United States v. Mooney

• Decision Date: 19 November 1969
• Docket Number: No. 19579.,19579.
• Parties: UNITED STATES of America, Appellee, v. Ernest Esco MOONEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.2d 936 (1969)

UNITED STATES of America, Appellee, v. Ernest Esco MOONEY, Appellant.

No. 19579.

United States Court of Appeals Eighth Circuit.

November 19, 1969.

George J. Miller, of Miller & Buechner, St. Louis, Mo., for appellant and filed brief.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., was on the brief with Mr. Newton.

Before VOGEL, BLACKMUN and BRIGHT, Circuit Judges.

VOGEL, Circuit Judge.

Ernest Esco Mooney, the appellant herein, was tried on a single-count indictment for possession of a check stolen from the mails knowing it to have been stolen.¹ This is a timely appeal from his conviction by a jury and imposition of a four-year sentence.

Although the testimony in the case is uncontradicted — the appellant not testifying and offering nothing in his defense — there are, inter alia, questions of identification and sufficiency which require a detailed statement of the evidence offered by the government.

The government's first witness, one Harold Jonathan Holmes, a Negro, testified that on January 24, 1968, he was employed as a teller at the State Bank of Wellston and was working the fourth drive-up window which he viewed by television from a distance of about a half a block. His view of the drive-up window was on a thirteen to fourteen-inch black and white TV screen. His place of operation was connected with the drive-up window by a pneumatic tube through which documents such as checks and money could be transmitted back and forth. Holmes testified that a man, whom he subsequently identified as the appellant, appeared in a car at the drive-up window accompanied by another person whom Holmes could not see clearly on his television screen. According to Holmes, appellant attempted to have two checks cashed, one drawn by the State of Missouri Division of Employment Security, Jefferson City, Missouri, on the Suburban Bank of Kansas City, Missouri, dated January 23, 1968, in the amount of $45 payable to T. J. Thiess, and bearing check No. 8772894, which check had been mailed addressed to T. J. Thiess, 4255 Virginia, St. Louis, Missouri, and which was the subject matter of the indictment herein. The second was a personal check in the amount of $92. Both bore the endorsement of "Robert A. Cohen". Holmes viewed the man whom he identified as the appellant for a period of approximately fifteen seconds on the television screen. As the man presenting the checks for cashing was at that time unknown to Holmes, he checked the balance in the account on which the personal check was drawn and found that there were not sufficient funds to cover it. This caused him to be suspicious and he compared the signature on the check with his signature file. When they did not match, he reported the variance to his supervisor.

At the trial, after testifying to the foregoing, Holmes admitted on cross-examination that subsequent to this happening he had been discharged from the bank for embezzling approximately $600; that he had been informed against under the Youth Correction Act wherein he entered a plea of guilty and that he was currently on probation.

When Holmes reported the fund insufficiency and the variance in signatures to his superior, the supervisor and a uniformed guard of the bank walked out toward the fourth drive-up window where a car occupied by two persons was still parked. As they approached, the car was hastily driven away but it turned into a dead-end street and was forced to stop in about a hundred feet. The two occupants fled, and were not identified by the bank guard or supervisor.

The local police impounded the automobile and identified it as belonging to appellant's brother, Delbert D. Mooney, who testified that on the day in question he had loaned his car to his brother, Ernest, the appellant herein, and a friend. Appellant stated to his brother Delbert that he needed to take his driver's test that afternoon and that was the reason for wanting to borrow the car, which he said he would return that evening.

The drawer of the check upon which the indictment is based (an employee of the Missouri Employment Security Division) testified as to his office's procedures for drafting and mailing unemployment checks and further introduced his records to show the check in question was actually mailed. The payee on the check, Thomas J. Thiess, testified to its non-receipt in the mails on the day of the attempt to cash it.

Appellant's first contention is that,

"The Court erred in overruling defendant\'s motion for a directed verdict of acquittal at the close of the government\'s case for the reason that the government failed to prove the matters set forth in the indictment."

Appellant's claim of a fatal variance between the indictment and the testimony actually shown at the trial is based on the fact that the indictment listed the payee's address as 4265 Virginia while his actual residence was at 4255 Virginia. Obviously this is nothing more than a typographical error in the indictment where "6" was used instead of "5". An indictment must, of course, provide adequate notice of the crime charged so as to enable the accused to properly prepare his defense. Additionally, it must be so worded as to protect against possible threats of double jeopardy. McIntyre v. United States, 8 Cir., 1967, 380 F.2d 822, at 826, cert. denied, 389 U.S. 992, 88 S.Ct. 493, 19 L.Ed.2d 487. However, minor variations between indictment and proof, such as clerical errors as to time or place, cannot be fatal unless prejudice be established. Whiteside v. United States, 8 Cir., 1965, 346 F.2d 500, cert. denied, 384 U.S. 1023, 86 S.Ct. 1946, 16 L.Ed.2d 1025; Lund v. United States, 8 Cir., 1927, 19 F.2d 46. Here no possible prejudice has or could be shown.

Appellant's next contention under this heading is his claim that the government failed to prove any actual theft from the mail. Direct proof as to a mail theft is rarely established. E. g., United States v. Hines, 2 Cir., 1958, 256 F.2d 561, 563-564. Proof of the mailing of the instrument, the check in this instance, combined with the appellant's possession and immediate flight on the same day when the payee did not receive the instrument is sufficient evidence for a jury to infer theft from the mails and knowledge on behalf of the appellant. Whitehorn v. United States, 8 Cir., 1967, 380 F.2d 909; Whiteside v. United States, supra; United States v. Zimple, 7 Cir., 1963, 318 F.2d 676; United States v. Hines, supra. In order to establish theft from the mails by circumstantial evidence, the government is not required to negate every other possibility. See United States v. Zimple, supra, at page 680 of 318 F.2d. The evidence here was sufficient to support the jury's findings.

Appellant's next two contentions are interrelated and are concerned with the witness Holmes' identification of him made at a pre-trial stage when police showed Holmes ten or twelve photographs, two of which were of the appellant, and the receipt into evidence of testimony of the witness Holmes as to identification made at a pre-trial stage when someone representing the government pointed out the appellant to the witness Holmes in the court hallway just prior to the opening of the trial. Appellant's counsel concedes that he did not make any due process objections at the trial but, rather, asks this court to invoke the plain error criteria of Rule 52 (b), Federal Rules of Criminal Procedure, 18 U.S.C.A. Appellant did make a general objection to the eyewitness Holmes' testimony regarding identification of him through fifteen seconds' observation on a television screen as lacking in foundation. The objection was overruled. At no time has appellant raised the due process question except by post-trial motion.

As a general rule, the ordinary administration of criminal justice requires that the trial court have an opportunity of passing upon each objection before it can be raised on appeal. Petschl v. United States, 8 Cir., 1966, 369 F.2d 769, 773. An appellate court will pass only upon errors raised at the trial, excepting only where the error is so significant and so plain as to defeat substantial justice. Fountain v. United States, 5 Cir., 1969, 384 F.2d 624, cert. denied, Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105; Sykes v. United States, 5 Cir., 1966, 373 F.2d 607, cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138. Rule 52 (b) may only be invoked when the alleged error is both obvious and highly prejudicial to the rights of the defense, such as when material has been submitted to the jury although not introduced in evidence. See, Osborne v. United States, 8 Cir., 1965, 351...