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08/18/92 OLIVER W. JOHNSON v. UNITED STATES

August 18, 1992

OLIVER W. JOHNSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ricardo M. Urbina, Trial Judge)

Before Rogers, Chief Judge, and Steadman, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Oliver Johnson was convicted by a jury of seventeen counts of forgery and seventeen counts of uttering forged checks, D.C. Code §§ 22-3801 and -3842(c) (1989 Repl.), and one count of first degree theft, id. §§ 22-3801 and -3812(a) (1989 Repl.). *fn1 On appeal he contends principally that there was a constructive amendment of the indictment counts charging forgery, and that he was deprived of his right to a fair trial because repeated references to his exercise of his right to remain silent. We agree that because the indictment was constructively amended, appellant's forgery convictions must be reversed, but otherwise find appellant's contentions unpersuasive.

I

In April, 1982, appellant Oliver Johnson was elected president of the American Federation of Government Employees (AFGE) Local 1000, a union which represented non-management employees of the Department of Employment Services in the District of Columbia. The union consisted of an elected executive board of officers and non-management employees such as clerks and secretaries. The union followed the general fiscal policy set forth in the AFGE Local Officers' Manual, including a general rule that the union membership must approve all union expenditures. The only exception to this rule empowered the executive board to make its own decisions on discretionary funds up to a total of $250 per month. The executive board adopted a policy that the union not make any checks out to "cash." All checks written on the union's account required two signatures, those of the president and the treasurer of the union. In the event that either of those officers was unavailable to sign a check, an unwritten union policy permitted the executive vice-president to sign in the place of whoever was unavailable. The union also had a policy which required executive board members who wished to be reimbursed for out-of-pocket expenses related to the union to provide a receipt of their expenditure to the treasurer.

Early in 1984 Fred Zackary, a union member, began to question appellant's leadership of the union *fn2 and his fiscal responsibility, particularly the fact that appellant's verbal financial reports did not correspond with the union's written reports. As a result, Zackary made a written request that appellant provide him with copies of the March and April, 1984 financial reports. When appellant failed to produce them, Zackary contacted the union's national vice-president, Don McIntyre, about his concerns.

In December 1986, the union met to discuss the allegations that appellant had been fiscally irresponsible, and it authorized a committee to conduct an audit of the union's financial records. Over the objections of appellant, the audit committee requested the union's cancelled checks from the bank. Upon examining the checks, the audit committee noticed that some of the signatures on checks written in 1984, specifically those of Rufus Norris, did not look like Mr. Norris' regular signature. In addition, some of the 1984 checks written and endorsed by appellant were made out to "cash."

Angela Satterthwaite, a union vice-president and member of the audit committee, reported her suspicions that Mr. Norris' signature *fn3 on the 1984 checks had been forged to Mr. McIntyre of the national union office. In May 1987, after Discussions with Mr. McIntyre, Ms. Satterthwaite reported her suspicions to the U.S. Attorney's office. In July 1987, Detective Sally Kirk of the Metropolitan Police Force interviewed appellant in her office about the checks for "cash" that contained his and Norris' signatures. After advising him "briefly what the nature of the investigation was," appellant admitted during the interview that he had written, signed his signature, endorsed and cashed the checks, and stated that the checks had also been signed by Rufus Norris. *fn4 Detective Kirk told appellant that Rufus Norris had denied signing the checks.

James Brown, a Metropolitan Police Department handwriting expert, testified that he had compared handwriting exemplars provided by appellant, Mark Harris and Rufus Norris to the handwriting on the seventeen checks. In his expert opinion, neither Mark Harris nor Rufus Norris had signed any of the checks in question. Mr. Brown also testified that, to a scientific certainty, appellant had not written the signatures of Harris or Norris. Appellant did not present any evidence.

II

The indictment charging appellant with forgery of seventeen checks made payable to cash stated that:

On or about, within the District of Columbia, Oliver W. Johnson, with intent to defraud, falsely made and altered the signature on a bank check.

Appellant contends that there was a constructive amendment of the indictment because the forgery counts in the indictment stated that he "falsely made and altered the signature on [17] bank checks," while the government's proof at trial was that appellant did not write the second signature on the checks, but that it had been made by a second, unnamed person, and the jury may have convicted him for his unauthorized completion of other portions of the checks. *fn5

The Grand Jury Clause of the Fifth Amendment states that: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." An indictment, as a charging instrument, offers three protections to the accused: it must inform the accused of the charges against him so that he may adequately prepare his defense, it must describe the crime with sufficient specificity to protect the accused against future prosecution for the same offense, *fn6 and it "protect against oppressive actions of the prosecutor or a court, which may alter the charge to fit the proof." *fn7 The Constitution guarantees the right to be tried only on charges made by the indictment, and thus ensures that a defendant will ...


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