United States v. Harold Lloyd Phillips

869 F.2d 1361, 1988 U.S. App. LEXIS 18679, 1988 WL 149240
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 17, 1988
Docket87-1007
StatusPublished
Cited by54 cases

This text of 869 F.2d 1361 (United States v. Harold Lloyd Phillips) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harold Lloyd Phillips, 869 F.2d 1361, 1988 U.S. App. LEXIS 18679, 1988 WL 149240 (10th Cir. 1988).

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

Harold Lloyd Phillips appeals his conviction on two counts of violating 18 U.S.C. § 2314 which makes it a crime to knowingly and wilfully transport in interstate commerce forged and falsely made securities with intent to defraud. He contends that the district court erred in its instructions to the jury by enlarging and thus amending the charging indictment. Similarly, because of the same instruction, Phillips contends he was deprived of his right to a unanimous jury verdict. Two additional issues are raised: 'whether the district court abused its discretion in not allowing objections to instructions prior to charging the jury; and whether the district court erred in giving an “on or about” instruction when Phillips’ defense was that of alibi. We affirm.

On August 14, 1986 Phillips was charged in a two count superseding indictment with knowingly transporting a forged and falsely made security — two bad checks — in interstate commerce with intent to defraud. The indictment reads as follows:

Superceding Indictment
The Grand Jury charges:
Count I
On or about the 11th day of December 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Need-ham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Andrews, Texas, a falsely made and forged security, to wit: Check No. 2649 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.
In violation of 18 U.S.C. 2314.
Count II
On or about the 12th day of December, 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Need-ham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Littlefield, Texas, a falsely made and forged security, to wit: Check No. 2470 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.
In violation of 18 U.S.C. 2314.

R.Vol. I, doc. 17 (emphasis added).

At Phillips’ trial, the checks in question were introduced. Both checks were signed in the name of George Smith. Store clerks from Andrews and Littlefield, Texas, testified that Phillips had cashed these checks at their places of business representing himself to be the payee, “Jimmy Need-ham.” Evidence was offered to show that Phillips was president of United States Va-cuumite Corporation, and that he was the only individual authorized to write checks on the account, that “George Smith” was one of Phillips’ favorite deceased uncles, [1364]*1364and that the account had been closed since 1980, five years before the checks were cashed in Texas. Handwriting samples in which Phillips had repeatedly signed the name George Smith were admitted into evidence.

Further, a briefcase similar to one used by Phillips was found in a place where Phillips had been on at least three previous occasions. The briefcase contained blank checks, checks made out to J.A. Needham in the amount of $389.20 drawn on the United States Vacuumite Corporation account at the Capital Bank of Santa Fe, other checks in the names of Sheryl or Phil Phillips, and various maps. The prosecution also produced James Needham at trial. Needham testified that he had known the defendant as both Harold and Phil Phillips for a number of years, but that he had never been an employee of the United States Vacuumite Corporation and had not endorsed the two checks listed in the counts of the indictment, nor had he been in Andrews or Littlefield, Texas in December, 1985.

In his defense, Phillips introduced two witnesses who offered testimony suggesting that at the time he allegedly cashed the checks in Texas, Phillips had been in the state of Washington. In rebuttal, another store clerk testified that on the date in question, in Andrews, Texas at a different store, Phillips presented a check to him for $389.20 drawn on the Capital Bank of Santa Fe account of the United States Vacu-umite Corporation. The clerk testified that he observed Phillips endorse the back of the check as J.A. Needham, the payee. A handwriting expert testified that Phillips was the author of the payee endorsement “Jimmy Needham” signed to the back of this check to the exclusion of all others.

I.

The Fifth Amendment requires that a felony defendant be tried only on an offense alleged in a grand jury indictment. United States v. Miller, 471 U.S. 130, 135, 140, 105 S.Ct. 1811, 1814, 1817, 85 L.Ed.2d 99 (1985). “Ever since Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887 it has been the rule that after an indictment has been returned its charges, may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960). Any such amendment effected by the court’s instructions would constitute plain error and be reversible per se.

At the end of trial the court instructed the jury that:

“A check is falsely made or forged for the purpose ... of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two, the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient.”

R.Vol. IV at 405. Thus, the jury instructions allowed the jury to find the check falsely made and forged if, (1) the maker of the check was not authorized to sign on the account from which the check was drawn; (2) the check was drawn on a closed account; or (3) the check was made payable to a fictitious payee.

Phillips contends that this instruction constitutes a constructive amendment of the indictment on the premise that the indictment referred to a forged signature of the maker but not to a closed account or fictitious payee. We disagree with that premise.

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Cite This Page — Counsel Stack

Bluebook (online)
869 F.2d 1361, 1988 U.S. App. LEXIS 18679, 1988 WL 149240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harold-lloyd-phillips-ca10-1988.