United States v. Eugene Isaac Pitts
508 F.2d 1237
8th Cir.
1975
Check Treatment

*1 (cid:127) error claim of other One it since with here dealt should be Dye claims the indictment.

concerns five of four counts “duplicitous” because

indictment are of the proof necessary for conviction charge misprision of

accessory offenses are identical and the is may re not distinct. The same than one of

sult in conviction more requires if

fense each such offense Unit

of a fact which others do not. Barnett, F.2d 309 ed States is satisfied This test being charges of separate respect mispri accessory fact Dad felony. United

sion of dano, F.2d denied, 905, 91 S.Ct. 1366, L.Ed.2d 645 is iourt district judgment of the respect except

affirmed un- Burnette defendant convction The con- indictment. 2 of the der Count re- 2 is Count under

viction Burnette charge directed versed

be dismissed. America, STATES

UNITED Appellee, PITTS, Appellant.

Eugene Isaac

No. 74-1142. Appeals, Court Eighth Circuit. 15, 1974. Oct.

Submitted 10, 1974. Dec.

Decided Rehearing En Banc

Rehearing and 13, 1975. Jan. Denied

j.238 *2 Jr., Mercer, Christopher Little C.

Rock, Ark., appellant. Pence, Jr., S. Asst. U. Richard M. appellee. Rock, Atty., Ark., for Little Judge, VOGEL, Senior Circuit Before STEPHENSON, Circuit LAY and Judges. Judge.

STEPHENSON, Circuit appeal primary on this con The issue sufficiency of the evidence cerns conviction, support appellant’s possession of counterfeit United notes with intent States federal reserve to defraud in violation 18 U.S.C. § (1970) Appellant asserts .1 grounds other for reversal three grant a new involve the court’s failure to upon allegedly prejudicial trial based presence in the of the misconduct prior panel and a claim that a witness’s improperly intro conviction was duced into evidence. We affirm. Pitts, home a law at student vacation, attending spring picture showing motion afternoon of a at a Little Rock theater with three were, young These four men friends. according testimony of the door- to the man, only persons on the seated nearly right-hand empty audi- side torium. counterfeited, made, forged, part: ob- altered provides or in relevant That statute * * * security ligation of the United or other Whoever, to defraud * * * punished]. any falsely keeps possession States be [shall testify. guilty found Pitts appeared what counter- When be a possession of on both counts of counter-

feit bill was discovered in ticket $20 money receipts, feit intent to defraud. He seller’s afternoon management the theater year given police three summoned the two concurrent sen- local years tences with two of each sentence and the United Secret Service. suspended. Following police theater, two unsuccessful Just arrived *3 trial, appeal for companions motions a new this of was one Pitts’s was in lob- the by buying Although popcorn. filed. some this individual claimed not to the have seen Appellant that the contends district police, the doorman testified that he no- denying in court erred his motion for a ticed that Pitts and had alter- his friends judgment acquittal of which was made seating arrangements ed their within a government’s at the close of the and case companion few their re- moments at the renewed close entire case. entered the auditorium. appellant dispute While not that the does counterfeit, alleges Agent. were he bills government’s the Meanwhile, that the Service Secret . evidence was insufficient theater, had arrived at the examined the of elements prove essential the other to suspect bill, that it and determined $20 namely charged, he that the crimes counterfeit. stated

was The doorman knowingly possessed bills the counterfeit observing had that he been Pitts and disagree We with an entry theater defraud. friends since their into the evidence, viewed in the hold and light pointed them to the out authorities. the favorable to most by Appellant and his were taken friends 981, Gaskill, 491 F.2d v. United States police to room in the the theater and 1974); (8th v. United States Cir. 982 Hutchinson, questioned. (8th 489 Cir. 484, 488 F.2d subsequent A of un- search the theater 915, 1973), 94 S.Ct. cert. denied 417 U.S. up” covered two “wadded counterfeit (1974); 2616, 41 L.Ed.2d 219 directly floor front of bills on the in $20 (8th 685, Pope, 686 v. F.2d 415 appellant the seat in been 950, denied, 90 397 U.S. cert. Cir. sitting approached by when the he was (1970), sup 973, L.Ed.2d 132 25 S.Ct. ports of officers. When Pitts was informed convictions. the during discovery questioning, he this nothing replied that he knew at all about the physical of control Direct any money, including counterfeit those not be shown bills need counterfeit particular However, bills exami- later dis prove possession. As the to order nation of the bills the Secret Service properly instructed the trict court appellant’s finger- possession that one of revealed actual as well as constructive prints present was on one of satisfy the counter- requirements of the § supra, will Hutchinson, feit notes. In United “ ‘ 488, that [con stated F.2d we 488 Appellant insisted that allowed he be generally possession’ has been structive to conduct his own defense as to both having knowingly the both defined against brought of the indictment counts to exercise power the intention However, him. the district court on its property.” the dominion control over appointed attorney own motion Click, F.2d 493 See also United States experience ap- criminal trial to sit (8th 1209, Applying Cir. pellant and be available consultation. of standard facts case basically The outlined above facts were us, ample before we find evidence to undisputed exception at the trial. The jury’s finding support possession. testimony was doorman’s with re- gard changing by appel-’ to the of seats The fact that the counterfeit bills lant and friends. Two of com- Pitts’s found on in front were the floor of where panions they sitting disputed. stated that did not recall any changing proximity did seats. This bills establishes

.240 power to con- requisite police. had the knowledge Both Pitts may and intent appellant’s be inferred from them. trol fingerprint such “furtive” conduct. demon- of the bills one Paz v. United 387 F.2d possession had had 1967); strates United States v. For point, in- he, zano, at some and that (2d of that bill over control direct tentionally Similarly, exercised could have viewed en- these facts crumpled From wadded it. bills front possession. appellant’s to find titled seat as evidence of an at tempt to abandon the when bills threat counterfeiting case the In a ened the arrival of the Paz, officers. prove government must also supra, 430; 387 F.2d at United States were coun bills defendant knew v. Kelley, Musquiz, terfeit, United States Cir), denied, 71 S.Ct. 1971), and that 1004, 95 L.Ed. 1375 general to defraud un *4 he had a Finally, bills, appellant’s exculpatory false parties with third those known statement, any in which he denied knowl Wilkerson, F.2d 469 United v. States edge denied, concerning (5th whatsoever the bills 963, cert. 969 Cir. prior discovery fingerprint 1515, the of 986, to his L.Ed.2d 93 36 410 U.S. S.Ct. them, on of (1973). one could have been elements of seen essential 184 These jury guilty desperate provable by the as a man’s direct the crime are seldom Castens, attempt 462 to avoid arrest. In v. United evidence. United States Merrill, (8th 168, 391, (8th 1972). States v. Cir.), 484 F.2d 170 Because F.2d 394 Cir. denied, requires 1077, cert. find 414 94 of these a U.S. S.Ct. elements 594, ing (1973), mind 38 L.Ed.2d 484 as to the of we noted defendant’s state long given moment, jury that line of in the usual cases that “[a] at a holds exculpatory rely proper false on circumstantial evi statements case must are ly as in whether admissible substantive as dence order to determine evidence tending guilt.” requisite to mental condition show Once admitted the existed. 736, here, jury Cervantes, reasonably the could 466 F.2d have de United States v. accept cided to (7th denied, guilty the inferences Cir.), cert. Panas 739-740 knowledge and States, 886, to defraud that v. United 409 U.S. 93 S.Ct. arose from Pitts’s 108, (1972); false statement. 34 L.Ed.2d 143 United See Kimbrough, 421, United Lacey, States v. 423- F.2d 481 F.2d 459 86, (2d 89 (5th Cir.), denied, Cir. 424 cert. 414 U.S. 1114, 845, 94 L.Ed.2d 741 S.Ct. 38 totality (1973). reaching jury under In hold that the the We its in the of the circumstances jury ease entitled to scrutinize and rea this make reasonably appel infer could that sonable inferences from con defendant’s surrounding spurious nature lant was aware the duct and from all facts the supra, possessed Castens, question. in notes and incident counterfeit 393-394; Kimbrough, them with intent to defraud. 462 F.2d at su Since supported 424; determination is pra, F.2d at v. 481 United States evidence, may Sheiner, 337, (2d Cir.), aside. not be set 410 F.2d 340 Castens, supra, denied, 68, De 825, 462 F.2d cert. 396 90 U.S. S.Ct. judgment (1969). appellant’s nial of motion for a 24 L.Ed.2d 76 acquittal error. record in case discloses jury three facts which the next could have contends that trial inferring reasonably considered in court de- that abused its discretion when it appellant guilty knowledge pro had nied and an motion for a new trial. se appellant alleged In he doorman testi that motion defraud. The just fied and his alter become of the fact that friends aware seating arrangement prior ed their in the to the selection of the one of shortly theater the defense witnesses was in the arrival of arrested

1241 presence of the Appellant’s final contention is in the courthouse admitting panel. trial court erred felony prior of a evidence of a conviction Assuming appellant made prior when there was no defense witness ground inci that this his motion showing credibility of that wit newly evid discovered amounted dent no note that ob ness was jection issue. We ence,2 that the well- do not believe we was made to the admission prerequisites a new trial established this evidence at trial. Under these cir v. States here. United satisfied were cumstances, allowing prior 1083, (8th McWilliams, 1084 plain to be introduced was not conviction 1070, 90 Cir.), denied, 397 U.S. cert. error and will reviewed in this not be (1970). 1515, L.Ed.2d 694 25 S.Ct. F. court. Petschl v. United 369 did take Furthermore, if the arrest even 769, (8th also 742, 2d 773 See preju alleged by appellant,3 place no Ambrose, United v. F.2d States 483 demon has been dice to 1973); United States Price, F. 464 v. strated. United States Rosebar, U.S.App.D.C. 164, 150 463 denied, (8th Cir.), 1217, cert. 2d 1219 1255, (1972); n. 1258 10 L.Ed.2d 34 S.Ct. U.S. Thomas, (1972). event, trial court any In 1970); United States v. Villa carefully as what instructed the hermosa, Cir.), 411 F.2d 599 them to and directed constituted evidence denied, 90 S.Ct. presented only before consider L.Ed.2d 196 *5 determining the issue carefully We have reviewed the record guilt. a new motion for Denial of the in this case find no and error. not was these circumstances trial under Affirmed. error. REHEARING PETITION FOR ON BANC EN Following the denial of this petition having considered The Court motion, appellant petition filed a first rehearing by filed counsel for en banc hearing on motion for new for a fully and, being for advised petition appellant ad In trial. pe- premises, it is ordered arguments as additional vanced several be, rehearing it for en banc tition grounds for trial. The trial a new hereby, is denied. following petition, court’s denial of the rehearing Considering petition government consideration briefs rehearing, it petition for aas en banc filed in re affidavits which been rehearing petition for ordered sponse appellant’s charges, was within hereby, be, denied. it is Dara, its discretion. United States rehearing Judge Lay for a See would vote ground the evi- also Batsell v. by panel this con- de sustain is insufficient dence nied, to show insufficient U.S. S.Ct. viction 21 L. Ed.2d 785 defraud. specify Bryant, did motion 2. The being upon made. grounds it days arresting However, made 13 officers state it was 3. Affidavits because untimely pres- unless arrest was made out of the newly evi- discovered were no wit- ence of the there the basis made on nesses, also United no was created. 33. See and that disturbance Fed.R.Prim.P. dence.