Koran v. United States

• Decision Date: 28 March 1969
• Docket Number: No. 25446.,25446.
• Citation: 408 F.2d 1321
• Parties: Mortimer Norman KORAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 1321 (1969)

Mortimer Norman KORAN, Appellant, v. UNITED STATES of America, Appellee.

No. 25446.

United States Court of Appeals Fifth Circuit.

January 27, 1969.

Rehearing and Rehearing Denied March 28, 1969.

H. Robert Koltnow, Gerald Kogan, Miami, Fla., for appellant.

Michael J. Osman, Asst. U. S. Atty., Theodore Klein, Miami, Fla., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before GEWIN and BELL, Circuit Judges, and BOOTLE, District Judge.

Rehearing and Rehearing En Banc Denied March 28, 1969.

GEWIN, Circuit Judge:

Mortimer Norman Koran was convicted in the United States District Court for the Southern District of Florida on Counts Three and Five of an indictment charging substantive offenses relating to counterfeit currency.¹ Count Three charged Koran with printing a one dollar silver certificate and Count Five charged him with possession of the certificate. He was sentenced to five years imprisonment on each count, the sentences to run concurrently. We affirm the judgment of conviction.

Appellant Koran urges that his fourth amendment rights were violated by the introduction at his trial of evidence obtained through the use of electronic listening and recording devices. The evidence challenged consisted of (1) the testimony of an investigator, (2) the tape recordings of certain telephone conversations, and (3) the tape recordings of certain non-telephonic conversations. The investigator, Secret Service Agent Rivers, testified that he overheard a conversation between the appellant and a government informer, Schatzabel, in which the appellant discussed plans for printing a large quantity of counterfeit currency. The conversation took place in the appellant's printing establishment while Agent Rivers, stationed a short distance away, listened to the conversation over a radio which received transmissions from a device concealed in Schatzabel's shirt pocket. The tapes of telephone conversations which were received in evidence were recordings of communications between the appellant and Schatzabel and between the appellant and Agent Rivers, who acted incognito as a prospective buyer of counterfeit merchandise. These conversations were recorded by a device attached to the telephone used by Schatzabel and Rivers, both of whom consented to the recording of the conversations. The non-telephonic tapes were recordings of two conversations between Agent Rivers and appellant Koran which took place beneath a bridge. On both occasions, Rivers was equipped with a transmitter when he met with the appellant. The conversations were recorded by another agent who was posted nearby.

Prior decisions of this court, as well as decisions of the Supreme Court, have approved the use of evidence obtained by the methods employed in this case.² The appellant contends, however, that the Supreme Court in Katz v. United States³ charted a new course which demands disapproval of such investigative techniques. He points particularly to the Court's pronouncement in Katz that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."⁴ The appellant asserts that, since he was unaware of the presence of electronic listening and recording devices, he did not knowingly expose to the public his private conversation.

This court has previously concluded that Katz leaves undisturbed the established law applicable to the methods of investigation employed in this case.⁵ And in a recent opinion, the Tenth Circuit reached the same conclusion,⁶ emphasizing the language of Mr. Justice White's concurrence in Katz:

When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. . . . It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another.⁷

Government agents in Katz had attached electronic listening equipment to the top of a telephone booth. When the defendant used the booth in making calls, the agents overheard his end of the conversations. The Supreme Court held that, since the search did not comply with constitutional standards, the evidence of the conversations was not admissible.

The attempt to equate the case sub judice with Katz must fail. It is true that appellant Koran did not wish to expose his words to the public. However, this fact alone does not suffice, for no criminal desires public exposure of his surreptitious activity. The crucial fact here is that the appellant knowingly took the risk that his conversants might expose his statements. Therefore, he cannot now complain that his conversants did in fact expose the conversations. In Katz, on the other hand, exposure of the defendant's private conversation was unaided by his conversant. Instead, exposure resulted from circumstances unrelated to the risk which the defendant knowingly took when he spoke to his conversant. Thus we think it clear that the appellant's reliance upon Katz is misplaced.⁸

The appellant argues that Agent Rivers' testimony relating to the conversation he overheard between the appellant and Schatzabel as they talked in the appellant's shop was nevertheless improper because it was unsupported by testimony from Schatzabel, who did not testify. This contention is without merit. The absence of supporting testimony from Schatzabel would have significance only if there existed a complete lack of evidence identifying the appellant as the party with whom Schatzabel conversed. Although Agent Rivers from his listening post could not visually observe the participants in the conversation, the record establishes beyond dispute that the appellant was one of the parties.

The statute which the appellant was convicted of violating proscribes the printing of currency and the possession of counterfeit currency "except under authority from the Secretary of the Treasury or other proper officer."⁹ The appellant contends that the Government did not prove his lack of authority and, therefore, failed to prove all the elements of the offense charged. While the Government offered no direct proof of the appellant's lack of authority, it did present evidence from which the jury could reasonably infer that he had no authority.¹⁰ Agent Rivers, for example, testified:

He the appellant indicated to me he had something to show me and I said well, let me look at it. He said, well, I\'m not going to show it to you out here in the open.

I says well, let me look at it. So he handed it to me and I opened it up and it was a $1.00 Silver Certificate oversized.

Q Did you have any conversations with him regarding that $1.00 Silver Certificate that he handed you on that occasion?

A Yes. He indicated I should get in the car with him to look at this thing in private, which I did.

He stated that he had this at home and he had made it the night before and said he made it oversized just to show its detail which would prove his being a good printer.

If the jury believed the broad thrust of the testimony of the witnesses — which it obviously did — the inference was compelled that the appellant had no authority to print currency or to possess counterfeit currency.

Appellant Koran next contends that the trial court erred in permitting references during the prosecutor's opening statement and in the evidence throughout the trial to the appellant's unlawful printing of title certificates and driver's licenses as a part of the same venture which produced the counterfeit currency. Generally, evidence of crimes not charged in the indictment is inadmissible. However, we believe that the evidence in question falls within a widely recognized exception to the general rule which permits such evidence if it tends to prove a common scheme, plan or design on the part of the defendant so closely related to the offense charged that it may serve to establish the offense or to establish an intent in the mind of the accused to commit the offense.¹¹

The prosecutor, in his opening statement, also made reference to the appellant's arrest for counterfeiting title certificates and driver's licenses. In response the appellant moved for a mistrial. The court denied his motion but offered to instruct the jury to disregard the prosecutor's comment; defense counsel, however, preferred not to have the instruction. The appellant contends that a mistrial was mandatory. We think, however, that the court was clearly within the bounds of its discretion in denying the motion.

The appellant makes one contention which is relevant only to his conviction on Count Five of the indictment, the possession count. The statute under which he was convicted makes unlawful the possession of a...