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UNITED STATES v. BENNERSON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


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 the complaint. The trial court denied defendant's motion to dismiss the indictment as violating § 3l6l(b).

 The Second Circuit affirmed. it rejected defendant's argument that the Act bars untimely prosecution "not only for the charge alleged in the complaint, but also for any conduct 'aris[ing] out of the same criminal episode' which was 'known or reasonably should have been known' at the time the complaint was filed," slip op. at 3634-35, and adopted a literal construction of § 3162 (a)(1). The Act requires dismissal of "such charge...contained in such complaint," which the Court took to refer only to precisely the offense charged in the complaint. During debate on the original bill, Congress had rejected broad language such as that proposed by defendant. Slip op. at 3635-36. Thus the Court concluded, citing earlier cases, that

 

a subsequent prosecution may be barred if it is based on an indictment which merely "gilds" an earlier charge or if the subsequent charge is a mere difference in accusational dates. In this case, the initial charge against the defendant for making a false application for a bank account was entirely different from and based on different proof than the later indictment for larceny of bank funds.

 Slip op. at 3637

 The Government seeks to avoid the effect of Gonzalez by arguing that by implication Gonzalez permits a superceding indictment charging a new offense where the complaint, indictment, and superceding indictment are all "based on the same conduct." Gonzales, supra, 748 F.2d at 79. This may well be true, but I cannot accept the characterization of the charges in the two indictments as being based on the same conduct. Defendant's uttering of the check was irrelevant to the forgery charges in the initial indictment, but it is an essential element of the count in the superceding indictment. Although it is true that, on the Government's account of the events, the uttering occurred nearly simultaneously with the forgery, was a part of the same scheme as the forgery, and as an offense includes forgery (although not necessarily by the defendant) as an element, uttering is not the same conduct as forgery. The two offenses are based on different, if related, actions.

 The Government seems to argue that because the defendant was indicted "in connection with" the arrest charges, the Act's requirement of a timely indictment was satisfied. (Gov. Mem. at 7). This twists the statute's language. The Act does not require indictment in connection with an arrest. Rather, it requires timely indictment "charging...an offense" to be filed within thirty days of the defendant's arrest "in connection with" the offense. As noted above, defendant was arrested for uttering the check in December; he was not indicted for this offense until march. Napolitano would seem to dictate close adherence to the language of the statute. i can see no principled reason for evading that language in this case.

 On the contrary, I conclude that the principles articulated in Gonzalez and Napolitano are controlling, and require dismissal. The uttering charge, when one considers the elements and the requisite proof, is clearly "a first indictment on a new charge." Gonzalez, supra.

 Because defendant was not indicted for uttering a check bearing a forged endorsement within thirty days of his arrest on that charge, the superceding indictment, which charges only that offense, must be dismissed under 18 U.S.C. § 3162 (a)(1). Because I find that the superceding indictment violates the Speedy Trial Act, I need not reach defendant's second ground for dismissal.

 The question then arises, in the words of the second sentence of § 3162 (a)(1), "whether to dismiss the case with or without prejudice...." The statute gives the trial court discretion on the matter, and requires consideration of several specific factors. But the briefs of counsel in the case at bar do not address how I should exercise that discretion, and I am not prepared to do so until counsel have been heard.

 It follows that the superceding indictment is dismissed. Trial will not commence on June 3, 1985, as presently scheduled. Counsel are directed to serve and file briefs on the issue of dismissal of "the case with or without prejudice" not later than June 12, 1985.

 In order that this important question be fully briefed and considered, I continue the case under § 3161 (h)(8)(A), being of the opinion that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.

 It is SO ORDERED


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