United States v. Seader

• Decision Date: 22 April 1971
• Docket Number: No. 29679.,29679.
• Citation: 440 F.2d 488
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard SEADER and Thomas Ray Sandell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

440 F.2d 488 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Richard SEADER and Thomas Ray Sandell, Defendants-Appellants.

No. 29679.

United States Court of Appeals, Fifth Circuit.

March 15, 1971.

Rehearing Denied April 22, 1971.

Sheldon Dubler, Miami Beach, Fla., for Seader.

Robert P. Foley, John S. Call, Jr., West Palm Beach, Fla., for Sandell.

Robert W. Rust, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for the United States.

Before GEWIN, COLEMAN, and AINSWORTH, Circuit Judges.

COLEMAN, Circuit Judge.

The grand jury for the Southern District of Florida indicted Thomas Ray Sandell and Richard Seader for conspiring to transport falsely made and forged securities, to-wit, American Express Company money orders stolen in a burglary of a 7-11 store located in Homestead, Florida, in violation of 18 U.S.C. § 371.

In Count 2 Sandell was indicted for the transportation in interstate commerce of a forged American Express Company money order, No. AT XXX-XXX-XXX, 18 U.S.C. § 2314.¹

In Court 3 Seader was similarily indicted for the transportation in interstate commerce of another Express Company money order, knowing the same to have been falsely made and forged, 18 U.S.C. § 2314.

Sandra Jean Neal and Joseph Gregory were also indicted. They entered pleas of guilty. Gregory was called as a witness for the Government. Seader called Sandra Neal as a witness.

After a four day trial, the jury found Sandell and Seader guilty as charged. We affirm.

Sandell seeks reversal on no less than eight grounds. It is said that the evidence was insufficient to sustain the convictions, that Sandell's motions for directed acquittal should have been granted, that the trial court unduly restricted cross examination on behalf of Sandell, that testimony concerning certain conversations with one Joseph Gregory was erroneously admitted, that there was error in the instructions, and that Sandell should have been granted a new trial. We have read the trial transcript and are left with the decided opinion that these contentions are not of sufficient merit to warrant discussion.

Sandell's remaining contentions deal with certain identification procedures, the use of photographs and an appearance at a booking desk, which he says were so impermissibly suggestive, or otherwise illegal, as to void his convictions.

Seader says that the evidence was insufficient to support his conviction, that the above mentioned testimony of Gregory should have been excluded, that the attitude of the trial judge denied him a fair trial, and that there was error in the denial of certain jury instructions requested on his behalf.

The outcome of this case as to both defendants really depended on whether the jury chose to believe the witnesses for the Government or those for the defense. This was a difficult case to try, yet we detect nothing that would cause us to suspect that the trial judge failed to handle it in a commendably fair and impartial manner.

Seader's contentions do not merit a reversal and his conviction is affirmed.

Sandell's arguments as to his identification by Mrs. Carroll Helen Chesser and Donald Hill, to be determined within the context of all the evidence, require more extended discussion.

Minda Mondy Shiland was the first witness for the prosecution. She was personally acquainted with both Seader and Sandell. She met Seader while she was employed in Homestead, Florida. She accompanied Seader and Joe Gregory to Sandell's home in Palm Beach on a Sunday morning in October, 1968. Seader and Gregory had with them about twenty of the stolen Express money orders. After the Sunday conversations at Sandell's she spent the night in a motel in the Palm Beach area while the other two returned to Homestead to retrieve the money order machine. They returned early Monday morning, after which all three again went to Sandell's house, with the money order machine in the trunk of the automobile. After a brief visit in the Sandell house, Shiland saw Seader take a dirty clothes basket out to his automobile, put the money order machine in that container, bring it back in the house, and deliver it to Sandell. They were also at Sandell's on at least two other days that week. It was her testimony, and that of Joe Gregory, that during these visits Seader and Gregory, in return for the money order machine and forms, obtained false identification papers from Sandell, that is, Florida driver's licenses and a Woolco credit card typed out by Sandell in the names of individuals taken from a telephone book. These false driver's licenses were used as identification upon which to cash many of the stolen money orders.

The second witness for the Government was Elmo Frederick Midyette, Jr. Midyette was personally acquainted with both Seader and Joseph Gregory, as well as with Miss Shiland. He also knew David Bishop, one time assistant manager of the 7-11 store in Homestead. Midyette personally participated in and described the entry into the 7-11 store on October 5, 1968, and the taking of the money order machine and the money order forms. The other participants were Joe Gregory and assistant manager Bishop. Seader did not enter the store but waited about a block away and thereafter went with the others to a canal bank where they "printed up" the money orders. They had taken nine books, consisting of 180 forms. Seader was present when they discarded the money order machine and some of the forms on the canal bank. Midyette, within a few days, was arrested by the Prince George County, Virginia, police department and held because he had some of the money order forms in his possession.

The next witness was Mrs. Carroll Helen Chesser. Mrs. Chesser was the head teller at the First Federal Savings and Loan Association of West Palm Beach. She testified that on October 8, 1968, Sandell presented and she cashed the stolen money order described in the indictment. She identified this instrument by her teller's stamp and her handwriting. At the cashing, Sandell wore a moustache, had dark hair, and a receding hairline. He told her that he was a musician with a band in Miami.

She did not see Sandell again until the day prior to her testimony, when she ran into him in a corridor of the court-house. Sandell was on bail at the time and not in the company of officers. No one pointed him out to her but she recognized him.

Mrs. Chesser was about to make an incourt identification of Sandell when his counsel objected and the jury was retired. Mrs. Chesser then testified that about November 8, 1968, an F.B.I. agent came to see her about the missing money orders. He had several photographs of white men, some young and some middleaged. There were four or five of them. She had previously stated to the detectives that the man for whom she cashed the money order had a moustache, dark hair, and a receding hairline. About a week before the trial, for the second time, she was shown the same pictures by the F.B.I. On both occasions she identified Sandell's picture as being that of the man who had cashed the money order.

Joe Gregory was brought in to see if he, not Sandell, was really the man who cashed the money order, as they resembled each other, at least as to age, color of the hair, and moustache. Mrs. Chesser insisted that it was Sandell who cashed the money order, that there was no question in her mind of the correctness of her identification.

While the jury remained out of the courtroom, the defense called Robert E. Wonderle, a state officer, who testified that on the previous day, while the witnesses were excluded from the courtroom and were "waiting in the hallway all day long", Mrs. Chesser looked through the glass in the door to the courtroom and asked, "Is he in the courtroom" (referring to Sandell)? The officer replied, "He is sitting at that table", but Sandell's back was turned and "she couldn't identify him."

Mrs. Chesser's testimony was also vigorously attacked on the ground that soon after the discovery of the bogus character of the money order, Mr. Wonderle, the state officer, had shown her a pack of five or six pictures, which included two pictures of Sandell. One of these pictures was a mug shot, recently taken by the Sheriff's office, apparently when Sandell was arrested on October 21 for some other offense. Mrs. Chesser had forgotten about being shown these pictures and could not recall it on the witness stand. Sandell says that Mrs. Chesser's inability to recall the first photographic display proves that the mug shot caused his identification.

Sandell's attorney objected to the testimony of Mrs. Chesser under the Wade² case in that Sandell had no lawyer present when the photographs were exhibited to her or when she looked through the window into the courtroom and that the procedures thus invoked were impermissibly suggestive. The motion to suppress Mrs. Chesser's testimony was overruled and Mrs. Chesser, in the presence of the jury, positively identified Sandell from the witness stand as the individual who cashed the stolen money order. She testified that Sandell used for identification a driver's license bearing the name of "Clifton J. Carlin". Joseph Gregory was again brought to the courtroom, before the jury, and Mrs. Chesser said she did not recognize him.

Later on, Joseph Gregory testified that the "Clifton J. Carlin" driver's license was given him by Sandell and that he used it to cash various money orders, at least one of them at a point near in time and place to the episode described by Mrs. Chesser. Also, Gregory testified that he was under the influence of narcotics most of the time, including LSD on one occasion. He said he had been off narcotics for seven months at the time of the trial.

Gregory also testified that he went to Sandell's house in the early part of October, 1968, with Richard Seader, where he met Ray Sandell, Sandra Jean Neal, and another person whom he did not know. He saw Sandell type out the false driver's...