Frederick Jackson v. United States

JACKSON,Appellant, Frederick America,

UNITED STATES of Appellee.

No. 19545. Appeals Court

United States

District of Columbia Circuit.

Argued Dec. 1965. April 5,

Decided Rehearing En

Petition for Banc May 12, Denied Skelly Wright, Judge, dis-

J. Circuit

sented. stop called persons bus at the

number running.” out, that him “That being at the Appellant, admitted who by stop, easily a identifiable bus was victim, well hat. The tarn distinctive immediately bystanders, as several other began of his pursue appellant. One appellant, pursuers that testified him point, first offered cornered at one appel- money, that and threatened then Mayer, Washington, “boys” Mr. him. Charles H. “take care” of lant’s would get managed away, (appointed by court), ap- Appellant D. C. was pellant. struggle, finally captured, a after off-duty police the aid with officer Strazzella, Mr. James A. Asst. U. S. pursuer. that Atty., Bress, whom with Messrs. David G. Q. Atty., Appellant S. in his U. Frank Nebeker and Joel was found to have bill, Blackwell, Attys., possession D. Asst. on dollar folded U. S. were one five appellee. manner, brief, peculiar a at trial and identified vic- as the one had that Wright, Before Lev- McGowan eight pocketbook, dol- tim’s one seven or enthal, Judges. Circuit own, apparently his lar bills which were quarters, five and at least five dimes Judge: LEVENTHAL, Circuit single penny Kennedy dollar, a sole half appeal judgment on a pin. safety on a and three bus tokens guilty robbery, verdict of D.C.Code papers personal The wallet and the § 22-2901. contained were never recovered. Though appellant, appoint- counsel for Appellant testified in own behalf developed ed has force- pursuing thief, that he too the real fully presented for our three contentions offering coinciding description consideration, sep- find that we neither given by who the victim for a man arately nor combination con- do appellant. Appellant had fled behind grounds stitute of reversal. dropped claimed real thief had bill on a the five dollar and the tokens I pin appellant up picked had the items begin by considering, reject- We continuing while the chase. ing, the contention that the evidence was not sufficient argues to submit case to the Appellant the evi robbery. dence warranted a submission complaining larceny witness testified that be- charge, and leaving go fore home to on church evidence of a was insufficient morning pos person November she from the actual immediate money wallet, counted the in her Appellant session of the victim. relies on contained a five dollar bill folded in a U.S.App.D.C. Hunt v. United particular manner, Kennedy half (1963). dol- Hunt 316 F.2d an un lar, quarters, dimes, penny five five usual where a reasonable there was safety pin. and three inference, jostling bus proven tokens She waiting among stop pocketbook at a bus crowd, a num- victim people yelled ber of opened other when someone fell Here and the wallet out. that a man had group people snatched her wallet out there was a around the bag. of her stop, She any jostling looked down and saw bus but no evidence pocketbook open her pushing victim, proven her wallet miss- and no ing. just She turned at that moment and factual could circumstances from which it man, reasoning going saw a inferred, whom she identified at trial some appellant, running beyond speculation, from the scene. A mere the wallet probability omis fallen. Graves v. U.S.App.D.C. 294, 318 F.2d an unfortu sion in the indictment was addition, unchallenged slip pen tes- not bar reversal there is the would nate timony by right appellant actu- the victim that someone if a substantial ally saw the defendant wallet think that was take the We do not denied. purse. out of the That testi- not be tried victim’s A defendant case. charged. mony says hearsay, appellant. is But he was not crime with which a adequately set the must victim was on the stand and could And the amounting calling testify yelling allegations as to to a crime. and she out spontaneous States, heard since were ex- U.S. these Russell v. United 369 See (1962), 1038, clamations 749, a admissible within well- 82 8 L.Ed.2d 240 S.Ct. exception hearsay rule, lacking dismissing known criti to an indictment by however, Here, sometimes to referred the catch-all indict cal element. gestae” phrase. Wigmore, subject obviously “res See 6 dismis is ment ed., (3d 1940), Evidence 1755 cases § and sal. cited. ele the critical The indictment sufficiency taking “by crime, The of force the evidence ment of taking against testimony coupled manifest can be Such violence.” stealthy appellant by with the evidence that was at can be resistance. Or it stop snatching. of the bus and crime was found to have law The common money possession. stealthy robbery stolen in his snatch did not include expands ing, defini statute II United the crime. Neufield v. tion of provides, 22- statute D.C.Code § 174, 189, F.2d 118 States, App.D.C. 73 2901: denied, nom. 375, (1941), sub cert. 390 by 798, violence, States, Whoever 62 force whether Ruben v. United against Thus, 580, (1942). resistance sudden 86 L.Ed. 1199 S.Ct. stealthy snatching, robbery pickpocket seizure or court in a putting fear, requirement shall take “the it clear that has made person possession robbery or immediate is sat actual statute] for force [in anything guilty taking value, of another physical of an isfied actual * * robbery another, person of *. property from the knowledge though his without The indictment reads: though property un consent, be 15,1964, orOn about November within person.” Unit Turner v. to his attached Columbia, the District of Frederick 39, States, 535 App.D.C. 16 F.2d 57 ed Jackson, by force and violence States, 73 Spencer (1926). against by putting resistance and 98, (1940), 801 App.D.C. F.2d 116 fear, person stole and from took statutory concept embrac stated as was posses- from the immediate actual taking property “force” used Ray, property sion of Martha J. possession” actual from the “immediate Ray. Martha J. another, regarded “an area within Our conclusion above that there was reasonably ex the victim could evidence of commission crime is physical control pected some to exercise plainly showing based on the evidence property.” his over snatching.” stealthy “sudden or seizure or validly words, appellant, could But those The indictment critical judgment.” on its make own scrapped federal old rule courts condemning 219, 361 every U.S. at 80 at 274. S.Ct. in variance between proof, dictment and and convictions are relying prosecution In Stirone except not now set aside variance re complex distinctly at trial on a of facts sulting prejudice in substantial to de different from that which the Berger States, fendant. 295 v. United may set forth in the indictment. A court 629, L.Ed. 1314 readily perceive plausible possibility of a (1935); Krepper, United States v. 159 prejudice in the contention that a federal 958, (3d 1946) F.2d Cir. cert. willing to indict an extortion- denied, 330 U.S. 67 S.Ct. L. existing er for his interference with (1947); 52(a) Ed. 1275 Rule Fed.R. might stream of interstate commerce Crim.P. very bring unwilling well have been to situation, him to dock for a however carefully We have considered Stirone grievous, implica- which had no federal v. United except potential tion in a terms of inter- 4 L.Ed.2d 252 and are con- ference awith future line of interstate require vinced that it does a not con- us, commerce. In the case before there trary result. The indictment under the single obtaining facts, is a of set charged Hobbs Act Stirone with extortion property complaining witness affecting through interstate commerce question by in date force and violence. wrongful use of a threatened labor dis- deciding Without would whether Stirone pute, against Rider, directed one to in- govern timely objection made, if had been shipments terfere with of sand to his Stirone, appropriate as we to in think Pennsylvania plant. concrete At observe that the variance less sub- is trial, objection, over defense degree in stantial factual than the concerning, admitted and in- evidence involved Stirone. We need not here consider to affirming conviction, what extent a stated specification in an is to be (P. U4) : equated specification with bill of a is well settled that a variance be- particulars, very purpose whose par- tween the the bill of elucidate grounds the indictment. Defendant must ticulars is not un- reversal object at the prejudiced variance from a bill less the defendant was particulars, provid (Citing such bill a the variance. cases and Rule * * * 52(a), Fed.R.Crim.P.) ed first instance re [De- quested by defendant or the court. has fendant] to show how failed these prejudiced variances him trial. Moreover, argument even in case of variance from His with ends the assertion particulars furnished the Government there was a variance. There is no bill, requires allegation pertinent surprise and, on a doctrine as illustrated prejudice grounds showing reading transcript re- Haskins, testimony, surprise versal. See United States v. no resulted (6th 1965) F.2d 111 Oir. where the variance. pushed extremes, If It is the case at decisive making bar, Stirone, objec would the old rule unlike there no reinstate every is to be fatal. Stirone tion to the introduction of the “variant” variance Berger, showing harmony with Nor is read evidence.3 repudiated prejudice. fact, not in Stirone. claim In cited and of actual negatives timely objection virtually prejudice variance If record since there is though ju may defendant can be fatal even the defense counsel himself told the affirmatively ry: “Now, actual demonstrate the crime of timely objec Judge prejudice. you But even instruct must be some will violence, add a new tion a that does not kind of variance with a force not be fatal sudden set showing facts will without whether resistance prej possibility putting of reasonable someone (Emphasis Epps U.S. supplied.) udice. fear.” When (1946).2 duly App.D.C. anticipated In 157 F.2d 11 it was instruction ensued argued every subject objection, of variance it can re made the in quest, proposed returned the clarification. might dictment been will as is not have failure of counsel to ob- defense the indictment with var return ject presum- not be to variant possibility never be con iance. can ed to mere reflect inattentiveness or clusively of ab as a matter eliminated difference to his client’s interests. logic. ais reason stract Whether there many cases, bar, at a de- as the case however, possibility prejudice, able may fense that counsel conclude well some should be determined with refer gained nothing there is to from such be juries and ence to the real world of objection, cer- an of the virtual view juries, and the realm of common sense tainty the will reindict. that guide the which must administration Stirone, from Such cases differ where criminal the criminal and rules of law might plausible was that a Compare procedure. States v. 597, not The of defense Alford, calculation yeindict. only 71 L.Ed. 1040 account counsel must take into not objecting Epps, 2. under D.C. this court ruled that Stirone case. at the Instead 22-2264, prohibiting trial, did, unlawful use § Code as Stirone counsel would defense “street, lot, apple— taken vehicle from a be at the free to take two bites field,” etc., any press negativ- is not fatal variance to at the defense ing extortion, that ear showed that the was not and if he could secure parked lot, although acquittal way, appellate on a an that obtain to alleged parked that it was on the street. reversal founded on the variance in of Berger, noting The followed court that on effect interstate commerce. suggestion question whether, there was no that defendant as to A would arise way any acquittal obtained, was in in his embarrassed de- if a trial prosecutor fense the variance. The court also could take the other side of the pointed by obtaining out that the conviction could have coin a new indictment al- pleaded prosecu- leging proof, avoiding been as a bar a new to the variant and tion, charging jeopardy the truck taken contention double with the from the lot. the new indictment a “different crime.” today not think Stirone We do entirely These mischiefs are avoided contrary would of the result dictate because merely treating adding the indictment as grand jury’s possibility specification committing of means of willingness to indict for use of a car crime, requiring and defendant to as- taken from a street does not establish objection sert at the trial his variance willing that it for to would indict prosecution proffers if the a different of a car taken from a lot. use committing means of same crime. In impermissibility per- Stirone-type objection 3. The of a doctrine case the would be objections pressed upheld. mitting might to be Another call for a inquiry appeal possible prejudice. time first evident further into consequences every objection mischievous But in ease at trial would suppose requisite. such Let us a new doctrine. benefit, positive case, impres- witnesses lack but also described as more raising disadvantages objection many an sive than witnesses other crimi- delay all nal likelihood will cases. That smacks of reference to appel- may record, not the trial. In this case matters outside the war- avoid being notwithstanding lant, bail, unable furnish rant consideration fail- jail, predictably object he continue ure of would defense counsel at awaiting jail to be confined in the new trial. indictment and If the new trial date. however, appropriate, Reversal is not acquitted, spent he would have unneces- assuming prosecutor’s com- sary time in an ac- confinement. Even objectionable. testimony ments were may opt cused who is free on bail convincingly of the victim was substan- later, trial now rather than whether be- tiated the fact that her critical iden- availability cause of witnesses or tification of the distinctive nature of the reasons, other tactical or because pocketbook items taken from her overhanging natural desire to resolve the given police cap- before the promptly possible. ture the defendant with items in these point possession. central coun- that defense Her statement police realistically soundly sel consider was made available to defense essentially a variance as an counsel technical under the Jencks Act. He did objection, having the defendant discredit her on cross-examination. nothing gain something key The other to lose witness the Govern- by pressing point. gave convincing ment testimony. likewise suppose is hard to the credit objec- press does A defendant who given testimony to their was attributable ground re- merits tion on the of variance significant measure to the reference consideration, spectful is no unless prosecutor made in his summa- prejudice. But possibility of reasonable circumstances, tion. In the dowe objection trial. taken here no prejudicial find error. above In of outlined considerations view Affirmed. in- warrants we do not believe the case voking plain the error rule. Judge WRIGHT, Circuit J. SKELLY Ill (dissenting): objects

Appellant to state rob Under 22 D.C.Code § margin, may “by ments, bery perpetrated made dur or set forth in the force be closing argument.4 prosecutor’s “by putting in At the or fear.” violence” prose permit advocacy The rules the common had law the force or violence testimony. “against resistance,” cutor reference crime but His but the not be “very “reputable expanded officers” and District of has under the complaining sweet” witness who or testified Columbia Code to include “sudden snatching.” stealthy for ad the Government do not exceed The Gov vocacy. are more concerned with of We ernment’s in this case was robbery was “ex statement that the Government “sudden or seizure ceptionally proud” snatching,” judge of in its witnesses and the ness in a case nesses to not robbery gentlemen. our witnesses. We be. truth-telling, sive “ * * * support have the sometimes, probably you may you, of as The defendant In most but that we we find form and we many types they although impressive type bring of brought are not pickpocketing, are them, feel of eases we do very proud they our charged certain wit- ladies witnesses may impres- should wit- be 1. The victim was asked: we taken?” seeing ness we have called 31.) see it taken.” are (cid:127)1* Today »}(cid:127) exceptionally proud you the defendant ^[**] we make never She answered: called She actually no did apology around her. not remember various of the witnesses “Then it is true saw “No, ease, for your I didn’t reasons. and we wallet wit- (Tr. predicate language, jury for the to find the defendant eluded structed guilty robbery convicting jury’s defendant if found he had sud action in it stealthily denly snatched the seems seized obvious. charg purse.2 victim’s sug true, It as the Government be ed, however, appellant stole gests, indictment would have against resistance force and violence and charged only sufficient ** by putting in Com fear taking “by But here force or violence.” pletely part omitted was stat specific the indictment set forth encompassing appellant ute the acts means force and violence were which ultimately found to have committed. “against supposedly applied: resistance.” circumstances, respectfully I Under committed Government not submit the conviction should stand. “against resista the crime of true, course, nce.” under 270, 4 L.Ed.2d 252 Rules of U.S. Federal Criminal Procedure charging pleadings (1960), the indictment a viola technical deficiencies in the ignored. 52(a), tion of Act4 extortion are to be Rule the Hobbs Fed.R. safeguards affecting Crim.P. “But the “interstate commerce between substantial charged points various those in the United States and with serious crimes can- guise plant eradicated the site under the tech- of his the manufacture mixing concrete, departures ready nical rules.” mixed from the Smith particularly, 1, 9, more from outside the Pennsylvania State Pennsylvania.” into the State 3 L.Ed.2d 1041 I con- departure sider the from rules 80 S.Ct. at Id. in this tending case more than Evidence was introduced technical. Here the upon commerce, completely show an effect interstate excluded language in, very indictment the from outside the state the stat- charged out, ute on inside Government relied guilt charging conviction. Here could defendant’s way. jury, language shipments inserted be rested on the excluded either jury might Supreme and told the convict Court It “assumed reversed. gen basis thereof. under an indictment drawn Since the Government of- except might upon fered no eral evidence a conviction rest such as would terms showing support kind contained commerce of one in the ex- should ticulars charged that he took lence, provides Law and Procedure Bryan bound it Haskins, United 297, L.Ed. 590 223, Cir., * * son 70 denied, The To this is fear, S.Ct. ed. 309 hornbook law 224 or 177 v. United States 1957). 338 U.S. find if, among its or sudden and (1954); 6 it. extent (1949), affirmed, 317, 94 L.Ed. (Tr. 296.) Cir., F.2d provided, own bill instructed See 4 v. 345 F.2d See wallet at resistence, States, Land v. United 346, Neff, 957, that other Wharton, defendant least, also the Government when a “by 348-349 70 particulars. 3 5 111, § United things, 335, Cir., Cir., 1870 S.Ct. force and vio- 338 U.S. or 114 bill of by putting Criminal guilty rehearing 212 F.2d 175 F.2d States States, it found (Ander 491, (1949) ; (1965); that seizure And par 552, 94 v. is it 4 4. 62 Stat. obstructs, tortion or with his modity fined lence to both. use of actual or prisoned therance obtaining right.” thing lence, do, “(a) “(2) “(b) ^[*] the movement or commits in violation not more than The term ‘extortion’ Whoever As used 793,18 any person not more fear, consent, ifc delays, commerce, by attempts plan or under color of official property or U.S.C. in this in threatens threatened than ^[*] or induced any any or or purpose affects § section— twenty years, property in fur- $10,000 1951: conspires section article way robbery from ^[*] by wrongful physical means the force, to do or commerce another, or com- shall be degree or ex- so to ^[*] any- vio- vio- im-

267 burdened,” held Stirone’s but it conduct would interfere another with * * exportation that, commerce interstate since interference with *. And crime, certainty it was an cannot be with essential element said that only particu added, with a follows that new basis for “[i]t conviction charged solely Stirone lar kind of to have commerce convicted charge on must rest burdened conviction made the indictment ” * * * * * grand charge jury that and not another returned. 361 Id. at 80 274.5 U.S. at 80 S.Ct. at S.Ct. at 273. distinguishes majority appellant’s case, on The the indictment charged ground taking prosecution “against resistance,” re- there complex lied at trial “on a dis- whereas the facts on trial showed a to tinctly tally complex different which different of facts involv grand jury taking by set forth the indictment.” stealth. The difference taking “against The difference in between Stirone between resistance” and alleged taking “by the facts in the indictment and stealth” cannot be obscured by invoking proved generic the facts on trial evi- was that term “violence” relating upon dence used to an effect inter- The statute. two forms of exportation taking state in- require denounced the statute offered, proof by radically dictment was trial. The trial distinct sets facts. Indeed, extortion, ultimately facts as to the proved, was the form which crime, charged, heart and the interstate here —a stealth” importation —only Congress became covered indict- “violent” when relatively larceny ment. Even with decided to small make what had been variance, amount of robbery, punishable the Court common into dismissed law 6 stating: indictment, far more severe sentence. “ * * * grand only legal jury assumption which that can be found statutory made this indictment was satisfied omission of the charge language appellant’s that Stirone’s conduct inter- covers acts is importation

fered grand interstate evidence before the persuaded sand. But probable neither this nor other there was charging court can know cause for the defendant with willing “against would have been “put- resistance” or (Tr. 266.) attempting in Stirone Black’s statement 5. Mr. Justice in fear.” Without Berger regarding action in so characterize counsel’s do- say ing, L.Ed. S.Ct. U.S. is sufficient defense majority, upon by ap (1935), counsel, prosecutor relied like the plicable grand jury’s be dis here: error cannot “[T]he is unable to amend the merely insignificant Norris, variance missed as dictment. In United States v. allegation and thus between 74 L. Berger stip- harmless error as in Ed. 1076 “a filed agreed [55 ulation facts which it was should charged L.Ed. The crime here is 1314]. be taken to be true and of record with like felony re and the Eifth Amendment effect as if set forth indictment.” quires by prosecution begun stipulation in With reference this stipula- counsel, dictment.” 361 U.S. at 80 S.Ct. at “[T]he the Court held: import tion 272. issue ineffective an sufficiency indictment, as to the of the or majority suggests 6. the record upon question guilt an issue fact “virtually negatives prejudice” be- here stipulation innocence. If be re- appellant’s counsel, arguing cause garded adding particulars in- to the jury, “Now, case to stated: dictment, it must fall the rule before Judge crime of will nothing can be added an indictment you, struct must be some kind tak- without concurrence violence, with a force or whether jury by which the bill was found.” Id. resistance a sudden putting someone at 50 S.Ct. at 425. ting fear,” sudden snatching.” stealthy seizure or

proper Government, once course for the disparity

it became between aware proof, to resubmit grand jury. Instead, pro case to the course,

ceeded to trial. Of well be apparent the defect did not become the trial. Government until after event, however, either en

In this court disregard courages

process refusing upon to insist

proper procedure. con Reversal

viction and dismissal of the indictment

would, course, leave the Government re-try appellant

free to re-indict and ac

cording Ewell, to law. United States v. 15 L.Ed.2d respectfully

I dissent. C., Grey Lewis, Washington, D.

Mr. E. court), appellant. (appointed Atty., Miller, S. David Asst. U. Mr. W. argument, Mr. at with whom the time Leroy SESSOMS, Appellant, R. Acheson, Atty., at the time U. David C. S. Q. filed, Frank brief was Messrs. America, UNITED STATES Blackwell, Asst. U. Nebeker and Joel D. Appellee. Attys., brief, appellee. on the S. No. 19241. Atty., Conliff, Jr., Mr. John U. S. C. argument, ap- the time of also entered Appeals United States Court of appellee. pearance for District Columbia Circuit. Argued Oct. 1965. Before Circuit Senior Prettyman, Judge, and Danaher Leventhal, Decided March Judges. Circuit

PER CURIAM: judgment sen- appeal from a tencing imprisonment appellant to upon concurrently years his con- to three theft. of mail of four counts viction designed reversing secure. For a de- in six different convictions cases, Supreme then be convieted fendant could said: Court “ * * * by, perhaps prosecutor, found basis of facts not To allow the to, subsequent presented guess to make a ” * ** him. which indicted in the minds of the as to what was grand Russell v. United returned the at the time deprive L.Ed.2d 240 82 S.Ot. the defend- indictment would guar- protection of a basic ant anty the intervention notes taking allegation of It limited to omitted from the indictment. error, on the date claims, force or violence” was therefore he for the Hagner they United person question. instruct 417, 431, States, 52 guilty S.Ct. could find U.S. defendant 285 specifica- (1932). Detailed 861 if found the taken 76 L.Ed. defendant had taking Ray’s was made purse by was Mrs. of how such sudden or tion discovery snatching. defendant available 263 guilt language appropriate could be rest- structed the motion. The on, indictment, com- ed interference with interstate regard ship- way possible resistance, specification merce future was a points committing ments outside Penn- steel the offense. Turner v. sylvania being supra.1 States, surplus- from a mill con- steel United plant. age, required. from Rider’s structed with concrete and its Black, know,” Noveck, cannot Justice “We wrote United 271 States v. U.S. (1926); “whether would have 46 904 70 L.Ed. S.Ct. App.D.C. cluded its indictment a Tomlinson v. 106, 108, commerce in steel from a nonexistent A.L.R. F.2d steel mill had interfered with.” cert. denied sub nom. effectively deprived Defendant had ben Pratt v. United right “to have the L.Ed. 1107

Case Details

Case Name: Frederick Jackson v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 12, 1966

Citation: 359 F.2d 260

Docket Number: 19545_1

Court Abbreviation: D.C. Cir.