Robert Joseph MARSHALL, Appellant, v. UNITED STATES of America, Appellee.
No. 20041.
United States Court of Appeals Ninth Circuit.
Nov. 3, 1965.
Certiorari Denied Jan. 24, 1966.
86 S.Ct. 618
Count 3 of the indictment charged that Ayash knowingly and willfully failed to file an income tax return for the year 1959. It is contended that the court erroneously permitted proof that the accused had failed to file returns for the years 1955 and 1956. Willfulness, as an essential element of the crime charged, must be proved by the prosecution. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; Haskell v. United States, 10 Cir., 241 F.2d 790, cert. denied 354 U.S. 921, 77 S.Ct. 1379, 1 L.Ed.2d 1436; United States v. Litman, 3 Cir., 246 F.2d 206, cert. denied 355 U.S. 869, 78 S.Ct. 118, 2 L.Ed.2d 75. Ordinarily, evidence of crimes other than the one charged is not admissible in the criminal prosecution. Hughes v. United States, 10 Cir., 320 F.2d 459; Jones v. United States, 10 Cir., 251 F.2d 288. But, as here, evidence of similar conduct is admissible to establish a course of conduct for the purpose of proving willfulness. United States v. Litman, supra; Holland v. United States, supra; Hamman v. United States, 9 Cir., 340 F.2d 145; Radford v. United States, 9 Cir., 290 F.2d 9; United States v. Goodman, U.S.D.C.Ill., 190 F.Supp. 847. Furthermore, the court instructed the jury that the evidence could be considered only for that purpose.
Finally, it is urged that Ayash was denied a fair trial because of evidence which tended to show that he had maintained an illicit relationship with a woman, which resulted in the birth of an illegitimate child. The purpose of this evidence was to show the expenditure of substantial sums of money by the accused during the years in question for the support and maintenance of the woman and child. These expenditures were relevant to the establishment of Ayash‘s financial position and his income for the years set forth in the indictment.
Affirmed.
Merrill, Circuit Judge, dissented.
John W. Bonner, U. S. Atty., Michael DeFeo, Special Asst. to U. S. Atty., Las Vegas, Nev., for appellee.
Before BARNES, BASTIAN and MERRILL, Circuit Judges.
BASTIAN, Circuit Judge.
Appellant stands convicted of violating
The essential facts are that three days after the October 8, 1963 theft of $6,810.00 worth of American Express Traveler‘s Checks from the First Federal Savings and Loan Association of Phoenix, Arizona, appellant, who resided in an apartment complex in Las Vegas, Nevada, was placed under surveillance by the Federal Bureau of Investigation. Appellant‘s landlady, Mrs. Caldwell, was advised of this surveillance. On October 12, 1963, appellant deposited an unlocked briefcase with Mrs. Caldwell and left it in her dining room closet, instructing her not to give it to anyone else. It appears that appellant had, on several previous occasions, used Mrs. Caldwell‘s apartment as a place of storage. Mrs. Caldwell promptly called the Federal Bureau of Investigation and during the ensuing telephone conversation she, at the request of an agent, opened the briefcase and informed the agent that it contained packaged Traveler‘s Checks. On October 14, two special agents went to Mrs. Caldwell‘s apartment and, after they verified that the aforementioned Traveler‘s Checks were the ones stolen from the Phoenix bank, she delivered the briefcase with its contents intact to the agents.
The validity of the search of the briefcase and the seizure of it and the stolen Traveler‘s Checks depends on the validity of the consent given by Mrs. Caldwell. At the outset it should be noted that this is not a case where a landlord has attempted to consent to a search of and seizure from premises rented to the appellant, as was the case in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), nor is it a case of shared tenancy where one occupant attempts to consent to a search of the entire premises to the ultimate detriment of the other occupant. In the latter case, the courts are not unanimous and the cases usually turn on particularized facts. Compare Burge v. United States, 342 F.2d 408 (9th Cir. 1965) with Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955).
Our case is a simpler one in which the appellant voluntarily delivered possession and control of his briefcase to his landlady for safekeeping only to find that she, obeying the dictates of her conscience rather than his instructions, turned the briefcase over to the Federal Bureau of Investigation. Under these circumstances, we find nothing unreasonable in the actions of the agents and we hold that the search and seizure was not unconstitutional. Sartain v. United States, 303 F.2d 859 (9th Cir. 1962) cannot, as argued by appellant, be distinguished from the instant case on the ground that here the briefcase was given
None of this, however, is meant to mean that a man‘s briefcase is never secure against unreasonable search and seizure, but when possession and control of his briefcase is given by a man to another person we think that man accepts the risk that the other person will consent to a search and seizure of it and, under the circumstances that exist in this case, such consent is valid. Essentially, this case would be no different if appellant had casually confessed his crime to Mrs. Caldwell and she had notified the agents and later testified against appellant at trial.
As to appellant‘s other specifications of error, we hold that Special Agent McVay‘s testimony regarding his October 4, 1963 conversation with appellant about stolen Traveler‘s Checks was properly admitted as tending to show intent, design, knowledge, and lack of innocent purpose. Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609, rehearing denied 376 U.S. 966, 84 S.Ct. 1122, 11 L.Ed.2d 984; Bible v. United States, 314 F.2d 106 (9th Cir. 1963).
Finally, appellant‘s motion for judgment of acquittal was properly denied. The presumption of guilty knowledge arising from possession of recently stolen property [Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964)], was sufficient to allow denial of the motion when made.
Affirmed.
MERRILL, Circuit Judge (dissenting).
I dissent. I find here no consent by appellant to search or seizure.
There was no express consent. There was no express authorization to Mrs. Caldwell to give consent. If either is to be found it must be by implication through appellant‘s having placed the briefcase in Mrs. Caldwell‘s possession.
By doing so he may be said to have consented to the consequences of all risks attendant upon such a surrender of possession which were reasonably foreseeable. The majority opinion holds that since it was reasonable for Mrs. Caldwell to co-operate with the Federal authorities, such co-operation was to be expected and thus was foreseeable and, by implication, consented to.
I cannot accept the reasonableness of Mrs. Caldwell‘s actions as the proper test in this case. Her search was not self-motivated by curiosity. Her communication with the officers was not the result of personal suspicion, nor was their search and seizure undertaken in response to and in satisfaction of her suspicions. In all respects, she acted at the request of the officers, in response to their wishes and as their agent.1 If it was not permissible for them to search or seize themselves, it was not permissible for them to have another person search for them and deliver up for their seizure
I would distinguish this case from Sartain v. United States, 303 F.2d 859 (9th Cir. 1962). In that case, unlike the present case, the search and ultimate seizure was not accomplished under Government direction and control. The independent action by the possessor in Sartain was one of the grounds on which we there distinguished Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955). I would reverse on the authority of Holzhey.