Whaley v. United States

• Decision Date: 12 November 1963
• Docket Number: No. 18678.,18678.
• Citation: 324 F.2d 356
• Parties: John William WHALEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 356 (1963)

John William WHALEY, Appellant, v. UNITED STATES of America, Appellee.

No. 18678.

United States Court of Appeals Ninth Circuit.

November 12, 1963.

Rock Zaitzow, San Diego, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Elmer Enstrom, Jr., and Richard Murphy, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before JERTBERG and KOELSCH, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

Appellant, John William Whaley, was engaged in repossessing for the seller or mortgagee automobiles and boats held by the purchaser or mortgagor in violation of the sale or mortgage contract.

He was charged in a one-count indictment under 18 U.S.C. § 912 with having in his work impersonated an agent of the F.B.I., to which charge he pleaded not guilty, was convicted in a jury trial and was sentenced by the Trial Court to three years imprisonment with execution of sentence suspended and probation for five years ordered.

The Trial Court under 18 U.S.C. § 3231 had, and this Court under 28 U.S.C. §§ 1291 and 1294 has, jurisdiction.

On this appeal, appellant's assigned errors in effect are: (1) That the evidence was insufficient to sustain the verdict; (2) That the Trial Court erred in admitting evidence of prior similar acts which were remote, incompetent and prejudicial; (3) That the Trial Court erred in giving to the jury erroneous instructions prejudicial to appellant; and (4) That the Trial Court erroneously imposed improperly restrictive conditions of probation upon appellant.

As shown by the record and appellee's brief, to support the charges of the indictment, appellee, United States of America, introduced in substance and effect the following evidence: That on March 13, 1962 appellant came to the door of the residence of witness Reedy in San Diego and asked if Mr. Durbin lived there; that upon being told by Reedy that Mr. Durbin was not there, appellant stated he was "a special investigator"; that Reedy then asked what appellant wanted and whether appellant had come to the Reedy home concerning the automobile of Reedy's father-in-law, John Durbin; that appellant stated he had not come regarding repossession of the car, but asked Reedy if he knew where he could contact Mr. Durbin; that Reedy told appellant he did not know where Mr. Durbin was, but that if he did know he would not tell appellant. Mr. Reedy then left the door, and his wife, Mrs. Reedy, then went to the door, and Mr. Reedy heard her tell the appellant to come in and that she would discuss the matter further, but would not guarantee that she would tell him anything; that the appellant then entered the Reedy home, and all three, the appellant and Mr. and Mrs. Reedy, sat in the front room. When appellant asked Mr. Reedy if he knew it was a federal crime to transport a car across a state line, Mr. Reedy replied that the seller knew that Durbin worked for the federal government; that appellant said that the seller from whom Durbin bought the car "had turned the matter over to us";

That, thereupon, Reedy asked appellant for his credentials; that appellant handed Reedy a leather folder in which he observed a gold badge, the details of which he did not remember, and a card of about 2½" × 3½" in which appellant's picture appeared in the lower left hand corner; that the card also had appellant's name, address, height and color of eyes typed in, and at the bottom of the card were the words "Federal Bureau of Investigation"; that the card appellant showed to Reedy on March 13, 1962 was not Exhibit 1, but was similar to it; that appellant asked Reedy if he and his wife knew they could get into trouble by withholding information; that while Reedy had in his hands the card shown him by appellant on March 13, 1962, Reedy told his wife that "the gentleman was from the FBI and that we might as well tell him, because regardless he was going to find out"; that in response to that statement, appellant said nothing; that Mrs. Reedy then took from her husband the folder presented by appellant, looked at it, returned it to appellant and then left the room and obtained a letter which had Mr. Durbin's post office box address on it which she then related to appellant; that when Reedy requested his wife to obtain that information for appellant, Reedy believed appellant was an FBI agent, and Reedy would not have requested or allowed this information to be given to appellant had he not had that belief.

Mrs. Reedy testified that she heard her husband, Mr. Reedy, say appellant was an FBI agent; that she then went and found a letter from her father, Mr. Durbin, having his address on it and gave it to appellant, and that she would not have given appellant that information if she had not believed he was an FBI agent, although she said she did not read the card and did not observe on it the words "Federal Bureau of Investigation", but that she took her husband's word for that. Mrs. Reedy also corroborated much of her husband's testimony.

There was in evidence at the close of appellee's case in chief, and is now in evidence, Exhibit 6 which is a letter dated March 13, 1962, from appellant to the United States National Bank, Eugene, Oregon, reporting to the bank the information obtained by appellant from the Reedys and enclosing an invoice, in evidence as Exhibit 7, for a $15.00 charge by appellant's employer, Pacific Coast Claims Adjusters, against the bank. Also in evidence as...