Opposition Brief — Seay v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-281

JOHN G. SEAY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that there was insufficient evi-

dence of his fraudulent intent to cause a forged or

fraudulently made security to be transported in inter-

state commerce.

Following a non-jury trial on stipulated facts in

the United States District Court for the Eastern

District of Illinois, petitioner was convicted of one

count of unlawful transportation of a falsely made

security in interstate commerce, in violation of 18

2

U.S.C. 2314. He was sentenced to three years’ im-

prisonment, suspended on condition that he spend

four months in a jail-type institution. The court of

appeals affirmed per curiam (Pet. App. A).

The stipulated evidence showed that on June 27,

1972, petitioner caused his employer to sign a check

drawn on its account at an East St. Louis, Illinois,

bank, payable to a fictitious payee (S. 2b; Exs. A and

B).* On the following day, petitioner opened an ac-

count with his personal funds at a different bank in

East St. Louis, Illinois, in the name of that fictitious

enterprise (S. 2c; Ex. D). On June 29, 1972, peti-

tioner endorsed his employer’s check in the name of

the fictitious authorized signatory and deposited it

in the newly opened account (S. 2d; Ex. C). On

July 3, 1972, petitioner drafted a check payable to

himself on the fictitious account, in an amount in

excess of this deposit. Petitioner signed the name of

the fictitious authorized signatory as drawer of the

check (S. 2f; Ex. E). On the same day, he endorsed

this check in his own name and deposited it in his

personal account at a bank in St. Louis, Missouri

(S. 2h; Ex. E). Upon deposit, this check was trans-

ported from St. Louis, Missouri, to East St. Louis,

Illinois, for payment (S. 2i). On July 7, 1972,

petitioner’s Illinois bank decided not to honor that

check due to suspicious circumstances (Ex. A).

1“S.” and “Ex.” refer respectively to the stipulations and

government exhibits at trial.

2 The record does not disclose the manner in which the bank

was alerted to the fraudulent nature of this check.

3

On August 4, 1972, petitioner signed a confession,

which constituted a portion of the stipulations (S.

2a), admitting the fraudulent scheme. He also au-

thorized his Illinois bank to make his employer’s ac-

count whole (S. 2/; Ex. G).

Petitioner contends (Pet. 5) that his scheme to de-

fraud his employer had reached fruition when he

deposited the first check into the newly opened ac-

count, and hence there was no evidence of the requi-

site fraudulent intent at the time of the subsequent

interstate transportation of the second check drawn

on this account and made payable to himself. The

courts below properly rejected this contention, con-

cluding that the attempted transfer of funds from

the intermediary account to his personal account,

which caused the check to be transported in inter-

state commerce, was an integral part of the fraudu-

lent scheme (Pet. App. A, p. A-2; Pet. App. C, p. |

A-14).

Petitioner’s argument that the fraudulent scheme |

was complete upon deposit of the first check in the

intermediary account will not withstand analysis.

The transfer of the proceeds of that check through

the dummy account allowed petitioner to obtain phys-

ical possession of the funds without personally ap-

pearing in his employer’s accounts as the payee of :

a check. As petitioner admitted in his confession,

the issuance of the second check under a fictitious j

name was a necessary part of his plan to convert the ©

funds while minimizing the possibility of detection

and prosecution (S. 2a; Ex. A). Petitioner therefore ;

4

had the requisite fraudulent intent when he signed

the fictitious name on the second check and caused

it to be transported in interstate commerce by de-

positing it in his own account. United States v. Ac-

kerman, 393 F. 2d 121 (C.A. 7). See United States

v. Sheridan, 329 U.S. 379, 384-385, 387; United

States v. Johnson, 504 F. 2d 622, 627 (C.A. 7);

United States v. DeKunchak, 467 F. 2d 482, 437

(C.A. 2).

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. BoRK,

Solicitor General.

NOVEMBER 1975.

W 0. ®. sovernment painvine orrica; 1975 596922 110