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United States v. Beard

decided: August 20, 1969.

UNITED STATES OF AMERICA
v.
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. ยง 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 ...


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