Canida v. United States, 16693.

• Decision Date: 17 March 1958
• Docket Number: No. 16693.,16693.
• Parties: Elvina Cash CANIDA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

250 F.2d 822 (1958)

Elvina Cash CANIDA, Appellant, v. UNITED STATES of America, Appellee.

No. 16693.

United States Court of Appeals Fifth Circuit.

January 14, 1958.

Rehearing Denied March 17, 1958.

Morris Pepper, Houston, Tex., for appellant.

Malcolm R. Wilkey, U. S. Atty., James E. Ross, Asst. U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Indicted with two other defendants who are not concerned in this appeal, appellant was found guilty and given a general sentence of two years on six counts of an indictment, charging possession of goods stolen from an interstate shipment, knowing the same to have been stolen, in violation of Title 18 U.S.C. § 659, and on one count of conspiracy to violate the section.

Presenting as her primary contention that the evidence was insufficient to show that appellant received or possessed the alleged goods with knowledge that they were stolen, and therefore the court erred in not granting her motion for a judgment of aquittal, appellant is here insisting that the judgment should be reversed and the cause remanded with directions to enter such a judgment.

In the alternative, invoking the settled rule that statements made under such circumstances are not admissible, she urges upon us that reversible error was committed in admitting in evidence, over her objection, as a circumstance tending to show her guilt, statements made by her co-defendant Fletcher to a government agent after the alleged conspiracy was ended and Fletcher was in custody.

Additional claims of error are: (1) that her premises were illegally searched, and evidence seized or taken therefrom was erroneously admitted; and (2) that there was error in admitting into evidence as plaintiff's exhibit No. 62 a small memorandum pad, over appellant's objection, that the entry and search by which it was obtained was illegal and that there was no evidence connecting it or the entries contained therein with the offenses charged or with appellant.

As evidence of the highly prejudicial character of the admission of Fletcher's testimony, she points to the importance attached to this testimony by the district judge, as shown by his statement on page 500 of the Record. There, in denying defendant's motion for an acquittal, the court said in part:

"I will overrule the motion. I think a case for the jury has been made. * * * Now it is in evidence that the defendant Fletcher told Agent Muscatello that he would find some of the suits at Cash Cleaners. That is a circumstance which may be considered and it is a circumstance which could be consistent with guilt made by a man who had made guilty admissions to Agent Muscatello."

In support of her first ground, appellant, pointing to the purely circumstantial character of the evidence against her and citing some of the many circumstantial evidence cases in which judgments of acquittal have been entered,¹ insists: that all that was shown was the mere possession of stolen property and that, in view of the satisfactory explanation of the possession made in the evidence, this does not warrant an inference of guilt, and an acquittal should have been directed. She insists further, that if, as the district judge seemed to think, the statements made by Fletcher to the government Agent, implicating appellant, were, taken with the other evidence, sufficient to turn the scale, this would not support the submission to the jury and the verdict and judgment, for that these statements, basically inadmissible as they were against appellant, could not under settled rules of law be weighed in the balance upon her motion for acquittal.

Upon her second alternative ground, that the evidence obtained by a search of her premises without a warrant was inadmissible, appellant scouts the claim of the government, that, confronted by persistent and insistent federal officers demanding of her a written consent to search her premises, which consent she steadfastly refused, appellant's action in not further and forcibly indicating her dissent amounted to her freely and voluntarily inviting them to enter her home and the business premises where she worked and make a search thereof.

Finally, on her claim that it was highly prejudicial error to permit the introduction in evidence against her of the memorandum pad, appellant, marshalling the evidence in respect to it, vigorously insists that her claim is sound and must be sustained.

Meeting her primary claim head on and, for convenience of briefing, taking up her gauntlet by considering the evidence as to one count only, count seven, for the reason advanced by it that, since the sentence was for only two years, and if the evidence was sufficient on this count, it was immaterial whether it was or was not on the other counts, the government carefully takes up and as carefully discusses appellant's contentions.

Beginning with the fact that the stolen character of the goods was not disputed and pointing to undisputed evidence showing: that the shipment had a value in excess of $100, that it moved interstate, and that it was wrongfully converted; the government, proceeding to the crucial point in the case and arguing that, though the evidence was circumstantial, it strongly pointed to defendant's guilt and was inconsistent with any other theory, insists that the evidence was sufficient to take the case to the jury and that the denial of the judgment of acquittal was entirely correct.

As to Exhibit 62, which was seized without a warrant and without any claim that its seizure was consented to, the government insists that the seizure was legal because made as an incident to defendant's arrest and the agent had reasonable ground to believe that she was guilty of a felony.

As to the point appellant makes that the evidence did not connect appellant with the book or it with the crime charged, it insists, citing Hartzel v. United States, 8 Cir., 72 F.2d 569 and other cases, including Curtis v. United States, 5 Cir., 38 F.2d 450, that there was enough specificity in the items, taken with the other evidence, to connect this book not only with the stolen property but with appellant.

Finally, in opposition to appellant's position that the motion to suppress evidence should not have been denied, appellee stands firmly on the judge's finding that the defendant gave free consent and on the evidence claimed as supporting it. So standing and...