United States v. Casteel, 72-1644.

• Decision Date: 29 March 1973
• Docket Number: No. 72-1644.,72-1644.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James CASTEEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.2d 152 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James CASTEEL, Defendant-Appellant.

No. 72-1644.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted January 10, 1973.

Decided March 29, 1973.

Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce E. Miller, and Richard L. Meyer, Asst. U. S. Attys., on the brief), for plaintiff-appellee.

Sam A. Crow, of Crow & Skogg, Topeka, Kan., for defendant-appellant.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

James Casteel was convicted by a jury of transporting in interstate commerce two forged checks in violation of 18 U. S.C. § 2314. He now appeals and we affirm.

It was stipulated at trial that Casteel caused to be transported in interstate commerce from Topeka, Kansas, to Kansas City, Missouri, the two checks in question, cashing one check at Falley's Market, in Topeka, and the second at Sutton's Market, also in Topeka. It was further stipulated that each of the checks had been forged by one Thomas Dorsey. Accordingly, the only real issue in the case was whether Casteel knew at the time he cashed the checks that they were forged or falsely made instruments.

Evidence adduced upon trial disclosed that one Dee Osborn had her purse stolen while working at a Montgomery Ward store in Topeka. In Miss Osborn's purse was her checkbook containing blank checks on a Kansas City, Missouri, bank. The two checks which formed the basis for the present prosecution were identified by Dee Osborn as being hers, each bearing her printed name on its face. Each check also bore a maker's signature which purported to be that of Miss Osborn. Miss Osborn denied, however, that such purported signatures were in fact hers, and testified that she had given no one permission to sign her name for her.

As above indicated, it was stipulated that one Thomas Dorsey had made out the face of each of the two checks, forging in each instance the signature of Dee Osborn as the maker of the check. James Casteel was the named payee on each check, and he in turn endorsed each check as the payee in cashing them at the two markets in Topeka.

As mentioned, the only real issue in the case was whether Casteel had so-called guilty knowledge when he cashed the two checks, i. e., knowledge of the falsity of the checks. To establish this element of the offense, the Government relied chiefly on the testimony of two lady employees of a local Topeka concern known as Research & Data Corporation, hereinafter referred to as R & D. The nature of that company's business was described by one witness as follows:

"Our Research & Data works with merchants, and business and law enforcement on bad checks, shoplifting and other similar types of losses. Primary purpose is the prevention of these crimes. The businesses do send in their losses such as checks to us to work on. We are employed by the business on a monthly employment basis like an employee * * *."

The two employees of R & D testified that the two checks in question were referred to them by the two markets which had initially cashed them, the checks having been returned to the markets after payment had been stopped. One employee testified that she telephoned Casteel and asked him to drop into her office and discuss the two checks in question. Several weeks later Casteel did appear at the offices of R & D where he was interviewed concerning his knowledge of the two transactions. Both of these employees testified that on that occasion Casteel stated that it was he who had endorsed the two checks and that he knew the "checks were bad when he cashed them." According to these two witnesses, Casteel was advised that what he had said could be used against him in court, and that he replied that he knew it. Casteel then left the offices of R & D and was not arrested till sometime later.

Casteel testified at his trial that he did not know the checks were forged when he cashed them, though he did know they were forged when he was interviewed by the employees of R & D. Casteel then went on to testify that the checks in question were given him by his friend, Thomas Dorsey, in exchange for some auto parts. Casteel explained the fact that the maker's signature on each of the two checks was purportedly that of Dee Osborn, and not that of Thomas Dorsey, by testifying that he just assumed that Miss Osborn was a friend of Dorsey and was buying the parts for him. Casteel's testimony was corroborated to some degree by his sister and his mother. Neither the Government nor Casteel called Thomas Dorsey as a witness, a fact that will be referred to in more detail in a moment.

At trial, objection was made to the admission into evidence of the statements made by Casteel to the employees of R & D on the ground that Casteel was not given a full and effective warning of his constitutional rights at the outset of the interrogation process as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In fact, says counsel, Casteel was given no warning, let alone a full and effective one. This objection was overruled by the trial court and the principal contention in this court concerns the propriety of that ruling.

At the outset it is to be noted that R & D is a private enterprise, and not a public law enforcement agency. According to the record, R & D received the two checks here in question from the two markets which had cashed the checks, each market being a subscriber to the services afforded by R & D. The latter then made its investigation of the matter, which included an interview with Casteel, with the checks in question being ultimately forwarded to the FBI The two employees of R & D had no special powers of arrest and their testimony was that they could only ask Casteel to come to their offices, which he did after a delay of several weeks, and that at the conclusion of the interview Casteel was free to leave, which he did. There is nothing in the record before us to indicate that R & D in its investigation of the matter was acting as an alter ego of any law enforcement agency, or was in anywise in collusion with any such agency. Nor is there any...