177 F.2d 781 | 10th Cir. | 1949
Appellants, father and son, were indicted, tried and convicted in the United States District Court of Colorado, for violation of the False Claim Statute, 18 U.S.C.A. § 1001, formerly 18 U.S.C.A. § 80, and aiding and abetting in the commission of the offense. 18 U.S.C.A. § 550.
• In separate counts the indictment charges that the defendants “did knowingly and
As we understand or interpret the first contention of the appellants, it is to the effect that the indictment is insufficient to inform either of them whether he is charged with the offense of making false and fraudulent representations to the Silver State Savings and Loan Association or to the Veterans Administration, or whether the charge against each of them is the making of the misrepresentations to either one of the agencies or aiding and abetting in the making of them. It is said that since the indictment charges each of the appellants with both making and aiding and abetting in the making of the false and fraudulent representations to both the Silver State Savings and Loan Association and the Veterans Administration, they are not fully apprised of the nature of the charges against them so as to prepare theil’ defense or be protected against double jeopardy. The short answer is that each count purports to charge two separate and distinct offenses against each appellant, the proof of one of which also proves the other. This is so, because under 18 U.S.C.A. § 550, an aider and abetter is a principal quite as much as one who directly commits the act constituting an offense defined in any law of the United States. See Von Patzoll v. United States, 10 Cir., 163 F.2d 216. After charging the offense of making false and fraudulent representations substantially in the language of the Statute, 18 U.S.C.A. § 1001, the indictment then descends to particularize the facts constituting the offense. The allegations leave no room for doubt or conjecture concerning the nature of the offense charged, or the part each of the appellants played in it.
Before trial the court granted the Government’s motion to strike the aiding and abetting allegations from each count in the indictment, thus leaving E. Clifford Heald charged in count one with having directly made false and fraudulent representations in a matter within the jurisdiction of the Veterans Administration on June 26, 1947, and Bradley Heald separately charged in count two with making false and fraudulent representations in a matter within the jurisdiction of the Veterans Administration on June 27th, 1947. In this posture of the case appellants moved to dismiss the indictment for misjoinder of defendants and offenses, and in the alternative for a severance and separate trials under Rule 14 of the Criminal Rules of Procedure, 18 U.S. C.A.
Both motions were overruled, and when the cases came on for trial appellants moved for dismissal on the grounds that the indictment then before the court, with the stricken allegations was not the one returned by the Grand Jury and that they were therefore not constitutionally charged with an offense, relying upon Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Dembowski, D.C., 252 F. 894; Dodge v. United States, 2 Cir., 258 F. 300, 7 A.L.R. 1510; De Luca v. United States,
The 5th Amendment stands as a bar to any person being prosecuted for an infamous crime “unless on a presentment or indictment of a Grand Jury”. Construing this constitutional safeguard the courts have repeatedly said that any material change invalidates the indictment and deprives the court of the power to try an accused upon it. Ex parte Bain, supra; United States v. Dembowski, supra; Dodge v. United States, supra; De Luca v. United States, supra; United States v. Fawcett, supra; Carney v. United States, 9 Cir., 163 F.2d 784. But, these appellants were never held to answer to the changed indictment. Before they were put in jeopardy the stricken language was restored and they went to trial, were convicted and sentenced on the indictment as returned by the Grand Jury. Undoubtedly, the court was without jurisdiction to try the appellants upon the changed indictment, but that does not mean that it was without jurisdiction to restore the indictment to its original form and content before the appellants were put in jeopardy upon it. No constitutional rights of the appellants were infringed and they cannot therefore complain of the court’s restoration of the stricken allegations. Cf. Stewart v. United States, 9 Cir., 12 F.2d 524.
One week before trial new counsel entered appearance for the appellants and at that time the court was advised that they would be ready for trial. On the date of trial appellants filed a motion for a continuance on the grounds that the order of the court restoring the aiding and abetting allegations to the indictment had so changed the “whole procedure or trial” that counsel was unprepared to go to trial. The motion was denied and appellants contend that being forced to trial on the aiding and abetting charge without time for the preparation of their defense was so highly prejudicial as to amount to a denial of due process. Since the proof of both offenses is substantially the same the court could not have abused its discretion in the denial of a continuance.
The sufficiency of the evidence is also raised on appeal. We held in Heald v. United States, 10 Cir., 175 F.2d 878, that the same evidence was sufficient to sustain a conviction on a conspiracy charge to violate the False Claim Statute and the Servicemen’s Readjustment Act. Without detailing the evidence again, it is enough to say that it is also sufficient when considered on this record to sustain the convictions on the substantive offenses charged in this indictment. ,
The judgment is affirmed.