Barnett v. United States

Decision Date26 September 1967
Docket NumberNo. 23165.,23165.
Citation384 F.2d 848
PartiesAndy Wallace BARNETT, Robert Taylor Newman and Jack Coleman Stewart, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit



Howard Dyer, Jr., Fred C. DeLong, Jr., James L. Robertson, Greenville, Miss., for appellants.

H. M. Ray, U. S. Atty., Oxford, Miss., Thomas G. Lilly, Special Asst. U. S. Atty., Jackson, Miss., for appellee.

Before RIVES, GEWIN and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

Appellants Barnett, Newman and Stewart were tried under an indictment with five substantive counts charging violation of 18 U.S.C.A. § 3311 and a conspiracy count under 18 U.S.C.A. § 371.2 Jury verdicts were returned finding Newman and Stewart guilty on all six counts and Barnett guilty only on the conspiracy count. All three appeal.

The United States Secret Service received information by affidavit that appellants planned a trip down the Ohio and Mississippi Rivers to New Orleans on a 37½ foot yacht, prophetically named the "Docket," and that the yacht would be used as the base of operations for altering mint marks and dates on coins which would be sold as rare collectors' items at various locations along the rivers. The Secret Service sought the assistance of the Coast Guard in finding the yacht.

Appellants began the trip, but the yacht ran aground on a sand bar near Tiptonville, Tennessee, where it remained for more than five weeks. Appellants incurred expenses which they failed to pay before leaving Tiptonville, as a result of which state warrants were issued from Lake County, Tennessee, on August 22, charging them with obtaining goods and services under false pretenses, felony offenses under Tennessee law.3 On August 23 one of the unhappy creditors asked Deputy Sheriff Chadwick of Lake County for assistance in locating appellants. Deputy Chadwick called a number of local law enforcement officers at several points along the Mississippi River. The next day, August 24, many events happened. Chadwick called the Coast Guard in Memphis, requesting information on the boat. The Coast Guard notified the Secret Service of Chadwick's inquiry, and Secret Service Agent Miller phoned Chadwick, who apprised Miller of the state charges arising out of the yacht's sojourn at Tiptonville.

Miller then phoned Chief of Police Burnley at Greenville, Mississippi, and told him that the yacht was expected to pass Greenville and that one or more of the appellants reportedly were paralleling the yacht by land in a Kaiser automobile. He told Chief Burnley of the Lake County charges and indicated that Tennessee would extradite appellants if they were apprehended. In addition he indicated that appellants were involved in an investigation concerning altered coins and asked Chief Burnley to be on the lookout for evidence relating to such offenses.

Burnley made inquiry and learned that two men in a Kaiser had asked about the Docket at a boat store outside Greenville but within Washington County, Mississippi. He then called Deputy Fisher of the Washington County Sheriff's Office and the two proceeded in Chief Burnley's car to the area of the boat store, where they observed an automobile meeting the description of the Kaiser. They pulled it over and arrested the occupants, Newman and Stewart. After placing the two in his car and beginning the trip back to Greenville, Chief Burnley radioed to one of his men to come and pick up the Kaiser. During the routine procedure of booking at the county jail a number of coins were taken from the pockets of Newman and Stewart. The charge on which they were booked was shown as "defrauding."

The Kaiser was driven to the jail, approximately five miles from the scene of the arrest, where Chief Burnley and Deputy Fisher conducted a thorough search of it, without a search warrant, and found several more coins plus various pieces of equipment of the sort used to alter coins. The search was made at a time variously described as 20 minutes after the arrest, an hour after the arrest, and within an hour after the booking. The place of search was at the jail parking lot. There were two justices of the peace who could have issued a search warrant with offices within a few yards of the scene of the search.

A call was placed to the Lake County Sheriff's Office, which responded with a telegram confirming the existence of the Tennessee warrants.

Chief Burnley then telephoned Agent Miller and told him that Newman and Stewart were in custody and had "certain paraphernalia"4 in their possession. Miller and another agent, Taylor, came immediately to Greenville, stopping en route at Clarksdale, Mississippi, to procure a search warrant for the Docket. The agents were unable to locate the Docket that day.

The next morning, August 25, Agent Miller, using a rented airplane, sighted the yacht proceeding south between Vicksburg, and Natchez. He landed at Natchez and telephoned the Lake County Sheriff's Office requesting that a telegram be sent to the Adams County Sheriff's office at Natchez confirming the existence of the Tennessee warrants. This was done, and Adams County Deputy Bolls rented a boat, intercepted the Docket and arrested Barnett. When the arrest occurred Agents Miller, Taylor and Herman (from the Jackson, Mississippi, office) were at the Adams County Sheriff's Office. The Docket was tied up at the Natchez boat shore and Barnett taken to the Adams County jail. The federal agents, pursuant to a federal search warrant obtained by them from a county judge, searched the Docket and located several coins.

Taylor and Herman interviewed Barnett at the Adams County jail in Natchez. After being fully advised of his constitutional rights Barnett gave the agents a statement which admitted in substance that he was aware of alteration of coins by Newman and Stewart.

Taylor and Miller then returned to Greenville where Deputy Fisher turned over to them the material found during his search of the Kaiser. After obtaining what was described at the trial as "written waivers of constitutional rights" from Newman and Stewart, (the alleged waivers were not introduced and their contents never revealed), Taylor and Miller searched the auto again. Several additional items later introduced into evidence were found. Stewart and Newman were interviewed and, after being fully advised of their rights, gave extensive recorded statements admitting alteration of coins. Newman also revealed that while being transported from the scene of the arrest to the jail he had hidden in Chief Burnley's car a metal aspirin box containing coins. The officers removed the rear seat of Chief Burnley's car and found the coins.

On August 26, pursuant to waivers of extradition, appellants were turned over to a Lake County deputy sheriff and taken to the Lake County jail at Tiptonville. A preliminary hearing was held on the state charges on August 28, and all three appellants were bound over to await grand jury action. The same day Secret Service Agents, having conferred with their superiors, and then having been authorized by the United States Attorney's Office to file complaints, secured federal arrest warrants, reciting as probable cause the affidavit that had been in their possession since before the chase down the Mississippi began. Detainer warrants were secured to hold appellants for federal authorities after state custody terminated. Stewart made bond on the state charge, on September 1 was arrested on the federal charge, and was taken before a commissioner soon thereafter. He made no statements.

Newman and Barnett did not make state bonds until September 30, at which time they were arrested on the federal warrants and taken before a commissioner. However, in the interim, after federal warrants were issued, they had been subjected to further questioning at the Lake County jail by Agent Taylor. He interviewed Barnett at least once and obtained a statement on August 31, Newman at least once and possibly two or three times and secured a statement from him on September 15.

Before trial motions to suppress were made as to the statements given by each appellant, the coins and paraphernalia seized in the searches of the automobile, and coins taken from appellants during the booking procedure. The motions were denied and all these items offered and received in evidence at trial. Expert testimony was produced that three of the coins in the metal box which Newman had left in Chief Burnley's car and two of those taken from the Kaiser automobile were genuine United States coins and that on each either the mint mark or the date was altered.

Of the numerous grounds for reversal urged by appellants, we find it necessary to discuss only the following.

1. Failure to allege and prove offense

The indictment alleged that appellants conspired to fraudulently alter genuine United States coins and to fraudulently possess and "pass, alter, publish and sell" such altered coins "with intent to defraud coin collectors." The substantive counts described alterations of the mint marks or dates of five specific coins. Proof introduced at trial by the government tended to establish the facts alleged, but no proof was offered that the alterations in any way affected the value of the coins as currency or were intended to do so. At the close of the government's case appellants moved for a verdict of acquittal on the ground that neither the indictment nor the proof made out violations of 18 U.S. C.A. § 331.5 We agree with the District Court that violations of § 331 were alleged and proved.

The acts charged and proved come within the literal language of the statute, which prohibits fraudulent possession of any coin knowing it to have been altered. Appellants rely on the theory that the acts while within the language of the statute are not within its prohibition because the intent or spirit of § 331 restricts its application to...

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