U.S. v. Goudy, s. 85-1646
| Decision Date | 06 June 1986 |
| Docket Number | 85-1647,Nos. 85-1646,s. 85-1646 |
| Citation | 792 F.2d 664 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David GOUDY and Cynthia King, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joshua Sachs, Philip Krasay, Chicago, Ill., for defendants-appellants.
Ruben Castillo, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before WOOD, Circuit Judge, ESCHBACH, Senior Circuit Judge, and CAMPBELL, Senior District Judge. *
Defendants King and Goudy were convicted of various offenses in connection with an elaborate check-kiting conspiracy which defrauded several banks in the Chicago area. Both defendants claim that numerous errors warrant reversal of their convictions. We affirm.
Defendant Goudy masterminded this scheme which operated from 1979 to 1981. Goudy studied bank procedures, particularly check-clearing timetables and interstate banking procedures, to learn how long it takes for a check deposited in one bank to be cleared through another bank. Having recruited people such as codefendant King to join the conspiracy, Goudy travelled from state to state with other coconspirators and opened bank accounts across the country. Back in Chicago, the conspirators opened bank accounts with a small cash deposit, deposited checks drawn on fictitious accounts at banks in other states, and then made large withdrawals from the local accounts before the bad out-of-state checks were returned.
Goudy and King were tried together. The evidence of the conspiracy came primarily from the testimony of conspirators who had pled guilty and testified pursuant to plea agreements. Bank officials and tellers who had dealings with the defendants testified about specific transactions alleged in the indictment. After a five-day trial, the jury found both defendants guilty on all counts. Both defendants appeal and raise several claims of error.
King was convicted of one count of conspiracy to commit bank larceny in violation of 18 U.S.C. Sec. 2113(b), two counts of causing a falsely made security to be transported in interstate commerce in violation of 18 U.S.C. Sec. 2314, and one count of entering a bank with intent to commit a felony in violation of 18 U.S.C. Sec. 2113(a). King was sentenced to six months in prison, probation for five years, and ordered to make restitution of $3,000.
King argues that the trial judge erred in refusing to hold an evidentiary hearing to determine whether a security guard for the First National Bank of Chicago was acting as an agent of the police in arresting King in December 1980. King claims that the lack of an evidentiary hearing prevented her from challenging certain unspecified "tacit admissions" apparently obtained from King by the security guard and used by the government at trial. King asserts that her motion to suppress pursuant to Fed.R.Crim.P. 41(e) 1 clearly and specifically alleged facts challenging both the existence of probable cause for the arrest and the government's claim that the security guard acted as a private citizen in making the arrest.
Nechy v. United States (In re Searches and Seizures Conducted on October 2, and 3, 1980), 665 F.2d 775, 776 (7th Cir.1981). King asserts that her motion to suppress clearly sets forth facts showing that the bank security guard acted as an agent for the police and unlawfully arrested her. King claims that the guard's report disputes the government's claim that the guard acted as a private citizen. She also argues that subpoenaed police bulletins raise a probable cause issue by refuting the security guard's statement that King was the subject of a fraud bulletin.
The government, however, contends that the guard acted solely as an agent of the bank in detaining, questioning, and searching King. The government asserts that the security guard's report clearly establishes that bank personnel contacted the police after the bank guard detained King. The government argues that the only cooperation between the guard and the police occurred when the guard, acting as the bank's agent, signed a complaint against King after the police arrived. The government therefore concludes that King's motion did not allege any specific facts showing that the guard acted as an agent of the police in detaining King.
The only material fact necessary to the decision of King's suppression motion was whether the bank security guard was acting as an agent for the police when the guard detained King. The guard's report clearly supports the government's contentions. The defendant has failed to establish the existence of material disputed facts, and the district court therefore was not required to hold an evidentiary hearing.
King next claims error in the district court's denial of her motion to quash her arrest on February 17, 1981, outside Damen Savings and Loan ("Damen") in Schaumburg, Illinois, and to suppress evidence obtained as a result of that arrest. King contends that the police officer did not have probable cause to detain or arrest King when he encountered her in the bank parking lot and that the subsequent search of her purse was therefore illegal.
After an evidentiary hearing, the district court found that the arresting officer had expertise in financial crimes and that the information provided him was reasonably trustworthy. The trial judge also found that the arresting officer had conducted prior investigations of check-kiting schemes which "closely paralleled" King's checking account transactions. The trial court concluded that Detective Fries had probable cause to arrest King and therefore denied the motion to quash the arrest.
On review, we will not overturn the district court's findings unless they are clearly erroneous, as the trial judge has had the opportunity to assess the credibility of the witnesses at the evidentiary hearing. United States v. Covelli, 738 F.2d 847, 853 (7th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984). The Covelli court set out the standard for a trial court's probable cause determination:
The police have probable cause to arrest an individual where "the facts and circumstances within their knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Jones, 696 F.2d 479, 486 (7th Cir.1982), cert. denied, , 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). The determination of whether probable cause exists in a given situation involves "the factual, practical considerations of everyday life upon which reasonable, prudent [persons], not legal technicians act." United States v. Watson, 587 F.2d 365, 368 (7th Cir.1978), cert. denied, Davis v. United States, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979).
Detective Fries arrested King in Damen's parking lot on the strength of information received from Jerry Gartner, Damen's branch manager, in a telephone conversation. Gartner told Fries that: (1) a woman named Cynthia King had opened an account at Damen on February 6, 1981, with a $20 cash deposit; (2) after the account was opened, a $6,800 check drawn on a bank in Cleveland, Ohio, was deposited into the account; (3) the $6,800 check was a starter check from the Ohio bank and was dated February 9, 1981; (4) the $6,800 check was not honored by the Cleveland bank; (5) Gartner had recently received information from the Cleveland bank that the bank account was opened with fictitious identification; and (6) Cynthia King was presently at Damen picking up printed checks for her account. Gartner also gave Fries a physical description of King. When Fries and another detective arrived at Damen, approximately ten minutes after speaking with Gartner, he saw a woman matching Gartner's physical description of King leaving the building. After King identified herself, Fries told her to wait with the other detective while Fries went inside to confirm the facts with Gartner.
Reviewing this information with the principles governing a trial court's probable cause determination in mind, we are satisfied that the trial judge did not abuse his discretion in finding that Detective Fries had probable cause to arrest King.
King's final objection is to the juxtaposition of instructions on accountability, joint venture, and conspiracy without an additional clarifying instruction. King does not dispute that each instruction given accurately summarizes the law. She instead argues that these instructions, given back-to-back without a clarifying instruction, confused and misled the jury into concluding that they could find King guilty of conspiracy without first finding that she had knowledge of the conspiracy. King asserts that the trial court erred in not giving an additional instruction informing the jury that before they applied the accountability and joint venture instructions to the conspiracy charge they must initially find that the defendant knew that a conspiracy existed.
"In examining the propriety of jury instructions, we view the instructions as a whole and 'as long as the instructions treat the issues fairly and accurately, they will not be interfered with on appeal.' " United States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir.1985) (quoting United States v. Croft, 750 F.2d 1354, 1366 (...
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