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UNITED STATES v. BENNERSON

May 28, 1985

UNITED STATES OF AMERICA,
v.
PETER BENNERSON, Defendant



The opinion of the court was delivered by: HAIGHT

HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

Defendant was arrested up reports that he had stolen a federal Social Security check payable to another, forged an endorsement on it, and cashed it. In a complaint filed December 4, 1984, he was charged with "uttering as true" a forged endorsement on a United States Treasury check, in violation of l8 U.S.C. §§ 495 and 510, and possessing stolen mail in violation of 18 U.S.C. § 1708.

 A two-count indictment was filed on December 21. Count one charged theft and conversion of a Treasury check in violation of 18 U.S.C. § 641; count two charged forgery of an endorsement on the check in violation of 18 U.S.C. § 510.

 Sometime after defendant's indictment, the Government realized that the theft occurred outside the Southern District. In consequence, venue did not lie in this district to prosecute defendant for theft and conversion under § 641. The Government cured venue by filing a superceding indictment on March 21, 1985. The one-count superceding indictment charges defendant with uttering as true a forged writing with intent to defraud the United States in violation of 18 U.S.C. § 495.

 Sections 495 and 510 are similar. Section 495 forbids, in its first paragraph, the forgery of a writing for the purpose of obtaining money from the United States. The second paragraph forbids uttering as true any such forged writing with the intent of deceiving the Government. *fn1" Forged endorsements on Treasury checks have long been recognized as falling within those provisions of § 495. A more narrowly tailored statute, § 510 deals solely with United States Treasury checks. Section 510 (a)(1) forbids forging an endorsement on a Treasury check, and § 510 (a)(2) forbids uttering a Treasury check bearing a forged endorsement. *fn2" Defendant's alleged behavior fits into all four categories.

 Defendant moves to dismiss the superceding indictment on two grounds: 1) that the crime charged in it may be properly charged only under 18 U.S.C. § 510, as the original indictment charged and 2) that he was not timely indicted on the § 495 charge under the Speedy Trial Act.

 I will address the latter argument first. The Speedy Trial Act requires that "any...indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested...in connection with such charges." 18 U.S.C. § 3161(b). If the indictment is not obtained within thirty days, 18 U.S.C. § 3162 (a)(1) mandates dismissal of the charge upon which the defendant was arrested. *fn3"

 Defendant's argument is straightforward. He was arrested in December and charged in a complaint with uttering a falsely endorsed instrument in violation of §§ 495 and 510. He was timely indicted only on forgery charges under § 510. Thus the complaint's uttering charges under § 495 must be dismissed. The Government responds in essence that it satisfied the Act by indicting defendant on substantially similar charges within the thirty day time limit.

 I am unimpressed by defendant's emphasis on the change in statutory basis for the charged crime. if the switch in the two indictments from § 5l0 to § 495 entailed nothing more than changing the number of the statute under which defendant is charged, I would be tempted to analogize it to the alteration in the defendants' names which was found insignificant for purposes of § 3161(b) in United States v. Mitchell, 723 F.2d 1040, 1044-45 (1st Cir. 1983).

 More is involved here, however, In the first indictment, defendant was charged with forging an endorsement on a Treasury check of value under $500, a misdemeanor. In the superceding indictment, defendant is charged with uttering a writing bearing a forged endorsement, a felony. Not only are the penalties different, the offenses underlying them differ. Although uttering a check with a forged endorsement may entail the forging of an endorsement by the defendant (and did in this case), the offense is not the forging but the utttering. Uttering the check requires an act wholly separate from the act of forging the endorsement. Plainly the elements of the offenses are different. Further evidence that the two offenses differ is the fact that they are listed in separate paragraphs within both §§ 495 and 510.

 Defendant, as noted, was arrested and charged with uttering the check. Although he was timely indicted for forging an endorsement--an act mentioned in the factual allegations of the complaint but not charged--he was not indicted for uttering the check until several months after his arrest. A prima facie violation of § 3161(b) is present.

 Two recent Second Circuit decisions provide guidance in this area. The first, United States v. Gonzalez, 748 F.2d 74, 79 (2d Cir. 1984), construes § 3161(b). Defendant in Gonzalez was charged in a complaint with wire fraud of Bank A. he was timely indicted, however, for using essentially the same fraudulent scheme to defraud Bank B. Some months later, a superceding indictment was filed charging him with defrauding both banks. The Court of Appeals dismissed the charges alleging fraud on Bank A, finding that defendant had not been indicted on the charges until several months after his arrest in connection with them. 748 F.2d at 79. The court noted that "[t]he two charges [against Banks A and B], of course are related and grow out of the same fraudulent scheme, but they are not based on the same conduct or the sending of the same wires. Thus [the count alleging fraud against Bank A], rather than being an unchanged restatement of part of the original indictment, was a first indictment on a new charge."

 In addition, the court of Appeals recently construed § 3162 (a)(1) in United States v. Napolitano, 761 F.2d 135 (2d Cir. 1985). Defendant was arrested for applying for and using a bank account under a false name. No timely indictment was filed. nearly two years later, an indictment was returned charging defendant with bank larceny and conspiracy to commit bank larceny, offenses different from those contained in ...


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