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United States v. Rollins

decided: September 15, 1975.

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES HENRY ROLLINS, A/K/A "LEE EVANS", APPELLANT



Appeal from a judgment entered after a jury trial in the United States District Court for the Southern District of New York, John M. Cannella, Judge, convicting appellant of two counts of mail fraud in violation of 18 U.S.C. § 1341. Affirmed.

Clark, Associate Justice,*fn* Hays and Mansfield, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

James Henry Rollins appeals from a judgment of conviction on two counts of mail fraud in violation of 18 U.S.C. § 1341*fn1 which was entered in the United States District Court for the Southern District of New York after a jury trial. Rollins' principal claims on appeal are that the district court erroneously admitted into evidence (1) two passports seized pursuant to a search warrant by the Oakland, California Police Department in 1971 and (2) certain items taken from Rollins' person in connection with his 1974 arrest on the mail fraud charges. We affirm the judgment of the district court.

I.

On August 10, 1973, Rollins, claiming to be "Robert Cody," opened a checking account in the name of "Kodi's Domestic & International Enterprises" at the Avenue B branch of Manufacturers Hanover Trust Company in New York City. In late August or early September, 1974, Joseph Portale, the officer-in-charge of the Avenue B branch, received two mail transfer money orders in air mail envelopes bearing Nairobi, Kenya postmarks. The two mail transfer forms, which were soon discovered to have been forged, purported to be directions from the Kenyatta Avenue branch of the Standard Bank, Ltd., in Nairobi, Kenya, to the Avenue B branch of Manufacturers Hanover instructing the latter to deposit $301,097.48 and $352,165.03, respectively, into the account of "Kodi's Domestic & International Enterprises." The two transfer forms listed as drawer the "Wheat Marketing Board," an entity for which there was no listing in the Kenya Post Office Directory.

Portale referred the mail transfer forms to the International Department of Manufacturers Hanover's main office where they were handled by Joseph Meehan, Assistant Vice-President in charge of special services and security for the International Department. Upon receiving the first mail transfer form on September 3, 1974, Meehan verified appellant's account at the Avenue B branch and called the telephone number he had obtained from the bank's account records. He spoke with a person identifying himself as Robert Cody who confirmed that he was expecting a transfer of a substantial sum arising from wheat transactions in Kenya.

Telephone company records indicate that on September 4, 1974, a telephone call was made to Kenya from the number listed to Cody on the bank records.

On September 4, 5, and 6, 1974, Cody telephoned Meehan to inquire whether the funds were yet available. When the September 6 phone call from Cody was received, Meehan was meeting with Postal Inspector John Slavinski. Slavinski listened to the call and instructed Meehan to tell appellant that the money would be available the following Monday morning, September 9, at the Avenue B branch. At the Avenue B branch on September 9, Roseanne Santaromita, the Operations Supervisor who had opened the "Kodi's Domestic & International Enterprises" checking account, asked appellant if he was Robert Cody and if he was there to pick up a substantial sum of money which had been forwarded from Nairobi, Kenya, in connection with the sale of wheat. Upon appellant's affirmative response to these inquiries, Agent Slavinski, who was seated at a nearby desk listening, placed appellant under arrest.

When arrested, Rollins had in his possession a slip of paper containing Meehan's name and telephone number at the bank and a personal address book containing a listing for a "Mr. Zini, P.O. Box 48976, N.K. 556101." At arraignment, appellant asked Agent Slavinski to return the address book, and, in Slavinski's presence, instructed his wife to contact "Zini" and advise him of what had happened. However, the Post Office Directory for Kenya,*fn2 introduced at trial in conjunction with the testimony of Giles Noronha, an officer of the Kenyatta Avenue branch of Standard Bank, Ltd., disclosed that P.O. Box 48976, the number which appeared in appellant's address book opposite the name "Mr. Zini," was rented by Walter Donald Obado Ooko, a former employee of the Kenyatta Avenue branch who had been discharged by that bank in 1973.

In order to establish further that Rollins had actively participated with Obado Ooko in a scheme to defraud the bank, the Government sought to introduce into evidence two passports bearing Rollins' photograph. One of the passports was issued to James Henry Rollins; the second was issued to "Lynwood Joseph Evans" and contained travel stamps indicating that its bearer had been in Kenya during July and August, 1971.*fn3 The two passports in question had been seized from appellant's apartment in Oakland, California in 1971 during the execution of a search warrant issued in connection with an unrelated matter, a California shooting. Prior to trial, appellant moved to suppress the passports on the ground that the affidavit in support of the 1971 search warrant had not established probable cause for the issuance of the warrant. Appellant's motion was denied.

Appellant further moved to suppress all evidence flowing from his arrest on September 9, 1974, claiming that the arrest was invalid because of the failure of the Government to obtain an arrest warrant before his seizure. This motion was similarly denied. The case went to trial and appellant was found guilty on two counts of mail fraud.

II.

We consider first Rollins' claim that the admission into evidence of the two passports seized by the Oakland, California Police Department in 1971 pursuant to a search warrant was error. In support of this claim, appellant argues that the affidavit in support of the search warrant did not establish probable cause for the issuance of the warrant, that the seizure of the passports exceeded the scope of the warrant, and that the Government ...


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