August 18, 1992
OLIVER W. JOHNSON, APPELLANT
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.
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.
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  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 not be convicted on the basis of facts not found by, or presented to, the grand jury which indicted him. See Russell v. United States, 369 U.S. 749, 770,82 S.Ct. 1038, 1050 8 L.Ed.2d 240 (1962).
Heretofore the court has summarized the law by stating that "the law recognizes two types of departures from the original indictment:
An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.
(Terrence) Ingram v. United States, 592 A.2d 992, 1005 (D.C. 1991) (quoting Scutchings, supra note 7, 509 A.2d at 636) (emphasis in original); see Gaither, supra note 7, 134 U.S. App. D.C. at 164, 413 F.2d at 1071. Because an amendment infringes on the constitutional right to grand jury indictment, the Supreme Court has adopted a per se reversal rule. Ex parte Bain, 121 U.S. 1, 7,7 S.Ct. 781, 784 30 L.Ed. 849 (1887); see (Terrence) Ingram, supra, 592 A.2d at 1005; Scutchings, supra note 7, 509 A.2d at 637.
Generally described, a constructive amendment occurs when the trial court permits the jury to consider, under the indictment, "an element of the charge that differs from the specific words of the indictme nt." (Terrence) Ingram, supra, 592 A.2d at 1005; see Stirone v. United States, 361 U.S. 212, 217-218 (1960) (indictment limited to extortion by interference with interstate transportation of sand expanded by constructive amendment to include interference with sand and steel.) "A variance becomes a constructive amendment . . . when 'facts introduced at trial go to an essential element of the offense charged, and the facts are different from the facts that would support the offense charged in the indictment.'" Scutchings, supra note 7, 509 A.2d at 637 (quoting Giles v. United States, 472 A.2d 881, 883 (D.C. 1984)) (emphasis in original).
In contrast to an amendment, a variance occurs when the facts proved at trial "materially differ from the facts contained in the indictment 'but the essential elements of the offense are the same.'" (Terrence) Ingram, supra, 592 A.2d at 1006 (quoting United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990)); see United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (variance where indictment charged defrauding insurer both by consenting to the burglary in advance and by lying to the insurer about the value of the loss, and proof at trial concerned only the latter charge). Thus, while the Supreme Court held that there was a constructive amendment in Stirone, supra, 361 U.S. at 213, 80 S.Ct. at 271, because the trial evidence broadened the possible bases for conviction from that charged in the indictment, the Court found only a variance in Miller, supra, 471 U.S. at 131, 105 S.Ct. at 1812, since the conviction was based on trial proof that supported a significantly narrower and more limited basis for conviction than that charged in the indictment. A variance between the indictment and the government's proof at trial implicates notice and double jeopardy guarantees and requires reversal only upon a showing of prejudice. Scutchings, supra note 7, 509 A.2d at 637; Kotteakos v. United States, 328 U.S. 750, 757, 766 66 S.Ct. 1239, 1244, 1248-49, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 82, 8455 S.Ct. 629, 630-631, 79 L.Ed. 1314 (1935).
The distinction between the two terms is not always precise, however, and to evaluate whether an indictment has been constructively amended, the court must compare the evidence and the instructions to the jury with the charge specified in the indictment. See Scutchings, supra note 7, 509 A.2d at 638 (conviction reversed where indictment charged "threats and force" while evidence and jury instructions presented "bribery, threats and force"). Where, as here, there is a difference between the charging terms in the indictment and the evidence and instructions at trial, a case-by-case analysis is required. See (Redell) Ingram v. United States, 392 A.2d 505 (D.C. 1978). Because we hold that there was a constructive amendment of the indictment, we need not reach the issue of prejudice.
The government's handwriting expert opined, to a scientific certainty, that appellant did not write the forged signature on the checks. *fn8 Indeed, in commenting on the expert's testimony, the trial Judge noted that "the only inference that the jury can reasonably draw from the expert's testimony is that neither Mr. Norris, Mr. Harris, nor Mr. Johnson applied the Norris or Harris signatures." Instead, the government's evidence showed, through appellant's admissions, that appellant wrote everything on the checks except the signatures of Norris and Harris.
In the opening statement, the government presented a theory of the case that the second signature on the checks was forged, that both Norris and Harris claimed that they had not signed the checks, that it was the expert opinion that of a handwriting analyst that "for the most part, the check[s were] made out by ," and therefore that appellant had made the checks out without authorization of the second signator. In closing argument the government returned to this theory and to the theory set forth in the instructions that the Judge had already given to the jury, see Super. Ct. Crim. R. 30, that forgery could be proved if appellant had written parts of the checks other than the second signature without authorization. *fn9 The government's proof at trial attempted to suggest that appellant had signed the second signature until its expert's testimony eliminated that premise of guilt, whereupon the prosecutor emphasized a theory that the evidence indicated there was a false making by a third person of the second signature and appellant knew that the second signature was false and compounded the forgery by inserting the unauthorized language on the check. Yet the counts of the grand jury indictment charging forgery stated that appellant "falsely made and altered the signature on a bank check. "The trial Judge instructed the jury that "the government must prove beyond a reasonable doubt that the defendant falsely made, altered, signed or endorsed the written instrument," and that "it not necessary that [the government prove] that the whole instrument had been falsified or altered, only that it contained some material misrepresentations of fact." *fn10
Although the instant case does not involve a striking of words from the indictment by the trial Judge, the effect was the same since the instructions allowed the jury to convict appellant of forgery even if it did not find that he forged the second signatures on the checks. That this is an impermissible amendment is clear from Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781. There the trial Judge, on motion by the United States, struck from the single count of the indictment charging bank directors with making false entries the words "the comptroller of the currency and" where the indictment charged that false statements in a report by the banking association to the comptroller were made with intent to defraud certain parties "with intent to deceive the comptroller of the currency and the agent appointed to examine the affairs of said association . . . ." 121 U.S. at 4. Addressing the view of the trial Judge that he had done no more than to strike as "surplusage" from the indictment non-material words that did no harm to the defendant, 121 U.S. at 10, the Supreme Court rejected the view that the trial court may say whether or not the grand jury would have returned the indictment without reference to the comptroller. *fn11 Furthermore, by allowing the jury to convict the defendant for acts not charged by the grand jury, the court expanded the charge in the indictment. See Stirone, supra, 361 U.S. at 216, 80 S.Ct. at 272-73; Wright, supra note 8, 564 A.2d at 737 (indicted as principal; convicted as aider and abettor); see also Joseph v. United States, 597 A.2d 14,7 (D.C. 1991) (citing Scutchings, supra note 7, 509 A.2d at 638, as holding that essential elements of offense include means of commission and identity of party involved).
Because the indictment specified a particular means of forgery -- a falsely made signature -- while the evidence and jury instructions addressed a different means of culpability -- writing any part of the checks without true signator's authority -- the government and trial court gave the jury the opportunity to convict appellant regardless of whether he signed or procured the second signature. Thus, there was a constructive amendment of the forgery charges in the indictment. *fn12 See (Terrence) Ingram, supra, 592 A.2d at 1006 (constructive amendment of indictment where indictment has a particular theory but the evidence and instructions address a different theory). *fn13 Such an amendment is per se reversible error, and appellant's forgery convictions must therefore be reversed. See Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, Scutchings, supra note 7, 509 A.2d at 638; Giles, supra, 472 A.2d at 883.
The counts of the indictment charging appellant with first degree theft, D.C. Code §§ 22-3811, -3812 (a), stated:
Between on or about January 13, 1984, and on or about April 24, 1984, within the District of Columbia, Oliver W. Johnson wrongfully obtained and used property of a value of $250 or more, belonging to the American Federation of Government Employees, Local 1000, consisting of money, with the intent to appropriate the property for his own use and to deprive the American Federation of Government Employees, Local 1000 of a right to and benefit of the property. [Emphasis added]
Appellant does not dispute that the government met its burden of proof to show that he cashed the checks and had possession of the money thereafter. Rather, he contends that that government failed to prove that he appropriated the funds for his own use.
The government disagrees, relying on the evidence of (1) appellant's admission to Detective Kirk that he made, signed, and endorsed the checks, (2) the testimony of Mr. Norris and Mr. Harris that they neither signed nor authorized appellant to use their signatures; they also testified that appellant never asked them for authorization to cash the checks; (3) the union policy on "cash" checks and use of discretionary funds totaling over $250 a month without a vote of the union membership and appellant's writing and cashing seventeen checks totaling almost $4,000 in a relatively short period of time, and (4) appellant's resistance, indicative of his intent to evade discovery and to use union funds for his own benefit, to union efforts to obtain the financial records in his possession and the cancelled checks from the bank. From this evidence the government maintains that a reasonable jury could infer that appellant wrongfully obtained union funds for his own benefit by making and cashing checks against union policy and without union authorization. Moreover, the government maintains that since no one in the union had knowledge of the checks and appellant did not produce receipts for union expenses to justify the checks, a reasonable jury could infer that appellant did not use the funds for union activities.
Viewing the evidence, as we must, in the light most favorable to the government, see Robinson v. United States, 506 A.2d 572, 573 (D.C. 1986); McClain v. United States, 460 A.2d 562, 567 (D.C. 1983) we agree. See Fox v United States, 421 A.2d 9, 13 (D.C. 1980) (government not required to disprove every possible inference of innocence). *fn15
Finally, appellant contends that he was deprived of a fair trial by the government's repeated comments on his exercise of his right to remain silent during a pre-arrest interview with a police detective. In the opening statement to the jury, the prosecutor stated that:
Ladies and gentlemen, Detective Sally Kirk said to him, the second signature is not Rufus Norris' signature.
He said it is not his signature. What do you have to say about that? Oliver Johnson said nothing.
In response to a defense objection, the trial Judge instructed the jury that it was not to draw any adverse inference from the fact that appellant did not respond to a question posed by a police officer. *fn16
Later, the government offered the testimony of Detective Kirk. Over the objections of defense counsel, the trial Judge allowed the government to elicit from Detective Kirk the fact that she had advised appellant that Mr. Norris had denied signing the checks. The Judge prohibited the government from taking the line of questioning any further. *fn17
In closing argument to the jury, the prosecutor stated:
And then there's an interview with Oliver Johnson. And what does Oliver Johnson say to Detective Kirk? . . . He says, "Yeah, I cashed them. Yes, I made out the face of the checks" -- any information on that check, ladies and gentlemen, which is unauthorized -- "I made out the face of the check, I signed it and endorsed it."
Appellant contends that this evidence -- even presented in a partially sanitized manner -- was inadmissible because it tended to create an adverse inference regarding appellant's silence in the face of an implied accusation.
The Supreme Court has not yet addressed, the government states in its brief, the precise question of whether the prosecution's reference to pre-Miranda silence in its case-in-chief violates the Fifth Amendment. See Fencl v. Abrahamson, 841 F.2d 760, 766 (7th Cir. 1988) (noting that, except for the 10th Circuit, the federal circuit courts of appeal have declined to decide the issue, and declining to do so itself where the defendant had not testified, using instead a harmless error analysis). Under Miranda v. Arizona, 384 U.S. 436,86 S.Ct. 1602, 16 L.Wd.2d 694 (1966), it is impermissible to penalize a defendant for exercising his Fifth Amendment privilege against self-incrimination while he is under police custodial interrogation. Id. at 468. If a defendant remains silent in the face of accusation while he is under arrest, the prosecution cannot use his silence against him at trial. Id. Nor may the government impeach a defendant with his post-arrest, post-Miranda advice silence to show inconsistency with an exculpatory story told at trial. See Doyle v. Ohio, 426 U.S. 61096 S.Ct. 2240,49 L.Ed.2d 91 (1976). In Fletcher v. Weir, 455 U.S. 603,102 S.Ct. 1309,71 L.Ed.2d 490 (1982) (per curiam), however, the Court held that due process is not violated when a state permits cross-examination of a defendant as to post-arrest, pre-Miranda advice silence to impeach a defendant who chooses to take the stand. Id. at 607. The Court has also held that impeachment of a defendant by reference to his pre-arrest, pre-Miranda advice silence does not violate his constitutional rights. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124,65 L.Ed.2d 86 (1980).
The Tenth Circuit Court of Appeals has concluded that comment on a defendant's silence during a civil investigation was not error where the defendant did not remain silent in reliance on government action, i.e., a Miranda warning. United States v. Harrold, 796 F.2d 1275, 1279 (10th Cir. 1986), cert. denied, 479 U.S. 1037,107 S.Ct. 892,93 L.Ed.2d 844 (1987) (assertion of Fifth Amendment privilege against self-incrimination during pre-indictment, pre Miranda warnings, interview by IRS agents). *fn18 The Eight Circuit Court of Appeals has adopted a similar analysis. See United States v. Rederth, 872 F.2d 255, 257-58 (8th Cir. 1989) (detective's testimony on redirect about the defendant's termination of interview prior to arrest and Miranda warnings not improper use of defendant's silence; the trial Judge had sustained a defense objection during the detective's direct examination and on cross examination defense counsel brought out that the defendant had not been given Miranda warnings). On the other hand, the Second Circuit Court of Appeals noted that "all of the cases permitting proof of silence, including Jenkins, have involved impeachment or rebuttal of the defendant's testimony," and stated that "we are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government's case in chief." United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981). In that case, the Second Circuit assumed error and found it to be harmless beyond a reasonable doubt. Id. at 876.
We find ourselves in much the same position as the Second Circuit Court of Appeals in view of the state of the current law. We too need not decide the issue because, assuming that it was error to admit the evidence of appellant's silence in response to the detective's question whether he knew that Norris had denied signing the checks, we are satisfied that any error was harmless beyond a reasonable doubt. See Rose v. Clark, 478 U.S. 570, 577,106 S.Ct. 3101, 3105,92 L.Ed.2d 460 (1986), citing Delaware v. Van Arsdall, 475 U.S. 673, 681,106 S.Ct. 1431,89 L.Ed.2d 674 (1981). The only reference to appellant's refusal to respond was during the prosecutor's opening statement to the jury. The Judge instructed the jury at that time that no inference whatever could be drawn from appellant's refusal to respond to the detective's question. The detective's testimony at trial was confined so that no mention was made of appellant's reaction to the detective's statement that Norris denied that the signatures on the checks were his. In closing argument the prosecutor did not refer to appellant's refusal to respond. Under these circumstances, in view of the strength of the government's case against appellant, we are satisfied that no reversible error occurred.
Accordingly, we reverse the judgments of conviction of forgery and otherwise affirm.