United States v. Wright

• Decision Date: 22 August 1966
• Docket Number: No. 15217.,15217.
• Citation: 365 F.2d 135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil Lester WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.2d 135 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Cecil Lester WRIGHT, Defendant-Appellant.

No. 15217.

United States Court of Appeals Seventh Circuit.

July 28, 1966.

Rehearing Denied August 22, 1966.

John Powers Crowley, Chicago, Ill., Cecil Lester Wright, in pro. per., for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Hammond, Ind., for appellee.

Before KNOCH, KILEY and SWYGERT, Circuit Judges.

KNOCH, Circuit Judge.

The defendant-appellant, Cecil Lester Wright, was charged in a two-count information with violating (1) Title 18, U.S.C. § 2113(a) by entering the Security Federal Savings and Loan Association of Lake County, at St. John, in the State of Indiana, which is federally chartered and whose deposits were insured by the Federal Savings and Loan Insurance Corporation, with intent to commit a felony therein; and (2) Title 18 U.S.C. § 2115 by breaking into a U. S. Post Office at St. John, Indiana, with intent to commit a felony therein; all on the night of January 1-2, 1965.

Although advised of his right to counsel and to indictment by Grand Jury, the defendant, who stated at one point that he had a law degree, waived assistance of counsel and consented to trial on information. He was found guilty as to both counts after trial by jury and was sentenced to serve 20 years on Count I and 5 years on Count II, concurrently. This appeal followed.

The defendant contends that the information is fatally defective in that Count I named the institution as the "Security Federal Savings and Loan Association," with deposits insured by the Federal Savings and Loan Insurance Corporation, and then went on to say that the defendant entered with the intent to commit a felony in "such bank." Insofar as the proof established that the institution was an "association" the defendant contends that the proof fell short.

We believe that the information does state the elements of the offense adequately to enable the defendant to prepare for trial and to avoid double jeopardy. United States v. Shavin, 7 Cir., 1961, 287 F.2d 647, 650, 90 A.L.R.2d 888; Stapleton v. United States, 9 Cir., 1958, 260 F.2d 415, 417, and that the commission of the offense charged was proved.

The defendant attacks the information on the further ground that it was signed by an Assistant United States Attorney and not by the "attorney for the government" as required by Rule 7, Federal Rules of Criminal Procedure. The information here is signed: Alfred W. Moellering, United States Attorney, by Lester R. Irvin, Assistant United States Attorney. We think this is sufficient. We also hold that the signature of the prosecuting attorney is not an essential part of the information; nor is improper signing of the instrument a defect such as to invalidate it. See United States v. Keig, 7 Cir., 1964, 334 F.2d 823, 827, and cases there cited. The primary purpose served by affixing the U. S. Attorney's signature to an indictment is to indicate that he joins with the Grand Jury in instituting a criminal proceeding. Without his agreement no criminal proceeding could be brought on the indictment. See United States v. Cox, 5 Cir., 1965, 342 F.2d 167, 172, where the Court declined to interfere with the government attorney's discretion in this regard. In this case, there is no refusal by the U. S. Attorney to proceed with prosecution.

The defendant further contends that § 2113(a) is unconstitutional as an attempt by Congress to exceed its legislative authority in proscribing "any larceny" by virtue of the fact that the limitation placed on "any felony" ("affecting such bank or such savings and loan association and in violation of any statute of the United States") in the same statute is not repeated. The section reads:

§ 2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or

Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny —

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

(f) As used in this section the term "bank" means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.

(g) As used in this section the term "savings and loan association" means any Federal savings and loan association and any "insured institution" as defined in section 401 of the National Housing Act, as amended, and any "Federal credit union" as defined in section 2 of the Federal Credit Union Act. As amended Apr. 8, 1952, c 164, 66 Stat. 46; Sept. 22, 1959, Pub.L. 86-354, § 2, 73 Stat. 639.

The information does not charge commission of a larceny, but we are satisfied that a reasonable interpretation of the statute would hold that the limitation inserted as to "any felony" is equally applicable to "any larceny."

It is asserted that admission into evidence of some of the defendant's statements which made reference to other crimes in addition to those for which he was being tried deprived him of a fair trial. The defendant contends that it was unnecessary to present this evidence in the course of the government's case in chief to show intent because there was no need to rebut any assertion on his part that he had innocently entered the savings and loan association or the post office. He was claiming not to have committed the acts charged.

Most of these statements concerned other establishments into which the defendant had broken on the same night of January 1-2, 1965. Guilty intent was an element of the charges here and evidence of similar, related offenses tended to show a consistent pattern of conduct relevant to the issue of intent. Nye & Nissen v. United States, 1949, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919.

Robert Mattingly, a police officer employed in the Lake County Police Department, testified that at 4:42 a. m. on January 2nd, 1965, he had taken a statement from the defendant. An objection was made to admission of this statement on the ground that it contained extraneous matter having no bearing on the issues before the jury.

In the course of his confession to committing four burglaries that night, the defendant said in response to a request for his address: "The address that I gave when I posted bond for burglary in Marshall, Illinois, was 1003 Adams Street, Charlestown, Illinois. That is my brother's address."

No specific objection was made to the defendant's volunteered statement in answering a request for his address, as distinguished from his confession, in the same interchange of question and answer, to breaking and entering a hardware store, the Savings and Loan Association, the Post Office, and the iron works.

In the...