United States v. Harold Lloyd Phillips , 869 F.2d 1361 ( 1988 )

STEPHEN H. ANDERSON, Circuit Judge.

Harold Lloyd Phillips appeals his conviction on two counts of violating 18 U.S.C. § 2314 which makes it a crime to knowingly and wilfully transport in interstate commerce forged and falsely made securities with intent to defraud. He contends that the district court erred in its instructions to the jury by enlarging and thus amending the charging indictment. Similarly, because of the same instruction, Phillips contends he was deprived of his right to a unanimous jury verdict. Two additional issues are raised: 'whether the district court abused its discretion in not allowing objections to instructions prior to charging the jury; and whether the district court erred in giving an “on or about” instruction when Phillips’ defense was that of alibi. We affirm.

On August 14, 1986 Phillips was charged in a two count superseding indictment with knowingly transporting a forged and falsely made security — two bad checks — in interstate commerce with intent to defraud. The indictment reads as follows:

Superceding Indictment

The Grand Jury charges:

Count I

On or about the 11th day of December 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Need-ham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Andrews, Texas, a falsely made and forged security, to wit: Check No. 2649 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.

In violation of 18 U.S.C. 2314.

Count II

On or about the 12th day of December, 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Need-ham, aka J.A. Needham, with unlawful and fraudulent intent, did wilfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Littlefield, Texas, a falsely made and forged security, to wit: Check No. 2470 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.

In violation of 18 U.S.C. 2314.

R.Vol. I, doc. 17 (emphasis added).

At Phillips’ trial, the checks in question were introduced. Both checks were signed in the name of George Smith. Store clerks from Andrews and Littlefield, Texas, testified that Phillips had cashed these checks at their places of business representing himself to be the payee, “Jimmy Need-ham.” Evidence was offered to show that Phillips was president of United States Va-cuumite Corporation, and that he was the only individual authorized to write checks on the account, that “George Smith” was one of Phillips’ favorite deceased uncles, and that the account had been closed since 1980, five years before the checks were cashed in Texas. Handwriting samples in which Phillips had repeatedly signed the name George Smith were admitted into evidence.

Further, a briefcase similar to one used by Phillips was found in a place where Phillips had been on at least three previous occasions. The briefcase contained blank checks, checks made out to J.A. Needham in the amount of $389.20 drawn on the United States Vacuumite Corporation account at the Capital Bank of Santa Fe, other checks in the names of Sheryl or Phil Phillips, and various maps. The prosecution also produced James Needham at trial. Needham testified that he had known the defendant as both Harold and Phil Phillips for a number of years, but that he had never been an employee of the United States Vacuumite Corporation and had not endorsed the two checks listed in the counts of the indictment, nor had he been in Andrews or Littlefield, Texas in December, 1985.

In his defense, Phillips introduced two witnesses who offered testimony suggesting that at the time he allegedly cashed the checks in Texas, Phillips had been in the state of Washington. In rebuttal, another store clerk testified that on the date in question, in Andrews, Texas at a different store, Phillips presented a check to him for $389.20 drawn on the Capital Bank of Santa Fe account of the United States Vacu-umite Corporation. The clerk testified that he observed Phillips endorse the back of the check as J.A. Needham, the payee. A handwriting expert testified that Phillips was the author of the payee endorsement “Jimmy Needham” signed to the back of this check to the exclusion of all others.

I.

The Fifth Amendment requires that a felony defendant be tried only on an offense alleged in a grand jury indictment. United States v. Miller, 471 U.S. 130, 135, 140, 105 S.Ct. 1811, 1814, 1817, 85 L.Ed.2d 99 (1985). “Ever since Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887 it has been the rule that after an indictment has been returned its charges, may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960). Any such amendment effected by the court’s instructions would constitute plain error and be reversible per se.

At the end of trial the court instructed the jury that:

“A check is falsely made or forged for the purpose ... of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two, the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient.”

R.Vol. IV at 405. Thus, the jury instructions allowed the jury to find the check falsely made and forged if, (1) the maker of the check was not authorized to sign on the account from which the check was drawn; (2) the check was drawn on a closed account; or (3) the check was made payable to a fictitious payee.

Phillips contends that this instruction constitutes a constructive amendment of the indictment on the premise that the indictment referred to a forged signature of the maker but not to a closed account or fictitious payee. We disagree with that premise.

In interpreting an indictment, we are governed by practical rather than technical considerations. United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986) (“Charging documents are tested by whether they apprise the defendant of what evidence he must be prepared to meet____ An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied.”) (citations omitted); see also United States v. Maggitt, 784 F.2d 590, 598 (5th Cir.1986) (“An indictment is to be read in light of its purpose, which is to inform the accused of the charges.”) (citation omitted). Additionally, where, as in this case, there was no objection to the evidence, the instructions, or the indictment at trial, the court, in order to preserve judicial efficiency, must construe any ambiguities in the indictment in favor of validity. United States v. Freeman, 813 F.2d 303, 304 (10th Cir.1987) (Indictments which are tardily challenged are liberally construed in favor of validity.) (citing United States v. Watkins, 709 F.2d 475, 478 n. 2 (7th Cir.1983), and United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977)); United States v. Joseph, 781 F.2d 549, 554 (6th Cir.1986) (“When an indictment is challenged for the first time only after verdict, it will be liberally construed in favor of its sufficiency, and there will be no reversal, in the absence of prejudice ‘unless the indictment cannot, within reason be construed to charge a crime.’ ”) (quoting in part United States v. Hart, 640 F.2d 856, 857-58 (6th Cir.), cert. denied, 451 U.S. 992, 101 S.Ct. 2334, 68 L.Ed.2d 853 (1981)). Finally, as Phillips concedes, since there was no objection at trial, reversal is not justified unless the district court’s instruction constituted plain error. Brief of Appellant at 19; see also Fed.R.Crim.P. 52; Freeman, 813 F.2d at 305 (“Freeman’s failure to object to the alleged omission and addition in the instructions at trial precludes us from finding error unless the error cited is plain error under Rule 52(b) of the Federal Rules of Criminal Procedure.”). With these factors in mind, we cannot conclude that the trial court’s instruction broadened the charge against the defendant beyond that set out in the indictment.

Phillips argues that the final four lines in each count of the indictment restrict the element of falsity to an unauthorized maker’s signature; but the language states otherwise. Each count consists of but a single sentence which describes the check and material facts relating to the charge in detail, and concludes with the words “the defendant then and there knew said check to be forged and falsely made.”

The fictitious payee aspect of the check is directly adverted to in each count. The indictment states that the check was made payable to J.A. Needham. The indictment further avers that Phillips used the alias J.A. Needham. Given these two specific details coupled with the averment in the indictment that Phillips knew the checks to be forged and falsely made when he caused them to be transported in interstate commerce, Phillips simply could not have failed to be on notice that the government intended to argue at trial that the check was forged and falsely made because the check’s payee was fictitious.

This same reasoning applies to the “closed account” segment of the challenged instruction. The indictment specifically indicated that the checks in question were drawn on the United States Vacuum-ite account, Account Number 00-3958-6, at the Capital Bank of Santa Fe, and were dated December 5, 1985. There was, of course, no such account at that time. Again, given this specificity coupled with the indictment’s averment that Phillips knew that the checks were forged and falsely made at the time he caused their transfer, Phillips was clearly on notice of the “closed account” theory of falsity.

The record amply supports the conclusion that the indictment fairly articulated and informed Phillips of these additional theories of how the check was forged or fraudulently made. When the government put on its proof that Needham had no connection with the United States Vacuum-ite Corporation, and that Phillips identified himself as Needham when cashing the checks, Phillips’ counsel interposed no objection, claimed no prejudice, and expressed no surprise. As previously indicated, when the instruction in question was given, counsel expressed no surprise and entered no objection — although objections to other instructions were made. Again, no objection, claim of prejudice, or surprise were expressed by Phillips’ counsel when the government put on its proof that the account was nonexistent, and when the court instructed on the point.

In short, based upon a fair reading of the indictment as a whole, the contested instruction did nothing more than reflect the allegations contained in the indictment. It did not amend the indictment, and there was no variance in the proof.¹ None of the cases cited to us compel a different conclusion. They all involve fact situations sufficiently different to make them irrelevant here.

II.

On appeal, Phillips raises for the first time the contention that the jury instruction given by the trial court defining “falsely made and forged” deprived him of a unanimous jury verdict.² As previously indicated, Phillips did not object at trial to the instruction defining forged and falsely made, nor did he request a more specific instruction than the one given as to the jury’s unanimity obligation. We thus also review Phillips objection to the lack of a specific unanimity instruction under the “plain error” standard. See United States v. Beros, 833 F.2d 455, 462-63 (3d Cir.1987); United States v. Payseno, 782 F.2d 832, 834 (9th Cir.1986).

In this circuit, as in most others, “it is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict.” United States v. McClure, 734 F.2d 484, 494 (10th Cir.1984) (citing United States v. Murray, 618 F.2d 892, 898 (2d Cir.1980); see also Beros, 833 F.2d at 460; Payseno, 782 F.2d at 835; United States v. Williams, 737 F.2d 594, 614 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); United States v. Johnson, 713 F.2d 633, 646 n. 14 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). Therefore, we assume that the jury unanimously reached a decision as to all factual predicates on which it based Phillips’ conviction.

“In the final analysis, ‘only common sense and intuition can define the specificity with which the jury must describe the defendant’s conduct before it convicts.’ Note, Right to Jury Unanimity on Material Fact Issues, 91 Harv.L.Rev. 499, 502 (1977). That common sense and intuition, in turn, is informed by the circumstances of the case and the arguments of the parties. In the absence of an appropriate unanimity instruction tendered by the defendant ], we will not reverse the convictions on the ground of faulty instruction.”

Williams, 737 F.2d at 614 (citing United States v. Pavloski, 574 F.2d 933, 936 (7th Cir.1978)); see also United States v. Natelli, 527 F.2d 311, 324-25 (2d Cir.), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976).

A few circuits have made exceptions to the rule that a general unanimity instruction will be sufficient to guarantee unanimity as to all grounds required to support the verdict,³ but only the Ninth Circuit has held the lack of a specific unanimity instruction to be plain error. See Payseno, 782 F.2d at 836. In Payseno the Ninth Circuit, while recognizing the general rule, nonetheless held that when there was a realistic possibility of jury confusion as to the acts which supported the conviction, the lack of a specific unanimity instruction constituted plain error.

Without deciding whether this Circuit would adopt the exception to the rule discussed in Payseno, we note that even if it did, a general unanimity instruction would be sufficient here. In Payseno, the Ninth Circuit determined that the trial court’s jury instruction allowed the jury to convict Payseno on any one of three acts, any one of which would have been sufficient of itself to support Payseno’s conviction under the statute. Thus, the Ninth Circuit determined that “ ‘[bjecause the [separate instances], if they in fact occurred, were separate crimes rather than elements of a single crime, each should have been charged in a separate count of the indictment.’ ” Id. at 835. Because the court allowed the jury to convict Payseno based on any one of these three acts, there was a genuine possibility of jury confusion.

Here, as opposed to Payseno, the indictment specified in two counts each specific act for which Phillips was on trial. The act for which Phillips was unanimously convicted on two separate counts by the jury was intentionally causing a forged and falsely made check to travel in interstate commerce. To find Phillips guilty the jury had to determine that the checks were “falsely made and forged,” that they were transported in interstate commerce, that Phillips caused the checks to be transported in interstate commerce, and that he did so intentionally. It is true that the jury instruction defining “falsely made and forged” might have allowed some members of the jury to determine that the checks were forged and falsely made in different ways. As indicated, however, that does not go to the crime charged but only to one of several elements.⁴

The different methods in which the check might have been forged and falsely made did not constitute separate crimes for which Phillips was charged, or for which he could have been convicted under the indictment, they constituted different ways in which a single element of the crime for which he was charged might have been fulfilled. By giving the jury instruction of which Phillips and the dissent now complain, the court did not allow the jury to consider multiple charged criminal acts any one of which, standing alone, would be sufficient to convict under the statute. Thus, here, unlike Payseno, the unanimous verdict requirement is satisfied. “A common tool to guarantee a unanimous verdict is the indictment. An indictment charging only one offense [in particularized counts] guards against a conviction on a less than unanimous verdict.” Williams, 12,1 F.2d at 613.⁵

The effect of the dissent’s position would be that a jury must not only decide unanimously that the defendant committed one of the particular criminal acts for which he was charged, but that it is plain error for a trial court not to give a specific unanimity instruction where there is any possibility in the record that the jury could differ as to any part of the evidence offered to prove any element of the charged offense. None of the cases on which Phillips or the dissent relies has gone so far, see Beros, 833 F.2d at 455; Payseno, 782 F.2d at 832; Echeverry, 719 F.2d at 974; Gipson, 553 F.2d at 453, and we have previously rejected that argument in this circuit. See McClure, 734 F.2d at 494 (“To reverse a conviction based purely upon the abstract possibility of juror disagreement as to certain underlying facts would seem to elevate the unanimity requirement to due process of law — a notion clearly rejected by the Supreme Court”); United States v. Barton, 731 F.2d 669, 673 (10th Cir.1984) (“The court’s general instruction requiring unanimity as to whether Barton committed the proscribed act with which he was charged ... was sufficient”).

Thus, even if Payseno were applicable in this circuit this case does not present the kind of jury confusion which would require a specific unanimity instruction. See, e.g., United States v. Schiff, 801 F.2d 108, 114-15 (2nd Cir.1986); cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987) (distinguishing Payseno and applying the general rule because the different acts on which the jury could convict in Payseno were so divergent). Therefore, because the trial court instructed the jury concerning its general unanimity obligation, and because this case does not fit into the Pay-seno exception to the general rule accepted by the Ninth Circuit, the lack of a specific unanimity instruction in this case was not plain error. Consequently, we hold, as we must, that the general unanimity instruction given the jury in this case was sufficient to guarantee a unanimous verdict as to all specifications required to support the convictions of Phillips.

III.

Phillips’ last two assertions of error do not require detailed discussion. First he argues that the court failed to comply with Fed.R.Crim.P. 30 by not allowing him to object to the instructions prior to reading them to the jury. Fed.R.Crim.P. 30, however, does not require that a defendant be allowed to object to instructions before they are read to the jury. It merely requires that if the defendant is to preserve error based on the instructions, he must object “before the jury retires to consider its verdict.”

In the instant case, the court provided such an opportunity. It read the instructions to the jury, and then excused them, but specifically directed that they were not yet to begin their deliberations. At this time, it considered objections to the instructions from counsel. Phillips objected generally to not being able to object to jury instructions until after they had been read to the jury, he objected to the reading of the “on or about” instruction, and he pointed out an error that the court had made in reading the instructions to the jury.

In response, the court indicated that its practice of taking objections to the instructions after they were read to the jury was dictated by this circuit. See R.Vol. IY at 417, see also Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681, 683-84 (10th Cir.1966). It disagreed with Phillips’ objection to the “on or about” instruction and declined to change it, and it recalled the jury to correct its previous error in reading the jury instructions. The court then instructed the jury to begin its deliberations and the jury was excused. This was all that Fed.R.Crim.P. 30 requires.

We note parenthetically that Dunn does not require objection to the court’s instructions to be taken after the instructions are given to the jury. To the extent that it has been so read it has been persuasively criticized. See United States v. Wright, 542 F.2d 975, 982-83 (7th Cir.1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed. 2d 790 (1977); see also United States v. Hollinger, 553 F.2d 535, 542-43 (7th Cir. 1977) (approving the practice disapproved in Dunn); 2 C. Wright & A. Miller, Federal Practice and Procedure, § 484 at 705-06 (2d ed. 1982).

Finally, Phillips was not harmed by the trial court’s reading of instruction number twelve — the “on or about” instruction. The court instructed the jury that the indictment charged that the checks at issue were transported in interstate commerce— delivered to the bank on which they were drawn in Santa Fe — “on or about” certain dates. The court further instructed the jury that if it found that the offense was committed on those dates or “dates reasonably near the dates alleged,” it could find the defendant guilty. The counts of the indictment alleged that these dates were on or about the eleventh and twelfth of December 1985. Thus, the jury instruction permitted the jury to find Phillips guilty if it found that the checks were delivered to the bank at Santa Fe “on or about” the eleventh and twelfth.

Phillips’ main theory of defense at trial was that of alibi; he contended that he was not in Texas on the days that the checks were cashed, December sixth and seventh. Because his alibi defense involves specific days, he claims that the instruction permitting the jury to find him guilty by finding that the offenses were committed on dates “reasonably near the dates alleged” deprived him of his alibi defense.

In United States v. Lucero, 601 F.2d 1147, 1150 (10th Cir.1979) we rejected a similar claim, by noting that the “on or about” instruction related to the date on which the “forged securities were passed in interstate commerce,” not to the presence of the defendant where and when the government alleged that the defendant personally transferred the money orders. Lucero, as Phillips concedes, relates directly to this case in that the “on or about” instruction here refers to the date on which the checks were transmitted in banking channels across state lines, not to the date on which Phillips cashed the checks. Phillips, however, asks us to reconsider our decision in Lucero. After having done so we reaffirm its result. Accordingly, we find that the district court did not err by delivering its on or about instruction in this case.

Because we find that the district court committed none of the errors alleged by Phillips, his conviction is AFFIRMED.

1 . Phillips admits that proof was offered that the bank account was closed, and that the check’s payee was fictitious, but, he argues, "there was virtually no evidence presented to the jury with respect to the checks being signed by an unauthorized maker.” Thus, Phillips contends that the court’s instructions to the jury not only allowed it, but obliged it, to find Phillips guilty on theories which were not set out in the indictment.

However, there is evidence which Phillips overlooks. And ”[i]n evaluating the sufficiency of the evidence, we must view the evidence— both direct and circumstantial, together with all reasonable inferences to be drawn therefrom— in the light most favorable to the government." United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986) (citing Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982)). At trial, the jury heard the testimony of Joanne Sterrett, the bookkeeping supervisor for the bank on which the checks were drawn. She testified first that the checking account on which the checks were drawn had been closed for five years at the time the checks were written. The jury might fairly infer, given such testimony, that there can be no authorized signature on an account which has been closed for five years. Second, she testified that the only person authorized to sign checks for the United States Vacu-umite Corporation checking account was H.L. or Phil Phillips, the defendant. R.Vol. Ill at 80. Thus, even if George Smith were associated with Vacuumite, his signature on a Vacuumite check was nonetheless unauthorized. It is not the prosecution’s burden in this case to show who forged or falsely made the check or its authorized signature, it only must show that the check was forged or falsely made. Hampton v. United States, 504 F.2d 600, 604 n. 3 (10th Cir.1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975).

Finally, even though, as Phillips points out, the handwriting expert did not compare the handwriting exemplars of Phillips with the signature of George Smith appearing on the face of the two disputed checks, sufficient evidence was introduced to allow the jury to do so.

During his testimony, Special Agent Yokum testified that he took handwriting samples from the defendant pursuant to court order. Because one of the suspect signatures on the checks at issue was that of the maker of the check, George Smith, defendant Phillips repeatedly signed the name George Smith as a part of this handwriting sample. These samples were admitted into evidence at trial. “The admitted or proved handwriting of any person [is] admissible, for purposes of comparison, to determine genuineness of other handwriting attributed to such person.” 28 U.S.C. § 1731. Thus, the jury was entitled to make such a comparison, and appropriate evidence was admitted by which it could do so. In this case, the jury had in evidence the two checks which were the subject of the indictment and which were signed "George Smith” with which it could compare the proved exemplars from the handwriting sample. Because factfinding of this nature is ultimately the province of the jury, it was certainly entitled to conclude, based on the evidence, that Phillips signed the name "George Smith” to both checks which were the subject of the indictment. See Strauss v. United States, 311 F.2d 926, 932 (5th Cir.), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963). In light of the other evidence presented to the effect that George Smith was Phillips’ favorite uncle, now deceased, and that no one connected with the Vacuumite Corporation was named George Smith. The jury could fairly make such a determination.

2 . For a thoughtful discussion of this general issue see State v. Russell, 733 P.2d 162, 175-78 (Utah 1987) (Durham, J., concurring); see also Trubitt, Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts are Invalidated by Juror Disagreement on Issues, 36 Okla.L.Rev. 473, 534-41 (1983).

3 . For example, the Third Circuit has required more specific jury instructions as to unanimity in cases where the statute under which the defendant was charged criminalized a number of different acts, proof was offered at trial by which the jury might have concluded that the defendant committed any one of several of these acts, and the district court rejected the defendant’s request at trial for a specific unanimity instruction. See Beros, 833 F.2d at 458-62; Cf. United States v. Gipson, 553 F.2d 453 (5th Cir.1977).

4 . The dissent asserts that the trial court instructed the jury that it could find Phillips guilty of forgery if it found that the check was forged or falsely made in any of the three ways previously defined. This mischaracterization of § 2314 may be at the root of the dissent’s inability to grasp this issue because Phillips was neither convicted nor charged with forgery nor was it necessary for the jury to find that Phillips personally forged or fraudulently made the check at issue to find him guilty of violating § 2314. See Hampton v. United States, 504 F.2d 600, 604 n. 3 (10th Cir.1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975).

5 . The other two cases in which the Ninth Circuit found the lack of a specific unanimity instruction to be plain error are similarly distinguishable. See United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir.1988); United States v. Echeverry, 698 F.2d 375, 377 (9th Cir.1983), modified, 719 F.2d 974 (9th Cir.1983). As we have detailed in part one of this opinion, however, the acts which were the basis of both counts of this indictment were specified with considerable particularity.