United States v. Harold Lloyd Phillips

prosecutor ed. the fact

conveys impression grand such an require does not the dismissal of the

indictment. Cederquist,

United States v. (9th Cir.1981). pros- if Even stepped beyond per-

ecutor bounds comments, appellants

missible suffered no prejudice.

actual

Ill

CONCLUSION

Appellants separate claim four instances prosecutorial appel- misconduct which grounds

lants dismissing contend are grand jury Appellants indictment. did

not show that actually preju-

diced this conduct and that such conduct

significantly infringed ability on the

grand jury independence. to exercise its

Therefore, the trial court should be af-

firmed.

AFFIEMED. America,

UNITED STATES

Plaintiff-Appellee, PHILLIPS, Lloyd

Harold

Defendant-Appellant.

No. 87-1007. Appeals,

United States Court of

Tenth Circuit.

Oct. Lutz, Atty., and William L. James

D, Tierney, Atty., Albuquerque, Asst. U.S. N.M., plaintiff-appellee. Katz, Defend- G. Federal Public made and security, Michael Mandell-King, er, and Asst. Federal wit: Check No. 2649 of the Vicki Denver, Colo., Defender, for defen- Corporation account, Vacuumite Public Account dant-appellant. Number Capital 00-3958-6 drawn on the Fe, Bank of Santa dated December ANDERSON, SEYMOUR and Before 1985, payable J.A. Needham in the BROWN,* Judges, and District Circuit $389.20, amount of on which signa- Judge. ture of the authorized maker forged was and falsely made and the defendant then ANDERSON, H. Circuit STEPHEN and there knew said check to forged be Judge. falsely and made. appeals his Lloyd Phillips Harold convic- In violation of 18 U.S.C. 2314. violating on two tion counts of U.S.C. knowing- crime to 2314 which makes it a § II Count wilfully transport in interstate ly and com- forged falsely and made merce securities December, On 12th day or about the intent to He contends with defraud. that Fe, at in Santa Santa Fe County, in district court in its instructions erred Mexico, the State and District of New jury by enlarging amending thus and defendant, HAROLD LLOYD PHIL- charging Similarly, indictment. be- LIPS, Phillips, aka Phil Jimmy aka Need- instruction, Phillips cause of the same con- ham, Needham, aka J.A. with unlawful deprived he of his tends was intent, and wilfully fraudulent did cause unanimous verdict. Two additional is- transported to be in interstate commerce are raised: the district court sues 'whether Fe, to Santa in State and District of allowing its objec- abused discretion in not Mexico, Littlefield, Texas, New from prior charging tions falsely forged security, made and jury; and whether the district court erred wit: Check No. 2470 United States giving an “on or about” when account, Corporation Vacuumite Account Phillips’ defense was that of alibi. We Capital Number 00-3958-6 drawn on the affirm. Fe, Bank of dated Santa December 1985, payable J.A. Needham in the August Phillips was On $389.20, signa- amount of on which the superseding in a two count indictment with forged ture of the maker authorized was knowingly transporting a and false- falsely and made the defendant then and ly security made checks—in in- bad —two and there knew said check be intent to terstate commerce with defraud. made. follows: reads as In violation of 18 U.S.C. 2314.

Superceding Indictment I, added). (emphasis R.Vol. doc. 17 Jury charges: The Grand Phillips’ question At checks in signed were checks introduced. Both were I

Count George the name of Smith. Store clerks Littlefield, Texas, day On or about the 11th from testi- December Andrews Fe, Fe fied cashed these checks County, Santa in Santa had Mexico, places representing State and of New their District business defendant, payee, “Jimmy LLOYD PHIL- himself to Need- HAROLD LIPS, Phil aka ham.” offered to show Phillips, Jimmy aka Need- Evidence was ham, Needham, president aka J.A. United States Va- unlawful intent, wilfully Corporation, and fraudulent did cause cuumite was the transported to write checks to be in interstate commerce individual authorized Fe, “George on the Smith” was Santa in the and District of State uncles, Andrews, Mexico, Texas, deceased Phillips’ from one of favorite New * Kansas, Brown, Court, sitting by designation. Wesley Judge, Senior District Honorable E. rule had closed since ed 1887 has been the that after an been the account charges, has returned the checks been before years five through may amendment Handwriting samples in not be broadened in Texas. cashed Stirone except grand jury itself.” signed by repeatedly States, 212, 215-16, v. United into evi- were admitted George Smith name 272-73, (1960). dence. Any such amendment effected to one used Further, similar briefcase plain would constitute court’s instructions place found where per se. error and be reversible previous on at least three Phillips had been At the end of trial the instructed contained blank The briefcase occasions. that: checks, made out to J.A. Needham checks “A check drawn on amount $389.20

in the purpose ... of this law and this case Corporation ac- Vacuumite one, Fe, if: the maker the check was not Capital Bank of Santa at the count sign authorized to on the account of Sheryl of or Phil in the names other checks drawn; two, or which check was the prosecu- maps. The Phillips, and various account; a check on closed or was drawn Needham at trial. produced James tion also three, payable the made a check was he the that had known testified Needham payee proof any of one or fictitious Phillips Harold and Phil defendant as both more of these is sufficient.” years, of but that he had a number for employee of the United been an never R.Vol. IV at 405. the instruc- Corporation and had States Vacuumite the to find the check tions allowed two checks listed in the if, (1) endorsed the made and the maker of indictment, had he nor been sign counts the check was not authorized to on the Littlefield, in drawn; Texas Decem- in Andrews account from which the check was ber, (2) a the check was drawn on closed ac- (3) count; payable the check was made defense, Phillips In his introduced two payee. to a fictitious testimony suggest- witnesses offered who Phillips that this contends allegedly ing that the time he cashed the at amendment of constitutes constructive Texas, Phillips in had been in the checks premise the indictment the that the in- rebuttal, Washington. In state of another forged signature dictment of referred in clerk testified that on the date store the not to a closed maker but account or Andrews, question, at a different in Texas payee. disagree We with that store, Phillips presented check to him for premise. Capital Bank drawn on the of San- $389.20 ta Fe account of the United States Vacu- indictment, interpreting an we The clerk that Corporation. umite testified governed practical rather than tech are endorse the back of observed nical considerations. United States v. Needham, payee. A the check as J.A. 1449, (9th Cir.1986) Martin, 1452 783 F.2d expert handwriting testified that (“Charging tested wheth documents are payee of author endorsement they apprise defendant of er what evi “Jimmy signed meet____ Needham” to the back prepared dence he must be check the exclusion of all this others. in An read its indictment should be entire- according ty, construed to common sense I. interpreted to include facts are which (citations omitted); requires implied.”) necessarily The Fifth Amendment Maggitt, see also United States v. felony only defendant be tried on an Cir.1986)(“An 590, (5th is alleged grand jury in 598 indictment offense indictment. Miller, 135, 130, light purpose, United States v. 471 read in of its U.S. be (cita- charges.”) 140, 1811, 1814, 1817, 105 85 L.Ed.2d inform the accused S.Ct. Bain, omitted). where, Ex (1985). Additionally, as in Parte 121 tion 99 “Ever since 1, 781, 849, case, objection there was no U.S. 7 30 L.Ed. was decid- this

1365 evidence, instructions, or payable indictment made J.A. Needham. The in- court, preserve in order to dictment further avers used efficiency, any judicial must construe the alias J.A. Needham. Given these two ambiguities coupled in in indictment details with favor the averment validity. Freeman, v. States 813 indictment that United knew the (10th Cir.1987) (Indictments checks to be and falsely F.2d made when he caused them be tardily challenged liberally transported which are are inter- commerce, Phillips state validity.) (citing simply could construed in favor of have failed to Watkins, govern- be on notice United v. F.2d States argue ment intended to (7th Cir.1983), at trial 478 n. 2 and United States Cir.1976), check was Pheaster, v. payee check’s was fictitious. rt. ce (1977)); reasoning This same applies to the (6th Cir.1986) Joseph, F.2d segment “closed account” of the chal (“When challenged an indictment is lenged instruction. The specifi verdict, first time after lib will be cally question indicated that the checks erally sufficiency, construed favor were drawn on the United States Vacuum- reversal, and there will no in the ab 00-3958-6, ite Account Number prejudice sence ‘unless Capital Fe, Bank of Santa and were cannot, within reason be construed to was, dated December 1985. There charge ”) (quoting part a crime.’ course, no such account at time. Hart, States Again, given specificity coupled Cir.), the indictment’s Phillips averment (1981)). as Finally, knew that the checks were and concedes, Phillips objec since there was no falsely made at the time he caused their justified tion at reversal is not unless transfer, Phillips was clearly on notice of the district court’s instruction constituted the “closed theory falsity. account” of 19; plain Appellant error. Brief of at see amply supports The record the conclu- 52; Freeman, also Fed.R.Crim.P. 813 F.2d sion that the fairly articulated (“Freeman’s at 305 to object failure to the Phillips and informed of these additional alleged omission and in addition in the theories of how the check was or trial precludes structions at us from find fraudulently government made. When the ing error plain unless the error cited is put proof on that Needham had no 52(b) error under Rule of the Federal Rules connection with the United States Vacuum- Procedure.”). of Criminal With these Corporation, Phillips ite and that identified mind, factors in we cannot conclude that cashing himself Needham when the the trial court’s instruction broadened the checks, Phillips’ interposed counsel no ob- charge against beyond the defendant jection, prejudice, expressed claimed no set out the indictment. surprise. indicated, previously no As when Phillips argues that the final four lines given, the question instruction in was coun- each the count of the restrict expressed surprise sel no and entered no falsity element of to an unauthorized mak- objections to objection although other in- — signature; er’s language but the states Again, objection, structions were made. no otherwise. Each count consists of but of prejudice, surprise claim were ex- single sentence which describes the check pressed by Phillips’ when counsel the relating and material facts charge the government put proof on its that the ac- detail, and concludes with the “the words nonexistent, count was the when defendant then and there knew said check point. on instructed the and falsely made.” short, In a fair upon based read whole, payee aspect ing the the of of indictment as a the con directly check is to in nothing adverted each count. tested instruction did more than The indictment states allegations that the check was reflect the contained the in- indictment, made, request specific nor he a more the did not amend It did dictment. given as than the one to the proof.1 in the instruction no variance and there was obligation. unanimity We also compel jury’s to us thus cited of cases None They Phillips objection all fact to the lack of a involve review different conclusion. unanimity make sufficiently different under situations standard. See United States error” “plain here. them irrelevant Beros, (3d Cir. Payseno, 1987); II. (9th Cir.1986). 832, 834 for appeal, raises On circuit, others, in as in “it is most contention that first time the general defining assumed that a instruction on by the trial court given struction in- deprived requirement him of of suffices forged” “falsely made and must be unani- previously As struct jury verdict.2 a unanimous specifications they find object trial on whatever indicated, Phillips did not mous predicate guilty of defining forged verdict.” to be the instruction exemplars sig- proof handwriting was offered that the with the admits closed, and that check’s George appearing was bank account payee virtually Smith the face nature fictitious, but, argues, checks, "there was was disputed the two sufficient evidence presented to the with evidence no do so. to allow introduced being signed by respect an unau- checks to the During testimony, Agent Special Yokum his Thus, Phillips contends that thorized maker.” handwriting samples from testified that he took to the court’s pursuant defendant to court order. Because it, it, obliged Phillips guilty to find allowed but signatures suspect one of checks were not set out in the indict- on theories which check, George was that of the maker of the issue ment. Smith, Phillips repeatedly signed the However, is evidence which there George part as a of this handwrit name Smith evaluating sufficiency And ”[i]n overlooks. sample. samples ing into These were admitted evidence, we view the evidence— must proved “The evidence at trial. admitted circumstantial, together all both direct admissible, handwriting any person [is] to be drawn therefrom— reasonable inferences comparison, genuine purposes determine government." light in the most favorable handwriting such ness other attributed to Hooks, 780 F.2d United States v. person.” § 28 U.S.C. 1731. denied, 1128, (10th Cir.), 475 U.S. 106 S.Ct. cert. appro comparison, make such entitled 1657, (1986) (citing Glosser v. L.Ed.2d 199 90 by 469, priate 60, 80, 457, evidence was admitted which it could States, 62 United 315 U.S. S.Ct. case, (1942); jury Massey, do so. In the had in evidence the States this United v. 86 L.Ed. 680 1348, (10th Cir.1982)). subject 1354 At 687 F.2d two checks which were the the indict Sterrett, testimony jury the the of Joanne "George heard signed ment and which were Smith” supervisor bookkeeping for the bank on the compare proved exemp with which it could the which the checks were drawn. She testified handwriting sample. from Because lars the checking first the account on which the ultimately factfinding prov nature of this is been for five checks were drawn had closed jury, certainly it ince conclude, was entitled years at time the checks were written. The evidence, Phillips based on infer, testimony, jury might fairly given such signed "George the name Smith” both checks signature on an that there can be no authorized subject which were the of the indictment. See years. account has been closed for five which States, 926, (5th v. United 311 F.2d 932 Strauss Cir.), Second, only person she testified that the sign autho 910, 1299, denied, S.Ct. cert. 373 U.S. 83 10 rized to checks the United Vacu- States (1963). light of the other evi L.Ed.2d 412 checking Corporation H.L. umite account was presented George Smith dence effect Phillips, or Phil the defendant. R.Vol. Ill at 80. deceased, uncle, Phillips’ now was favorite Thus, George were with even if Smith associated Cor that no one connected with the Vacuumite Vacuumite, signature his on a Vacuumite check George jury poration Smith. was named The It was nonetheless unauthorized. is not fairly could make such a determination. prosecution’s burden this case to show who falsely made the check or its autho thoughtful general of this 2. For discussion signature, rized it must show that Russell, 162, see P.2d 175-78 issue State v. 733 concurring); Hampton check v. was made. J., (Utah 1987) (Durham, Cir.1974), see also States, 600, (10th n. United 504 F.2d 604 3 Trubitt, Verdicts, Patchwork 1578, denied, 917, 95 Different-Jurors rt. 421 U.S. S.Ct. ce Verdicts, Theory: Jury Whether and American (1975). 43 L.Ed.2d 783 out, Disagreement by Verdicts are Invalidated Juror though, Finally, points even as 473, Issues, (1983). handwriting expert compare on 36 Okla.L.Rev. 534-41 did not

1367 484, conviction, McClure, supported the 734 F.2d the acts which v. States United Cir.1984)(citing specific unanimity United States v. the lack of a (10th 494 892, (2d Cir.1980); 898 F.2d Murray, plain 618 constituted error. 460; Payseno, Beros, F.2d at 833 see also deciding Without whether Circuit 835; v. United States 782 adopt exception to the rule dis- Cir.1984), 594, (7th Williams, 614 737 F.2d Payseno, cussed in we note that even if it 1003, 1354, denied, 470 U.S. cert. did, general unanimity instruction would (1985); 84 L.Ed.2d In Payseno, sufficient here. the Ninth

Johnson, 646 n. 14 Circuit determined that the trial court’s denied, Cir.1983), cert. jury jury instruction allowed the to convict (1984). There S.Ct. acts, any any Payseno on one of three one unanimously fore, we assume of which would have been sufficient of predi as to all factual reached a decision Payseno’s support itself to conviction under Phillips’ conviction. cates on which based the statute. the Ninth Circuit deter- analysis, ‘only common “In the final “ ‘[bjecause [separate in- mined that speci- can define the and intuition sense occurred, stances], they sep- if in fact were must describe ficity crimes rather than elements of a arate before it con- defendant’s conduct crime, single each should have been Note, Jury Unanimity Right to victs.’ separate in a count of the indict- Issues, 91 Harv.L.Rev. Material Fact ” ment.’ Id. at 835. Because the court (1977). common sense and That Payseno allowed convict based intuition, turn, by informed the cir- acts, any of these three there was a one argu- case and the cumstances of the genuine possibility confusion. parties. In the absence of ments of the Here, opposed Payseno, the indict- unanimity instruction ten- appropriate an ], specified we will not ment two counts each dered ground convictions on the reverse the act for which was on trial. act faulty unanimously instruction.” convict- for which separate ed on two counts Williams, (citing 737 F.2d at 614 causing intentionally Pavloski, States com- made check to travel interstate Cir.1978)); v. Natel see also United States Phillips guilty merce. To find (2d Cir.), li, 527 F.2d “falsely checks to determine that the forged,” were trans- (1976). made and L.Ed.2d 175 commerce, ported in interstate exceptions A few circuits have in in- transported caused the checks to be general unanimity instruc- the rule that a commerce, in- and that he did so terstate guarantee unanim- tion will be sufficient to jury instruc- tentionally. It is true that the grounds required support ity as to all forged” defining made and “falsely tion verdict,3 only the Ninth Circuit has but of the might some members have allowed specific unanimity in- held the lack of a that the checks were jury to determine plain Payseno, error. struction to be See ways. falsely in different made Payseno the Ninth 782 F.2d at 836. however, go indicated, not to that does rule, As Circuit, recognizing general while charged only to one of sever- the crime but a held that when there was nonetheless elements.4 jury confusion as to al possibility realistic Beros, at 458- required nimity 62; See 833 F.2d instruction. example, the Third Circuit has 3. For Gipson, F.2d 453 v. 553 United States unanimity jury specific as to more instructions Cf. Cir.1977). the de- in cases where the statute under which charged number of criminalized a fendant was instruct- trial court asserts that the 4. The dissent acts, proof offered at trial different was guilty jury that it could find ed the might jury concluded that the which the have forged or forgery the check was if it found that any of several of committed one previously ways any three made acts, rejected the district court these and the 2314 § defined. This mischaracterization may request specific una- at trial for a defendant’s inability to at the root of the dissent’s 1368 Barton, 731 F.2d 673 the check United States methods which

The different Cir.1984) (“The general in- court’s might have been separate crimes for unanimity requiring to wheth- not constitute struction as did charged, he or for which proscribed was act which er committed the Barton under indict- convicted have been charged could he was suffi- with which was ... ment, ways in they different constituted cient”). single element of crime a which Thus, if Payseno applicable even charged might have been was which this not present this circuit case does giving jury instruction of By fulfilled. require kind confusion which would the dissent now com- Phillips and See, specific unanimity e.g., instruction. a not did allow to the court plain, 108, 114- Schiff, charged any multiple criminal acts consider (2nd Cir.1986); alone, which, standing would be one of (1987) convict under statute. sufficient to (distinguishing Payseno applying here, Payseno, the unanimous unlike general rule because the different acts requirement is satisfied. “A com- verdict Payseno which the could convict a guarantee unanimous verdict mon tool Therefore, divergent). were so because charging An is the indictment. the jury court instructed concern trial particularized only one offense [in counts] ing general unanimity obligation, and against conviction on a less than guards Pay- fit this case does not into the 12,1 because Williams, F.2d unanimous verdict.” accepted exception general seno to the rule at 613.5 Circuit, by the Ninth the lack of a position the dissent’s The effect of in this not unanimity instruction case was not must decide unani be that hold, plain Consequently, we as we error. mously the defendant committed one must, general unanimity that the instruc criminal acts for which he particular given tion in this was suffi case plain it error charged, is for a but guarantee as cient to a unanimous verdict give specific unanimity trial court not to support the specifications required to all any possibility there where Phillips. convictions record could differ as to any part prove of the evidence offered any charged element of the offense. None III. of the cases on which dissent Phillips’ error last two assertions of far, Beros, gone has

relies so see require do discussion. First he detailed 455; 832; Payseno, 782 F.2d at Echever argues comply failed to 974; ry, Gipson, 553 F.2d at allowing him to Fed.R.Crim.P. previously rejected and we have reading object prior McClure, argument circuit. in this See 30, how jury. them to the Fed.R.Crim.P. (“To reverse F.2d at a conviction based ever, require does not defendant be upon purely possibility juror the abstract object allowed to to instructions before disagreement underlying to certain facts re jury. merely read to the It are would seem elevate the re quires preserve that if the quirement process due defendant is of law—a notion Court”); instructions, clearly rejected by Supreme he must error based distinguish- grasp plain similarly to be error are issue neither tion forgery nor Gilley, convicted nor necessary with was See United v. F.2d able. States 836 jury Phillips per to for the find that (9th Cir.1988); Echeverry, United States v. 1213 sonally forged fraudulently or made the check 375, Cir.1983), (9th modified, 377 719 698 F.2d violating guilty § at issue to him find (9th Cir.1983). As we detailed in F.2d 974 have 600, States, Hampton See v. United however, part opinion, one of this the acts 917, (10th Cir.1974), n. 3 421 U.S. the of both of this which were basis counts (1975). 95 S.Ct. specified were considerable with particularity. 5. The other cases in which the Ninth Circuit two specific the found lack of instruc- jury to if it found that the offense jury the retires consider was object “before on those dates “dates reason- committed its verdict.” alleged,” ably dates it could find near the case, provided the court In the instant guilty. the defendant The counts It read the instruc- opportunity. such an alleged that these dates were them, jury, then excused to the tions of De- or about the eleventh and twelfth they were not specifically directed that but Thus, the jury cember 1985. instruction begin their At this yet to deliberations. permitted jury Phillips guilty to if the find time, to the objections considered instruc- it checks it found that the were delivered objected gen- from counsel. tions Fe the the bank at Santa “on or about” object jury being not able to erally to eleventh and twelfth. they until had been read after instructions reading the jury, objected to the Phillips’ theory main of defense at trial instruction, point- and he the “on or about” alibi; was that of he contended that he was in the court out an error that ed days not in the checks Texas on that the jury. to the reading the instructions cashed, were and seventh. December sixth Because his alibi defense involves response, indicated that its In the court days, permit- he claims that instruction taking to the instruc- objections practice finding ting guilty by to find him they read to tions after were that the were committed on dates R.Vol. offenses by circuit. See IY dictated “reasonably alleged” near the dates de- Louis-San Fran- see also Dunn v. St. (10th Co., prived 683-84 of his alibi defense. Ry. him cisco Cir.1966). Phillips’ objec- disagreed It Lucero, In F.2d v. instruction and to the “on about” tion (10th Cir.1979) rejected a we change it, recalled the declined claim, noting by the “on or similar reading previous error jury to correct related to the date about” The court then in- instructions. “forged passed in which the securities were begin its deliberations structed commerce,” presence interstate not to the This jury was excused. was all and the where and when the defendant requires. that Fed.R.Crim.P. 30 alleged per- government parenthetically note that Dunn does We sonally money orders. transferred objection court’s require instruc Lucero, concedes, direct- relates taken after the instructions are tions ly to in that “on or about” this case jury. extent that it has given to the To the refers to date on which instruction here persuasively so read it has been been criti banking transmitted checks were Wright, cized. See States lines, state not to the date channels across Cir.1976), 982-83 cert. de Phil- Phillips cashed checks. on which nied, 50 L.Ed. however, our lips, asks us reconsider (1977); 2d 790 see also United States having done so decision in Lucero. After Hollinger, 553 F.2d Cir. Accordingly, we its result. we reaffirm 1977) (approving practice disapproved not err find that the district court did Miller, Dunn); Wright 2 C. A. & Feder in this or about instruction delivering its on Procedure, at 705- al Practice § case. 1982). (2d ed. find that district court we Because Finally, Phillips harmed alleged by none of errors committed reading court’s of instruction num the trial Phillips, is AFFIRMED. conviction his or about” instruction. ber twelve—the “on that the in The court instructed dissenting. SEYMOUR, Judge, Circuit checks dictment at issue evidence and judgment, the trial my transported in interstate commerce— were lead to the this case to the bank on which delivered de- Phillips was inescapable conclusion that or about” drawn Santa Fe—“on certain only on an right to be nied his tried further instructed the both dates. Needham, Needham, by grand jury, a and aka J.A. with un- returned intent, jury verdict. and fraudulent did a unanimous lawful right to his willful- fatally ly transported a conviction that is to be in interstate uphold cause its zeal Fe, respects, constitutional two commerce to Santa the State and flawed these problems away Mexico, Andrews, these majority District of from wishes New issues, misreading mischaracterizing Texas, forged falsely a made and secur- indictment, relying inapposite and of the United ity, to wit: Check No. 2649 opinion majority account, I find the Because Corporation cases. States Vacuumite unsound, I logically respectful- legally and Account Number 00-3958-6 drawn on Fe, ly dissent. Capital Bank of Santa dated De- 5,1985, payable to J.A. Needham cember I. $389.20, in the amount of on which the signature the authorized maker was charges upon tried The to be forged falsely and made and the defen- by grand jury and returned is considered dant then and there knew said check to curiosity pas- not a constitutional forged falsely and made. be rendered obsolete. In a sage of time has issue, Supreme discussion of the recent “In of 18 violation U.S.C. “importance of a Court reaffirmed grand jury’s as ‘a substantial intervention “COUNT II safeguard against oppressive arbitrary ” day “On or about the 12th of Decem- pointedly

proceedings,’ and observed that “ ber, 1985, Fe, in Fe designed at Santa Santa Coun- grand jury interpose ‘the is ty, in the State and District of New Mexi- body of citizens independent an between co, defendant, HAROLD LLOYD prosecutor and the the accused and ” PHILLIPS, Miller, Phillips, Jimmy Phil aka aka court.’ Needham, Needham, aka un- 1819 n. J.A. 143 n. 105 S.Ct. intent, (1985) (citations omitted). and fraudulent The lawful did L.Ed.2d 99 willful- continuing ly transported cause to be in interstate vitality confirmed the Court Fe, to Santa in the State and proposition that a defendant cannot commerce “[t]he Mexico, Littlefield, District of New from be convicted of an offense different from Texas, falsely included in the made and secur- that which was indictment.” ity, to wit: of the United doing, at 1818. In so Check No. Id. at Corporation practices by States Vacuumite the Court condemned which “ Account Number 00-3958-6 drawn on great importance ‘the which the com- Fe, Capital Bank of Santa dated De- mon law attaches to an indictment 5, 1985, payable to J.A. Needham cember grand jury, prerequisite prison- $389.20, in the amount of on which the crime, and er’s trial for a without which signature the authorized maker was says person the Constitution “no shall be made and the defen- answer,” may away held to be frittered ” dant and there said check to then knew destroyed.’ until its value almost made. 142-43, (quoting Id. at 105 S.Ct. at 1818 Ex “In violation of 18 U.S.C. 2314.” Bain, 1, 10, parte (1887)). 30 L.Ed. 849 Rec., I, added). (emphasis vol. doc. 17 superseding this case presented The Government evidence at charged Phillips as follows: checking trial that the Vacuumite account upon the checks were drawn had which I

“COUNT long been closed before the date day “On or about the 11th of Decem- the checks were written. Two store clerks Fe, person ber Fe identified as the who had Santa Santa Coun- checks, Phil- ty, in the Mexi- cashed the and testified that State District New co, defendant, lips represented himself as J.A. Need- HAROLD LLOYD ham, PHILLIPS, payee. The in- Phillips, Jimmy aka Phil aka Government also three, Smith, payable George the check was made that evidence troduced checks, payee proof any authorized fictitious one or was not an of the maker signature card for the closed more these is maker on sufficient. The Government’s account. Yacuumite added). (emphasis at 405 Id. to com- was asked handwriting expert, who Phillips appeal contends on J.A. handwriting with the Phillips’ pare above instruction constitutes a constructive signature on the endorsement Needham my amendment of the indictment.1 checks, qualified con- gave his subject two judgment, in this makes the record case possibility slight there was clusion that a conclusion “An indict such unavoidable. checks. When endorsed the Phillips had constructively ment is amended if the evi presence court out of the by the questioned trial, together presented dence with the expert stated that he could jury, the of the instructions, possibility raises the the mak- opinion as to whether give not an an offense the defendant was convicted of person the same who the checks was er of charged in the indictment.” other than checks. endorsed the Apodaca, United States what asked the Government The court (10th Cir.1988). The indictment here the checks demonstrated evidence single theory forth a of criminal set liabili The falsely made. were ty by charging that the statute was violat by pointing to the responded Government signature of the maker was ed because a fictitious Phillips had used testimony that made. The Government himself to be the representing name trial, however, argued had parties had Needham. After payee only the statute not because the violated rested, again requested the unauthorized, alternatively but maker was precisely “what its to state Government fictitious, payee and/or to what constitutes theory is reference non-existent. The evi the account was defendant, alleged the conduct encom dence and the court’s instructions defendant, which violates conduct violating means of passed these latter two statute; falsely made language though they not been the statute even IV, Rec., at 350. forged.” or vol. thus indictment. set out Phillips had vio- answered that Government liability on facts and subjected to criminal had an the checks lated the statute because grand jury. not returned theories maker, or had a signature as unauthorized analogous ex Other courts have construed payee, or drawn on a non-ex- were impermissible pansions of an indictment Significantly, the Govern- istent account. amendments. See United constructive these alter- ment further stated that were Adams, 1124-25 F.2d States theories, any one of which native Cir.1985) (“when particular only one support defendant’s conviction. falsity is to have been kind of instruction tracked the The court’s ..., must rest on that a conviction made viola-, theories of another”); Government’s alternative charge States v. and not Cir.1984) by stating that: tion Yeo, in convicted under (defendant cannot be or “A check is not set including extortionate acts struction this law and this case purpose ... of indictment); v. Cus one, out the maker of the check was if: (6th Cir.1981)(de mano, 659 F.2d sign on the account of authorized through extortion drawn; two, charged with fendant check was account; cannot be convicted of economic loss threat on a closed check was drawn correctly the law and simply stated appeal, instructions the Government 1. In its brief on Assuming these two respond Phillips' supported by that a contention the evidence. did not Instead, true, bearing amendment occurred. on Phil- constructive have no facts to be objecting to the indict- for not criticized lips’ evidence and assertion that the argument in that an absurd ment before of his crimi- impermissibly the basis broadened place until error raises did take indictment. liability set out in the from that nal argued that the also the trial. The Government Indeed, including phys threats of except under instruction structive amendment. for a violence), perfunctory ical reference to the to be (1984); tried an indictment returned Jones, 696, 647 F.2d 700 grand jury, majority’s a reader of the (6th Cir.) (defendants charged illegally analysis and authorities would conclude constructing making a bomb cannot be Phillips alleged that facially a insuffi illegally pos under instruction convicted indictment, cient rather than the construc bomb), denied, 898, 454 sessing a cert. U.S. tive amendment of an indictment the facial 399, (1981). 214 70 L.Ed.2d 102 S.Ct. validity of challenged. which he has not case, above, in those the instant cited Although purposes two of the of an indict constructively amended the the instructions provide ment are to a defendant with notice by expanding the bases of crimi indictment charges against him and to ensure liability. nal charges that he is tried found a distinguish not majority The does or even grand jury, these sepa two functions are acknowledge highly these relevant deci- They rate. involve different considerations Instead, majority sions. relies on the dispositive and different gen factors. See cases, language in four all of which con- erally Radetsky, United States v. 535 F.2d sufficiency cern the facial of an indictment 556, (10th Cir.), denied, 561-65 cert. 429 and none of which address the issue of 68, (1976), 97 S.Ct. 50 L.Ed.2d 81 amendment. constructive See United (distinguishing grand between notice and Freeman, 813 F.2d States v. jury guaranty). assuming Even that the (10th Cir.1987); Maggitt, United States v. gave indictment at issue here some (5th Cir.1986); 784 F.2d United notice of the Government’s intent Martin, States v. present payee evidence of an unauthorized Cir.1986); Joseph, States v. and a closed account—an issue not as clear (6th Cir.1986). In each of majority as the ques would have it—that cases, alleged these simply tion is irrelevant whether indictment or information was deficient on grand jury actually charges returned those its face because it failed to set out the upon finding probable a cause. crime of elements of the which he was majority emphasizes, As the the indict The convicted. issue each case was thus alleges ment that was also known whether the indictment or pro- information as J.A. Needham and that the checks were adequate vided the defendant with notice payable However, to J.A. Needham. charges against him. The discussion quoted in those cases cited and check is not or by made when it majority solely dealt with the payable person using issue of no- a fictitious tice, simply bearing has no on an asser- name if the maker intends the check to be tion of constructive amendment. paid person.2 grand that jury, The while obviously believing sometimes majority’s The ap- concern with notice used the name Needham and that the check pears to from its derive belief that Needham, was made out to nonetheless did gave Phillips sufficient notice of charge genuine that an otherwise check possible payee fictitious and a closed was because a ficti grand jury and that the therefore payee tious was inserted to enable an necessarily had to un have considered and re- See, payee authorized to cash charges. turned those the check. surprisingly, Not e.g., United, majority authority Gearing cites no this nov- approach. (5th Cir.1970), el fundamental flaw the majority’s analysis attempt equate (1971). is its Rather, the issue of notice grand with the issue of con- jury specifically charged it, payee” Under the definition of "fictitious and its maker does not intend that Dictionary, Black’s Law it is stated: payee anything by such shall take it.” 1979). "Negotiable Dictionary instrument is drawn to Black's Law ed. payee payee whenever named it has no I of a falsehood he told do believe cause her. Id. Cit- maker. an unauthorized Stirone, ing Need- we recitation of “aka J.A. reversed the conviction mere con- charged Needham” defendant was not “payable J.A. “[t]he ham” inveigling decoying the check with his victim. The grand jury charge that stitutes the victim was falsely made because the forged and ‘seized, abducted, confined, kidnapped,’ anything, If fictitious. payee expedient of instructing and the specif- refusal to make such a jury’s grand language of the statute violated despite charge, belief ic adding effectively Fifth Amendment ele- Needham, J.A. should be the name used charged.” ments not Id. jury finding proba- grand aas viewed charge not exist to cause did ble significant I see no can distinction be resulting from a falsely made check or tween Sloan and case. The elements payee. 1201, of a of section in addition to violation “(1) component, knowing the interstate are of the more result An even untenable kidnapping, (2) and willful an intent analysis [and] is majority’s the conclusion gain a from benefit that seizure.” Unit by grand jury a closed account the 1066, Crosby, ed States more, reciting, the account merely without (5th Cir.), denied, 464 U.S. grand the bank. When the number and (1983). “Compre 78 L.Ed.2d 696 S.Ct. specif- charges statutory by jury violation language was the hensive used statute] conduct, [in and sim- prosecutors courts are ic “ every possible kidnap variety to cover charging liberty change ‘to the ply not at ping by transportation.” followed interstate an indictment to suit own part of [their] States, v. United 326 U.S. Chatwin been, ought have or notions of what 233, 237, (1946). 90 L.Ed. 198 jury probably have grand the what Presumably the indictment in set out Sloan called to it if their attention had been ” alleged kidnapping of the and oth the date changes.’ suggested v. United Stirone details, just pertinent as the indictment er 212, 216, States, 361 U.S. 80 S.Ct. gave the number the here (1960) parte (quoting Ex check, drawn, account on the which it was 786). Bain, As at at 7 S.Ct. Sloan, here, in other details. But and above, discussed, the “notice” majority’s jury particularized the stat grand how achieves theory of constructive amendment so, did ute was violated because it proscribed in exactly the result Stirone. a viola tell us that it is Stirone Sloan is Finally, majority’s analysis here trial of the Fifth Amendment for the tion decision in contrary to our “ of an change charging part ‘to court Cir.1987). Sloan, 811 F.2d 1359 of what it to suit own notions indicted for kid- There the defendant was ” Sloan, been.’ 811 F.2d at ought to have napping the victim force in violation Stirone, (quoting 1363 n. 6 However, in 1201.3 the court 18 U.S.C. § 273). “ instructed Sloan ‘[w]hoever sum, ground I on the would reverse seizes, confines, inveigles, de- unlawfully con- indictment in this case was any per-, kidnaps, away or carries ... coys, structively amended in violation violating guilty of 18 U.S.C. son’ is Fifth Amendment. (emphasis 1201.” Id. at added § Sloan). The in the case was evidence II. regarding equivocal use of force initially I if believed that to indicate that the victim Even tended amended, I constructively not been complied the defendant’s wishes be- had "(1) willfully transported person is provides part: relevant 3. Section commerce; foreign confines, seizes, or “(a) interstate unlawfully Whoever abducts, decoys, inveigles, kidnaps, or carries any away punished by imprisonment and holds for or reward ransom shall be (cid:127) any person, except in the case of a otherwise years or for life.” term thereof, parent when: minor reaching “In line of affirm the conviction be an unbroken cases not could vote 1800’s, into the late back Justices of right his denied cause Supreme] recognized, Court have [the The in verdict. unanimous dissent, unanimity virtually without it could find jury that structed the indispensable is one features any committed one if he guilty forgery cases, jury trial. In these federal (1) passing a check acts: of three distinct presumed Court has that unanimous ver- (2) signature, passing with an unauthorized trials, essential dicts are federal (3) passing on a closed a check necessarily is fun- payee. payable to a fictitious a check made performed by damental to the function that it had to did not tell The court jury, that result is man- but because unanimously on at least one of these agree by history. reasoning dated The presented con prosecution theories. through runs Court’s Sixth Amend- [the] Phillips committed the proof that siderable precedents that, amending ment arguably presented suf latter two acts guarantee Constitution support a conclusion ficient evidence pre- the framers desired to passed a check with an unautho that he jury safeguard as it serve was known as well. See signature maj. op. at rized to them at common law. At the time the genuine possibility ex 1366 n. 1. Rights adopted, unanimity Bill of unanimously did ists that long been established as one act agree criminal commit on what jury attributes of a conviction at common circumstances, these ted. Under history accord law. both with and [I]n jury instruct that court’s failure to each precedent, ... the Sixth Amendment re- agree that had to commit member quires jury a unanimous verdict con- ted same criminal act constitutes re vict a federal criminal trial.” Beros, v. versible error. United States 833 Id. 369-71, 1635, 92 S.Ct. 455, (3rd Cir.1987); 461 (citations omitted). and Al- footnotes Echeverry, v. 974, 975 Cir. though majority a of the Court has held 1983). unanimity requirement that does not 31(a) governing Fed.R.Crim.P. verdicts states, apply to the the Court has unani- trials states that federal criminal agreed mously “[t]he that no verdict can with- practice verdict shall unanimous.” This be scrutiny stand constitutional if less than Louisiana, majority Burch v. that a is so well settled jurors agree. six can in the Supreme companion 130, 1623, held cases Court 441 U.S. 99 60 L.Ed.2d S.Ct. 96 Louisiana, Johnson v. 356, (1979) (six person jury unanimous); 92 U.S. must be Georgia, see Ballew Apo v. (1972) 223, L.Ed.2d 152 S.Ct. and Oregon, daca v. (1978) (Sixth 55 L.Ed.2d 234 406 U.S. 92 S.Ct. (1972), requires jurors Amendment at least six 32 L.Ed.2d 184 that a unani trial). criminal jury requirement implicit mous verdict See Amendment. Sixth U.S. at The instructions in the instant case not (Brennan, J., 92 S.Ct. at 1650 dissent only permitted jury to return a non- (“a ing) majority agrees of the Court guilty, actually unanimous verdict of but requires the Sixth Amendment a unani only jurors allowed a conviction if four mous verdict in federal criminal agreed upon any tria one criminal act commit- ls”).4 by Phillips. example, jurors As Justice Powell articulated: ted For four Apodaca Oregon, right In to a and that this was made (1972), Burger, Justices applicable to state criminal trials the Four- White, Rehnquist Blackmun and concluded that teenth Amendment. Justice Powell concluded require jury the Sixth Amendment does not una- although requires the Sixth Amendment nimity accordingly approved a state court trials, require- unanimous verdict in federal conviction based on a ver- less-than-unanimous incorporated ment is not into the Due Process Brennan, Marshall, Douglas, dict. Justices Amendment, Clause of the Fourteenth Stewart concluded that a unanimous verdict is apply therefore does not to the states. an essential element of the Sixth Amendment requires the sixth amendment Phillips passed á “Just as may believed have signature, not that in federal criminal but cases check with closed account check on a offense that it finds a passed a on each delineated he ju- payee; fictitous four to a payable culpable, defendant ... it must also re- one Phillips cashed may have believed regarding rors quire unanimity but not that on a closed a check of- act or acts which constitutes that acts; finally, two the other committed certainty, such the una- fense. Absent jurors may have believed four nimity requirement provide too lit- passing a check made only criminal act was protection many tle in too instances.” payee. payable Cf (citation omitted). Beros, 833 F.2d at 461 n. 8 Gipson, States my judgment, this conclusion is un Cir.1977) exam- (presenting a similar doubtedly correct. While it is true that ple). legal system within our unanimous has defined Supreme Court never power pronounce has the unconstrained jury verdict. meant a unanimous what is charges innocent of case, the Court importantly for this Most compelling the against him no matter how a defendant’s never decided whether has government’s proof, has no similar is denied jury verdict right to a unanimous guilty. power to find a defendant Criminal provides a number statute a criminal where requires at least distinct ele sanction two ele- satisfying the actus reas ways of possess ments: the defendant must all and not ment of the offense intent, rea; and he requisite criminal mens upon act jury agree members of the act, committed a criminal actus must have although committed the defendant requirement reas. If the former prohibited he committed one agree relevent, might role of the prob- analysis of the superficial “A acts. question guilt, limited to the ultimate might the conclusion that since yield lem guilt finding of nec a unanimous because required find all juror still every agreement essarily connotes unanimous in present offense elements Ameri existed. that mens rea Within defendant, there was to convict the order however, a justice system, can criminal agreement as jury necessarily unanimous guilty solely pronounce a man jury may not F.2d at 457. guilt.” Gipson, 553 to his unanimously he has believes because roundly simplistic analysis has been This necessary to vio requisite criminal intent however, it conflicts with rejected, It must also find that he late a statute. interpretation of the function of proper prohibited by the a criminal act committed desirability a unani- of and Jersey, 306 Lanzetta v. New statute. Fifth, Cf. Third, and Ninth mous verdict. (1939) 83 L.Ed. rejected the view explicitly Circuits have vague unconstitutionally (holding statute complete agreement as if the specific a act or for failure to condemn guilt, and sufficient evi- the defendant’s right to omission). the constitutional finding guilt of under supports a dence “to have a by jury is the trial appellate court theory, an applicable some guilt question of the ultimate pass on Beros, 833 affirm the conviction.5 must the facts rele to ascertain innocence and 461; Payseno, v. States F.2d 2 W. LaFave determination.” vant to that Cir.1986); Gipson, 21.1 Israel, Procedure Criminal Judge & J. § In at 457-58. the words added). (emphasis (Supp.1987) Higgenbotham, jury’s logic inquiring behind the into the in this case is distinct issue raises 5. The sufficiency here is different. challenge [The the evi- The situation to the verdict. from a non-unanimity challenge is based defendant’s] dence. by jury, but on a result reached not on the contrary, competent evidence to the "[A]bsent may judicially have to assume that an court has no reason a a non-unanimous verdict." sanctioned compromise verdict is not inconsistent omitted). (footnote unanimous, Gipson, F.2d at 457 justification no and therefore has time, pro- concep- jury’s prerogative performed be same are Because two guilty is limited these tually definitionally man and distinct. Differen- a nounce imagine no rationale I can ways, tiating passing between a check with an unnecessary constitutionally render signature, on passing unauthorized a check defen- as to a federal verdict unanimous a passing closed and a check made a Because a criminal act. particular dant’s “presents nei- payable payee by a justified can sanction criminal conceptualization nor the charac- ther the criminal criminal intent and a finding of a problems posed distinguish- by terization finding requires act, intent a reliable storing ing" receiving stolen between members of a federal agreement twelve Gipson, 553 F.2d at 458. merchandise. logic requires us community, defendant’s jurors “The individual and the collective agreement that similar conclude expected perceive jury could be and un- act is constitu- defendant’s criminal derstand” distinctions between Comment, tionally required. Case See acts in three relevant this case. Id. Unanimity Jury on Material Right words, Phillips’ jury found that he other Gipson, 91 Fact Issues: United States check, cashed a but the relevant criminal (“The (1977) Harvard Law Review cashing doing a so in act was check but holding Fifth was correct Circuit proscribed ways. one of three Since the requires that a feder- the sixth amendment permitted instructions to return a upon conviction rest a consensus al guilty agreement verdict of without reas, gener- specific in addition to a a actus proscribed defendant acts the agreement guilt on the of the defen- al did, jurors rational easily could distin- dant.”). acts, those guish between the omission a Wisdom, writing Judge for the court unanimity instruction constituted recognized problem Gipson, a twofold error. constitutional requirement unqualified an previous This circuit’s two encounters First, act. distinction as to criminal with the unanimous issue constitute may certain acts be no more than between larger adoption my posi- obstacle subjective conceptualization. example, For panel tion of this court. In United single keeping act a vehicle “[t]he McClure, States may place certain constitute both conceal- Cir.1984), upheld we a conviction where ing storing.” F.2d at 458. Gipson, permitted jury to find the Similarly, the difference two acts between guilty if jurors some of the be- may be no more than a definitional distinc- example, possessed juror may pound tion. For view a lieved that of cocaine “[o]ne housing sepa- actions in a stolen possessed defendant’s ve- and others believed he receiving, juror may hicle as while another package containing gram. Similarly rate that the constitute Barton, conclude same actions United States 731 F.2d concealing storing.” Fifth Id. The Cir- (10th Cir.1984), we upheld a conviction suggested Gipson cuit that such distinc- permitted where should not be tions deemed to undermine guilty possession find the defendant of unanimity of I jury’s verdict. possessed during firearm if he one agree, necessarily conclusion cases, In two transactions. both jury unanimously agreed assumes that the adopt purported reasoning, Gipson’s we behavior, as to the al- defendant’s actual distinguish Gipson but facts. Unlike though may agreed its members not have every opinion other circuit to the name attached to that behavior. issue, however, opinions address our adopted long the maxim as the recognized that as problem Gipson is not agreed jurors probably relevant The three instant case. prohibited prohibited

acts under which did some act at some time the statute tried, McClure, other, although they could all the verdict must stand.6 McClure, general adequate. nimity presumed 6. In we also held that a una- instruction must be finding (holding unanimous at 494 sufficient); cocaine Bar- connection to (holding ton, at 673 unanimous sufficient). To the

finding possession prevent and Barton

extent that McClure my position, I adopting from

this court their rea- should reconsider that we

believe

soning. sum, reasoned I follow well would Third, Fifth, and Ninth

decisions

Circuits, hold that the verdict must unanimous as to the

federal trial the defendant.

criminal act of

I reverse. COLEMAN, Troy

Charles

Petitioner-Appellant, Warden, SAFFLE, Oklahoma

James Meachum, Director, Prison, Larry

State Corrections,

Department Attor- Oklahoma,

ney General of State Henry, Respondents-Appellees.

Robert

No. 87-2011. Appeals, Court of

Tenth Circuit.

March (if citing Oregon, rectly Apodaca v. portion panel opinion not the This of our (1972), suspi-. propo- opinion) be viewed with some for the entire cion, however, must L.Ed.2d 184 panel la- because the members required "jury sition impression that a under the mistaken bored justices five when in fact sixth amendment” constitutionally- unanimous verdict was otherwise). concluded McClure, (incor- required. See 734 F.2d at 495

Case Details

Case Name: United States v. Harold Lloyd Phillips

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 17, 1988

Citation: 869 F.2d 1361

Docket Number: 87-1007

Court Abbreviation: 10th Cir.