United States v. Crowder

• Decision Date: 14 June 1965
• Docket Number: No. 15613.,15613.
• Citation: 346 F.2d 1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas CROWDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

346 F.2d 1 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas CROWDER, Defendant-Appellant.

No. 15613.

United States Court of Appeals Sixth Circuit.

December 17, 1964.

Rehearing Denied June 14, 1965.

Edward A. Craig, Detroit, Mich., for appellant.

Sanford Rosenthal, Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Paul D. Borman, Asst. U. S. Atty., Detroit, Mich., for appellee.

Before MILLER, CECIL and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Defendant Nicholas Crowder appeals from conviction under an indictment charging him with conspiracy to transport and to cause to be transported in interstate commerce twelve specified stolen and forged Bondified Money Orders on the City National Bank and Trust Company, Chicago, in violation of 18 U.S.C.A. §§ 371, 2314. Neither of the grounds urged for reversal is meritorious.

An agent of the Federal Bureau of Investigation testified that Crowder had admitted to being involved with a large number of "very hot" money orders. The agent identified 235 money orders offered in evidence as those he had seized in an apartment on April 13, 1962. The occupant of the apartment, one Donna Brown, testified that during the early hours of a day in April, 1962, the defendant-appellant, Crowder, and others had been engaged in filling in blank money orders. She said that these money orders were seized the day after the above activity had taken place in the apartment. Appellant contends that because the witness Brown expressed her recollection that the filling in of the money orders occurred about April 25 to 28, which dates were later than the day on which the FBI agent had seized them, her evidence should not have been received as corroboration of Crowder's involvement with the money orders seized by the agent. The witness Brown, however, expressly acknowledged that she could "not exactly" remember the date, and at one point stated that the orders taken to her apartment were seized "the following day." It is quite clear that the jury could properly interpret her testimony as relating to the night before the money orders were seized.

A more serious contention raised by Crowder is that none of the twelve money orders specified in the indictment were covered by the evidence. The agent who had seized the 235 money orders in the Brown apartment identified them as being contained in a package which was introduced as an exhibit. It was shown that these orders fell into a series between numbers AY-562,211 and AY-562,400 and between numbers AY-578,601 and AY-578,800. All but one of the numbers specified in the indictment would fall within these series, but it was testified that "there were numbers skipping in between." The record was then left without specific proof that the particular numbers set forth in the indictment were in fact among those in the package. Accepting that under such circumstances there was a failure of proof in this regard, we are faced with the questions whether, assuming the offense as charged has otherwise been made out, this variance from the indictment was fatal to the verdict and judgment of conviction, or amounted, as claimed by appellant, to a failure to prove the corpus delicti.

The Federal Rules of Criminal Procedure provide that "any * * * variance which does not affect substantial rights shall be disregarded." R. 52 (a). This Court has long ago announced the test to be followed in assessing the effect of a variance:

"the controlling consideration should be whether the charge was fairly and fully enough stated to apprise defendant of what he must meet, and to protect him against another prosecution, and whether those particulars in which the proof may differ in form from the charge support the conclusion that respondent could have been misled to his injury." Harrison v. United States, 200 F. 662, 673 (CA 6, 1912).

See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314, 1318 (1935).

Turning first to the question whether Crowder could have been misled by the specification in the indictment, it is difficult to imagine how the variance could have injured him unless his defense was that he had conspired only with respect to money orders bearing different serial numbers. Compare Cortez v. United States, 328 F.2d 51 (CA 5, 1964); Strauss v. United States, 311 F.2d 926 (CA 5, 1963), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963); United States v. McCormick, 309 F.2d 367 (CA 7, 1962), cert. denied, 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963); Johnson v. United States, 195 F.2d 673 (CA 8, 1952); United States v. Cox, 147 F.2d 587 (CA 7, 1945), cert. denied, 325 U.S. 858, 65 S.Ct. 1194, 89 L.Ed. 1978 (1945); United States v. Drexel, 56 F.2d 588 (CA 2, 1932); Green v. United States, 28 F.2d 965 (CA 8, 1928); Israel v. United States, 3 F.2d 743 (CA 6, 1925). Instead, Crowder's defense was that he had refused to have anything to do with any of the bondified money orders. We believe that the nature of the defense offered is crucial to the claim of prejudice, and that the defense offered in the present case obviates the possibility of any prejudice from the variance.

Turning to the need for protecting Crowder against subsequent jeopardy for the same offense, it appears to be settled that the evidence actually offered at the trial may be adduced to demonstrate the precise circumstances upon which his conviction rested. Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L.Ed.2d 240 (1962); Bartell v. United States, 227 U.S. 427, 433, 33 S.Ct. 383, 57 L.Ed. 583, 585 (1913); Dunbar v. United States, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 390, 392 (1895); United States v. Dickerson, 337 F.2d 343, 347 (CA 6, 1964); Case v. United States, 6 F.2d 530, 531 (CA 9, 1925); United States v. Merrick, 207 F. Supp. 929, 931 (W.D.Mo.1962). Thus the fact that the indictment formally relates only to money orders not specifically identified does not threaten to undermine Crowder's protection against subsequent prosecution for the same offense.

Federal criminal procedure has evolved far from the formalism which once might have held the present variance fatal. We decline to hold that the situation discussed calls for reversal of Crowder's conviction.

Judgment affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

Appellant's petition for rehearing suggested our consideration of points not directly raised or argued in the District Court or in this Court. We, nevertheless, took notice of them and ordered further argument on the following questions.

1) Does Plaintiff-Appellee contend that conviction may be based solely on proof of conduct of defendant following return of the indictment?

2) If conviction may not be so based, may proof of such conduct be adduced to corroborate proof of conduct occurring prior to return of the indictment?

3) If such proof may be used as suggested in question 2, was there sufficient proof of preindictment conduct in the present case to warrant such corroboration?

We have considered the arguments directed to these points and conclude that the requested rehearing should be denied.

1) May conviction rest solely on postindictment conduct?

The government concedes that testimony as to Crowder's activities in Donna Brown's apartment on April 13, 1962, would not, standing alone, be sufficient to convict him of participating...