United States v. Sluder

• Decision Date: 18 February 1972
• Docket Number: No. 71-1102.,71-1102.
• Citation: 457 F.2d 703
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Homer SLUDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 703 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Homer SLUDER, Defendant-Appellant.

No. 71-1102.

United States Court of Appeals, Tenth Circuit.

February 18, 1972.

Mark C. Meiering, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., and Mark B. Thompson, III, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Joseph P. Paone, Albuquerque, N. M., for defendant-appellant.

Before PHILLIPS, HOLLOWAY and McWILLIAMS, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

An indictment was returned in the United States District Court for the District of New Mexico, charging that on or about July 15, 1969, in such District, Sluder "did * * * forge the name of * * * Robert A. Moreshead, on United States Treasury Check No. 96,200,898, in the amount of $97.50, dated July 10, 1969, * * *."

Sluder pleaded not guilty, was tried, and on a jury verdict of guilty was convicted and sentenced to imprisonment for three years. He has appealed.

The evidence adduced at the trial was clearly sufficient to warrant the jury in finding beyond a reasonable doubt these facts:

Moreshead was an investigator for the Civil Service Commission and an employee of the United States. Before July 13, 1969, he had been transferred from Lubbock, Texas, to Albuquerque, New Mexico. He arrived in Albuquerque on July 13, 1969, traveling in his automobile. He registered at the Sands Motel. Thereafter, and about 10 p. m. on July 13, 1969, he went to Eddie's Inferno Night Club and parked his automobile in the club parking lot. When he entered the club, he took off his coat, hung it over a chair at the table to which he was assigned, and went to the men's restroom. He returned to his table from the restroom, but did not notice the absence of his coat until shortly before midnight. His keys were in the coat. On discovering that the coat was gone, he immediately went to the club parking lot and discovered that his automobile was also gone. Thereupon, he notified the police. They recovered his automobile about 1 a. m. and returned it to him about 1:30 a. m. on July 14, 1969.

When Moreshead parked his automobile in such parking lot, he left in it the check described in the indictment, which was introduced as Plaintiff's Exhibit 1, and also two credit cards. Appendix I, appended hereto, is a copy of the check and the endorsements thereon. Neither the check nor the credit cards were in Moreshead's automobile when it was returned to him.

On cross-examination of Moreshead, counsel for Sluder brought out that Moreshead had not unpacked his automobile, and had left in it at the club parking lot golf clubs, a golf cart, wearing apparel, a briefcase, and suitcases, and that all of them and also the spare tire were missing when his automobile was returned to him by the police.

Written on the back of the check in the place for endorsement were the names, "Robert A. Moreshead" and "Sarah Moreshead." Moreshead did not write either of such names or endorsements on such check, and did not authorize Sluder or anyone else to write them, and he did not endorse or negotiate the check at any time.

One of the credit cards was issued by Standard Oil of Kentucky (Chevron) and the other by Humble Oil and Refining Company (Esso). Each credit card authorized Moreshead to purchase on credit from the dealers of the issuer thereof petroleum products and other goods and services, which such issuer authorized its dealers to sell on credit.

Six credit card charge slips were introduced in evidence as Plaintiff's Exhibit 2, and two credit card charge slips were introduced as Plaintiff's Exhibit 3. Appendix II, is a copy of Plaintiff's Exhibits 2 and 3. Moreshead's number on one of such credit cards was XXX-XXX-XXX-X, and that number was stamped on each of such eight charge slips.

Under the heading "Buyer's Signature" or the heading "Received By" on six of such charge slips was written "Robert Moreshead"; on one of the other charge slips the words "Robt. Moreshead" were written, and on the other charge slip only the word "Moreshead" was written.

Six of such eight charge slips had written thereon, under the heading "License Number," "14-8398" and under the heading "State," "N.M."; and two of them had written thereon, under the heading "Year," "1969."

The records in the New Mexico Department of Motor Vehicles show that a 1967 Chevrolet "Spt. Cpe." was transferred to Marie Fitzgerald in 1968 and a certificate of title was issued to her therefor; that she continued to own it until July 27, 1970; and that during the months of October and November, 1969, such Chevrolet, bearing license number 14-8398, was registered in such Department as belonging to Marie Fitzgerald.

Moreshead had never owned nor used an automobile bearing license number 14-8398.

B. J. Diers was employed by the H. Cook Sporting Goods Company at its Winrock store in Albuquerque on July 15, 1969. On that date, Diers cashed the check, Plaintiff's Exhibit 1, at such sporting goods store for a lady. The check bore the endorsements "Robert A. Moreshead" and "Sarah Moreshead." Diers described the lady who cashed the check as "approximately thirty years of age, light brown and blond hair, rather slender." He testified that she was accompanied by another woman, whom he could not describe. He testified that he had examined the check, Plaintiff's Exhibit 1, and that it bore his initials and showed it was cashed from his drawer at the store.

On Form 1607 of the United States Secret Service, Moreshead furnished to such Service specimens of his handwriting, consisting of his signature written three times and the words and figures "P O Box 1291 Lubbock Tex." written three times. Such specimens were identified as Plaintiff's Exhibit 4 and introduced in evidence. Appendix III is a copy of Plaintiff's Exhibit 4.

On December 30, 1969, William H. Hoge, Jr., was an Agent of the United States Secret Service, and Phillip Snyder was a Special Agent of the Federal Bureau of Investigation, hereinafter referred to as the F.B.I. On that date, they together interviewed Sluder at the Montessa Park Detention Center in Albuquerque, New Mexico. Before either of them asked Sluder any questions, Hoge identified himself to Sluder, showed Sluder his credentials, and then read to Sluder a form entitled "Warning and Consent to Speak," used by the United States Secret Service. The first five paragraphs of the form fully and clearly explained to Sluder all of his rights. The sixth paragraph of the form, headed "Consent to Speak," which was signed by Sluder, read:

"I have read this statement of my rights and it has been read to me, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."

The form was identified as Plaintiff's Exhibit 5 and introduced in evidence.

Before either Hoge or Snyder asked Sluder any questions, Snyder also presented to Sluder a form entitled "Interrogation; Advice of Rights," used by the F.B.I. The first four paragraphs thereof fully and clearly explained to Sluder his rights. The fifth paragraph read:

"I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me."

Appendix IV is a copy of the signature of Sluder, written by him, and the two lines below it, also written by him, on the form identified as Plaintiff's Exhibit 5, and also of the signature of Sluder, written by him, on the form identified as Plaintiff's Exhibit 6.

Hoge showed Sluder what had been marked as Plaintiff's Exhibit 1, the original of the check described in the indictment, and inquired of Sluder with respect thereto. Sluder replied that he had not seen the check before and had not forged Moreshead's name thereon. Hoge also inquired about the credit card charge slips, marked Plaintiff's Exhibits 2 and 3, and Sluder replied that he had used one of the two credit cards, issued to Moreshead, to purchase gasoline and signed Moreshead's name on the eight charge slips during a trip he took through the South. Hoge asked Sluder where he obtained the credit cards. Sluder replied that he got them from "a short Negro at the La Palomas Bar, named J.B."

Hoge and Snyder were both present during the entire interview by them of Sluder.

Snyder testified that when Hoge inquired about the check, Sluder said he had no knowledge with respect to the check; that he inquired of Sluder concerning the use of the credit cards belonging to Moreshead, which were used to purchase gasoline, and he showed Sluder Plaintiff's Exhibits 2 and 3. Sluder stated he had used a credit card formerly belonging to Moreshead to purchase gasoline during his trip through the South, and that he had obtained the credit card from a man named "J.B." at the Palomas Bar in Albuquerque.

In answer to an inquiry by Hoge, Sluder stated that the automobile noted on six of the charge slips as bearing license number 14-8398, N.M., 1969, belonged to his "girl friend."

Snyder testified that in response to a like inquiry by him, Sluder stated the automobile belonged to his wife.

The records in the New Mexico Department of Motor Vehicles clearly showed it belonged to Marie Fitzgerald in October and November, 1969.

On December 9, 1970, Marie Sluder was called as a witness for the Government, under the name Marie Fitzgerald, in order to determine whether she was the wife of Sluder. In answer to an inquiry, she stated that her maiden name was Sanchez; that she had been known as Maria Fitzgerald at one time, and that she was married to Sluder in Juarez, Mexico, on Labor Day 1970. Sluder's trial was had in December 1970. The...