United States v. Mason

• Decision Date: 26 May 1971
• Docket Number: 366-70.,No. 365-70,365-70
• Citation: 440 F.2d 1293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard Evans MASON, Jr. and Jerry Michael Edwards, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

440 F.2d 1293 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Howard Evans MASON, Jr. and Jerry Michael Edwards, Defendants-Appellants.

Nos. 365-70, 366-70.

United States Court of Appeals, Tenth Circuit.

April 9, 1971.

Rehearing Denied May 3, 1971.

Rehearing Denied May 26, 1971.

COPYRIGHT MATERIAL OMITTED

Jeff M. Laird, Asst. U. S. Atty., W. D. of Okl., Oklahoma City (William Burkett, U. S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.

Mac Oyler, Oklahoma City, Okl., for defendant-appellant Mason.

Gary M. Bush, Oklahoma City, Okl., for defendant-appellant Edwards.

Before PICKETT, BREITENSTEIN and SETH, Circuit Judges.

Rehearing Denied in No. 365-70 May 3, 1971.

Rehearing Denied in No. 366-70 May 26, 1971.

PICKETT, Circuit Judge.

Appellants Mason and Edwards were jointly charged in the United States District Court for the Western District of Oklahoma with entering a building used in part as a savings and loan association with intent to commit larceny therein in violation of 18 U.S.C. § 2113(a). The first trial resulted in a mistrial when one of the jurors became ill and was unable to continue. The second trial began a few days later, resulting in a conviction of both defendants. A sentence of ten years' imprisonment was imposed on each defendant under the provisions of 18 U.S.C. § 4208(a) (2).

The sufficiency of the evidence to support the conviction is not questioned and only a brief résumé of the facts is required to determine the issues raised. On November 22, 1969, at approximately eight o'clock in the evening, near the entrance to the University of Oklahoma Medical Center Federal Credit Union, which is located within one of the University of Oklahoma Medical Center buildings in Oklahoma City, Oklahoma, Mason and Edwards were observed and questioned by Billy D. Smith, a security guard for the building. Smith recognized Mason and Edwards from previous contacts but did not know their names. At the time each was wearing a green electrical uniform with "A & A Electrical Company" in red letters on the back of the uniform. When questioned by Smith as to what they were doing they responded that they were working on the lights for a classroom located above the Credit Union. Mason had a test light in his hand and Edwards was holding a screwdriver. Smith left to check their explanation, and when he returned both were gone. Smith then noticed that there were pry marks on the door to the Credit Union and the door hinge pins had been removed. Also, a box of tools containing a "Porta-Power," sledge hammer, chisel and flashlight had been left directly outside the Credit Union door. The box of tools was examined later by the identification officer for the Oklahoma City Police Department. The officer indicated that the "Porta-Power" is often used to gain entry into safes and referred to it as a "spreader." The purchasing agent for the Medical Center also observed Mason and another man whom he was unable to identify at the entrance to the Credit Union dressed in the manner described by Smith. Neither Mason nor Edwards had ever been employed by A & A Electrical Company. The "Porta-Power" had been rented from a rental agency by Mason and Edwards on the day of the attempted break-in at the Credit Union.

It is first contended that the indictment does not charge the commission of a crime against the federal government.¹ Appellants maintain that the word "therein" in the indictment refers to "building" generally, and not to that specific portion of the building used by the Credit Union — consequently, the indictment does not charge a crime against the United States within the meaning of 18 U.S.C. § 2113(a).² The test of the sufficiency of an indictment is that standing alone it contains "the elements of offense intended to be charged and must be sufficient to apprise the accused of the nature of the offense so that he may adequately prepare a defense." After a verdict or plea of guilty, "every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects unless it is apparent that they have resulted in prejudice to the defendant." Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S. Ct. 1930, 12 L.Ed.2d 1050.

The essential elements of an 18 U.S.C. § 2113(a) offense as is presented by the circumstances here involved are (1) the entering of a building of the statutorily defined class, (2) with the intent to commit a larceny in the portion of that building used by a bank or savings and loan association as defined in the statute. See Colquette v. United States, 216 F.2d 591 (7th Cir. 1954). The decisions dealing with § 2113(a) are of little aid, but the use of the term "therein" in 18 U.S.C. § 2115 and its predecessor, which involved the unlawful entry into buildings occupied by United States post offices, was similar to the use of that term in the indictment; consequently, decisions construing the meaning of the term in the old statute are analogous.³ See Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S. Ct. 831, 19 L.Ed.2d 876. The courts, in construing the statutory language of § 5478 with regard to the seemingly vague and ambiguous term, "therein," have consistently held that "therein" gave reference to the portion of the general building used as a post office and not to the literal construction which would have referred to the building in general. Sorenson v. United States, 168 F. 785 (8th Cir. 1909); United States v. Martin, 140 F. 256 (C.C.N.D.Ala.1905); United States v. Clifton, 91 F.Supp. 940 (E.D.Ark.1950); United States v. Saunders, 77 F. 170 (D.C.Ind.1896); cf. United States v. Wright, 365 F.2d 135 (7th Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789; McNealy v. Johnston, 30 F.Supp. 312 (N.D.Cal.1939). Although the indictment here is not a model of clarity and does not precisely follow the statutory language, it is sufficient to delineate the elements of the offense charged and to adequately apprise the accused that they were charged with entering a building with intent to commit larceny in a savings and loan association occupying a part of the building.

It is next contended that the court erred in denying various motions submitted orally after the case had been called for trial. The first motion was for continuance, or in the alternative, to disqualify the jury array for cause. As to the issue of continuance, appellants submit that they were not informed until March 24, 1970 that the case would be set for trial on March 26, 1970, and therefore, there was not sufficient time to properly prepare the defense. The trial court found that the motion was not filed in good faith, but for the sole purpose of confusion and delay. The parties were prepared for trial on March 18 and during the course of the trial it became necessary to declare a mistrial because of the illness of a juror. There was no substantial showing that anything occurred after the mistrial which would necessitate a continuance. Furthermore, the accused had been confined for several months before trial and Edwards had been demanding a trial without further delay. We have often held that a motion for continuance is addressed to the trial court's discretion and is not subject to review unless such discretion has been abused. United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969); Warden v. United States, 391 F.2d 747 (10th Cir. 1968). The challenge to the jury array is based upon the ground that the jurors who sat on the first trial remained on the array, thereby tainting it. It is also urged that an article which appeared in a local newspaper between the first and second trials indicating that an "assassination" attempt had been made upon one of the government's witnesses made it impossible to empanel an impartial jury from the existing array. In an order entered after the trial the court found that "(e)ach juror who was selected to try this case stated on voir dire examination that he or she had never heard of the case before; had never read any newspaper article nor had talked to anyone about the case, or heard anyone talk about the case." Furthermore, to assure an impartial jury, five talesmen were called, three of whom were selected to serve on the jury and appellants' counsel were permitted additional peremptory challenges which they declined to exercise. The essence of appellants' contention is directed to the qualifications of jurors, the determination of which rests in the sound discretion of the trial court and will not be interfered with on the appeal absent a clear showing of abuse of such discretion. United States v. Porth, 426 F.2d 519 (10th Cir. 1970), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53.

The refusal of the trial court to require the United States to furnish the accused a transcript of the first trial proceedings without cost was not error. The requested transcript was for the testimony of Smith, which was alleged to be necessary for impeachment purposes. Counsel at the first and second trials were identical and fully aware of the substance of Smith's first testimony. The court found that the motion was for the purpose of delay and without merit. The record does not disclose any prejudice resulting from the failure to have the transcript. In their final pretrial motion appellants sought the subpoena of certain witnesses at government expense. The court found that the motion was without merit, would have worked a delay upon codefendant Edwards and would have impaired his right to a speedy trial, came too late, and could better have been handled by the use of affidavits. The granting of a request for a subpoena of witnesses at government expense is not an absolute right, but rather rests in the sound discretion of the trial court. Fed.R.Crim.P. 16(b); Speers v. United States, 387 F.2d 698 (10th Cir. 1967), ...