Fisher v. United States

• Decision Date: 14 January 1964
• Docket Number: No. 17040,17045.,17040
• Citation: 324 F.2d 775
• Parties: Walter E. FISHER, Appellant, v. UNITED STATES of America, Appellee. Joseph E. LINDQUIST, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

324 F.2d 775 (1963)

Walter E. FISHER, Appellant, v. UNITED STATES of America, Appellee.

Joseph E. LINDQUIST, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17040, 17045.

United States Court of Appeals Eighth Circuit.

December 2, 1963.

Rehearing Denied January 14, 1964.

John S. Connolly, Court appointed attorney, St. Paul, Minn., made argument and submitted typewritten briefs for the appellants.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument for the appellee and Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with him on the brief.

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and GIBSON, District Judge.

GIBSON, District Judge.

These appeals are from convictions of conspiracy to commit mail fraud entered against Walter E. Fisher and Joseph E. Lindquist in the United States District Court for the District of Minnesota. The convictions were entered pursuant to an indictment returned by the Grand Jury which alleged a violation of § 371, Title 18, U.S.C. charging that appellants conspired to commit mail fraud in violation of § 1341, Title 18, U.S.C.

The facts out of which the convictions arose are these. Frank J. Mee, who was convicted with the appellants and whose conviction was affirmed by this Court in Mee v. United States, 316 F.2d 467 (8th Cir. 1963), was the owner of a quonset hut in Anoka County, Minnesota. Mee took out a theft insurance policy on the contents of the quonset from Wolfgram Insurance Agency on or about November 4, 1958. The insurance carrier was the Ohio Casualty Company.

Two or three weeks later appellant Joseph E. Lindquist went to the Wolfgram Agency and took out a theft insurance policy covering such contents of the quonset hut as belonged to him. Lindquist at the time was renting the quonset from Frank Mee. The insurer on this policy was Iowa National Insurance Company.

On September 6, 1958, appellant Lindquist borrowed $150 from the Royal Finance Company in St. Paul, Minnesota, and the check for this loan was made out to appellant Walter E. Fisher.

On January 9, 1959, Officer Lundberg, a patrolman for the Anoka County Sheriff's Office, investigated a burglary at the quonset hut owned by Frank Mee. In the course of the investigation he spoke to appellant Lindquist who reported that several items had been stolen.

Claims of loss were made by Mee and appellant Lindquist for the items which allegedly were stolen, and these loss claims were sent through the mails to the insurance companies involved. Mee's claim was paid in the amount of $845.50, and Lindquist's claim was settled for $750.00.

On November 5, 1959, appellant Lindquist gave a statement to postal authorities which stated that the burglary was a fake, and that the burglary was committed by appellant Walter E. Fisher in furtherance of a scheme whereby Mee and Lindquist were to collect from their insurance companies on the fake burglary.

On November 10, 1959, Frank J. Mee gave a statement to postal authorities which stated that the burglary was a sham, and was done in order to collect on insurance, but that Mee did not know who had committed the burglary.

On December 8, 1959, postal inspectors Turner and Sable called at the home of appellant Walter E. Fisher, and requested Fisher to accompany them downtown. Fisher complied and they proceeded to the Post Office Building in St. Paul. After about an hour and a half the inspectors took Fisher to lunch, and then took him back to the Post Office. The subject matter of the conversation between Fisher and the inspectors was the alleged burglary of the quonset hut. After about three hours had elapsed since Fisher had left his home, but prior to having made any statement, Fisher was first informed that he had a right to have counsel present. It does not appear that Fisher was told that he was free to leave. After being informed of his right to counsel, Fisher made a statement. This statement set out that Fisher committed the fake burglary, and that he understood that insurance claims were to be made for the items alleged to have been taken. The statement also sets out that appellant Lindquist had taken out a loan for Fisher for $150 in September of 1958, and that after the burglary Fisher was told that he need not pay back the loan.

On December 15, 1959, patrolman Lundberg, with postal inspectors Turner and Sable, went to the quonset hut without a warrant. They received permission to search from the tenant and dug under a trash pit there. In the course of their diggings they discovered many of the items which were reported on the claims of loss of Mee and Lindquist. Testimony was to the effect that these items seemed to be wrapped in vinyl plastic, however the items were not introduced into evidence.

On September 18, 1961, arraignment was held, and appellants Fisher and Lindquist, along with Frank J. Mee, all entered a plea of not guilty to the charge of conspiracy to commit mail fraud.

On October 13, 1961, appellant Lindquist, who at that time was represented by employed counsel, made a statement at St. Paul, which substantially was the same as the one he had made earlier. Appellant Lindquist's counsel was not present at the time the statement was given, although it appears that Lindquist was informed of his right to have counsel present.

Prior to trial, appellant Fisher made a motion for a separate trial which was denied. Both appellants made motions for directed verdicts which were also denied. In the course of the trial Postal Inspector Sable was allegedy seen leaving the Courtroom in close proximity to one of the jurors, and it was alleged that he had his arm on the juror's shoulder and that he had a conversation with the juror. This incident was called to the attention of the trial judge by the prosecutor, and Postal Inspector Sable vigorously denied having had any conversation with a juror. At the trial, both Mee and Fisher testified, but Lindquist did not take the stand. The jury returned a verdict of guilty and sentence was imposed on February 2, 1962. Appellant Fisher received a sentence of one year and one day in confinement, Mee received the same sentence, and appellant Lindquist received a sentence of two years, with two months in confinement and the balance of the sentence suspended.

Appellant Fisher has raised seven points which he urges for reversal, and appellant Lindquist has raised four points. The points raised by Lindquist are the same as those raised by Fisher and they will be considered together for the purpose of this opinion.

The first point raised is that the statement given by appellant Fisher was the product of an illegal search and seizure. Fisher bases this allegation of error on the doctrine laid down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and subsequent cases, particularly Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). Apellant Fisher's position is that when he gave his statement to the postal inspectors he was under arrest, and that the arrest was an illegal arrest, since the inspectors had no warrant nor was there probable cause for his arrest. The Court does not quarrel with the premise that if the arrest were illegal then the statement would have been inadmissible under the fruit of the poisoned tree doctrine, however, the Court is not convinced that Fisher was under arrest at the time he made the statement. From the testimony adduced at the trial (Tr. 365, 479, 774) it would appear that Fisher went along voluntarily, and that he was free to leave at any time. "To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained." Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947), cited in Brinegar v. United States, 165 F.2d 512 (10th Cir. 1947), affirmed 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, rehearing denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513. The Court is therefore of the opinion that at the time Fisher made the statement that he was not under arrest, and that therefore the statement was not taken in violation of any Constitutional guarantees.

Fisher's second allegation of error is that even if the statement was not illegally obtained, still it was inadmissible because it was never sufficiently corroborated. Before discussing the sufficiency of the corroboration there seems to be some dispute as to whether or not Fisher's statement constituted a confession or an admission.

"A confession is an acknowledgement in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt." 2 Wharton Criminal Evidence, § 337 (12th Edition.)

In the present case Fisher's statement does not fall easily into either category, but it would seem to be of little import whether the statement is treated as an admission or a confession. The statement sets out essentially (a) that Fisher knew that the fake burglary was part of a scheme whereby Mee and Lindquist were to make false insurance claims, (b) that Fisher committed the fake burglary, (c) the date of the burglary and a description of the damage to the quonset and contents, and (d) that Fisher received $50 for committing the burglary as well as being relieved of the obligation of paying back a loan of $150 procured for him by Lindquist. If the statement is treated as an admission, then it is necessary that it be connected with other facts to prove the guilt of the defendant. In the case at bar there is proof that both Mee and Lindquist took out insurance policies on the contents of the quonset, that a burglary was staged, that claims of loss were made, that the claims were paid, and that the mails were employed in the collection of the fraudulent claims. These items...