U.S. v. Parr-Pla, PARR-PL

• Decision Date: 03 March 1977
• Docket Number: No. 75-1604,D,PARR-PL,75-1604
• Citation: 549 F.2d 660
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernieefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 660

549 F.2d 660

UNITED STATES of America, Plaintiff-Appellee, v. Ernie PARR-PLA, Defendant-Appellant.

No. 75-1604.

United States Court of Appeals, Ninth Circuit.

March 3, 1977.

Ernie Parr-Pla pro se, Charles E. McClung, Fleming, Anderson & McClung, Pasadena, Cal., for defendant-appellant.

Lawrence Semenza, U. S. Atty., Richard Wright, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before BROWNING and WALLACE, Circuit Judges, and WILLIAMS, District Judge. ^*

OPINION

PER CURIAM:

Appellant was convicted of causing the interstate transportation of American Express Travelers Cheques with knowledge the checks contained counterfeit signatures and were stolen, and with possession of the checks with knowledge they were stolen.

1. Appellant challenges the sufficiency of the evidence that he knew the checks were stolen.

A government witness testified appellant telephoned him in Las Vegas and asked the witness to meet appellant's flight from San Francisco to Las Vegas. The witness agreed. When appellant disembarked he was carrying a black briefcase which he eventually left with the witness, who turned it over to the police. The briefcase contained approximately $22,000 worth of stolen American Express Travelers Cheques. The traveler's checks were unsigned, although at the time such checks are purchased they must be signed on the top line by the purchaser in the presence of the seller.

Other evidence established that appellant had obtained his plane ticket under a false name. Appellant later attempted to cash ten $20 traveler's checks. The cashier testified that when he told appellant he was going to verify the traveler's checks by telephone, appellant became noticeably nervous and asked him not to do so. When appellant was arrested, 20 traveler's checks were found in his pockets, half of them signed at the top, the other half blank. After his arrest appellant called the witness with whom he had left the black briefcase and asked him to keep it for him for two or three years. Appellant admitted to an FBI agent that he knew he had violated the law and expected to be imprisoned. Appellant took the stand on his own behalf. His explanation of the circumstances contradicted that of other witnesses in important respects.

The jury may infer solely from unexplained possession of recently stolen property that the possessor had knowledge the property was stolen. Barnes v. United States, 412 U.S. 837, 841, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Even without the benefit of the inference, the evidence of appellant's knowledge is overwhelming.

2. Over appellant's objection, government counsel in his opening statement undertook to list the essential elements of the offenses charged. It is the duty of the court, not counsel, to advise the jury as to the law, but departure from this rule is not reversible error absent some possibility of prejudice in the particular case. See Copeland v. United States, 80 U.S.App.D.C. 308, 152 F.2d 769, 770 (1945). Appellant has suggested none in this case.

3. Appellant contends that two statements admitted in evidence were taken from him in violation of Miranda v Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

One of the statements was made to a private investigator employed by a hotel. Miranda does not apply to purely private interrogation. United States v. Birnstihl, 441 F.2d 368, 370 (9th Cir. 1971). The hotel investigator had been a deputy sheriff for 18 years. He had retired, however, and had no affiliation with any government law enforcement agency at the time he questioned appellant. There was no evidence that he acted as an agent of a law enforcement agency, see United States v. Birnstihl, supra, or that he questioned appellant at the suggestion or in aid of law enforcement officers, see Corngold v. United States, 367 F.2d 1, 4-5 (9th Cir. 1966).

The second statement was made to an FBI agent. It was admitted without objection. Its admission was not plain error. Indeed, it may not have been error at all. Whether the Miranda rule was violated depends upon facts that were not developed on the record. Because no objection was made, no hearing was held as to the circumstances surrounding the taking of the statement. Even if error clearly appeared, however, this is not a case in which the error, though not objected to, must be noticed "to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process." Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). Moreover, appellant's counsel opened the door to admission of the full conversation by asking the FBI agent on cross-examination whether appellant had made a particular statement in the course of the conversation. See United States v. White, 377 F.2d 908, 911 (4th Cir. 1967).

4. Appellant argues that on redirect examination of the FBI agent the government was permitted to elicit certain testimony appellant characterizes as "double hearsay."

During cross-examination of the agent, appellant's counsel asked the agent whether he had "any evidence or any report of any kind that would show that any of these . . . traveller's checks were ever in the possession of (appellant) in California." The agent replied, "I don't believe I do." On redirect the witness was permitted to refresh his recollection by referring to a report regarding the investigation and then to testify that the answer he had given on cross-examination was not correct and that he had in fact received a report from another agent in San Francisco to the effect that appellant's girlfriend had said that appellant had $2,000 to $3,000 in traveler's checks in his possession in San Francisco approximately one week prior to the Las Vegas events. Since cross-examination was directed precisely to whether the witness had "any report of any kind" indicating possession by appellant of the traveler's checks in California, the redirect examination was clearly proper.

5. Similarly, appellant's counsel, by inquiring on cross-examination of appellant's girlfriend whether she knew appellant was on "probation," opened the door to the disclosure on redirect examination of the fact that appellant had been convicted of murder.

6. Particularly because of the latter trial incident, appellant's counsel on appeal contends that the assistance given to appellant by trial counsel did not meet minimum constitutional...