United States v. Jones, 23594.

• Decision Date: 07 April 1970
• Docket Number: No. 23594.,23594.
• Citation: 425 F.2d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. Norman JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 1048 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. J. Norman JONES, Defendant-Appellant.

No. 23594.

United States Court of Appeals, Ninth Circuit.

April 7, 1970.

COPYRIGHT MATERIAL OMITTED

Luke McKissack (argued), Los Angeles, Cal., for defendant-appellant.

Dennis E. Kinnaird (argued), Jo Ann Dunne, Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES and HUFSTEDLER, Circuit Judges, and PENCE,^* District Judge.

BARNES, Circuit Judge:

This appeal is from a judgment of conviction of the one defendant remaining after three codefendants entered pleas of guilty to one or two counts of a nine count indictment charging a violation of 18 U.S.C. §§ 371, 1341, or 1343. Appellant was convicted on six counts, and sentenced concurrently to eighteen months to five years on each count.

In the vernacular, appellant was charged with large scale "check kiting."

Appellant raises six alleged errors relating to the conduct of the trial judge; two more as to the misconduct of the prosecutrix; three as to instructions; four as to the sufficiency of the evidence; one as to the form of the indictment; and one alleging a fatal variance between pleadings and proof.

We find no error, and we affirm.

1. Fatal Variance and Form of Indictment

(Appellant's Argument "I")

Appellant urges that there were three separate conspiracies, not one; and that proof of facts prior to the date alleged as the start of the conspiracy (August 1, 1966) established a fatal variance between pleading and proof.

Evidence of acts performed prior to an alleged conspiracy, if properly admissible, do not create a fatal variance. Evidence of prior fraudulent transactions are, and were here "properly" admissible, not to prove the conspiracy charged, but to show some other material fact, such as an absence of mistake, motive, opportunity, intent, preparation, plan or knowledge.

The Government charged, and had the burden to prove, that the defendant conspired to, and did devise, a scheme or artifice (a) to defraud, or (b) to obtain money by means of false or fraudulent pretenses, representations or promises. (18 U.S.C. § 1341.)

The crux of the conspiracy charged was to keep the "nonsufficient funds" checks in float between a Hollywood Bank and a Chicago Bank. Temple did this through the active aid of Jones and Augustyn in Los Angeles, and Erickson in Minneapolis. Each of the defendants performed a different role, and may have had dissimilar motives for participating in the transactions, but this does not mean that a single conspiracy did not exist. United States v. Hoffa, 367 F.2d 698, 706 et seq. (7th Cir.).

Each participant in the conspiracy need not know what other participants are doing, or why. Wood v. United States, 283 F.2d 4 (5th Cir. 1960). The elements of conspiracy may be proved by circumstantial evidence alone. Jordan v. United States, 370 F. 2d 126 (10 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595. Once a conspiracy is proved, "slight evidence is all that is required to connect a defendant with the conspiracy." DiazRosendo v. United States, 357 F.2d 124 (9th Cir. 1966), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83, citing Sabari v. United States, 333 F.2d 1019 (9th Cir. 1964), rehearing denied, July 9 1964.

It seems clear to us that the proof in this case was sufficient for the jury to find that a single conspiracy did exist, and that defendant Jones was a knowing participant of it.

2. Evidence of Prior Acts

(Appellant's Argument "J")

If the purpose of the government offer of testimony of acts prior to August 1, 1966 was to suggest the fraud-oriented propensities of the appellant, then, says appellant (Brief, 70), "the error was most prejudicial." He cites Sang Soon Sur v. United States, 167 F.2d 431 (9th Cir. 1948). This court there said:

"The admission of the evidence of independent crimes was error. Its admission cannot be justified under any of the exceptions to the general rule. We fail to perceive any relevancy between an evasion of the payment of income taxes and a conviction for the possession of opium." Id. p. 432. (Emphasis added.)

We agree with the statement of the general rule, i. e., some relevancy must exist between the prior act and the act charged. In United States v. LeVison, 418 F.2d 624 (9th Cir. 1969), we said, quoting United States v. Jiminez-Robles, 415 F.2d 308 (9th Cir. 1969):

"Granted, the general rule is, as appellant asserts, that evidence of prior criminal conduct is inadmissible. However, one well established exception to this rule is that such prior criminal conduct can be introduced to show state of mind or intent, design, knowledge or lack of innocent purpose. Craft v. United States, 403 F.2d 360 (9th Cir. 1968); Metheany v. United States, 390 F.2d 559 (9th Cir. 1968); Asher v. United States, 394 F.2d 424 (9th Cir. 1968)."

The evidence here introduced of acts prior to August 1, 1966, which appellant claims constituted error was evidence establishing that:

"(1) The Roberts\' loan in February, 1966 was a fraud on Hollywood Bank R.T. 576-581, 869, 879, 2015, 2040-41, 2032-33; "(2) In February, 1966, Temple cashed worthless Cal-I Exploration checks at Hollywood Bank R.T. 514-17; 520-26;

"(3) In March, 1966, he (Jones) had been advised that Temple was a `confidence man\' (Sgt. Carpenter\'s testimony R.T. 1225-28); and

"(4) That Jones told Temple about Hollywood Bank\'s banking procedures so that Temple would know how to float the non-sufficient fund checks between Hollywood Bank and Chicago Bank R.T. 520-25." (Appellee\'s Brf., p. 54.)

We hold such evidence could be properly introduced to show intent, plan, and knowledge. 2 Wigmore, Evidence 3d ed. §§ 300-373; Uniform Rules of Evidence, Rule 55.

We also think these prior transactions were admissible to refute Jones' testimony that he never knew of Temple's check kiting operations prior to January 10, 1967. (R.T. 1706-1708.)

3. Misconduct of the Trial Judge

This alleged error is based in six separate instances of judicial actions:

(a) Misstatement of evidence. (Appellant\'s Argument "E")

(b) Comments constituting partial direction of verdict. (Appellant\'s Argument "C")

(c) Advising the jury the codefendants had plead guilty. (Appellant\'s Argument "F")

(d) Questioning of witnesses so as to prejudice appellant. (Appellant\'s Argument "O")

(e) Reference to a confession not in evidence. (Appellant\'s Argument "P")

(f) Failure to advise defense counsel in advance the judge would comment on the evidence. (Appellant\'s Argument "Q")

3(a). Appellant's first argument is that the trial court in commenting on the evidence "confused" Exhibit 93 (10 days of "account analysis reports") with Exhibit N ("potential overdraft list") stating that appellant "had stated he had seen all that," referring to Ex. 93. Appellant argues that appellant had never testified he saw the "account analysis reports" on a regular basis; but that he made it a practice to examine Ex. N, the "potential overdraft list."¹

Appellant draws too absolute a line between the contents of Ex. N and Ex. 93. Jones did recall seeing Ex. N. It was a record of all checks presented on a given day that might create an overdraft (R. T. 1541). Every day Jones would review the sheets reflecting the potential return items (R.T. 1775). All checks listed in Ex. N would be attached to it (R.T. 971-972). Jones testified he saw potential overdrafts for the Nickward account when he reviewed Ex. N (R.T. 1834-35; 1841). Ex. N reflected numerous overdrafts during the month of October, 1966 (R.T. 1839-1875). "It was conceded that these documents Ex. N were checked by Appellant each morning." (Opening Brief, p. 48.)

The fact that more detailed and complete information was given each morning on the "account analysis report," (Ex. 93), than that revealed by Ex. N, but that appellant did not always see it, does not mean the judge was confused between Exhibits 93 and N.

3(b). We must consider the comments made by the judge in relation to the facts of this case. It was a long and complicated trial. It was peculiarly a case where a judge might properly comment on the evidence, without arguing its merits, provided he gave the required admonitions to the jury clearly showing them they were not bound by his comments.

"A federal trial judge, as has many times been said, is more than a moderator or umpire. He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevancy. He may assist the jury by commenting upon the evidence, and this way include an appraisal of the credibility of witnesses, provided the comment is fair and the jury is clearly instructed that they are to find the facts and may disregard such comments." Smith v. United States, 305 F.2d 197, 205 (9th Cir. 1962), cert. denied, 371 U.S. 890, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962); Young v. United States, 358 F.2d 429, 430 (9th Cir. 1966).

That the trial court fully complied with his obligations in instructing the jury is clear. (R.T. 2569-2573.)

We conclude the comments made by the court on the evidence showed neither confusion, nor any unfairness, nor were they "a partial direction" of the verdict.

3(c). (Appellant's Argument "F"). It is also urged the trial judge erred in advising the jury that codefendants Erickson, Augustyn and Temple had entered pleas of guilty.

When the trial commenced on January 16, 1968, and before the jury was empaneled, defendant Erickson requested leave to withdraw his plea of not guilty to one count, and to plead guilty thereto. This was permitted. The court then empaneled a jury, an opening statement was made by the Government and the trial was then continued one week. At that time (January 23, 1968), the defendant Augustyn moved to withdraw his not guilty plea, and to plead guilty to one count. The motion was granted, and the defendant Temple...