U.S. v. Prewitt

• Citation: 553 F.2d 1082
• Decision Date: 19 May 1977
• Docket Number: No. 76-1998,76-1998
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. W. PREWITT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1082

553 F.2d 1082

UNITED STATES of America, Plaintiff-Appellee, v. J. W. PREWITT, Defendant-Appellant.

No. 76-1998.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 16, 1977.

Decided May 19, 1977.

Michael A. Kiefer, Indianapolis, Ind., for defendant-appellant.

James B. Young, U. S. Atty., Bradley L. Williams, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before SWYGERT, CUMMINGS and BAUER, Circuit Judges.

PER CURIAM.

In this case defendant J. W. Prewitt appeals his conviction by a jury for intentionally passing an altered postal money order in violation of 18 U.S.C. § 500. ^* He also challenges the district court's actions in twice citing him for contempt and sentencing him to six months' imprisonment for each citation. We affirm the conviction for passing the altered money order and vacate the contempt convictions, remanding the issue of contempt for a jury trial.

I

Defendant first contends that the district court erred in not suppressing correspondence taken from his bedroom following his arrest. This correspondence tended to establish that he knew of the altered character of the money orders that he tried to pass, a requisite element for conviction under 18 U.S.C. § 500.

In support of this contention defendant argues that probable cause did not exist for his arrest, thus tainting the subsequent search. The facts surrounding the arrest are that Prewitt entered the Sacks Brothers Loan Company in Indianapolis on December 19, 1975 and offered as payment for a rifle a postal money order for $291. The proprietor suspected that the money order was stolen because it was carelessly folded up and had not been filled out. He contacted the postal inspectors, who immediately arrived and determined that the money order was not stolen. After the postal inspectors left, Prewitt told the proprietor he also wished to purchase a movie camera, projector, and screen. He proposed to pay for this merchandise with another postal money order for $291 which was also crumpled haphazardly. The proprietor again notified the postal inspectors of his suspicions. The postal inspectors then traced both money orders through their serial numbers and discovered that they had been issued in the amount of $1. This caused them to arrest Prewitt.

We hold that these circumstances gave the postal inspectors probable cause to make the arrest. Both money orders were made out for identical odd large amounts but were haphazardly folded as if they were not of great worth. Moreover, Prewitt only attempted to use the second money order after the postal inspectors had implied that the first was legitimate because it was not stolen. Given these facts, the postal inspectors were justified in taking the relatively simple step of tracing the origin of the money orders, which in no way impinged on Prewitt's rights. Once they had done so, the fact that the money orders had been altered further justified arresting the man who tried to spend them.

Defendant also asserts that the correspondence should have been suppressed because he was forced to "authenticate" the letters in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The basis of this claim is that: (1) the search warrant obtained by the postal inspectors only permitted seizure of correspondence from Charles Baker to J. W. Prewitt; (2) the postal inspectors nonetheless seized letters from Charles Baker to "Maji Mabarafu" because Prewitt had admitted that he used the alias Maji Mabarafu; and (3) this information was obtained from Prewitt without Miranda warnings.

We find no merit to this argument. Prewitt was given Miranda warnings when he was arrested on December 19, 1975. On December 22, he was photographed, fingerprinted, and asked whether he used any aliases. This question was routinely asked of arrested persons for the purpose of obtaining identifying information. The requirements of Miranda do not attach to the taking of a defendant's aliases in circumstances such as these. The Fifth Amendment prohibits only compelled testimony, and the fact that defendant has certain identifying characteristics which police officials record does not render the disclosure of those characteristics testimonial in character. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). An alias is as much an identifying characteristic as a defendant's voice or handwriting, and the Supreme Court has held that the compelled production of voice or handwriting exemplars does not violate the Fifth Amendment. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Our analysis is in accord with that of other circuits with respect to whether Miranda warnings must be given when background data is gathered. See, e.g., United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 112-13 (2d Cir. 1975); United States v. Martinez, 512 F.2d 830, 833 (5th Cir. 1975).

Prewitt's final argument in support of his claim that the correspondence should have been suppressed is that the warrant, which specified only "correspondence between Charles Baker and J. W. Prewitt" as its object, was too broadly drawn to satisfy the Fourth Amendment. We disagree. At the time the warrant was issued, greater particularity was not possible. Moreover, the description contained in the warrant delineated the property to be seized with enough precision to prevent the police from engaging in a "fishing expedition." The Fourth Amendment, which only prevents "unreasonable" searches and seizures, does not demand that the police be able to minutely identify every item for which they are searching.

Therefore, we hold that the district court did not err in refusing to suppress the correspondence taken from Prewitt's bedroom. Prewitt also asserts that a third money order that was in his possession when he was arrested should have been suppressed because the arrest was made without probable cause. For reasons we have already stated, we find this argument to be meritless.

II

Defendant next contends that the district court committed reversible error when it twice refused to order an examination to ascertain whether he was mentally competent. The first occasion was at the outset of trial and the second was during sentencing.

There is no substance to defendant's claim with respect to the first occasion. The trial took place in September 1976. Defendant had been examined at a federal facility in Springfield, Missouri in April 1976 and found competent to stand trial. Moreover, a psychiatrist who examined Prewitt on August 30, 1976, two weeks before the commencement of trial, found him "coherent, self concept explicit, (and) aware of his own action well enough to stand trial at present." The results of this examination were available to the district court. Given these two uncontroverted findings that Prewitt was competent to stand trial, the district court was under no obligation to order a third examination.

The district court's refusal to order another mental examination before sentencing presents more troublesome questions. Defendant interrupted the trial on a number of occasions with obstreperous behavior. At the sentencing hearing the district court was presented with a letter, dated September 22, 1976, from the psychiatrist who had examined the defendant on August 30. The letter stated that Prewitt had deteriorated considerably since the previous evaluation and "was grossly out of contact with reality."

The district court found that the defendant's conduct during trial was a conscious attempt to disrupt the proceedings motivated by pique because he was refused a continuance and was not based on mental incompetence. The determination of competence is factual and we cannot overturn the district court's finding unless it was clearly erroneous.

We are convinced that the district court's finding was supported by substantial evidence. The defendant's outbursts were conveniently timed to interrupt the prosecution's case. Moreover, a handwritten posttrial motion to reduce the appeal bond that the defendant drafted himself shows great lucidity, belying any argument that he was incompetent. It was within the district court's discretion to reject the conclusion drawn by the psychiatrist in the September 22 letter insofar as that conclusion qualified the psychiatrist's finding twenty-three days earlier that the defendant was competent to stand trial. Hodges v. United States, 408 F.2d 543, 555 (8th Cir. 1969). Accordingly, we hold that the district court's refusal to order a mental examination of the defendant before sentencing was not reversible error.

III

A.

Defendant challenges the district court's refusal to tender the following jury instruction:

The Court now instructs you that you may not under the law presume the guilt of the defendant of the crimes charged solely on the basis of the defendant's possession of postal money orders regardless of whether they were in fact altered in some material way.

He asserts that in the absence of this instruction the jury was encouraged to convict him without finding that he had knowledge of the altered character of the money order he had passed an essential element of the crime charged.

This argument is insubstantial. The district court instructed the jury that to convict the defendant it must find beyond a reasonable doubt:

First: That the defendant attempted to pass a materially altered money order.

Second: With intent to defraud.

Third: With the knowledge that such money order contained a material alteration.

Thus, the jury knew that knowledge was an essential element of the crime defined by 18 U.S.C. § 500.

B.

The defendant also objects to the following instruction which the district court did tender to the jury:

The word "knowingly" as used in the crime charged means that the act was done voluntarily and purposely,...