United States v. Aaron Carl Carter

455 F.2d 354 UNITED STATES of America, Plaintiff-Appellee, v. Aaron Carl CARTER, Defendant-Appellant. No. 71-1642. United States Court of Appeals, Ninth Circuit. Feb. 7, 1972. 1 Edward L. Cragen (argued), San Francisco, Cal., Thomas Salciccia, San Jose, Cal., for defendant-appellant. 2 James H. Daffer, Ass't U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. 3 Before HAMLIN and WRIGHT, Circuit Judges and CURTIS, * District Judge. CURTIS, District Judge: 4 In a court trial, a jury having been waived, the appellant was convicted of possession of counterfeit Federal Reserve notes, with intent to defraud. ( 18 U.S.C. Sec. 472 .) He appeals his conviction urging in support thereof two contentions: 5 First, he states that since the finding and entry of a judgment of conviction was done in his absence and in the absence of his attorney, it violates the mandate of the Fifth and Sixth Amendments to the Constitution of the United States guaranteeing him effective assistance of counsel at all critical stages of the proceedings against him. 6 It appears from the record that at the close of the trial and after final arguments, the court took the matter under submission. A date…

In a court trial, a jury having been waived, the appellant was convicted of possession of counterfeit Federal Reserve notes, with intent to defraud. ( 18 U.S.C. § 472 .) He appeals his conviction urging in support thereof two contentions :

First, he states that since the finding and entry of a judgment of conviction was done in his absence and in the absence of his attorney, it violates the mandate of the Fifth and Sixth Amendments to the Constitution of the United States guaranteeing him effective assistance of counsel at all critical stages of the proceedings against him.

It appears from the record that at the close of the trial and after final arguments, the court took the matter under submission. A date was set approximately one month in the future for the pronouncement of sentence in the event the court should find the appellant guilty. This apparently was done to accommodate the appellant who was not then in custody and who lived at some distance. The court indicated that it would probably reach a decision within a week’s time, which would give the probation office time to prepare a presen-tence report. At this point the following colloquy took place between the court and…

(dissenting) :

I respectfully dissent.

As the majority opinion states, a specific intent to defraud on the part of appellant must be established before appellant can be convicted of the crime charged. When the two counterfeit $10 bills were found on the appellant, he also had a “large wad” of genuine bills totaling $289.00 in his trousers pocket. The two bad bills were in the “large wad.” He was then arrested and charged with possession of counterfeit money. These charges were dismissed, the government expert testifying “the United States Attorney who made a decision evidently thought there was not enough information.”

Many months later, after appellant had testified for the defense in two state trials in which Louis Adams was charged with a narcotics offense, appellant was again charged with the present offense and brought to trial. The only additional evidence claimed against appellant was his testimony at these two trials.

In these trials appellant maintained that he had acquired the “large wad” of bills over a two or three day period playing pool, that he had discovered that the two bills were bad only an hour or so before his arrest, when he had been told by a pool player…