Ward v. United States

• Decision Date: 15 May 1963
• Docket Number: No. 18286.,18286.
• Citation: 316 F.2d 113
• Parties: James Vernon WARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.2d 113 (1963)

James Vernon WARD, Appellant, v. UNITED STATES of America, Appellee.

No. 18286.

United States Court of Appeals Ninth Circuit.

April 10, 1963.

Rehearing Denied May 15, 1963.

Morris N. Karch, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section; and Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and BURKE, District Judge.

BARNES, Circuit Judge.

Appellant was indicted on four counts, tried and found guilty on each. Count I charged him with a conspiracy to steal government income tax refund checks from the United States mail and to forge and cash them; 18 U.S.C. § 1708; 18 U.S.C. §§ 371, 494, 495. Count II charged the substantive offense of stealing from the United States mail on February 24, 1962; Count III with having such stolen checks in his possession on February 24, 1962; and Count IV with having stolen one specific check from the mails on that date.

Thirty-four other counts against seven defendants contained in the same indictment did not concern defendant Ward, and are of no concern to this appeal. Ward was sentenced to five years, concurrently, on Counts I and IV, and to five years, concurrent to each other (but consecutive to the sentence on Counts I and IV), on Counts II and III.

There is but one real point involved in this appeal. Was the arrest, personal search, and discovery of Exhibits 22 to 51, inclusive (the government checks) on appellant's person on February 24, 1962, illegal, and a denial of due process, that made the evidence obtained inadmissible and if that be so, the convictions based thereon improper because of insufficiency of evidence to support?

The arrest was made by Postal Inspectors Peterson and Smoot on Saturday, February 24, 1962, at about 4:15 P.M. on the premises of the Union Railway Passenger Terminal, Los Angeles, California, as appellant was leaving that place of employment for an automobile parked in the parking lot on the Union Railway Passenger Terminal grounds. At least one other postal inspector was in the vicinity, but no State peace officers, Federal agents, or Marshals were present.

No warrant was obtained for this arrest. At the time of the arrest, however, Inspectors Peterson and Smoot knew that a warrant for the arrest of appellant for a violation of 18 U.S.C. § 1708 (possession of contents of stolen mail) had been issued by the United States Commissioner in Los Angeles. The inspectors also had the following knowledge:

(1) That certain government checks had been stolen from the mails carried on railway trains in the vicinity of Los Angeles at various times during the previous year;

(2) that appellant had been employed at the Union Railway Passenger Terminal in a position where he had contact with and handled mail bags; sometimes those containing government checks;

(3) that the warrant for the arrest of appellant for possession of material stolen from the United States mail had been outstanding since January 30, 1962;

(4) informant "A" had told them that appellant had stolen a quantity of United States Treasury checks;

(5) the same informant "A" had told them he had been told by "B" (a) that "X" and the appellant had stolen a sack of checks from a train before the sack could reach the Post Office; (b) that "B" and the appellant had in their possession $30,000 to $40,000 worth of stolen checks;

(6) that said informant "A" had been proved reliable in information given to another federal law enforcement agency;

(7) that informant "C" had allegedly cashed United States Treasury checks with false endorsements after receiving them from "D", who had told "C" he ("D") was receiving them from a person named Ward living at 1163 West 37th Drive, Los Angeles;

(8) that appellant Ward lived at that address;

(9) that informants "A" and "C" had picked appellant's photograph from a group of photographs;

(10) that appellant was the only person in the mail-handling crew at the Union Railway Passenger Terminal who had the opportunity to handle incoming mail without other persons being present;

(11) that during the previous year numerous previous thefts of baggage, express shipments and railroad property had taken place at said Terminal, and appellant was a "suspect";

(12) on February 24, 1962, the day of the arrest, the postal inspectors had caused three bags or sacks of mail to be placed on a Union Pacific train (No. 103) at Riverside, California, after personally taking them there from Los Angeles. The contents of each sack were noted and recorded. That said train with its three sacks arrived at Los Angeles a little after 11:30 A.M. That thirty-eight minutes later two sacks were delivered to the Terminal Annex Post Office, adjoining the Union Railway Passenger Terminal. They were taken immediately to the Postal Inspector's office and found intact, with their contents intact;

(13) between an hour and twenty minutes and an hour and forty minutes later the third sack was delivered to the Terminal Annex Post Office, coming in with mail from another train from Salt Lake City, Utah. It was immediately examined, and thirty of the listed checks were found missing.

(14) The transfer of the sacks from the train station to the physically adjoining Terminal Annex Post Office was made by the baggage and mail handlers employed by the Los Angeles Union Railway Passenger Terminal of which appellant was one.

(15) It was not until this time (between 1:45 and 2:15 P.M. on Saturday afternoon) that the postal inspectors decided to arrest appellant. (Tr. p. 50, ll. 15-25.)

(16) Inspector Peterson had "personal knowledge" appellant "was looking for some checks."¹

(17) The inspectors had a photograph of appellant.

(18) From experience with mail thefts, the inspectors knew that frequently stolen articles are "cashed" somewhere around the premises where stolen until the thieving employee leaves the premises at the conclusion of his work. The premises where this known theft had taken place, on February 24, 1962, were placed under surveillance, together with the parking lot where the vehicle which furnished appellant's transportation was parked. The arrest was then made at 4:15 P.M., "rather than the immediate time that we missed our checks, because we were afraid they might be secreted."² (Tr. p. 63, ll. 8-11.)

With this information and knowledge, Inspector Peterson made the arrest in the following manner:

"Q. What happened at the moment of the arrest of the defendant Ward?

"A. As he left I approached him and I asked him, `Are you James Vernon Ward?\'

"He actually gave a grunt. And I asked three times, and at that time, not getting any kind of an answer, I identified myself as a postal inspector and told him he was under arrest for possession of stolen mail.

"Q. Then what happened?

"A. I told him we would like to search him, certainly, to defend ourselves, to see if he had any arms or anything of this nature.

"He resisted, and I attempted to put handcuffs on him, and he resisted even more. There was a little jostling. I exuded my gun and told him to settle down, that he was under arrest and that we would have to search him."

In addition to the knowledge had by the postal inspectors prior to the arrest, the following evidence was introduced at the trial. It has no evidentiary value, of course, as to the validity of the arrest, or the search incidental to the arrest.

The stolen letters (Exhibits 22 through 51) were found in the upper left inside coat pocket of appellant, wrapped in a paper towel. Only one had been opened, the one containing a check payable to Barbara Shepherd, the basis of Count IV.

Appellant admitted to taking the checks (a) before seven witnesses, after his arrest on February 24, 1962. (b) He admitted it again, in the presence of his attorney on February 26, 1962; (c) On March 8, 1962, he admitted the total was about $175,000 in checks "taken from the baggage mail cars as they came in." (d) On March 12, 1962, he gave a statement containing a detailed reference to dates, places and names of individuals who had allegedly been involved in various thefts from the mails.

There apparently is no federal law authorizing postal inspectors to make official arrests, i. e., because of their employment. And see United States v. Helbock, D.C.Or., 76 F.Supp. 985. While a warrant for appellant's arrest was outstanding, it was not used or relied upon here, and appellant was arrested for a crime allegedly committed on that day, and continuing to and including the precise moment of arrest.

"The procedure for making arrests which obtains under the state practice is applicable to arrests made for crimes against the United States." Cline v. United States, 9 Cir., 1925, 9 F.2d 621, and cases cited; "No act of Congress lays down a general federal rule for arrest without warrant for federal offenses." United States v. Di Re, 1948, 332 U.S. 581 at 591, 68 S.Ct. 222, at 227, 92 L.Ed. 210.

But whether the federal law violation is a crime or not, and whether it is or is not a felony, depends upon the federal statute.

Section 1 of Title 18, United States Code, divides federal "offenses" into felonies, misdemeanors, and petty offenses. A felony is "any offense punishable by death or imprisonment for a term exceeding one year." Appellant was arrested for the crime of stealing checks from the United States mails, or having in his possession checks stolen from the United States mails. 18 U.S.C. § 1708. As last amended in 1952 (66 Stat. 314), the punishment for violation of this section is imprisonment for "not more than five years." Thus appellant was arrested for a felony.

Under California law, two kinds of arrests are authorized — an arrest by a peace officer (Cal.Penal Code § 836) and an arrest by a private person (Cal.Penal Code § 837). Only peace officers can arrest in obedience to a warrant. Both sections originally...