United States v. Hatcher, 28021.

• Decision Date: 16 April 1970
• Docket Number: No. 28021.,28021.
• Citation: 423 F.2d 1086
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harvey Ray HATCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 1086 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Harvey Ray HATCHER, Defendant-Appellant.

No. 28021.

United States Court of Appeals, Fifth Circuit.

April 1, 1970.

Rehearing Denied April 16, 1970.

Richard E. Harrison, Dallas, Tex., for appellant.

Eldon B. Mahon, U. S. Atty., B. H. Timmins, Jr., Asst. U. S. Atty., Dallas, Tex., for appellee.

Before WISDOM, GOLDBERG and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Harvey Ray Hatcher, Defendant-Appellant, was tried in the Northern District of Texas and appeals his jury conviction for unlawfully, willfully and knowingly uttering metal coins in the resemblance of coins of the United States, in violation of Title 18 U.S.C. § 486.

Appellant was indicted on March 21, 1968 by a federal grand jury in the Northern District of Texas on two counts of violation of Title 18, U.S.C. § 486.¹ In essence, count one charged the appellant with passing a counterfeit 1916-D ten cent coin to Oscar Utay, a pawn broker, in Dallas, Texas on or about February 15, 1965. Count two charged the appellant with passing 48 counterfeit 1931-S one cent coins to Nathan Shay in Dallas, Texas on or about July 27, 1967.

Prior to trial, the defendant moved for severance and separate trial of the two counts which, after argument and hearing was denied.

With regard to count 1, the evidence indicates that the defendant, on February 15, 1965 pawned a 1916-D ten cent coin at the shop of Oscar Utay. At the time Mr. Utay received the coin, represented by the defendant as genuine, he sent it to another coin dealer in the Dallas area, one more knowledgeable than he in appraising rare coins, to determine its genuineness. Mr. Utay received word from the dealer that the coin appeared genuine, whereupon he loaned to the defendant $250.

A chemist for the Bureau of the Mint, qualified as an expert witness, testified that in his opinion, the dime in question was counterfeit. The defendant took the stand in his own behalf and admitted that this transaction took place but denied that he knew the coin was counterfeit at the time it was pawned.

Regarding the second count of the indictment, the testimony elicited at trial revealed the following facts. The defendant and Nathan Shay first became acquainted in Houston when Mr. Shay was proprietor of the ABC coin shop. Although no coin transactions took place at that time, the subject of coins was discussed. This meeting apparently took place sometime in 1962, subsequent to which, Mr. Shay moved to Dallas where he has continued to reside. In 1967, the defendant and Mr. Shay met by chance outside a coin shop in Dallas. Recognizing one another from the earlier Houston meeting, they began discussing the subject of coins. The defendant told Mr. Shay that he had some 1950 and 1939 D nickels that he wanted to sell and wanted to know if Mr. Shay could move (sell) a large amount of coins.

A few days later, the defendant called Mr. Shay and requested that they meet at a local restaurant. At this meeting, the defendant gave Mr. Shay a roll of 1931 S pennies to sell. The defendant also asked Mr. Shay if he could sell a 1939 D nickel. When Mr. Shay asked if the nickels were stolen, the defendant replied, "You don't have to worry about it, they belong to me. I have been collecting them for a long time." Although Mr. Shay did not receive any nickels on this occasion, he did receive ten rolls of 1939 D nickels from the defendant at a later meeting. After unsuccessful attempts to sell the nickels to local coin dealers, Mr. Shay returned the nickels to the defendant, telling him that he (Mr. Shay) had been told that he nickels were counterfeit. The defendant said that he wasn't sure whether they were counterfeit or not.

Mr. Shay's attempts to sell the nickels to local coin dealers was brought to the attention of the Secret Service. When Mr. Shay learned that the Secret Service was looking for him, he contacted them and related his activities. As a consequence, when the defendant called Mr. Shay at his apartment several days later, a Secret Service agent listened to the conversation on an extension phone. The defendant in response to a question from Mr. Shay as to whether the pennies were bad, stated, "Those coins are not counter * * * You don't have to worry about those coins, there is no heat on them."

In further testimony, the expert witness from the Bureau of the Mint expressed the opinion that the 1931 S one cent coins were also counterfeit.

Taking the stand in his own behalf, the defendant, on direct examination, testified to facts concerning both counts one and two of the indictment. Again, as in count one, his defense was that he did not know the coins in question were counterfeit. In conducting cross examination, counsel for the government went into both counts one and two as well as the facts surrounding the defendant's possession of the 1950 and 1939 D nickels.

The jury, after deliberation, was unable to reach a verdict on count one but found the defendant guilty as charged on count two.

The defendant asserts in his first point of error that the trial court's denial of his motion to sever and the failure to try the two counts separately prejudiced his right to a fair and impartial trial. The government contends that joinder was proper under rule 8(a), Fed. R.Crim.P., and that such joinder was not prejudicial.

It seems clear that joinder was proper under rule 8(a), Fed.R.Crim.P.² and the only question remaining is whether such joinder was prejudicial to the defendant in this case. While it is true that some two and one-half years elapsed between the alleged commission of the offenses in the indictment, this, in itself, is insufficient to show prejudice.

The defendant relies heavily on the case of Drew v. United States, 118 U.S. App.D.C. 11, 331 F.2d 85 (1964) to support his contention that...