343 F.2d 539 (5th Cir. 1965), 20727, Smith v. United States

Docket Nº:20727.
Citation:343 F.2d 539
Party Name:Robert Thomas SMITH, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 26, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 539

343 F.2d 539 (5th Cir. 1965)

Robert Thomas SMITH, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20727.

United States Court of Appeals, Fifth Circuit.

February 26, 1965

Rehearings Denied April 2, 1965.

Page 540

Tully R. Florey, III, Mount Pleasant, Tex., J. M. Donald, Jacksboro, Tex., for appellant.

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Charles D. Cabaniss, Asst. U.S. Atty., William L. Hughes, Jr., Asst. U.S. Atty., Fort Worth, Tex., Barefoot Sanders, U.S. Atty., B. H. Timmins, Jr., Asst. U.S. Atty., Wadsworth, for appellee.

Before BROWN and WISDOM, Circuit Judges, and ESTES, District Judge.

WISDOM, Circuit Judge:

Robert T. Smith and two other defendants, Welch and Henderson, in a multi-count indictment, were charged with stealing social security checks from the United States mail, possessing material stolen from the United States mail knowing it to have been stolen, forging the payees' endorsements, and passing the forged instruments with intent to defraud the United States. The payees lived at the Gilmore Hotel in Fort Worth, Texas. They failed to receive their social security checks for the month of October 1962. The chief evidence linking Smith to the crime was the testimony of his co-defendants, Welch and Henderson, who pleaded guilty and testified for the prosecution. Smith pleaded not guilty. Welch testified that he stole the checks from the Gilmore Hotel mailbox, showed them to Smith, told him that they were stolen, and that Smith forged some or all of the endorsements on the checks. Welch and Henderson then 'uttered' the checks and shared the proceeds with Smith. Smith was convicted of possessing stolen mail, in violation of 18 U.S.C. § 1708, and convicted of forging endorsements on social security checks with intent to obtain money from the United States, in violation of 18 U.S.C. § 495. We affirm.

I.

Smith was represented on this appeal by an able court-appointed attorney, Mr. Tully R. Florey, who has briefed and argued the case as thoroughly and as strongly as could be wished for by any appellant. In addition, Mr. J. M. Donald, a 'friend of the family', a local attorney who was not in the United States at the time of Smith's arrest or trial has, as 'a friend of the court', filed a brief and several affidavits in Smith's behalf. The Court permitted Mr. Donald to file his brief and affidavits and to make oral argument.

The Court considers it unnecessary to discuss in this opinion all of the questions the appellant's appointed counsel and the amicus have raised. We have, however, carefully considered all of the questions counsel have properly raised.

The Court must decline to consider the merits of issues based on new evidence furnished for the first time on appeal in the form of affidavits presented by the amicus. For example, relying on Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the amicus contends that police officers interrogating Smith refused to let him see a lawyer until he confessed. Sitting as a reviewing court, the Court of Appeals cannot go behind the record. Roberts v. United States, 5 Cir. 1963, 325 F.2d 290; United States v. Chesapeake & Ohio Ry. Co., 4 Cir. 1960, 281 F.2d 698; cf. Chicago & Eastern Illinois R. Co. v. Southern Ry. Co., 7 Cir. 1958, 261 F.2d 394, 402; Drake v. General Finance Corporation of Louisiana, Inc., 5 Cir. 1941, 119 F.2d 588. Nor can the Court consider the new factual material included in the brief of the amicus. Chesapeake & Ohio Ry. Co. v. Greenup County, Kentucky, 6 Cir. 1949, 175 F.2d 169. However, our decision not to consider the questions raised by the affidavits is without prejudice to the appellant's right to raise these questions in collateral proceedings. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

The amicus points out that the trial judge admitted certain hearsay evidence. We assume, without deciding, that some of the testimony of the postal inspector, the secret service agent, and the manager of the hotel was hearsay. The defendant's trial attorney did not object to the admission of this evidence. Smith does not complain that the failure to object was attributable to the attorney's inexperience or incompetence. See

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Waltz, 'Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases,' 59 N.W.U.L.Rev. 289, 319ff (1964). If there is no timely objection to hearsay, the jury may consider it for whatever probative value it may have. Newsom v. United States, 5 Cir. 1964, 335 F.2d 237. The courts, however, may still reverse a conviction based on hearsay evidence if there has been a plain error affecting substantial rights of the accused. Federal Rules of Criminal Procedure, Rule 52(b); Glenn v. United States, 6 Cir. 1959, 271 F.2d 880. Here there was no plain error affecting the substantial rights of the appellant. Even if we exclude all possible hearsay, we are left with the testimony of Welch, corroborated by Henderson's testimony and the testimony of the payees of the checks; this was sufficient evidence to justify the verdict.

II.

We deal in this case with substantive federal crimes of great antiquity. 1 Originally the prevention of these crimes served the needs of a postal system, the most serious problems of which were the depredations of highwaymen. The anonymity of the modern postal system creates new problems of proof. Congress has helped in some respects with wise amendments of the statutes; 2 judicial appraisal of the realities of delivering and receiving mail in a modern urban...

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