Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 355 -- Susan Getzendanner, Judge.
Pell, Bauer, and Flaum, Circuit Judges.
This is an appeal from a conviction following a jury trial in which the defendant was found guilty on three counts of a four-count indictment charging him with the commission of certain federal crimes. For the reasons stated below, we affirm the conviction.
In the summer of 1979, Sears Bank and Trust Company of Chicago discovered that it was missing 2,700 United States Treasury savings bonds totalling approximately $450,000, as well as six cashier's checks totalling approximately $140,000. The bonds and checks had been taken from an operations area in the bank, fraudulently negotiated, and redeemed at various other banks, causing monetary losses to Sears, the United States Treasury, and several other banks.
The losses were eventually traced to Wilbert Woodruff, a Sears Bank employee who had access to the areas where the blank cashier's checks and savings bonds were kept. Woodruff admitted involvement in the thefts and eventually pleaded guilty to stealing the bonds and cashier's checks. After being sentenced to a period of incarceration, he agreed to assist the government in prosecuting others involved in the thefts in exchange for a favorable report to the parole board.
Woodruff identified the defendant, Lugene Baker, as one who had played a major role in the thefts. Baker was arrested and charged in a four-count indictment with: 1) conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371; 2) possession of stolen savings bonds in violation of 18 U.S.C. § 641; 3) aiding and abetting the embezzlement of savings bonds in violation of 18 U.S.C. §§ 2 and 656; and 4) aiding and abetting the embezzlement of cashier's checks in violation of 18 U.S.C. §§ 2 and 656.
At the defendant's jury trial, Woodruff testified that in the spring or early summer of 1979, he was visited at the bank several times by the defendant, a high school classmate who he knew by the nickname "Blue." Woodruff stated that during the course of these visits the defendant asked him to steal some cashier's checks. Woodruff testified that he convinced another Sears employee to obtain the checks for him, filled in the amounts, and then gave the checks to the defendant. Woodruff also testified that the defendant later persuaded him to steal three boxes of savings bonds, and that the defendant told him that he knew individuals who could cash the bonds for them. It was established at trial that the defendant's fingerprint appeared on one of the stolen bonds.
Patricia Groves was another witness for the prosecution. She testified to receiving a telephone call at her place of employment in August of 1979 from someone who she knew only by the name of Blue. She had met Blue through her husband in 1975. Groves stated that Blue asked her if she was interested in some "work" cashing stolen checks, and that she said that she was. Within a few hours, Blue visited Groves at her work place, and they arranged for him to deliver some bonds to her apartment that evening. Blue delivered the bonds as was arranged. Groves cashed the bonds at numerous suburban banks, but in the course of so doing was arrested for attempting to cash a stolen personal check.
Groves was convicted for her part in the scheme and agreed to cooperate with the government as a condition of her probation. After failing to appear for three appointments to discuss her testimony with the government attorneys prior to the defendant's trial, the sentencing judge issued an arrest warrant for a violation of the condition of her probation. Groves was ultimately arrested on the warrant, and she admitted to not wishing to testify on behalf of the government.
At trial, Groves failed to make an in-court identification of the defendant as the person known to her as Blue. She was then questioned by the government about a previous interrogation session with Agent Konkol of the Federal Bureau of Investigation and Agent Straughn of the Secret Service in the presence of her attorney at the Metropolitan Correctional Center in October of 1982. She testified that she recalled telling the agents that she had received the bonds from a person known to her as Blue, and that she recalled having been shown a photospread and selecting two photographs from the spread. However, she said that she could not recall what she told the agents when she selected the photographs.
Over defense counsel objection, Agent Konkol was permitted to testify that the photographs selected by Groves at the earlier session were photographs of the defendant, and that Groves had stated that these photographs looked like the person known to her as Blue. The trial judge initially instructed the jury that this portion of Konkol's testimony was being received only for purposes of impeachment, but later reinstructed the jury that the testimony could be used as substantive evidence as well. The defense counsel did not cross-examine Groves about her out-of-court statement implicating the defendant.
Before the end of the trial, the government submitted a jury instruction defining the elements of the aiding and abetting charges contained in counts three and four of the indictment. The instruction stated that the jury must find, among other things, that the defendant aided and abetted Woodruff to embezzle funds in the care and custody of the bank. This instruction failed to track the language of the indictment, which referred not only to the term "embezzle" but also to the terms "abstract" and "purloin." During the jury instruction conference prior to closing arguments, the trial judge agreed to give the government's instruction as drafted. No objection or comment was made by the counsel for the defendant.
During his closing argument, the defense counsel stated that Woodruff had not embezzled the checks or bonds, but had stolen them. The trial judge then realized that the instruction, as worded, did not properly define the charge in the indictment. When she later gave the jury its instructions, she added the words "abstract" and "purloin" so ...