United States v. Gordon

• Decision Date: 19 February 1958
• Docket Number: No. 11929.,11929.
• Citation: 253 F.2d 177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth C. GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

253 F.2d 177 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth C. GORDON, Defendant-Appellant.

No. 11929.

United States Court of Appeals Seventh Circuit.

February 19, 1958.

George F. Callaghan and Anna R. Lavin, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., and John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, FINNEGAN, SCHNACKENBERG, HASTINGS and PARKINSON, Circuit Judges.

PARKINSON, Circuit Judge.

A four-count indictment was returned by the 1950 Grand Jury for the Northern District of Illinois, Eastern Division, against Kenneth C. Gordon, Kenneth J. MacLeod and Albert Swartz. Counts 1 and 3 alleged that defendants unlawfully possessed goods stolen while being transported in interstate commerce, in violation of Title 18 U.S.C.A. § 659, and counts 2 and 4 that they caused the property described in counts 1 and 3 to be further transported in interstate commerce, in violation of Title 18 U.S.C.A. § 2314. Swartz died previous to trial. Gordon and MacLeod were found guilty by a jury on all counts, upon which judgment was entered by the court. On appeal, this court affirmed. United States v. Gordon, 7 Cir., 196 F.2d 886. The Supreme Court allowed certiorari and reversed. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447.

Upon a second trial, MacLeod was acquitted on all counts, by a directed verdict as to counts 3 and 4, and by a jury verdict as to counts 1 and 2. Gordon was found guilty on all counts and sentenced by the court to imprisonment for a period of seven years on each count, the sentences to be served concurrently. From this judgment Gordon appeals.

Defendant asserts and argues numerous errors as grounds for reversal. In abbreviated form, the issues thus raised are: (1) counts 1 and 3 of the indictment are void in the absence of an allegation as to the value of the stolen property alleged to have been possessed by defendants; (2) the proof is insufficient to sustain the jury verdict, particularly as to counts 2 and 4; (3) there is a fatal variance between the proof and the allegations of the indictment as to value and description of the property; (4) the court erred in its admission and rejection of testimony; (5) the court erred in denying defendant's challenge to the jury panel, based upon a distribution to the jurors of a "Handbook for Jurors"; (6) the court erred in failing to poll the jury regarding newspaper publicity, and (7) the court deprived defendant of his constitutional right to counsel.

In view of the conclusion which we have reached relative to a disposal of the case, we shall consider only those issues which we regard as decisive. In the interest of brevity, we refer to our opinion on the first appeal reported at 196 F.2d 886 as well as to that of the Supreme Court for a more detailed statement of facts than is necessary to make for our present purposes.

It was shown that Kodak film shipped by truck from Rochester, New York to Chicago, Illinois was stolen while in transit. A portion of this film was subsequently found in Detroit, Michigan, in the possession of one Marshall, or in the possession of persons who had received it from him. He was the government's principal witness in the present as well as in the previous trial. Marshall testified concerning two trips made from Detroit to Chicago in his car, accompanied by Swartz (named as a defendant but since deceased), on July 20 and July 27, 1950. On the occasion of these visits he contacted Gordon and MacLeod, from whom he procured certain film which was stored in a garage jointly controlled by them. Both Gordon and MacLeod on one or both occasions assisted Marshall in loading the film into his car, which bore Michigan license plates. In this car the film on each occasion was transported by Marshall, accompanied by Swartz, from Chicago to Detroit. Defendant Gordon as a witness contradicted the testimony of Marshall on all material matters. We are not concerned, of course, with this conflicting testimony because in the present posture of the case, the proof must be considered in the light most favorable to the government. Moreover the record furnishes considerable corroboration for Marshall's testimony.

No question is raised as to the sufficiency of the proof relative to the interstate transportation of the film from Rochester, New York to Chicago, Illinois, that it was stolen while in transit, or as to its interstate transportation by Marshall from Chicago, Illinois to Detroit, Michigan on the two occasions mentioned. It is neither alleged nor claimed that either Gordon or the other named defendants stole the film. As already noted, 1 and 3 are possession counts, and 2 and 4, transportation counts. The former two counts allege that the defendants had possession of the film, with knowledge that it had been stolen. The latter two counts allege that the defendants did "knowingly transport and cause to be transported in interstate commerce" the merchandise described in counts 1 and 3.

In our opinion on the first appeal we found it unnecessary to decide the issue as to the sufficiency of counts 1 and 3, on the well recognized theory that the sentence, being general, was supported by counts 2 and 4. We have now reached the conclusion, for reasons subsequently stated, that the proof is insufficient to support the judgment on counts 2 and 4. Therefore, it becomes essential to consider defendant's attack on the sufficiency of counts 1 and 3.

Section 659, upon which these counts are predicated, provides so far as here material that "Whoever * * * has in his possession any such goods or chattels previously stolen from an interstate shipment, knowing the same to have been embezzled or stolen," shall be "fined not more than $5,000 or imprisoned not more than ten years, or both; but if the amount or value of such * * goods or chattels does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both." Title 18 U.S.C.A. § 1, entitled "Offenses classified," provides: "(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony. (2) Any other offense is a misdemeanor." It is at once apparent that the statute under consideration describes two classes of offenses, dependent upon the value of the property, that is, a felony if the value exceeds $100, and a misdemeanor if the value does not so exceed. Neither count 1 nor count 3 contains any allegation, by reference or otherwise, as to the value of the property alleged to have been unlawfully possessed. Are the counts for this reason insufficient as a matter of law? We hold they are.

It is the universal rule, so far as we are aware, that "each count in an indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356; Walker v. United States, 9 Cir., 176 F.2d 796, 798; United States v. Denny, 7 Cir., 165 F.2d 668, 670; McClintock v. United States, 10 Cir., 60 F.2d 839, 840. It is true, of course, that one count may be aided by incorporating the allegations of another count by reference. Both the Walker and McClintock cases so hold. To the same effect, United States v. Taylor, 2 Cir., 207 F.2d 437, 438, with Supreme Court citations in support of the proposition.

We know of no Federal case where the precise issue has been decided. However, in Cartwright v. United States, 5 Cir., 146 F.2d 133, the court, in discussing the statutory distinction between a felony and a misdemeanor, stated (page 135):

"It is, therefore, well settled that where the grade of larceny, and consequently the punishment, depend on the value of the property, it is essential that the value of the property defendant is charged with having taken be alleged and proved, 32 Am. Jur., Sec. 112, p. 1023."

In Illinois, it is definitely settled that there must be both allegation and proof of value where the place of imprisonment, the length of sentence or the amount of fine is dependent thereon; further, that proof of value in the absence of an allegation is as futile as an allegation without proof. Brown v. People, 173 Ill. 34, 37, 50 N.E. 106; People v. Jackson, 312 Ill. 611, 612, 144 N.E. 314; People v. Swinson, 406 Ill. 233, 236, 92 N.E.2d 758.

The government points to the fact that counts 2 and 4 incorporate by reference the goods set forth in counts 1 and 3, and allege a value of more than $5,000. This allegation, while an aid to counts 2 and 4 is of no aid to 1 and 3, which, as noted, contain no reference to counts 2 and 4. The government argues "that after reading the indictment in this case there could be no doubt in anyone's mind that the goods set forth in counts 1 and 3 were valued at more than $100." Assuming such to be true, the argument is beside the issue. Each count must be judged on its own allegations, either those made directly or by reference. To hold that an allegation of value is not essential would place both the accused and the court in an awkward, if not intolerable, situation. A defendant should not be expected or required to plead to a count without knowledge as to whether it charges a felony or a misdemeanor. A plea of guilty to such a count would leave the court in the dark as to whether to impose sentence for a felony or misdemeanor. The government argues that it does not follow from a failure to allege value that no offense was proved. This, if true, is immaterial. The issue is a failure to allege, not a failure to prove.

The government cites Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911, 97 L. Ed. 1250; United States v. Scarlata, 3 Cir., 214 F.2d 807, 809, and United States v. Marpes, 3 Cir., 198 F.2d 186. Both the Tinder and Scarlata cases involved proceedings under Title 28 U.S.C.A. § 2255, to vacate or correct sentences. It is not shown that any question as to the sufficiency of the indictments was raised or put in issue. In the Marpes case defendant was...