495 F.

2d 593

UNITED STATES of America, Appellee,

v.
Solomon Leroy BROWN, Defendant-Appellant.
No. 73-1168.

United States Court of Appeals, First Circuit.

Heard March 6, 1974.
Decided April 26, 1974.

Jonathan Shapiro, Boston, Mass., by appointment of the Court, with

whom Burnham, Stern & Shapiro, Boston, Mass., was on brief for
defendant-appellant.
Alan R. Hoffman, Asst. U.S. Atty., with whom James N. Gabriel, U.S.
Atty., was on brief for appellee.
Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.
McENTEE, Circuit Judge.

Defendant was convicted under 18 U.S.C. 371 (1970) of conspiring to utter

forged United States Treasurer's checks in violation of 18 U.S.C. 495 (1970).
On this appeal, he raises numerous grounds for reversal, and urges particularly
that his motion for judgment of acquittal should have been granted. Since this
motion tests the sufficiency of the evidence, we must state the facts adduced at
trial in some detail.

In early September 1971 certain United States Treasurer's checks prepared by

the Navy Regional Finance Center in Washington, D.C. were stolen, and, in a
manner unknown, made their way into the hands of one Vardell McPhatter.
McPhatter, in an effort to fraudulently dispose of these checks, contacted a
Boston friend named Janes Graham, who in turn put him in touch with one Earl
Sabino, the then manager of the Grove Hall branch of the United States Trust
Company in Dorchester. On the evening of September 14, McPhatter, Graham,
Sabino and a fourth person, Joseph Gaddy, met at Graham's apartment in
Dorchester. At this meeting, a scheme was devised where Graham and

McPhatter, after forging endorsements on the stolen checks, would open

various accounts under fictitious names at Sabino's bank and deposit the checks
therein. This plan was put into operation the next day, when the checks, along
with certain completed forms for opening the accounts, were given to Sabino
by McPhatter at the bank. However, after placing the checks through a
National Check Protective Service (NCPS) inquiry, Sabino found that they
would not clear. Consequently, it became too risky to actually attempt to
deposit the checks at the bank. When Sabino informed McPhatter of the
situation, he requested that the latter come down to the bank and pick up the
checks. Some days later, this was done.
3

On September 22, McPhatter returned to the bank and asked Sabino to cash one
of the forged checks. After some hesitancy because of the presence of bank
auditors, Sabino complied with this request. Two days later, McPhatter again
requested Sabion to cash another of the Forged checks, and again Sabino
complied.

Although McPhatter was able, with Sabino's assistance, to dispose of these two
stolen checks, the failure of the checks to clear the NCPS inquiry compelled
the abandonment of the original plan, and resulted in the development of a new
scheme to sell all the remaining forged checks in a package deal. To that end,
McPhatter contracted the defendant and his associate, Nathaniel Craigmiles.
On October 3, McPhatter and Graham met with the defendant and Craigmiles
to discuss the disposition of the checks. At this meeting, the defendant asserted
that he thought he would be able to 'get rid' of the checks, but no definite plan
was actually arrived at. According to Craigmiles, defendant suggested the
possibility of obtaining forged identifications for the checks and McPhatter
indicated that he could bring somebody up from Washington with such
identifications. As this meeting ended, McPhatter gave the defendant a sample
of one or two of the checks.

The following day, Craigmiles and the defendant, who still held the sample
checks, went to a certain store on Washington Street in Boston owned by a
person known only as Billy. Defendant entered the store alone, and returned
some twenty minutes later, informing Craigmiles that Billy, who allegedly
would dispose of the checks, wanted to see all the merchandise. Defendant and
Craigmiles then departed and eventually returned to see McPhatter and
Graham. Upon their arrival, they learned from one Evelyn Robinson that man
from Washington would arrive later in the week with the fake identifications.

On the evening of October 6, Dwight Woodley, a payroll clerk at the Navy

Regional Finance Center in Washington, arrived at Logan International Airport

with a package of United States government drivers' licenses, which were to

serve as identification for the forged checks. Although the testimony at this
point becomes somewhat confused, it appears that later that same evening,
Woodley, Graham and McPhatter met with the defendant, Craigmiles and an
individual named Paul at Graham's apartment. The purpose of this meeting was
to arrange for the disposition of the checks, and at this time defendant informed
the group that the potential buyer of the checks would 'give them no money
without seeing the goods.'1 Ultimately, however, various disagreements arose
between McPhatter and the defendant, each asserting that the other was
attempting to cheat him. As a result, defendant refused to deal further with
McPhatter.
7

The next day, Woodley, who was staying with McPhatter at Graham's
apartment, spoke to the defendant by telephone and it was agreed that the
defendant would deal directly with Woodley, and no longer with McPhatter.
Woodley then took the stolen checks and the identifications and left McPhatter
and Graham in order to meet the defendant, Craigmiles and Paul. Upon
meeting, the four men drove to Billy's store on Washington Street at which time
defendant asked Woodley for the checks and identifications. Woodley, with
some reluctance, turned them over. Defendant then went into the store, came
out with two men, crossed the street into another building, and, twenty minutes
later, returned to the car. At this point, defendant asked Woodley whether he
could get some alien cards, presumably to be used for identification purposes.
Woodley indicated that he could not. Defendant then went back into Billy's
store, and returned some minutes later, informing Woodley that 'the guy told us
(to) come back around noon and we'll get our money.' Woodley was then
driven back to Graham's apartment and was told that he would be picked up
again around noontime. However, unfortunately for Woodley, Graham and
McPhatter, noontime came and went, without any word from the defendant.
Eventually, they decided to nvestigate the situation, and, upon returning to
Billy's store learned that they had been duped, and that the defendant had stolen
the forged checks.

Meanwhile, after making off with the checks, defendant, Craigmiles and Paul
drove into Boston. There, defendant deposited one check in a fictitious bank
account at the State Street Bank, and Craigmiles attempted to cash another at
the City Bank and Trust Company. Afterwards, the defendant and Craigmiles
flew to Philadelphia, where they attempted, unsuccessfully, to dispose of the
checks. Upon returning to Boston some nine days later, defendant, having
failed to find a buyer, destroyed the stolen checks. Shortly thereafter all the
principals involved in this somewhat bizarre operation were apprehended.

Defendant was subsequently charged in a one count indictment of conspiring

with Woodley, McPhatter, Sabino and Graham to utter forged United States
Treasurer's checks. Craigmiles was neither indicted, nor named as an
unindicted co-conspirator. At trial, after the close of the evidence, the court
instructed the jury in strict accordance with the conspiracy alleged in the
indictment.

10

On this appeal, defendant makes a two-pronged assault on the sufficiency of

the government's proof. First, he asserts that the evidence in the record fails to
show that he ever actually entered into a conspiracy with the above named
individuals. Second, he contends that even if the evidence were sufficient to
establish his participation in some conspiracy, nonetheless such conspiracy was
not a conspiracy to utter forged checks.

11

Defendant's initial contention can be easily disposed of. Essentially, he

maintains that the evidence, taken as it must be, in the light most favorable to
the government, United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973),
conclusively refutes his participation in any conspiracy, and establishes either
(1) that defendant's relationship with the McPhatter-Woodley group was simply
that of prospective buyer and seller, note 1 supra, see United States v. Braico,
422 F.2d 543, 544 (7th Cir.), cert. denied,398 U.S. 912, 90 S.Ct. 1712, 26
L.Ed.2d 74 (1970); United States v. Ford,324 F.2d 950, 952 (7th Cir. 1963), or
(2) that virtually from the beginning, defendant intended to defraud the
McPhatter-Woodley group, and thus never fully possessed the requisite
agreement or 'stake in the outcome' essential to a conspiracy, United States v.
Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd,311 U.S. 205, 61 S.Ct. 204, 85 L.Ed.
128 (1940).

12

While the existence of a mere buyer-seller relationship might, in an appropriate

case, United States v. Braico, supra; United States v. Ford, supra, preclude a
finding of conspiracy, the evidence in the instant case clearly establishes
substantially more participation upon defendant's part. Indeed, the evidence
strongly compels the conclusion that defendant was at no point intended to be
the actual buyer of the checks, but instead agreed to work with McPhatter,
Graham, and later Woodley, to locate and arrange for such a buyer. As the jury
could reasonably believe, defendant's request for identifications was not
intended for his immediate use, but rather was intended to sweeten any deal that
could be made by defendant with a potential purchaser.2 Moreover, defendant's
conduct at and after his initial October 4 encounter with Billy, his comment at
the October 6 meeting at Graham's apartment that the proposed buyer wanted
to see all the merchandise, and his October 7 statement to Woodley that 'the

guy told us (to) come back around noon and we'll get our money,' is particularly
supportive of defendant's role as a co-conspirator, and not a mere prospective
purchaser.
13

Defendant's claim that the evidence effectively demonstrated that he intended

to defraud his putative partners virtually from the moment he arrived on the
scene, and thus that he entered into no real agreement with them, must similarly
fail. While it is obviously true that at some point in the relationship, defendant
decided to bilk the McPhatter-Woodley group, it does not definitely appear at
what point such a decision was made. The jury could have believed that after
Woodley informed defendant that no alien cards would be produced, the deal
with Billy thereupon fell through. It was arguably at this point that defendant,
in order to salvage something for himself, determined to swindle the others. Or,
it may be that the defendant's plot was hatched after his apparently bitter falling
out with McPhatter on October 6. At any rate, from this record, it is impossible
to say with much assurance precisely when defendant decided to act on his
own. Since an agreement of any time during the continuance of a conspiracy is
sufficient for criminal liability to attach, United States v. Robinson, 470 F.2d
121, 123 (7th Cir. 1972); United States v. Calise, 217 F.Supp. 705, 708
(S.D.N.Y. 1962), we cannot say that the jury, in considering the evidence of
defendant's conduct earlier alluded to, had an insufficient basis upon which to
conclude that there actually was an agreement reached between defendant and
the McPhatter-Woodley group at some point prior to defendant's decision to
defraud his partners.3

14

Defendant's second attack on the sufficiency of the evidence is somewhat more

ingenious. He asserts that although the record may indicate his participation in
some conspiracy, it does not establish that he participated with his alleged coconspirators in a conspiracy to utter forged checks.4 In support of this
contention, defendant makes the following argument, in which he maintains
that the facts reveal three separate and distinct conspiracies:

15

Conspiracy 1-- Defendant contends that from September 14 through

approximately September 24, the undisputed evidence clearly implicates
McPhatter, Graham and Sabino in a conspiracy to utter forged checks by either
depositing them in fictitious accounts at Sabino's bank, or by cashing the
checks there. However, the evidence also suggests that upon failure to procure
NCPS clearance for the checks, this conspiracy had to be abandoned, and, by
the time defendant was contacted, had been essentially abandoned. Thus,
defendant asserts, he cannot be held liable for conspiring to utter checks as a
result of the acts committed at Sabino's bank, since by the time he actually
entered into a conspiracy, see infra, this prior conspiracy had already

terminated. Accordingly, the traditional rule that one who joins a conspiracy
already in progress is liable for acts done in furtherance of that conspiracy prior
to his joinder, see, e.g., United States v. McGann, 431 F.2d 1104, 1106 (5th Cir.
1970), cert. denied, 401 U.S. 919 (1971), 91 S.Ct. 904, 27 L.Ed.2d 821; United
States v. Cimini, 427 F.2d 129, 130 (6th Cir.), cert. denied, 400 U.S. 911, 91
S.Ct. 137, 27 L.Ed.2d 151 (1970), is, defendant maintains, inapplicable to the
instant facts, since there was no effective conspiracy 'already in progress' by the
time he entered the picture. Cf. United States v. Borelli, 336 F.2d 376, 384-386
(2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965);
United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938).
16

Conspiracy 2-- Defendant next asserts that while it may be true that from
October 3, when he first met with McPhatter and Graham, through October 7,
when he bilked Woodley out of the checks he may have been conspiring with
the McPhatter-Woodley group, such conspiracy was nonetheless aimed not at
uttering forged checks, but rather at fencing them in a package deal. Relying on
the statement in Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314,
1319, 3 L.Ed.2d 1503 (1959) that 'conspiracy to commit a particular substantive
offense cannot exist without at least the degree of criminal intent necessary for
the substantive offense itself,' defendant asserts that if he agreed to do anything
it was simply

17

'to act as a broker for sale of the checks to an unknown third party who was
certainly aware that they were both stolen and forged . . .. This is not consistent
with the intent to utter or publish the checks as true that is necessary to support
(a) conviction of conspiring to violate 18 U.S.C. 495.'

18

Consequently, defendant contends that since the indictment charged conspiracy

to utter checks, and not conspiracy to sell or transfer them, the evidence of his
conduct during this period will not support his conviction.

19

Conspiracy 3-- Finally, defendant maintains that once he swindled the checks
from Woodley, his participation in any continuing conspiracy with the
McPhatter-Woodley group was clearly and irrevocably terminated. Cf. United
States v. Chester, 407 F.2d 53, 55 (3d Cir. 1968), cert. denied, 394 U.S. 1020,
89 S.Ct. 1642, 23 L.Ed.2d 45 (1969). While acknowledging that he may
thereafter have entered into a conspiracy with Craigmiles to utter checks at the
State Street Bank and at the City Bank and Trust Company in Boston, this
particular conspiracy was not alleged in the indictment. Since defendant was
charged with conspiring to utter checks with McPhatter, Woodley, Graham and
Sabino, and the jury strictly instructed on that basis, and since Craigmiles was
not in any manner named as a co-conspirator, defendant contends that any proof

with respect to a conspiracy involving Craigmiles is at material variance with

the indictment, see, e.g., United States v. Goss, 329 F.2d 180 (4th Cir. 1964),
and thus cannot sustain his conviction. See United States v. Spanos, 462 F.2d
1012, 1017 (9th Cir. 1972); Danielson v. United States, 321 F.2d 441, 444 & n.
8 (9th Cir. 1963).
20

Though defendant has presented us with a plausible argument, his suggested

analysis does not bear close scrutiny. Even if we were to accept for present
purposes defendant's 'three conspiracies' theory, and further accept arguendo
the contention that defendant is consequently not responsible under the
indictment for the acts committed at Sabino's bank5 (Conspiracy 1), or the acts
committed with Craigmiles6 (Conspiracy 3), his claim must in any case be
rejected.

21

In stating that the evidence with respect to the October 3 through October 7
transactions establish only a conspiracy to transfer forged checks, and not a
conspiracy to utter them, defendant takes too narrow a view of the necessary
requirement of intent. Whether or not defendant, or for that matter the
McPhatter-Woodley group, intended themselves to utter the checks directly, it
is abundantly clear that the essential thrust of their scheme was to have the
checks publicly uttered, either by Billy or by some other prospective purchaser.
See United States v. Tramaglino, 197 F.2d 928, 930-931 (2d Cir.), cert. denied,
344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1956). Indeed, no substantial
purpose would have been served by much of defendant's pre-October 7
machinations had there not been the expectation, understanding and design on
the part of all the conspirators that the checks would be subsequently uttered.
Thus, it is evident that the entire purpose behind acquiring the phony driver's
licenses, and behind defendant's request for the alien cards, was to obtain
sufficient identification so that the stolen checks could and would be
successfully uttered. See note 2 supra. Therefore defendant may not be
permitted to escape liability by alleging that he merely conspired to transfer
checks, and not to utter them, when it was apparent to him that the ultimate and
necessary consequences of the scheme was to utter the checks, and when the
defendant, by attempting to procure appropriate identification, made a
substantial effort to further that end. See, e.g., United States v. Chamley, 376
F.2d 57, 59-60 (7th Cir.), cert. denied, 389 U.S. 898, 88 S.Ct. 221, 19 L.Ed.2d
220 (1967); cf. United States v. Rich, 262 F.2d 415, 418 (2d Cir. 1959). Under
these circumstances, the evidence respecting defendant's transactions with
McPhatter, Woodley and Graham was, in our view, fully adequate to support
his conviction for conspiring to utter checks in violation of 495.7

22

Defendant's remaining contentions are entirely without merit. Having carefully

weighed defendant's speedy trial claim in light of the multiple factors

enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972) and United States v. Cabral, 475 F.2d 715 (1st Cir. 1973), we must
conclude that such a claim cannot be sustained. While the seventeen month
delay here involved is hardly insubstantial, part of that delay is attributable to
various defense motions respecting discovery and change of counsel. And
although much of the delay is apparently the result of prosecutorial neglect, this
factor will weigh less heavily in defendant's favor than where the government's
conduct is deliberate and purposeful. See Barker v. Wingo, supra, 407 U.S. at
531, 92 S.Ct. 2182. Moreover, despite the length of delay, defendant never
made any real effort to assert his right to a speedy trial for nearly fifteen
months. During much of that time, he was incarcerated at M.C.I. Walpole in
Massachusetts (a state maximum security prison), but neither the fact of his
incarceration nor its assertedly prejudicial location is strictly attributable to the
pendency of the instant action. From March 1972 onwards, defendant was
under a five-year sentence for an unrelated mail theft conviction so that his
incarceration at some institution was in any case necessary. And his assignment
to Walpole was, in part, to facilitate his trial on several pending state charges.
However, the most important consideration working against defendant's speedy
trial claim is the fact that he suffered no real prejudice by the delay. In view of
the abundance of direct evidence produced against him at trial, defendant must
do more to establish prejudice than baldly assert that 'witnesses who obviously
will testify in other areas can corroborate my innocence.' Cf. United States v.
Morse, 491 F.2d 149, 157 (1st Cir. 1974). 8
23

Defendant also contends that the trial court abused its discretion in denying his
motion for a thirty day continuance so that he could retain new counsel.
However, in view of the fact that defendant, already represented by adequate
counsel, was now seeking his third attorney in this matter, and had previously
been granted a two-week continuance expressly for this purpose, and in view of
the fact that on the day he made the motion, trial was set to commence and the
jurors and out-of-state witnesses had all been summoned, we cannot say that
the court abused its broad discretion in denying this motion.

24

All other points raised by defendant have been considered and have been found
to be without merit.

25

Affirmed.

There is some conflict in the testimony as to whether the defendant may have

alternatively desired to purchase the checks himself, and, if so, whether, in

order to accomplish this, he attempted to use phony money. However, upon
reviewing the record as a whole, it appears that such efforts were essentially
incidental and subordinate to the general scheme involving the use of Billy as a
possible purchaser
2

Such identification would, of course, be desirable, and perhaps necessary, from

the ultimate purchaser's point of view, since the checks would have no value to
anyone unless they eventually could be successfully uttered

We thus need not consider the additional argument that although defendant may
have, from the start, subjectively intended to swindle the McPhatter-Woodley
group, his outward appearance of objective agreement would suffice to
establish a conspiracy. Cf. United States v. Schroeder, 433 F.2d 846, 849 n. 3
(8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224
(1971)

In order to commit the substantive offense of uttering a forged Treasurer's

check, there must be some attempt to circulate the check by means of a
fraudulent representation that it is genuine. See, e.g., United States v. Jenkins,
347 F.2d 345 (4th Cir. 1965)

The question of whether the facts indicate one or more distinct conspiracies is
normally a matter of fact to be determined by the jury. See, e.g., Koolish v.
United States, 340 F.2d 513, 526 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct.
1805, 14 L.Ed.2d 724 (1965); United States v. Boyance, 215 F.Supp. 390, 395
(E.D.Pa.1963), aff'd, 329 F.2d 372 (3d Cir.), cert. denied, 377 U.S. 965, 84
S.Ct. 1645, 12 L.Ed.2d 736 (1964). In the instant case, it does not appear that
defendant made any request to instruct the jury on the possibility of separate
conspiracies, and consequently no such instruction was given. But see United
States v. Varelli, 407 F.2d 735, 747 (7th Cir. 1969). Upon completion of the
trial court's charge, which was grounded upon the assumption of a single
conspiracy, the defendant made no objection. In our view, the jury would have
been justified in finding, upon consideration of all the evidence, that, at least
until October 7, there was simply one continuing conspiracy manifesting itself
in different forms. Cf. United States v. American Honda Motor Co., 271
F.Supp. 979, 983 (N.D.Cal.1967). This being so, the defendant would clerly be
responsible for the uttering of checks at Sabino's bank, even though such acts
occurred prior to his joining the conspiracy. Under this view of the facts, there
would be more than sufficient evidence to sustain defendant's conviction under
495

While proof of a conspiracy with Craigmiles is at obvious variance with the

indictment, such a variance would only be fatal if it actually prejudiced the

defendant, or adversely affected his substantial rights. Robinson v. United
States, 333 F.2d 950 (5th Cir.), cert. denied, 379 U.S. 921, 85 S.Ct. 277, 13
L.Ed.2d 335 (1964); Hayes v. United States, 329 F.2d 209 (8th Cir.), cert.
denied, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). Though we need
not expressly decide the matter, it does appear likely that, in view of the
possibility of surprise, and the potential adverse impact upon defendant's
preparation for trial, a sufficient demonstration of prejudice would have been
shown, so as to preclude conviction under the indictment for defendant's
conduct with Craigmiles. See, e.g., United States v. Spanos, supra
7

That Sabino did not personally participate in these specific transactions is not
sufficient to establish a material variance from the indictment. See Berger v.
United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Absent unusual
circumstances, there is no prejudice to the defendant, see note 6 supra, where
an indictment charges a conspiracy involving several persons, and the proof
only establishes participation on the part of some of them. Id. at 81, 55 S.Ct.
629

Defendant's additional claim of prejudice-- that he lost the possible opportunity

of receiving a sentence concurrent with that of his mail theft conviction-- is
'highly speculative and falls far short of a demonstration of actual prejudice.'
United States v. Cabral, supra, 475 F.2d at 720