United States v. Nix

• Decision Date: 13 November 1972
• Docket Number: No. 72-1323 Summary Calendar.,72-1323 Summary Calendar.
• Citation: 465 F.2d 90
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kirksey McCord NIX, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 90 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Kirksey McCord NIX, Jr., Defendant-Appellant.

No. 72-1323 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 1, 1972.

Certiorari Denied November 13, 1972.

COPYRIGHT MATERIAL OMITTED

Wayne Douglas Mancuso, Gretna, La. (Court-appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Harry R. Hull, Jr., Mary Williams Cazalas, Julian R. Murray, Jr., Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

Certiorari Denied November 13, 1972. See 93 S.Ct. 455.

AINSWORTH, Circuit Judge:

Kirksey McCord Nix, Jr. was charged in a two-count indictment alleging that (1) he acquired a firearm from a licensed dealer in firearms by knowingly and unlawfully furnishing and exhibiting a false, fictitious, and misrepresented identification which was likely to deceive the dealer with respect to the lawfulness of the sale of the firearm, in violation of 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a); and (2) with making a false statement which was likely to deceive a licensed dealer with respect to a material fact to the lawfulness of the sale and disposition of such firearms, in violation of 18 U.S.C. § 922(a)(6). Nix's first trial ended in a mistrial when the jury could not agree on a verdict. This case involves his subsequent retrial on which he was found guilty on both counts. He was sentenced to serve five years' imprisonment on Count I. Imposition of sentence on Count II was suspended and Nix was placed on supervised probation for a period of five years on Count II, the sentence to run consecutively with that imposed on Count I. We affirm.

On April 9, 1971, Nix purchased from Phillip C. Spedale, owner and a licensed firearms dealer of Crescent Gun and Repair Company, New Orleans, an M-1 carbine for $105.95 in cash. Spedale filled out Firearms Transaction Record Form 4473 provided by the United States Treasury Department and his own standard invoice form. He used information given to him by Nix and contained on a Louisiana chauffeur's license presented by Nix who represented himself as "Charles Tom Ward" and presented the chauffeur's license in that name as proof of identification. Nix signed the Form 4473 as "Charles Tom Ward." Spedale testified that Nix told him he had never been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. Accordingly, Spedale recorded this information on Form 4473. Spedale positively identified Nix as the individual who represented himself as Charles Tom Ward and who purchased the M-1 carbine in question. At the time the purchase was made, however, Nix had been convicted on a plea of guilty to the crime of attempted bribery in Georgia state courts, which conviction was punishable by imprisonment for a term in excess of one year. Taking the view of the evidence most favorable to the Government, there was substantial evidence on which the jury could have found Nix guilty on each count, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Nix first claims that the District Court erred in ordering him to give a handwriting exemplar, in permitting the United States Attorney to comment on his failure to comply with the Court's order in his closing arguments to the jury,¹ and in charging the jury that if it found beyond a reasonable doubt that Nix had in fact failed to comply with the Court's order, it might infer that the comparison of such samples of Nix's handwriting with the signature on Form 4473 would be unfavorable to the defendant and favorable to the Government.² Nix contends that the Fourth Amendment requirement of probable cause prohibits issuance of an order to compel handwriting samples absent a showing of probable cause. The Circuits are divided on the point.³ We agree with Chief Judge Friendly of the Second Circuit that "Handwriting and voice exemplars fall on the side of the line where no reasonable expectation of privacy exists," United States v. Doe, 2 Cir., 1972, 457 F.2d 895, 898, and consequently outside of the protection of the Fourth Amendment. Id. at 899. See also United States v. Doe, 2 Cir., 1968, 405 F.2d 436; United States v. Vignera, S.D.N.Y., 1969, 307 F.Supp. 136. Cf. United States v. McNeal, 5 Cir., 1972, 463 F.2d 1180. The rationale for this result is plain: "For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words of Lord Hardwicke) has a right to every man's evidence." 8 J. Wigmore, Evidence § 2192 at 70 (McNaughton rev. 1961).⁴

Even if the more restrictive standards intimated by the Seventh and Eighth Circuits cited in footnote 3 were applicable here, they were satisfied. The District Court held a hearing on the Government's motion to compel the handwriting exemplars. An Assistant United States Attorney explained to the Court that Nix had been identified as the individual who made a false statement on a Treasury Form No. 4473, used at the time of acquisition of a firearm; that he had not previously been convicted of a felony; that he so stated by signing the name Charles Tom Ward on the Form 4473. Nix had previously been indicted in this case by the Grand Jury, which charged that in connection with the acquisition of a firearm from a licensed dealer in firearms, Nix "did knowingly and unlawfully make a false and fictitious written statement on Department of Treasury Internal Revenue Service Form 4473 that among other things, he had not been convicted of a crime punishable by imprisonment for a term exceeding one year . . . ." when the contrary was true. The District Court noted that the Government's desire to obtain a handwriting specimen directly related to the substantive count with which the defendant was charged. The District Court's conclusion that there would be no invasion of Nix's Fourth Amendment rights under such circumstances is correct. The Court's charge to the jury and the prosecutor's comments to the jury on Nix's refusal to comply with the Court's order were not improper under the circumstances. See United States v. Doe, 2 Cir., 1968, 405 F.2d 436, 438. See also Higgins v. Wainwright, 5 Cir., 1970, 424 F.2d 177, cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); United States v. Parhms, 9 Cir., 1970, 424 F.2d 152, 154-155; People v. Hess, 1970, 10 Cal. App.3d 1071, 90 Cal.Rptr. 268, 43 A.L. R.3d 643.

Nix also argues that the District Court erred in denying his motion to suppress evidence seized during a search of an apartment at 4114 Encampment Street, New Orleans. The District Court held that Nix had no standing to contest the search and alternatively that the search was justified on the basis of consent. The M-1 carbine purchased by Nix was found at the Encampment address. On April 21, 1971, prior to Nix's indictment, agents of the Federal Bureau of Investigation sought to execute fugitive warrants against James Ratcliff Knight and Mike Falmaghetti, who were thought to be residing at the Encampment Street address. Knight was apprehended and arrested on the premises. After a brief interrogation of Knight, agents searched various rooms in the apartment and discovered an M-1 carbine in the room where Falmaghetti supposedly resided. The carbine was subsequently traced to Nix. The evidence showed that Nix had visited the apartment on only one occasion. The apartment was rented by John Fulford who paid half of the rent. Knight paid the other half of the rent. Fulford testified that Nix came over only one time to visit him, that Nix was not living there, but that he could have had access to the apartment as his place of residence if he wanted. Nix was not present at the time of the search and seizure in question. It is apparent that Nix had no right of control of the premises. Accordingly, the District Court's conclusion that Nix had no standing to object to the search was correct. See Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1967); United States v. Sanchez, 5 Cir., 1971, 449 F.2d 204; United States v. Kilgen, 5 Cir., 1971, 445 F.2d 287, 289.⁵

Thirdly, Nix contends that the District Court erred in refusing to continue the trial and to grant a change of venue because of extensive adverse publicity. The motion was filed on November 4, 1971, four days prior to the trial. In his motion, Nix alleged that he had received a large volume of radio, newspaper, and television publicity, that he was being put to trial for the third time in the same city within a period of five weeks,⁶ and that his trial in state court for murder had ended in a mistrial due to inability to select a jury because of pretrial publicity, ultimately resulting in a change of venue in the state court proceedings. The record contains numerous newspaper clippings relating to Nix's involvement in both state and federal courts and shows that Nix was a major news item in the New Orleans area. He received extensive coverage in the papers. He alleged similar exposure on radio and television stations.

The District Court denied Nix's motions without an evidentiary hearing. The Court had denied a similar motion filed by Nix prior to his first trial in federal court. The first trial resulted in a mistrial when the jury could not agree on a verdict. In denying the first motion the Trial Judge indicated that he would attempt to determine any impartiality resulting from the publicity at the time the jury was selected. The Court's ruling on Nix's subsequent motion for a change of venue of the second trial was in part predicated on the Court's earlier experience with the case. The Court stated that the basic reason for denying the motion was that the jurors came from all over the district, many from rural areas and many from local areas, who, experience had shown, did not read the newspapers or hear television. Noting that the only additional publicity...