United States v. Donald Anderson and Jack Smith

Appellants were tried before a jury in the United States District Court for the Northern District of California and were convicted on both counts of a two count indictment. Count One charged a conspiracy from on or about the 22nd day of January, 1974, and continuously thereafter up to and including February 6, 1974, in the Northern District of California and elsewhere, to transport stolen stock of Flying Diamond Corporation (FDC) having a value of $405,-000.00, in interstate commerce in violation of 18 U.S.C. § 371 .

Count Two charged that the defendants did transport in interstate commerce from Salt Lake City, Utah, to San Francisco, California in the Northern District of California, stolen securities, that is, 90,000 shares of stock of FDC, of the value of approximately $405,000.00, knowing the same to have been stolen in violation of Title 18, United States Code, §§ 2314 and 2.

On appeal defendants have asserted twenty-one errors. We have considered all of them and found them to be without merit. We discuss those questions relating to the statute involved, the sufficiency of the indictment, the sufficiency of the evidence, variance, amendment of the indictment,…

(dissenting):

I dissent. I would reverse on the ground that the grand jury charged one offense but the government failed to prove it. Instead, *1231 the government proved another offense, which the grand jury did not charge.

Section 2314 of Title 18, U.S.Code, defines a number of offenses. Even the first paragraph of the section, which is the one on which the indictment is based, defines more than one offense. It reads:

Depending on how it is construed, the foregoing language can be said to define at least five offenses: knowing transportation of stolen “goods” or “wares” or “merchandise” or “securities” or “money.” The number can be doubled by treating transportation in “interstate” or “foreign” commerce as separate. They appear in the statute in the disjunctive. Further multiplication by at least three lurks in the differences between “stolen,” “converted,” or “taken by fraud.” Nor is this all. “Securities” is defined in the fifth paragraph of § 2311. 1 Again, depending on how the language of § 2311 is construed, the number of possible separate offenses is at least 30, and if we add “forged,” “counterfeited,” or “spurious” as separate, the number approaches 100. All of these…

532 F.2d 1218 UNITED STATES of America, Plaintiff-Appellee, v. Donald ANDERSON and Jack Smith, Defendants-Appellants. Nos. 74-3291 and 74-3292. United States Court of Appeals, Ninth Circuit. Jan. 23, 1976. Rehearing and Rehearing En Banc Denied March 30, 1976. 1 Steven M. Kipperman (argued), San Francisco, Cal., for defendants-appellants in 74-3291. 2 Stephen Arian (argued), San Francisco, Cal., for defendants-appellants in 74-3292. 3 Michael Starrett, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. OPINION 4 Before DUNIWAY and SNEED, Circuit Judges, and PLUMMER, * District Judge. PLUMMER, Senior District Judge: 5 Appellants were tried before a jury in the United States District Court for the Northern District of California and were convicted on both counts of a two count indictment. Count One charged a conspiracy from on or about the 22nd day of January, 1974, and continuously thereafter up to and including February 6, 1974, in the Northern District of California and elsewhere, to transport stolen stock of Flying Diamond Corporation (FDC) having a value of $405,000.00, in interstate commerce in violation of 18 U.S.C. § 371 . 6 Count Two charged that…