.S. v. Lewis, No. 74-1242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 8, 1974
    ...required. Other circuits have reached results consistent with our decision of the Rule 18 issue. For example, in United States v. Clark, 416 F.2d 63, 64 (1969), the Ninth Circuit held that after one federal trial ended in a mistrial and a second trial was held 90 miles away at another locat......
  • US v. Hunter, No. 92-CR-80769-DT
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 24, 1994
    ...dealer records, the Court will permit it to amend the indictment to make the correction. See Fed.R.Crim.P. 7(c); United States v. Clark, 416 F.2d 63, 64 (9th Cir.1969) (Fed.R.Crim.P. 7 allows the government to amend citation to statute in indictment when facts alleged in the indictment supp......
  • United States v. Clizer, No. 71-2209.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1972
    ...S.Ct. 223, 75 L.Ed. 610; United States v. Nixon, 1914, 235 U.S. 231, 235, 35 S.Ct. 49, 59 L.Ed. 207; United States v. Clark, 9 Cir., 1969, 416 F.2d 63, 64. Cf. Rule 7(c), F.R.Crim.P. Paragraph I of Count I stated that "Wayne B. Clizer did commit perjury before the Grand Jury impanelled and ......
  • 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