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United States v. Childs

decided: September 12, 1969.

UNITED STATES OF AMERICA
v.
SAMUEL CHILDS, JR., APPELLANT



Hastie, Chief Judge, and McLaughlin and Van Dusen, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellant was convicted on three counts of a four count indictment on charges of possessing, forging, uttering, and publishing stolen mail matter (tax refund check). This appeal arises from the District Court's denial of appellant's motion to quash the indictment. Appellant now contends that there was an inordinate delay between the date of the alleged offense and the time he was informed of the charges against him which was prejudicial to the presentment of his defense and a violation of due process.

A chronological narration of events leading to Childs' apprehension by federal authorities is necessary for a clear understanding of the situation before us. The following evidence was adduced at a full hearing on appellant's motion to quash the indictment. On May 7, 1964, a federal tax refund check was mailed to Bessie T. Young in Philadelphia but was never received by her. She notified the Internal Revenue Service of this fact in August, 1964. That complaint was received by the Check Claims Division of the Treasury Department in Washington on September 15, 1964 and was turned over to its Philadelphia office for investigation on September 25, 1964. Because of the backlog of cases and assignments, the criminal investigation was not initiated until October, 1965, when a Secret Service agent was put in charge of the inquiry. That agent testified that he then interviewed Bessie T. Young, payee of the check, and other persons involved in the cashing of the check. On February 3, 1966, he notified the United States Attorney's office that he had sufficient evidence against Childs and on that same day a complaint and warrant issued. The agent further testified that he made numerous attempts to execute the complaint warrant by serving Childs. He visited Childs' father's house and two neighborhood taverns to ascertain appellant's whereabouts, he arranged a stakeout at the house where appellant was believed to be living -- all to no avail. He notified the local police department that a warrant was outstanding and filed a wanted notice with the F.B.I. in Washington. He thereafter advised local postal carriers that Childs was being sought and checked the Bureau of Motor Vehicles to see if Childs had a driver's license or vehicle registration. He wrote to the address where Childs was allegedly residing and visited that address at least twice in checking on Childs. All these efforts to locate Childs were unsuccessful. At the hearing Childs claimed that he had been living with his mother in Philadelphia since 1960 and had not been out of the city for any extended period during the time he was being sought. He also said that he was employed during that time and that he had not intentionally tried to hide from federal officers. He stated that he first learned that he was being sought by federal authorities about September 1, 1967, when he was taken into custody by local police on an unrelated charge. During a prison term he served on the state offense he received a copy of the federal indictment. His mother at the hearing corroborated his story as to his residence and employment.

The District Court, after said hearing, found inter alia that the agent had made reasonable efforts to locate Childs in a neighborhood which was densely populated and that, under the evidence adduced, prejudice to the appellant had not been shown. However, the Court left open the possibility that prejudice, if any, might become apparent during the trial to the Court and that if it did the Court would rule accordingly.*fn1

The case proceeded to trial and the following evidence was offered. Laura Cain, a government witness and longtime acquaintance of appellant, testified that Childs brought a check to her at her grandmother's house on May 8, 1964 and told her that he wanted to cash it.*fn2 While on the stand Miss Cain was shown the allegedly forged and stolen check and identified it as the one that Childs had brought to her. Appellant, in his brief, recites the following evidence.

"She said she asked him if he had tried Turner's Hardware Store or Morefield's Appliance Shop, and he said he had tried at Morefield's but they did not have enough money to cash the check. * * * According to her, Childs then suggested going to Turner's Hardware Store, and she said she told him: 'If my grandmother was here, it is possible she might take you down to Mr. Turner's, but right now I will go around to my girl friend's house and find out whether you can get it cashed where she gets her check cashed.'"*fn3

Childs next asked Miss Cain to endorse the check for him, explaining that his hand was in a bandage and he couldn't write. She endorsed the check and then took Childs to see Geneva Hamilton at the latter's house from which the three of them proceeded to the Acme Market. The check was approved, they purchased about twenty-five or thirty dollars worth of groceries and paid for these groceries with the check. The remainder of the money was returned to Childs after the bill for the groceries had been paid. Miss Cain identified Mrs. R. Engstfeld as the cashier who had cashed the check.

Geneva Hamilton also took the stand as a Government witness and supported Miss Cain's testimony concerning the cashing of the check.

Mrs. R. Engstfeld testified, on behalf of the Government, that she was the cashier at the Acme Market during May, 1964 and that she had cashed the check presented to her by Geneva Hamilton who was known to her. She testified that she assumed that the lady with Geneva Hamilton was the Miss Young named as payee of the check. She testified that she did not know or recognize the appellant and that she did not remember whether anyone was with witnesses Cain and Hamilton the day the check was cashed. After it was discovered that the check had been stolen Mrs. R. Engstfeld discussed the matter with the store manager, Fred Mazurka. Mazurka was deceased at the time of the trial.

Childs testified in his own defense. He said that in May, 1964, he was a partner in a cleaning and pressing business with Detroit Bailey. Bailey was also deceased at the time of trial. Childs stated that he worked at the cleaning establishment at least seven hours a day and about three or four hours a day at a second job that he held during May, 1964. He admitted on cross-examination that he may have taken days off here and there during 1964. He said that on the morning of the second day of trial he attempted to check with Mr. Bailey's accountant to see if any records were kept on his employment but he was unsuccessful. He further testified that he often cashed his checks at Morefield's Appliance Store and could cash checks there in any amount. He testified that he tried to locate Morefield's but, at the time of trial, the store was vacant. He also allegedly tried to get in touch with Turner's Hardware Store but that was closed. Childs denied any part in the cashing of the allegedly forged and stolen check.

At the end of the trial appellant again renewed his motion to dismiss the indictment because of the delayed prosecution. The motion was denied by the District Court and the appellant was adjudged guilty on three of the four counts in the indictment.

Appellant now contends, citing Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), that it is established "that a charge brought against a defendant may be dismissed by the court if there is an appreciable delay between the date of the offense and the time when the defendant is first given notice of the charges against which he must defend himself, and such delay is due solely to the fault of the Government and results in impairment of the ability of the defendant to ...


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