UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 20, 1969.
UNITED STATES OF AMERICA
WILLIAM EDWARD BEARD, APPELLANT. UNITED STATES OF AMERICA V. HAROLD GARRISON, APPELLANT
Kalodner, Van Dusen and Stahl, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
On February 13, 1967, defendants were separately indicted in two counts for violation of the following offense described in 18 U.S.C. § 2314:*fn1
"Whoever, with unlawful or fraudulent intent, transports in interstate * * * commerce any falsely made, forged, altered, or counterfeited securities * * *, knowing the same to have been falsely made, forged, altered, or counterfeited; * * *
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
Without objection by defendants, a joint trial of both defendants was held in November 1967 and a verdict of guilty as to each defendant on each count was returned. After denial of motions for new trial, judgments of conviction were entered on the verdicts on July 10, 1968. These appeals, filed later that month, challenge the judgments of conviction.
For the first time, defendants contended on appeal that the indictments were fatally defective for failure "to state one essential element" of the above described crime, namely, "unlawful or fraudulent intent."*fn2
Since the counts of these indictments do not allege the essential element of "unlawful or fraudulent intent," this case is governed by United States v. Manuszak, 234 F.2d 421, 423 (3rd Cir. 1956), where Judge Staley said:
"For this reason the count is a nullity as a charge of a federal crime and should be quashed. The defect is not one of form which will be overlooked after a verdict when no prejudice is shown. Although after a verdict every intendment should be indulged in support of the count, neither the verdict nor the evidence supporting the verdict can be used as a basis for dispensing with the rule that the indictment must state all the essential ingredients of the crime."
The Government's contention that the failure to allege in these indictments the statutorily prescribed intent is a "technical deficienc[y] which did not prejudice the accused" is not supported by the federal cases. See Smith v. United States, 360 U.S. 1, 9, 79 S. Ct. 991, 996, 3 L. Ed. 2d 1041 (1959),*fn3 where the court said:
"But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. The use of indictments in all cases warranting serious punishment was the rule at common law. [Citing cases.] The Fifth Amendment made the rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings."
See, also, United States v. Britton, 107 U.S. 655, 2 S. Ct. 512, 27 L. Ed. 520 (1882); United States v. Tornabene, 3 Cir., 222 F.2d 875, 878 (1955);*fn4 cf. Rosen v. United States, 161 U.S. 29, 33, 16 S. Ct. 434, 40 L. Ed. 606 (1896).
In United States v. Blackshere, 282 F. Supp. 846 (D.N.M.1968), the court held that an allegation that the defendant knew the property to be stolen was insufficient to charge that an act was caused to be done "wilfully" under 18 U.S.C. § 2, using this language at 847:
"The allegation that the defendant knew the cattle to have been stolen does not supply the indictment with the necessary element of willfulness, for it cannot be said to have the same meaning."
Although in the instant case the trial judge included in his charge a reading of the offense as described in 18 U.S.C. § 2314 and further instructed the jury that an essential element of the crime is action "with an unlawful or fraudulent intent,"*fn5 the grand jury, by returning the indictment as worded, made no finding of probable cause to believe that an essential element of this federal crime, namely "unlawful or fraudulent intent," was present. In Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 1050, 8 L. Ed. 2d 240 (1962), the court pointed out:
"To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him."
See, also, Van Liew v. United States, 321 F.2d 664, 669 (5th Cir. 1963). In Stirone v. United States, 361 U.S. 212, 215, 217-218, 80 S. Ct. 270, 272, 273, 4 L. Ed. 2d 252 (1960), the court said:
"The crime charged here is a felony and the Fifth Amendment requires that prosecution be begun by indictment.*fn6
"* * * a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. * * *
"The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge."
This court has rejected the Government's contention that F.R.Crim.P. 34*fn7 precludes a challenge to the sufficiency of the indictment which is first made on appeal. See United States v. Manuszak, supra, 234 F.2d at 422.*fn8
In view of the foregoing, it is not necessary to consider the remaining arguments urged by defendants as requiring reversal of their convictions, except to note that pre-trial examination of witnesses to a lineup is not contemplated by United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), despite defendants' contention to the contrary. The recognized method for ascertaining impropriety in identification procedures is by cross-examination of the identifying witnesses at trial. See United States v. McKenzie, 414 F.2d 808 (3rd Cir., Opinion of 8/12/69). Cf. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Wade, supra, at 220, 87 S. Ct. 1926; Gilbert, supra, 388 at 271, 87 S. Ct. 1951.
The United States will be free to reindict and retry the defendants according to law. See United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896);*fn9 United States v. Tateo, 377 U.S. 463, 465, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); United States v. Ewell, 383 U.S. 116, 121, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); United States v. Williams, 412 F.2d 625 (3rd Cir., Opinion of 6/18/69). We note that the statute of limitations has not run. 18 U.S.C. § 3282; cf. 18 U.S.C. § 3288.
The judgments of conviction and sentences will be reversed and the cases remanded with direction to dismiss the indictments.