Karp v. United States

• Decision Date: 25 April 1960
• Docket Number: No. 16375.,16375.
• Citation: 277 F.2d 843
• Parties: Valentine John KARP, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F.2d 843 (1960)

Valentine John KARP, Appellant, v. UNITED STATES of America, Appellee.

No. 16375.

United States Court of Appeals Eighth Circuit.

April 25, 1960.

Charles L. Edson, St. Louis, Mo., for appellant.

Philip C. Lovrien, Asst. U. S. Atty., Sioux City, Iowa, made oral argument, F. E. Van Alstine, U. S. Atty., and Mr. William R. Crary, Asst. U. S. Atty., Sioux City, Iowa, were with Mr. Lovrien on the brief for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Valentine Karp appeals from his conviction on count two of an indictment charging him with robbing on June 10, 1959, the Lakota branch of the Farmers Trust and Savings Bank of Buffalo Center, Iowa, the deposits of which were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C.A. § 2113(a).

The jury, in answer to a special interrogatory, found defendant while committing said offense did assault or put the lives of the bank employees in jeopardy by the use of a dangerous weapon. Defendant was sentenced to imprisonment for a term of fifteen years.

Defendant has filed timely notice of appeal and has been permitted to prosecute this appeal in forma pauperis. This court has appointed Charles L. Edson to act as attorney for defendant in connection with this appeal. We wish to thank Mr. Edson for the excellent brief and oral argument he presented on behalf of the defendant, and for his efficient representation of the defendant.

Inasmuch as the defendant in this appeal raises no question as to the sufficiency of the evidence to sustain the conviction, there is no need to set out the evidence in detail.

Defendant relies upon the following asserted errors for reversal:

"1. The Trial Court committed reversible error by denying defendant\'s motion to suppress the receipt books and the bank deposit slip taken from defendant\'s home without a warrant.

"2. The Trial Court committed reversible error by denying defendant his right to examine a prior statement made by a Government witness, concerning subject matter testified to at the trial, contrary to the requirements of Section 3500 of Title 18 of the U.S.Code."

The error first asserted pertains to the court's failure to suppress certain receipt books and a bank deposit slip. Since the factual situation with reference to such items differs, separate discussion is required as to each.

In a motion to suppress filed before trial, the defendant in the first paragraph contends that certain described property was illegally seized from him and from a hotel room in Montana.

The second paragraph reads:

"The following items were unlawfully seized from him without a search warrant at his residence at Hartland, Minnesota by F. B. I. agents from Rochester, Minnesota, on July 7th, 1959:

"certain receipt books for towns in Northern Iowa and Southern Minnesota which disclose dates and receipts of large sums of money received by him from various customers of his in these areas."

In the fourth paragraph of the motion, defendant states:

"He also asks for return and suppression of the evidence described in paragraph one and for the return of the evidence described in paragraph two."

A hearing was held on the motion to suppress on October 19, 1959. The record shows the following proceedings:

"Mr. Flattery counsel for defendant: And we also ask that the receipt books be returned to this defendant because they were all obtained without a warrant; search warrant. The search was unreasonable and it was illegal. They had no right — The Government had no right to go to Mr. Karp\'s home and go down into his basement without a search warrant and to take things that belonged to him, and for the further reason, your Honor, that these receipt books will be needed by this defendant upon the trial of this case.

"The Court: You do not really want them suppressed, do you?

"Mr. Flattery: I want them, at least, returned your Honor, because there are certain names and addresses that appear on these receipts.

"The Court: Does the Government intend to use them in its case in chief?

"Mr. Lovrien: Probably. That depends on just how the evidence shapes up.

"We are in this position: I have told Mr. Flattery — of course, the moving to suppress is one thing; asking for them as a matter of right for them to use as evidence, is another one. We aren\'t in any position where we want to say, `well, we will turn them over to you, then, and if you decide not to use them * * *\' they are gone from us.

"The Court: That is not what they have in mind. It is discovery, and that is the right to look them over. Of course, they would remain in the custody of the clerk or the reporter. That is a different matter. The right to pre-trial examination relates to discovery rather than suppression.

"Mr. Lovrien: We won\'t even contest that kind of a motion.

"The Court: You can examine all you want, and they will be here, as I understand it, and then you can put them in, if you wish, if they do not put them in.

"Mr. Flattery: They will be available in the clerk\'s office?

"The Court: Generally, until they are admitted in evidence, they do not turn them over to the reporter. They can be made available at the clerk\'s office.

"Mr. Lovrien: We can turn them over to Mr. Flattery. That would be all right with us.

"The Court: There is a difference in turning them over to Mr. Flattery, and in turning them over to the defendant.

"As far as Mr. Flattery is concerned, the Court has nothing but trust and confidence in Mr. Flattery, but the defendant is not a member of the Bar, and to the Court, there is always a difference between lawyers and laymen when it comes to handling exhibits and things."

It is to be observed that defendant in his motion expressly asked for the suppression of the evidence seized in Montana but only asked for the return of the receipt books. In the discussion hereinabove set out, defendant's counsel also only asked for return of the receipt books. We feel certain that when viewed in the light of the surrounding circumstances, the defendant's omission to ask for the suppression of the receipt books was intentional rather than inadvertent.

As to the Montana property which he desired to have suppressed, he in his motion and again orally stressed his claim for suppression. Defendant in his motion and at all times, and particularly as a witness at the trial, insisted that the receipt books would prove that he had collected large sums of honest money due him for fire numbers during the few days preceding the bank robbery. Such an attitude on the part of the defendant would explain why the motion did not request the suppression of the receipt books and would fully justify his counsel's interpretation of the motion in his conversation with the court above set out so far as it pertains to the receipt books as a discovery motion. A satisfactory solution for the discovery of the receipt books was arrived at.

Defendant was engaged in the business of selling fire numbers and signs to farmers, usually for $8 a sign, which included the cost of erecting the sign and certain services. Defendant at the time of his arrest had about $400 currency in his possession. He told officers that the bulk of this money had come from collections he had made on June 8 and 9 of amounts due him for fire signs, and that such collections would be reflected in his receipt books which he had left in his car when he abandoned it at Wells, Minnesota.

His wife subsequently picked up the car and took the receipt books therefrom and stored them in the home of defendant and his wife. The defendant on June 10, the day of the robbery, left for Montana and did not advise his wife where he was going or when he would be back.

The receipt books were obtained by F. B. I. Agent Mahler from Mrs. Karp at her residence on July 6, 1959. Mahler testified that he identified himself as an F. B. I. Agent to Mrs. Karp, and that he then inquired about the receipt books and asked whether Mrs. Karp would make them available to him. Mrs. Karp responded that she would be more than happy to, and said, "You come with me and I will show you right where they are." She then took the agent to the basement and pointed to the receipt books, and said, "Take it. I don't want any of this material."

At the suppression motion hearing, evidence of illegal seizure of property in Montana was offered. Defendant did not offer the testimony of his wife or anyone else to establish any unlawful search or coercion in obtaining the property from defendant's home. At the conclusion of the testimony offered by the defendant in support of the motion, the court stated: "The record is blank on how they got hold of the receipt books at Hartland."

The Government then offered Mahler's testimony heretofore summarized, which has not been contradicted in any respect.

The situation with reference to the deposit slip is somewhat different. The Government offered in evidence at the trial a deposit slip of the robbed bank on the back of which were some drawings made by a bank officer as to the location of certain property that might be for sale in Lakota. The bank official as a witness testified that just prior to the robbery he had made the drawings for the defendant in response to defendant's inquiry as to property that might be available for purchase. The deposit slip was at Mahler's request voluntarily turned over to him by Mrs. Karp at the Karp home on July 30, 1959. Mrs. Karp told the agent that she had found the deposit slip in the defendant's car. Defendant did not discover that the Government had obtained possession of the deposit slip until Mahler, in his testimony at the motion hearing, disclosed that he had obtained the slip.

The motion, so far as it pertains to property of defendant's taken from his home, is hereinabove quoted. It is plainly apparent from the motion that the deposit slip is not included therein. We find no record of any...