U.S. v. Leach, 83-2362

• Decision Date: 26 November 1984
• Docket Number: No. 83-2362,83-2362
• Citation: 749 F.2d 592
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Don LEACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 592

749 F.2d 592

UNITED STATES of America, Plaintiff-Appellee, v. Terry Don LEACH, Defendant-Appellant.

No. 83-2362.

United States Court of Appeals, Tenth Circuit.

Nov. 26, 1984.

Rehearing Denied Feb. 14, 1985.

Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, Okl. (Layn R. Phillips, U.S. Atty., and Ben F. Baker, Asst. U.S. Atty., Tulsa, Okl., on brief), for plaintiff-appellee.

Carol J. Russo, Tulsa, Okl., for defendant-appellant.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Terry Don Leach (Leach) appeals his conviction following trial to the court, Honorable H. Dale Cook presiding, on counts 1 through 5 for the crime of uttering and passing forged counterfeit obligations of the United States pursuant to 18 U.S.C. Sec. 472 (Leach was acquitted on counts 6 and 7.) The court entered sentence as follows: count 1, three years imprisonment; count 2, three years imprisonment to run concurrent with count 1; probation of five years on each of counts 3, 4 and 5 to commence at the expiration of the sentence.

Factual Background

An Indictment identical in material allegations to the Indictment upon which Leach was convicted, and from which he now appeals, was filed against Leach on the 7th day of December, 1982, in the District Court for the Northern District of Oklahoma, bearing Case No. 82-CR-160. That Indictment was dismissed by the Government on the 9th day of February, 1983.

The Indictment upon which Leach was convicted, and from which he now appeals, was filed on the 8th day of June, 1983, in the District Court for the Northern District of Oklahoma. The Grand Jury charged, in counts 1 through 5, that Leach did, with intent to defraud, pass and utter to various retail establishments, forged and counterfeited obligations of the United States, that is, counterfeit $100 Federal Reserve Notes, purportedly drawn on the Federal Reserve Bank of Chicago, Illinois, "Series 1977, Check Letter C. Quadrant Number 2, Face Plate 109, Back Plate 54, Serial Number G11188646A" which Leach knew to be forged and counterfeited, in violation of 18 U.S.C. Sec. 472.

Some pretrial motions were filed by Leach on July 8, 1983, which were sealed and placed in the court vault, pursuant to a request by Leach for a protective order that was granted by the court. The Government filed its responses to Leach's pretrial motions on July 12, 1983. Some of these responses were sealed and placed in the court vault, pursuant to the previously issued protective order.

In Camera conferences were held on July 26, 1983, and August 1, 1983, the subject of which were the sealed motions of Leach and the sealed responses by the Government.

Even though the argument and testimony submitted during the In Camera conferences cannot be discussed herein, Leach does rely on those matters as his primary basis of appeal. The trial court denied Leach's sealed motions, and, at the conclusion of the second conference, a hearing was held in open court on Leach's Motion to Suppress.

At the hearing on the Motion to Suppress, Secret Service Agent Donald R. Newsom (Agent Newsom) testified; during this testimony, over defense objection, a written statement by Leach was admitted. Leach testified at that hearing as to the voluntariness of his written statement. The Motion to Suppress was denied. The case was then set for jury trial on August 15, 1983. On that date, Leach waived his right to jury trial and trial was set for August 19, 1983. Leach filed a motion for a statement of particulars on August 26, 1983. That motion was not ruled on prior to trial.

On August 29, 1983, the case came on for non-jury trial. The following testimony and evidence was adduced at trial:

1. With respect to COUNT 1: Leach was charged with passing a counterfeit $100 note at a Pure-Gold service station in Tulsa, Oklahoma, on October 14, 1982. Government witness Phyllis Lancaster testified that she was employed at Guaranty National Bank in Tulsa, and detected the counterfeit note in a bank deposit on October 14, or October 15, 1982; she did not know where the counterfeit note came from, nor did she initial it. Agent Newsom testified that his office was then contacted, and his office subsequently received and retained the counterfeit note.

2. With respect to COUNT 2: Leach was charged with passing a forged counterfeit 3. With respect to COUNT 3: Leach was charged with passing a counterfeit $100 note at a Burger King restaurant in Tulsa, Oklahoma, on October 14, 1982. Bill Hodges testified that he was an employee of F & M Bank in Tulsa, Oklahoma, on that date. He testified that some time thereafter a counterfeit note was received at the bank where he was employed; he did not know where the counterfeit note came from, nor that it was received on or about October 14, 1982. Agent Newsom testified that his office subsequently received a counterfeit $100 note from F & M Bank in Tulsa.

$100 note at a Skaggs store in Tulsa, Oklahoma, on October 14, 1982. Jack Williams testified that he was the manager of that store on that date. He detected a counterfeit $100 note in one of the cashier drawers, and then contacted the Tulsa Police Department, who received the note and transported it to the Tulsa Police Department property room. The testimony of Tulsa police officer Don Baker, as to his receipt and transportation of the note, was stipulated and accepted by the court. Agent Newsom testified that his office subsequently received that note.

4. With respect to COUNT 4: Leach was charged with passing a counterfeit $100 note at a Braum's Ice Cream store in Tulsa, Oklahoma, on October 14, 1982. Cora Powers testified that on October 14, 1982, she was employed at the Braum's store in question. She received what was later determined to be a counterfeit $100 note during the course of her employment on that date. She testified that a cowboy-looking man between the age of thirty and forty years of age had, she thought, passed the note. She testified that she put it, with other cash receipts, in the store safe. She did not know that it was counterfeit at the time. Regina Searles testified that as an employee of Brookside State Bank in Tulsa, Oklahoma, she received the deposit from Braum's Ice Cream store, and discovered the $100 note to be counterfeit. There were no initials on the note. She turned it over to her supervisor. Agent Newsom testified that his office subsequently received the counterfeit note from Brookside State Bank, and retained control over it until trial.

5. With respect to COUNT 5: Leach was charged with passing a counterfeit note at a Wendy's Old-Fashioned Hamburgers store in Tulsa, Oklahoma, on October 14, 1982. Gary Saas testified that he was the manager of that Wendy's, when he received a counterfeit note. He did not know the exact date. He testified that he determined the note to be counterfeit upon receipt of it, and described the vehicle in which the passer of the counterfeit note was driving as a Chevrolet Blazer, late model, bearing vehicle tag MKK 658. He initialled the note and gave it to a Tulsa Police officer. He testified that approximately two to three weeks after the incident a Secret Service agent brought him a photographic line-up consisting of four photos. He identified one of the four photos as looking most like the person who passed the note. He further testified that the person who passed the note was approximately twenty-five to thirty years of age, had brown hair, stood approximately 5 foot 10 inches, and weighed between 160-180 Lbs. Agent Newsom testified that his office received the note and retained control over it until trial.

Gary Humphrey testified that he was the owner of the vehicle described by witness Gary Saas. He testified, in pertinent part, that he had loaned this vehicle to Leach some time prior to October 14, 1982, and did not receive it back from him until some time after that date.

None of the Government witnesses identified Terry Don Leach as the person who passed a forged $100 note to any of them.

Agent Newsom testified, in pertinent part, that many other counterfeit notes, identical in every respect to those for which Leach was charged, were passed in Tulsa, Oklahoma between October 12, 1982, and November 1, 1982; that Leach was not charged with having passed any of those notes, and that his office did not possess any evidence to suggest that Leach passed or uttered those notes.

In addition to Leach's own statement admitting the actual offenses charged placing him at the place or scene on specific dates, the evidence is undisputed that Leach knew the $100.00 bills to be counterfeit. To be sure, positive identification was lacking, but Leach's sworn statement of involvement is corroborated by direct and circumstantial evidence and reasonable inferences to be drawn therefrom. The record contains Agent Newsom's expert testimony that each note was counterfeit. Leach's presence in Tulsa, Oklahoma, during the period the counterfeit bills were passed was corroborated by a Mr. Humphrey, who had previously loaned Leach a 1978 blue and silver chevrolet suburban; witness Saas, the manager of Wendy's store in Tulsa on October 14, 1982, identified the automobile the person who passed the $100.00 counterfeit bill that date was operating by make, model and vehicle license number. The vehicle was registered to Mr. Humphrey, who had previously loaned it to Leach.

At the conclusion of the Government's case-in-chief, Leach moved for a judgment of acquittal, which was denied by the court. Leach rested. The trial court then found Leach guilty on Counts 1 through 5 and not guilty on Counts 6 and 7.

Appellate Contentions

On appeal, Leach contends that his convictions should be reversed because he was denied a fair and impartial trial, through no fault of his own, and that the convictions were obtained in violation of his rights to due process of law. He points to these specific errors by virtue of the trial court's actions: (1)...