United States v. Berryhill

• Decision Date: 03 August 1971
• Docket Number: No. 26246.,26246.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond J. BERRYHILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 1189 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Raymond J. BERRYHILL, Defendant-Appellant.

No. 26246.

United States Court of Appeals, Ninth Circuit.

August 3, 1971.

Arthur Mabry (argued), Los Angeles, Cal., for defendant-appellant.

Robert L. Meyer, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty. (appeared), David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Before CARTER and HUFSTEDLER, Circuit Judges, and THOMPSON,^* District Judge.

THOMPSON, District Judge:

Defendant Berryhill was convicted in a court trial of three counts of a thirteen count indictment, Counts III, VI and XIII. He was sentenced to five years under Count III. Concurrent five year sentences were imposed under Counts VI and XIII, ordered to run consecutively with the Count III sentence but with execution suspended and probation for five years.

Count III charged defendant with the unlawful possession on February 16, 1967,¹ in Los Angeles County of the contents of a letter stolen from the mail which had been mailed by one Kenje Kawa in a collection box at Shenandoah and Reynier Streets, Los Angeles, California, defendant knowing that the contents of the letter had been stolen.

Defendant contends that the evidence was insufficient to support the conviction; specifically that there was inadequate proof of mailing and that the contents of the letter had been stolen from the mail.

Mr. Kawa testified that on February 14, 1967, he was paying bills and wrote fourteen checks which were placed in sealed, stamped envelopes addressed to the respective creditors. He used a date stamp on the checks. He inadvertently tore an extra blank check form (Ex. 1) from his check book and placed it in one of the envelopes. He didn't know which one. Kawa deposited the letters in a collection box at the corner of Reynier and Shenandoah Streets in Los Angeles.

At approximately the same time, the exact date is uncertain, a sealed letter containing a check drawn on the Westchester Branch of the Bank of America by one Edythe A. Karon to the Regents, University of California, was deposited in the same mail box. This check ultimately was received by the addressee.

On February 16, 1967, a co-defendant of Berryhill, one Carol Nutter, presented Kawa's check form at the Westchester Branch of the Bank of America. The check form had been filled out to direct the payment to Edythe A. Karon of the sum of $300. It bore the purported, but forged, signature of Kenji Kawa, as maker, and the purported, but forged, endorsement of Edythe A. Karon, as payee. Carol Nutter posed as Edythe Karon in presenting the check. When the teller left the service counter to verify the endorsement, Nutter, a white woman, hurried from the bank and entered a car driven by a black man. Defendant is a Negro. A bystander recorded the license number, which identified a vehicle commonly used by defendant. Identifiable fingerprints of defendant and Nutter were found on the forged Kawa-Karon check left with the teller. Defendant was proved to be a person who had access to master keys for street-corner mail boxes which had been stolen in an earlier post office burglary.

Kawa testified that he had inadvertently torn off a blank check form on February 14, and identified the forged Kawa-Karon check (Ex. 1) as his regular check form and also by the date stamp which he had placed on it. Other evidence proved defendant's connection with other thefts of mail, at about the same time, from other street-corner mail boxes. (See summary of evidence pertaining to Counts VI and XIII, infra.)

The evidence recited is adequate, in our opinion, to persuade a reasonable person that Kawa did, in fact, inadvertently mail the blank check form in one of the fourteen envelopes, that a theft from the street-corner mail box occurred, and that defendant engineered a sophisticated plan to use the fruits of the theft to swindle the bank by a forged instrument, covering his tracks by redepositing for mail delivery the genuine Kawa and Karon checks after they had served his purposes as exemplars for forgery. Defendant's fingerprint and other circumstances affirmed defendant's possession of the document recently after mailing and invoked the inference of knowledge of its stolen character. Cotton v. United States, 409 F.2d 1049 (10th Cir. 1969); Cf. United States v. Birnstihl, 414 F.2d 368 (9th Cir. 1971). "The evidence, considered most favorably to the government was such as to permit a rational conclusion by the jury (court) that the accused was guilty beyond a reasonable doubt." United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969).

The attack on the convictions under Counts VI and XIII of the indictment rests upon an allegedly illegal search and seizure. The evidence showed that on March 11, 1967, Mrs. Dorothy Fineman mailed a check to the California Franchise Tax Board (Count VI) in the mail box at the corner of Plymouth and Melrose Streets, and witnesses testified that on or about March 19, 1967, they had variously deposited for mailing ten other pieces of mail in mail boxes located at Jefferson and Cypress Streets, Overcrest and Northridge Streets, Northridge and Verdun Streets, and Sixth Avenue and Jefferson Streets.

On March 20, 1967, these same pieces of mail were found in the possession of Mrs. Clarice Berryhill, defendant's wife, under the following circumstances. The postal inspectors had obtained a warrant for the arrest of defendant for the Kawa check theft and were looking for him. The arresting officers had knowledge of defendant's prior arrest history, including information that he usually had weapons close to him. Defendant and his wife, the former driving, the latter a front-seat passenger, were located in an automobile and were stopped to effectuate the arrest at a busy intersection. The arrest was made with drawn pistols covering both occupants of the car, defendant was required to disembark and spread-eagle against the car where he was searched for weapons, handcuffed and taken to the officer's car by Inspector Loffler. Inspector Michaelson observed that Mrs. Berryhill was clutching a handbag with a paper sack protruding from the top. The paper sack was too small for its contents and in the top of the sack, the officer saw what appeared to be several envelopes. Michaelson, covering Mrs. Berryhill with his firearm, searched the handbag for weapons and found the mail matter which is the subject of Counts VI and XIII. On interrogation, defendant said, "Look here, officer, the mail in her purse is mine. I told her to put it in there and she does what I say because she is my wife."

Defendant relied upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in objecting to the search as too extensive under the circumstances and thus illegal. While Chimel is not retroactive (Williams v. United States, 401 U. S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, April 5, 1971) and is inapplicable here, we nevertheless see but slight relevancy of its principles to this situation. Chimel contains dicta affirming Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and its progeny (395 U.S. at 764, 89 S. Ct. 2034, 23 L.Ed.2d 685). The holding of the case relates to the scope of a valid search after a lawful arrest in defendant's home, apartment or dwelling. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, June 21, 1971. In our view this case more properly concerns the applicability of the law governing automobile searches incident to a lawful arrest and the reasonableness of a limited search of other occupants of the...