Glenn Dale Castle v. United States, 287 F.2d 657

Glenn Dale Castle v. United States

287 F.2d 657

5th Cir.

1961

Check Treatment

*1 government’s rights signed a trans- re- husband, the tax her deceased unimpaired, its adver- question. No action continue years in turns for the rights sary’s proposition are barred thereunder cited are authorities considering to limitations. extent and, limited normally is an active which wife knowing participant Affirmed. representa- return, joint we in a tax tions contained of inference rational doubt knowledge can be intent fraudulent this

drawn fact. from has, then,

There taxpayer unclean in are the respect this of hands In involved. to the transaction (Foot- Herring, supra v.

United States 1), identical facts were note CASTLE,Appellant, Glenn Dale penalty fraud insofar as the those at bar signifi- Although the was concerned. America, UNITED STATES of penalty not dis- cance of the fraud cussed, Appellee. prop- recoupment held was there No. 18395. er. Appeals United States Court of that for The United contends Fifth Circuit. recoupment not be another reason permitted should Feb. under the circumstances Rehearing Denied March that the situation this case. It asserts sought which was created relief is diligence taxpayer’s by the own lack seeking tax. It refund of the estate pointed inсome defi- is ciency out that the tax May 4, 1956,

was assessed

that the statute did not run on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍estate tax 1956, during all of

refund until June time the fact of overassessment to the tax-

the estate tax had been known

payer. within She then had five weeks

which to recover the overassessment pointed

estate Herring It is out that in the tax. oppor-

case there had been no

tunity at all recover an estate tax re- recovery fund and that such could not through recoup- had save been against

ment the income tax claim. The facts in the case before are us in Bull

similar those v. United controlling and upon our that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case is view point. In that case the tax- opportunity

payer had had much as as legal taxpayer

had the right here enforce refund, equitable relief was appar- It

not denied for this reason. diligence ently taxpayеr not the legal rights controls, to his holding that, inequity rather the *2 Brown, Worth,

Bill Wardlaw Fort Tex., appellant. for Hughes, Jr., L. William Asst. U. S. Worth, Tex., Atty., appellee. Fort Judge, conducted, and son of and the TUTTLE, Chief Before Judges. in the indictment JONES, listed Circuit RIVES which had been filled the name in with Judge. JONES, Circuit apparent name of a sender and the payee $100.00, the amount of convicted tried *3 money containing 18 orders names indictment all of an five counts money appellant amounts, charged receipt and stubs 2314, which U.S.C.A. § transport- cashed, unlawfully found. orders that had knowingly been with and money These orders contained serial ing intent was fraudulent matching Express had Com- numbers been forged those which American made and shipment reported missing com- from the money pany in interstate orders Indiana, plant Tar- Vincennes, made in 1958 from the I.B.M. merce from knowing Company. Express the American Texas, County, rant false- money theretofore had orders any Appellant state- was told that forged. ly made and might ments used he make could be years after 1960, January, two some In against him, and he was also advised had been money forms order hundred five reported right Appellant to counsel. called shipment frоm missing a from lawyers, appel- two one of whom came to Machines Business International the plant private- lant’s room him and talked with Indiana, the Greencastle, in ly. Shortly thereafter, appellant was tak- appel- Company, the Express American Worth, en to the in Sheriff’s office Fort guest the at registered aas lant was questioned by deputies. and Appellant one of the County, Tarrant Inn in Hills Western information and volunteered appellant registered there, Texas. While money stated that he obtained the company con- equipment audio callеd an cerning acting air-conditioning repre- anas stereophonic purchase aof the visiting sentative Busi- the International equipment agent An recorder. plant Greencastle, ness Machines in In- Western company at the visited diana, June, Appellant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in was ad- Inn, appеllant, intoxicated in an Hills condition, displayed money Express mitted to the American of Ameri- a handful plant, order room of the left alone in money orders, Express handed sever- can period, slipped the room for a brief a agent up package and held al to the рackage of the orders under his contained more which he said jacket plant. and took them from the agent appellant’s After the left same. Realizing significance room, telephoned Ex- the American statements, deputy sheriff called press Company report officeto the inci- agent came to of the F.B.I. who then dent. agent question appellant. identified January 15th, On two men from the en- himself and told that he was officewent to the Hills Sheriff’s Western and that he did not titled to counsel appellant, Inn two to observe and soon any Appellant to mаke volun- statement. deputies were summoned for sur- that he had come teered information purposes. veillance When first Worth, Vincennes, Indiana, to Fort afternoon, emerged from his room that train, Texas, he had on stopped deputies, he was in- brought money orders him all the request vited them back A inside. during the search. been found had depu- search the room was made he had intended to also stated that He appellant, ties and refused after orders and leave these cash deputy which one left to a war- secure country. rant, approximately which took two and one-half hours. in first contacts with remained during deputies with the other officers commenced room enforcement law January 15, 1960, approximately period. 4:30 After the warrant had been secured, per- The search the afternoon. search of the roоm and the o’clock

660 every brought room at It is not essential

warrant was thing agent proved. him It is in an The F.B.I. saw indictment be around seven. evening necessary prove thereof so much first about 10:00 o’clock questioning around as statute all midnight. to an end establishes a violation of the came morning, following States, 273 U.S. involved. Ford v. United On the interrogation appel- 593, 531, 47 71 L.Ed. 793. Gambill further S.Ct. without arraigned States, 1960, Cir., Com- the U. S. 276 F.2d before v. United 6 lant was following Cir., 180, 181; Bailey 5 v. United missioner Thursday, Fort Worth. 1960, January 21, 1925, 437, F.B.I. 5 certiorari dismissed F.2d ques- agent again 269 U.S. Appellant 70 L.Ed. visited S.Ct. warning him more him after once was indicted under U.S.C.A. tioned might whoever, provides that he about § *4 intent, аppellant told the with or make. On this occasion unlawful fraudulent money any agent transports the he had taken in commerce that after interstate Greencastle, falsely forged securities, plant in made or know orders from the Indiana, Philadelphia, ing proceeded falsеly the or to same to have been made he forged, Ap Pennsylvania, purchased a he is in violation where of the statute. charged pellant protector Phila- he in essen check used with all these elements, delphia proved tial and all to inscribe the amount were аt “$100.00” Any allegation money orders, includ- trial. on a of the in the indictment number referring ing to the indictment. who the five described in issued the securities surplusage disposed was mere appellant the check and then was not re quired proved. to protector. Philadelphia, also in he be Unitеd While Mfg. money Co., Inc., Cir., Steiner Plastics in the orders a fictitious inserted payee 231 F.2d 149. name as sender and a name previously alias. had as an which he used money If the blank orders were Philadelphia, appellant then left they not “securities” at the time that Europe America traveled to and to South by appellant, they certainly were taken in and returned to the United States December, such, forged falsely became and were and Subsequently, made made, when he filled in the names and Indiana, trip Vincennes, the Fort amounts, performed which acts were in toоk where the events here recited Worth Philadelphia, Pennsylvania. 18 U.S.C.A. place. appellant 2311. The § is not accused of stealing securities, charged appellant but is now that his contends transporting judgment timely acquittal them in interstate com motion for 'jury granted found, merce. The and there is should have been because the upon allega- sufficient prove evidence which to failed to all the base Government finding, such proved the Government tions of the indictment. The indictment that the reads as to each five counts transformed blank the appellant transported money forged in com- falsely interstate orders into and forged made merce a certain and Pennsylvania, made securities in security, wit, Express American transported then them interstate com money Money Order, “the said order be- Indiana, merce to and thence to Texas. by ing Express issued the American Com- argument York, appellant’s pany, N. Y.” The As to con New nothing cerning charge says jury, evidence sub- it need allegation. Conversely, only necessary this be said that it was not stantiates charge money ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judge jury proves that these trial the evidence thеy they beyond find at the time must a reasonable orders were blanks were They by any- issued had not been doubt that were issued taken. they by Express Company,since, one, proof American and there was no said, this was not an essential as we have even were securities. against be used thе Govern- him. tele- of the offense element phoned prove. required to counsel without hindrance ment was objection officers, lawyer or of the and the ap urges on Appellant also gave came to room and advice re peal should be that his conviction presence him outside of the of the versed, introduced evidence since officers. Before each of the interviews by ille of an means trial was secured his gal agent thereafter conducted F.B.I. was, seizure, there search and again regard- warned fore, think that inadmissible. We ing any might It make. person room appears, and the evidence so validly issued war was conducted contradiction, is without that the state- “bare had more than a The officers rant. were, fact, voluntarily ments made appellant had committed suspicion” that given procured in no sense They committing an offense. or was duress, threats, promises coer- concerning had the information then, If cion. the statements made possession by appellant or evening on the ar- they ders, room also checked his had rest are inadmissible in evidence on his registration be false. found it trial, intervening it is because the time this afforded officers We think that arraignment, between arrest and without *5 appel probable of to seek a search cause more, renders them inadmissible. The for the is room. Probable cause lant’s evening by ap- statemеnts made that exists where of a warrant suance search pellant, inviting sug- suspicion are such as before officers circumstances gesting constituting inquiry, perhaps prudence a man of reasonable to cause a confession of the of theft blank being commit an is believе that offense forms, order did not admit the commis- 1957, States, Cir., 6 Evans United ted. v. sion of a federal offenseas it did not then 534, U.S. denied 353 242 F.2d certiorari appear, from the statements 1137; 1059, 976, 1 Unit L.Ed.2d 77 S.Ct. otherwise, order forms D.C.W.D.Pa.1951, Celedonia, v. ed States had been forged into converted made and issuing F.Supp. a search war 228. In 95 being transport- securities before his must exercise rant the Commissioner from one ed state to another. Under the judgment facts as whether own time circumstances the interval was not probable cause constitute in the affidavit such as to render inadmissible state- warrant, his detеr for the by day ments made on the conclusive, judgment unless is mination custody. Carpenter taken was into v. arbitrarily Unit Gracie v. exercised. is States, Cir., 1959, 565, United 4 264 F.2d 1926, 644, States, Cir., F.2d cer 1 15 ed 936, certiorari denied 360 79 U.S. S.Ct. 449, 748, 47 273 U.S. S.Ct. tiorari denied 1459, 3 L.Ed.2d 1548. also See United States, 872; 5 Dixon v. United 71 L.Ed. Cir., Cir., Bando, 1957, 2 244 States v. F.2d 1954, fail see F.2d We 211 547. 833, 844, certiorari denied 355 U.S. 78 arbitrary judgment in the exercise of 53; 67, 2 S.Ct. L.Ed.2d United States v. therefore, Determining, instant case. Cir., 1957, 680, Hill, 240 7 F.2d certiorari validly is was the search warrant 966, 1051, 353 denied U.S. 77 1 S.Ct. sued, se that the evidence we conclude 916; L.Ed.2d Himmelfarb v. United lawfully thereby seized cured States, 1949, 924, Cir., 9 175 F.2d certio- appellant’s trial. admissible at 860, 103, rari denied 338 U.S. 70 S.Ct. We turn now to consideration 527; States, 94 L.Ed. McNabb v. United claim his admissions Cir., 1944, 904, 6 142 F.2d certiorari de- inadmissible, the officers were since he 771, 114, 65 89 nied 323 U.S. S.Ct. L.Ed. rights was not advised and was 616. magistrate taken a before before such We no doubt have as the ad admissions were made. Evidence showed missibility near deputy that the innоcuous told state anything sheriff that day said could ments made on 662 though custody. single transportation for a Even tences cannot he was taken into prevail. existed, Cir., no there could be Carlson v. such doubt United 8 admissibility 1960, 694; question 274 F.2d to the Heideman v. United incriminating States, Cir., really 1960, 805; made 8 281 F.2d Unit- days Taylor, ed Jаnuary 21, 1960, Cir., v. 1954, after on arraignment. 210 F.2d may statement This first, amplified supplemented petition rehearing for is

but the reason asserted ground inadmissibility of as a Denied. respect first has removed condi- confession. Once a to the second inad- tion be which caused a confession subsequent removed, con-

missible is longer fession of the same facts can precluded that condition. be because 532, Bayer, 331 U.S. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍United States v. rehearing 1654, de- 91 L.Ed. S.Ct. Maggie WATSON, Plaintiff-Appellant, 92 L.Ed. 68 S.Ct.

nied 332 U.S. v. CHESAPEAKE AND OHIO RAILWAY prejudicial shown no appellant has COMPANY, Virginia Corpora- judgment the district error. tion, Defendant-Appellee. court Harry WATSON, Plaintiff-Appellant, Affirmed. Rehearing. CHESAPEAKE AND OHIO Petition On RAILWAY *6 COMPANY, Virginia Corpora- CURIAM. PER tion, Defendant-Appellee. appel- rehearing the Nos. petition for aIn permit- riot (a) was lant asserts United States Appeals Court trial, (b) he was testify ted Sixth Circuit. each offenses, one for convicted March although was orders, there (c) that transportation, and only one as a issued warrant nowas there predicate resulted search which upon finding evidence in the convicted.

he was represent appellant was although appeal, on trial ed at rehеaring, application for on this not here raised The matters counsel. appeal. Neither asserted There for them record. basis there record was testify was failure of voluntary. appeal anything it On the urged that “the search warrant was obtained,” recognizing illegally thus issued, and this warrant was fact testimony in the cause. Since shown transportation of each of the offense, separate awas con multiple there were sen-

tention