Petition for A Writ of Certiorari — Hand v. United States

Litsrcar ¥ LED

@GUPREME COURT G. & OCT 24 1975

OcToBER TERM, 1975

no._%) 7621 |

KATHRYN FRANCES HAND, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Mor Ton L. SUSMAN

2290 Two Shell Plaza

Houston, Texas 77002

(713) 222-1621

MARK W. PERRIN

1601 First City National Bank

Buiidi

Houston, Texas 77002

(713) 224-8702

Attorneys for Petitioner

‘ipha Low Brie] Co. One Mom Plasa, Nol Mam St. Houston, Texas 77002

Page

CU Te ales 1

Ft) st. SE EE eS ee Cee RE CET eID a 2

QUESTIONS PRESENTED .........-.eeecececcecees 2

STATUTORY PROVISIONS INVOLVED ............. 2

STATEMENT OF THE CASE ...............0ceeeee: 3

REASONS FOR GRANTING THE WRIT ...... Senn 6

I. THE DECISION BELOW CONFLICTS WITH THE

| DECISIONS OF THIS COURT AND OF OTHER

COURTS OF APPEALS AS TO THE “EXIGENT

CIRCUMSTANCES” EXCEPTION TO THE RE-

QUIREMENT FOR A SEARCH WARRANT. .... 6

A. Repeatedly this Court has held that searches and

seizures conducted without a lawful warrant are

per se unreasonable under the Fourth

subject only to a few limited exceptions. Katz

v. United States, 389 US. 355, 357 (1967). ..... 7

B. The opinion below is in conflict with its own deci-

sions and the decisions of other Courts of Appeals. 10

Il. THE DECISION BELOW HAS SO FAR DEPARTED

FROM THE ACCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS AND HAS SO FAR

SANCTIONED SUCH A DEPARTURE BY A DIS-

TRICT COURT, AS TO CALL FOR AN EXERCISE

OF THIS COURT’S POWER OF SUPERVISION. 11

A. Mrs. Hand was convicted and sentenced to prison

for violations of a statute which had not been en-

acted on the dates alleged. ................00. il

B. There is a total lack of evidence in the record on

one element of the offense, which lack of evidence

is plain error under Rule 52(b), F. R. Crim. P.,

COT Gar WOVRTOM LS ies 058 i Sei 6S iS ek ae S 12

C. There was no jury submission of the jurisdictional

element of the offemse. ..........0ceeececceecs 14

LIST OF AUTHORITIES

CASES

= Jem v. United States, 281 F.2d 803, 805 (9th

Stoner v. California, 376 US. 483, 486 (1964) ..........

United States v. Anderson, 500 F.2d 1311 (Sth Cir. 1974)

United States v. Garay, 477 F.2d 1306 (Sth Cir. 1973) ..

United States v. Howard, 506 F.2d 1131 (2d Cir. 1974) ..

United States v. Jeffers, 342 U.S. 48, 95 (1951) ........

United States v. Lonahaugh, 494 F.2d 1257 (5th Cir. 1973)

—

Iil

Page

UNITED STATES CONSTITUTION

Fourth Amendment ............ EVER a eee eh anaes ee 2

UNITED STATES STATUTES

18 U.S.C. Hert ace iia oath thoes Ceca bA kwh wes eke obo eeds 3,5

SE: Thies oe MUEES Sob bdcae nthe scadedeaceeatcones cvs 2

FEDERAL RULES OF CRIMINAL PROCEDURE

OCTOBER TERM, 1975

NO.

KATHRYN FRANCES HAND, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Kathryn Frances Hand, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Fifth Circuit, sitting en banc, entered on July 28,

1975. Petition for Rehearing was denied on September 26,

1975. é,

OPINION BELOW

The en banc opinion of the Court of Appeals is re-

ported at 516 F.2d 472 (Sth Cir. 1975). The panel

opinion is reported at 497 F.2d 92° (Sth Cir. 1974).

Both opinions, and the order denying petition for re-

hearing, and the judgment appear in the Appendix to this

Petition at Page 2A-32A.

2

JURISDICTION

Petitioner's time for filing this Petition ends on October

28, 1975. This Petition was timely filed ty that date.

The Court’s jurisdiction is invoked pursuant to Title 28

U.S.C. 3 1254(1).

QUESTIONS PRESENTED

1. Whether the search and seizure in this case is ex-

cused from the Fourth Amendment requirement of a

search warrant because of “exigent circumstances”.

2. Whether the Petitioner may be convicted and im-

prisoned for viclation of a statute which had not been

enacted at the time of the offense.

3. Whether the utter and total failure of the proceed-

ings to contain any evidence on the essential element of

jurisdiction constitutes plain error under Rule 52(b),

F.R.Crim.P.

4. Whether the trial court’s omission to submit to the

jury the essential element of jurisdiction constitutes plain

error under Rule 52(b), F.R.Crim.P.

STATULURY PROVISIONS INVOLVED

Fourth Amendment to the United States Constitution:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly des-

cribing the place. to be searched and the persons or

things to be seized.

3

Title 18 U.S.C. Section 657 (as amended on

October 19, 1970):

Whoever, being an * * * emplovee of * * * any

lending, [or] * * * credit * * * corporation or asso-

ciation authorized or acting under the laws of the

United States or any institution the accounts of

which are insured * * * by the Administrator of

the National Credit Union Administration * * *

embezzles, * * * any moneys, * * * belonging to

such institution, o1 pledged or ctherwise intrusted to

its care, shall be fined not more than $5,000 or

imprisoned not more than five years, or both; * * *.”

Title 18 U.S.C. Section 657 (prior to

October 19, 1970 amendments):

Whoever, being an * * * employee of * * * any

lending, for] * * * credit * * * corporation or asso-

_ ciation authorized or acting under the laws of the

United States * * * embezzles, * * * any moneys,

* * * belonging tc such institution, or pledged or

otherwise intrusted to its care, shall be fined not

more than $5,000 or imprisoned not more than five

years, or both; * * *.”

Rule 52, Federal Rules of Criminal Procedure:

(a) ***

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed a!'though they

were not brought to the attention of tke court.

STATEMENT OF THE CASE

This case involves a warrantless search of Petitioner’s

purses by a federal agent, who suspected her of criminal

violations and who previously caused her suspension

from employment due to irregularities in the cash ac-

+

counts. Incriminating documents were found in the

purses and were introduced into evidence at the trial

over proper objection.

The Petitioner, Mrs. Hand, was the bookkeeper and

office manager for ILA 1351 Federal Credit Union.

During an audit of the credit union accounts, irreguiari-

ties were uncovered in the way cash was handled, and

Mrs. Hand admitted to the federal agent that she had

“lapped” the accounting records to cover up shortages

of cash because she did not want to be uamed for the

shortages. She denied embezzling any money. Sne further

Stated that she did not know who was responsible for the

shortages, and it is unvontested that the money could have

been taken by several persons other than herself who had

full and free access to the ‘wash. Nonetheless, the federal

agent (who was a senior credit union examiner with

investigative powers) caused the Board of Directors to

suspend Mrs. Hand from her employment and to banish

her from the premises. When she left the premises, she

was not permitted to take any of her personal possessions

with her, but the personal possessions were not seized by

the federal agent at that time; they were left in or about

Mrs. Hand’s desk and file cabinet. Her personal posses-

sions which she was required to leave at the credit union

office included several purses together with books and

scarves.

The only evidenge in the record concerning the facts

leading up to the “warrantless search and seizure of her

purses is quoted as follows:

“Q. [by the prosecutor] Did you have any conversa-

tion with Mrs. Hand regarding the return of some

personal p-operty?

5

A. [by the federal agent] I was aware that she wanted

to pick up some personal property. I can’t recall if

she spoke to me directly or through Mrs. Wester-

green, but I was aware that she had planned to send

someone by the credit unicn to pick up several purses,

and I think maybe some books and scarves, and so

forth.” (Appendix, Pages 40-41)

At that point in time, the federal agent gathered up

Mrs. Hand’s purses and searched them. In the purses he

found not only her personal identification but also nu-

merous “cash received vouchers” showing monies deposited

to the credit union. These records were used to form the

basis of the ten counts of the indictment, and were intro-

duced into evidence against Mrs. Hand at the trial. The

federal agent admitted that at the time he searched and

seized Mrs. Hand’s purses, he suspected her of criminal

violations and had caused the Board of Directors to

suspend her from employment. He also admitted that the

only other female employee of the credit union was present

when he searched and seized the purses. (Appendix. Pages

45-46). The record is clear that the other female employee

did not claim those purses, and that the federal agent

certainly knew at the time he searched and seized the

purses that they belonged to Mrs. Hand.

Mrs. Hand was indicted in ten substantive counts for

violations of 18 U.S.C. §657. Each count alleged embezzle-

ment from a federally insured credit union. The indictment

did not allege federal incorporation of the credit union.

The only difference between the counts was the dates of

the alleged offenses and the amounts allegedly embezzled.

(Appendix, Page 33a). The jury convicted Mrs. Hand on

each count at the conclusion of a two day trial.

It is agreed and uncontested in this case that the prose-

cution introduced absolutely no evidence whatsoever, direct

or circumstantial, that the accounts of the credit union

were insured as alleged in each count of the indictment.

Federal insurance of the accounts was the jurisdictional

basis tor federal court prosecution. The prosecution did

introduce into evidence (without objection) the charter

of the credit union, which did prove that it was a federaily

incorporated institution, although that basis for the federal

court’s jurisdiction was not alleged in the indictment, and

was not otherwise mentioned during the trial.

It is also uncontested that the District Judge did not

submit to the jury any jurisdictional element of the offense,

and that neither the prosecution nor the defense objected

to this defect in the jury charge.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF THIS COURT AND OF OTHER

COURTS OF APPEALS AS TO THE “EXIGENT

CIRCUMSTANCES” EXCEPTION TO THE RE-

QUIREMENT FOR A SEARCiT WARRANT.

In affirming Petitioner’s conviction, the Court of Ap-

peals made a ruling on the law of search and seizure which

flagrantly violates the mandate of the Fourth Amendment.

The opinion below holds that if property or effects are

physically capable of being moved, then without any fur-

ther showing, “exigent circumstances” exist, to authorize

a warrantless search and seizure by government agents.

7

The opinion overrules or ignores not only the uncontested

facts in the case, but also ignores long established Con-

stitutional principles of search and seizure law.

The decision below holding that the warrantless search

of Petitioner’s purses, while already in the actual or con-

structive possession of the federal agent and while Peti-

tioner was the focus of a criminal investigation, conflicts

with the decisions of this Court, other Courts of Appeals,

and the Fifth Circuit itself.

A. Repeatedly this Court has held that searches

and seizures conducted without a lawful warrant

are per se umreasonable under the Fourth

Amendment, subject only to a few limited excep-

tions. Katz v. United States, 389 U.S. 355, 357

(1967).

{1) Among the exceptions is that line of cases which

authorize the search of automobiles, while they are mov-

ing upon the public highways and there is probable cause

to search. Carroll v. United States, 267 U.S. 132 (1925);

see also Chambers v. Maroney, 399 U.S. 48 (1970). Even

then, there must be evidence of a reasonable likelihood

that the automobile would or could be moved, with the

loss or destruction of evidence; only on that proof is a

warrantless search of that vehicle Constitutionally per-

mitted. Coolidge v. New Hampshire, 403 U.S. 443, 462

(1971).

Another narrow exception to the warrantless search

prohibition is founded on the factual existence of “exigent

circumstances” which would preclude the time or oppor-

tunity for the investigative officers to present their case of

probable cause to a magistrate. Warden v. Haden, 387

U.S. 294 (1967). Other limited exceptions to the prohibi-

tion against warrantless searches are not pertinent to this

case.

The essence of the “automobile” and “exigent circum-

stances” exceptions is that the officer may have only a

passing or fleeting opportunity to search before the sus.

pected evidence disappears or is destroyed. Assuming that

this exception can be applied to personal property such

as Petitioner’s purses, the Constitutional inquiry has only

just begun.

(2) When an exception to the warraniless search pro-

hibition is invoked, the burden of proving the exception

by evidence is on the party asserting it. Chimel v. Cali-

fornia, 395 U.S. ‘752, 761 (1969); Stoner v. California,

376 U.S. 483, 486 (1964); Rios v. United States, 364

U.S. 253, 261 (1960); United States v. Jeffers, 342 US.

48, 95 (1951); and McDonald v. United States, 335 U.S.

451, 454-455 (1948).

The exigent circumstances exception which is the basis

of both the panel opinion and the en banc decision below,

was never raised by the Government and was not briefed

or submitted in the original argument; this idea appeared

for the first time in the panel decision. The Government

neither raised nor established this so-called exception in

the trial court, or in the first appeal in the circuit court.

However raised, the “exigent circumstances” exception

must be founded on a factual basis in the record which

establishes that the search and seizure of Petitioner’s purses

and the contents was imperative under the circumstances

then and there. This Court’s uniform decisions, to which

the en banc decision below pays mere “lip service”, re-

9

quire evidence of the claimed “fleeting opportunity” to

search. But what evidence in this record demonstrates any

such fleeting chance to search Petitioner’s property and

effects? There is none—the search and seizure in this

case fall far short of meeting Constitutional requirements.

_ The majority of the court below found that Petitioner’s

vague statement of her future intent or desire to send

someone to pick up her property presented such a fleeting

chance to search that “exigent circumstances” existed.

But, as the dissent below points out, this conclusion is

totally unsupported by any evidence in the record. There

was no way for Petitioner to retrieve the purses unless

the federal agent permitted the release of them to her;

he had ample time to maintain the status quo, and to

apply for a search warrant if he felt he had probable

cause to search. The record is void of any hint that the

purses were about to flee or escape before the federal

agent had time to seek a search warrant. With these facts

in mind, it becomes quite significant that the Government,

in both the trial court and the circuit court, did not even

try to sustain the search and seizure on the exigent cir-

cumstances exception—it is apparent that even the Gov-

ernment did not believe that exigert circumstances were

present until the panel opinion was handed down. There

is no evidence in the record which can be argued in

support of ariy “exigent circumstances” theory.

(3) There being no exception to the requirement that

the Government’s investigator have a warrant to search

and seize Petitioner’s property and effects, the seizure was

illegal and the evidence at trial should have been ex-

cluded. Even if there were probable cause to search, a

warrant is nonetheless required. Agnello v. United States,

10

269 U.S. 20, 33 (1925). Even if there were probable

cause to support a warrant, that judgment is for the

magistrate and not the federal agent. Johnson v. United

States, 333 U.S. 10, 13-14 (1947). The mandate of the

Fourth Amendment and decisions of this Court were not

followed in the Court below.

B. The opinion below is in conflict with its own

decisions and the decisions of other Courts of

Appeals.

(1) The decisions of other Circuits have long held

that those who seek exemption from the requirement of

a warrant must show actual “exigent circumstances” indi-

cating imminent removal or destruction of evidence, not,

as the court below ruled, a mere theoretical opportunity

for such removal or destruction. Cash v. Williams, 455

F.2d 1227, 1231-1232 (6th Cir. 1972); United States v.

Payne, 429 F.2d 169, 171-172 (9th Cir. 1970}; Eng

Fung Jem vy. United States, 281 F.2d 803, 805 (9th Cir.

1960); and Steeber v. United States, 198 F.2d 615, 617-

618 (10th Cir. 1952).

(2) Equally significant, the opinion below in spite of

the majority disclaimer, is in irreconcilable conflict with

its own recent decisions. United States v. Anderson, 500

F.2d 1311 (5th Cir. 1974); United States v. Lonabaugh,

494 F.2d 1257 (Sth Cir. 1973); and United States v.

Garay, 477 F.2d 1306 (Sth Cir. 1973).

For these important reasons, a Writ of Certiorari should

issue.

il

Il.

THE DECISION BELOW HAS SO FAR DEPARTED

FROM THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS AND HAS SO FAR

SANCTIONED SUCH A DEPARTURE BY A DIS-.

TRICT COURT, AS TO CALL FOR AN EXERCISE

OF THIS COURT’S POWER OF SUPERVISION.

A. Mrs. Hand was convicted and sentenced to prison

for violations of a statute which had not been

enacted on the dates alleged.

Prior to October 19, 1970, there was no provision in

law for federal insurance on credit union accounts. The

enabling statute became effective on October 19, 1970.

Six of the ten counts allege embezzlements from an insured

credit union prior to October 19, 1970, and therefore are

defective on their face. Three of the remaining four counts

alleged embezzlements just a few days after the enabling

legislation became effective, and it is not contested that

on those three counts, the credit union could not possibly

have had federal insurance. The last count alleged an

embezzlement approximately three months after the statute

was enacted, but there was absolutely no evidence that

the credit union was insured on that date, or on any

other date.

To circumvent this readily apparent defect in the pro-

ceedings, the majority of the Court of Appeals “amended”

the indictment by disregarding the allegations of federal

insurance as the jurisdictional basis and substituted federal

incorporation as the jurisdictional basis, although there

is not one word in any count of the indictment about

federal incorporation, and the case was tried solely on

12

the theory that it was a federally insured institution. The

fact that federal jurisdiction might possibly have been

based on a federal charter did not come up until the case

_ Was on appeal.

It is a startling departure from the accepted and usual

course of judicial proceedings to imprison a person for

violating a statute which was not enacted at the time

of the alleged offense. However, this is what the Court

Of Appeals has done, and has sanctioned by District Court.

This Court therefore should exercise its power of super-

vision to correct this shocking violation of constitutional

incipl

B. There is a total lack of evidence in the record

on one element of the offense, which lack of

evidence is plain error under Rule 52(b), F. R.

Crim. P., calling for reversal.

The grand jury returned the indictment (Appendix,

Page 33A) against Mrs. Hand alleging in ten counts em-

bezzlement from a federally insured credit union. There

was no allegation in any count of the indictment that it

was a federally chartered credit union. Thus it is clear that

the only basis for the court’s jurisdiction is federal insur-

ance of the accounts. However, it is uncontested that there

was absolutely no evidence that the credit union had any

insurance on its accounts on any date alleged in the

indictment. Instead, the prosecution introduced the federal

charter of the credit union without objection.

U. S. District Courts are not courts of general juris-

diction; the federal courts have limited jurisdiction and

it is required that the jurisdiction of the court be alleged

in the indictment and proved beyond a reasonable doubt.

13

The element of jurisdiction for any federal crime is no less

important than any other element of the crime, and indeed

may be more important as it goes to the heart of the

court’s power to act, and in this case, to imprison.

was no evidence on one essential element of the crime,

under the plain error doctrine. See Davis v. United States,

160 U.S. 469 (1895); Clyatt v. United States, 197 U.S.

207 (1905); Christoffel v. United States, 338 U.S. 84

(1949). The courts of appeals, including the Fifth Cir-

cuit, consistently have so held, and this case is the

first to depart from that requirement. The rule is well

stated in Clyatt, supra:

“* * * there is not a scintiJla of evidence to show

that [the victims] were ever theretofore in a con-

dition of peonage. * * * We have examined the

testimony with great care to see if there was anything

which would justify a finding of the fact, and can

find nothing. No matter how severe may be the

condemnation which is due to the conduct of a party

charged with a criminal offense, it is the imperative

duty of a court to see that all the elements of his

crime are proved, or at least that testimony is of-

fered which justifies a jury in finding those elements.

Only in the exact administration of the law will

justice in the long run be done, and the confidence

of the public in such administration be maintained.”

197 U.S. at 222.

The Court of Appeals has departed from that

long-standing rule of this Court and from its own

decisions and the decisions of other circuits, and has

sanctioned an ad hoc rewriting and amendment of a

criminal indictment while the case was on appeal, for

C. There was no jury submission of the jurisdic-

tional element of the offense.

The District Court did not submit to the jury any ele-

ment whatsoever for a jury finding on the jurisdictional

element of the offense, whether the correct element be

federal insurance or a federal charter. This is plain error

under Rule 52(b), F.R.Crim.P., which must be noticed

on appeal even without an objection in the: trial court.

There was no objection by the defense or the prosecution,

but there is nothing in the record to bind the defense

to a waiver; there was no invited error; there was no

stipulation, agreement or other affirmative acticn by the

defense which would excuse the submission of this es-

sential element of the crime. This Court and the several

courts of appeals have long held that failure to submit

all of the elements of a crime constitutes plain error under

Rule 52(b), F.R.Crim.P., and calls for reversal. How-

ever, this readily apparent reversible error was not even

commented upon by the court of appeals in its decisions

in this case. This radical departure from decisions of this

Court and from the accepted and usual course of criminal

proceedings in the federal courts calls for this Court to

exercise its power of supervision. The rule is well stated

in Screws v. United States, 325 U.S. 91 (1945):

“Where error so fundamental as not to submit

to the jury the essential ingredient of the only

Until now this rule has been consistently followed by

the courts of appeals, most recently being stated by the

Second Circuit in United States y.-Howard, 506 F.2d

1131 (2d Cir. 1974):

less error for a jury to find a man guilty of a federal

offense without even knowing what the elements

of the offense are.

* * *

When Howard exercised his constitutional right to a

jury, he put the Government to the burden of proving

the elements of the crimes charged to a jury’s satis-

faction, not to ours or to the district judge’s. Thus,

even if we believe that there was overwhelming

proof of the elements not charged, we must still

reverse.”

Here the pleading, proof and jury submission of the

federai court’s jurisdiction was non-existent. This is pk

error under Rule 52(b) F.R.Crim.P.

CONCLUSION

Petitioner’s conviction was upheld by a narrow eight-

to-seven vote in a bitterly divided Fifth Circuit. The

minority found it

16

strange”. Judge Simpson stated

, but does agree with Judge Dyer’s

the only rationale for the majority:

under the circumstances, the majority striv-

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2

demonstrated by attorneys in the federal courts. The

record of proceedings in this case might well be a classic

example of the danger to our Constitutional government

which results when there is such a low level of competency

in

on the part of prosecutors and defense counsel;

such cases it may be tempting for some judges to “labor

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the U. S. Court of

Appeals for the Fifth Circuit.

Respectfully submitted,

Morton L, SUSMAN

2290 Two Shell Plaza

Houston, Texas 77002

(713) 222-1621

MARK W. PERRIN

1601 First City National Bank

Building

Houston, Texas 77002

(713) 224-8702

Attorneys for Petitioner

18

CERTIFICATE OF SERVICE

I hereby certify that The Solicitor General, Department

of Justice, Washington, D. C. 20530, was served with

three copies of the foregoing Petitioa for a Writ of Certi-

orari by mailing the same to him in a properly addressed,

airmail postage prepaid envelope, this 24th day of Octo-

ber, 1975, and that three copies of said Petition for a

Writ of Certicrari were served on the United States

. 5. Courthouse, Houston, Texas 77002, by

in a properly addressed, postage

24th day of October, 1975.

:

Cc

MorTON L, SUSMAN

la

APPENDIX

PANEL OPINION

(Caption Omitted )

GEE, Circuit Judge:

Kathryn Frances Hand appeals from her conviction on

a jury verdict of ten counts of embezzlement from her

employer, a federally insured credit union. Her appeal

presents, with others, contentions of unreasonable search

and seizure, of deficiencies in the indictment and variances

in proof, and of a constitutionally inadequate defense pro-

vided by her retained trial counsel.

Mrs. Hand was the bookkeeper and office manager of

ILA 1351 Federal Credit Union (the Union), operating

in Houston, Texas. According to her testimony, she dis-

covered a serious shortage of cash in the Union accounts

about 2% years before the events which led to her indict-

ment, a shortage which steadily increased over the ensuing

time to many thousands of dollars. She was in effective

control of the Union’s accounting operations. Mrs. Hand

admitted having concealed the increasing shortage from

the federal credit union examiners over the course of

several annual audits, but asserted that she had no idea

where the funds were going. The technique which she

employed in this scheme was that known in accountancy

as “lapping,” which involves using later cash receipts to

match earlier deposits and relying on posting delay to

bridge the gap between what should have been in the

coffers and what was. Though her case presents troubling

questions on two points, we affirm.

2a

L

The Search and Seizure Conter.tion

Appellant Hand had placed within purses many cash-

received vouchers which evidenced her scheme for con-

cealing the credit union’s shortage. These purses were

located in or on file cabinets and desks in the Union’s

office. At a time when the focus of suspicion had begun

to center strongly on Mrs. Hand, she told the federal

examiner that she was sending someone by to pick up

these purses, and perhaps other personal property. On

receiving this word, hc opened the purses—to ascertain

whether or not they were hers, so he testified’—and dis-

Assuming that Hale was the sort of person to whose

searches and seizures the Fourth Amendment applies, his

search of the handbags in these circumstances raises close

questions. Before us, the United States seeks to justify it

under the “plain view” exception to warrant requirements,

contending that Hale blundered upon the evidence in the

course of an irnocent attempt to find identification. This

was, indeed, his testimony, and the trial court considered

and rejected a motion to suppress after hearing it. It thus

might seem the court credited Hale’s explanation, an

in limine fact-finding which we would be reluctant to over-

turn on a cold record.’ On the other hand, the basis of

1. An assertion somewhat dubious at first blush, since they were

women's handbags, and the only other female who worked in the

office appears to have been present when he opened them.

2. “decomeme ol Evidence § 53 at 121 (2d Ed. 1972):

3a

the court’s ruling is not clear: the record indicates that

the government urged that Hale was merely a private citi-

zen, to whose searches Fourth Amendment safeguards did

not apply, while the defense memorandum on the subject

sought to negative consent as a warrant exception. The

court merely overruled the defense motion to suppress,

without elaboration. In these circumstances, where we are

unabie to determine with assurance whether the court

made the fact-finding—innocent stumbling upon the evi-

dence—upon which the plain view exception must rest,

we must proceed further.* To do so requires consideration

of the facts leading up to the search.

When Hale, the federal examiner, arrived in early April,

1971, to make his annual examination of the Union, he

was aware from three previous examinations that the

Union had had a continuing problem with the handling

of cash. He considered Mrs. Hand to be the one who “ran”

the Union. Almost immediately, he discovered a thirty-

dollar cash shortage related to a particular cash voucher.

In the course of the audit, other ominous signs appeared.

Interest income appeared too small for the volume of

loans. About $22,000 in unreported delinquent loans

surfaced. Upon inquiry of Mrs. Hand, she produced—

after a day’s delay—extension agreements covering the

delinquent loans, but four of these bore signatures which

Hale felt, and advised Mrs. Hand, appeared suspicious.

A check with one of the supposed signatories produced

a receipt showing his loan had not been extended at all,

but paid. At this point, Hale advised the Union’s board

of the situation, suggesting suspension of Mrs. Hand and

3. Though it seems likely, that, had the court felt Hale was tes-

tifying disingenuously, other consequences would have ensued.

4a

a thorough investigation and verification of all accounts.

On April 8, she was suspended.

The next day, April 9, Hale was informed by the other

female employee of the Union, Mrs. Westergreen, that

Mrs. Hand had telephoned about some missing ledger

cards, Hale called Mrs. Hand, and she told him the names

of various members whose ledger cards had, she said,

mysteriously appeared that morning on her front porch.

Hale and the credit union president went to her home

that same day and received from her ledger cards corres-

ponding to the names she had given over the telephone,

most of which were torn across and which Hale recalied

taping back together. Upon Hale’s return to the Union

office, he received yet another call from Mrs. Hand, one

in which she confessed that a sho-:age of funds had been

going on at the Union for two-and-a-half years, that during

this period she had been concealing the shortage, and

that though she did not know where the funds had gone

she was willing to make some amount of restitution.

Against this background, Mrs. Hand also told Haile,

either in the exchange in which she confessed cooking the

books or in her third telephone call to him that day, that

she was sending for some of her purses which were in the

Union office, as well as some books and scarves. In the

process of gathering up her property, Hale testified, he

opened the purses, looking for credit cards or for other

identification of them as Mrs. Hand’s. He found identify-

ing matter. He also found over 150 vouchers minuting

cash transactions in tens of thousands of dollars, the very

great majority of which were initialed by Mrs. Hand as

the receiving person. Assuming the worst, that a deliberate,

warrantless search of the purses was carried out at this

point by Hale, does it pass Fourth Amendment muster?

o

Sa

{1] We conclude that it does. By the time Hale learned

of Mrs. Hand’s immediate purpose to remove her handbags

from the office, she had admitted juggling the Union’s

accounts; and numerous of its financial records had ap-

peered at her home, under highly suspicious circum-

stances and in a condition indicating an aborted effort

to destroy them. Probable cause existed to believe that

she had previously concealed and removed and might

again conceal or remove records, and the purses were a

likely vehicle for either action. Hale would have been

remiss in his duty had he permitted such containers to be

abstracted from the proximity of the accounting files

without determining thai they were not being so used.

It may be that in these circumstances, even absent Mrs.

Hand’s notice that she was sending for the purses, Hale

would have been authorized by the Union’s consent ta

examine the contents of such containers as he found in

and about the files. The record indicates that purses were

either in or on the file cabinets or desks in the office, and

it does not indicate that Mrs. Hand had use of these

furnishings to the exclusion of other employees, rather

the contrary.* And though personal handbags imply priv-

acy, the fact that numbers of them were left about the

4. This circumstance, with the highly specific nature of the prob-

able cause here present to believe Mrs. Hand might have concealed

her employer’s property for her own purposes, tends to distinguisk the

case at bar from United States v. Blok, 88 U.S. App. D.C. 326, 188

F.2d 1019 (1951), in which an employer’s consent was held ineffect-

ive to validate search for evidence of an extraneous crime of a desk

reserved for an employee’s exclusive use. There the Court noted: “Her

superiors not reasonably search the desk for her purse . . . or

anything else that did not belong to the government [her employer]

and had no connection with the work of the office.” 188 F.2d at 1021.

Here, though Mrs. Hand’s purse was searched, it was precisely such

matter which, with probable cause, was sought.

a

office while she was elsewhere places these in a position

little more personal, if at all, than that which would have

been held by a closed folder found in the files and marked,

say, “F. K. Hand—Personal.” At any rate, he received

Mrs. Hand’s call stating her purpose to remove the purses

while present in a place where he was authorized to be

and to most of which he had an unquestioned right of

But when to these is added the exigency of Mrs. Hand’s

stated purpose to send for the purses, the scale is de-

cisively tipped. On the record, Hale’s choices at this junc-

ture were to release the purses unexamined, to refuse to

release them while he contacted regular law enforcement

authorities and a warrant issued, or to inspect their con-

tents and be guided by what he found. Probable cause

existing, the first course would have been a dereliction

of duty. As to the latter two, if Hale’s official “investiga-

tive” position was such as to subject hita to Fourth Amend-

ment strictures, it was perforce such as to authorize his

seizure and immobilizing of the purses. Having the power

to seize, in the situation presented, he had the duty to

do so. And having seized, the lesser intrusion was to check

the purses for Union documents and, if none were found,

to release them without more ado. Chambers v. Maroney,

399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981-1982, 26 L.Ed.

2d 419, 428 (1970); United States v. Soriano, ___ F.2d

—— (5th Cir., en banc, 1974) [No. 72-1520, July 15,

1974, slip op. 5783].

It is true that the facts of Chambers and Soriano differ

from these and from each other, and true moreover that

Mrs. Hand was not under arrest® and her handbags did

5. Though probable cause to arrest her doubtless existed at the

time of the search.

Ta

not contain, and were not thought to contain, contraband

or dangerous instrumentalities. But they were easily mov-

able, and she had announced a positive and immediate

intent to remove them. There was probable cause to be-

f lieve that they contained evidence, and the opportunity

to preserve it was fleeting. In the totality of these cir-

search, And we have held in Carlton v. Estelle* that

wat lia bokeh culked Gc bese oe

was justified by the presence of persons presumably sym-

pathetic to Carlton who might have made away with it.

Here the suspect herself had avowed an immediate intent

to have the movable and suspect articles removed. In

these circumstances, the seizure and search were per-

: missible.

Il.

The Indictment: Was Jurisdiction Alleged and Proved?

Appellant also raises in various modes and points what

may be seen either as a deficiency in the indictment, a

variance between the accusation and the proof, or a failure

of proof. The indictment contained ten counts. Bach,

except for dates and amounts, was identical to the others.

Count I will therefore serve to illustrate all of them:

COUNT I

That on or about the 25th day of July, 1968, in the

Houston Division of the Southern District of Texas, and

within the jurisdiction of this Court, one KATHRYN

’ FRANCES HAND, being an employee of the ILA 1351,

6. 480 F.2d 759 (Sth Cir. 1973).

Oe

sand One Hundred Ninety Four and 94/100 ($1,194.94)

Dollars, more or less.

(Violation: Title 18, United States Cede, Section 657)

from an insured institution as an offense before it was

amended to do so, effective October 19, 1970. The first

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insured institution, appellant is entirely correct: it was

neither proved nor found.

7. For all the record shows they well may not have beeu.

8. Though the statute, elided to refer only to insured institutions,

was read as an earlier part of the court’s charge.

Ga

It remains to consider whether this admitted variance

between pleading and proof was fatal. We also consider

whether the indictment sufficiently charges as well the

commission of the crime of embezzling from a federally

chartered credit union and, if so, whether the conviction

may properly be affirmed on this ground.’

The indictment is clearly susceptible of being read as

charging that Mrs. Hand’s offense was committed against

an entity which (1) was a federal credit union and (2)

the deposits of which were federally insured. It is also

susceptible of being read as referring to an entity which

merely incorporated the phrase “Federal Credit Union”

in its title. Competent pleading of this jurisdictional

ground would at the least have added some such phrase as,

“a federal credit un’on” after what was arguably merely a

title. Had this been done, the allegation of this ground

of jurisdiction would have been clearly sufficient. United

States v. McAdams.*® This careless omission, together

with the utter failure of proof as to the other ground of

jurisdiction alleged, remits us to a brief consideration of

first principles which should have had no place whatever

in this case. These may be simply stated, the difficulty is

in their application.

- [2-4] Common-law ruffles and flourishes form no part

of the current law of criminal pleading. An indictment is

sufficient which plainly asserts the essential facts of the

offense." The purpose of the indictment is said to be to

9. At all times § 657 denounced this as a crime. United

States v. , 196 F.2d 616 (7th Cir. 1952); United States v.

McAdams, 303 F 824 (N.D. W.Va. 1969).

10. id.

11. Fed. R. Crim. P. 2(c).

A

10a

inform the accused of the charge against him sufficiently

for him to prepare his defense, to yrotect him after con-

viction or acquittal against further prosecution for the

same cause, and to inform the court of the facts charged

so that, if necessary, it may pass on their legal sufficiency

to support a conviction.”* Surplusage, though subject to

being stricken on defendant’s motion, does not vitiate an

indictment,”*

[5] As noted above, each count of Mrs. Hand’s in-

dictment alleges that, while employed by “ ... ILA

1351, Federal Credit Union, Houston, Texas, the deposits

of which Credit Union were then and there insured by the

National Credit Union Administration. . . .” she made

away with funds entrusted to her. The United States entire-

ly failed to prove the alleged insurance, but proved the

Union was a federal one, chartered under the laws of the

United States, beyond peradventure. If the indictment’s

reference to insurance be regarded as surplusage, and if

its reference to ILA 1351, Federal Credit Union, is a

sufficient allegation of federal incorporation, then the

government has alleged two jurisdictional bases, either of

which would do, and proved one of them. “Federal Credit

Union” is a term of art** analogous to “National Bank”

and similar titles. And so, stated most favorably to Mrs.

Hand, the decision under this head of appeal comes down

to this: as a matter of criminal pleading, was jurisdiction

sufficiently alleged, against objection made for the first

12. 1 Wright, Federal Practice and Procedure: Criminal § 125.

13. Fed. R. Crim. P. 7(d); see 1 Wright, Federal Practice and

Procedure: Criminal § 127.

14. Defined at 12 U.S.C. § 1752 as a cooperative association or-

ganized under that chapter, which is, in turn, entitled the “Federal

Credit Union Act.” 12 U.S.C. § 1751.

lla

time on appeal, by the simple assertion that defendant em-

bezzled from “the X National Bank” or “the Y Federal

Credit Union.” Not without difficulty, we conclude that

it was.

There can be little doubt that the major purposes of

an indictment were served by this one. Mrs. Hand was

employer, for whom the record shows she had worked

about five years before being suspended. Here is no ques-

tion such as might have been presented had she worked

for two or three with similar names, or picked several

pockets in one day; she well knew what she was accused

of This was fair notice to her under the Sixth Amend-

ment. And it is equally plain that, in the event of convic-

tion or acquittal, the pleading—suppliemented if necessary

by the record of all proceedings against her'°—would

suffice to protect her from further jeopardy. It is with

Fed.R.Crim.P. 7(c)** and its demand for “ . . . a plain,

concise and definite written statement of the essential facts

to the rub.

[6, 7] A skimpier assertion of jurisdiction can scarcely

be imagined than we find here. The element is, moreover,

one which can in no sense be waived or cured by verdict,

being of the type whose absence is available for considera-

4S, Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 2 L.Ed.

2d 240 (1962); Woodring v. United States, 376 F.2d 619 (10th Cir.

1967).

16. And with the third function of the indictment, to “set out the

"specific offense,” Russell v. United States, 369 U.S. at 768, 82 S.Ct.

at 1049, 8 L.Ed.2d at 253, so : »s “to inform the court of the facts

alleged, ‘so that it may decide whether they are sufficient in law to

support a conviction. . . .” United States v. Cruikshank, 92 U.S. 542,

558, 23 L.Ed. 588, 593 (1875).

12a

tion even on motion in arrest of judgment.*” Yet the mod-

ern rule for treatment of indictments is that they are to

be read as a whole and interpreted in a common-sense

manner, free of the trammiels devised by the common law

at a time when every felony was punishable by death,’’

and the rule is not otherwise as to essential elements of the

pleading. Such a reading indicates that an entity styled a

“Federal Credit Union” is at least very likely to be a fed-

eral credit union, whether or not realleged to be such in

lower case. Nor need there be fear in this case, such as

was expressed in Stirone v. United States, 361 U.S. 212,

80 S.Ct. 270, 4 L.Ed.2d 252 (1960), that the grand jury

which returned this indictment did not mean to charge

the offense of which Mrs. Hand was convicted. No prej-

udice to the substantial rights of Mrs. Hand appears from

the sketchiness of the pleading, and hence it was not

fatally defective. Berger v. United States, 295 U.S. 78,

55 S.Ct. 629, 79 L.Ed 1314 (1935). Indeed, it is far

from certain that an entire failure to allege the federal

character of the association would have been fatal, where

a proper head of jurisdiction was alleged and another was

proved without obiection to the evidence as variant, and

without motion for judgment: of acquittal, motion in arrest

of judgment, or other outcry below, Cf. Jackson v. United

States, 123 U.S. App. D.C. 276, 359 F.2d 260 (1966).”°

In these circumstances the indictment, though a good ex-

ample of bad practice, did not mislead or prejudice Mrs.

Hand and was sufficient.

17. Fed. R. Crim. P. 34.

18. 6 Moore, Federal Practice 7.04.

19. If more be needed, defeudant’s requested jury instructions in-

merely whether Mrs. Hend was the employee of ILA 1351,

ederal Credit Union,

SEEN SYN OL FN BEM ORS et INE oe nm

13a

I.

Inadequacy of Trial Counsel and Other Matters ..

{8} Appellate counsel for Mrs. Hand faults retained

trial counsel by hindsight for failing to take various steps

in the course of the proceedings below. A catalogue of

things which might have been done and were not is pre-

sented. Though we are not in the business of rating legal

performance,”” we have considered counsel’s supposed de-

ficiencies, severally and in total effect, in relation to the

record and are entirely unable to say that the charge is

well grounded. Nothing is advanced which may not be

viewed either as a legitimate tactical choice, the relinquish-

ment of an untenable position or, at worst, an honest mis-

take. We take occasion to reiterate both that we do not

view such roundings on trial counsel with favor and that

_ there is a wide expanse of tolerance for ability of counsel

between success in the case and an inadequacy so ex-

treme and so clear as to offend the Constitution.

We have carefully considered appellant’s remaining

points, as well as those which we have discussed. None re-

quires reversal.

Affirmed.

20. Horsley v. Simpson, 400 F.2d 708 (Sth Cir. 1968).

ida

EN BANC OPINION

(Caption Omitted)

Before BROWN, Chief Judge, and WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON, MOR-

) GAN, CLARK, RONEY and GEE, Circuit Judges.

GEE, Circuit Judge: *

Kathryn Frances Hand was convicted by a jury of ten

counts of embezzlement from her employer, a federally

insured credit union. Her appeal presents, with others,

contentions of unreasonable search and seizure, of de-

ficiencies in the indictment and variances in proof, and

of an inadequate defense by retained trial counsel.

Mrs. Hand was the bookkeeper and office manager of

ILA 1351 Federal Credit Union (the Union), operating

in Houston, Texas. About 24% years before the events

which lec to her indictment, she testified, she discovered

a serious shortage of cash in the Union accounts, a short-

age which steadily increased over the ensuing time to

many thousands of dollars. In effective control of the

Union’s accounting operations, she admitted having con-

cealed the growing shortage from federal examiners over

the course of several annual audits, but maintained that

she had no idea where the funds were going. The tech- :

nique she used to hide the shortage is known in account- .

ancy as “lapping”: using later cash receipts to match

earlier deposits and relying on posting delay to bridge the

gap between what should have been in the coffers and

what was. We affirm her conviction.

ee ee

* The subject and author being the same as in the panel opinion,

497 F.2d 929 (Sth Cir. 1974), considerable portions of that opinion

appear here, without quotation marks or further attribution.

SES aot aenis ae

AO LY RR ie F a, IB Rit em aie et BANMln Ramee ©

15a

I,

The Search and Seizure Contention

Appellant Hand had concealed in several purses many

vouchers evidencing her scheme for con-

cealing the credit union’s shortage. These purses were

located in or on file cabinets and desks in the Union’s

exact moment, or very shortly after, she

the federal examiner, probable cause to

the thief, she advised him that she was sending

_° by for these purses. On receiving this word, he opened

the purses—to ascertain whether or not they were hers,

_ he: testified’—and discovered the incriminating vouchers.

Assuming that Hale was the sort of person to whose

|

natural and reasonable, raises close questions. Before

us, the United States seeks to justify it under the “plain

view” exception to warrant requirements, contending that

Hale blundered upon the evidence in the course of an

innocent attempt to find identification. This was, indeed,

his testimony, and the trial court considered and rejected

a motion to suppress after hearing it. It thus might seem

the court credited Hale’s explanation, an in limine fact-

finding which we would be reluctant to overturn on a

cold record.’ On the other hand, the basis of the court’s

1. An assertion somewhat dubious at first blush, since the’ were

women’s handbags, and the only other female who worked in the

office appears to have been present when he opened them.

one who “ran” the Union. Early on, he discovered a thirty-

dollar cash shortage related to a particular cash voucher.

In the course of the audit, other ominous signs appeared.

Interest income appeared too small for the volume of

loans. About $22,000 in unreported delinquent loans

surfaced. Upon inquiry of Mrs. Hand, she produced—

after a day’s delay—extension agreements covering the

delinquent loans, but four of these bore signatures which

Hale felt, and advised Mrs. Hand, appeared suspicious.

A check with one of the supposed signatories produced

@ receipt showing his loan had not been extended at all,

but paid. At this poiai, Hale advised the Union’s board

of the situation, suggesting suspension of Mrs. Hand and

a thorough investigation and verification of all accounts.

On April 8, she was suspended.

3. Though it seems likely that, had the court felt Hale was tes-

tifying disingenuously, other consequences would have ensued.

17a

The next day, April 9, Hale was informed by the other

female employee of the Union, Mrs. Westergreen, that

Hale called Mrs. Hand, and she told him the names of

teriously appeared that morning on her front porch. Hale

and the credit union president went to her home that same

day and received from her ledger cards corresponding to

the names she had given over the telephone, most of which

were torn across and which recalled taping back

together. Upon Hale’s return £6 the Union office, Mrs.

Hand called again and that a shortage of funds

had been going on at the Union for two-and-a-half years,

that during this period she had been concealing the short-

age, and that though she did not know where the funds

had gone she was willing to make some amount of resti-

tution.*

At about the same time, Mrs. Hand also told Hale,

either in this call or in a third call to him that day, that

she was sending for some of her purses which were in the

Union office, as well as some books and scarves, In the

process of gathering up her property, Hale testified, he

opened the purses, looking for credit cards or for other

identification of them as Mrs. Hand’s. This he found.

He also found over 150 vouchers minuting cash trans-

actions in tens of thousands of dollars, most of which

were initialed by Mrs, Hand as the receiving teller. As-

suming the worst, that a deliberate, warrantless search

of the purses was carried out at this point by Hale, does

it pass Fourth Amendment muster?

4. Which revelations certainly amount to probable cause.

18a

[1] We conclude that it does. By the time Hale learned

of Mrs. Hand’s immediate purpose to remove her handbags

from the office, she had admitted juggling the Union’s

accounts; and numerous of its financial records had ap-

peared at her home, under highly suspicious circumstances

and in a condition indicating an aborted effort to destroy

them. Probable cause existed to believe that she had

previously concealed and removed and might again con-

ceal or remove records, and the purses were a likely

vehicle for either action. Hale would have been remiss

in his duty had he permitted such containers and their

contents to be taken away from the accounting files with-

out determining that they were not being so used.

It may be that in these circumstances, even absent Mrs.

Hand’s notice that she was sending for the purses, Hale

would have been authorized by the Union’s consent to

examine the contents of whatever containers he found in

and about the files. The record indicates that purses were

either in or on the file cabinets or desks in the office, and

it does not indicate that Mrs. Hand had use of these fur-

nishings to the exclusion of other employees, rather the

contrary.’ And though personal handbags imply privacy,

government [her emp

and had no connection with the work of the office.” 188 F.2d at 1021.

Here, though Mrs. Hand’s purse was searched, it was precisely such

matter which, with probable cause, was sought.

19a

more personal, if at all, than that which would have been

held by a closed folder found in the files and marked, say

“K. F. Hand-Personal.” At any rate, he received Mrs.

Hand’s call stating her purpose to remove the purses while

present in a place where he was authorized to be and to

most of which he had an unquestioned right of access. ©

But when to these is added the exigency of Mrs. Hand’s

stated purpose to send for the purses, the scale is decisive-

ly tipped. Hale’s choices at this juncture were to release

the purses unexamined, to refuse to release them while

he contacted regular law enforcement authorities and a

warrant issued, or to inspect their contents and be guided

by what he found. Probable cause existing, the first course

would have been a dereliction of duty. As to the latter

two, if Hale’s official “investigative” position was such as

to subject him to Fourth Amendment strictures, it was

perforce such as to authorize his seizure and immobilizing

of the purses. Having the power to seize, in the situation

presented, he had the duty to do so. And having seized,

the lesser intrusion was to check the purses for Union

documents and, if none were found, to release them with-

out more ado. Chambers v. Maroney, 399 U.S. 42, 51-

52, 90 S.Ct. 1975, 1981-1982, 26 L.Ed.2d 419, 428

(1970); United States v. Soriano, 497 F.2d 147 (5Sth-

Cir., en banc, 1974).

It is true that the facts of Chambers and Soriano differ

from these and from each other, and true moreover that

Mrs. Hand was not under arrest* and her handbags did

not contain, and were not thought to contain, contraband

or dangerous instrnmentalities. But they were easily mov-

able, and she had announced a positive and immediate

6. Though probable cause to arrest her doub.less existed at the

time of the search.

20a

intent to remove them. There was probable cause to be-

lieve that they contained evidence, and the opportunity

to preserve it was fleeting. The probable cause, moreover,

had arisen suddenly and as a result of unforeseeable cir-

cumstances—Mrs. Hand’s abrupt confession to cooking

the books. Thus the exact requirements for application

of Chambers set out by Mr. Justice White were complied

with:

itself must be seized and held without a warrant for

whatever period is necessary to obtain a warrant

search without a warrant. Given probable cause to

search, either course is reasonable under the Fourth

Amendment,” :

21a

Chambers v. Maroney, 399 US., at 50-2, 90 S.Ct., at

1981, 26 L.Ed.2d, at 428 (emphasis added). |

It is, of course, true that on its facts Chambers is an

“automobile” case, But then Erie RR. Co. v. Tompkins’

is, in the same sense, a “railroad” case, Harry Tompkins

_ having been there presented with lasting fame and a tort

suit by a passing freight. At least two of our sister circuits

read Chambers as broadly applicable whenever probable

cause is sudden and the chance to search fleeting. United

States v. Mehciz, 437 F.2d 145 (9th Cir.), cert. denied,

402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971);

United States v. Evans, 481 F.2d 990 (9th Cir. 1973);

United States v. Johnson, 467 F.2d 630 (2d Cir. 1972),

cert. denied, 413 U.S. 920, 93 S.Ct. 3069, 37 L.Ed.2d

1042 (1973). And a majority of the Supreme Court has

refused to join in later language characterizing Chambers

as limited in force to automobiles, it being often over-

looked that the passage in Collidge v. New Hampshire*

which sought to do so was joined in by only four Justices.

In the totality of circumstances presented by this case,

we therefore conclude that the reasoning of Chambers

transcends its factual setting sufficiently to justify the

search. And we have held in Carlton v. Estelle’ that a

warrantless search of a parked car for “mere evidence”

was justified by the presence of persons presumably sym-

pathetic to Carlton who might have made away with it.

Here the suspect herself had avowed an immediate intent

to have the movable and suspect articles removed, and it

7. 304 US. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

8. 403 US., at 463, 91 S.Ct., at 2036, 29 L.Ed.2d, at 581.

9. 480 F.2d 759 (Sth Cir.), cert. denied, 414 U.S, 1043, 94 S.Ct.

546, 38 L.Ed.2d 334 (1973).

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Inadequacy of Trial Counsel and Other Matters.

We likewise adopt Part III of the panel opinion, adding

only that since our intervening er banc decision in Fitz-

gerald v. Estelle, 505 F.2d 1334 (Sth Cir. 1974), it is

yet more evident that Hand’s assistance from her retained

counsel was not inadequate.

Affirmed.

DYER, Circuit Judge, with whom WISDOM, THORN-

BERRY, GOLDBERG, SIMPSON and MORGAN, Cir-

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The majority now vindicates warrantless searches of

“mobile objects” in any context if a preceding warrantless

seizure is consitutionally permissible. The express source

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of this

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qi

i

i

te

25a

search cases of United States v. Anderson, 5

Cir. 1974, 500 F.2d 1311; United States v. Lonabaugh,

5 Cir. 1973, 494 F.2d 1257; United States v. Garay, 5

Cir. 1973, 477 F.2d 1306, is that Chambers was ex-

pressly limited by Coolidge v. New Hampshire, 1971, 403

US. 443, 463, n. 20, 91 S.Ct. 2022, 29 L.Ed.2d 564,

set

1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, un-

mistakably teaches that a determinati_.1 of the lawfulness

of a warrantless seizure is only half the inquiry. Any

ensuing search, an additional incursion, “must be ‘strictly

tied to and justified b;, the circumstances which rendered

its initiation permissible.” Id. at 19, 88 S.Ct. at 1878.

Had Terry, when accosted on the street by the investigat-

ing officer, been transporting a suitcase, a full-scale search

of the bag’s contents would have presented a far different

situation than a limited pat-down of his outer garments

accomplished for the narrow purpose of detecting weapons.

“The Fourth Amendment proceeds as much by limitazions

upon the scope of governmenial action as by imposing

preconditions upon its initiation.” Jd. at 28-29, 88 S.Ct.

1883. (Emphasis supplied).

Nor is Terry v. Ohio sui generis. The Supreme Court

has consistently inquired into the extent or scope of a

warrantless incursion, demanding that the imposition on

26a

the citizen be no greater than the occasion requires. See,

& g., United States v. Van Leeuwen, 1970, 397 U.S. 249,

90 S.Ct. 1029, 25 L.Ed.2d 282; Chime! v. California,

1969, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d

685; Sibron v. New York, 1968, 392 U.S. 40, 65, 88

S.Ct. 1889, 20 L.Ed.2d 917. This Court has, until today,

faithfully adhered to this analysis. See, e. g., United States

v. Gravitt, 5 Cir. 1973, 484 F.2d 375; United States v.

_ Cyzewski, 5 Cir. 1973, 484 F.2d 509; United States v.

Skipwith, 5 Cir. 1973, 482 F.2d 1272. In short, necessity

remains the sine qua non of exceptions to the warrant

requirement. Auto searches aside, when the exigencies ne-

cessitating a warrantless incursion dissipate, resort to the

magistrate must be had. As the Supreme Court has stated,

“fwje are not dealing with formalities. The presence of a

search warrant serves a high function. Absent some grave

emergency, the Fourth Amendment has interposed a mag-

istrate between the citizen and the police.” McDonald v.

United States, 1948, 335 U.S. 451, 455, 69 S.Ct. 191,

193, 93 L.Ed. 153.

Whatever may be the final delineation of exceptions to

the warrant requirement, we must vigilantly bear in mind

that absent imperative circumstances a warrantless search

is per se unreasonable. Coolidge v. New Hamphire, supra,

403 U.S. at 454-55, 91 S.Ct. 2022; Katz v. United States,

1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Bd.2d 576.

I respectfully submit that Anderson, Lonabaugh and Ga-

ray are correct expressions of this heretofore unchailenged

principle. These cases are now overruled by the majciity’s

transparent attempt to distinguish the indistinguishable. I

dissent.

274

GODBOLD, Circuit Judge, dissenting as to Part I:

I agree with Judge Dyer except in his conclusion that

Garay,’ Lonabaugh® and Anderson*® have been overruled.

I confress my confusion at the majority’s rationale which

seems to say on the one hand that since there were exi-

gent circumstances Hale was empowered to seize, and

having justifiably seized he could search (the “greater-les-

ser instrusion” theory), while on the other hand it dis-

tinguishes Garay, Lonabaugh and Anderson on the ground

that in those cases the police already had “secure control”

of the item involved (i.e., the “greater intrusion” already

had been consummated), therefore there was no right to

search. Despite this nonexplanation we are bound to ac-

cept and to apply the majority’s conclusion that Garay,

Lonabaugh and Anderson retain a field of operation and

are viable in situations where they zre applicable.‘

1. United States v. Garay, 477 F.2d 1306 (C.A. 5, 1973).

2. United States v. Lonabaugh, 494 F.2d 1257 (C.A. 5, 1973).

3. United States v. Anderson, 500 F.2d 1311 (C.A. 5, 1974).

4. The majority’s unqualified citation of United States v. Soriano,

497 F.2d 147 (C.A. 5, 1974) (en banc) arguably implies that the

decision in that case supports the greater-lesser intrusion concept. If

such an implication is intended, it is not supportable. That decision

explicitly rested upon the concept of automobile search and the nexus

to an automobile search provided by the facts that the suitcases had

just been removed from the taxicab and placed on the sidewalk and

one of them searched contemporaneously with the removal. 497 F.2d

at 149-150 and footnote 6. This court eschewed a generalized ruling

on the applicability of the greater-lesser intrusion language of Cham-

bers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970),

to personal effects having no nexus to an automobile subject to search.

28a

‘SIMPSON, Circuit Judge, with whom DYER, Circuit

Judge, joins, dissenting as to Part I:

I concur in Judge Dyer’s dissent, and fully associate

myself with his views as to the constitutionaily imper-

missible nature of the warrantless search and seizure. in-

volved in this appeal.

Additionally, I dissent from Part II of the majority |

opinion for the en banc court, which adopts Part II of

the panel opinion, (Sth Cir.) 497 F.2d at 932-935. I dis-

agree with Part II as to each of the two postulates it ad-

vances: (a) that a federal offense under Title 18, Section

657, was charged by any or either of the ten counts under

which Mrs. Hand was indicted,’ and (b) that there was

proof of the commission of a federal offense under any or

either of the indictment counts.’

As to (a) I am content to rest my position upon the

statement of the panel opinion, (5th Cir.) 497 F.2d at

934, that

A skimpier assertion of jurisdiction can scarcely

be imagined than we find here. The element is, more-

over, one which can in no sense be waived or cured

by verdict, being of the type whose absence is avail-

able for consideration even on motion in arrest of

judgment,

1. The indictment contained ten counts, each identical to the

other nine except for dates and amounts. A sample count, Count I,

is copied in the text of the panel opinion, (Sth Cir.) 497 F.2d 933.

2. See the language of Mr. Justice Black in “ole v. Arkansas,

1948, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 UF d.2d 644, 647:

eS an eT er Pee aa

tried as it would be to convict him upon a charge that was never

made”.

Both sides of the coin appear here.

ee

29a

as well as the additional statements, 497 F.2d at 933:

The question of the existence vel non of insurance

was not submitted to the jury as an element of the

offense charged, and appellant contends that conse-

quently the jury failed to find.a crucial and jurisdic-

tional element of the alleged crimes. As to the accu-

sation of having embezzled from a federally insured

institution, appellant is entirely correct: it was nei-

ther proved nor found.

The argument advanced by the panel opinion that Mrs.

Hand knew what she was charged with, “* * * embezzling

funds from her named employer * * *”—and hence the

“plain and concise statement” requirement of Rule 7(c),

F.R. Crim. P. was satisfied—is wide of the mark.

Mrs. Hand was not on trial in a state court, where gen-

eral allegations of embezzlement from a specified employ-

er might suffice. Instead she was on trial in a court whose

jurisdiction was limited to trying violations of federal laws,

here specifically Title 18, U.S.C., Section 657. Jurisdic-

tion, was affirmatively appearing from the face of the in-

dictment, was simply never present.

As to the second proposition, that regardless of the

shortcomings of the charge, as laid in the indictment,

somehow a case was made out: in addition to the quota-

tions, supra, from Part II of the panel opinion, I turn to

an additional statement in that opinion, 497 F.2d at 933:

It is undisputed that the United States offered no

proof that the deposits of the Union were insured in

the manner charged.

That was enough to end the matter.

30a

As to the search point covered by Judge Dyer’s dissent,

the majovity labors mightily to salvage a patently uncon-

stitutional search and seizure. This ad hoc approach serves

the pury ose, in addition to preserving Mrs. Hand’s con-

viction, of approving unbelievably sloppy police work.

As to Part II, to which this dissent is directed, incred-

ibly inefficient and insufficient pleading and proof by a

United States Attorney, or perhaps his assistant, while cer-

tainly not approved, is not condemned either. I do not

Di ceceive a valid reaton for this court to rescue this gentle-

man.

That Mrs. Hand may escape from punishment is over-

shadowed here by more important considerations. Poor

performance by investigators and prosecutors should not

pass muster unscathed and uncensured on the basis of an

ad hominem approach that guilt of some offense is clear

from the record. This misconceives our prime function of

reviewing errors of law. I suggest aiso that occasional

merited criticism of police and prosecutors is beneficial to

the advancement of good order and discipline.

Efficient crime detection and punishment is not ad-

vanced but is retarded when we place precedents such as

today’s in the books. It will return to vex us on another

day.

With deference, I dissent from the majority opinion on

the basis of these views as to Part II, as well as with re-

spect to the unconstitutional search and seizure, so con-

vincingly explicated by Judge Dyer.

3la

DENIAL OF PETITION FOR REHEARING

(Opinion July 28, 1975, 5 Cir., 1975, 516 F.2d 472)

(Caption Omitted)

Before BROWN, Chief Judge, and WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON, MOR-

GAN, CLARK, RONEY and GEE, Circuit Judges.

PER CURIAM:

It is ordered that the petition for rehearing filed in the

above entitled and numbered cause be and the same is

hereby denied.

WISDOM, THORNBERRY, GOLDBERG, DYER,

SIMPSON and LEWIS R. MORGAN, Circuit* Judges,

would grant the petition for rehearing for the reasons

stated in Judge DYER’s dissent to Part I of the opinion

of the court en banc, GODBOLD, Circuit Judge, would

do so for the reasons stated in his separate dissent to Part

I of that opinion, and DYER and SIMPSON, Circuit

Judges, would do so for the additional reasons stated in

Judge SIMPSON’s dissent to Part II thereof.

ic

JUDGMENT ON REHEARING EN BANC

~ (Caption Omitted)

This cause came on to be heard on defendant-ap-

pellant’s petition for rehearing en banc without oral argu-

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed by the Court en banc.

July 28, 1975

DYER, Circuit Judge, with whom WISDOM, THORN-

BERRY, GOLDBERG, SIMPSON and MORGAN, Cir-

cuit Judges, join, dissenting as to Part I.

GODBOLD, Circuit Judge, dissenting as to Part I.

SIMPSON, Circuit Judge, with whom DYER, Circuit

Judge, joins dissenting as to Part II.

Issued as Mandate:

33a

(Caption Omitted)

THE GRAND JURY CHARGES:

a | COUNT I 7

‘That on or about the 25th day of July, 1968, in the

as Gir ILA issi retina Pe es re

Texas, embezzle certain monies of the said Credit Union,

which had therefore been entrusted to the care and

Ninety Four and 94/100 ($1,194.94) Dollars, more or

(Violation: Title 18, United States Code, Section 657)

COUNT II a

Bere --

That on or about the 30th day of April, 4969, ix in the

Houston Division of the Southern District of Texas,

and within the jurisdiction of this Court, one KATHRYN

FRANCES HAND, being an employee of the ILA 1351,

34a

ard with intent to injure and defraud the said TLA 1351,

Federal Credit Union at Houston, Texas, embezzle certain

monies of the said Credit Union which had therefore

been entrusted to the care and custody of the said

KATHRYN FRANCES HAND by reason of her position

as an employee of said Credit Union, in the amount of

One Thousand Nine Hundred Seventy-Five and 32/100

($1,975.32) Dollars, more or less.

(Violation: ‘Title 18, United States Code, Section 657)

COUNT Ii

That on or abort the 27th day of June, 1969, in the

Houston Division of the Southern District of Texas, and

FRANCES HAND, being an employee of the ILA 1351,

Federal Credit Union, Houston, Texas, the deposits of

which Credit Union were then and there insured by

and with intent to injure and defraud the said ILA 1351,

Federal Credit Union at Houston, Texas, embezzle certain

monies of the said Credit Union, which had therefore

been entrusted to the care and custody of the said

KATHRYN FRANCES HAND by reason of her position

(in the amount of

and 67/100

($3,613.67) Dollars, more or less.

(Violation: Title 18, United States Code,

COUN x" IV

That on or about the 27th day of June, 1969, in the

Houston Division of the Southern District of Texas,

and within the jurisdiction of this Court, one KATHRYN

35a

FRANCES HAND, being an employee of the ILA 1351,

Federal Credit Union, Houston, Texas, the deposits of

which Credit Union were then and there insured by the

National Credit Union Administration, did knowingly and

with intent to injure and defraud the said ILA 1351,

Federal Credit Union at Houston, Texas, embezzie certain

monies of the said Credit Union, which had therefore

been entrusted to the care and custody of the said

KATHRYN FRANCES HAND by reason of her position

as an employee of said Credit Union, in the amount of

Two Thousand aud 25/100 ($2,000.25) Dollars, more

or less.

(Violation: Title 18, United States Code, Section 657)

COUNT V

That on or about the 10th day of March, 1970, in the

Houston Division of the Southern District of Texas, and

FRANCES HAND, being an employee of ILA 1351,

Federal Credit Union, Houston, Texas, the deposits of

which Credit Union were then and there insured by

the National Credit Union Administration, did knowingly

and with intent to injure and defraud the said ILA 1351,

Federal Credit Union at Houston, Texas, embezzle certain

monies of the said Credit Union, which had therefore been

entrusted to the care and custody of the said KATHRYN

FRANCES HAND by reason of her position as an em-

ployee of said Credit Union, in the amount of One

Thousand One Hundred Fourteen and 39/100 ($1,-

114.39) Dollars more or less.

(Violation: Title 18, United States Code, Section 657)

;

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101.49) Dollars, more or less.

That on or about the 23rd day of October, 1970, in

the Houston Division of the Southern District of Texas,

and within the jurisdiction of this Court, one KATHRYN

FRANCES HAND, being an employee of the ILA 1351,

Federal Credit Union, Houston, Texas, the deposits of

KATHRYN FRANCES HAND by reason of her position

as an employee of said Credit Union, in the amount of

37a

One Thousand One Hundred Seventy Five and 25/100

($1,175.25) Dollars, more or less.

(Violation: Title 18, United States Code, Section 657)

of said Credit Union, in the amount of

One Thousand One Hundred Seventy Five and 00/100

($1,175.00) Dollars, more or less.

(Violation: Title 18, United States Code, Section 657)

. COUNT IX

|

Federal Credit Union at Houston, Texas, embezzle cer-

tain monies of the said Credit Union, which had therefore

been entrusted tc the care and custody of the said KATH-

RYN FRANCES HAND by reason of her position as an

employee of said Credit Union, in the amount of One

Thousand Five Hundred Forty and 00/100 ($1,540.00)

Dollars, more or less.

(Violation: Title 18, United States Cede, Section 657)

COUNT X

That on or about the 22nd day of January, 1971, in

the Houston Division of the Southern District of Texas,

and within the jurisdiction of this Court, one KATHRYN

FRANCES HAND, being an employee of the ILA 1351,

Federal Credit Union, Houston, Texas, the dposits of

which Credit Union were then and there insured by the

National Credit Union Administration, did knowingly and

with intent to injure and defraud the said ILA 1351, Fed-

eral Credit Union at Houston, Texas, embezzle certain

monies of the said Credit Union, which had therefore

been entrusted to the care and custody of the said KATH-

RYN FRANCES HAND by reason of her position as an

employee of said Credit Union, in the amount of One

Thousand and 00/100 ($1,000.00) Dollars, more or less.

(Violation: Titie 18, United States Code, Section 657)