U.S. v. Grismore

• Citation: 546 F.2d 844
• Decision Date: 08 November 1976
• Docket Number: No. 75-1880,75-1880
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John F. GRISMORE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 844

546 F.2d 844

UNITED STATES of America, Plaintiff-Appellee, v. John F. GRISMORE, Defendant-Appellant.

No. 75-1880.

United States Court of Appeals, Tenth Circuit.

Submitted Sept. 21, 1976.

Decided Nov. 8, 1976.

James L. Treece, U. S. Atty., J. Terry Wiggins, Sp. Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.

John F. Grismore, pro se.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

John F. Grismore, (Grismore), appeals a conviction for three counts of violating 18 U.S.C.A. § 472, uttering and possessing counterfeited obligations of the United States.

The conviction was the result of an incident that took place on October 31, 1974, in Denver, Colorado. Grismore flew to Denver to sell four hundred liberty medallions to a Robert Wagner. Grismore received the purchase price in cash in a brown paper sack and two large white envelopes allegedly containing escrow agreements. After the transaction was completed, Grismore allegedly noticed upon closer examination that Wagner had paid in counterfeit money. Grismore separated the money according to denomination and found that a small amount of it was genuine currency. He then purchased a pair of sox from Rex Bell with a ten dollar federal reserve note, which felt unusual to Bell who took it to a local banker who identified it as counterfeit. Later a United States Secret Service Agent confirmed the fact that the bill was counterfeit.

When Grismore was arrested, he had an additional counterfeit federal reserve note in his possession. Upon execution of a search warrant the following items, among others, were seized from Grismore's rental car: (1) sixteen pages each of 50 and 100 dollar counterfeit federal reserve notes, each page containing four fully printed notes, (2) $5,690.00 face value counterfeit federal reserve notes, and (3) a briefcase containing various other items.

Grismore testified at trial that he did not know the two ten dollar bills were counterfeit, that he had no intent to defraud anyone, and that he believed this case was a part of a conspiracy by government agents to frame him because of his vocal resistance of the tax laws of the United States. He further testified that he was an experienced printer and that he had the equipment necessary to print counterfeit money.

Grismore's main contentions on appeal are: (1) Does the right to counsel include the right to assistance by a layman? (2) Does the word "obligation" as contained in 18 U.S.C.A. § 472 properly include federal reserve notes? (3) Was the jury that tried him fair and impartial? (4) Was the jury properly instructed as to the use of the uncut federal reserve notes? (5) Was the evidence improperly tampered with by the prosecution thereby giving him a right to a new trial?, and (6) Was his trial counsel competent?

I.

Grismore contends that he was denied his right to counsel as guaranteed by the Sixth Amendment to the Constitution of the United States because he was not allowed to have the person he requested represent him. Grismore requested the court to allow Jerome Daly to represent him. Mr. Daly is not a member of any Bar Association, having been disbarred by the Minnesota Supreme Court. In re Daly, 291 Minn. 488, 189 N.W.2d 176 (1971). The court denied Grismore's request:

. . . the procedure which will be followed in this case will be that either you represent yourself or you have counsel retained who is a member of the Bar of this Court, or you may proceed with your court appointed counsel.

(R., Vol. I, p. 4.)

Grismore chose to be represented by court appointed counsel who handled all arguments and the examination of all witnesses.

The Constitution does not provide the right of representation by a lay person. "Counsel" as referred to in the Sixth Amendment does not include a lay person, rather "counsel" refers to a person authorized to the practice of law. United States v. Cooper, 493 F.2d 473 (5th Cir. 1974), cert. denied, 419 U.S. 859, 95 S.Ct. 108, 42 L.Ed.2d 93 (1974); Guajardo v. Luna, 432 F.2d 1324 (5th Cir. 1970); Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), reversed on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961).

Even in those instances where it has been held to be permissible for a lay person to represent a criminal defendant, it is within the discretion of the trial judge to disallow such representation. United States v. Jordan, 508 F.2d 750 (7th Cir. 1975); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); United States v. Stockheimer, 385 F.Supp. 979 (W.D.Wis.1974).

Jerome Daly has been denied the right to represent a criminal defendant at trial prior to this case. United States v. Corrigan, 401 F.Supp. 795 (D.Wyo.1975) and Turner v. American Bar Association, 407 F.Supp. 451 (N.D.Tex.1975).

The trial court did not commit error in denying Grismore's request that Jerome Daly be permitted to represent him.

II.

Grismore contends that 18 U.S.C.A. § 472 is unconstitutionally vague because it contains the word "obligation" of the United States which he argues does not properly include federal reserve notes. We hold that this contention is without merit.

"The term 'obligation or other security of the United States' includes . . . Federal Reserve notes, Federal Reserve bank notes . . ." 18 U.S.C.A. § 8. Congress has thus specifically included federal reserve notes within the purview of 18 U.S.C.A. § 472. "Normally, a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts." United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970). Federal reserve notes are clearly obligations of the United States because, " . . . The said notes shall be obligations of the United States and shall be receivable by all national and member banks and Federal reserve banks . . . They shall be redeemed in lawful money on demand . . ." 12 U.S.C.A. § 411.

We have held that mutilated federal reserve notes are obligations of the United States. United States v. Drumright, 534 F.2d 1383 (10th Cir. 1976). Logic dictates that a complete federal reserve note is an " obligation." A person of reasonable intelligence is certainly aware that it is a violation of 18 U.S.C.A. § 472 to counterfeit a federal reserve note.

III.

Grismore contends that he was denied a fair trial because of various errors committed in the process of choosing the jury and because of an erroneous court instruction to the jurors as to their duties. We disagree.

A.

Grismore challenges the array because the selection process was from a voter registration list which he contends excludes a substantial portion of the community. Grismore made no objection to the jury array before voir dire examination. Furthermore, he accepted the jury and thus waived his right to object. 28 U.S.C.A. § 1867; Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Leggroan v. Smith, 498 F.2d 168 (10th Cir. 1974); United States v. Jobe, 487 F.2d 268 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974).

Even had Grismore made a timely objection, he did not meet his burden of showing that the selection process systematically and arbitrarily excluded a cognizable class from jury service to his prejudice. United States v. DeAlba-Conrado, 481 F.2d 1266 (5th Cir. 1973). The use of voter registration lists has been upheld even if an identifiable group votes in a proportion lower than the rest of the population. United States v. Freeman, 514 F.2d 171 (8th Cir. 1975); United States v. Lewis, 472 F.2d 252 (3rd Cir. 1973); United States v. Guzman, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973); United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); Camp v. United States, 413 F.2d 419 (5th Cir. 1969), cert. denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969). Therefore, the jury array was well within the standards of a "cross-section" of the community.

B.

Grismore challenges the voir dire examination because it was conducted by the judge and not by counsel. This contention is frivolous and wholly without merit.

Fed.Rules Cr.Proc., Rule 24(a), 18 U.S.C.A. allows the judge to conduct the voir dire examination personally. It is the practice in this Circuit for the court to ask the voir dire questions. United States v. Hall, 536 F.2d 313 (10th Cir. 1976); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Addington, 471 F.2d 560 (10th Cir. 1973); Brundage v. United States, 365 F.2d 616 (10th Cir. 1966). It is discretionary with the trial judge to permit the attorneys to supplement the questioning, but the court has discretion in deciding what questions are to be asked. The court's discretion will not be disturbed. United States v. Hill, supra.

C.

Grismore contends that the court erred in not dismissing Carol J. Lopez from jury service for cause.

Mrs. Lopez testified that her husband was a police officer, that she knew a great many police officers and that, "I know what it is to prove a case. I have been in court a lot . . ." (R., Vol. III, p. 184.) Grismore argues that she, Mrs. Lopez, was "overqualified." Significant, we believe, is Mrs. Lopez' further testimony that she could serve as a fair and impartial juror. The court did not err in refusing to excuse her for cause. The defense exercised its last preemptory challenge and excused Mrs. Lopez.

The qualification of Mrs. Lopez to serve as a fair and impartial juror rested within the discretion of the trial court. The trial court's determination will not be disturbed on appeal absent a clear showing of abuse of...