U.S. v. Sailer, 76-1937
| Decision Date | 06 June 1977 |
| Docket Number | No. 76-1937,76-1937 |
| Citation | 552 F.2d 213 |
| Parties | UNITED STATES of America, Appellee, v. Margaret SAILER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Irvin B. Nodland, Bismarck, N. D., on brief for appellant.
Harold O. Bullis, U. S. Atty., Fargo, N. D. and James S. Hill, Asst. U. S. Atty., Bismarck, N. D., on brief for appellee.
Before WEBSTER and HENLEY, Circuit Judges, and MEREDITH, * District Judge.
Margaret Sailer appeals from her conviction of obtaining a post office box key by false pretenses, in violation of 18 U.S.C. § 1704, and stealing a letter from the box, in violation of 18 U.S.C. § 1708. Her sole contention on appeal is that the District Court 1 erred in denying her petition for authorization to employ a handwriting expert at government expense, pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1).
The indictment in this case, returned April 7, 1976, contained thirteen counts. Count One charged appellant with obtaining by false pretenses a key to a post office box held by Morgan & Associates, M.D.'s, her former employer. Counts Two through Thirteen charged her with stealing ten letters containing checks from the box, and forging endorsements on two of the checks that were U. S. Treasury checks.
Appellant's retained counsel entered his appearance on May 5, 1976. On July 12, he first moved for authorization to retain Veda Naeve, a handwriting expert, as a defense witness at the government's expense. The motion was unsupported by any showing that the defendant was without funds with which to pay the expert. The motion did not state for what purpose the expert was to be retained or offer to make an ex parte showing of purpose. On July 30, appellant filed an affidavit showing income of $415.00 per month, no assets, and liabilities of $8,430.26. She renewed her motion seeking authorization of expert testimony, alleging that Naeve had examined copies of documents which the government claimed she had signed, and that Naeve had concluded that she in fact had not signed them.
On Monday, August 9, a week before the trial setting, the District Court denied the motion for authorization of government funds. Counsel was then able to procure private funds, and retained Naeve on Thursday, August 12. Appellant's counsel at no time moved for a continuance, and the case proceeded to trial to the court on August 16.
The government's evidence showed that appellant had been employed by Morgan & Associates until her discharge in August, 1973. One of her duties was to maintain the corporation's accounts receivable records, which were in a state of disarray on her departure. During her employment, she had access to the corporation's post office box by way of a key which she surrendered at the time of her termination.
On March 7, 1974, someone filed an application for a new key to the post office box in the name of "Gwen Brady." Mrs. Brady, an employee of Morgan & Associates, testified that the signature on the application was not hers. Subsequently, ten checks that were mailed to the post office box were not received by the corporation. These checks were cashed, after being endorsed with a stamp bearing the corporate name. Each bore the notation "MM." One also bore the signature "M. Morgan," and a second the signature "Margaret Sailer." Dr. Margaret Morgan, a principal in the corporation, testified that none of the writing on the checks was hers.
James Lynn, a Postal Service handwriting expert, testified that the "MM" notations, the "M. Morgan" signature, the "Margaret Sailer" signature, and certain identification numbers on some of the checks were written by appellant. In addition, he testified that certain writing on the post office box key application was appellant's. The government also produced the testimony of a teller at a bank where one check was cashed, who identified appellant as the person who cashed the check.
Appellant took the stand in her own behalf and denied any knowledge of or participation in the crimes charged.
Veda Naeve, the handwriting expert, testified at length for appellant. She gave an opinion that the initials "MM" written on nine of the checks were not those of appellant, that the employer identification numbers were not written by appellant, and that the Margaret Sailer and M. Morgan signatures were also not written by her. Naeve refused to give an opinion, however, about the handwriting on the post office box key application. She said of the application, "I can give an opinion with time for examination and lab time, but I will not give an opinion on this document." She repeatedly asserted that she had not had sufficient time to examine the documents and form an opinion.
The District Court, acting as trier of fact, found appellant not guilty on eleven counts of the indictment. It found her guilty on Count One, false application for a post office box key, and Count Twelve, theft of the check for which the government produced an eyewitness. Appellant received a sentence of six months' imprisonment on Count One; sentencing on Count Twelve was deferred, and appellant was placed on one year's probation.
On appeal, appellant contends that the District Court erred in refusing to authorize payment of Naeve's fee from government funds, that because of this refusal Naeve's entering into the case was delayed, and that Naeve therefore did not have sufficient time to analyze the post office box key application. Appellant argues that, if Naeve had testified regarding the application, her testimony would have created a reasonable doubt about the government expert's testimony.
Appellant's claim that she was entitled to government payment for her expert's services is based on 18 U.S.C. § 3006A(e)(1), which provides:
Upon request. Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.
This Court has formulated the following standard for authorization of services under § 3006A(e)(1): "While a trial court need not authorize an expenditure under subdivision (e) for a mere 'fishing expedition', it should...
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