United States v. Banks

• Decision Date: 11 December 1972
• Docket Number: No. 71-2923.,71-2923.
• Citation: 465 F.2d 1235
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ted BANKS and Don Adams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 1235 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Ted BANKS and Don Adams, Defendants-Appellants.

No. 71-2923.

United States Court of Appeals, Fifth Circuit.

August 29, 1972.

Rehearing Denied October 4, 1972.

Certiorari Denied December 11, 1972.

COPYRIGHT MATERIAL OMITTED

William Barnett, of Hanlon & Barnett, Orlando, Fla. (Court Appointed), for Banks.

William L. Eagan, of Arnold, Matheny & Eagan, P. A., Orlando, Fla. (Court Appointed), for Adams.

John L. Briggs, U. S. Atty., Kendell W. Wherry, Asst. U. S. Atty., Orlando Fla., for plaintiff-appellee.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

Certiorari Denied December 11, 1972. See 93 S.Ct. 568.

COLEMAN, Circuit Judge:

Don Adams and Ted Banks appeal judgments of conviction entered against them in the United States District Court for the Middle District of Florida. The judgments are affirmed.

The prosecution was based upon an indictment in six counts.

Gurney Moody was also a defendant, but came away with a directed verdict of not guilty.

Adams and Banks were found guilty on every count in which they were named, hence this appeal.

The indictment may be summarized as follows:

Count I. Adams and Banks. Intent to defraud the United States by counterfeiting twenty dollar Federal Reserve notes, 18 U.S.C., § 471.¹

Count II. Banks and Moody. Possession and concealment of $5,000 of the twenty dollar bills, 18 U.S.C., §§ 2 and 472.²

Count III. Banks and Moody. Sale, transfer, and delivery of $5,000 in counterfeit twenty dollar Federal Reserve notes, 18 U.S.C., §§ 2 and 473.³

Count IV. Adams and Banks. The same offense as alleged in Count II, except the amount of counterfeit notes came to $83,000.

Count V. Adams and Banks. Sale, transfer, and delivery of the $83,000 in counterfeit.

Count VI. Adams, Banks and Moody. Conspiracy to sell, transfer, and deliver counterfeit obligations, 18 U.S.C., § 371, alleging seventeen overt acts in Brevard County, Florida, between February, 1971 and July 2, 1971.

Adams received three concurrent sentences of nine years each and a fourth concurrent sentence of five years.

Banks received five concurrent sentences of seven years each and a sixth concurrent sentence of five years.

Adams says that he is entitled to a reversal because he was improperly denied a severance, because the fruits of a search should have been suppressed, and because the trial court should have directed his acquittal.

Banks likewise attacks the validity of the search and further complains of the admission of certain testimony given by Ronald George. The final argument is that the proof did not support Banks' conviction under Count VI.

I The Facts

Adams, Banks, and Moody lived at Titusville, Florida. Ronald George was a participant in the alleged criminal activities but turned government witness, was granted immunity, and became the chief witness against the defendants.

In the latter part of October, 1970, Banks purchased an offset printing press and concomitant equipment from Buddy Young. George was with Banks at the initial meeting with Young, when Banks made a downpayment on the press, and at a second meeting when they picked up the press. Adams was also present when the press was picked up. Soon afterwards, the printing press was transferred to a partitioned section of the garage at Gurney Moody's residence. Adams, Banks, and George photographed and printed 15,000 sheets, each containing three twenty dollar Federal Reserve notes. The counterfeit notes were then taken to Merritt Island Wild Life Preserve, where they were buried.

George then testified that in the middle of February, 1971, after a conversation with Adams and Banks, it was agreed to sell the counterfeit notes. George arranged five different purchases. While not charged in the indictment the first three sales were admitted into evidence on the issue of entrapment, raised by defense counsel on cross examination. The proceeds of all sales were to be evenly divided between Adams, Banks, and George.

During the second week of February, 1971, the first sale of $50,000 counterfeit notes was made on credit. Shortly thereafter, a second sale of $60,000 counterfeit notes fell through when the buyer decided not to make the purchase. On March 30, 1971, George unwittingly made a sale to an agent of the United States Secret Service and was arrested. He thereafter "co-operated" with the officers. This sale was to be an exchange of $50,000 counterfeit for $5,000 genuine. The first three sales all occurred during the time period of February 1971 to July 2, 1971, which was the period stated in Count VI of the indictment covering the conspiracy.

A fourth sale of $5,000 counterfeit for $500 genuine arranged by George took place on June 17, 1971. This sale was made with the knowledge of the United States Secret Service. The purchaser was Agent Lightsey. Adams refused to participate in this sale, but, according to George's testimony, Adams willingly received his share of the proceeds of the sale.

On June 24, 1971, George, again acting on behalf of the Secret Service, told Adams and Banks that the buyer of June 17 was interested in a larger purchase. A plan was arranged whereby the counterfeit notes (approximately $83,000) were to be placed by Adams and Banks in the purchaser's car. Adams and Banks did not know it, but the purchaser was Agent Lightsey. Then, Adams and Banks were to notify George (who was waiting in a bar with the purchaser) that the money had been deposited in the car, left on a fishing pier. George was then to collect $10,000 from the purchaser. After notifying George, Adams and Banks were arrested within a few minutes, while sitting in a gray van, parked outside the bar. The package placed in Agent Lightsey's car was found to contain, as agreed upon, the $83,000 in counterfeit twenty dollar Federal Reserve notes. Later, these counterfeit notes were shown to be identical to the counterfeit notes received by Agent Lightsey on June 17.

Testimony by numerous Secret Service Agents corroborated George's testimony as to the plan of June 24. Agent Lightsey testified that he saw Banks notify George at the bar. Both Adams and Banks were positively identified by other Secret Service Agents as the persons who drove numerous times by the pier in a gray van. These agents further identified the gray van as having pulled alongside Agent Lightsey's car, whereupon Banks was observed getting out of the van, opening the right front door of Agent Lightsey's car, and leaning over into it. After Adams and Banks left in the gray van, the Secret Service Agents located the package which had been placed on the floor of Lightsey's car. Five minutes later, Agent Lightsey arrived, opened the package, and found the $83,000 in counterfeit twenty dollar Federal Reserve notes. An expert witness for the government identified sand from these counterfeit notes as being identical to sand found on a shovel in the gray van when Adams and Banks were arrested.

Adams testified that he drove Banks on the night of June 24 to both the place where the notes were buried and where Agent Lightsey's car was located on the pier.

On July 2, 1971, before a United States Magistrate, a Special Agent of the United States Secret Service, made an affidavit for a warrant to search the residence located at 3224 Virginia Drive, Titusville, Florida, belonging to Gurney Moody for an electrically operated offset printing press and related equipment used in the production of counterfeit $20.00 Federal Reserve notes.

As probable cause for the issuance of the warrant, the affidavit averred:

"John Wade Moody was arrested for possession of counterfeit money on May 21, 1971, and subsequently interviewed at which time he stated that he had gotten the counterfeit money from his brother, Guerney Moody, who told John Wade Moody that the printing plant for the counterfeits was in Titusville, Florida. Guerney Moody was arrested by Secret Service Agents from Cincinnati, Ohio, and charged with violation of Federal law involving counterfeit obligations of the United States.

"Investigation has determined that Guerney Moody was living at 3224 Virginia Drive, Titusville, Brevard County, Florida, prior to May 21, 1971, and has continuously resided there up to and including the date of this Affidavit. Investigation by the Secret Service has developed that additional electric service wiring has been installed in the garage of the aforesaid premises, said additional wiring being suitable for the operation of printing equipment.

"In the last 90 days the United States Secret Service has seized approximately $150,000 worth of counterfeit obligations in Brevard County, Florida, which are identical to those counterfeit obligations seized from John Wade Moody in Ohio, and it is believed that said counterfeit obligations were manufactured with equipment at the aforesaid premises on Virginia Drive, Titusville, Florida."

The warrant was issued and served. The search produced the offset printing press and associated equipment.

As already stated, the appellants vigorously attack the validity of the warrant.

II The Law

We are of the opinion that Adams had no standing as an aggrieved person under Federal Rules of Criminal Procedure 41(e) to challenge the search and the evidence gathered, since he did not have sufficient proprietary interest in the premises or possessory interest in the seized property, Lurie v. Oberhauser, 9 Cir., 1970, 431 F.2d 330, 333; United States v. Goad, 10 Cir., 1970, 426 F.2d 86; United States v. Graham, 6 Cir., 1968, 391 F.2d 439, cert. denied 393 U.S. 941, 89 S.Ct. 307, 21 L.Ed.2d 278; Richardson v. United States, 5 Cir., 1966, 360 F.2d 366; United States v. Wolfson, D.C.Del., 1969, 299 F.Supp. 1246; cf. Mancusi v. De Forte, 392 U.S. 364, 367-368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). Adams did not purchase the printing press, did not own the premises where the search was conducted, and was not present...