*1 HACK. v. STATES UNITED
No. Appeals
United States Circuit. Seventh 24, 1953.
June July 16, 1953.
Rehearing Denied part. Judge,
Major, dissented Chief Jeffrey and George Ferdinand Sam- R. Ind., appellant.
per, *2 724 Hanley, and E. his Atty., location, U. living Marshall E. residence at this S. Steffen, Atty., Indian Asst. house U. S. trailer on car
Andrew the used lot. appellee. apolis, Ind., wife, Virginia Hack’s Monroe Ellis Hack, resembles Miller. MAJOR, Chief defendant. Ada FIN and Judge, Before practically Both of individuals these SWAIM, Judges. Circuit NEGAN and build, height same and and on different occasions have been identified as FINNEGAN, Judge. Circuit person. same count charged in a two Defendant and December, On violating day sections or about indictment with the 9th count The first- Hack, wife, Title U.S.C. Everett 371 of Edward his and co-defendant, Miller, Miller, with Ada charged Ada David Bocock visited Mon- wife, Federal roe Ellis passing Hack and Virginia, a counterfeit .Reserve Bank of New their Louisville, Reserve residence Kentucky, Note on the Federal .in defraud, approximately in violation York with intent to fifteen minutes. This was Edward the and that Everett first time of section Monroe Ellis Hack had seen procured Bocock the his brother Hack and David D. Everett Edward Hack in about years. Miller. six offense Ada On trip commission said their return to Indian- apolis, which immediately thereafter, charged count that on second accompanied Miller Everett Edward December, 1951,and con- 13th about the Hack, wife, and David By Bocock. ar- tinuously until December thereafter rangement of parties, Ada Miller was Hack, Miller 1951, Everett Edward employed to be by her brother Ed- Everett conspired an Bocock to commit and David ward Hack to drive automobiles for him. against offense States in vio- This only was the time Everett Edward by passing lation of section 371 and caus- Hack had occasion to be in Louisville, defraud, passed, ing to be with intent to Kentucky. obligations of counterfeited the United specific States. The acts involved said day Thereafter, on or about 11th conspiracy are set out in detail in said December, Miller, 1951,Ada at the instance count. Hack, of Everett Edward called Monroe represented by Defendants were Indianapolis, Ellis Hack in from Louisville pleaded of their own choice and guilty. not invited him to come to They by jury tried and were found following approximately On the sev- guilty charged in both counts. Defend- M., en o’clock Hack, P. ant, Hack, was sentenced n wife the court to Virginia, Lloyd and his son arrived at years on years five count and to three Upon Everett Edward Hack’s used car lot. count'2, the latter sentence begin to run arrival their Ada Miller came out of the completion of, after the legal release used lot office car where she had been with from, imposed upon the sentence count Hack, Everett Edward and invited Monroe prose- of the indictment. appeal This wife, Virginia, Ellis Hack’s and his son behalf cuted on of Everett Edward Hack. Lloyd into the house trailer which was next We deem it advisable to state the facts door to the car lot office. Everett Edward in some detail. Hack invited Monroe Ellis Hack into the Hack,
Defendant, Mon- lot Everett Edward car officeand commenced an even- Hack, ing drinking and defendant Ada Miller of discussion and the of alco- roe beverages. night Defendant Ada holic On or about the brothers sister. Monroe Ellis Hack maintained December Everett Edward Louisville, concerning residences in Ken- talked with Monroe Ellis Hack individual tucky. Defendant in In- Indianapolis, dianapolis. maintained residence Defendant advised Monroe El- He was in car Indiana. the retail used lis Hack that he was the “head man” and business, operated business, from a that Monroe Ellis Hack would “take or- car lot at 3727 Massachusetts Ave- used ders from him.” This association termi- nue, Indiana. He approximately maintained nated at three o’clock the take agent Geiglein Ellis Secret service morning, when following Lloyd the counterfeit notes his son Flack, Virginia, and his wife down- and no then made. to a arrest was proceeded car lot and left the departure, Monroe Upon their town hotel. seven-thirty At approximately *3 o’clock P. Hack Edward Everett informed Ellis Hack M., Monday, 17, 1951, Ada Mill- December lot used car to the would return he er and were at a restaurant David Bocock Ellis Monroe day. in the When later on Bar,” they and tavern called and “Jean’s down- at the family his arrived Hack and closing remained there until time which In- immediately called hotel he town approximately was one o’clock the follow- Department, and dianapolis Police morning. ing Ellis Hack returned Monroe policemen to plain clothes two sent M., home at four o’clock A. approximately policemen him. to talk with hotel 18, December Serv- Secret United States called the then 18, morning Late of December agent came Office, service a secret ice and 1951, by Ellis arrested Monroe Hack was alleged coun- discussed the hotel and to the charge agents secret service deal, alleged coun- money terfeit before, night *4 (c) Allegations lack of dis- of comply does not Fed- rule 33 of the important crediting witnesses at time of Procedure, eral Rules of 18 U.S. Criminal trial. A., that, in C. it was not filed within five (d) Prejudicial Open remarks made in verdict, days after ex- nor was the time jury by government Court before the wit- filing by tended for within said court nesses and defendant’s counsel. days, provided five as in said rule. As to contested issues brief, objected In his defendant to (2), we find sufficient evidence in the rec admission in of evidence certain statements ord jury. to the verdict of by hearsay. made as dispose (3) (a) Contested issue seems of objection to This points one of list- ed, itself time, as defendant in his brief that complained admits of for in the first “newly discovered evidence” was avail petition defendant’s for leave file an to trial, able at time of but was not then amended motion for a new trial. introduced. court, case, during the trial of the A upon motion for trial a new based al- any asked defendant’s counsel if there was evidence, leged newly discovered is direct- objection testimony, to this to which coun- to judge ed of the trial discretion replied on, sel “I would like him to ramble only is reviewable for manifest abuse. Judge. objection There no is to it.” The States, Sharp asked, As was said in any court later you v. “Are waiving Cir., objections?” 195 F.2d replied, 997-998: to which counsel “I waiving am willing, it.” Defendant was “It is further contended that the Dis- perhaps good strategy, permit as trial to refusing trict Court erred in grant to Monroe Ellis Hack to narrate his version the motion of for a new trial manner, the case per- of own relying ground newly on the of discovered evi- haps on the later of cross-examination dence. We find no abuse of discre- possible Monroe Ellis Hack and the con- upon part tion of the District tradictory testimony of defendant im- to Judge A denying the motion. mo- peach him. tion for a new based evidence, newly States, discovered is directed In Burton U.S.App. v. United judge to the discretion trial of the D. C. 151 F.2d said: court is only reviewable for manifest abuse. ground “The appeal second is States, Cir., Helwig v. See alleged incompetency appellant’s 162 F.2d and cases there cited. This is counsel. based on failure- pointed It was that Rule 33 out of the object to to certain and fail- Procedure, Federal Rules of Criminal ure to rebut certain evidence. The- U.S.C.A., change no ‘works in the affirmatively record shows that practice except enlarge the time for case competently tried. These- the consideration a motion for new object failures which are called upon newly trial based discovered evi- our attention can be defended on the ” dence.’ they good ground that trial strat- assumption (3)(b), egy. Under But if this defendant were in- claims inadequate ground not counsel correct for the trial. The record shows are engaged defendant reversal. There few free: trials explanation given as judg- any reason After by mistakes counsel. subpoenaed the trial. why they were not judg- appeal, errors ment of the defense the conduct ment as to 3(d), “prejudi- reference is ** * ap- point Here easy out. before cial remarks made and, made counsel selected his pellant no ex- jury.” offers Defendant’s brief of the to his conduct elaboration, 3(d) amples, explanation of circumstanc- such during trial. Under in the we find contention nor do such in judg- error settled is well es it record. mismanagement incompetency ment, upon 'by propositions of relied law generally counsel is defense appear express sound rules defendant (Citing trial. a new ground law, application but have no deny that a de- This is not to cases.) substantial, direct, case, as facts as may ‘flagrantly be so rights fendant’s guilt circumstantial evidence well as his own disregarded appears in record. the defendant and, consequence, jus- choosing, brief, Defendant, in a states that miscarry', (citing manifestly so tice *5 prosecution possessing for passing or coun- or- be trial should a new cases) that money, pass- the which was terfeit dered.” in possessed evi- ed or must be introduced trial coun- show that does not record The in this dence. That was done case. in this rights disregarded defendant’s sel passed by Both the counterfeit note $20 case. Miller, package containing and the relinquishment of a intentional The notes, by Lloyd in counterfeit mailed $2360 a waiver. right constitutes known Hack at the of co-defend- Allen direction counsel defendant’s specifically asked court ant, in Miller, introduced evi- were testimony, objections the any he had if dence and all notes were identified as the to, replied in counsel referred above counterfeit. reverse now negative. Can defendant the mere Defendant further contends that the trial took at position the contemplation conspiracy discussion in of a think approach here? We try newa conspiracy is not a until or more of one who most defendants assume not. We persons involved acts. The record dis- the usually the find fault with convicted per- that all of the defendants closes three at their trial. attorneys who defended them conspir- in furtherance of the formed acts a permitted to have a defendant If acy. Ada Miller in counterfeit self-employed new trial because notes, giving David in JBocock in a manner not conduct the trial sel notes to Monroe Ellis and the de- if him, seldom, satisfactory to there would here, fendant ever, of criminal a final termination be soliciting the assistance Monroe charges. enterprise, referring criminal object does not defendant Where himself as the “head man” and that evidence objectionable admission Ellis Hack “would take orders objection such is waived from him.” on raised for the first time cannot be We reviewed the record and find appeal. (or) for a new trial evidence, motion which, jury, if believed Cir., Kadison, 145 F.2d States v. 7 support United would its Error as- verdict. is States, 526; 525, Burton v. 80 U.S. urged on signed and the refusal of the Dis- 18, 17, 151 F.2d 19. App.D.C. grant (1) defendant’s motion trict acquittal govern- close of for issues, defend- of the contested 3(c) In chief; (2) case motion for ment’s “allegations of lack of testi- refers ant trial; and, motion new leave to important discrediting mony witnesses motion for a an amended new trial. file No further reference is trial.” time judgment purpose In useful in defendant’s brief and no mention our found are, in more by discussing who witnesses detail as to these nor served these be 728 errors, ap- sufficiently error since no that none of the in- reversible was officers
pears upon record, go terested to premises appellant, and no exception purpose away, made or taken few blocks of sei- fact, zure or predicated. investigation. which error could be In no officer testified that he of them ever re- substan Where record discloses ceived such or that information conviction, support tial evidence called Monroe a con- Ellis Hack jury verdict of the will not disturbed. Indianapolis versation with him 60-80, States, Glasser v. United 315 U.S. Notwithstanding sig- hotel related. 680; Sharp S.Ct. 86 L.Ed. v. United unexplained part nificant and failure on the States, 998; Cir., 195 F.2d government to offer cor- Randall, Cir., States v. F.2d roborating Monroe Ellis Hack as to what As was said in the Glasser place decided, took in Indianapolis, I have 60, 62 U.S. S.Ct. [315 469]: reluctance, with some that his weigh “It is not for us to evi was sufficient to connect credibility determine dence or to conspiracy charged in the second count. jury words, of witnesses. verdict of presented other it an issue fact substan must be if there is jury. sustained for the evidence, taking most fa tial the view The first count charges that Ada Government, vorable to the December, 1951, on the 15th passed Manton, Cir., it. United States v. a counterfeit Federal Reserve note cited. 107 F.2d and cases *6 with intent to defraud and that appellant Participation conspiracy in a criminal procure “did the commission of said offense evidence; proved by need direct not be by Ada Miller.” A witness testified that purpose plan may in a common passed Ada Miller such a note on the date 'development ferred from a and col alleged, which note was identified and of- location of circumstances’. my fered evidence. judgment, there Mantón, supra.” States v. is not a scintilla of evidence which in Court, judgment of the District manner, shape proves or form or tends to Affirmed. prove appellant that procured the commis- sion alleged. Certainly ap- of offense MAJOR, Judge (concurring in Chief pellant’s possession money part, dissenting part). on December testified to which was not de- correctly Judge opinion FINNEGAN’S or identified, proof scribed appel- is no that states the contested issues and contains a procured lant passage Ada Miller general fair statement of the facts. days note,, three later of a counterfeit testimony connecting appellant sole with particularly in view of the fact that such either charged of the offenses is that of note was not as having identified been in reading of which possession appellant. Procurement, of causes me jury to wonder how a could have conspiracy, encompass unlike must some- Ap- utilized it as a basis for conviction. thing other than a me, state of mind. To pellant is not shown to have connected been requires it some coercion, affirmative act of with the events matters which took persuasion or inducement directed to the place Kentucky after the 13th of Decem- principal offender. There is not even a ber, when Monroe Ellis Hack arrived there of word that Miller had Monroe Ellis Ha.ck knowledge appellant’s possession shortly testified that after his conversation counterfeit or that ever had a. appellant, policemen he called two I conversation relative thereto. As Indianapolis City and a Secret Serv- before, said the acts 'and events shown to Agent ice hotel and informed them Kentucky (his have occurred are irrelevant brother) pos- in his $2,000 procurement charge session some offense. That money. information, it fall With is inconceivable must stand or tes- accepting such and, value, far short it falls timony its face charge. supporting conspir- therefore, as to affirm would,
I procurement. toas and reverse
acy CON MOINES, al. v. et IOWA OF DES
CITY & NAT. ILLINOIS BANK TINENTAL al. et CHICAGO CO. OF TRUST
No. 14771. Appeals States Eighth Circuit.
July *7 A. Herrick Herschel Lang-
Allan G. Moines, don, (John Iowa A. Des Blanch- ard, Counsel, Corporation Des Moines, Iowa, appellants. brief), on the Steele, Moines, (Rex H. Des Iowa A. Proctor, Moines, and W. Des H. Fowler Z. Iowa, brief), appellees Contin National Bank & Illinois Trust ental Co. Stofft, Chicago E. B. Trustees. notes Hack Edward money terfeit which Everett later but was released. Ellis Monroe to shown December, day On or about the 20th Ellis Monroe time. Neither at that Hack Lloyd of Monroe Allen son re- family any member of Hack nor package Ellis mailed a at re- lot, but returned used car hlimed Later, quest package of Ada Miller. Louisville, they left the downtown after was seized in execution of a search Indianapolis. hotel in by a agent warrant secret service in the Ellis Monroe December On Post Office at States reported secret serv- to the Louisville Hack approximately It contained morning after ice office. Later in the notes. terfeit $20 interview, Hack went Thereafter, her- Ada Miller surrendered home and had lunch with Miller’s agents in Louis- self to the secret service son, Ellis (Monroe her and his ville when she that warrant discovered Hack’s) Hack left Ada wife. Monroe Ellis been issued for her arrest. Lat- approximately at noon. Miller’s home Hack was arrested Everett Edward Hack during that day, er agents service secret .again visited the secret service office December, 1951, search 20th Louisville, promised agents that premises Ave- at 3727 Massachusetts samples get time. was Nothing nue was made at that brother, from his Everett Edward Hack. seized in the search. found or left the secret service Monroe Hack approximately office at five or o’clock six Defendant states the contested issues P. M. follows: this case are as approximately six-thirty M., Mon- At P. (1) or not evidence was Whether day, 17, 1951, Monroe Ellis Hack December the verdict as to- de- sufficient arrangements with secret service made Edward under fendant Everett either agent Harry Geiglein meet at W. all of the counts indictment. or Road, whiskey on Bardstown Louis- store weight (2) Whether Through misunderstanding some ville. contrary to the verdict evidence was as respect to locations not meet Hack under either all evening in the planned. Later secret the indictment. counts of agent Geiglein and Mon- Harry W. service not Evei'ett Edward meeting At this Whether Hack did meet. roe Ellis prejudiced substantially and de- showed the secret serv- Hack Ellis Hack reason of twenty prived of a fair the de- agent seven counterfeit dollar ice Leave notes, of his Petition for of Court to told him that he had received nial Bocock, Trial, File Amended Motion New from David and Ada Miller. them the sel in ad- many which contained own choice weeks motion would have following: employed vance of trial. He three different attorneys stages his case. different (a) Properly newly discovered recited present Trial counsel throughout evidence. testify trial and had witnesses available to counsel, inadequate (b) Allegations of on behalf of defendant. Defendant showing upon allegations during trial based self-chosen counsel’s trial, merely preparation for ab- one hour conduct of the More- the trial. witnesses, and sence of material defense over, motion, phase for leave unchallenged hearsay evidence. file an amended motion for a new