United States v. Gray

• Decision Date: 26 July 1972
• Docket Number: No. 72-1030.,72-1030.
• Parties: UNITED STATES of America, Appellee, v. Matthew GRAY, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

464 F.2d 632 (1972)

UNITED STATES of America, Appellee, v. Matthew GRAY, Jr., Appellant.

No. 72-1030.

United States Court of Appeals, Eighth Circuit.

Submitted June 15, 1972.

Decided July 26, 1972.

Rehearing Denied August 18, 1972.

COPYRIGHT MATERIAL OMITTED

Glen C. Schomburg, Kirkwood, Mo., for appellant.

David W. Harlan, Asst. U. S. Atty., Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before ROSS and STEPHENSON, Circuit Judges, and URBOM,^* Chief District Judge.

URBOM, Chief District Judge.

The defendant Matthew Gray, Jr. was indicted by a federal grand jury and, after a jury trial, was convicted on two counts of transporting in interstate commerce falsely made, forged and counterfeited securities, namely, two money orders of the American Express Company, in violation of Title 18 U.S.C. § 2314. Following his jury conviction, the district court sentenced the defendant to five years' imprisonment on each count, to run concurrently. A multitude of issues has been presented on appeal, including the right to obtain grand jury minutes, the constitutionality of 18 U.S.C. § 2314, a plethora of evidentiary rulings, sufficiency of the evidence as to mens rea, the propriety of numerous instructions given to the jury, and the effective assistance of counsel at trial.

All the issues presented to the court in the brief and reply brief submitted by the appellant's court-appointed counsel¹ have been carefully considered. We affirm the judgment of conviction.

During Gray's one-day trial on December 13, 1971, the government called 13 witnesses in support of its charge and after the conclusion of the government's case the jury was instructed. On the same day the jury returned a verdict of guilty on both counts. The charges against Gray arose out of two incidents in September, 1970. On both occasions, the testimony shows, Gray cashed American Express money orders in St. Louis, Missouri, which were drawn on and payable by the American Express Company in New York, New York. These money orders had been taken from Sam's Salvage Market on September 2, 1970. Sam DeWoskin, the owner and operator of Sam's Salvage Market, testified over the objection of defense counsel that the American Express Company money orders had been stolen from his place of business. Later by letter DeWoskin notified the American Express Company as to the loss. Further, DeWoskin testified that the government's Exhibits 2 and 3, which were the American Express Company money orders cashed by Gray and listing Gray's name as the payor, were part of those taken from his store. On September 4, 1970, Gray cashed Exhibit 2, an American Express money order in the amount of $152.00, at the Barnes Hospital. The hospital cashier, Wilma Truelove, testified that before cashing the money order she received the consent of the hospital employee in charge of patient accounts. Apparently, Gray was permitted to cash the money order because he had a clinic account with the hospital. The other money order, Exhibit 3, was for the amount of $69.33 and was negotiated on September 3, 1970, to Gray's landlord, Phil Vonder Haar, for rent.

Frank Coverly, an employee of the American Express Company money order division, testified that the two money orders involved Exhibits 2 and 3 were issued by the American Express Company. During the course of the direct examination of Coverly, defense counsel objected to the government counsel's questions to the witness concerning the report of the loss apropos Exhibits 2 and 3. The basis of the objection to the trial court was that the defendant was not able to confront the individual making the report to Coverly. The district court overruled that objection.²

Additional evidence was introduced that the defendant had cashed money orders drawn on the Consumer Money Order Corporation. He was not charged with passing those money orders, and the evidence of those transactions sought to establish mens rea.

Neither the defendant nor any defense witness testified.

I. THE GRAND JURY MINUTES

It is the contention of the defendant that his Fifth Amendment right was violated because the grand jury made no written record of its proceedings. Two recent cases of this court, United States v. Franklin, 429 F.2d 274 (8th Cir. 1970), and United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), control here. In Harflinger this court stated:

"We find no constitutional right to have grand jury proceedings recorded. The trial court properly denied Harflinger\'s pretrial motion to inspect the grand jury minutes."

II. MOTION FOR BILL OF PARTICULARS

In his motion for a bill of particulars Gray requested:

1. The manner in which the money orders were caused to be transported in interstate commerce;

2. The manner in which they were falsely made;

3. The facts by which the defendant knew they were falsely made.

It is axiomatic that a motion for a bill of particulars is addressed to the sound discretion of the trial court. Pines v. United States, 123 F.2d 825 (8th Cir. 1941) and Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968). We find no abuse of discretion here.

III. ATTACK ON 18 U.S.C. § 2314

It is difficult to ascertain the precise thrust of the defendant's argument. He does state that the government did not have a scintilla of evidence linking the crime he committed to interstate commerce. Further, he states that the words appearing on the face of the American Express Company money order, "AMERICAN EXPRESS COMPANY AGREES TO PAY AT 65 BROADWAY, NEW YORK, N. Y.," were too small to afford the defendant sufficient knowledge that the cashing of a money order would involve an interstate transaction. Finally, the defendant asserts that the government has failed to show a principal-accessory relationship. These arguments are without merit. In Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), the Supreme Court stated:

"18 U.S.C. (Supp. V) § 2314, 18 U.S. C.A. § 2314 requires (1) knowledge that certain property has been stolen or obtained by fraud, and (2) transporting it, or causing it to be transported in interstate commerce. . . The transporting charge does not require proof that any specific means of transporting were used, or that the acts were done pursuant to a scheme to defraud . . . United States v. Sheridan, 329 U.S. 379 , 67 S.Ct. 332, 91 L.Ed. 359. When Pereira defendant-petitioner delivered the check, drawn on an out-of-state bank, to the El Paso bank for collection, he \'caused\' it to be transported in interstate commerce. It is common knowledge that such checks must be sent to the drawee bank for collection, and it follows that Pereira intended the El Paso bank to send his check across state lines. . . ."

See also, United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946); Amer v. United States, 367 F.2d 803 (8th Cir. 1966).

IV. EVIDENTIARY RULINGS

The defendant complains that two witnesses, Sam DeWoskin and William Smith, were permitted to testify that money orders were stolen from their businesses, rather than being limited to testifying that the money orders had disappeared. We agree with the position adopted by the Tenth Circuit in Stone v. lay witnesses should be permitted to use these short-hand descriptions in giving their testimony. At least in the context of this case, the use of the word "stolen", albeit a legal conclusion, did not result in prejudice. In such cases any possible prejudice can be removed easily by the defense counsel at trial on cross-examination.

Error is claimed with respect to Exhibit 11, a fingerprint chart which showed similarities between a known fingerprint of the defendant and a latent fingerprint found on a Consumer money order, Exhibit 8. The gist of the defendant's complaint is that certain red arrows on the exhibit for the purpose of pointing out similarities in the two prints were prejudicial. Those markings were obviously made to assist the jurors in understanding the testimony of the government's fingerprint expert. Assistance in understanding is to be commended, rather than condemned.

During the trial, the government placed into evidence Exhibit 8, a Consumer money order. The purpose was to establish the defendant's intent in negotiating the two American Express money orders. It was undisputed that the Consumer money order was cashed several weeks after the American Express Company money orders. A contention is made by the defendant that Exhibit 8 and the testimony of the three witnesses about that exhibit insufficiently linked him to that money order and that the evidence was too remote in time to be used to prove intent. Ultimately this issue turns upon the resolution of whether the subsequent criminal act, the cashing of another money order, was closely connected with the offense charged and tends to prove intent. United States v. Crawford, 438 F.2d 441, 447, fn. 14 (8th Cir. 1971); United States v. Spica, 413 F.2d 129 (8th Cir. 1969); II Wigmore on Evidence, § 313 (3rd Ed. 1940).

The evidence introduced by the government indicates that the Consumer money order was stolen in blank from Smith's Market in July, 1970, and was cashed at Barnes Hospital on September 20, 1970, by a man who identified himself as Matthew Gray. A government fingerprint expert also testified that the defendant's fingerprint was on the money order and a handwriting expert testified that there were "significant similarities" between the defendant's known handwriting and the endorsement on the Consumer money order (Exhibit 8). In United States v. Crawford, 438 F.2d 441 (8th Cir. 1971), this court said in footnote 14:

"If intent is an essential element of the crime, evidence of other acts similar in nature and closely related in time to those encompassed in the charge is admissible to establish intent. Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969) and cases cited therein. See, United States v. Bessesen, 433 F.2d 861 (8th Cir. 1970); Spinelli v. United

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