United States v. Harold Olsen, 453 F.2d 612, 2d Cir. (1972)

453 F.
2d 612
UNITED STATES of America, Appellee,

v.
Harold OLSEN et al., Appellants.
No. 176, Docket 71-1385.
United States Court of Appeals,

Second Circuit.
Argued Oct. 7, 1971.
Decided Jan. 5, 1972.
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:
This appeal focuses solely on the alleged denial of various constitutional

protections, infecting appellants' arrest, identification, indictment and trial,
without contesting their guilt in fact. A three-count indictment charged Harold
Olsen with unlawfully attempting to pass a counterfeit ten dollar note in
violation of 18 U.S.C. Secs. 472 and 2, William Leach with violation of the
same sections for successfully passing one counterfeit ten dollar note, and
Edward Leach with possession and concealment of two counterfeit ten dollar
notes in violation of 18 U.S.C. Sec. 472. Motions to suppress the counterfeit
notes and the identification testimony and to suppress certain post-arrest

admissions by appellants were denied. The United States District Court for the
Eastern District of New York, John F. Dooling, Jr., Judge, sitting without a
jury, entered judgments of conviction on all three counts, based upon testimony
heard at the suppression hearing, considered by agreement on the case in chief.
Subsequently a motion to quash the indictment as unsupported by sufficient
evidence was denied. The sentence of Edward Leach was suspended, with
probation for three years. The other two appellants received suspended
sentences and five years probation. We find error in the failure to provide
separate counsel for appellant Olsen and reverse for new trial as to him. We
affirm the convictions of William and Edward Leach.
2
The evidence adduced at the suppression hearing established the following

chain of events. On the morning of August 6, 1970 one Alberti, proprietor of a
Brooklyn bar and grill, noticed three men conferring across the street, one of
whom shortly entered the bar seeking to change what Alberti recognized to be a
counterfeit note. Alberti rejected the note and called the police. Intercepting a
patrolman Ross, who had been alerted to the attempted crime by radio, Alberti
pointed out appellants, indicating that Olsen had been the one to enter the bar.
Officer Ross observed the three appellants counting money (a point Alberti was
unable to corroborate), recognized the Leaches as men with minor arrest
records, and together with his partner arrested them. Officer Ross proceeded
immediately to search Olsen; finding nothing, he searched William Leach, also
without success, finally discovering two counterfeit notes on the person of
Edward Leach. Consigning appellants to his patrol car, Officer Ross scoured
neighborhood merchants for additional evidence, turning up another counterfeit
note at Coyne's French Dry Cleaners. The clerk at Coyne's, one Borowitz, was
brought to the station house where, looking through a one-way mirror, he
identified all three appellants, naming William Leach as the passer of the
counterfeit note. Later, all the appellants having been warned of their rights,
Edward Leach, in the presence of his co-defendants, related to a Secret Service
Agent, one Derkasch, that they had received the counterfeit notes from a
"fence" in exchange for stolen phonograph records.
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
The three appellants were jointly represented by single counsel appointed
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.
*
United States District Judge for the District of Connecticut, sitting by

designation
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
Question is raised as to the failure to conform to the requirements of United

States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) in station
house identification of William Leach. The court declined to exclude this
identification even though the Wade requirements of counsel and lineup were
not met, relying on the shortness of time after the crime (a matter of minutes).
Even if this may be questioned, it does not amount to reversible error in this
nonjury trial, where there were positive incourt identifications and testimony of
admissions of involvement by all three following Miranda warnings. If error, it
was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18,
24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)

United States v. Harold Olsen, 453 F.2d 612, 2d Cir. (1972)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Harold Olsen, 453 F.2d 612, 2d Cir. (1972)

Uploaded by

Copyright:

Available Formats

453 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

This appeal focuses solely on the alleged denial of various constitutional

notes and the identification testimony and to suppress certain post-arrest

The evidence adduced at the suppression hearing established the following

The three appellants were jointly represented by single counsel appointed

United States District Judge for the District of Connecticut, sitting by

Question is raised as to the failure to conform to the requirements of United

You might also like