United States v. Charles P. Bourassa, 411 F.2d 69, 10th Cir. (1969)
United States v. Charles P. Bourassa, 411 F.2d 69, 10th Cir. (1969)
2d 69
Due to the jury verdicts against appellant, the record must be viewed in the
light most favorable to the Government's case which showed these facts.
Appellant was observed one night in June, 1967, leaving the Blue Lounge
Tavern in Wichita by an officer of the city police force. A short distance away
the officer pursued a car being driven at high speed for about eight blocks
through the city streets, using his red light and siren during about half of the
chase. The speeding vehicle turned into an alley and some bushes and the
officer then found that it was appellant who was driving and removed him from
the vehicle, handcuffed him, searched his person for weapons and placed him
in the front seat of the police car. Another officer was then summoned.
3
After some conversation the officer determined that appellant had been
drinking but was not intoxicated. He decided to release appellant to the custody
of Green who had come out of the house where the chase ended and confirmed
a friendship with appellant. On removing appellant from the police vehicle to
unlock the handcuffs, the officer noticed on the car seat a coin which appeared
similar to one he had seen earlier and understood to be a counterfeit "quarter."
After some discussion between the officers appellant was arrested for
possession of the counterfeit coin.
At about this point appellant said he had not cheated anybody out of anything
and had been using the coins in the pool table at the Blue Lounge. There is
some conflict in the statements of the officers, but there was testimony that this
statement by appellant about the coins occurred with no questioning and prior
to the giving of a Miranda warning. After the warning was read to him
appellant was searched and four additional counterfeit "quarters" were found.
One officer later found nine additional counterfeit "quarters" in the coin
operated pool table at the lounge. Following a Secret Service investigation this
prosecution was commenced.
For reversal appellant argues primarily that the District Court erred in denying
a motion to suppress evidence consisting of the coins and the statement by
appellant about them, related above. The Court found that the first coin was
seen during a lawful arrest for speeding; that the remaining coins were found
during a lawful search; that the original statement was voluntary; but that later
statements, made after the warning, occurred without the express waiver
required by Sullins v. United States, 389 F.2d 985 (10th Cir. 1968), and
suppressed them. The record supports the findings and we conclude there was
no error in these or other rulings and affirm.
Appellant's primary contention is that the original coin was observed as the
result of an unlawful search, requiring it and other evidence to which it led to
be suppressed. Appellant's driving at high speed afforded probable cause for his
arrest for speeding and his detention for that reason. Massey v. United States,
358 F.2d 782 (10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17
L.Ed.2d 105 (1966); K.S.A. 13-623, 13-625. There was a search of appellant's
person for weapons before he was put in the police car. However, the coin was
not produced by the search, but was merely seen on the car seat when appellant
got out. Obviously the coin was dropped by appellant or fell from his clothing.
The officer had the right to be in the position where he saw the coin which fell
into plain view and was subject to seizure and to introduction into evidence.
Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968);
Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Goodwin
v. United States, 121 U.S.App. D.C. 9, 347 F.2d 793 (1965), cert. denied, 382
U.S. 920, 86 S.Ct. 300, 15 L.Ed.2d 234 (1965); United States v. Williams, 314
F.2d 795 (6th Cir. 1963). Thus, the original coin was not the product of a
search and was lawfully seized.
7
It is urged that the admission of the coins in evidence was error because of gaps
in proof of the chain of possession after their seizure. There was testimony by
one officer that the original five coins seized were those offered as such, based
on initials scratched on one coin and tape identification on others. The
remaining coins were identified by the other officer as those found at the
lounge that night from an initial marked on one and the fact that all coins were
sealed in an envelope, and by proof of the Secret Service agent that the coins
offered were those from this envelope, based on some scratches he made. We
conclude that the admission of the exhibits was no abuse of the discretion of
the trial court on the sufficiency of identification. Rosemund v. United States,
386 F.2d 412 (10th Cir. 1967); Reed v. United States, 377 F.2d 891 (10th Cir.
1967).
10
Appellant claims error in the refusal of the District Court to reduce to a single
count the separate charges for possessing and passing counterfeit coins in
violation of 18 U.S.C. 485.3 The argument is that by grammatical
rearrangement which placed the offenses of possessing and passing within the
same clause, Congress made it only one offense to violate the counterfeiting
laws by both possessing and passing such coins.4 We do not agree.
11
The present statute aims at "Whoever passes, utters, publishes, sells, possesses,
or brings into the United States." any counterfeit coins or the like. This Court
has rejected appellant's contention when made under the statutory predecessor,
Section 163 of the Criminal Code of 1909, set out in the margin. In Reger v.
Hudspeth, 103 F.2d 825 (10th Cir. 1939), cert. denied, 308 U.S. 549, 60 S.Ct.
79, 84 L.Ed. 462 (1939), it was held that the earlier statute made possession of
such a coin one offense and passing or uttering of it another. While the earlier
statutory provision more clearly set apart the offense on possession, we
conclude that the result is the same under 18 U.S.C. 485. As the Reger
opinion states, possessing and passing are separate and distinct and not a
continuous offense, and each count requires proof of distinct facts. See
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932);
Aiuppa v. United States, 393 F.2d 597 (10th Cir. 1968), vacated on other
grounds sub nomine Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1164, 22
L.Ed.2d 297 (1969); Kinsella v. Looney, 217 F.2d 445 (10th Cir. 1954). Thus,
the District Court properly construed the statute as providing for separate
offenses.
12
It is argued that there was neither proof that the coins were counterfeit nor that
appellant knew they were not genuine. The Secret Service agent who testified
exhibited ample experience in the field of detecting counterfeit currency and
the trial court's discretion in admitting expert testimony was not abused.
Wolford v. United States, 401 F. 2d 331 (10th Cir. 1968). Based on defects
observed, the expert testified that the coins were counterfeit. Moreover,
appellant's statement that he had not cheated anyone with the coins and had
only used them in the coin operated pool table, together with other proof, was
sufficient to permit the inference that appellant knew the coins were not
genuine. The convictions are amply supported when the direct and
circumstantial evidence is viewed in the light most favorable to the prosecution,
as we must due to the jury verdict. Van Nattan v. United States, supra.
13
Appellant also claims error in connection with his bail jumping conviction. He
asserts that the trial court failed to instruct that notice to him of the trial setting
must be proved. The instructions properly laid out the required proof of an
offense under 18 U. S.C. 3150 including, among other things, proof that he
was admitted to bail conditioned on his appearing for a further trial as ordered;
that he willfully failed to appear; and that willfully meant committed voluntarily
and with the purpose of violating the law, and not by mistake, accident, or in
good faith The charge was sufficient without requiring proof of explicit notice
of the trial date. United States v. Hall, 346 F.2d 875 (2d Cir. 1965), cert.
denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965).
14
It is also argued that it was error to permit appellant's former attorney to testify
that he notified appellant to be present for his first trial in October, 1967, on the
counterfeiting charges because the proof violated the attorney-client privilege
and was cumulative.5 Relating such notice to the client was counsel's duty as an
officer of the court, and was not within the privilege. United States v. Hall,
supra. And admitting such proof by two witnesses was no abuse of the trial
court's discretion in dealing with objections that the proof was cumulative.
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 230, 60 S.Ct. 811, 84
L.Ed. 1129 (1940).
15
discretion. Smith v. United States, 357 F.2d 486, 489 (5th Cir. 1966). In any
event in separate trials of each case some reference to the basic facts of the
other case would have been permitted so that if consolidation was improper, it
was harmless error. Rule 52(a) F.R.Crim. P.; United States v. Kelley, 105 F.2d
912, 916-917 (2d Cir. 1939).
16
17
The record reveals a fair trial and the judgments are affirmed.
Notes:
1
Appellant argues that there was no lawful arrest since no formal traffic citation
was issued, relying on K.S.A.1968 Supp., 8-5, 129a and State v. Cook, 194
Kan. 495, 399 P.2d 835 (1965). However, we agree with the District Court that
a lawful arrest was effected upon the detention of appellant and find no
contrary indication in Kansas or Federal law
The search for weapons and all the actions of the officers were clearly
reasonable in view of appellant's actions. See Terry v. Ohio, 392 U.S. 1, 19, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Humphrey, 409 F.2d 1055
(10th Cir. 1969)
Three versions of the counterfeiting statues are of some relevance. Prior to the
1948 codification, former Section 163 of the penal code provided in pertinent
part as follows:
"* * * or whoever shall pass, utter, publish, or sell, or attempt to pass, utter,
publish, or sell, or bring into the United States or any place subject to the
jurisdiction thereof, from any foreign place, knowing the same to be false,
forged, or counterfeit, with intent to defraud any body politic or corporate, or
any person or persons whomsoever, or shall have in his possession any such
false, forged, or counterfeited coin or bars, knowing the same to be false,
forged, or counterfeited, with intent to defraud any body politic or corporate, or
any person or persons whomsoever, shall be fined not more than five thousand
dollars and imprisoned not more than ten years." (35 Stat. 1119)
In the 1948 codification the statute was amended and became 18 U.S.C. 485,
which provided in pertinent part as follows:
"Whoever passes, utters, publishes or sells, or attempts to pass, utter, publish, or
sell, or bring into the United States, from any foreign place, knowing the same
to be false, forged, or counterfeit, with intent to defraud any body politic or
corporate, or any person, or possesses any such false, forged, or counterfeited
coin or bars, knowing the same to be false, forged, or counterfeited, with intent
to defraud any body politic or corporate, or any person
"Shall be fined not more than $5,000 or imprisoned not more than fifteen years,
or both." (62 Stat. 708)
18 U.S.C. 485 was amended in 1965 and presently provides in pertinent part
as follows:
"`Whoever passes, utters, publishes, sells, possesses, or brings into the United
States any false, forged, or counterfeit coin or bar, knowing the same to be
false, forged, or counterfeit, with intent to defraud any body politic or corporate,
or any person, or attempts the commission of any offense described in this
paragraph
"`Shall be fined not more than $5,000 or imprisoned not more than fifteen
years, or both.'" (79 Stat. 257)
5