United States v. Hack, 10805.
| Decision Date | 16 July 1953 |
| Docket Number | No. 10805.,10805. |
| Citation | 205 F.2d 723 |
| Parties | UNITED STATES v. HACK. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George R. Jeffrey and Ferdinand Samper, Indianapolis, Ind., for appellant.
Marshall E. Hanley, U. S. Atty., and E. Andrew Steffen, Asst. U. S. Atty., Indianapolis, Ind., for appellee.
Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
Defendant was charged in a two count indictment with violating sections 472 and 371 of Title 18 U.S.C. The first count charged Ada Miller, a co-defendant, with passing a counterfeit $20 Federal Reserve Note on the Federal Reserve Bank of New York with intent to defraud, in violation of section 472, and that Everett Edward Hack and David D. Bocock procured the commission of said offense by Ada Miller.
The second count charged that on or about the 13th of December, 1951, and continuously thereafter until December 20, 1951, Everett Edward Hack, Ada Miller and David Bocock conspired to commit an offense against the United States in violation of section 371 by passing and causing to be passed, with intent to defraud, counterfeited obligations of the United States. The specific acts involved in said conspiracy are set out in detail in said count.
Defendants were represented by counsel of their own choice and pleaded not guilty. They were tried by a jury and were found guilty as charged in both counts. Defendant, Hack, was sentenced by the court to five years on count 1 and to three years on count 2, the latter sentence to begin to run after the completion of, or the legal release from, the sentence imposed upon count 1 of the indictment. This appeal is prosecuted on behalf of Everett Edward Hack.
We deem it advisable to state the facts in some detail.
Defendant, Everett Edward Hack, Monroe Ellis Hack, and defendant Ada Miller are brothers and sister. Defendant Ada Miller, and Monroe Ellis Hack maintained individual residences in Louisville, Kentucky. Defendant Everett Edward Hack maintained his residence in Indianapolis, Indiana. He was in the retail used car business, and operated his business from a used car lot at 3727 Massachusetts Avenue, Indianapolis, Indiana. He maintained his residence at this location, living in a house trailer on the used car lot.
Monroe Ellis Hack's wife, Virginia Hack, resembles defendant Ada Miller. Both of these individuals have practically the same height and build, and on different occasions they have been identified as the same person.
On or about the 9th day of December, 1951, Everett Edward Hack, his wife, and Ada Miller, and David Bocock visited Monroe Ellis Hack and his wife, Virginia, at their residence in Louisville, Kentucky, for approximately fifteen minutes. This was the first time Monroe Ellis Hack had seen his brother Everett Edward Hack in about six years. On their return trip to Indianapolis, which was immediately thereafter, Ada Miller accompanied Everett Edward Hack, his wife, and David Bocock. By arrangement of the parties, Ada Miller was to be employed by her brother Everett Edward Hack to drive automobiles for him. This was the only time Everett Edward Hack had occasion to be in Louisville, Kentucky.
Thereafter, on or about the 11th day of December, 1951, Ada Miller, at the instance of Everett Edward Hack, called Monroe Ellis Hack in Louisville from Indianapolis, and invited him to come to Indianapolis. On the following day at approximately seven o'clock P. M., Monroe Ellis Hack, his wife Virginia, and his son Lloyd arrived at Everett Edward Hack's used car lot. Upon their arrival Ada Miller came out of the used car lot office where she had been with Everett Edward Hack, and invited Monroe Ellis Hack's wife, Virginia, and his son Lloyd into the house trailer which was next door to the car lot office. Everett Edward Hack invited Monroe Ellis Hack into the car lot office and they commenced an evening of discussion and the drinking of alcoholic beverages. On or about the night of December 12, 1951, Everett Edward Hack, talked with Monroe Ellis Hack concerning the passing of counterfeit money in Indianapolis. Defendant advised Monroe Ellis Hack that he was the "head man" and that Monroe Ellis Hack would "take orders from him." This association terminated at approximately three o'clock the following morning, when Monroe Ellis Hack, his wife Virginia, and his son Lloyd left the car lot and proceeded to a downtown hotel. Upon their departure, Monroe Ellis Hack informed Everett Edward Hack that he would return to the used car lot later on in the day. When Monroe Ellis Hack and his family arrived at the downtown hotel he immediately called the Indianapolis Police Department, and they sent two plain clothes policemen to the hotel to talk with him. The policemen then called the United States Secret Service Office, and a secret service agent came to the hotel and discussed the alleged counterfeit money deal, and the alleged counterfeit money which Everett Edward Hack is alleged to have shown Monroe Ellis Hack at that time. Neither Monroe Ellis Hack nor any member of his family returned to the used car lot, but returned to Louisville, after they left the downtown hotel in Indianapolis.
On December 17, 1951, Monroe Ellis Hack reported to the Louisville secret service office. Later in the morning and after the interview, Monroe Ellis Hack went to Ada Miller's home and had lunch with Ada Miller, her son, and his (Monroe Ellis Hack's) wife. Monroe Ellis Hack left Ada Miller's home at approximately noon. Later during that day, Monroe Ellis Hack again visited the secret service office at Louisville, and promised the agents that he would get samples of counterfeit money from his brother, Everett Edward Hack. Monroe Ellis Hack left the secret service office at approximately five or six o'clock P. M.
At approximately six-thirty P. M., Monday, December 17, 1951, Monroe Ellis Hack made arrangements with secret service agent Harry W. Geiglein to meet at a whiskey store on Bardstown Road, Louisville. Through some misunderstanding with respect to locations they did not meet as planned. Later in the evening secret service agent Harry W. Geiglein and Monroe Ellis Hack did meet. At this meeting Monroe Ellis Hack showed the secret service agent seven counterfeit twenty dollar notes, and told him that he had received them from David Bocock, and Ada Miller. Secret service agent Geiglein did not take the counterfeit notes from Monroe Ellis Hack, and no arrest was then made.
At approximately seven-thirty o'clock P. M., Monday, December 17, 1951, Ada Miller and David Bocock were at a restaurant and tavern called "Jean's Bar," and they remained there until closing time which was approximately one o'clock the following morning. Monroe Ellis Hack returned home at approximately four o'clock A. M., December 18, 1951.
Late in the morning of December 18, 1951, Monroe Ellis Hack was arrested by secret service agents upon the charge of passing counterfeit notes the night before, but was later released.
On or about the 20th day of December, 1951, Lloyd Allen Hack, son of Monroe Ellis Hack, mailed a package at the request of Ada Miller. Later, the package was seized in the execution of a search warrant by a secret service agent in the United States Post Office at Indianapolis. It contained approximately $2300 in counterfeit $20 notes.
Thereafter, Ada Miller surrendered herself to the secret service agents in Louisville when she discovered that a warrant had been issued for her arrest.
Everett Edward Hack was arrested by secret service agents in Indianapolis, on the 20th day of December, 1951, and a search of his premises at 3727 Massachusetts Avenue was made at that time. Nothing was found or seized in the search.
Defendant states the contested issues in this case are as follows:
(1) Whether or not the evidence was sufficient to support the verdict as to defendant Everett Edward Hack under either or all counts of the indictment.
(2) Whether or not the weight of the evidence was contrary to the verdict as to Everett Edward Hack under either or all counts of the indictment.
(3) Whether or not Everett Edward Hack was substantially prejudiced and deprived of a fair trial by reason of the denial of his Petition for Leave of Court to File Amended Motion for New Trial, which motion would have contained the following:
(a) Properly recited newly discovered evidence.
(b) Allegations of inadequate counsel during trial based upon allegations showing merely one hour preparation for trial, absence of material defense witnesses, and unchallenged hearsay evidence.
(c) Allegations of lack of testimony discrediting important witnesses at time of trial.
(d) Prejudicial remarks made in Open Court before the jury by government witnesses and defendant's counsel.
As to contested issues (1) and (2), we find sufficient evidence in the record to support the verdict of the jury. Contested issue (3)(a) seems to dispose of itself as defendant admits in his brief that the "newly discovered evidence" was available at the time of trial, but was not then introduced.
A motion for a new trial based upon alleged newly discovered evidence, is directed to the discretion of the trial judge and is reviewable only for manifest abuse.
As was said in Sharp v. United States, 6 Cir., 195 F.2d 997-998:
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