UNITED STATES, Appellee v. JOSEPH M. SIMPSON, Staff Sergeant, U. S. Air Force, Appellant, 15 C.M.A. 18

Opinion of the Court Quinn, Chief Judge: After many years of honorable service as an officer, including combat in Europe during World War II, the accused rejoined the Air Force as a noncommissioned officer. He served with distinction until April 1963. Apparently overwhelmed and depressed by personal problems, he went absent without leave. On June 19, 1963, he was apprehended for that offense. During his unauthorized absence, the accused issued a large number of bad checks.

These became the subjects of thirteen specifications of larceny by check, and eight specifications of issuing worthless checks with intent to defraud, in violation of Articles 121 and 123a, Uniform Code of Military Justice, 10 USC §§ 921 and 923a, respectively. All charges were referred to a general court-martial for trial. The accused pleaded guilty to the unauthorized absence, but not guilty to the check charges. He was convicted as charged, and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for three years.

The convening authority approved the findings of guilty, but reduced the confinement to one year and modified the-forfeitures. A board of review affirmed. Two issues are presented by this appeal. The first, which deals with the relationship between the bad check offenses defined in

Article 123a, and larceny by check in violation of

Article 121, was decided against the accused in United States v Barnes, 14 USCMA 567, 34 CMR 347. The second concerns documents taken from the accused’s person when he was apprehended. He contends these papers were illegally seized, and improperly admitted into, evidence at the trial. For convenience, we have grouped the disputed items of evidence into four categories: 1. A book of blank checks imprinted with the name of the American Express Company branch at Kadena, Okinawa. The cheeks bore account number 63518. Several of the cheeks were missing.

The serial number on the stubs of nine of the missing checks corresponded to nine of the checks allegedly issued by the accused in fictitious names. 2. Two checks bearing serial numbers corresponding to those on two stubs in the checkbook. The spaces on each check for the date, amount, and signature of the drawer on each check were filled in, but the payee line was blank. The name of the drawer, which was the same on each check, was not that of the accused; it was the same as that used on two of -the cheeks set out in the larceny .specifications. 3.

A check drawn on the American Express Company branch at Sukiran, •Okinawa. The date, amount, and name of the drawer, which was not •that of the accused, were inserted in the proper places, but the payee space was blank. 4. Two handwritten documents. The first was dated April 18, 1963, and was addressed “To Whom It May Concern”; it was signed in the .accused’s name. The second was undated, unaddressed, and unsigned, but the handwriting was strikingly •similar to that of the first paper. In .substance, the writings reviewed •some of the accused’s problems and his intention to commit suicide.

The court-martial was instructed the contents were admitted into evidence only as “handwriting samples of the accused,” and were not to be considered on the merits. -Two days after his apprehension, the accused voluntarily gave an agent of the Office of Special Investigations samples of his handwriting. Preliminarily, he was informed of his rights under

Article 31, Uniform Code of Military Justice, 10 USC § 831. The writings, and all the documents taken from the accused when arrested, were submitted to a questioned document examiner. At trial, the expert testified he compared the checks, which were the subject of the charges, with the other writings. In his opinion, the “same individual . . . executed” all the instruments. The expert also testified that the handwriting samples made by the accused after his arrest were themselves sufficient to support his conclusion as to the authorship of the checks.

On initial review, the staff judge advocate considered the law officer’s ruling on the articles taken from the accused at his arrest. In his opinion, the incomplete cheeks and the two suicide notes were “evidentiary material,” which were not subject to seizure, even in connection with a lawful search. However, he concluded the erroneous admission of these documents did not prejudice the accused, because the “other substantial and overwhelming evidence” established the accused’s authorship of those checks which were the subject of the charges.

When the case came before the board of review, it “assumed” the incomplete checks and the notes were merely “evidentiary materials”; but it also concluded the evidence did not prejudice the accused because it was “cumulative” and unimportant, in light of the other compelling evidence of guilt. Appellate defense counsel challenge the validity of these conclusions. First, they maintain that all the items seized from the accused’s person were unconnected with the offense for which he was apprehended prehended and, therefore, could not legally be taken from him.

The contention impliedly concedes, as it must in view of the evidence, that the accused’s arrest was lawful. A search incident to a lawful arrest is proper. Articles found in the course of a search incident to a lawful arrest can be seized, and used against the accused, on the same basis as articles seized in a search conducted pursuant to a proper warrant. United States v Thomson, 113 F2d 643, 645 (CA 7th Cir) (1940). In either case, articles relating to an offense different from that which justified the search can be seized.

United States v Abel, 258 F2d 485 (CA2d Cir) (1958), affirmed, 362 US 217, 4 L ed 2d 668, 80 S Ct 683 (1960), rehearing denied, 362 US 984, 4 L ed 2d 1019, 80 S Ct 1056 (1960) ; United States v Ross, 13 USCMA 432, 437-438, 32 CMR 432. There is, there-fore, no merit in this aspect of the .accused’s claim of error. It is next contended that reversal of the accused’s conviction is required because some of the seized articles were admitted into evidence in violation of his constitutional rights. The argument is predicated upon the nature of the property subject to seizure from the person or premises of the accused.

It is said that instrumentalities or the fruits of an offense are subject to seizure when discovered in the course of a lawful search, but “mere evidentiary materials” cannot be seized under any circumstances. The difference between the two classes of property has been spelled out by the Supreme Court of the United States in construing the constitutional protections against self-incrimination and unreasonable search and seizure.

See United States v Lefkowitz, 285 US 452, 76 L ed 877, 52 S Ct 420 (1932) ; Gouled v United States, 255 US 298, 65 L ed 647, 41 S Ct 261 (1921); Rule 41, Federal Rules of Criminal Procedure. The classification has not been free from criticism. See Wigmore, Evidence, §§ 2183-2184, 2263 (McNaughton rev. 1961). Also it would appear that mere mechanical application of the difference might lead to startling, if not absurd, results.

For example, a confession is not the fruit or the instrumentality of a crime; yet, if the accused was arrested pursuant to a lawful warrant for the commission of a robbery and searched as an incident to the arrest, would it be reasonable to apply the doctrine to exclude a writing found in the accused’s possession which amounts to a confession to the offense for which he was apprehended? See United States v Boyette, 299 F2d 92 (CA 4th Cir) (1962), cert den, 369 US 844, 7 L ed 2d 848, 82 S Ct 875 (1962) ; cf.

United States v McDaniel, 154 F Supp 1 (DC DC) (1957), affirmed, 255 F2d 896 (CA DC Cir) (1958), cert den, 358 US 853, 3 L ed 2d 87, 79 S Ct 82 (1958). To our knowledge, no court has gone so far as to require the return of a document so directly related to an offense, on the ground it is mere evidence of the crime. See United States v Rees, 193 F Supp 849, 855 (DC Md) (1961). The limit to which appellate defense counsel would have us push the distinction between evidence and the instrumentality or fruit of a crime indicates the need for serious rethinking of the doctrine and its operation.

Since the matter is constitutional in nature, we have been guided by the decisions of the Supreme Court. We have applied the distinction between the seizure, in the course of a lawful search, of mere evidence of the offense, and the seizure of the fruits and instrumentalities of an offense. United States v Vierra, 14 USCMA 48, 33 CMR 260; United States v Rhodes, 3 USCMA 73, 11 CMR 73. But it is not always easy to determine whether a particular

article or writing is merely evidentiary material, or is capable of being used as an instrument or agency for the perpetration of an offense. The differences, we observed in the Rhodes case, supra, at page 75, are “shadowy, indistinct, and elusive indeed.” See also United States v Vierra, supra; United States v Stern, 225 F Supp 187 (SD NY) (1964). Notwithstanding the general difficulties of the question, the first three groups of writings taken from the accused clearly fall within the seizable class.

The checkbook was the patent source of the bad cheeks issued by the accused; if not actually an instrumentality of the larceny offenses, it is “so closely related . . . [that] it is not unreasonable to consider” it was employed to carry out the illegal acts. Marron v United States, 275 US 192, 199, 72 L ed 231, 48 S Ct 74 (1927). The incomplete checks were not being used at the moment of the accused’s arrest, but they were kept to be utilized when needed for the commission of an offense. Gouled v United States, 255 US 298, supra, at page 309.

In fact, the accused later admitted in a pretrial statement that he had, just before his arrest, prepared one of the checks for the purpose of cashing it. These checks could be seized to prevent the commission of other offenses. United States v Lefkowitz, 285 US 452, supra, at page 466. The handwritten notes are more difficult to classify. Attempted suicide has been held to be a violation of military law. Dig Ops, 1912-40 § 453 (4). A writing bewailing one’s outcast state which leads to the conclusion that life is empty and meaningless and ought to be ended can, perhaps, persuade the writer to attempt suicide.

So viewed, the writing might be considered a “means” of the offense. See 57 CJS, Mean, page 475. Whether the notes taken from the accused can reasonably be construed as tending to induce suicide need not, however, detain us. With the board of review, we can assume they had mere evidentiary value, and as such were not subject to seizure. They should not, therefore, have been admitted into evidence against the accused. What effect did the error have upon the substantial rights of the accused?

Appellate defense counsel maintain that since the notes were taken from the accused in violation of his constitutional rights, the conviction must be reversed, even though their admission into evidence could not possibly have harmed the accused. The argument has been advanced in other cases; but we have, with other Federal courts, consistently held that reversal of an otherwise valid conviction is not required if the improperly seized evidence presents no fair risk of prejudice to the accused. See United States v Battista, 14 USCMA 70, 33 CMR 282; United States v Justice, 13 USCMA 31, 32 CMR 31.

The test for prejudice would appear to be peculiarly appropriate when, as in this case, the search is lawful, most of the property seized is subject to lawful seizure, and there is doubt whether the disputed property is not also seizable. See United States v Ross, supra. We have previously observed intimations by the Supreme Court of the United States that the stringent rule advocated by counsel here might be necessary to effectuate the constitutional protections of an accused. See United States v Vierra, supra, at page 54.

In view of our own decisions on the subject, we do not consider it wise to adopt so rigid a formula of reversal in advance of the Supreme-Court of the United States. We, therefore, turn to the evidence to determine if any prejudice to the accused could result from the inadmissible “suicide”' notes. Earlier, we noted that the accused' voluntarily submitted fifteen samples of his handwriting to an-OSI agent. He specifically admitted to the agent that he issued three of the checks charged against him. As to the remainder, he said he “could not make a positive-statement” but he “may have been the author” of them.

Other admissions, however, reveal his doubt to be wholly unfounded. He stipulated at trial that he never had an account in his own-name in any of the branches of the-American Express Company on Okinawa. He admitted he obtained, by stratagem, from a teller in the Kadena branch of the bank the checkbook found in his possession. He also admitted the writing on the check stubs was his; and it was all “purely fictional.” In-addition, he confessed he was the author of all the partially completed checks found on his person at the time of his apprehension.

Two of the latter came from the checkbook in the accused’s possession; and the name of the drawer was the same as that on two of the checks in the larceny specifications. The name of the drawer on the third incomplete check was that of a dead' friend of the accused. The Government’s handwriting expert testified he-did not need the “suicide” notes for his ■examination, and his opinion as to the .authorship of the checks which were the subject of the charges did not de■pend upon the notes. All of this evidence was uncontradicted and unim-peached.

And, there is not a scintilla •of evidence to cast doubt on the proven fact that the accused was the author •of the checks which were the subject of the charges. We agree with the board •of review, therefore, that the “suicide” notes, which were admitted only as additional samples of the accused’s ^handwriting, were entirely cumulative, and could not have played any

part in the court-martial’s verdict of guilty. The decision of the board of review .'is affirmed. Judge Kilday concurs. Previous to our grant of review, the accused completed a period of retraining which led to suspension of the punitive discharge and his release from confinement. At trial, defense counsel contended these statements were inadmissible because the seizure of the items to which they related was illegal. We have pointed out in the text that these items were properly subject to seizure as incidental to the accused’s apprehension. Consequently, these could not taint the statements made by the accused two days later, with full warning of his rights under

Article 31. There is no-evidence whatever as to the effect of the seizure of the “suicide” notes on the accused’s willingness to talk about the-offenses. See United States v Dutcher, 7 USCMA 439, 22 CMR 229. The board of review considered the entire problem, and concluded, as a matter of fact,, that the accused’s statements were not influenced in any way by the fact that. the articles had been taken from his possession. See United States v Askew, 14 USCMA 257, 34 CMR 37.