*3 THORNBERRY, Before COLEMAN *, and ROSENN Circuit Judges. Judge. COLEMAN, Circuit of his conviction appeals Windom Rex true uttering as and publishing en- forged bearing government to knowing the endorsements dorsements We affirm. forged.1 been against direct evidence Windom Ray- supplied by three was witnesses— Maxwell, Starns, and James mond Boyd. George Testimony Starns’ trial, Raymond the time of the At serving was a sentence in federal Starns arising out some of penitentiary which de- criminal activities with same charged. testified Starns fendant at- February of 1972 he was business, tempting bankrupt to sell his and Manu- Mechanical Maintenance the facturing 16, February On Company. him 1972, a associate introduced business represented Windom the defendant. * 1. The Of the Third ary, ham Treasurer’s Check obtained tor Transit 394.42, ruary as true ing, back of Tri-State That on or the United Eastern District 1972, first count Windom and of said 1, 1972, did then and possession of a is, Company genuine a false and Motor Circuit, Denham check, about and and there utter falsely forged Count No. payable Transit Raymond Starns the indictment the 16th with intent sitting Springs, Louisiana, wit, the amount I genuine Company a United day of Febru- Tri-State Louisiana, endorsement forged and designation. dated to defraud obligation Rex reads: publish having writ- Stid- $10,- Feb- Mo- which defendant was cal to the There were seven additional the said writing, in violation of Title with intent tered, both. imprisoned 18 U.S.C. Section 495 and Section 2. such Shall States, knowing Whoever utters or ^[******] false, forged, or first, except writing § fined forged, States, not more .than ten not more Par. to be false and the same counterfeited; altered, well and indicted. 18, to defraud the United for the check number. publishes the statute under or than truly knowing counts, counterfeited be as true forged; reads: $1,000 years, false, identi- Code, any al- all or or George Boyd, himself to be President of Contact between Starns prosperous corporation, Missouri terminated with their arrests. Tri State Motor Transit. He told Starns planning

that he was invest in a Loui- Testimony Maxwell’s might siana be interested in business Maxwell, James President of the Den- buying the Mechanical Maintenance and Bank, Springs ham First National cor- Manufacturing Company. testimony roborated Starns’ to the effect During proposed the discussion of the bank, that defendant had come to the sale, defendant told Starns that he want- represented George himself to be open ed to an account in a Louisiana Boyd, deposited government and had bank. Starns recommended the First checks made out to Tri State Motor National Bank Springs, of Denham cashed, He Transit. testified he had business, where he did his banking $35,000 signed “George Boyd”, check agreed to take Windom to that bank. *4 delivered secretary. the He further they got bank, When Starns that given testified Starns had him a and Windom talked with James Max- $110,000 signed check “George Boyd”. well, the president. bank Defendant $110,000 The check was payable to an- again represented George himself other bank and was drawn for a transfer Boyd, explained his desire to open of funds. He honored this fraudulent open account, an account. To the he check, the money was recovered. checks, produced U. S. Government Transit, out to Tri made State Motor the Boyd’s George Testimony corporation Missouri he to rep- claimed George Boyd The real testified he that resent. Since defendant said he did not president Transit, of Tri State Motor him, have company's stamp the with that he banking Missouri, does all his in Maxwell had Tri State’s endorsement that he has never been in Denham typed representation on the checks. The Louisiana, Springs, and that he does not that the endorsements were true au- know how the defendant obtained the is the thorized criminal act for which government payable checks made to his Windom stands convicted. company. testified he and defendant Starns that meetings purpose the two other for had The Appellate Arguments discussing proposed the Mechanical Defendant makes no claim that the sale. One was a occasion Maintenance above recited evidence is insufficient to meeting Rouge at a Baton coffee brief Instead, sustain the conviction. urges he place at shop. other took the offices The alleged evidentiary, procedural, various The office attorney. law of Starns’ and instructural errors: the meeting was occasion on which Win- I. Did Judge the err in admitting he on the account first drew dom fraudulently supplementing evidence facts stated in the established in Denham stipulation? a written $35,000check, Springs He Bank. drew government The Starns, took a handwriting it gave gave it to who to one of specimen from who, turn, defendant. It lawyers, gave it had an the in to a handwriting F.B.I. expert secretary compare this cashing. secretary for The re- handwriting cash; with signatures the put on the defendant it turned checks and other signed by documents his briefcase. in person calling the “George himself meeting no The ended with finaliza- Boyd”. government The hoped to show of the sale of the business. Starns tion that the signed individual who had the airport. the On defendant to drove “George checks Boyd” as was the de- way, left unclear Starns’ for reasons fendant. testimony, gave Starns $5000 handwriting cash, expert could reach no plus some Starns definite conclusion as to. whether or not to have been stolen. later discovered signatures the checks were on Windom. The prejudiced testimony of Consequently, by defendant. made witness did not contradict the stipu- entered and the defendant government Indeed, it confirmed lation. it. following stipulation: proposition down the nailed that handwriting expert could not analysis of the conclude the basis “[0]n the handwriting Windom did it was not determined that comparison, This question. should been to Win- handwriting on the exhibits that True, advantage. the witness was handwriting of Rex dom’s Windom.” was the say allowed to that Windom could have trial, prior time Some it, but that was not done what the case Windom’s counsel advised government was, was about. The issue did he utter handwriting call its planned forged typewritten Fur- endorsements? government at- testify. expert thermore, defense counsel had been coun- torney specifically invited defense adequate handwriting notice that the ex- he expert so that question sel testify. would be called to pert prepared to cross examine. would be was declined. The invitation eye of the witness testi view trial, objection, over the hand- At the of the no contradiction mony, view of testified in detail about writing expert stipulation, of the in con premise basic signature analy- used in procedures expert the fact sideration of although He further testified sis. say he could witness admitted conclusion, no the defend- had formed Windom’s, writings were and in that the *5 signed the possibly “could have” ant coun that defense further consideration checks. the along expert all that was sel knew says the admission of the Defendant testify, apprais our to be called to going error testimony was reversible expert’s that if error existed this skirmish is al of may not be stipulation “a written since beyond a reasonable it was harmless on, taken, testimony nor commented doubt. parties agreed stip- have the once ulation”. by unimpressed similarly We are in concerning the complaints creep appellant’s this factor was allowed to How conceded, which of the Court incomprehensible. the case seems structions into govern that the unnecessarily, although uttering on trial for Windom was not the evi prove by to would charge The ment handwritten endorsements. doubt that a beyond reasonable falsely represented that he had him- dence was aof possession had “obtained president company the of the Windom genuine self to be the United States.” obligation of whom the checks were issued and had to falsely this, this charged indictment authority The represented that he had was offense The surplusage. pure was typewritten to cause endorsements to be a sto possessing forgery, not uttering a to the checks. That he did cause affixed The end result check. government typed to be on the len endorsements the as government the all this eye witness of proven by checks was the of the and, the instructions sumed testimony of both and the bank Starns carry a burden to Court, required was the president. If can be said to it. assignable properly was Boyd’s signature real on forgery of the Rule being prejudiced, of Instead would tend checks drawn on the account was hand Fed.R.Crim.P., the defendant guilty of the Boyd was to show issue in was a sham a windfall. that the ed original forgery, the answer is Obviously, the any event. proven by di- forgery already had been the of possession the into evidence, to come rect, had secondary than as rather offered not have checks, he could else $30,000 delivery the check to had the of president. the bank to them attorney. the in the assignment about hand, equally The other we are On the abetting, 18 and aiding on any way struction skeptical episode the 2,2 consigned to simi- with must a We are next met the asser § U.S.C. appellant argues fate. The that this tion that the trial court should not have lar wholly improper jury was because the in the charged following instruction lan no evidence that Windom aid- guage: there was commit the offense another ed writing payee’s of a endorse- words, by govern- charged; other Treasury on ment Windom was himself the proof, ment’s any person Check other than the so, Even had testified

principal. Starns willfully if done payee, and without prior one occasion that on time defraud, authority, with intent to deposited government Windom a forgery constitutes within the mean- bank, he, Springs the Denham checks in ing Section 495 Title 18 Starns, the close associate of Windom United States Code. checks, depositing deposited agree with what 8th Circuit We $300,000 in stolen Treasury *6 great received with prob caution. The eral, prosecuting attorneys longer are no lem with this is that request the defense themselves, or permitted indulge their no such instruction, point ed so the is of audiences, unrestrained, in abusive his moment plain no unless it amounted to trionics, giving personal their evaluations give error. The failure to such an in of what a low-down fellow the defend struction where testimony of the ac Nevertheless, really ant is. the law re complice only is the direct evidence unflattering mains characterizations plain error, against the accused is Tillery provoke of a defendant will not a rever States, Cir., 1969, United 5 v. 411 F.2d descriptions supported sal such are when 644; States, Williamson v. Cir., United 5 See, g., the evidence. Walker e. v. 1964, 332 F.2d 123. Cir., 1971, Beto, 5 437 F.2d in prosecutor which the referred to the ap To the in contrary, a case where “professional pellant as a criminal.” the defendant was convicted on un testimony corroborated of two convicted complains Appellant that since declined, we accomplices in the absence all were eight uttered a situation, close evidentiary to re recipient same time to the same give verse for instruction, cautionary failure to a prosecuted, should not have been con Clark, United 5 counts, victed, and sentenced on Cir., 480 F.2d 1249. charging each check as basis for an (b) willfully Whoever act causes an to be provides: 2§ 2. 18 U.S.C.A. directly performed by if done which him or against offense an (a) commits Whoever against another would an be offense counsels, abets, aids, or the United States commands, punishable principal. is as a procures commis- its or induces principal. sion, punishable aas

995 Bell was convicted of two in disagree. Each count. We individual the Mann Act for under trans- counts document, requir- separate was a check ing two women on the same occa- porting endorsement, and thus separate a provides part: The Mann Act in sion. Besides, the individually. uttered was concurrent sentences. appellant received knowingly transports in in- Whoever Hale, Cir., 1972, United States See foreign . or commerce terstate as- deals with both girl . any woman or argument. of this pects (1970). Supreme 18 U.S.C. § Affirmed. only one offense held Court committed. been ROSENN, Judge (concurring). Circuit argumen- not to be denied that It is Although majority’s I concur in the skill, Bar, was shown at as tative conviction, of defendant’s I affirmance persuasively and unreasona- could vacate his sentence and remand would conflicting either of the con- bly reach only sentencing on one count. for only one aspect About structions. under which defendant The statute dogmatic. problem can one be provides part: convicted in Congress has the will it has When no difficulty expressing it—when it has publishes utters or as true Whoever is, will, defining altered, what false, forged, any such or prosecution the unit of desires to make writing, with intent counterfeited and, particularly, more to make each States, knowing the United defraud faggot single criminal stick in a a unit. false, altered, forged, the same be leaves to the Congress Judiciary When be fined or im- or counterfeited [shall imputing Congress the task an prisoned]. will, ambiguity undeclared should (1970). The Government 18 U.S.C. § lenity. be resolved favor of And “any” the word in the statute upon relies any not out of this sentimental consid- its contention that each check ut- for eration, sympathy or for want of offense. I separate tered constituted a Congress purpose proscribing misplaced. this reliance is believe may antisocial fair- evil or ly conduct. check representation that endorse- presupposition a said to be of our authorized consti- were true and ments in the to resolve doubts enforce- law transaction, only single and thus tuted penal against impo- code ment of one only offense. punishment. sition of harsher This Driscoll, the de- implies language wise in no used was convicted on six counts un- fendant in criminal statutes should not be read making a statute it unlawful der *7 saving grace with the of common transportation cause the interstate enactments, sense with which other made, altered, forged, “any falsely or language, are to not cast in technical . . ..” 454 counterfeited securities be read. Nor does it assume that of- (5th 1972); 18 F.2d 792 U.S.C. § Cir. against carefully fenders the law read (1970). Although 2314 six checks were they code embark on penal before evidence, in placed passed defendant that if Con- merely It means crime. only these checks on three occa- separate punishment for gress does not fix sions. 454 con- F.2d at 801. The court without clearly and a federal offense only cluded that three violations of sec- be resolved ambiguity, doubt will 2314 tion occurred and the Government transaction turning single against apparently so conceded. Id. offenses, when we have multiple into Supreme The Court’s decision in Bell present case go on than the more to no States, although dealing v. United furnishes. a criminal statute in different substan- 83-84, at 622. 75 S.Ct. 349 U.S. area, strong support to the tive lends present distinguish 81, unable 349 I am position adopted in Driscoll. U.S. Both or Bell. either Driscoll 620, (1955). 905 The from 75 99 L.Ed. case S.Ct. 996 Only Varner cites Benton. 437 F.2d at

section 495 which is involved here arid 1197. Other in Circuit, cases the Fifth the statutes in Driscoll and construed however, have held that concurrent sen- “any” Bell contain the word in the same tencing does cure conviction on more syntactical context. As was the statute permissible than the number of Bell, counts. 495 is in in Thus, section criminal nature. White, 978, States 440 F.2d we 981 because are confronted with an (5th 1971); n. 4& Cir. Holland v. United expression congressional no intent 370, (5th Bell, 1967) 371 in Cir. more clear than we should re- (pre-Benton); Mori, see United ambiguity concerning punish- solve the (5th 444 F.2d tum). 1971) (dic- Cir. lenity” ment “in favor and hold that only defendant committed one offense. agree I with Judge Goldberg, writing Because defendant could have been Driscoll, in offense, multiple sentencing

convicted of one the district prejudicial. 454 F.2d at sentencing 801. court erred him under each majority, of ever, counts. The how- arising sentences [S]everal from what treat any would such error as should have been a lesser number of harmless since the sentences pronounced offenses, even if the sentences are con- by the district court are to run concur- current, prejudicial would be rently. agree I cannot the error reducing his opportuni- sentencing was harmless. ties parole pardon for earlier or .... so-called concurrent sentence “doctrine,” if ever was recognized, has Id. This harm recognized prior been eroded substantially in recent Driscoll in the cases, White and Holland years. Supreme Court decided in supra. Maryland Benton v. that concurrent sen- I would vacate the imposed sentences tencing multiple pre- counts does not by the district court and remand the case clude, as a jurisdiction, matter of consid- for resentencing on one count. alleged eration of errors on one count if another count leads to a valid conviction. 784, 787-91, U.S. 89 S.Ct. (1969).

L.Ed.2d 707 may in certain circum- court,

stances a appellate federal aas discretion,

matter of might (as decide Hirabayashi) (1943)] U.S. 81 [320 it is “unnecessary” to consider all ENTER- LUDLUM the Matter of allegations made a particular INC., Bankrupt. PRISES, party. The concurrent sentence rule may continuing have some validity as LEASING INDUSTRIAL AMERICAN judicial rule convenience. COMPANY, Appellant, (footnote Id. at 89 S.Ct. at 2060 omitted). Trustee, Appellee. SEARLES, S. Circuit,

In the Fifth one line of cases David employed has the “discretionary” concur- No. 74-1270. *8 rent sentence rule since Benton. United Appeals, Court Hendrix, (5th States 487 F.2d 893 Cir. Circuit. Fifth 1973) (per curiam); Lee, United States (5th 1973) curiam); 483 F.2d 968 (per Cir. 7, 1975. April Payne, 467 F.2d (5th 1972); Cir. United States v. Dumen-

igo, 1971) (5th Cir. (per

curiam); Varner, United States v. (5th 1971) curiam).

F.2d 1195 Cir. (per U. S. notes Cummings said in in the same bank as collateral for a loan Cir., 1968, 382: F.2d the refer- arranging he was for some associates. merely forgery explanatory ence to testimony given This could have rise to charge, uttering actual the for- inference, jury an if saw fit to ac- giving the gery, and in instruction the it, cept that if acting Windom was not not submit an trial court did additional deposited his own behalf when he not contained in the charge indictment. aiding abetting he was in his various activities associated Starns Finally, we are told that government stolen checks and secu- Judge District committed reversible er rities. ror when he declined to declare mis prosecutor trial after the in the course of appellant additionally com argument referred the defendant as a plains of the failure of the District Court temptation “con artist”. We resist the give customary accomplice present recapitulation many in-, struction, that such testimony must be subject. dealing gen cases with this