United States v. Richard Colby Parr and Vincent Rendaro

KRAVITCH, Before RONEY and Circuit TUTTLE, and Judges, Judge. Senior Circuit KRAVITCH, Judge: Circuit Colby Vincent Rendaro and Richard Parr their convictionsfor violation of sub- appeal counterfeiting stantive statutes and con- same, spiracy violate 18 U.S.C. 371, 471, (Parr Rendaro), §§ (Rendaro (Parr only) only).1 and 474 Each the indict- was convicted on three counts of 1. The indictment reads as follows: COLBY PARR RICHARD DONNA OLES I COUNT 1, 1981, September From or about to on or 9, about in the November Middle District VINCENT RENDARO Florida, a counter- the United Secret Service convictions States All three ment. Parr, convic- As are affirmed. Rendaro Spe- ten Federal Reserve Note. feit dollar reversed, the other two tion on one count McMillan thereafter Agent cial Mike affirmed. investigate, in an undercover assigned Factual Scenerio On Octo- capacity, the source of note. McMillan, tape wearing ber 15 concealed 9, 1981 a confidential infor- On October name, using recorder and an assumed went Special Agents two mant turned over herein, willfully, III knowingly COUNT did defendants combine, October in the Middle On about intentionally conspire, confederate Florida, District of together agree and with each other to do COLBY PARR RICHARD following: make, forge, falsely (1) counterfeit and To obligations VINCENT RENDARO the United and securities of alter defraud, make, falsely did defraud, with the intent forge, States, intent to in violation with the obligations Code, counterfeit and alter and se- 471. States Section Title United States, is, 1,115 sell, of the United exchange, curities (2) knowingly buy, trans- To Notes, false, ten dollar Federal Reserve fer, forged counterfeit deliver coun- receive and B, bearing plate check letter number each 388, face obligations the Unit- terfeited and securities of 1977A, plate back number series ed the intent the same be Boston, drawn on the Federal Reserve Bank passed, genu- published, as true and and used Code, Code, in violation of Title ine, all in violation of Title Sections 471 and Section 21, 1981, in the or about October Middle objects conspiracy, On To effect the Florida, District acts in the various overt defendants committed RICHARD COLBY PARR Florida, including, but not Middle District of and following: limited October-19, 1981, VINCENT RENDARO (1) or Richard On about make, defraud, falsely did with intent Colby possessed Parr and concealed sixteen obligations forge, counterfeit and alter and se- (16) Reserve counterfeit ten dollar Federal States, 7,682 is, par- of the United that curities tially completed Notes. 21, 1981, ten dollar counterfeit Federal (2) in the or October On about Notes, B, bearing letter Florida, Colby Reserve each check Richard Parr Middle District of 1977, 334, plate face number series drawn on Starlight Lounge located at 9700 drove to Philadelphia, all in the Federal Reserve Bank Florida, Nebraska, Tampa, N. met and with Code, 18, Sec- violation Title United States Vincent Rendaro. 21, 1981, tions and (3) or October Vincent On about V Florida, COUNT Rendaro, gave Special Tampa, in 21, 1981, in the Middle On or about October Agent Service a of the United States Secret Florida, District of counterfeit ten dollar Federal Reserve Note. VINCENT RENDARO Tampa, (4) in On about October use, with the intent to sell and otherwise did Florida, Oles traveled Hour Quick Donna unlawfully custody, possession in his and have Shop Colby Print she met with Richard where authority Secretary and without Parr. Treasury, obligation security 18, and made and All in States violation Title United executed, part, after the simili- in whole and Code, Section 371. security obligation issued under tude of an and is, States, authority the United that a ten II COUNT bearing check let- Federal Reserve Note dollar On in the Middle or about October B, plate plate Florida, face number back num- ter District of 1977A, drawn the Federal series on ber Boston, COLBY PARR RICHARD all in violation Title Reserve Bank of unlawfully, knowingly, Code, intent to and with the Section 474. United States defraud, keep possession, in his did conceal and A TRUE BILL Ralph made, falsely forged, and altered counterfeited /s/ Heath obligations the United and securities of FOREMAN is, (16) dollar Fed- sixteen counterfeit ten L. GARY BETZ Notes, bearing letter Reserve each check eral D, STATES ATTORNEY UNITED plate plate number back face number - BY: 1977A, Re- on the Federal series drawn LYNN H. COLE Richmond, Attorney defendant Bank and the serve Assistant I, III, V. Reserve Counts then knew the said ten dollar Federal convicted on Rendaro was made, forged, appears, falsely I, counterfeited IV Notes were II and III. Count Parr on Counts altered, time, dropped from the of Title to have been all violation some at Code, Section indictment. Lounge to the Starlight time, the informant Unbeknownst to Rendaro this Tampa, Florida. There (“the Lounge”) early morning hours of October 19 the to Ap- the informant introduced McMillan Tampa Department Fire responded had to a Rendaro, pellant manager fire residence of Richard Parr. Af- tape of this and Lounge. recording ter fire in a laundry adjacent room other in the the next meetings course of the kitchen of Parr’s residence extin- week, McMillan, and the testimony sup- guished, fighters engaged in pro- ply given evidence that Rendaro had “Salvage cedure identified as and Over- informant, note to re- having Rendaro haul,” phase in fire fighters which the ceived it from rep- Richard Parr. McMillan spot look for fires all are to insure extin- resented himself as desirous of purchasing guished, revealing information the iden- money. counterfeit Rendaro to use agreed salvagable of the owner tity and for valua- contact Rich printer,” efforts to “the protect bles in order to them vandals. Parr, encourage him to more produce phase, During Fighter Fire Stone went counterfeit. McMillan and Rendaro met house, into the kitchen of the took down an 15th, 16th, once again more on the sugar bowl shelf opaque from a above the several engaged telephone conversa- sink, looked into the uncovered container tions between the 16th 21st. and the currency, observed namely inside six- these Rendaro conveyed vary- conversations teen ten dollar bills. He the bowl took ing optimism degrees pessimism currency, salvage intending as a print Parr would October money. On valuable, and turned it over Fire Inspec- telephoned McMillan Rendaro and tor While counting money Burke. $107,000 learned money worth of the his own inventory, inspector noticed all had been Both printed. Rendaro and the bills had the same serial number and surprise money McMillan that the expressed concluded was counterfeit. money At had been printed time. McMillan he point stopped counting and called then the Lounge traveled to where Rendaro the police. Officer Burkett of the Tampa gave sample him a ten dollar bill.2 Rendaro Department call, $20,000 Police responded and McMillan on the agreed price of for the planned testifying bills and for McMillan to that he because “a was called call day Rendaro later that final discuss been large money amount had found and arrangements. they custody wanted me to take of it.” McMillan Parr Soon thereafter observed Burkett, arrival, his Upon Burke van, up Starlight Lounge drive witnesses, his fighter and another go Rendaro, Lounge, into the come out with the money. immediately counted He de- van, sit in the front of the look at that “it to be appear tected did not real something in the back of the A few van. as all bills same serial money,” had hours later again McMillan called Rendaro. something number “there was different said, part, “Man, Rendaro I saw that shit about” the feel and the bills. The color of they selling. Three big bundles police money officer concluded the 10:00, it.. .. it. I right he’ll here with counterfeit and secured it in his vehicle. left, you saw it this Right afternoon. after appeared approximate- Parr on the scene he came showed me.. There by and .. ly one-quarter one-half hour later. Offi- problem though. just exchange no We’ll it with the approached cer Burkett him coun- all and it get responded: done. [McMillan bills, himself, and in- terfeit identified fact, are, right”]. uh, “All In whenever you investigating formed Parr he was him as a go you whenever well for can things you, possession hit for the of counterfeit get always suspect ahold of me and we can again.” that at money. Officer Burkett testified subject appeals. 2. This bill is V ten dollar of Count daro indictment, conviction Ren- under which States, 372, rights. Parr read his Miranda United U.S. S.Ct. that time he That line money to Burkett that Parr then stated assessing predis- told it been found drawn the defendant’s his. When had not predisposition the tea or lack of to commit position in his kitchen he said a tea kettle crime. Lack of is the predisposition belonged to wife3 he had no kettle entrapment element of the de- money. principal kettle knowledge Russell, 411 fense. United States v. U.S. at the Hour for Donna Oles Parr worked L.Ed.2d 366 (1973); 93 S.Ct. rela- Quick Shop personal had a Print v. 645 F.2d at Reyes, States United at trial her. Oles testified tionship with governmental agents The fact afford him help her to pressured that Parr had an offense opportunity commit money. They printed produce counterfeit to commit predisposed the defendant is does September. in mid-to-late twenty such bills Id.; constitute United entrapment. contacting began Rendaro early October Russell, 428-29, v. at U.S. States Parr to use encourage her her allow 1640-41; at v. United Sherman counterfeit. shop produce her more print States, then, for a time in mid-Oc- Oles resisted but tober, pleas to Parr’s and assisted yielded Entrapment affirmative de is an 1,115 coun- approximately Parr in printing fense, presented must be evidence which terfeit ten dollar bills. issue properly before the is raised. United 153, 155 (11th Humphrey, F.2d States 18,1981,

On November Parr and Rendaro denied, 1010, 102 Cir.), cert. con- single were in a indictment of charged (1982). The defend One) (Count and substantive coun- spiracy Parr; initial evi producing ant has the burden of (Counts 2, 3, violations terfeiting 4— dence, pointing or of to substantial evidence Rendaro). also was Counts Oles 5— injected into case One, count, charged conspiracy in Count proof, its see United States v. presenting and Rendaro pleaded guilty. Parr 286-87; 645 F.2d at v. United Reyes, Sears pleaded guilty jointly. and were tried (5th Cir.1965), F.2d two conspiracy Both were convicted showing government involvement in violating counts of the federal substantive Id.; Reyes, ducement. laws. conspiracy 287; Hill, F.2d Appellant Rendaro (5th Cir.1980). 1303-04 I. Entrapment Instruction sufficiency of the evidence Rendaro contends that the trial court to raise proffered entrap the defense refusing to as to erred in instruct the court question ment is a of law for an entrapment defense. Reyes, the first instance. United States 287. defendant entrapment provides The 645 F.2d at after the Only defense does the acquittal government basis for where the has sustained initial burden implants entrapment question mind of issue of become a person in the an innocent Id.; jury. the committed for the United States v. disposition to commit fact 77, Cir.1979). Wolffs, (5th 645 F.2d Reyes, criminal acts. United States v. meet his burden 285, “To deter law is clear that order to (5th Cir.1981).4 F.2d must entrapment mine whether has been estab defendant come forward “more evidence, States lished, than a scintilla” United a line must be between drawn “ 287, that trap for the and the v. 645 F.2d at ‘the trap unwary Reyes, innocent v. a substantial unwary for conduct created government’s criminal.” Sherman adopted precedent decisions 3. us as all At all times relevant case before this court to the separated prior to Parr was his wife. Fifth Circuit decided Octo- the former ber 1981. City 4. In en banc Bonner v. decision Prichard, (11th Cir.1981), 661 F.2d risk that the offense would be committed points to Oles’ testimony that by person other than one commit ready prior to the contact by McMillan Rendaro ” United v. 670 F.2d Humphrey, it.’ States told her he had to “forget told Parr quoting Pierce v. United thing” whole and to Rendaro’s statement cert, denied, Cir.), (5th F.2d 396 McMillan on the 20th “Let’s end it tonight for sure.” These statements appear to have Dean, also v. F.2d United States been made in frustration in response to (5th Cir.1982); States Parr’s somewhat erratic behavior and do Tobias, (5th Cir.1981). F.2d any hesitancy indicate on Rendaro’s part engage in the counterfeiting scheme determining the sufficiency of for which he was convicted. issue, the evidence to raise the jury The record reveals that McMillan awas light court should view evidence in the willing buyer, introduced to Rendaro by most favorable to defendant. United informant. Rendaro awas 156; Unit Humphrey, States F.2d willing seller/middleman the counter- ed States v. 645 F.2d at Reyes, feit operation, perhaps albeit a inexperi- In the case Renda appellant instant enced and frustrated due to one Parr’s be- ro did not take the stand or present any havior. The government simply provided in support affirmative evidence of his claim an opportunity for Rendaro to exercise his contends, however, entrapment. He preexisting interest in counterfeiting and government’s sufficiently case in chief provided a concrete reason him to over- raised the issue entrapment require come his frustrations and the barrier trial court to instruct jury as presented achievement the scheme by entrapment defense. See United States Parr’s conduct. See United States v. Reyes, 286-87; Reyes, 645 F.2d at v. United Sears States, 343 at 143. Judged by F.2d Accordingly, there is no evidence in standards, foregoing we disagree. the record that would show that evidence of government inducement government’s conduct created a substantial appellant which Rendaro can is the point risk that the offense would committed first, fact approached McMillan him one other than by ready one to commit it. versa, not vice an assertion that Renda v. Humphrey, 670 F.2d at doubts, ro indicated reluc disinterest and 155; Reyes, United States v. 645 F.2d at operation. tance to in the engage Appel 287. The district court correctly concluded must, lant acknowledges, indeed he that, law, as a matter of the evidence was approach by an initial the government does jury question insufficient to raise a on the mean automatically entrapment entrapment issue.5 instruction is required. See United Hill, F.2d n. 5 Cir. II. Extrinsic Acts under Fed.R.Evid. 1980). any weight Here to be afforded 404(b) approach initial McMillan is offset the fact that contact McMillan’s occurred At trial the government played for the tracing back to Rendaro circulated coun entire tape-recorded October 15 Rendaro, terfeit bill and further fact conversation between McMillan prior this initial contact Rendaro had and the informant. Near the end of that encourage steps taken Donna Oles to conversation Rendaro described to McMillan of the handle counterfeit mon printing past developed how in he had lines of ey. credit, cards, obtained credit made a series court, incorrectly, acknowledge 5. We that district to somehow increase the defend- conclusion, reaching production governmen- did this not articulate the ant’s burden of on the legal appears correct to have in- standard tal inducement issue. Under the correct stan- terpreted above, however, ruling United States v. this court’s dards set forth the district Webster, (5th Cir.1981) banc) (en F.2d court reached the correct result. Mitchell, the credit cards and also with United States purchases of small Cir.1982).6 card bills. Prior (11th the credit paid then never tape jury, this playing to the addressing relevancy prong on the objected Rendaro basis counsel for test, the court in Beechum stated: about the credit cards the conversation that evidence to be intro- sought Where the acts, crimes evidence of other constituted offense, rele- duced is an extrinsic its character, only appellant’s relevant to the similarity vance is a function its Rule should be excluded under therefore charged. regard, In this how- offense Rules of Evidence. 404(b) of the Federal ever, similarity means more than that tape court to be The district allowed have a charged offense extrinsic that stating because played entirety, in its characteristic. For the purposes common not did constitute the credit card activities is simi- determining “a fact relevancy, offense, 404(b) did ap- Rule criminal only lar to another when the common ply- is the one significant characteristic McMillan, while Also, testifying Agent at hand.” purpose inquiry reference to prosecution, for the made Stone, The Rule Exclusion of Similar that he had seen in $100 counterfeit note England, Act Evidence: 46 Harv.L.Rev. Appellant’s case. connection this Therefore, similarity, objected ground counsel on the that relevancy, by is hence determined scope of the indict- bill was outside the $100 at issue which the extrinsic inquiry be excluded ment and therefore also should is addressed. offense The was jury as extrinsic offense evidence. that a curative instruction refer- given Beechum, F.2d at 911. disregarded. ence to the note was to be $100 Where, as the here government evi- argues that admission of contends,7 relevant arguably evidence is dence of these two extrinsic occurrences intent, to the here the intent appellant’s jury against him. unduly prejudiced of defraud, relevancy “the of the extrinsic we find admission of the Because indulg fense from the defendant’s derives operation statements about the credit card in the ing in the same state of mind himself error and could not appellant was not of both the extrinsic perpetration the brief prejudiced by have been reference charged reasoning is offenses. note, appellant’s con- reject to the we $100 unlawful intent because the defendant had tentions. offense, likely it less the extrinsic is of present he had lawful intent in the analysis the credit card evi Our (footnote omitted). Necessary fense.” Id. v. Beec guided dence is I Rendaro’s under and III of both Counts Cir.1978)(en banc). hum, F.2d 898 was the intent to defraud. indictment makes that evidence of ex Beechum clear was Renda very same intent evidenced is under Fed.R.Evid. trinsic acts admissible ro’s self-avowed8 credit card activities: (1) if 404(b) only way it is relevant some thereby an illusion of value (2) character intent to create than to defendant’s other it something nothing. out “Once probative obtaining value of evidence re- Id. 911. is determined that extrinsic offense weighs prejudicial its effect. Preliminarily transpired McMillan and Rendaro. under between note that Fed.R.Evid. 404(b) argument. is not evidence extrinsic this We do not reach crimes that is inadmissible if the relevant test applies not met. The rule to evidence of “other analysis step in an offense 8. A first extrinsic Thus, crimes, wrongs, contrary acts.” enough evidence there is determination ruling, court’s evidence district in fact for the to conclude the defendant fact made admissible virtue of the the credit Beechum, the extrinsic offense. committed activity card criminal offense. not a satis- Rendaro’s self-declaration F.2d fies test. 7. The also contends evidence story complete of what was relevant quires charged pears the same intent as the of- also that the extrinsic acts were com- and that the could that the jury fense find mitted within a year so of the charged offense, defendant committed the extrinsic offenses, a period not so as remote to dimin- step the evidence satisfies the first under ish value probative presented the by the 404(b).” Id relevancy rule at 913. The incremental value the evidence the prong of the Beechum test is satisfied here. the similarity overall offenses. step second and final the recognize We inherently prejudicial the analysis requires weigh proba that we the evidence, nature such given “deep the against preju tive value of the evidence its tendency punish, human nature to not probative Id value dicial effect. because our victim is this guilty time but the evidence to be is measured in terms of man may because he a bad be well ” significance govern its incremental to the condemned now that he caught.. .. case, necessity ment’s the the evidence Wigmore, Code of (3d 1942), p. Evidence ed. light other the evidence of intent Beechum, also See 582 F.2d at 914. “Thus, defraud. Id 914 & n. 18. if the Moreover, Beechum, unlike 582 F.2d at Government has a case on the intent strong gave district court here no cautionary issue, the extrinsic offense add may little to mitigate instruction preju- inherent be consequently will excluded more dice from credit card evidence. Given readily.” Id factors to con Other the extrinsic act was of such a nature in evaluating probative sider value include district court did even perceive the overall similarity of extrinsic and act, however, to be a criminal given charged offenses and the closeness or further the prosecution never empha- remoteness in time the charged sized act arguments the extrinsic in its extrinsic offense. Id at 915. the jury or relied explicitly proof thereon as intent, the government presented Here a any prejudice resultant is mini- substantial not overwhelming but case on mal. intent issue. Additional evidence rele Accordingly we conclude that admission vant an intent to defraud cannot said of entirety, the recorded conversation in its to have unnecessary. similarity, been As to including regarding statements offenses, identical, both while far from in scheme, credit two-pronged card meets the developing volve appearance value test of Beechum and did unduly preju- that can purchasing power be used as but dice the against appellant Rendaro. Thus, which is in fact devoid of value.

offenses have more than in common Neither did brief reference to intent to defraud. id It ap- at 915. counterfeit by Agent note McMillan9 $100 Yes, yes, 9. The bill McMillan: $100 $10 reference was made addition to the bill following Agent about, spoken context when McMillan had there had been testifying government: was on I $100 the stand for the bill that had seen. you $10 Prosecutor: In addition to the bill seen, you point Prosecutor: Had at that seen, any $10 had were there additional 20], any time other counterfeit [October Notes? Federal Reserve you originally bills than men- other the one No, McMillan: no. receiving Gary tioned from Cline? only This $100 one and reference to the May you question? McMillan: I ask In except note the indirect reference in case, Starlight reference cautionary given by the instruction court at the Lounge? appellant’s insistence of counsel. The court Prosecutor: reference this case. cautionary stated to counsel instruction McMillan: Yes. I had. reference, highlight could but counsel You Prosecutor: had? in- was insistent. R. 360-63. The court McMillan: Yes. jury: you structed “If heard the testimo- you What Prosecutor: had seen? witness, McMillan, ny any of this Mr. reference Okay. $100 McMillan: I seen a counter- had bill, you any other denomination of a should feit bill. consideration, disregard give it I it and no you But $10 Prosecutor: had seen a counter- striking am reference of the evidence feit? to as to Sufficiency effort III. of Evidence prosecution’s response to V that Count on the question. “similitude” omitted). Id. at In (footnote assessing 549 whether this standard is met must con- presentation The of evidence to the jury sider the evidence in the most favor- light is a far cry usurpation from the jury’s government. able to the Glasser United role. The note and the testimony were 315 U.S. provide introduced a to basis for the jury to (1942); L.Ed. United States Hender- decide whether or not the sufficiently note son, (11th Cir.1982); 693 F.2d obligation resembled the an United Davis, United F.2d States .States. Appellant opportunity had an to (5th B 1982). Cir. Unit cross-examine the witnesses indeed was bringing successful in out what he has char- appellant’s

The basis of claim that acterized as certain in inconsistencies the the evidence was insufficient to establish fingerprint expert’s testimony as to that the question the counterfeit note in was original of the Any color note. such incon- obligation made in the “similitude” of an that, trial, properly sistencies were before the jury the United to prior States the take note a into account whether subjected fingerprint assessing had been the note was a analysis obligation that the note “similitude” of an procedure gave hue, purplish which it not have at the did the United go States. Such inconsistencies given time it was to McMillan weight, Rendaro. not the admissibility, of This claim is devoid of merit. the evidence, evidence. Based on this the jury that the qualified concluded note as a the adjudge standard issue of “similitude” of an the obligation of United “similitude” under “whether § States. obligation fraudulent such a bears likeness or genuine to any question,11 resemblance of the obli The note especially in view gations or securities issued under the au testimony of the explaining the absence of thority it, of the United as is hue purplish States calculated is .far overlying too honest, to deceive an sensible unsus similar to an authentic note for us to con- clude pecting person ordinary observation and that could not have found supposed care with a dealing person to be that it satisfied “similitude” standard of upright Turner, and honest.” United v. United supra.12 States Accord- Turner, n. 6 Cir.), ingly & we find there sufficient evi- was denied, cert. dence on the similitude issue. As to sufficiency the evidence of trial, At contemporaneously with the intent appellant argues ad- under § evidence, mission of note in even govern- though requires explicitly § use,” ment testimony government elicited from “intent to sell otherwise mean- fingerprint expert, ing necessarily and thereafter of this implies section Special Keene Agent pass to whom McMillan intent as genu- defraud bills note, had given purplish hue ine as is expressly required under U.S.C. when the initially absent bill was re- He claims respectively. §§ ceived. would us failed to that he had prove have rule that admission of this re- testimony any intent to defraud in connection with is, course, part preting applies, 11. The note record 18 U.S.C. as § § not, appeal. purplish obligations overlies color the un- “made or 472 does exe- § note, derlying green color of the but does not cuted, part, whole or after similitude ” impossible quali- make direct evaluation added). Thus, (emphasis .... similitude ty original green color. applied loosely standard been when has more sufficiency reviewing of the evidence under 12. The similitude standard enunciated in Turn- Turner, States v. 586 F.2d at 398 § court, we, apply er which as did the Turner to a n. 7. 474, originated violation of U.S.C. inter- § plant McMillan. He con- Rendero has to be at the manu- given note $10 [sic] facturing money?,” (2) they “And do passed sample as mere tends the note be the first and guilty knew was not to have to both parties all guilty?” in the stream of commerce. to be found used as second offenses genuine response questions to these court appellant disagree with We sent to the over defense counsel’s ob- jury, necessarily the intent standard § following jection, responses: or an intent implies an intent defraud charges Count III defendants Parr and Congress explicitly stated pass genuine. ”use is Rendero under 471 and 2 of to sell or otherwise Sections that an “intent [sic] 29, 30, 38, Pages an Title 18 See Congress the If intended U.S.Code. requirement. 40, as and the written instructions pass specif- intent an intent to 39 to defraud or ically have ex and all of the other instructions. would said so genuine standard immediately sections plicitly, as in the two can, you you If should return verdicts 472, 18 preceding 474. See U.S.C. §§ § to each Defendant and as to separately as Count in which a defendant is each Defendant could be charged. A found is undisputed Here the evidence charge or either guilty guilty as to that to use the note to Rendaro intended finding to a on regard without other large quanti induce appellant purchase charge. of use ties similar notes.13 intent to Such was reached four min- guilty verdict within purposes clearly for falls unlawful supplemental after the instructions utes 474 properly the of 18 scope U.S.C. § given. were According may Congress. proscribed by be V. the on ly affirm conviction Count realizes, As the extent appellant character of additional instructions is IV. Instructions Supplemental discretion of the trial within sound Banks, contends court. v. 485 F.2d 545 Finally appellant Rendero United States 987, denied, 416 94 given (5th Cir.1973), instructions cert. U.S. supplemental written 2391, 764 also their for additional 40 L.Ed.2d request after S.Ct. jury 915, Andrew, of F.2d 922 unfairly 666 emphasized portions direction United States Miller, Cir.1982); 546 govern- (5th favorable instructions Cir.1976). jury require (9th ment confused the so as to F.2d 324 We conclude within dis new that the district court acted its trial. This claim also fails. case. cretion approximately having After deliberated first and the questions regard question two In to the jury one hour the submitted court, appellant contends that a clarification of instruc- answer thereto seeking instruction, writing, balancing reemphasizing on jury tions. The asked proof presumption burden of referencing 18 471 at paper U.S.C. § innocence, He re given. should have been ‘made’ mean top: (1) “Does word 13. This case case, distinguishable proposition totally that an intent to is § genuine required. Wilkerson, (5th pass In or as is defraud United States v. F.2d cert, denied, Cir.1972), Stiglets held that where a violation of 410 U.S. court charged (1973), appellant paragraph of 474 is 36 L.Ed.2d 184 on which the fourth § primarily prove relies. arose under intent to use for Wilkerson must an which, supra, requires counterfeiting plates forgery printing stated U.S.C. as § possessed. paragraph an intent to defraud. See also United States This its § Wyatt, Cir.1980) (in- (5th however, requires, 569-70 an intent use terms 473, may pass genuine, be Thus, tent to as under counterfeiting. Stiglets § forging in- defraud). by showing general satisfied intent to apposite 5th intent to standard use be This intent that need Likewise, is not criminal paragraph 474 in here. issue § proven here. Turner, language 586 F.2d at States v. in United 399, saying “requisite criminal Stiglets, had Appellant defendant cites cert, denied, intent must Cir.1972), not mean that criminal F.2d 242 intent” does genuine. pass (1973), intent to defraud or be the 34 L.Ed.2d 488 Sutherland, ertson, lies on United States v. (5th Cir.1981) (cla- F.2d (5th Cir.1970), denied, F.2d 1152 cert. rification of giving instructions exam- does ples not constitute “a new re- charge (1972), where this court stated: quiring balancing instructions”). giving additional instructions to a argues the instruc

jury particularly response inquiries — tion was misleading confusing because from the court should jury espe- be —the the jury’s question, referencing while cially careful not to give unbalanced 471 at the top page, U.S.C. § did charge. If Judge give any chooses to referring. indicate to what count it was It charge additional and elects not to repeat true both Counts I and III original the entire he re- charge, should charge indictment a violation of 471. If § mind the quantum burden and I, the jury asking were about Count proof presumption innocence or count, conspiracy appellant contends the remind them that all instructions must court’s reference to the instructions ap- considered as a whole or take other aiding and abetting statute would only have propriate steps any possibility avoid Here, confused the jury. as in United prejudice to the defendant. Andrew, States v. at 922, F.2d “[t]hat Id. at 1157-58. See also United States v. there was no inquiry further after the Carter, 625, (5th Cir.1974), F.2d to judge’s response the note indicates [] quoting States, Bollenbach v. United that the judge's response cleared the jury’s 405, 402, U.S. 66 S.Ct. 90 L.Ed. 350 difficulty with concrete accuracy.” Fur (where (1946) jury seeks clarification af- thermore, the fact that the jury reached a ter a of period deliberation court should be decision so quickly after the response was of jurors aware probability place will par- received indicates jury that the was not on emphasis supplemental ticular the in- confused judge’s and that the reply special structions and care pay to avoid responsive its concerns. inaccuracy or imbalance —where ex- jury presses difficulty, confusion and trial court judge’s response the ques- second obligation has an to “clear them away with tion did not refer back to the original in- concrete accuracy”). gave structions but supplemental directions

Here jurors’ the answer to the first count consider each and each defendant question specific referred them to portions separately. Appellant correctly that one they performing view when are plain Appellant Parr concededly legitimate pur of these two (1) Parr raises three claims: Appellant appellant What poses. Id. 98 at 1950. S.Ct. have whether the district court should the Fourth Amendment does assert is that the sixteen granted suppress his motion to officials investing not in fire does condone by fighters the fire counterfeit bills seized randomly to choose discretion the unbridled at police night and the his home on the of dwelling a burned should be parts which of fire, whether the court erred (2) district practice pursuant general to a of searched incriminating in failing suppress an valuables, pro for the salvaging ostensibly him at the Secret Ser- statement made arrest, (3) and of of burned house. night vice station tection the owner evidence to whether there was sufficient requires claim careful Resolution of this possession conviction for with sustain the balancing interests and sensitive recon under 18 472 intent defraud U.S.C. § legal We conflicting principles. ciliation of (Count II). that, is policy where the not hold at least proce to standardized pursuant executed to suppress motion should Because the the discretion narrowly dures that channel been the sixteen coun- granted have scope and officials determine which formed the basis for terfeit bills only argument argues period, appellant’s Appellant undercuts that the short was reached minutes, remained confused. receipt between a matter of reaching response a verdict and supplemental delivered 15. While instructions supplemental jury, strongly suggests ones, purely verbally preferred to written charge This is true. was decisive. Solomon, 364, 366 however, argues, it was decisive because it supplemental (5th Cir.1978), in- use of written government was balanced favor automatically create an structions does However, prejudiced against the defense. nei- specific nothing in abuse of discretion supplemental answers was imba- ther use of written instructions indicates that case quickness lanced which a result abuse. here was an

811 search a subject dwelling,16 of burned search, intrusiveness of the but the neces- sity for a the warrant policy seeking salvaging persists. out and valua- bles without administrative warrant vio- (footnote omitted). Id. 98 S.Ct. 1948 lates the dictates of the Fourth Amend- specifically Court held: ment. short, In the warrant requirement pro- significant vides protection for fire vic- Preliminarily, contrary context, just tims in this as it does for government’s argument, the salvage proce- property faced with owners routine build- dure here in issue clearly qualifies as inspections. matter, ing general As search within the Fourth Amendment. then, official investigate entries to ‘basic purpose “[T]he Fourth] [the cause of a fire must adhere war- Amendment ... is safeguard privacy rant procedures of the Fourth Amend- and security against arbitrary of individuals ment entry .... warrantless by fire [A invasions officials.’ The of- fighters] illegal unless it falls within health, fire, ficials may be in- building one of carefully the “certain defined spectors. purpose Their to locate may be classes of cases” for which warrants are suspected nuisance, abate public or sim- mandatory. perform ply periodic inspec- routine Id. 98 S.Ct. quoting Camara v. .... tion These deviations from the typical Court, Municipal 523, 528, 387 U.S. police search are within clearly thus 1727, 1730, (1967). protection of the Fourth Amendment.” proceeded Court discuss the Michigan Tyler, 98 U.S. S.Ct. arguably applicable exception to the war- 1942, 56 (1978), quoting L.Ed.2d 486 Camara requirement: exigent rant circumstances Court, 523, 528, v. Municipal U.S. where there is compelling need for official S.Ct. L.Ed.2d time action and no to secure a warrant. Id. Tyler, U.S. 1949-50, citing S.Ct. Warden v. Hay- (1978), S.Ct. 56 L.Ed.2d the Su- den, S.Ct. L.Ed.2d preme Court evaluated applicability (1967); California, Ker v. the Fourth require- Amendment warrant (1963) ment to the duties of fire officials. There Court, Municipal Camara v. 387 U.S. at Court carefully reasoned: at 1736 and cases cited therein. burning The Court reasoned that build- “[a] no diminution in a person’s [T]here ing clearly presents an exigency suffi- expectation reasonable privacy nor proportions cient to render a warrantless protection Fourth Amendment Indeed, entry defy ‘reasonable.’ it would simply because the official conducting the suppose reason to that firemen must secure search wears the uniform of a firefighter a warrant or consent before a entering rather than a policeman, or because his burning put structure to out the blaze.” Id. purpose is to ascertain the cause of a fire 98 S.Ct. rather than to for look evidence of a Court The also stated that officials crime, or might “[f]ire because the fire have charged extinguishing are with deliberately. been started for Searches but fires with their finding causes.” Id. purposes, administrative like searches for crime, encompassed evidence of by are Because of a determining cause fire is the Fourth The Amendment.... show- one the core fighters, functions fire ing of probable necessary to cause secure in a Court concluded that build- “[o]nce may object a warrant vary ing for this purpose, fighters may fire seize 16. This is say (warrant to requirement applies creation of such to administrative procedures automatically city standardized will by though ob- searches authorized code even requirement. viate the warrant v. Cf. Camara required code searches at “reasonable Court, Municipal 387 U.S. 87 times”). question day. This is left for another 1727, 1733, 1734, (1967) S.Ct. L.Ed.2d First, segment pop- a plain view.” considerable arson is

evidence of Hampshire, 403 probably v. New ulation would consent searches Id., citing Coolidge 2022, 2037-38, 465-66, valuables.17 As in Ca- 91 S.Ct. to secure the Court U.S. Court, Further- (emphasis supplied). Municipal v. 387 U.S. at mara L.Ed.2d ascertaining however, more, 1735, stated, argu- also because S.Ct. at with which fire duty true, fire is a is ment “even if irrelevant cause charged, “officials consistently are question [salvage] inspection officials whether building remain in a for meaning no warrant to need within the reasonable investigate the cause a time to reasonable Amendment.” Fourth extinguished.” has a after it been blaze Second, of valuable protection (footnote omitted). (emphasis supplied) Id. from vandals of the fire victim property argues here The is a certainly legitimate govern looters has been valuables after the fire search for Op v. Dakota mental interest. See South fall within the extinguished also should 364, 369, 96 S.Ct. perman, 428 U.S. justified same circumstances that exigent (1976); id. 96 S.Ct. at into bur- entry initial Parr’s home. “[T]he J., (Powell, id. at 3108 concurring); to estab- proof [belongs] den of the state Stewart, JJ., (Marshall, dissent Brennan & exception to warrant lish that an the search ing). subject requirement applicable in the ” Bachner, v. case.... interest, however, legitimacy of this Cir.1983). F.2d 1121 at necessity for a war- does not undercut the privacy the substantial safeguard rant logic opinion Court’s into by entry a implicated interests leads Michigan Tyler v. us conclude by governmental official. person’s home fighters pursuing purpose are where fire York, 573, 585-90, New U.S. Payton duties less defined as one of core clearly 1371, 1379-82, L.Ed.2d 639 searches of a they charged, with which are Arizona, (1980); Mincey dwelling purpose, burned for that after 393-94, has not fall with extinguished, been do at 507- (1978); Michigan Tyler, created exigent in the circumstances 10, 98 S.Ct. at 1948-50.18 in the fire and thus unlawful absence case, This the fire had warrant. which imposed Court Tyler, extinguished been and the search all requirement on searches the warrant protect seizure those of valuables was investigate the cause of the undertaken looters, distinguishable items from fire, those where the offi- excepting only pro valuables from a home to removal of building in a a reasonable cials “remain raging fire. tect them from destruction investigate the cause of a blaze time exigency There the created the fire extinguished.” it is Id. after goods would warrantless removal of make omitted). These limited (footnote Here such totally exigency reasonable. no scope searches were included within existed. original war- exigency justifying course, made, extinguish the fire due to Arguments entry rantless can be fires against preventing the need looters and dis- to secure valuables two interests: relat- which, covering activity evidence of criminal along is an with extin- exigency Id. the of the fire. at guishing ascertaining the blaze and ed to cause interests, fire, large public cause of excepted part should be from Both interests of owner requirement. purely private warrant always simpli- obviously agrees, investigation of crime would be 17. The dissent but does unnecessary.” Mincey analysis. proceed if v. to Fourth Amendment fied warrants were 393, Arizona, at 2414 at 98 S.Ct. 437 U.S. may mere fact that law enforcement “[T]he omitted). (citation justi- by made be more efficient can never itself fy disregard of the Fourth Amendment.

813 occupant of home. Searches secure circumstances warrant must be obtained vandals, valuables from looters and any while exceeding scope search serving public peripherally pre- exigency, interest in warrantless search must “[a] crime, ‘strictly vention of are undertaken be exigencies almost circumscribed which its initiation protect justify the interests of the ....’” Id. 98 exclusively 2413, Amendment, at quoting Terry Ohio, fire victim. The Fourth S.Ct. how- v. 392 1, 25-26, ever, 1868, 1882-83, 88 protect seeks to different of U.S. S.Ct. 20 interest (1968). Similarly, that same fire victim. the most United “[E]ven Brand, 1312, v. States 556 F.2d 9n. law-abiding tangible citizen has a in- very (5th Cir.1977), this court specifically in limiting terest the circumstances under stated an officer home entering pursuant which the sanctity of his home be may exigent exception may circumstances broken by authority, possi- official for the premises not search the beyond scope bility of entry criminal under the guise justified by the exigency obtaining without official sanction is a serious per- threat here, a warrant. We reaffirm that ruling sonal and family security.” v. Mu- Camara holding that the search for valuables falls Court, 530-31, nicipal at S.Ct. outside immediate exigency created 1732. “At the core very the Fourth [of the fire and must supported by a war- right stands the of a toman Amendment] rant. See also United States Lyons, v. retreat into his own home and there be free 321 (D.C.Cir.1983). F.2d governmental unreasonable intru- sion.” Silverman v. United 365 U.S. The search of home Parr’s for valuables 505, 511, 81 S.Ct. 5 L.Ed.2d 734 falls scope also outside the of the “invento (1961). ry search” exception the warrant re quirement. Lafayette,-U.S. Illinois v. Hence, deciding whether to extend -, 2605, (1983); S.Ct. L.Ed.2d exigent exception circumstances of the war- Opperman, 364, South Dakota v. 428 U.S. case, rant requirement to the facts (1976). S.Ct. 49 L.Ed.2d 1000 See also we are forced to affording choose between Chadwick, 1, 10 United v. States 433 U.S. n. greater protection to the fire victim’s priva- 2483 n. 53 L.Ed.2d 538 cy rights, by holding that searches to secure (1977). valuables in the home after fire has been extinguished First, are outside the scope procedure here issue is not the exigent exception circumstances all, to the “inventory” but selective confisca- requirement, warrant property tion of arbitrarily goods. selected rights victim, of that same by according fire important, More even if an inventory fighters license to prop- search valuable plausible, this context were “inventory erty after a without a search warrant. exception applied search” has never been high Given the value placed on interests searches of home. someone’s Cf. United underlying protections of the Fourth Laing, (11th States v. 708 F.2d 1568 Cir. Amendment as applied sanctity 1983); United v. Bosby, home, we choose the former.19 (11th Cir.1982); Pres Arizona, Mincey cott, Cir.1979); 437 U.S. F.2d 103 (1978), Edwards, (5th Cir.) Su- States v. F.2d preme Court made (en banc), denied, clear that where an en- cert.

try into a home is justified emergency 58 L.Ed.2d On the Tyler Michigan 19. We note searches cause the fire. We do not our base decision conducted a few after hours the fire were con- temporal distinction between this and time,” sidered “a to be within reasonable Tyler. purpose Rather is the S.Ct. at and thus included within the search that leads us conclude that scope exigency justifying entry put scope search for valuables is not within the of out blaze search for evidence of its exigency extinguish created the need to cause. The search for valuables here was con- and discover the cause of the fire. contemporaneously ducted with the search for 814 3092, consistently (1976), supports 1000 L.Ed.2d Court S.Ct.

contrary Supreme protection Supreme from There the Court greater afforded our conclusion. has warrantless, rou- private build of explored legality homes and other searches of automobiles, of from ings tine, than searches inventory impounded searches of auto- effects, personal and their persons mobiles, protect arrested part undertaken in requirement full the warrant applying car or most recent owner property former, for searches in the force to the be it Lafayette, also Illinois v. occupant. See Compare context. criminal or non-criminal 2605, -U.S.-, 77 L.Ed.2d S.Ct. 590, 100 York, 573, 445 U.S. Payton v. New (1983) (extending “inventory search ex- 1382, (“In 1371, (1980) 63 L.Ed.2d S.Ct. to warrant ception” requirement of equally seizures apply terms that and his effects personal searches of arrestee of persons, seizures property and to station). police ain firm line has drawn a Fourth Amendment such searches did concluding exi- at the house. Absent the entrance to the Fourth satisfy requirement circumstances, threshold gent may primarily the Court relied Amendment warrant”); a be crossed without reasonably are notice- two These factors so factors. 499, Tyler, U.S. S.Ct. the case of searches of ably absent 1942, (1978); Leasing 56 L.Ed.2d 486 G.M. dwellings secure valuables burned 338, 354, Corp. v. 429 U.S. logic Opperman convinced the (distin- 619, 629, (1977) S.Ct. result contrary that here a compels regu- some guishing warrantless searches v. Lyons, 706 reached. See United States private those in lated businesses from (distinguishing (D.C.Cir.1983) Op- F.2d 321 dwellings or United States property); obtained warrant must be perman; 297, 313, Court, 92 S.Ct. District 407 U.S. room, in hotel scene of search for evidence 2125, 2134, (1972) (“physical entry justi- arrest, though even initial evil against home is the chief entry to en- police to undercover fied consent wording of the Fourth Amend- which the transaction). drug gage in Municipal directed”); Camara v. ment 1727, 18 Court, upon by Opper- 87 S.Ct. relied U.S. first factor (1967) Illinois Lafa- with “traditionally L.Ed.2d drawn man Court [ ] yette, 103 S.Ct. supra,-U.S.-, and homes distinction between automobiles 65; Opperman, Dakota v. 77 L.Ed.2d South to the Fourth Amend- or offices relation 49 L.Ed.2d 428 U.S. at 3096. Opperman, 96 S.Ct. ment.” Martinez-Fuerte, (1976); that “warrantless examinations Court noted 428 U.S. in circum- upheld have been of automobiles warrantless, (1976) (upholding L.Ed.2d a of a home or in which search stances checkpoint stops automobiles routine not,” id., emphasized would office neither with searches nor “where we deal the inherent for the distinction: reasons dwellings, ordi- private sanctity the diminished of automobiles and mobility Fourth narily stringent afforded the most in automobiles as privacy expectation sup- protection”) (emphasis Amendment buildings. or other Id. compared to homes above, Pay- plied). the Court in As noted though inventory an Even 3096-97. York, ton v. New in a personal effects search of an arrestee’s only exigent cir- made clear that a implicate has been found police station warrantless intru- justify will cumstances than insufficiently greater interest privacy “inventory search into a home. An sion distin- automobile to exists an which by this court will not be used exception” inventory Opperman guish it undermine the Fourth bootstrap to greatly privacy enhanced search, given the afforded the sanc- protections Amendment home, supports in a this distinction interest tity the home. the standards finding that satisfaction justify suffice would not expressed Opperman principles A review of the home, as is in issue of a search 96 warrantless South Opperman, Dakota v. supra text See this case. at 813— ble where in “standardized” and “routine” 814; supra United States v. procedure station). used in police Lyons, Lafayette, supra F.2d at 325. Cf. Illinois v. case, In the instant not only was exception (inventory applicable search inventory-type non-criminal search for personal search of arrestee and his effects salvageable valuables undertaken within an Harris v. United police station); in home car, than a individual’s rather but no 234, 88 390 U.S. L.Ed.2d procedures standardized were used. While the existence of the general policy of the Fire Tampa Department of searching for Op- upon The second factor relied contested, is not valuables Record at perman Court was routine, existence of 83-84, absolute discretion is invested in the uniform, procedures by standard which the fire fighter individual as to the scope are inventory by po- searches undertaken focus of search. Record at 80-81. 3098-99; Opperman, lice. 96 S.Ct. at id. at 3104 J., concurring).20 (Powell, Inspector Burke, Fire superior Stone’s - Lafayette, also Illinois v. -, of the scene the Parr and the individual (1983) (empha- money, whom Stone turned over sizing applica- while, “inventory exception” search testified that personal own field,” Indeed inspector Justice Powell’s instructive concur- in cial “when since [an] presence entry, occupant rence shows that way of the standard- demands no of ha[d] procedures by knowing ized which the in- automobile whether of enforcement require the munici- single pal inspection ventories are undertaken was the factor code involved of his [d] precluding applicability premises, way knowing of all inter- no of the the lawful lim- underlying requirement search, inspector’s power ests warrant its and no making exception way thus knowing inspector the one factor whether the [was] requirement Opperman acting warrant proper reasonable. under authorization.” J., (Powell, concurring). Court, 96 S.Ct. at quoting Municipal Id. at Camara at 1732. purposes Justice Powell identified three un- Justice Powell’s conclusion that the same First, derlying requirement. the warrant “In presented Opperman concerns were not requirement the criminal context a war- particularly instructive here: protects legitimate expec- rant the individual’s inventory In the context search these con- privacy against po- tation of the over-zealous prior are cerns pant absent. The owner or occu- lice officer.” Id. Justice Powell concluded present, nor, of the is not automobile Opperman this interest was at issue in cases, many is there real “Inventory likelihood that because searches are not con- [] peri- he could be located within reasonable ducted in order to discover evidence of crime. importantly, significant time. discretionary od of More no The officer does not make a de- placed judgment discretion is hands of termination to search based on a in the the indi- usually present. Inventory certain vidual officer: he has no choice conditions subject scopeM or its searches are conducted in with es- search accordance police department (emphasis supplied). policy tablished Id. at 3104-05 rules or Footnote police occur whenever an automobile is 11 noted the use of the seized.” Id. that case (emphasis added). inventory guidelines standard sheets purpose The second but related war- what items were to be removed from the car. requirement Tyler, rant identified Powell Justice See also U.S. at prevent hindsight (Court affecting “is to the eval- S.Ct. at noted administrative uation of the reasonableness of the search.” searches often are reasonable deemed be- Again Id. “a reason interest was cause competing reasonable between balance these implicated Opperman was that the case concerns for intrusion and “[i]n [need inventory disruption occupant of an search conducted in accordance threat or owner] department police procedures, usually legislative with standard achieved broad admin- significant danger justi- hindsight guidelines specifying purpose, there is no istrative quency, fre- scope, (emphasis added). conducting fication.” Id. and manner of purpose inspections”). The third identified relied Court, language Municipal supra, Opperman reading of Camara v. a close Thus convinces explained why procedure reason us but warrants are for the standardized used required inventory impounded criminal outside the context. for routine searches of automobiles, practical existing “The effect warrant- the warrantless searches of the [the procedures impounded probably less search had would not to leave cars have been been] occupant subject approved. discretion the offi- to warrant the need search.” information, party the valuable terested he inventories Court, Municipal at no v. U.S. there is standardized Camara property gathered, 532-33, at at followed. Record 87 S.Ct. 1733. inventory procedure the thought police he He 84. stated hold that for We therefore searches the items if and categorized department in valuables a burned dwell and seizures of over to were turned when the valuables ing inventory neither fall within the search direct evidence at 84. No them. Record exigent the same circum exception nor point. this on presented exception require to the warrant stances assuming that even importantly, More justifies entry extinguish and ment that the confiscated salvage policy under the a fire. Prior to un ascertain cause of police over to the de- valuables are turned searches, absent consent or dertaking such owner does if the partment safekeeping exceptions other the war presence the department to the fire prior not return requirement, warrants should be rant assuming that vacating premises, the gov the pursuant procedures obtained properly does inven- police department erning administrative searches.21 See Mich held, it undisputed is tory items at Tyler, 436 U.S. igan v. S.Ct. scope the decision as to here 1951; Inc., Barlow’s, v. Marshall in procedures to be followed search and the 1824-25, 307, 320-21, S.Ct. totally were committed the search Municipal v. (1978); Camara L.Ed.2d of the individual unguided discretion Court, 534-39, at 1733- S.Ct. U.S. fighter decided The individual fire fighter. Seattle, City 36. See U.S. closets, through or not to look whether (1967). L.Ed.2d 943 S.Ct. toiletries, drawers, desks, papers, personal note that the facts in the bathrooms, bedrooms, We also any por- or other house, support application not no how remote instant case do tion of the matter fire, plain view doctrine. A review without set source of “The the evidence here in guide prac- his decision. record reveals standards to view” to the fire question “plain to leave the system tical effect of this [was] his scope investigation in the subject fighter to the discre- occupant owner] [or is of the fire or in efforts to official the field. This cause tion fire, a private place invade in precisely the discretion to but was extinguish pursuant to his search for upon only cir- truded property consistently which have plain was not in that a valuables.22 The evidence requirement disin- cumscribed considering evaluating magistrate’s is- consideration when an In whether a warrant should sue, application properly magistrate for a warrant. would consider the case, say opinion should not be read to instant This need to secure valuables premises unprotected during e.g., particular be did fire and the extinction should left seeking (were are In the time fire officials a warrant. the house unsecurable thereof leave down); period short interim all reasonable efforts are there rea- doors and walls knocked searching seizing property searching; is should there sonable alternatives undertaken, guarding premises. occupant e.g., assuming will basis for owner return; have reasonable efforts been not soon fighter Stone, who discovered the bills 22. Fire occupant made owner or to locate the bowl, sugar he testified that could not in the Tyler, Michigan v. S.Ct. obtain consent. taking prior the bowl off the see bills course, is, at 1949. This not exhaustive. list looking it. at 75. shelf and into Record Supreme held that the exist- Court has express opinion, no because the therefore We to a ence of restrictive alternatives search less us, as to whether when fire issue is not before calculating whether are to be considered investigating fighters the fire are the cause of exception a search which falls into cause, they seeking see evidence of that requirement Illinois warrant reasonable. activity, sur- criminal of unrelated evidence Lafayette, at-, supra,-U.S. officers, police render the evidence discussion of available alternatives Our justifies “plain the seizure view” doctrine premised exceptions our conclusion - Brown, U.S. Cf. Texas evidence. inapplicable requirement to the warrant (1983); -, proper and is directed toward factors “during view the course of legitimate rights and his statement are [his] not valid be- Arizona, emergency Mincey activities.” they cause were not the product aof ration- 2408, 2413, 57 al intellect. Agent Tuller of the Secret Service testi- fied that he arrested Appellant Parr on short, based on the principles October 21 outside the Hour Quick Print the underlying Supreme Court’s decisions in Shop, and at that time read appellant his Tyler, supra, v. Payton v. New rights. Agent Miranda Tuller also testified York, supra, Opper Dakota v. South that at that time Parr indicated that he man, supra, and judgment our in United rights. understood those Parr then was Brand, v. supra, States conclude that the transported station, to the Secret Service search warrantless of Parr’s house ostensi again where he was advised Tuller of his valuables, bly to secure pursu undertaken rights. Appellant next executed a Warning routine, ant to no procedures, standardized Rights Waiver of to which the defense circumstances, exigent without and yielding stipulated at trial. He then made an in- plain evidence not in view the fight fire criminating statement that was ers, reduced to did not of satisfy requirements writing signed by him. During the Fourth Amendment. motion to suppress hearing, Parr took the The principles set forth above dictate stand, acknowledged signature his' on the conviction of under Appellant Parr waiver form statement, written reversed, Count II of the indictment be as signing remembered the forms but did not the sixteen bills seized after the fire consti- Agent remember Tuller going over the tute the sole basis for that Be- indictment. form statement with as Agent him cause, however, the of unlawful seizure Tuller had testified that he did. Parr also sixteen counterfeit notes did not taint testified that did he not recall having his convictions on I Count and III and the rights read to him. sixteen bills were introduced as evi- convictions, dence to support those Arizona, Miranda v. 384 U.S. holding leaves those convictions unaffected. 436, 444-45, 1602, 1612, 86 S.Ct. 16 L.Ed.2d 694, (1966), Supreme 706-07 Court held II. Motion to Suppress Written Statement that evidence obtained as a result of interrogation custodial is inadmissible un Appellant next that his motion to argues less the had defendant first been warned of suppress written, incriminating statement his rights and knowingly waived those made to night the Secret on the Service of rights. Alabama, See Sullivan v. 666 F.2d his arrest should granted have been because 478, (11th here, Cir.1982). Where, the statement was not knowingly and vol- interrogation continues in the absence of untarily made. defendant, counsel for the Parr contends at of the time his must show that the defendant made a on 21,1981, arrest October he was unable to knowing, voluntary, and intelligent waiver think clearly, reason or to understand the rights. Arizona, his Miranda v. 384 U.S. nature of agent’s the federal interrogation, 475, 1628, 724; L.Ed.2d due to excessive amounts of medication and Alabama, v. Sullivan 666 F.2d at 483. occurring an accident 16, 1981, on October resulting temporarily in diminished mental Whether a valid waiver constitu capacity. argues He signing question tional of law rights is made on written' warning appellate Miranda which an court must and waiver make an States, 234, Harris v. United police Cir.1979) (entry by 390 U.S. 88 S.Ct. officer into 992, (1968). See seizing also Michi- dwelling purpose 19 L.Ed.2d burned evidence gan Tyler, 509, v. plain 436 U.S. at S.Ct. at to fire seen crime unrelated but view (once building fire, purpose, fight- fighters putting in a for this fire out when vio- may Amendment); “plain seize evidence of arson ers v. lated the Fourth Hoffman, Brand,

view”); (5th Cir.1977). v. 607 F.2d 280 556 F.2d 1317-18 v. Beckwith United Parr had worked three or four hours judgment, independent shop “very on 21st and print 96 S.Ct. seemed 425 U.S. speaking v. North alert” (1976); Davis “his manner 1617, 48 L.Ed.2d and. 737, 741-42, very 86 S.Ct. well on the 21st.” Carolina, 384 U.S. (1966), based 1761, 1764, 16L.Ed.2d only the conduct of the accused is While Black- circumstances. totality validity of a evaluating one factor State, 361 80 S.Ct. burn v. U.S. Zerbst, 458, 464, waiver, Johnson

274, 279, also L.Ed.2d (1938); 82 L.Ed. 1461 Butler, 369, 99 North Carolina Alabama, 666 F.2d at here Sullivan (1979); Sullivan 60 L.Ed.2d testimony govern- there is Alabama, at 482-83. read his agent appellant ment rights, made the rights, waived his totality circum Viewing in question, statement but there exist court did not err here the district stances signed copies of both the waiver the written statement. refusing suppress to Furthermore, appellant’s own statement. that Miranda warn Agent Tuller testified to the best of his testimony establishes given appel least twice to ings were at he had taken all of the medication memory that he did Appellant testified lant. contributing temporarily his di- allegedly not The elicited remember. capacity mental on the 16th of minished that at the Agent Tuller testimony from 17th, October, on the perhaps some writ warnings appellant’s time of the arrest and days full four five before his statement, to be appellant “appeared ten statement. All of these making of what was on” going coherent fully were into account dis- factors taken have his mental faculties “appeared sup- the motion to denying trict court normal, he him.” His was speech about In addition press the written statement. he no illnesses and walked complained of able, not, court was as we are the district difficulty. Donna Oles testified without credibility witnesses evaluate 16 Parr her he had that on October told suppress hearing. the motion car. took him to a doctor been hit She and a the next. On day hospital record, reviewing the Accordingly, after house,' com 19th, after the fire at Parr’s he with the district court that Parr agree plained dizziness and she took him knowing, voluntary, intelligent made a Oles testified that on sev hospital. another rights. of his constitutional waiver this ob during period, eral occasions she Conclusion left punch served Parr himself behind his counts, Appel- the convictions of On all ear and heard him state that if was The convic- lant Rendaro are AFFIRMED. red red he would make it and that he felt Parr Count II of the tion of on if they sick did not think he was sick. even REVERSED; his convictions indictment commencing testified that on Parr and Oles I AFFIRMED. on Counts and III are taking prescrip October Parr had been medicine, to relax his nerves prescribed tion RONEY, Judge, concurring Circuit sleep. pharmacist him The testi help dissenting part. part filling prescription fied to Dalmane Rendaro’s I concur in the affirmance of and Centrax on October On October Parr’s convictions as convictions and Parr, al prescription was refilled. I from the rever- Counts I and III. dissent he though stating remembered little II conviction. sal Parr’s Count during period had be transpired what amendment vio- finds fourth tween October 12 and October Court fighter taking he recalled lation the seizure fire thought testified he during a time when currency on discovered 16th, possi most of this medication his en- bly 17th, legitimatized if was left he exigent some but circumstances in extin- may 21st, building, activity have his day try taken it on as to testified, however, fire, investigation and his guishing arrest. Oles its cause. Tyler, America, UNITED STATES of Court refuses to extend the exigency excep- Plaintiff-Appellee, currency

tion a seizure of purpose for the protecting it owner. So far am I from the reasoning convoluted that brings GRANVILLE, Paul W. result, to this I Court that would think Defendant-Appellant. it unreasonable for the fighter not to make rather search cursory that was No. 81-5816 here possession made and not to take Non-Argument Calendar. that which be easily protected could for the Appeals, States Court of owner. Eleventh Circuit. made, Once the seizure was the inventory of what was seized was clearly appropriate. Oct. It was during inventory that the cur- rency revealed to be counterfeit. At

that point, fighter the fire could return owner,

it to the but obligated to turn police.

the bills over to the give up

We too much to Mr. Parr when up right

we give to have our homes and

possessions reasonably protected by fire-

men, who, me, it seems to precise- hired

ly for the purpose protecting our belong-

ings. This not a search for criminal long

evidence after was extin-

guished. suppress The motion to prop-

erly Tyler, supra. denied under

Parr claims if that even the bills were

admissible, the evidence was insufficient

establish his intent to defraud under 18 co-defendant,

U.S.C.A. 472. Parr’s Don- § Oles,

na testified that Parr said he had a

friend who had some friends that could him money

make some if he could produce a

good Oles testified that Parr said the $10.

bills would be passed places, in dark

that people were them taking out

country. The evidence establishes not possessed bills, Parr the counterfeit

but intended utilize them to defraud A general

others. intent to defraud third

parties is sufficient to sustain a conviction

for violation of 18 Riggs U.S.C.A. § Cir.

1960).

I would affirm. notes about elicit information $10 The the indictment. subject of were sufficiency challenges next Appellant to way directly linked reference was in no proof as to his convic- government's Considering context Rendaro. V of the tion under Count indictment. was reference we hold that evidence with charged V Rendaro a violation Count all and of of an extrinsic act Rendaro sample based on the $10 of 18 U.S.C. § of of the strictures therefore falls outside Agent gave note he to McMillan counterfeit Gonzales, 404(b). States v. Rule United in seven 1981. Section on October Cir.1981) (evi- (5th 661 F.2d 493-94 proscribes paragraphs, possession different charged counterfeiting necessary dence relevant to transaction to a equipment of occurring obligations within or counterfeit in the indictment but of operation to sell or completed indictment themselves with intent otherwise alleged dates in the incident; The fifth which Renda- paragraph, not an use. entire the account of the based, was states ro’s Count Y indictment Killian, act); “other” United States in- in violation of 474 shall persons that Cir.1981) § (introduction (5th F.2d clude: retrieved from defend- pistols cocaine custody, charged possession offense has in his or ant’s house after arrest Whoever under from the except authority inter- Secre- inextricably cocaine possession proper or other offi- tary Treasury trans- charged twined with evidence cer, obligation security or other made Aleman, F.2d action); executed, part, in whole or after or Cir.1979) 404(b) (5th of Rule (policy se- any obligation or other similitude when offenses “simply some inapplicable curity authority issued under the be- single episode committed in criminal intent to or oth- with sell come because the defendant ‘other acts’ use the same. erwise actions”). indicted for less than all of his Rendaro contends that evidence that contends further to insufficient show counterfeit evidence, even if this is not extrinsic act McMillan was “made or gave note he defend government notify failure of the executed, part, or in after whole de ant the evidence would be used any obligation other securi- similitude trial he was prived him of a fair because ty” of the United States insufficient adequately and unable to unduly surprised requisite intent. prove the to the prepare his defense. reference which this court standard one, oblique way in no note was an $100 sufficiency evidence judge cautionary tied directly appellant, and was stated in United sustain conviction assuming Even given. instruction was Bell, (5th B) Cir. Unit de prepare failure of the banc),10 grounds,- other (en affirmed on fendant for McMillan’s reference -, 2398, 76 L.Ed.2d error, no could note prejudice $100 (1983): no there is have resulted therefrom and ex- that the evidence necessary It is not v. Gon cause to reverse. United States of in- every hypothesis clude reasonable zales, 661 at 494-95. F.2d wholly nocence or be inconsistent pro- hold this evidence except guilt, We that admission of every conclusion not, of fact could find individually conjunctively, vided a reasonable trier did either guilt beyond the evidence establishes ap- unduly prejudice deprive juryA is free doubt. of a fair trial. a reasonable pellant Inc., Reynolds Corp., type. you it in Stein v. Securities And should not consider 1982), court Cir. 667 F.2d adopted against R. at 364. the case either defendant.” precedent Unit B of the decisions of former Fifth Circuit. among choose reasonable constructions of liance thereon the jury usurped somehow the evidence. the jury’s role as the finder ultimate of fact

Notes

notes given of the instructions already and did the jury’s question far from clear and the sufficiently “remind them all that instruc reference to the “first second offenses” whole,” tions must be considered as a Suth II, could have referred to I Counts the erland, 1158, by F.2d at referring them objects two or the two overt acts charged in Indeed, to all very instructions. in a (Count I), count conspiracy or to two situation, similar the Fifth Circuit has tak alleged elements the offense in Count position en “the that a judge may have Appellant alleges III. court’s re- jury portions original re-read of the instruc sponse was vague, unresponsive and confus- tions provided the reinstruction does not ing, failed “to clear away jury’s [the mislead or jury.” confuse the United difficulty] confusion and ac- concrete Andrew, States 666 F.2d at 922. See also curacy.” Carter, United States v. 491 F.2d Cotton, 430, United States v. 646 F.2d States, quoting Bollenbach v. United (10th Cir.1981); Lang, agree U.S. S.Ct. at We (7th Cir.1981); F.2d United question disagree but unclear Castenada, States v. response court’s evidences an abuse Cir.), denied, cert. U.S. of discretion. (1977). fact reference Regardless back to delivered originally speculation instructions as to possible jury’s could be as various supplemental meanings construed not a instruction at all. Cf. v. Bob- no question, the district court evidenced replied indictment, II we He Count REVERSE interpretation. ambivalence charge, count, inform- balanced on completely appellant’s with a conviction do count was be ing that each which appellant’s not reach third claim re- sepa- each defendant separately, considered solely lates to that conviction. Because we could defendant rately, and “[a] reject appellant’s argument, second we AF- as to either guilty or not guilty found conspiracy FIRM the convictions on finding any charge regard without (Count I) III. count and Count nature Given balanced charge.” other instruction, fur- the absence Fighters I. Fire and Police Pur- Seizure and, indeed, the jury, ther inquiry Alleged Policy Securing Val- suant to between submission of period brevity uables of the ver- and the resolution response instruction must dict,14 supplemental challenges Parr the sei jury’s confusion with eliminated the have from his zure of the sixteen counterfeit bills Bollenbach v. United accuracy.” “concrete night home on the violative 326 U.S. at He does not chal the Fourth Amendment. district court’s We hold that of fire officials to enter lenge authority adequately, and supplemental instructions extinguish the fire nor re home fashion, jury’s in a resolved balanced investigate main for a reasonable time represented no abuse disc confusion the cause of the fire after was extin retion.15 guished. Tyler, claims raised Having rejected all four Rendaro, AFFIRM his convic- that fire appellant does refute the fact appellant Nor tions. that is seize evidence of arson may officials

Case Details

Case Name: United States v. Richard Colby Parr and Vincent Rendaro

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 19, 1983

Citation: 716 F.2d 796

Docket Number: 82-5336

Court Abbreviation: 11th Cir.