Drummond v. United States

Decision Date29 September 1965
Docket NumberNo. 17875,17885.,17875
Citation350 F.2d 983
PartiesWilliam C. DRUMMOND, Appellant, v. UNITED STATES of America, Appellee. Alphonse Vincent CASTALDI, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Harry Gershenson, Jr., St. Louis, Mo. (court-appointed), for appellants.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, BLACKMUN, and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

We are confronted here primarily with search and seizure issues.

A 3-count indictment returned against William C. Drummond and Alphonse Vincent Castaldi charged both of them, in its first count, with a violation in May 1964 of 18 U.S.C. §§ 471 and 2 (counter-feiting a $20 federal reserve note); charged Drummond alone, in its second count, with a violation of 18 U.S.C. § 474 (making a plate in the likeness of the note); and charged both, in the third count, with a violation of 18 U.S.C. § 371 (conspiracy, together with J. P. Long, Jr., to commit a counterfeit offense).

The defendants entered pleas of not guilty. They were tried together. The jury found Drummond guilty as charged in all three counts. It found Castaldi guilty only of the conspiracy charge in the third count and acquitted him of the substantive charge in the first count. Judge Meredith gave Drummond concurrent sentences of ten years on the first two counts and of five years on the third count. He gave Castaldi a sentence of five years on the conspiracy count. The defendants appeal separately in forma pauperis.

Each defendant was represented at the trial by his own court-appointed attorney. Trial counsel were given leave by the district court to withdraw after notice of appeal had been filed. Both Drummond and Castaldi are represented here by one attorney appointed by this court.

The issues before us concern (a) the standing of the two defendants to assert that searches of Long's automobile and of his home and garage were unreasonable and thus violative of the Fourth Amendment; (b) the admission of evidence seized at these searches; (c) the trial court's failure to instruct the jury about a prior conviction of Castaldi; and (d) the court's rejection of Castaldi's suggestion for rehabilitation testimony.

Long was the prosecution's principal witness. He had been charged separately in connection with the counterfeiting and had pleaded guilty. He was brought back from the penitentiary to appear. He testified as follows:

In 1964 he owned and operated some taxicabs in Saint Louis County, Missouri. Drummond was working for him as a parttime driver. On March 1 Castaldi asked Long for work but Long did not employ him. He again encountered Castaldi in a restaurant in mid-March. During this conversation Long expressed concern about his being unable to use the garage at the rear of his residence at 6928 Plymouth, University City, because he could not get his Thunderbird convertible into it. About a week later, during still another conversation between the two men, Castaldi asked Long whether he might rent the garage. Long proposed, as he recalled, a rental of $15 a month. Castaldi paid him "for three months". This arrangement was oral. Nothing was said as to Castaldi's anticipated use of the garage.

In mid-April Long had occasion to burn trash in his incinerator which stood next to the garage. He noticed on the side door a padlock which had not been there before. He looked in the window. He was able to see "some machinery of some kind that was partially covered". He met Castaldi that night and asked him what he had in the garage. Castaldi told him that it was a borrowed press with which he intended to print pornographic material. Long did not protest. At this time he gave Castaldi a key to the house because the switch for the garage was in the kitchen and electricity was needed to operate the press.

One night in early May Long returned home earlier than usual and found Drummond and a Negro called Jess photographing a $20 bill in his bedroom. Long then realized what was going on and "was a little unhappy about it". Drummond talked with him about taking part in the operation. Long at first assented, then hesitated, and, at a later meeting with both defendants, agreed to participate and to acquire a better camera for them. Castaldi told him that he would be repaid for the camera's cost and would receive $5,000 in good money and $3,000 in counterfeit. Long rented a camera on Monday, May 18.

The next evening Drummond and Jess used the new camera to photograph the bill and performed other steps in the preparation of plates for its counterfeiting. Castaldi was present in the house during that week. Drummond did the printing. Long and Drummond covered the windows and door of the garage with masonite. On Thursday and Friday Long mowed the lawn in order to drown the noise of the press. On Friday printed notes were taken into the house, sorted and trimmed. Castaldi assisted in the trimming. Long took his $3,000 worth and left. He gave these bills to William Mackey to take out of town to pass. Long did not return to his house that night.

He did return Saturday morning. He found a stack of bills still there. On Sunday, May 24, he received a call from Mackey. Long trimmed 26 of the bills and put them in his pocket. He placed others, untrimmed, in the trunk of his automobile and went to meet Mackey at a Saint Louis restaurant.

Testimony from the arresting agents and from Long produced the following: Unknown to Long, Mackey had been arrested on Saturday in Springfield, Illinois, first by the local police when he attempted to pass some of the counterfeit notes, and then by a secret service officer. Mackey named Long as his source of supply. Mackey also informed the arresting agent that Long's Thunderbird, which he described, had been used to bring the counterfeit notes to him the day before in Saint Louis.

When Long met Mackey on Sunday at the Saint Louis restaurant secret service agents were present. They had arranged with Mackey that he should signal them if Long had counterfeit in his possession. The signal was given. The agents placed Long under arrest in the restaurant, searched his person, and found the 26 counterfeit $20 bills. These were seized. Long's automobile was outside on the restaurant's parking lot. It was seized. The search of its trunk produced 687 untrimmed counterfeit bills.

Upon his arrest Long gave the agents a key to his home. The agents, with Long, went to the house. This was within a half hour of the arrest. They entered the house and there found and seized the camera and other items used in the counterfeiting process. They then went to the garage. Long had a key for its padlock. He produced it and opened the lock and they entered. That search led to the printing press, inks, chemicals, and partial reproductions of $20 notes scattered about the floor.

No warrant had been issued to search either the automobile, the house or the garage.

Witnesses testified as to having seen Drummond and Castaldi around Long's premises preceding the arrest of Long and the seizures there. There was fingerprint identification of Drummond upon materials used in the counterfeiting operation but none of Castaldi.

Outside the presence of the jury Long testified, under questioning by the defense, that he had not rented any part of the house to Castaldi; that the arresting agents did not show him any arrest warrant but only said they had one; that he was not shown a warrant for the search of the car; and that "I was asked at that time if I would sign — I believe they called it a waiver — and I did sign something, I don't know what". Upon inquiry by the court he said that he did not recall whether the agents asked his permission to search his automobile; that he did sign a waiver permitting the search of his house; that this was "in the back seat of their car there on the parking lot. They told me I could make it hard on them and make them wait until Monday when they could normally get a warrant or I could sign the waiver"; and that they searched the car before they went to the house.

The paper which Long signed and which was designated at the trial as Court's Exhibit 1, reads:

"St. Louis Mo 2-24-64 1.30 pm

"My name is J. P. Long and I live at 6928 Plymouth, University City, St. Louis County, Missouri.

"I have been arrested for counterfeiting by the Secret Service. I know that they must have a search warrant to search my residence at 6928 Plymouth unless I waive that need and invite them to so search for counterfeits and equipment.

"I invite the Secret Service to search my residence at 6928 Plymouth, and I waive the need for a search warrant. This is entirely voluntary on my part.

"Witnesses

Geo Stigall Fred H. Backstrom Winston J. Gentz /s/ J. P. Long, Jr."

The three witnesses were secret service agents.

Such was the government's case-in-chief. The only witnesses for the defense were the defendants themselves. Castaldi took the stand first. He testified that on the day before Long was arrested Long told him that he was leaving town and asked him to come to the house to drive a cab for him; that he went there but found no one home; that the next morning a cab driver told him Long had been arrested; that this was his first knowledge of Long's implication in criminal activity; that he, the witness, did not take part in any counterfeiting or conspiracy; that he did not rent the garage; that he knew Drummond as a relief driver; and that he made no plates or pictures of a bill.

Drummond testified that he had pleaded guilty to charges of three prior felonies; that he had had training and experience in lithography; that he drove a cab for Long; that Long asked that he teach him how to operate a printing press; that Long told him he was going into business and a press was coming; that he rented a truck for Long to get the press; that he bought printing supplies and rented a...

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