Before LEVENTHAL and MacKINNON, Circuit Judges, and JAMESON,* Senior District Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C.Criminal Action No. 77-160).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JAMESON
Appellant, Robert Lincoln Peters, was convicted following a jury trial of interstate transportation of a forged security (count one), in violation of 18 U.S.C. § 2314; and forgery (count two) and uttering a forged security (count three), both in violation of D.C.Code § 22-1401. *fn1 He contends that (1) all counts should have been dismissed for failure to comply with the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; (2) the district court should have granted a mistrial or have stricken the testimony of the Government's key witness for failure to comply with the Jencks Act, 18 U.S.C. § 3500; (3) the proof was insufficient to support a conviction for forgery because (a) his writing a name on the payee line of a check did not constitute a violation of the statute and (b) there was a fatal variance between the charge in the indictment and proof at trial; and (4) he was deprived of a fair trial by prosecutorial misconduct in closing argument. We vacate the conviction on count two and otherwise affirm the judgment.
In early April of 1975, a burglary took place at the Maple Rock Distributing Co. of Lexington, Virginia. Among the missing items were several checks, four of which are material to this case. Special Agent Kirby Major of the Federal Bureau of Investigation was assigned to investigate the burglary, with particular attention to the whereabouts of Lee R. Lacy, who was later to become a key prosecution witness. In the course of his investigation, Major, on three occasions, contacted the appellant, who apparently was not yet a suspect, to inquire as to the whereabouts of Lacy. Lacy was thereafter apprehended in Philadelphia. On February 26, 1976, he gave a statement to Major in which he denied any participation in the Maple Rock burglary, but admitted that he had participated with appellant and Roosevelt Moses *fn2 in the forgery and passing of four Maple Rock checks in Washington, D.C.
Lacy pleaded guilty on October 14, 1976 to one count of interstate transportation of stolen securities. Under the terms of a plea agreement, on the same day he presented testimony to a grand jury in which he implicated appellant in the forgery and passing of the Maple Rock checks. The grand jury subpoenaed handwriting exemplars from appellant, which he voluntarily gave. Although the comparison of these exemplars with the writing on the checks was completed on November 15, 1976, the grand jury took no action with respect to appellant at that time.
On January 13, 1977, FBI agents procured a warrant for appellant's arrest. *fn3 He was arrested on January 18 and charged by complaint with one count of interstate transportation of a forged security. This complaint was dismissed by the Government pursuant to a praecipe dated March 14 and filed March 21, 1977. On March 23, 1977, the grand jury returned the indictment under which appellant was tried and convicted, alleging four counts of interstate transportation, one count of forgery, and four counts of uttering. Counts eight and nine alleged the uttering and interstate transportation of Maple Rock check number 15898, the check involved in the dismissed complaint.
Appellant filed motions to dismiss the indictment for pre-arrest and pre-indictment delay and to suppress statements. Following a hearing, the court orally denied the motion to suppress, ordered dismissal of counts eight and nine, and reserved a ruling on the remainder of the motion to dismiss. Later in a written memorandum the court granted the motion to dismiss counts eight and nine for failure to comply with the Speedy Trial Act, and denied the motion with respect to the first seven counts.
At the opening of the trial and before selection of a jury, the Government informed the court that it was unable to produce a transcript of Lacy's grand jury testimony, which appellant had requested. Following a hearing on the question of compliance with the duty to preserve Jencks materials, the court took the matter under advisement and later denied appellant's motion to strike Lacy's testimony or grant mistrial. The court did, however, give a cautionary instruction, patterned after the "missing witness" instruction, in an attempt to neutralize any prejudice resulting from the loss of Lacy's grand jury testimony.
At trial, the Government called a handwriting expert, who stated that in his opinion the name "Leroy Jones", written on the payee space of Maple Rock check number 15867, was written in appellant's hand. He also identified the endorsement of "Leroy Jones" on the back of the check as the handwriting of Lacy. He could reach no conclusion, however, as to whether appellant's handwriting appeared on either side of the two remaining checks. *fn4 Agent Major testified regarding his investigation of the alleged offenses including his taking a written statement from appellant, which was admitted in evidence as a Government exhibit.
Lacy testified that he met appellant and Moses at a park in Washington, where one or both of them solicited his participation in a scheme to pass the Maple Rock checks. According to Lacy, appellant and Moses gave him check number 15867, which he endorsed in the name of "Leroy Jones" and cashed at a grocery. The two other checks were made and passed later in the same fashion. In all cases, according to Lacy, the proceeds of the checks were divided among the three participants. *fn5
The trial court instructed the jury that they could find appellant guilty of forgery if he was found to have falsely completed any part of the document. The jury was further instructed that one who aids and abets in the commission of an offense is punishable as a principal. In response to an inquiry from the jury, the court also instructed that the name "Leroy Jones" on the face of the check did not constitute a "signature" within the meaning of the law. The jury returned a verdict of guilty with respect to the three counts dealing with check number 15867, and not guilty as to the remaining counts. I. SPEEDY TRIAL ACT
Appellant filed a pretrial motion to dismiss the indictment *fn6 for failure to comply with the provisions of the Speedy Trial Act, 18 U.S.C. 3161, *fn7 as implemented by D.C.District Court Rule 2-7. *fn8 The trial court found that the Act and the Local Rule required the filing of an indictment, within 60 and 45 days respectively, *fn9 of appellant's arrest on the charge alleged in the original complaint. The indictment was in fact returned 64 days after appellant was arrested. Finding that the charges in counts eight and nine of the indictment were identical in content to the offense charged in the complaint, the court held that Speedy Trial sanctions should be applied, including dismissal, pursuant to Fed.R.Crim.P.Rule 48(b), of counts eight and nine. *fn10
With respect to counts one through seven, however, the court was of the opinion that the offenses involving the three checks covered by those counts were distinct, both legally and factually, from those involving the check in the original complaint and in counts eight and nine. The court concluded that appellant's "behavior was not . . . part of the same criminal episode" under § 3161(d), that "each violation charged by counts one through seven of this indictment could have been prosecuted separately, (and it) cannot be said that the offenses charged were "required to be joined' under our ...