United States v. Plata

• Decision Date: 08 July 1966
• Docket Number: No. 15172.,15172.
• Citation: 361 F.2d 958
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virgil O. PLATA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.2d 958 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Virgil O. PLATA, Defendant-Appellant.

No. 15172.

United States Court of Appeals Seventh Circuit.

May 31, 1966.

Rehearing Denied July 8, 1966.

Charles A. Bellows, Sherman C. Magidson, Chicago, Ill., Attorneys for Virgil O. Plata, defendant-appellant.

Jason Ernest Bellows, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Paul E. Plunkett, Chicago, Ill., for appellee, John Peter Lulinski, Lawrence Jay Weiner, Asst. U. S. Attys., of counsel.

Before HASTINGS, Chief Judge, and KILEY and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Appellant, Virgil O. Plata, was tried by a jury and found guilty on four counts of an indictment. Count 1 charged that he had in his possession certain plates bearing the impression of a $5.00 Federal Reserve Note with intent to use them in forging and counterfeiting $5.00 Federal Reserve Notes; Count 2, that he made counterfeit $5.00 Federal Reserve Notes; Count 3, that he had in his possession counterfeit Federal Reserve Notes, and Count 5, that he, Francis Hudson and Donald Reidelberger conspired to commit the offenses of making, forging and passing counterfeit Federal Reserve Notes and had unlawfully in their possession plates in the similitude of those from which had been printed the Federal Reserve Notes described in the indictment.

Motions for judgments of acquittal were appropriately made and denied. Defendant's motion for new trial and that in arrest of judgment were overruled by the Court, and defendant was sentenced to the custody of the Attorney General for a term of eight years, under Title 18 U.S.C.A. Sec. 4208(a) (2). From the judgment thus entered the appeal comes to this Court.

Other than the contention that the proof was not sufficient to sustain the judgment, the errors urged as grounds for reversal all relate in one form or another to the claimed erroneous and prejudicial admission of evidence. These contentions embrace the following: (1) that defendant's place of business was searched by government agents without a search warrant, in violation of his constitutional right under the Fourth Amendment, and evidence obtained thereby erroneously admitted against him; (2) that an alleged incriminatory statement, obtained from defendant by a Secret Service agent while defendant was without the assistance of counsel, in violation of defendant's constitutional right under the Sixth Amendment, was improperly admitted against him; (3) that testimony of the witness Hudson concerning conversations and activities which took place between him and Reidelberger was erroneously admitted for the reason that the proof was not sufficient to show defendant had engaged in a conspiracy with those two parties; (4) that the Court erred in admitting proof of a felony conviction which took place eleven years prior to the return of the instant indictment, and (5) that the Court erred in permitting the government in rebuttal to introduce alleged prejudicial testimony which, if material, should have been introduced during its main presentation.

The issue as to the legality of the search of defendant's premises and the seizure of property found therein, subsequently admitted against him at the trial, was appropriately raised in advance of trial by defendant's petition to suppress. At a hearing thereon, the government sought to justify the search on the basis of a written consent signed by defendant. Defendant admits the signing of the consent but contends that he did so by reason of duress or coercion. Thus, the factual issue before the Court was whether the consent was voluntary, as asserted by the government, or involuntary, as claimed by defendant.

We think a brief statement of the evidence heard at the hearing on the motion to suppress will suffice. On July 22, 1963, at approximately 11:45 a. m., defendant was arrested by Secret Service agents at the McCaw Printing Company, a printing establishment in which defendant and James Cronk were partners. He was taken to the office of John Hanley, Chief of the Secret Service, in the Federal Court Building in Chicago, where he was interrogated by Hanley and other agents. He was told that he was under arrest for counterfeiting and that any statement made could be used against him. Hanley asked defendant if he would submit to a polygraph, to which he responded that he wanted to cooperate but that he would like to talk to a lawyer. Hanley attempted on two occasions to telephone the lawyer suggested by defendant but was unable to reach him. Defendant was asked if he was willing to sign a consent to the search and thus save the time and trouble of obtaining a search warrant. He replied, "Yes, you can search my house, my car and everything." He then read and signed the written consent prepared by an agent. At the time, he admitted he had been advised of his constitutional rights.

At the time of signing, defendant had been held for less than two hours, during which he was photographed, fingerprinted, fed and questioned. There was no proof and it is not contended that during the period of the interrogation he was harassed, and there is no reasonable basis for an inference that he gave his consent because of coercion or intimidation. His own testimony shows that he gave his consent for personal reasons, with the expectation that a search of his premises would do him no harm. In response to the question, "What was the reason behind your signing that paper?" he answered, "The main reason was that I wanted to get back to the office. I wanted to get out of custody. I felt that no search of my premises would produce any evidence and that I was willing to sign the paper and wanted to get out at the office."

The Court in denying defendant's motion to suppress stated, "All of the circumstances in evidence here today, in my opinion, clearly point to the voluntary nature of the consent that this defendant has given. * * * I base my conclusion that it is entirely on the testimony of the defendant himself who appears in support of his own petition."

We agree with the conclusion of the Court that defendant voluntarily gave his consent to the search of his premises. It follows that his petition to suppress was properly denied and that the evidence obtained as a result of the search was not erroneously admitted.

Defendant's second ground urged for reversal relates to the alleged erroneous admission in evidence of a single statement made by defendant during the period he was under arrest. While in custody his person was searched by a special agent and numerous cards were found in his pocket. One card bore the notation, "Reidelberger, EA 7-7679." In response to the agent's inquiry as to who this person was, defendant said, "Friend and customer." It is pertinent to note that the petition to suppress heretofore...