USA. v. Howick

• Decision Date: 04 September 2001
• Docket Number: DEFENDANT-APPELLANT,No. 00-30243,PLAINTIFF-APPELLEE,00-30243
• Citation: 263 F.3d 1056
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. EDWARD KEITH HOWICK,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1056

263 F.3d 1056 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. EDWARD KEITH HOWICK, DEFENDANT-APPELLANT.

No. 00-30243

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 8, 2001

Filed September 4, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John P. Rhodes, Assistant Federal Defender, Federal Defenders of Montana, Missoula, Montana, for the defendant-appellant.

Kris A. McLean, Assistant United States Attorney, United States Attorney's Office, Missoula, Montanta, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. CR-99-00011-DWM

Before: Donald P. Lay,^* Stephen S. Trott and Marsha S. Berzon, Circuit Judges.

Berzon, Circuit Judge

Edward Howick appeals his jury convictions of possession of counterfeit currency, possession of fictitious documents, and bringing counterfeit currency into the United States. We affirm.¹

I.

A. Discovery and Delivery of the Unlawful Instruments

In 1999, a Customs Inspector in Anchorage, Alaska intercepted a suspicious package entrusted to Federal Express for delivery. Addressed to defendant Howick at his Bozeman, Montana residence, the package had been sent from the Phillippines by one Fred Pfahl. According to the attached manifest, the contents of the package were "legal documents." As we develop later, "illegal documents" would have been more like it. Inside were counterfeit gold and silver certificates,² fictitious Series 1935 Federal Reserve notes,³ a packet of fictitious "Tiger Zebra" bonds, and other contrived obligations.

At the behest of the Secret Service, a Federal Express employee phoned Howick to confirm that the package would be arriving soon. Using a vehicle and uniform provided by Federal Express, Secret Service agent Kal Bedford then delivered the package to Howick, who volunteered that he had been expecting it.

Bedford returned to Howick's residence shortly thereafter, having exchanged his Federal Express regalia for a federal search warrant. While Bedford and other agents performed a security sweep of the premises, Special Agent Timothy Christine remained with Howick. After affirmatively waiving his Miranda rights, Howick discussed matters relating to the phony currency with Christine and later with Bedford.

B. Howick's Statement

In those discussions, Howick admitted that a number of financial documents were present in his home, but offered an innocent explanation for them. He claimed that the materials purporting to be United States obligations came from two sources: Fred Pfahl, in the Philippines, and Clyde Beverly, a resident of Oklahoma for whom Howick, a licensed attorney, had previously done legal work. Howick's tale of how those individuals, and later Howick himself, came to be in possession of what turned out to be in excess of eighteen-billion dollars of bogus financial instruments was set forth in a typed statement prepared by Howick while his house was being searched.

Howick asserted in the statement that he had been recruited for "this project" by Beverly, who claimed to have information on a large amount of currency discovered aboard United States military aircraft that had crash-landed in the Phillippines decades earlier. Also found on the aircraft, reportedly, were the skeletal remains of eight men, their dog tags, and approximately 50 containers marked "U-235 007, " possibly referring to the U-235 isotope, of which fissionable uranium is comprised. Howick's role in the project, he explained, was to attempt to authenticate the putative obligations, with the eventual aim of repatriating them--for a fee, of course.

Toward that end, Howick contacted the offices of two elected federal officials from Utah to enlist their aid in the authentication process. After discussing the matter with the Secret Service, the office of Senator Robert Bennett informed Howick that the documents were apparently phony, a conclusion Howick chose to accept. Howick also contacted certain private parties regarding the putative financial instruments, including his "associate," Joe Wersal. "Although it was suggested that Joe tried to arrange some method of using them," Howick wrote in his statement, "it was always the intent that each material be thoroughly authenticated before anything was done with it."

As for his own views on the documents' authenticity, Howick conceded in his written statement that one piece of currency, supposedly decades old, "raised questions " because it showed an oversized portrait of Benjamin Franklin, a 1996 design innovation in United States currency. According to Agent Christine, Howick also conceded that certain silver certificates in his possession were "obviously false." At the same time, Howick maintained in his statement that he was"aware of no illegal activity on the part of anyone involved in this matter."

C. Fruits of the Initial Search

The search of Howick's apartment turned up numerous contrived obligations and related documents, including some that had not arrived in the controlled delivery performed by Agent Bedford. Some of the bogus currency contains defects easily discoverable by a skeptical observer, such as the over-sized, off-center presidential portraits, noted by Howick, on currency ostensibly lost at least forty years ago. Both the silver and gold certificates were, according to Agent Christine, printed by the ink-jet technology commonly associated with personal computers rather than the intaglio method favored by the United States Treasury.

Particularly unusual among the ostensible currency in Howick's possession were federal reserve notes in the improbable denominations of $100,000,000 and $500,000,000. Printed by silk screen, the notes are completely blank on one side and approximately twice as large as ordinary bills. The first note shows the phrase "ONE HUNDRED MILLION DOLLARS" beneath a portrait of George Washington--the same one seen on one-dollar bills--while the numeral "100" is printed to the right of the portrait over the Treasury Department's seal, and in each of the four corners. The second note looks substantially similar to the face of the now-withdrawn five-hundred dollar bill, with the numeral "500" over the Treasury Department's seal and in each corner, framing a portrait of William McKinley. The only indication of the bill's "true" value is the ornamental phrase beneath the portrait, which reads: "FIVE HUNDRED MILLION DOLLARS." The notes' eye-poppingly large denominations are thousands of times higher than the highest-denomination currency ever actually printed--$100,000 gold certificates--which were in any event never publicly circulated.⁴

Certain defects in the contrived certificates and notes were not obvious to an untrained eye. Some had serial numbers printed in yellow, rather than green, ink. The Treasury seals on certain documents were of poor quality. Some bills marked "Series 1935" listed Francine Neff as Treasurer of the United States, although Ms. Neff did not occupy that position until 1974. The paper on which the bills were printed was sometimes tinted a brownish color, possibly intended to simulate aging.

In addition to the bogus obligations, agents discovered various materials apparently related to the currency-manufacturing enterprise. These included handwritten notes concerning the serial numbers of the putative financial instruments; a letter on "Bank of Richmond" letterhead falsely stating that a $500,000,000 Federal Reserve note had been issued; photographs of dog tags; simulated microfilm relating to the "Tiger Zebra" bonds; a catalogue of U.S. currency; and annotated lists of Secretaries of the Treasury.

D. The November Search

On November 9, 2000, approximately one month after the controlled delivery and initial search, a second search warrant was executed on two computers in Howick's residence. The search, which Howick challenges, see infra, yielded few useful materials. The government did, however, seize computer files containing four versions of Howick's resume, each slightly different from the others.

E. Procedural History

In a three-count superseding indictment, Howick was charged with (1) possession with intent to defraud of fictitious documents "appearing, representing, or contriving " to be an actual financial instrument (specifically, a one-hundred million dollar Federal Reserve note and a five-hundred million dollar Federal Reserve note) with intent to pass, utter, or present the same, in violation of 18 U.S.C. §§ 514(a)(2); (2) possession of counterfeit obligations (specifically, gold and silver certificates), in violation of 18 U.S.C. §§ 472; and (3) bringing counterfeit obligations (specifically, gold and silver certificates) into the United States, in violation of 18 U.S.C. §§ 472.

The jury convicted Howick on all three counts. Although the guideline range for Howick's offense level is 97 to 121 months imprisonment, Howick was sentenced to a term of only 24 months, reflecting the district judge's determination that the "[o]ffense level overstates the seriousness of the offense." This appeal followed.

II.

A. Suppression of Evidence

Before trial, Howick moved to suppress the four copies of his resume seized in the November 9 search of his personal computers. The district court denied the motion. Howick now challenges that ruling, arguing (1) that the affidavit in support of the warrant did not set forth particularized facts sufficient to make out probable cause; and (2) that if the affidavit did contain particularized facts, those facts were stale by November 9, 1999, the date the warrant was executed. We find it unnecessary to resolve either question because we conclude that the government has successfully shown beyond a reasonable doubt that the error, if any occurred, was harmless. See Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991) (the erroneous admission of...