United States v. Milanovich

Citation303 F.2d 626
Decision Date30 April 1962
Docket NumberNo. 8493 and 8613.,8493 and 8613.
PartiesUNITED STATES of America, Appellee, v. Virginia MILANOVICH, Appellant (two cases).
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Calvin H. Childress and Herbert S. Reid, Jr., Norfolk, Va., for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on the brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

In December, 1958, Virginia Milanovich was tried and convicted on an indictment charging larceny and receiving under 18 U.S.C.A. § 641. She was sentenced to ten years imprisonment on the larceny count and five years on the receiving count, the sentences to run concurrently. On appeal, this court reversed her conviction for receiving but affirmed as to the larceny. Milanovich v. United States, 275 F.2d 716 (4 Cir., 1960). The Supreme Court reversed our decision and ordered a new trial. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). Tried again, she was found guilty of larceny and sentenced a second time to ten years imprisonment.1

This is her appeal from that conviction. Her chief complaint is that certain evidence introduced by the Government at the trial was seized by federal officers in violation of the Fourth Amendment. The District Court ruled that it would not consider the objection, on the ground that no motion to suppress the evidence had been made prior to trial, as prescribed by Rule 41(e), Fed.R.Crim.P. 18 U.S.C.A., and no excuse was offered for this failure and, on the alternative ground based on the merits, that the facts failed to show an illegal search and seizure.

The alleged illegal seizure occurred on June 19, 1958, when federal officers went to the Milanovich home to arrest Mike Milanovich, Virginia's husband, who was suspected of involvement in two recent robberies of United States naval bases in Virginia. They had a warrant for his arrest, which was duly executed. While there, the officers, in the presence of Virginia Milanovich, obtained her husband's consent to search the house. Pursuant to his written authorization on a "consent to search" form, the officers searched the house and in a closet in the guest bedroom found an overnight bag containing about $500.00 in wrapped silver coins identified as having been stolen from the naval base. At that time Virginia Milanovich admitted ownership of the bag but denied possession, stating that she had loaned it to the friend then staying at the Milanovich home. The bag and contents were confiscated by the officers, and it is in respect to the seizure of this evidence that the defendant claims a violation of her constitutional rights.

The defendant was indicted and arrested on July 16, 1958, and her first trial was held on December 10 of that year. No motion to suppress was filed prior to that trial, and, indeed, the evidence here challenged was introduced there against Virginia and her co-defendant husband without objection. The Supreme Court's mandate ordering a new trial was handed down on April 25, 1961. Again no motion to suppress was made in the several months preceding the second trial on September 25, 1961. Only when the Government tendered the evidence on the second day of the second trial was the objection interposed and the illegality of the search asserted for the first time.

Under these circumstances, we think that the District Court acted within the bounds of its discretion in declining to entertain the objection. Rule 41(e) provides in relevant part that "the motion to suppress shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing." Clearly the present case does not fall within the specified exceptions. Ample time existed for making the motion (five months before the first trial and another five months before the second), and indisputably the defendant had full knowledge of the circumstances of the seizure. See Isaacs v. United States, 283 F.2d 587 (10th Cir., 1960); United States v. Romero, 249 F.2d 371, 374 (2d Cir., 1957); United States v. Chieppa, 241 F.2d 635, 637-638 (2d Cir., 1957); cf. Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Still, we would be loath to hold that, for the sake of procedural orderliness, the defendant was disqualified from pressing her claim during the course of trial if some explanation had been made to appear for her failure to comply with Rule 41(e), other than neglect. Cf. Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct. 261, 65 L.Ed. 647 (1921);2 Ganci v. United States, 287 Fed. 60, 66-67 (2d Cir., 1923). Nothing of this character is offered. True, the defendant's present attorneys did not enter the case until a week before the second trial, but she had almost constant legal representation from the time proceedings were begun against her in 1958.

In addition, we think that the defendant is not in a position to avail herself of the rule announced in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). There the testimony of government witnesses at the trial showed a clear violation of Fourth Amendment rights, and the Court held that in those circumstances the trial judge had no discretion to decline to consider the objection to the evidence even though advanced while the trial was in progress. Here, in contrast, it is far from clear that there was an illegal search and seizure; seemingly Mrs. Milanovich's acquiescence when her husband consented to the search was part of a deliberate design on her part to cast full responsibility for the presence of the stolen money upon either her husband or the house guest. Refusal to entertain the belated objection was not error.

A second issue presented on this appeal relates to the conduct of the special assistant to the Attorney General of the United States, assigned to prosecute this case for the Government. Raised on a motion for new trial filed some three months after final judgment, the allegation is that the prosecutor volunteered information to a local radio station concerning Mrs. Milanovich's alleged criminal record. The prosecutor happened to be the attorney for the radio station. When there for consultation on other matters, he allegedly made the statements about the appellant at the solicitation of the news broadcaster, with knowledge that they would be repeated over the air. His assertions that Mrs. Milanovich was a woman with a long record of arrests on charges of prostitution and liquor sales were broadcast at least three times during the week preceding the second trial. The motion for a new trial based upon this ground has, by consent of the parties, been made part of the main appeal.

The Government makes no attempt to defend such conduct of a prosecutor. Indeed, it concedes that it constitutes a violation of the duties and responsibilities of his office.3 It argues, however, that such malfeasance alone, in the absence of some actual prejudice to the accused, would not be sufficient to nullify the conviction. On the other hand, the defendant contends that a showing of prejudice is not essential and that a new trial should have been ordered.

The broadcasts in question were known to the defendant at the time of...

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  • Silverthorne v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 1968
    ...is created by acts of the Government. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Milanovich, 303 F.2d 626 (4th Cir. 1962); Holmes v. United States, 284 F.2d 716, 97 A.L.R.2d 782 (4th Cir. 1960); Massicot v. United States, 254 F.2d 58 (5th Cir.......
  • U.S. v. Jones
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 9, 1976
    ...(4th Cir. 1973), 487 F.2d 90, 92-3, cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773. As stated in United States v. Milanovich (4th Cir. 1962), 303 F.2d 626, 629 cert. denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115 (1962). "(W)henever it appears that shortly before a trial publi......
  • State v. Atwood
    • United States
    • Supreme Court of Arizona
    • April 9, 1992
    ...right to a fair trial when the prosecution engages in extrajudicial contact with the media, see, e.g., United States v. Milanovich, 303 F.2d 626, 629-30 (4th Cir.1962), our concern in addressing alleged prosecutorial misconduct is the actual effect of the conduct on defendant's trial. "[T]h......
  • Henry v. State of Mississippi, 6
    • United States
    • United States Supreme Court
    • January 18, 1965
    ...Federalism is turned upside down if it is denied to judges in the state systems. See Fed.Rules Crim.Proc. 41(e) and 26; United States v. Milanovich, 303 F.2d 626, cert. denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115; Hollingsworth v. United States, 321 F.2d 342, 350; Isaacs v. United Sta......
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