U.S. v. Presler

• Citation: 610 F.2d 1206
• Decision Date: 29 November 1979
• Docket Number: No. 79-5043,79-5043
• Parties: UNITED STATES of America, Appellee, v. Lee Alton PRESLER, a/k/a Robert Ray Presler, a/k/a Robert L. Curtis, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1206

610 F.2d 1206

UNITED STATES of America, Appellee, v. Lee Alton PRESLER, a/k/a Robert Ray Presler, a/k/a Robert L Curtis, Appellant.

No. 79-5043.

United States Court of Appeals Fourth Circuit.

Argued July 13, 1979.

Decided Nov. 29, 1979.

Michael S. Scofield, Charlotte, N. C., for appellant.

Wayne C. Alexander, Asst. U. S. Atty., Charlotte, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., and Harold J. Bender, Asst. U. S. Atty., Charlotte, N. C., on brief), for appellee.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The defendant appeals his conviction of the crimes of "fraud by wire" (18 U.S.C. § 1343) and of transportation in interstate commerce of fraudulently obtained property worth more than $5,000 (18 U.S.C. § 2314). The charges against the defendant grew out of a loan application by one Altman, a Myrtle Beach, South Carolina, real estate developer, induced by the defendant, who, using a false name, claimed to be a loan broker operating out of Charlotte, North Carolina, with close ties to the Teamster's Union in Illinois. The Government contended that the defendant represented to Altman that for an advance fee he would be able to secure for him a loan on a condominium being constructed by him at Myrtle Beach. Assuming the truthfulness of defendant's credentials, Altman began negotiations with the defendant as broker, looking to a loan of $1,250,000 on the condominium project. After several weeks' negotiations, including several telephone calls between the defendant in Charlotte, North Carolina, and Altman in Myrtle Beach, South Carolina, it was agreed that the defendant as broker would procure a loan on behalf of Altman in the amount of $1,250,000 in Chicago. The defendant was to receive for his services a brokerage fee of $50,000 plus a unit in the condominium project.

Pursuant to the understanding between them, the defendant and Altman went to Chicago to complete the loan. Altman carried, as contemplated by the agreement between him and the defendant, $50,000 in cash, which he was to pay to the defendant as a fee for procuring the loan. Included in the cash so carried by Altman was $35,000, procured by him from the First Union National Bank in Charlotte still in the original wrappers as delivered to Altman by the bank. The loan itself was to be received by Altman partially in cash ($250,000) and partially by a bank transfer ($1,000,000).

From this point there is a certain amount of confusion in the testimony, particularly that of Altman. Altman testified on direct examination that on the morning the loan transaction was to be completed, he delivered to the defendant the $50,000 in cash, which he had brought with him from Charlotte and which was to be the cash portion of defendant's fee. After this Altman and the defendant went to O'Hare Airport in Chicago, where the defendant purchased from Eastern Air Lines two tickets for a return trip by the two of them on the 6:40 p. m. Eastern flight to Charlotte, it being understood that the loan would be completed and that Altman would receive its proceeds in cash and by bank transfer before that time. Altman testified that, after they had reached the airport, he was instructed by the defendant to stand by a door at the airport and to wait for some gentlemen in a Cadillac car who would deliver to him the $250,000 to be received by him in cash under the expected loan. The defendant at this point excused himself to make a phone call and, when Altman turned his back, the defendant disappeared with the $50,000. Needless to say, no one arrived in a Cadillac automobile bearing the agreed $250,000. In the meantime, the defendant, without the knowledge of Altman, had, according to the Government, changed his flight from the 6:40 o'clock flight to an earlier 2:50 o'clock flight but did not change Altman's reservation on the 6:40 flight. When Altman proceeded to inquire later at the Eastern Air Line's desk about the defendant he was informed, according to his testimony, that the defendant had departed.

On cross-examination Altman gave a somewhat different account of the transactions at the airport during which the $50,000 cash fee was obtained by the defendant. Under this version Altman and the defendant were at the airport with the $50,000 still in the suitcase under the control of Altman. When, however, Altman's attention was directed elsewhere momentarily, the defendant grabbed the suitcase and disappeared with the money. The police authorities were called. Apparently, a check by the police authorities in both Chicago and Charlotte was made of passengers on the two flights on which the defendant had purchased tickets and of passengers alighting in Charlotte from such flights in an attempt to apprehend the defendant. The defendant was not observed among those either boarding the flight in Chicago or disembarking in Charlotte. Neither was there any proof that the ticket purchased by the defendant in his name had been used.

In order to support Altman's version of events, the Government introduced into evidence, over objections, certain First Union National Bank of Charlotte wrappers, stamped by the tellers with their identification numbers, found as a result of a search of a room occupied by the defendant in San Diego, California. It also introduced into evidence certain materials taken by members of the Sheriff's Department of Imperial County, California, in the course of a search of two locked briefcases belonging to the defendant. Included in this material were various loan applications received by the defendant from persons other than Altman. The Government also offered evidence of another proposed loan transaction where the defendant operating again under an assumed name (but not the one used by him in his dealings with Altman) had bilked a person other than Altman by the use of the same procedure as used in this case. ¹

It is the defendant's position on this appeal that the district court erred (1) in not suppressing the evidence procured in the search of his room in San Diego and in the search of his briefcases, (2) in admitting evidence of other loan transactions of the defendant, (3) in permitting improper jury argument by the district attorney, and (4) in failing to grant his motion for acquittal on the charge under § 2314. We find error in the failure of the district court to suppress the evidence obtained as a result of the two searches and in the failure to dismiss the count charging a violation of § 2314; but we perceive no error in the admission of evidence of other loan transactions participated in by the defendant or in the argument of the district attorney. We accordingly remand the action to the district court for a retrial of the "fraud by wire" counts of the indictment.

We first address the validity of the search of the defendant's apartment in San Diego. This search, conducted some weeks after the theft alleged in the indictment, resulted from the concern of the defendant's landlady for the defendant's safety because she had not seen him for some time and had detected an unusual odor emanating from the apartment she had earlier rented him. ² She requested the local police authorities to investigate the situation. When the officer responded to her request, she unlocked the door to defendant's apartment for him. The officer, on entering the apartment, found the defendant lying immobile on his bed covered with blood which he had apparently vomited. Upon examining the defendant the officer ascertained that he was alive, but concluded he was ill or drunk, or both, since he bore no evidence of having been shot or injured in any way. An ambulance was called to take the defendant to a hospital. While waiting for the ambulance, the officer noted some damage above the doorjam which appeared to have been caused by a buckshot. He inquired of the defendant where the shotgun was and was told it was under the bed. The officer looked under the bed, but found no shotgun.

After the defendant was taken to the hospital the officer made an exhaustive search of the entire apartment, looking, as he stated initially, for a shotgun, though subsequently he explained he was looking for a .25 caliber pistol. The officer justified his subsequent interest in a pistol by the discovery in the course of the search of a .25 caliber automatic pistol round on the floor in the bedroom carpeting. ³ The officer, though, found neither a shotgun nor a pistol in his search. He did, however, find in his search a black plastic box, the dimensions of which were 2 X 4 X 6 inches. He stated he opened and examined it because it could possibly have held a .25 caliber pistol. In this box the officer found no pistol but did discover money wrappers with bank identification of FUNB on them. It was these wrappers which were admitted in evidence over defendant's objection and in denial of his earlier motion to suppress. This was error.

In our opinion, Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, is dispositive of the invalidity of this search. In that case, an undercover police officer, backed up by a group of other officers, sought to complete a narcotics purchase at the defendant's apartment preparatory to a prearranged plan to consummate a "buy-bust." ⁴ When the undercover officer appeared at the apartment one of those present in the apartment with the defendant espied the accompanying officers and endeavored to prevent the undercover officer from entering the apartment. However, the undercover officer pressed his way in and encountered the defendant in a bedroom. Both the officer and the defendant began to fire, emptying their revolvers at each other. In the meantime, the other officers who had accompanied the undercover agent, had forced their way into the apartment and had overcome those present in the apartment. The undercover officer, however, was killed,...