# Petition for A Writ of Certiorari — Hand v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1904%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 424 U.S. 953 ## Text 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- oeeekeee ees fate tbat THE Hy Ba. ill nue ras t sit heath z i E : E : ; é g 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 H Ht i. it ait it f : i 4 F ¢ rf a i Bs 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). é i: i : HE Ht hee us lin BIBT lit i ite ceili AH Hin! ‘ re {33 Teste uh Lie qtiyl Hh: Ht 2 TAHE WE ue +f i # Hib | a i flit ath iat $3 : AE a= TET sdag? ili Fi ee i : 2% Tit sPasil! 2 TTR STHity ali: F 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- if tle : nk Ht ge 2 iu Sif F : . it means just which indicated search. expanding Chambers is to an an ignores in neiek is sar ee aed Actas wo On Guilin tai teen t cin 40nd. The majority now vindicates warrantless searches of “mobile objects” in any context if a preceding warrantless seizure is consitutionally permissible. The express source Chambers itself, automobile, a immediate what I-checee it to mean—aelther more nor lect.” i S4ia |- of this a 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) ; Fees tie tE ee pied B . 5 | t zs r E : 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1904%3A1. Public record. Not legal advice.