Appendix — Fairchild v. United States

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APPENDIX A

dn the

United States Court of Appeals

For the Seventh Circuit

No. 75-1283

Unitep States Or AMERICA,

Plaintiff-A ppellee,

Ernest Fatrcu ip,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Kastern Division

No. 74 CR 538

Frank J. McGarr, Judge.

Arcuep September 24, 1975—Dectpep November 25, 1975

Before Swycert and Stevens, Circuit Judges, and

Kunzie, Judge. *

Stevens, Circuit Judge. Appellant contends that his

conviction for distributing counterfeit bills’ should be re-

versed because (1) the delay of 27 months between his

arrest and trial violated his right to a speedy trial; and

* Honorable Robert L. Kunzig of the United States Court of

Claims is sitting by designation.

' Defendant was found guilty of (1) selling 70 counterfeit $10

Federal Reserve notes in violation of 18 U.S.C. § 473, and (2) pass-

ing an additional counterfeit $10 Federal Reserve note (on a differ-

ent date), in violation of 18 U.S.C. § 472.

App. 2

(2) evidence seized during a search incident to a warrant-

less arrest should have been suppressed because the arrest-

ing officers had ample time to obtain a warrant. He also

questions the sufficiency of the evidence and the admissi-

bility of the testimony of the witness Lee.

L

The defendant was arrested on November 24, 1972, the

indictment was returned on July 25, 1974, and his trial

began on February 24, 1975. This delay of 27 months is

long enough to require consideration of the other factors

identified in Barker v. Wingo, 407 U.S. 514 (1972).?

The Government’s explanation for the delay of 20

months between arrest and indictment was that it was at-

tempting to find others who were involved in the counter-

feiting operation in order to try them with Fairchild.

The Government also explained that before proceeding

against Fairchild it wanted to complete the trial of an

important witness whose testimony might have been un-

available had he been tried with Fairchild. These reasons

are sufficient to foreclose any claim that the pre-indict-

ment delay was designed by the Government to prejudice

Fairchild’s defense. See United States v. Ricketson, 498

F.2d 367, 371 (7th Cir. 1974).

Neither of the two remaining factors—the defendant’s

assertion of his right and possible prejudice caused by

the delay—-lends any support to defendant’s claim. He has

made no showing of actual prejudice to his defense, other

* In his opinion in United States v. Lockett, No. 75-1398, released

today, Judge Kunzig identifies the relevant factors to be balanced:

“(1) length of delay, (2) reason for delay, (3) assertion of the right.

and (4) prejudice to defendant.”

App. 3

than a vague allegation that his memory was impaired.

And defendant made little effort to have his case tried

sooner. Although at some point after the indictment (the

record is not <iear as to the exact date) a speedy trial

motion was filed, this motion was later withdrawn by

defendant’s counsel who said there was ‘‘nothing urgent’’

about the case. Thus, the defendant simply has not shown

enough prejudice to tip the Barker v. Wingo balance. Com-

pare United States v. De Tienne, 468 F.2d 151 (7th Cir.

1972), cert. denied 410 U.S. 911 (no actual prejudice),

with United States v. Macino, 486 F.2d 750 (7th Cir.

1973) (one witness died and memories were demonstrably

impaired). *

II.

Defendant’s second asserted ground for reversal is the

district court’s denial of his motion to suppress evi-

dence which was found in a search of his car at the time

of his arrest. Defendant does not question the fact that

the search was proper if the arrest was valid; nor does

he challenge the existence of probable cause to arrest

him. Rather, he contends that since the agents were in

possession of ample information to justify the issuance

of a warrant at least three days earlier and failed to

offer any valid reason for not obtaining a warrant, the

3 The fact that most of the delay occurred prior to the indictment

may explain the absence of a prompt demand for trial, see United

States v. Lockett, supra, at p. 2, but does not demonstrate that ap-

pellant’s defense was prejudiced ; he knew that he had been arrested

on a counterfeiting charge.

App. 4

warrantless arrest was a violation of his rights under

the Fourth Amendment. *

In the absence of ‘‘a few specifically established and

well delineated exceptions,’’ a warrantless search is a

violation of the Fourth Amendment even when based

on probable cause. See Coolidge v. New Hampshire, 403

U.S. 445, 455. The question squarely raised by this appeal

is Whether warrantless arrests should likewise be treated

as presumptively invalid. Prior to the decision by the

Ninth Circuit in United States v. Watson, 504 F.2d 849

(1974), cert. granted 420 U.S. 924 (1975), this question

had been consistently answered in the negative.’ Pre-

sumably it will be answered definitively by the Supreme

Court in the Watson case since the Court has granted

certiorari.

We have not previously been required to decide this

precise question, although we have twice noted our opinion

* Defendant was arrested by agents of the United States Secret

Service, who by 18 U.S.C. § 3056 are “authorized to make arrests

without warrant for any offense against the United States committed

in their presence, or for any felony cognizable under the laws of

tie United States if they have reasonable grounds to believe that the

person to be arrested has committed or is committing such felony.”

The Government agents had probable cause to arrest the defendants

by, at the latest, November 21, 1972, but did not arrest him until

November 24, 1972. Although investigation continued during this

period, the agents knew no more about Fairchild at the time of his

arrest than they did three days earlier. Thus, they had ample time

in which to obtain a warrant.

* Ford v. United States, 352 F.2d 927 (D.C. Cir. 1965) (en

banc) ; United States v. Hall, 348 F.2d 837 (2d Cir. 1965) ; United

States v. Miles, 408 F.2d 482 (3rd Cir., 1972); United States

v. Miorris, 477 F.2d 037 (3th Cir. 19/5); Umtted States v. Fa-

chini, 466 F.2d 53 (6th Cir. 1972); United States v. Bazinet, 462

F.2d 982 (8th Cir. 1972).

App. 5

that no warrant is required when there is probable cause

to arrest. See United States v. Rosselli, 506 F.2d 627,

629 n. 4 (1974); United States v. Cantu, No. 74-2037,

July 22, 1975, slip opinion at 4, n. 5. In these circum-

stances it seems appropriate for us to leave to the Su-

preme Court the question whether a well settled rule of

constitutional law should now be changed. °

Iil.

Defendant argues that the evidence is insufficient to

support the conviction because the testimony of the princi-

pal witness, one South, is patently incredible. The as-

serted incredibility stems from the fact that South tes-

tified that he purchased notes from the defendant at a

* The principal arguments in favor of imposing the same warrant

requirement for arrests as for searches are (1) that the language of

the Fourth Amendment does not differentiate between searches and

arrests; (2) that an arrest, even in a public place, may be at least

as offensive to the citizen as a search of his home, and therefore

comparable reasons of policy would support a rule requiring the

prior assessment of probable cause by a neutral and detached magis-

trate; and (3) that such a rule would preclude the possibility that

the police might arrange the time and place of an arrest to justify

searches for which no warrant could be obtained. The principal ar-

guments to the contrary are (1) that the existing rule is supported

by the common law setting in which the Fourth Amendment was

drafted, see United States v. Hall, 348 F.2d 837, 841 (2d Cir.

1965); (2) an exclusionary rule requiring arrest warrants in all

cases, absent special circumstances, would have no deterrent effect

unless the police were in fact seeking evidence, since an illegal arrest

does not confer immunity on the arrestee; (3) the introduction of an

additional procedural requirement in the administration of our sys-

tem of criminal justice would impose some additional cost on an al-

ready overburdened system; and (4) the existence of a viable com-

mon law remedy for false arrest, as well as a federal remedy under

42 U.S.C. § 1983, may already provide an adequate deterrent to ir-

responsible arrests.

App. 6

price of $40 per 100 and resold them at a lower price.

The record, however, contains an explanation of this tes-

timony which the jury was entitled to credit. South’s

testimony indicates that he had not previously passed

any counterfeit bills and made the decision to sell them

at a loss because he was afraid to try to pass them.

Although defendant makes a number of other arguments

questioning the credibility of South’s testimony, we are

satisfied that the jury was entitled to believe the in-

criminating evidence.

IV.

Finally, defendant argues that the testimony of the

witness Lee should have been excluded because it was

irrelevant and grossly inflammatory. Lee testified that,

on a date shortly after the events charged in the in-

dictment, Fairchild showed Lee a large quantity of bills

in the trunk of his car, told Lee they were counterfeit,

and offered io let Lee sell them.

Evidence of other criminal transactions is, of course,

not admissible to show that the defendant has a ‘‘ propen-

sity’’ to commit the charged offense. United States v.

Yarbrough, 352 F.2d 491 (6th Cir. 1965). Such evidence

may, however, be admissible if, entirely apart from the

matter of ‘‘propensity,’’ it has a tendency to make the

existence of an clement of the crime charged more probable

than it would be without such evidence. See Rules 401

and 404(b) of the Fed. Rules of Evidence; United States

v. McCoy, 517 F.2d 41, 43-44 (7th Cir. 1975); United States

v. Rivera, 437 F.2d 879 (7th Cir. 1971), cert. denied, 402

U.S. 947. Lee’s testimony in this case was relevant to an

element of each count. The fact that Fairchild was in pos-

session of a supply of counterfeit bills tended to prove that

App. 7

he had the ability to distribute the notes described in both

counts and, further, that the passing of the single note

described in Count II was not a mere accident or mistake.

Even though relevant, the evidence could have been ex-

cluded had the trial court found that its prejudicial effect

outweighed its probative value. Fed. Rule of Evidence

403. However, such balancing is in the first instance left to

the sound discretion of the trial judge, and there is no

ground to say that he abused that discretion in this case.

AFFIRMED.

Appeals for the Seventh Circut

App. 8

APPENDIX B

Opinion by Judge Stevens

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Lllinois 60604

November 25, 1975

Before

Hon. Lutuer M. Swycert, Circuit Judge

Hon. Joun Pau Stevens, Circuit Judge

Hon. Rosert L. Kunze, Judge *

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 75-1283 vs.

ERNEST FAIRCHILD,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Llinois

Eastern Division

No. 74 CR 538

Frank J. McGann, Judge.

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Llinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the judgment of the said District Court

ArrirMep, in accordance with the opinion of this Court

filed this date.

* Honorable Robert L.. Kunzig of the United States Court of

Claims is sitting by designation.

App. 9

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

December 23, 1975.

Before

Hon. Joun Pauw Srevens, Circuit Justice *

Hon. Lutner M. Swycert, Circuit Judge

Hon. Rosert L. Kunzic, Judge **

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

No. 75-1283 vs.

ERNEST FAIRCHILD,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Llinois, Kastern Division.

No. 74 CR 538

ORDER

On consideration of the petition for rehearing filed in

the above-entitled cause,

IT IS HEREBY ORDERED that the petition for re-

hearing be, and the same is hereby, DENIED.

*Mr. Justice Stevens participated initially as Circuit Judge, and

on and after December 19, 1975 as Circuit Justice.

** Honorable Robert L. Kunzig of the United States Court of

Claims is sitting by designation.