Thomas v. United States
| Citation | 343 F.2d 49 |
| Decision Date | 09 March 1965 |
| Docket Number | No. 19656.,19656. |
| Parties | William THOMAS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard M. Buxbaum, Berkeley, Cal., for appellant.
Sylvan A. Jeppesen, U. S. Atty., Boise, Idaho, for appellee.
Before HAMLEY and MERRILL, Circuit Judges and THOMPSON, District Judge.
Since July 9, 1962, William Thomas has been serving a five-year sentence in a federal prison for interstate transportation of a falsely made, forged and counterfeit security, in violation of 18 U.S.C. § 2314 (1958, Supp. III). This court, on March 4, 1964, dismissed an appeal from the judgment of conviction because no notice of appeal from the conviction had been filed. On May 28, 1964, he instituted in the district court this proceeding under 28 U.S.C. § 2255 (1958) to vacate and set aside the judgment of conviction and sentence. The district court, after hearing, denied the motion and Thomas appeals.
In his application in this proceeding Thomas alleges that he is entitled to relief on the basis of errors which normally can be presented only on a direct review, because of the two following circumstances: (1) his appointed counsel failed to file a notice of appeal from the conviction and sentence despite Thomas' timely request that an appeal be taken; and (2) there was plain reversible error in the respects described in the application.
The district court appeared to accept Thomas' argument that, in view of Dodd v. United States, 9 Cir., 321 F.2d 240, 243-246, if Thomas can sustain both of these allegations he is entitled to relief under section 2255, notwithstanding the facts that the errors relied upon were of a kind which may be ordinarily raised only on a direct appeal from the conviction. But the district court held that Thomas did not establish either of these elements.
We turn immediately to the question of whether, in any of the respects claimed, there was plain reversible error in connection with the trial and conviction. One of the asserted errors involves the reception of evidence concerning the prior theft of the check in question and the other articles, the reception and later exclusion of evidence that Thomas had sold two guns which were among the other articles stolen with the check, the prosecution's knowledge of, but failure to produce, evidence tending to show that a person other than Thomas had stolen all of these items, the denial of a motion for a mistrial because such evidence had come before the jury, and the adequacy of instructions given, after exclusion of the evidence concerning Thomas' sale of the guns, to overcome the asserted prejudice.
Thomas was charged with having, on or about December 30, 1962, unlawfully, willfully, knowingly and feloniously, and with unlawful and fraudulent intent, transported and caused to be transported in interstate commerce, from Pocatello, Idaho, to Chicago, Illinois, a falsely made, forged and counterfeit traveler's check in the amount of fifty dollars, payable on the First National Bank of Chicago, Illinois. According to the indictment, the check was, as Thomas well knew, false, forged and counterfeit in that the purported counter-signature of D. W. Brewer appearing upon the check was false, forged and counterfeit.
D. W. Brewer testified, without objection by Thomas, that the check in question, another check, and other items including two guns, having a value of five thousand dollars were stolen from his locked car between the towns of Little America and Kemmerer, Wyoming on December 29, 1961.
Charles Brewer, unrelated to D. W. Brewer, testified that on the evening of the next day he and his acquaintance, appellant Thomas, drove in Charles Brewer's car to the Christensen Service Station in Pocatello, Idaho, to buy some gasoline, Thomas doing the driving. Charles Brewer testified that the station attendant was Marvin Christensen. He further stated that he did not pay for the gasoline, but the charge could have been placed on his bill. This witness testified that Thomas got out of the car and went inside the station, then returned to the car. According to Charles Brewer, just before the two left the station, Marvin Christensen asked him if Thomas was his brother, and Charles Brewer told him he was not.
Marvin Christensen's testimony corroborated the testimony of Charles Brewer to the effect that the latter and Thomas, whom he identified in the court room, had driven to the station on the evening of December 30, 1961, and had purchased gasoline. He testified that Thomas went inside the station, and it was his recollection that Charles Brewer, with whom the witness was well acquainted, also went inside the station. Christensen stated that Thomas then took what appeared to be the check in question out of a book and asked the witness for a pen.
Christensen further testified that Thomas appeared to write something on the check, but he did not actually see Thomas sign it. According to this witness Thomas then handed the check to Christensen and the latter cashed it, taking out the price of the gasoline and giving Thomas the change. Christensen stated that he later noted that the check was not dated, and called Thomas back into the station to add the date.
There was testimony that, in the normal course of business, this check was banked at the First Security Bank, in Pocatello, from which it was forwarded to the paying bank in Chicago. D. W. Brewer testified that he did not recognize, as his signature, his name, written at the top of the check, when displayed to him in court.
The prosecution produced testimony from one Gerald MacPherson to the effect that, in January, 1962, he purchased from Thomas two of the guns which had been stolen from Donald Brewer's car. Counsel for Thomas interposed objections to this line of questioning on the ground that such evidence is not material, but the objections were overruled. The two guns were then offered in evidence. Counsel for Thomas objected to reception of this physical evidence on the ground that it was "* * * incompetent, irrelevant, and doesn't prove any of the issues in the case." The trial court, without calling upon the prosecution to state the purpose for which this evidence was offered, overruled the objection.
At the close of the Government's case, counsel for Thomas moved to strike the gun exhibits on the ground that there was nothing to connect Thomas with the original misappropriation of the weapons. As a further ground, counsel for Thomas told the court that the Government was in possession of facts which made it obvious that the original misappropriation of the weapons was by a person other than Thomas. A colloquy then occurred which, in material part, is quoted in the margin.1
On the basis of this colloquy, which was outside the presence of the jury, the trial court excluded the guns as exhibits. The court also granted the motion then made to strike the testimony of MacPherson and instruct the jury to disregard it. However, the court denied the motion that a mistrial be granted. In denying the latter motion, the court stated that it had confidence that the jury would follow the instructions of the court. The court then recalled the jury and gave the instruction quoted in the margin.2
At the close of the case counsel for Thomas did not request any further instruction pertaining to the excluded evidence. The court, however, gave certain closing instructions bearing upon the matter, as quoted below.3 After the jury retired, counsel for Thomas stated that he had no objection to the instructions given. In the motion for judgment of acquittal or, in the alternative, for a new trial, no point was made of the denial of the motion for a mistrial or of any other court action with regard to the matters described above.
We turn now to the asserted errors in connection with the described trial events.
No objection was made to the questions asked of Donald Brewer which elicited the information that the check in question was stolen from his car. Nor was the admission of that testimony plain error affecting substantial rights such as might be noticed, under Rule 52(b), Federal Rules of Criminal Procedure, although not brought to the attention of the court. This evidence was, in fact, relevant and material. It tended to show that, whether or not Thomas had anything to do with the theft, he did not have Donald Brewer's authority to cash that check.
Likewise, no objection was made to the questions which led Donald Brewer to testify that other articles, including the two guns, were stolen from his car at the same time the check was taken. As the case progressed it became clear that the purpose of this testimony was to lay a groundwork for the testimony of MacPherson connecting Thomas with the stolen guns. If MacPherson's testimony connecting Thomas with the guns was proper, a question to be discussed below, this foundation testimony would also be proper. If the connecting testimony was improper and prejudicial, plain, reversible error would be indicated without regard to Donald Brewer's testimony.
One of the essential elements which the Government had to prove was that Thomas was the man who presented the check in question to Christensen at the service station. Charles Brewer testified that Thomas was present on that occasion, and entered the station. Christensen identified Thomas as the man who entered the station and presented the check to him after at least going through the motions of signing it. But the prosecution was entitled to produce any other evidence it had that would tend to establish the identity of Thomas as the person who had presented the check. Especially is this so in view of the fact that, in cross examining Christensen, counsel for Thomas tried to cast doubt on Christensen's identification of Thomas.
One way to fortify the testimony identifying Thomas as the man who presented the check would be to show, through...
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