Professional Documents
Culture Documents
United States v. Harold Olsen, 453 F.2d 612, 2d Cir. (1972)
United States v. Harold Olsen, 453 F.2d 612, 2d Cir. (1972)
2d 612
Harry C. Batchelder, Jr., New York City (Thomas R. Esposito, New York
City, of counsel), for appellant Olsen.
Michael W. Mitchell, New York City (Skadden, Arps, Slate, Meagher &
Flom, New York City, Stuart L. Shapiro, New York City, of counsel), for
appellant Edward Thomas Leach.
John S. Martin, Jr., New York City, for appellant William Robert Leach.
William E. Dertinger, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.
D. N. Y., David G. Trager and Raymond J. Dearie, Asst. U. S. Attys., of
counsel), for appellee.
Before WATERMAN and SMITH, Circuit Judges, and ZAMPANO,*
District Judge.
J. JOSEPH SMITH, Circuit Judge:
The sole witness before the grand jury was Agent Derkasch, who testified as to
the substance of his interview with Officer Ross, Alberti and Borowitz, to his
own finding that the notes were counterfeit, and to the admissions of Edward
Leach as to the source of the notes. Even absent the nonhearsay evidence, the
district court was justified in the conclusion that the high order of hearsay
evidence provided was more than adequate to support all counts of the
indictment. Costello v. United States, 350 U.S. 359, 363-364, 76 S.Ct. 406, 100
L.Ed. 397 (1956); United States v. Umans, 368 F.2d 725, 730 (2d Cir. 1966).
No appellant has shown that the hearsay nature of the agent's testimony was
concealed from the grand jury or any probability that eye-witness testimony
would have precluded their indictment. United States v. Leibowitz, 420 F.2d
39, 42 (2d Cir. 1969). Conclusive of the indictment's validity, we note that it
did not rest solely on hearsay testimony; Agent Derkasch testified as to his own
interviews with appellants and his own examination of the counterfeit notes.
4
While it is true that Agent Derkasch testified incorrectly to the grand jury that
Officer Ross had found counterfeit notes on William Leach, he related
accurately Borowitz' statement that William Leach had actually passed a
counterfeit note at Coyne's French Dry Cleaners. Since the indictment charged
William Leach only with passing a counterfeit note, not with possession, the
grand jury plainly was not misled by the erroneous testimony. Similarly
meritless is Edward Leach's claim that there was no evidence at all before the
grand jury to support his indictment. Our examination of the grand jury minutes
makes it appear likely that an error in transcription conceals a reference by
Agent Derkasch to Officer Ross' discovery of the counterfeit notes. Both
appellants were correctly informed of the charges against them, and neither
may be prosecuted again for the same offense. No "substantial right" of either
appellant has been prejudiced by the grand jury proceeding. Berger v. United
States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1934).
Edward and William Leach both contend that Officer Ross lacked probable
cause to arrest them, rendering the incidental search for counterfeit notes, and
their seizure from Edward Lesch,1 unlawful. However, the information
available to Officer Ross at the moment he made the arrests,2 if taken
cumulatively, gave him a reasonable basis to believe that both appellants had
participated in a crime. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964). He knew that both men had been with Olsen before his
futile attempt to pass a counterfeit note to Alberti, that they had awaited the
outcome of this attempt, and then had rejoined Olsen. He knew that both men
had minor arrest records, albeit for different crimes than the one of which he
suspected them. Most tellingly in this context he observed the three appellants
counting and exchanging money as he approached them.3 Each of these facts
by itself would have been consistent with innocent behavior. No one by itself
would have constituted probable cause to make the arrests. See, e. g., United
States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Spinelli v.
United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). But taken
together in the context of this case, these three factors were sufficient to justify
an experienced and prudent police officer in acting on his conclusions.4
pursuant to the Criminal Justice Act, 18 U.S.C. Sec. 3006A. Appellant Olsen
points to the following summation on the critical issue of probable cause for
appellants' arrest as the denial to him of the effective assistance of counsel:
7
COUNSEL:
"It seems to me that there should be a little more shown with respect to
the basis on which an individual [Olsen] is arrested on the street."
8
"With
respect to the other two defendants, I think the case for holding their arrest
was invalidated is even stronger, because all the patrolmen knew at that particular
time. . . ."
***
"There may be some reason for the arrest of Harold Olsen, but for the arrest of
the two other individuals [William and Edward Leach] who are merely in his
company, without more, seems to me to be not the type of basis on which a
valid arrest can be predicated. . . ." [emphasis supplied]
Patently, argument of counsel on the issue of probable cause differentiated
between his three clients to the detriment of Olsen. Since the court tried the
case on the showing at the suppression hearing, there is a possibility that Olsen
may have been prejudiced by the joint representation. See Glasser v. United
States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Better practice
would be to provide separate counsel where such a possibility becomes
apparent. Morgan v. United States, 396 F.2d 110, 114 (2d Cir. 1968).
Accordingly the judgment of conviction of appellant Harold Olsen is reversed
and the case as to him remanded for a new trial. In all other respects the
judgment is affirmed.
*
We reject the contention of William Leach that, given probable cause to make
the arrests, and having found counterfeit notes in the possession of Edward
Leach, Officer Ross was compelled to resist all logical inferences of William
Leach's complicity in the crime, and to release him, simply because no
counterfeit notes were found on his person
We view the issue in the worst possible light to the government, namely that all
three appellants were under arrest, as Officer Ross himself characterized it,
from the moment the police officers detained them. The district court found that
the officers had acted with probable cause whether their initial conduct was
labeled investigatory detention or outright arrest, but considered the matter a
close question
3
We accept the district court's finding that there was no basic contradiction in
the testimony of Officer Ross and Alberti, any discrepancy being attributable to
lapse of time. Alberti's failure to observe appellants exchanging money does not
vitiate Officer Ross' observation of that conduct to support the arrests