U.S. v. Sink

• Citation: 586 F.2d 1041
• Decision Date: 22 December 1978
• Docket Number: No. 77-5317,77-5317
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Robert SINK and John Edward Grim, Jr., Defendants-Appellants. Fifth Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1041

586 F.2d 1041

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Robert SINK and John Edward Grim, Jr., Defendants-Appellants.

No. 77-5317.

United States Court of Appeals,

Fifth Circuit.

Dec. 22, 1978.

James M. Russ, Orlando, Fla. (Court-appointed), for Samuel Sink.

Harry L. Roen, Orlando, Fla. (Court-appointed), for John Grim.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Mark Horwitz, Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, THORNBERRY and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Samuel Robert Sink and John Edward Grim, Jr., were convicted by a jury on separate counts of illegal possession of and passing counterfeit obligations in violation of 18 U.S.C.A. § 472 and of conspiring to import counterfeit obligations in violation of 18 U.S.C.A. § 371. Grim and Sink both challenge the validity of the warrantless searches leading to their arrests as well as the sufficiency of the government's evidence on all counts. Additionally, Sink attacks the trial court's refusal to require production of the government agents' reports under the Jencks Act. 18 U.S.C.A. § 3500. We affirm.

The events surrounding defendants' searches were disclosed during a pretrial suppression hearing. On November 16, 1976, in the early afternoon, Secret Service Agents Connelly and Stebbins responded to a security officer's telephone call that suspected counterfeit $50 bills were being passed at a shopping mall in Orlando, Florida. The agents there arrested Michele Creedon, who was found to possess several counterfeit bills. Her companions, another woman and a man, were no longer at the mall, but police shortly apprehended and arrested the male, James Streeter, Jr., who subsequently admitted his involvement with Creedon and implicated Sharon Rhoden as the third counterfeiter operating at the shopping mall. The three were roommates in a local apartment. The agents received further information that Sharon Rhoden returned home that afternoon, then took a cab to Denny's Restaurant where she met and left with an older, well-dressed man with a mustache. They also learned that she had called Streeter's father several times, looking for his son. The elder Streeter did not reveal to her that his son had already been arrested, and Rhoden would not disclose to him her whereabouts.

That night Agents Connelly and Stebbins set up surveillance inside the main entrance to Big Daddy's Lounge, a bar Rhoden and Streeter frequented. Shortly after midnight they spotted her as she entered with a man fitting the description of her companion at Denny's, later identified as defendant Grim. ¹ The two walked around the three levels of the bar canvassing the people there, did not socialize or buy drinks, and left. The agents followed and observed them enter an Oldsmobile waiting out front with a driver, later identified as defendant Sink. The car was driven less than a mile north to the Ranch House Restaurant which all three entered. After about twenty minutes, they left with Grim driving, Sink occupying the passenger's seat, and Rhoden sitting alone in the back seat. The agents did not attempt to arrest Rhoden or to determine whether counterfeit bills had been passed at either stop. At this time the agents were joined by two plainclothes Orange County policemen driving separate cars. The three unmarked vehicles followed the Oldsmobile for several minutes as it elusively circled through a parking lot and the streets of a residential neighborhood. At one point the Oldsmobile turned from a thoroughfare onto a side street, which made a horseshoe loop and rejoined the thoroughfare. One of the county patrolmen proceeded to the far end of the loop while the other two vehicles followed the path of the Oldsmobile. As the officer entered the far end of the loop street, he passed the Oldsmobile making its exit and radioed to the following cars that it appeared the subjects in the Oldsmobile realized they were being followed. At this point it also became apparent that the Oldsmobile was rapidly picking up speed. When the first of the following cars arrived at the junction of the loop and the thoroughfare, he had lost visual contact with the Oldsmobile but guessed correctly as to the direction in which it had proceeded. After speeding up he regained sight of the subjects. Connelly, who had fallen behind, radioed a request to the local officials to overtake and stop the car to permit his arrest of Sharon Rhoden. The stop occurred at approximately 2 a. m.

When Connelly arrived at the place where the Oldsmobile had been pulled over, he ordered the three occupants out of the car and, while advising Rhoden that she was under arrest, conducted a pat-down search of the driver, Grim. He detected hard objects in Grim's pockets which he feared were cutting-type weapons and had Grim empty his pockets. Among other things, Grim displayed packets of currency, one bill of which Connelly recognized as counterfeit. ² On the basis of this evidence, Connelly arrested Grim. At the same time, Sink was emptying his pockets after a pat-down by another officer. ³ No counterfeit currency was found on Sink's person, but he was arrested for aiding and abetting the possession and passing of counterfeit currency.

The Oldsmobile was seized pursuant to 49 U.S.C.A. § 782 ⁴ and was inventoried prior to being towed to the Sheriff's department. The officers conducting the inventory observed in the trunk a shoulder bag containing a large sum of money. Fearful of destroying valuable evidence, they secured the vehicle until a subsequent search at the Sheriff's department revealed approximately $31,000 of counterfeit $50 and $100 Federal Reserve Notes in bags in the trunk. ⁵

The evidence presented during trial established that defendants Sink and Grim first met in July of 1976. Grim was a jewelry salesman from St. Petersburg and Sink's business related to Auto Care Centers. The two flew from Sink's West Virginia home to Orlando on November 10, 1976, where they met Sink's friends, Sharon Rhoden and Walter Patrick Branche. ⁶ The next day Rhoden and Branche flew to Bogota, South America, at Sink's invitation, and were joined by Sink and Grim on November 12. On Saturday, November 13, after doing some sightseeing on her own, Rhoden returned to their hotel suite and found Sink, Grim, and Branche talking to a bell captain about jewelry, jewelry shops, and jewelry salesmen. Rhoden testified that another Colombian, Alberto Montealegre, whom Sink and Grim had met on the airplane to Bogota, soon arrived, dropped off maps of South America, and arranged to return the next evening to show Sink and Grim the town.

Montealegre testified that in fact he visited Sink, Grim, Branche, and Rhoden in their suite on Sunday morning and unexpectedly acted as an interpreter for Sink and Grim in a transaction with a Spaniard named Rodriquez-Mendez. Montealegre ascertained that Grim was attempting to sell diamonds to Rodriguez, which Rodriquez eventually purchased for $33,000 in American money. In a separate purchase, Grim paid Rodriguez from $550 to $10,000 for emeralds. Grim explained at trial that Sink was going to introduce him to emerald salesmen for a certain fee. He added that he had carried approximately 21 one-carat diamonds and $2000 in United States currency to purchase emeralds. Rhoden testified that she and Grim had left the suite that Sunday morning to go shopping, that they returned, but that she left again, leaving Grim alone in the room. According to her testimony, when she returned one and a half hours later, Grim, Sink, and Branche were in the living room with a pile of American currency. She further testified that she questioned whether Sink had sold any jewelry, to which he responded "no," adding that he and Grim "had just made it." While Sink and Grim began carrying the money into the bedroom, Rhoden slipped about $2500 into her purse without anyone's knowledge. She testified to later seeing the currency in Sink's briefcase, but Grim said the money was in his possession at all times.

The next morning, Monday, November 15, Rhoden and Branche flew to Miami, waited for Sink and Grim who took a later flight, then went on to Rhoden's apartment in Orlando. Once there, she showed her roommates Streeter and Creedon the money she had taken, and divided it with them the next morning before their trip to the shopping mall. Sink and Grim stayed in Miami overnight before flying to Orlando. When they entered the country, both Sink and Grim individually responded to a customs declaration that neither he nor any member of his party was transporting more than 5,000 United States dollars in cash.

Sink rented a car upon their arrival in Orlando, and they made three stops within a two-mile stretch on their way to their hotel. They first stopped at a Tenneco station where Grim was identified as the purchaser of a carton of cigarettes and a box of facial tissues. The items were paid for with a counterfeit $50 bill. The two next stopped at a Majik Market where one of them went inside for two more cartons of cigarettes and a pack of chewing gum. The cashier identified Sink as the man who made the $6.00 purchase with a counterfeit $50 bill, although Grim testified that he himself was the purchaser in this instance. Finally, they stopped at another Tenneco station, this time to purchase $10.00 worth of gasoline with $50 taken from a "wad" of $50 and $100 bills in his right-hand pocket and placed the change in his left-hand pocket.

When they arrived at their hotel, Sink arranged to meet Rhoden at a Denny's Restaurant where she expressed concern about her friends' disappearance from the shopping mall. Sink related the matter to Grim, who was waiting outside Denny's; they made a few phone calls looking for Streeter, then dropped Rhoden off at home. Before the...