# Appendix — Finley v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0277%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 382 U.S. 1017 ## Text ane tt cree terme M4 " _ oe y : , - i * *: a. , © APPENDIX A , Opinion. of United States Court of Appeals : . UNITED STATES COURT OF APPEALS For THE SECOND Circum dy. nr ‘ ‘ » 4 . No # 165—September Term, 1966. (Argued September 30, 1966 _ Decided November 3, 1966. ) - Docket N Oo. 30601 er é,. w -* Unrrep States or AMERICA, BS a a ) > _ Appellee, —_—Ve— ANNE FRANCOLINO, : : ; Appellant. wud + Before: ‘Lumpanp, Chief Judge, FRIENDLY and Kaurmay, Circuit Judges. . dy. 4 Appeal from a judgment of the District Court for the Eastern District. of New York, John R. Bartels, Judge, convicting Anne Francolino, after a verdict, on three counts ‘of an indictnient which charged her with passing counter- feit notes in violation of 18 U.S. C. 4472. Affirmed. ier ? _ Wiuiam Sonensuine (Evseroff, Newman & Son- -enshine, Brooklyn, N. Y.), for Appellant. \ = A-2, Appendia A—Opinion of United States Court of Appeals JEROME: C.. Drrore (Joseph P. Hoey, United States Attorney, Eastern District of New York), for Appellee. | : od ‘ | - Farenpuy, Circuit Judge: Teg ine _A grand jury in the District Court for the, Eastern Dis- _ trict.of New York returned a four count indictment against Ane Francolino. : Phe first three counts charged her with ‘ passing various $10 counterfeit notes in violation of 18 ‘Uv. S. C. $472; a fourth count charged possession of 1973 such notes i in violation of the same statute. The j jury found her guilty qn the first three counts and not guilty on the fourth’ ° Defendant passed the counterfeit notes at the Floyd Bennett Store in Brooklyn during a half ‘hour in the early -aftern6on ofeJuly 24, 1964. Mary Lou Patterson, a seven- teen year old cashier in the housewares department, iden- tified Anne Francolino as. having appreached her and hav- ing asked for four $5 bills in exchange for two-$10’s. Nancy ’ Shenker, a sixteen and a half year old cashier in the record | department, identified Anne as having come up while’ she was giving change to a customer and having sought change for a $10 bill, a request accompanied by’ a compliment, ap- parently undeserved, over Nancy’s hair-do. Diane Ficocelli, a fifteen year old cashier in, the millinery department, was the third to be approached. On one occasion Mrs. Franco- lino made a small purchase for which she paid with a $10 . bill; five minutes later she requested charge for another $10 bill, admiring Diane’s hair-do and seeking advice how ae Appendia A—Opinion of United minten Court of Appeals to emulate it; and shortly thereafter a iuinnt another $10 bill, saying her husband was waiting in the car for her and she had nothing smaller. While the defendant was oc- cupied in these endeavors, Michael Brady, manager of the housewares department, opened Miss Patterson’s cash reg- _ ister and ‘discovered two counterfeit $10 bills on top of the drawer. He and the cashier left the store in hot pursuit and _ found Mrs.’Francolino walking down the block. Brady’s statement to her that. the $10 bills were no good elicted an expression of incredulity. She then went into a telephone | booth and dialed numbers. An unidentified man, whom Mrs, - Francolino claimed to be her husband but who Brady tes- tified with some positiveness did not tally with the latter, approached and asked what the trouble was. On hearing Brady’s story and his threat to ‘‘call a cop,” he told Mrs. Francolino to give back the four $5 bills and take the two $10’s. She and the man entered a: parked 1961 black Cadil- lac bearing license No. -KG@9154, which turned out. to Pass registered in the name of Atlantic Freightways,. Inc. “of which Mr. Francolino was treasurer, and drove off. ‘ A eall from Brady brought to the store Secret Service Agent Sershen, who interviewed personnel and found vari- + ous counterfeit $10 notes. Sershen then went to the Franco- lino home and observed the Cadillac in the driveway. After summoning two local policemen, he rang the ‘bell and was admitted to the house‘ by defendant’s mother-in-law; he told her he wanted to know who owned the car. According to Sershen, who was substantiated by one of the policemen, Joseph Francolino came half way down the stairs, said he _ was the owner, and invited the agent upstairs into thé bed- room where Sershen observed Anne Francolino. Finding © 9 . Ad Appendia A—Opinion of United States Court of Appeals that she fitted the description given by the store personnel . and seeing a leopard skin handbag they had mentioned, he placed her under arrest. According to the agent and the ~ . ~ policeman, upon Sershen’ s asking for the car keys, Joseph | gave them to his mother who gave them to Anne who held them out in her open hand whence the agent removed them and passed them on to a policeman.. The latter opened the trunk of the car and found 1973 counterfeit $10: notes; these bore serial numbers B21075986I, B81538826H, and B88902043H, the same serial numbersas-notes passed to two of the cashiers. .Judge Bartels denied a motion to sup- press: the notes ‘as to Anne, holding. the search of the car was reasonably incident to a lawful arrest, but granted it - as to Joseph, whom Sershen had als arrested, unlawfully’ as the judge held. The notes were received in evidence at Anne’s trial.! Testifying in her-own defense, she did not dispute that she had passed the notes; her claim was that she had done this at the behest of her husband without knowing the notes were counterfeit. Several points urged on appeal require little discussion. - Our recital of the evidence of Anne’s peculiar behavior dur- . ing and immediately after her visit to the store is alone enough to demonstrate the lack of basis for objection on . the score of insufficiency of proof. It was not error to admit a $10 note found in the cash register of the snack bar on the same day and during the same hours that. Mrs. Francolino was in the store. United States v. Leitner, 202 F. Supp. 688 (S. D. N. ¥. 1962), aff'd, 312 F. 24 107 (2 Cir. 1963). There was ame evacuate for the jury to conclude that the two. 7 . pon beatae of the suppression of the notes, the ie: ment did not try Joseph who had also been indicted for illegal - possession. merida a al fe 7 ’ a ie a ee ee ee a : ’ Appendia A~—Opinion of United States Court of Appeals $10 bills handed to Miss Patterson and later returned to. : defendant and riever found thereafter were in fact counter- feit; and 1 the Government’s inability to. produce them is in- ‘consequential. United States v. Gersh, 328 F. 2d 460 ( “ Cir. 1964). A closer quaint’ is the relevancy of the 1973 counterfeit bills found in the Cadillac to the three substantive counts of passing. Although these.were clearly admissible on the fourth count, it is argued that this should have been dis- missed for lack of proof on the motion of defense counsel. and the jury instructed to disregard the 1973 notes. While the identity of serial numbers and other circumstances sufficiently connected these bills. with the: ones passed by the defendant, there was no direct proof of her knowing that the bills she passed had come from the hoard in \the car or indeed that she knew of the latter at all. On the ‘other hand, the evidence of her well planned technique for 7 note-passing, of her dash into the telephone booth upon _ _ being confronted with the counterfeit, and of her - : ‘escorted to and from the store by a man who was not h husband though she claimed he was, afforded sufficient ~ basis for inferring she was a principal in the enterprise to warrant admission of the 1973 notes on the passing counts. Moreover, we are not convinced that this same evidence plus the fact of her apparently having regained the car. keys from the unidentified man was not enough to warrant submission of the possession count at least insofar as this claimed she was an aider and abettor, cf. United States v. Lefkowitz, 284 F, 2d 310, 315-16 (2 Cir. 1960), and there was no request for an instruction that if the jury did not convict on that cor ut, it should disregard the evidence on : the others. JosEPH P. Hoey, Esq. United States Attorney Eastern District of New York Attorney for United States of America ° LEONARD J. THEBERGE,, Esq. Assistant U. S. Attorney 2 J acos P. LerKow1Tz, Esq - Attorney for_Defendants . : q ; en — Barrets, D. J. as, In this case the detindants bar been indicted on three counts for passing counterfeit $10 bills and on one count i : = ie a i : 2 ‘i : ’ + reg of . A-23 ‘ Appendix B—Opinion of ‘Hon. John R. Bartels, DJ. for possession of counterfeit $10 bills, in violation of 18 ' U.S.C.A.-$§ 2 and 472, predicated upon transactions which allegedly occurred on. or about July 24, 1964. This is a motion, pursuant to Rule 41(e), Fed. Rules. Crim. Proc., 18 U.S.C.A., to suppress certain evidentiary items on the ground of unlawful search and seizure allegedly in violation of the Fourth Amendment of the Constitution. In addition, defendants claim: that they were questioned in violation of the Sixth Amendment of the Constitution affording them a right to counsel, and in violation of the Fifth Amendment of the Constitution ones them privi- lege against self-incrimination. a ; Ca According to the testimony of George J. Sershen; Special Secret Service Agent, he received a radio call in his auto- mobile that several. counterfeit $10 bills were being passed at the Floyd Bennett Stores (sometimes referred to as FB. Stores) in Flatbush, Brooklyn, New York, and that while he was on the way to these premises he received further radio information that one Michael Brady had written down the license number of a Cadillac car in which the woman who passed the counterfeit bills had entered and therekfter had driven away; that the number was KG 9154 and that he thereafter received information over the radio that this car was registered in the name of Atlantic Freightways, Inc. with a business address at 114 Avenue U, ‘Brooklyn, and another address: at 1664 West 3rd Street, Brooklyn, “and that J oseph D: Francolino was treasurer of the com-— ‘pany. 3 f Agent | Sershen testified that he received further informa. tion over the radio that one of the counterfeit bills was A-24 a B—Opinion of H on. John R. Bartels, DJ. - “passed at a snack bar at the F. B. Stores and had been e turned over to one Philip Krieger at 2543 Flatbush ‘Avenue or Utica Avenue, and ‘that on his way to the Floyd Bennett - Stores he had stopped off at Krieger’s, place and picked up the bill; that Krieger told him that he received this bill that afternoon from one of his employees, Joseph Palillo, at the Floyd — market where it had been passed that afternoon. | . He then proceeded to the F.B. Stores where he arrived ~ at 5 or 5:30 P.M. and interviewed Bernard Singer, the. _ manager of the F.B. Stores, who stated that certain counter- _° feit $10 bills had been. passed in the store. Thereafter he- interviewed Michael Brady of the Housewares Department and also two cashiers at the F.B. Stores, Mary Lou Patter- son’ and Gloria Utsler, and also Joseph Palillo, and was told that Mary Lou Patterson received two counterfeit $10 bills and that Gloria Utsler found three counterfeit bills in, her register which were received by one Diane Ficocelli, whom Gloria Utsler relieved, and fhat Gloria Utsler did not see the young lady who passed the bill but that Mary Lou Patterson saw that young lady and that after talking to the \ various persons at the F.B. Stores the agent obtained a - description of the passer of the counterfeit bills as a young girl with teased hair, wearing a leopard kerchief and a ~ leopard-skin pocket book. The agent also learned that Mary Lou Patterson had stated that she had given this girl four good $5 bills for two counterfeit $10 bills. The agent said that Michael Brady described the girl who had passed the two counterfeit $10 bills as a young, slender woman, 5’4” _ tall, with teased hair, wearing a leopard kerchief and slacks al A-25 | Appendix B—Opinion' of Hon. John R. Bartels, DJ. — ' and carrying a leopard-skin bag, and took the agent to the window and showed him where the get-away Cadillac car had been parked and told him that he went out into the street in front of the store and approached the young lady © and showed her the two counterfeit bills which he accused her of passing, and that she ‘grabbed these bills but ¢ gave them back to him after he threatened to call the police. ' Thereafter a baldish man, about 40 years old, 5’8” (whom - I designate as ‘‘Mr. X’’) approached him and inquired what was the matter and aftér some conversation, in which Brady again threatened to call the police, Mr. X instructed the girl to ‘give back the four $5 bills, and whereupon Mr. X took the two counterfeit $10 bills and placed them in his wallet; that’ Brady saw both of these people enter the © | Cadillac ear. The agent obtained from Singer five counter- feit $10 bills which had been passed at‘the Floyd Bennett. ' Stores on the afternoon of Friday, July 24, 1964. Thereafter the agent went to 1664 West 3rd Street and arrived ‘there about 8 P.M. and saw.a black Cadillac.car in Atte driveway with the same license number, KG 9154.. He Ps _ thereupon telephoned the local police and two policemen arrived about ten minutes later. He made no attempt to obtain an arrest or search warrant because his office was closed. He told the policemen about the Cadillac car and’ . gave them ‘a description of the young lady accused of pass- ing counterfeit bills, and said that he was about to make an” »arrest; that all three. then approached the house, the agent rang the bell and the elder Mrs. Francolino opened: the door, . whereupon the agent stated that he wanted’to know who owned the car in the driveway and they were invited i A-26 Appendic B—Opinion of H on. Sate R. Bartels, D J. inside. _At this point the defendant J oseph Francolino came half way down the stairs and ‘the agent repeated that he | warited to know who owned the car in the driveway and the defendant Joseph Francolino replied that he owned the car and invited the agent upstairs into the bedroom. The ag agent ie . then showed the defendant Joseph Frarieolino his credentials ‘and as he entered the bedroom he saw the defendant Anne ‘*. Franeolino, who .was wearing slacks and who: fitted the description previously given him: he also saw a leopard-skin handbag on the dresser. He thereupon placed the defendant Anne Francolino under arrest for passing counterfeit bills. The defendant J oseph Francolino demanded an arrest war- : rant from the agent and stated that Anne Francoling could * P Cit ce: ie a el lO le Lon a cae gm a " not possibly have been in the car at the time because he was driving the car all that afterhoon: Whereupon the. agent - placed the defendant Joseph Francolino under arrest for being involved with counterfeit money, although Joseph | ' Francolino did not fit the description of Mr. X who took ~ back the two counterfeit $10 bills from Brady. The agent asked for the keys to the car’ and the de- fendant Joseph Francolino then gave them.to his mother and the mother then gave the keys to the defendant, Anne © Francolino. Upon demand by the agent, Anne Francol{no _ just held her hand open with the keys in it and the agent - took the keys from hér and gave them:to the policeman who opened the trunk of the car and found therein. $20,000 in counterfeit $10 bills: Thereafter the policemen took both . defendants, Joseph Francolino and Anne Francolino, i in the "patrol car’fo the Police Precinct arid booked them, and the. | —_— drove the Cadillac car to the ‘tation. sate Loreen drvitlar iain with the iat s testimony. Llane ant ccc tlie h a etait 4 tee Sal TAG AA Ste | hehe be Beg habem A tw eh antl se tab inai ah - | A-27 Appendia B—Opinion of Hon. John R. Bartels, DJ. Mrs. Katherine Fraicolino, the mother of the defendant Joseph Francolino, testified somewhat differently. She said — ' that after the officers entered her home, her son asked the agent for a search warrant; that the agent walked upstairs before her son came downstairs, and that the agent: threatened her with policeman’s handcuffs unless she dis- -gorged the keys to the car which she and not her. daughter- in-law held and that she subseqpently gave them to the agent out of fear. - Policeman Gerald Moyles,: who accompanied the agent, in effect substantiated the agent’s testimony as to entering the Francolino home by invitation and also.the delivery of the car keys by means of the open hand of the daughter-in-.. law and not from the resistant hand of the senior Mrs.’ Francolino. He denied that any statement was made that “ handeuffs. would be placed upon the senior Mrs. Francolino or anyone else. Michael ‘Brady testified and in ‘ai ‘substantiated the agent’s testimony with respect to the conversations which took place between him and the agent at the-F.B. Stores on July 24,1964, except that he stated that he did not describe ¢ the passer of tle counterfeit bills as a young lady with ‘‘teased’’ hair; otherwise his description was in h snqoreamee Mary Lon Patterson, one of the cashiers at the FB. Stores, was then called to tlie stand and could not remember _ whether she spoke to the agent on the day of J uly 24, 1964, '. but she specifically remembered pointing out to Michael *’ Brady on that day the passer- of the counterfeit bills and that this person was a young lady with teased black hair. “a _e . A928 ' Appendia B—Opinion of Hon. John R. Bartels, D.J. From all. the testimony. the Court finds that the agent had sufficient information from witnesses who. were not only identified but whose credibility was also reliable and ’ who conveyed to him an adequate description of fhe passer ‘of the counterfeit bills. In addition, he ‘had independent evidence in the form of (1) counterfeit $10 bills which he received from the F'.B. Stores, (2) license plate number KG 9154 which he saw on the Cadillac car in | the. driveway, and (3) leopard-skin pocket book which he saw on the dresser in the bedroom. It concludes, therefore, that the agent had probable cause to-make the arrest of the defendant Anne Francolino. See, Draper v. United States, 1959, 358 U.S. ~ 307, 79 S.Ct. 329; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302; Bates v. United States, 9 Cir. 1965, 352 F.2d .399, cert. denied, 34 U.68.L. Week 3245 (January 17, 1966) ; Hollins v. United States, 9 Cir. 1964, 338 F.2d 227; Caldwell v. United States, 8 Cir. 1964, 338 F.2d 385, cert. denied, 1965, 380 U.S. 984, 85 S.Ct. 1027; United States v. Sorenson, 2 Cir. 1964, 330 F.2d 1018, cert. denied, 1965, 380 U.S. 945, 85 S.Ct. 1027; Cuozzo v. United States, 5 Cir. 1963, 325 F.2a 274; Rodgers v. United States, 9 Cir. "1959, 267 F.2d 79; United States ex rel. Eidenmuller v. Fay, §.D.N.Y. 1965, 240 F.Supp. 591; Stevens v. Warden, Mary- “land Penitentiary, D.C. Maryland 1965, 238 F.Supp. 334; compare, Beck v. State of Ohio, 1964, 379 U.S. 80, 85 S.Ct. 223; Wong Sun v. United States, 1963, 371 U.S. 471, 83 $.Ct. 407; Katz v.- Peyton, 4 Cir. 1964, 334 F.2d 77, cert. denied, 379 U.S. 915, 85 S.Ct. 261; Contee v. United States, D.C. Cir. 1954, 215 F.2d 324. | 7 " The. Cadillac car was parked in the driveway of the premises occupied by the defendants and was, in fact, at IR ate et eer ce «bide etn Tne pi Aten mn ae le oA ei tate tome AE ate A-29 | Appendia B—Opinion of Hon. John R. Bartels, D.J. ‘that time an integral part of the premises. The search took place promptly after the arrest and was a reasonable one. Consequently, the search of the Cadillac car was a proper oA search incidental to the arrest of the defendant Anne Francolino. Drummond v. United States, 8 Cir. 1965, 350 F.2d 383; see, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4; Carroll v. United A States) 1925, 267 U.S. 132, 45 S.Ct. 280; Arwine v. Bannan, 6 Cir. 1965, 346 F.2d 458. Compare, James v. State of Louisiana, 1965, — US. my - 86 S.Ct. 151; Preston v. United States,. 1964, 376 U.S. 364, 84 S.Ct. 881. ‘There was no possible cause for the arrest of the de- fendant Joseph.Francolino, nor can the evidence obtained: from the search of the.car be used against him. __ _ Therefore, the motion to suppress will be denied with respect to the defendant Anne Frantolino and will be granted with respect to the defendant Joseph Francolino. - «Joun R. BakTELs, United States District Judge. A-30 APPENDIX C | -Fourth Amendment to the United States Constitution “The right of the people to be secure in their persons, houses, papers, and effécts, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause,. supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’” - Rel + A-31 APPENDIX D: Title 49 U.S. Code, Sections 781-784 ‘Section 781. Unlawful -use of vessels, hile: and dir: crafts; contraband article defined (a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by. means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contra- band article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, ' or aircraft; or (3) to use any vessel, vehicle, or aircraft. to facilitate the transportation, carriage, conveyance, conceal- ment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband axpicle. (b) As used in this section, the term ‘ contraband article? means—’? | **(3) Any. falsely ete forged, altered, or counterfeit coin or obligation or other security of -the United States or of any foreign government ; or any material or apparatus, or _paraphernalia’ fitted or intended to be used, or which i : ’ shall have been used, in the making of any such falsely made, forged, altered, or counterfeit coin or, obligation or other : security. sinh ‘Section 782. Seizure and Forfeiture Any vessel, vehicle, or aircraft which has hein or is being used in violation of any provision of section 781 of this title, or in, ‘upon, or by means of which any violation of said section has taken or is taking place, shall be seized - ee e# er ° . A-32 ’ Appendix D—Title 49 U.S. Cade, Sections 781-784 “Section 783. Designation of officers by Secretary of Trea- sury; duties of officers | - The Secretary of the Treasury is inipaiwens’ to authorize, or designate, officers, agents, or other persons to carry out : the provisions of this chapter. It shall ‘be the duty of any officer, agent; or other person so authorized or designated, or authorized by law, whenever he shall discover any vessel, vehicle, or aircraft which has been or is béing used in vio- - lation of any of the provisions of this chapter, or in, upon, . or by means of: which any violation of this chapter has _ taken-or is taking place, to seize such vessel, ‘vehicle, or aircraft and to: place it in the custody of such person as may be authorized or designated for that purpose by the - Secretary of the Treasury, to await disposition pursuant to, the eau of this chapter and any regulations 1 issued hereunder.”’ “Section 784. Application of related laws . All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels and vehicles for violation of the customs: laws; the disposition \ of such vessels and vehicles or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensa- tion to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have , been incurred, under the provisions of this chapter, insofar as applicable and not inconsistent with the provisions here- - of: Provided, That such duties as are imposed upon the collector of customs or any other person with vengers to the a bs . a ene enantio ith aS -A-33 Appendiz D—Title 49 U.S. Code, Sections 781-784 . ~ seizure and forfeiture of vessels and vehicles under. the customs laws shall be perforrked with respect to seizures : and forfeiture of vessels, vehicles, and aircraft under this _ i chapter by such officers, agents, or other persons as may be authorized or designated for that purpose by os oer: tary of the Treasury.”’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0277%3A2. 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