United States v. Roger William Rice and James Gregory Williford , 652 F.2d 521 ( 1981 )

JOHN R. BROWN, Circuit Judge:

Defendants, Roger William Rice and James Gregory Williford, each appeal their convictions for two counts of possessing and one count of conspiring to pass, utter, and possess counterfeit obligations of the United States with intent to defraud in violation of 18 U.S.C. §§ 371 and 472. In. addition, Rice challenges his convictions for one count of passing and uttering a counterfeit $20 Federal Reserve Note. Williford charges (i) his arrest was illegal, making the search of his person improper, (ii) insufficient evidence was presented for a submission of the case to the jury on the issue of guilt, and (iii) District Court erred in refusing to suppress evidence of statements made both before and after his arrest. Joining Williford in these contentions, Rice also argues (iv) his in-court identification by one of the witnesses was so tainted as to render it unreliable, and (v) District Court improperly excluded evidence on the basis the proper predicate for admission was not laid. Finding the contentions of both defendants without merit, we affirm their convictions.

Fake Bills And False Names

Reviewing the evidence in a light most favorable to sustaining the verdict, the facts show Rice, Williford, and a third unidentified white male entered the Skillern’s Drug Store in San Marcos, Texas, at approximately 7:00 p. m. on February 14, 1980. Williford and the unidentified man went to the magazine rack while Rice went to the counter and asked the sales clerk for a roll of film costing about three dollars. Rice gave the clerk a counterfeit twenty dollar Federal Reserve Note. The clerk noticed the bill appeared unusual, but rather than possibly embarrassing a customer needlessly, she completed the transaction by giving Rice the proper change for his purchase. Rice then left the store. Williford and the other man followed immediately thereafter and joined Rice in the mall in front of Skillern’s.

After the trio was gone, the clerk reexamined the bill more closely. Concluding the bill was indeed counterfeit, she notified the manager who concurred in her opinion. They called the police and proceeded out into the shopping mall to see if the suspects could be spotted. Within minutes, the clerk was able to point out Rice, Williford, and the third man to the manager as the three men were headed for the parking lot. She subsequently returned to the store.

At that point, the unidentified third man disappeared, never to be seen again. About the same time, a San Marcos police officer arrived. The manager pointed out Rice and Williford to him as two of the men who had come into the store. The officer directed Rice and Williford over to his car and asked them for identification. They both claimed not to have any, being evasive and reluctant to give their names. Only after repeated questioning, Rice said he was David Rice.

While talking, the officer noticed Willi-ford was carrying a wallet. After the officer asked if he had a driver’s license in it, Williford produced one in the name of Lester McDowell.

The officer asked both men their date of birth. Rice responded with a birth date in 1959. The officer became suspicious as this date would have made Rice twenty-one years old, although he appeared to be at least twenty-five to thirty.

Once the officer obtained identification from Rice and Williford, the store manager pointed out Rice as the man who had passed the bill to the clerk. On examining this bill, the officer found it to be counterfeit.

Rice and Williford were then arrested and advised of their rights. As Williford was being handcuffed, he dropped his wallet. On picking it up and examining its contents, the officer found, along with some genuine cash, two other counterfeit $20 bills that resembled the one passed at Skillern’s.

When Rice and Williford reached the police station, they were searched to provide an inventory of personal effects. Each was found to have two additional counterfeit bills. One counterfeit bill found in Rice’s possession had the identical serial number as one found in Williford’s possession.

Having been warned of their rights a second time, both Rice and Williford were questioned alternately by a Secret Service Agent. Both denied the presence of a third man at the mall. Rice told the Agent he was David Rice and he and Williford were hitchhiking to the Texas coast. He later admitted, however, he was really Roger William Rice and that he had failed to give his real identity as there were some outstanding warrants on him. When it was discovered the picture on the driver’s license was not that of Williford, he admitted he was not Lester McDowell, also claiming he had not given his real identity as there were outstanding warrants on him. Upon each stating he would not discuss the counterfeiting matter, questioning ceased.

After the questioning, the Skillern’s clerk observed Rice and Williford through a window in the booking area of the police station where they were being arraigned by the local magistrate. She identified them as the men who had been in the store, pointing out Rice as the man who had passed the bill.

Rice and Williford subsequently were charged, jointly tried, and convicted, from which they bring this appeal.

Intentional Acts Equal Probable Cause

Both Rice and Williford challenge the validity of their arrests for lack of probable cause. They contend because their arrests were not supported by probable cause, District Court erred in denying their pretrial and trial motions to suppress evidence seized from their persons. More specifically, Williford complains he was arrested and searched because of (i) his proximity or association with a person suspected of committing an illegal act and (ii) his less than cooperative attitude when the officer stopped and frisked him.

The Government argues in reviewing these contentions we are bound by application of Texas law which permits an officer to arrest without a warrant where he believes “upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape . . . . ” Article 14.04, Tex.Code Crim.Pro. Ann. (Vernon’s 1977); Holt v. State, 538 S.W.2d 125, 126-27 (Tex.Cr.App.1976). Under that standard, the Government contends in light in the totality of the evidence and the exigency of the circumstances, the officer was justified in determining sufficient probable cause existed to arrest both Rice and Williford. The Government consequently claims District Court was correct in upholding the actions of the officer.

Concluding the Government is correct in its general assertion the lawfulness of an arrest by state officers is determined by the law of the state where the arrest took place, we emphasize the application of state law is subject to federal constitutional standards. United States v. Fossler, 597 F.2d 478, 482 n.3 (5th Cir. 1979). See also Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 1631, 10 L.Ed.2d 726, 740 (1963); United States v. Lipscomb, 435 F.2d 795, 798 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). Thus, we also' must assure ourselves a reasonable man, standing in the shoes of the arresting officer, could have believed in light of the facts and circumstances an offense had been committed and that a particular defendant committed it. United States v. Perez, 526 F.2d 859, 862 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976).

With respect to Rice, we have no doubt sufficient probable cause existed to support his arrest. Before he was placed under arrest he (i) failed to give proper identification on the officer’s initial request, (ii) gave a birth date placing his age obviously too young for his appearance, (iii) passively resisted the officer during frisking, and (iv) was positively identified by the store manager as the one who had passed the bill which the officer independently concluded to be counterfeit.

Although Williford did not actively participate in passing the bill, but was merely with Rice, and it is common for members of the public to be frightened, become nervous, or even embarrassed when stopped by a police officer,¹ especially when they don’t know his purpose, we conclude the facts of this case negate Williford’s contentions regarding the lack of probable cause for his arrest. When viewed in totality, not a vacuum, we find the officer had before him information that (i) three men had passed a counterfeit bill at Skillern’s Drug Store, (ii) Williford was with Rice, (iii) they both were reluctant to identify themselves on the officer’s request, initially only giving their first names, (iv) both denied possessing any identification, (v) it was only on his specific notice of the wallet in Willi-ford’s pocket and repeated request for identification that Williford produced the driver’s license which bore another name and picture, and (vi) the bill Rice was charged with passing was indeed counterfeit. While Williford’s reliance on United States v. Barber, 557 F.2d 628, 632 (8th Cir. 1977), has some appeal, the facts of that case do not preclude a finding of probable cause here. As the Government pointed out in oral argument, Williford’s action in seeking to (i) hide his true identity, (ii) evade giving even his last name, and (iii) avoid giving identification until the officer spotted his wallet, when combined with the other factors, establish the officer had probable cause to arrest him. Williford’s intentional affirmative actions distinguish this case from Barber where the defendant was arrested after merely sitting in the car while his friend passed the counterfeit bill. Unlike Barber, Williford took independent actions which led the officer to believe he might be involved or at least had some knowledge of Rice’s illegal activity. The Judge was entitled to conclude that his intentional actions to avoid identification were not attributed to nervousness, embarrassment, or fright at being stopped by the officer which would have negated the officer’s concluding probable cause existed for Williford’s arrest.

Because the officer definitely had probable cause to arrest Rice, and the two men were heading for the parking lot when stopped, exigency of the circumstances in this case warranted Williford’s, as well as Rice’s, arrest. In reaching this conclusion, we emphasize a showing of probable cause requires much less evidence than a finding of guilt. United States v. Agostino, 608 F.2d 1035, 1037 (5th Cir. 1979) (citing United States v. Beck, 431 F.2d 536, 538 (5th Cir. 1970)). Probable cause must be judged not with the logic of cold steel, but with a common-sense view to the realities of everyday life. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).

Since the arrests of both Rice and Williford were legal, being based on sufficient probable cause, the search of their persons which resulted in the finding of two additional counterfeit bills in the possession of each, was proper. As the custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment, a search incident to the arrest requires no additional justification. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427, 440 (1973); Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456, 461 (1973).

It All Adds Up

Rice and Williford both challenge the sufficiency of evidence for their cases to have been submitted for its determination of their guilt. In particular, each argues the Government presented insufficient evidence to prove their unlawful intent. We review their charges in a light most favorable to the verdict, with all reasonable inferences and credibility choices made to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942); United States v. Ocanas, 628 F.2d 353, 360 (5th Cir. 1980); United States v. Newman, 628 F.2d 362, 366 (5th Cir. 1980).

In assessing the sufficiency of evidence for a case to be submitted to the jury, District Court must determine whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the existence of the essential elements of the crime charged. United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977); United States v. Haggins, 545 F.2d 1009, 1011 — 1012 (5th Cir. 1977). The same standard is applied whether the evidence is direct or circumstantial. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Hilburn, 625 F.2d 1177, 1180 (5th Cir. 1980); United States v. Slone, 601 F.2d 800, 803 (5th Cir. 1979).

To establish the substantive offenses charged here, the United States had to show Rice and Williford each passed or possessed counterfeit money and that they did so with intent to defraud. United States v. Gonzalez, 617 F.2d 104, 106 (5th Cir. 1980); United States v. Sink, 586 F.2d 1041, 1049 (5th Cir. 1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979). Although a defendant’s knowledge the notes were counterfeit is necessary to establish the statutory requirement of intent, this guilty knowledge may be inferred from circumstantial evidence, and the surrounding circumstances may supply inferences of knowledge which adequately prove intent. Slone, 601 F.2d at 803; Sink, 586 F.2d at 1049. Among those acts from which guilty knowledge may be inferred is the use of larger counterfeit bills for small purchases rather than genuine change in the possession of the perpetrator, Slone, 601 F.2d at 803; Carrullo v. United States 184 F.2d 743, 745 (8th Cir. 1950), and furtive conduct by the defendant, Gonzalez, 617 F.2d at 106-07; United States v. Forzano, 190 F.2d 687, 688 (2d Cir. 1951).

In this case, Rice, while hitchhiking to the Texas coast, attempted to purchase a roll of film. Neither he nor Williford, however, possessed a camera at the time of their arrests. Both had sufficient money, in smaller denominations, to have purchased the roll of film without using the counterfeit $20. Each attempted to hide his true identity at the time he encountered the police officer. Counterfeit bills in each’s possession were identical. The bills were such poor counterfeits that even an untrained eye could detect their bogus nature. Intent to possess and/or pass the counterfeit bills clearly could have been inferred.

With respect to the conspiracy, it only was incumbent on the Government to establish existence of an agreement by two or more persons to commit an offense against the United States and the doing of an overt act by one of the conspirators in furtherance of that conspiracy. United States v. Gordon, 580 F.2d 827, 834 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711. Direct proof of the agreement is not required; rather, its existence may be established by the acts and conduct of the conspirators themselves. United States v. Cuesta, 597 F.2d 903, 918 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Although the essence of a conspiracy is the agreement, United States v. Suarez, 608 F.2d 584, 586 (5th Cir. 1979), United States v. Conroy, 589 F.2d 1258, 1269 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979), the Government also must establish each defendant knew of the conspiracy and with that knowledge, voluntarily joined it. United States v. Rhodes, 631 F.2d 43, 45 (5th Cir. 1980); United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (en banc); United States v. Rodarte, 596 F.2d 141, 145 (5th Cir. 1979).

On the conspiracy charge, the evidence established Rice and Williford were each in possession of two $20 bills from the same series of counterfeit notes. Both had been present when the bill was passed at Skil-lern’s and each tried to hide his true identity. Moreover, they were traveling together, as each stated he was hitchhiking to the Texas coast. District Court properly submitted the issue to the jury.

Voluntary Statements

As a final joint complaint, Rice and Willi-ford contend their statements made both before and after the arrest should not have been admitted though District Court, after a pretrial hearing, found them to be voluntary. The challenged statements concern (i) each’s identity, (ii) the presence of a third party at the mall which again was made after the arrest, and (iii) their hitchhiking to the Texas coast.

The statements made before the arrest on Rice and Williford’s identity do not come within the scope of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda is inapplicable to noncustodial interrogations where, as here, what is involved is “on the scene questioning as to the facts surrounding the crime and other general questioning of citizens in the fact-finding process.” 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. See United States v. Henry, 604 F.2d 908, 915 (5th Cir. 1979); United States v. Marks, 603 F.2d 582, 584 (5th Cir. 1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). As the officer had not talked to the store manager nor seen the bill when Rice and Williford were originally approached, he was not conducting a custodial search in violation of Miranda, since no probable cause existed at that point. Id.; United States v. Micieli, 594 F.2d 102, 105 (5th Cir. 1979).

Regarding the statements made after the arrest, it is clear they were made after Rice aná Williford had received at least two warnings of their Miranda rights. Once warnings have been given, it is for the individual to indicate in any manner and at any time, prior to or during the questioning, that he wishes to remain silent. Miranda, 384 U.S. at 474, 86 S.Ct. at 1627,16 L.Ed.2d at 723. Rice and Williford’s exercise of their rights, however, did not render answers tendered before the privilege was invoked involuntary. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). District Court properly admitted the statements.

Tainted Identification?

Rice asserts the store clerk’s in-court identification of him was tainted because she had previously identified him under unduly suggestive and unfair conditions. In determining whether in-court identifications were reliable, we must look to the totality of circumstances, considering such factors as (i) the witness’ opportunity to view the criminal at the time of the crime, (ii) the witness’ degree of attention, (iii) accuracy of the witness’ prior description of the criminal, (iv) the level of certainty demonstrated by the witness at confrontation, and (v) the length of time between the crime and confrontation. United States v. Bazan, 637 F.2d 363, 366 (5th Cir. 1981) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)).

When the offense was committed, the lighting was good and the store clerk had no difficulty in seeing Rice as she conducted the film purchase with him from across the store counter. She paid closer attention to him than usual once she realized the bill he handed her may be counterfeit. Within minutes after the offense was committed, the store clerk pointed out Rice to her manager as being involved in passing the counterfeit bill. She was able to identify Rice as the perpetrator again later that same evening. At no time did she exhibit any difficulty in making her identification of Rice.

Although “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup has been widely condemned,” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967), we recognize exigent circumstances such as the interest to be served by rapid crime solution may justify a one-on-one confrontation. Frank v. Blackburn, 605 F.2d 910, 912 (5th Cir. 1979). In light of the numerous factors supporting the reliability of the witness’ identification, and the lack of evidence that the police acted improperly in utilizing this identification procedure, we conclude the in-court identification was not tainted.

Evidence Essentially Before Jury

As a final contention in this appeal, Rice argues District Court erred in refusing to admit evidence of Fort Worth traffic warrants issued for a person of the same name. He asserts the warrants tended to refute the inference that the reason he gave a false name to the police officer was because of guilty knowledge that the bills he possessed and passed were counterfeit.

Admissibility of evidence is within the broad discretion of District Court. United States v. Bibbs, 564 F.2d 1165, 1168 (5th Cir. 1977), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L-Ed.2d 388 (1978); United States v. Linetsky, 533 F.2d 192, 204 (5th Cir. 1976). In this case, Rice offered photocopies of warrants issued for someone with the same name. He failed to establish, however, they were issued for the same man. The exhibits were not identified or authenticated in any way. Consequently, any error in their omission was certainly harmless. United States v. Sanfilippo, 581 F.2d 1152, 1155 (5th Cir. 1978); United States v. Ashley, 555 F.2d 462, 465 (5th Cir. 1977). [We cannot conclude District Court abused its discretion.]

The judgments of conviction as to both Rice and Williford are affirmed.

AFFIRMED.

1 . See, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).