United States v. Howard

• Citation: 138 F. Supp. 376
• Decision Date: 08 February 1956
• Docket Number: No. 872.,872.
• Parties: UNITED STATES of America v. James Colburne HOWARD.
• Court: U.S. District Court — District of Maryland

138 F. Supp. 376

UNITED STATES of America v. James Colburne HOWARD.

No. 872.

United States District Court D. Maryland.

February 8, 1956.

George Cochran Doub, U. S. Atty., James H. Langrall, Robert R. Bair, Asst. U. S. Attys., Baltimore, Md., for plaintiff.

Herbert H. Hubbard (France, Rouzer & Harris), Baltimore, Md., for defendant.

CHESNUT, District Judge.

In the above matter there is a motion before the court filed by Philip Joseph Howell for the return to him of certain property which had previously been seized by the Federal Bureau of Investigation, an Agency of the United States, under a search warrant issued by the Honorable Roszel C. Thomsen, Chief Judge of this court. The United States Attorney opposes the return of any of the seized property. The motion has been heard in court on evidence and arguments by Herbert H. Hubbard, court appointed counsel for the claimant, and James H. Langrall and Robert R. Bair, Assistant United States Attorneys representing the United States. The facts relevant to the motion are as follows:

On November 16, 1955 the Grand Jury for the United States District Court for the Eastern District of Pennsylvania returned an indictment against James Colburne Howard and two other defendants charging, among other things, armed robbery of a Pennsylvania bank whose deposits were insured by the Federal Deposit Insurance Corporation, alleged to have occurred on or about October 10, 1955. On the basis of this indictment the petitioner, Philip Joseph Howell, was arrested in Baltimore on January 13, 1956. He was at once taken before Ernest Volkart, United States Commissioner for this district, and, in accordance with the applicable federal rule of criminal procedure, was duly advised of his rights and, there being no warrant which had been received for his arrest, the case was continued by the Commissioner until January 16, 1956. On the latter date a further hearing was held. In the meantime the Commissioner had received a certified copy of the indictment and the defendant waived any further hearing and the Commissioner committed him in default of bail of $15,000 to be removed for trial to the Eastern District of Pennsylvania at Philadelphia, which, by judicial notice, is less than 100 miles from Baltimore where the arrest had been made. Very shortly thereafter on the same day Thomas C. Martin, an F. B. I. Agent, submitted evidence to the Honorable Roszel C. Thomsen, Chief Judge of this court, seeking the issuance of a search warrant to search the contents of safe deposit box No. 189 of the Aurora Federal Savings & Loan Association, 5 West Saratoga Street, Baltimore, Maryland, for the purpose of finding therein all or part of the sum of $19,777.31 in currency alleged in the indictment to have been stolen from the Wayne Title & Trust Company of Wayne, Pennsylvania. An exhibit annexed to the application contained a description of currency and cash making up all or part of the amount of $19,777.31. It described the alleged probable contents in the box in part as

"Two hundred $5.00 bills, Series 1950 having Serial Nos. C68901601A to 700A and C68901701 A to 800A; An undetermined number of $10.00 bills, one of said bills bearing the figure `$95' in heavy pencil or ink and being mutilated, i. e., ripped in half" and also an undetermined number of $100.00 bills.

Two affidavits were also annexed to the application for the search warrant which was found by Judge Thomsen to constitute probable cause for issuance of the warrant. The Judge also signed a further order directed to the Aurora Federal Savings & Loan Association requiring it to give access to the box pursuant to the search warrant. The order contained a proviso that the defendant or his attorney should be permitted to be present at the opening of the box and that the defendant, in the custody of the United States Marshal, should at the time of the opening and entry be taken to the box to afford him an opportunity to be present.

The key to the box was found in the possession of the defendant who declined the opportunity to be taken to the box when opened. The box had been rented by him from the Aurora in the name of Joseph Nash. The return made by the Agent of what had been taken from the box showed that he had taken therefrom two packages wrapped in paper, one package containing $2,200 in currency and the other package containing $1,200 in currency, both packages bearing the name of Joseph Nash. One package contained 150 $10 bills; 25 $20 bills; 3 $50 bills; 2 $20 bills and 1 $10 bill. The other package contained 240 $5 bills, aggregating $1,200. The Agent also took from the box "Savings pass book No. S16718 issued to Joseph Nash on 11/10/55 by Aurora Federal Savings & Loan Association reflecting a balance on 12/16/55 of $2,000." Some other contents of the box not relevant here were returned thereto and not removed.

It is to be noted that the description of the property to be seized particularly described in the exhibit made a part of the search warrant was "Two hundred $5 bills, Series 1950, Serial Nos. C68901601A to 700A and C68901701A to 800A." And there was evidence that among the 240 $5 bills seized 92 bore markings of serial numbers precisely described in the exhibit attached to the search warrant. Counsel for the petitioner Howell does not press for the return of the 92 $5 bills but does demand the return of the pass book showing a credit balance of $2,000 and also of the other currency amounting to $2,940, and it is to be noted that of this latter amount of $2,940 in currency there was no description thereof in the search warrant except as to "an undetermined number of $10.00 bills". The search warrant also described an undetermined amount of $2 bills and $100 bills and $1 bills, none of which, however, were found in the box.

There was further evidence by a witness for the United States that she was a teller at the Wayne Title & Trust Company on October 10, 1955, and personally witnessed the holdup and robbery of the bank by three disguised men of whom she was unable to give an identification. But she testified that on one of the $5 bills which had been found in the safe deposit box there was a notation in her handwriting of the numeral "80" which she remembered to have placed on the topmost one of 80 $5 bills in her teller's cage shortly before the robbery and therefore must have been included in the robbery. The $5 having the notation was other than the 92 above referred to.

There was evidence that of the $10 bills found in the box 98 bore serial numbers, one in numerical sequence to the other, and all being numbered Series 1950A C22263301B through C22263398B. There was also evidence that these bills were new currency which had been received from Washington by the Federal Reserve Bank for Philadelphia after September 2, 1955 and had been distributed by the Reserve Bank to member banks who in turn, in ordinary course, also further distributed them to other banks in that territory.

The claimant testified that he had been confined in prison for some years and had only been released about July 1955. Between July 1955 and the date of his arrest in Baltimore he had been at times temporarily employed as a painter and received some wages therefor and for a few days prior to his arrest he had been engaged as a hospital attendant at the Johns Hopkins Hospital. Shortly prior thereto he had been a surgical patient at the Franklin Square Hospital in Baltimore. He further stated that soon after his release from prison in July 1955 he had redeemed about $800 of United States Savings Bonds which had been bought for him while in prison from moneys earned there. And it also appeared that he had receipted for the money paid in redemption of said bonds in the name of James Colburne Howard, and he said that he had signed the name of James Colburne Howard because while it was not his correct name, which is Howell, the bonds had been bought for him in the name of Howard and he could not obtain the money for them except by signing in that name. With reference to the safe deposit box which he opened in the name of Joseph Nash he said that after his experience in prison he wished to make a fresh start under a new name. He also contended that he had been improperly imprisoned under the...