382 F.2d 871 (8th Cir. 1967), 18389, Spinelli v. United States

Docket Nº:18389.
Citation:382 F.2d 871
Party Name:William SPINELLI, Appellant, v. UNITED STATES of America, Appellee.
Case Date:July 31, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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382 F.2d 871 (8th Cir. 1967)

William SPINELLI, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18389.

United States Court of Appeals, Eighth Circuit.

July 31, 1967

Rehearing Denied Sept. 12, 1967.

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Irl B. Baris, of Newmark & Baris, St. Louis, Mr., for appellant.

Sidney M. Glazer, Attorney, Dept. of Justice, Washington, D.C., for appellee; Richard D. FitzGibbon, Jr., U.S. Atty., and Stephen H. Gilmore, Asst. U.S. Atty., St Louis, Mo., and Fred M. Vinson, Jr., Asst. Atty. Gen., Theodore George Gilinsky, Washington, D.C., on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACKMUN, MEHAFFY, GIBSON, LAY and HEANEY, Circuit Judges, sitting en banc.

GIBSON, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Eastern District of Missouri convicting appellant of violating 18 U.S.C. § 1952 (Interstate travel in aid of racketeering).

Appellant was tried before a jury on an indictment which charged that he had traveled in interstate commerce with intent to promote, manage, establish, carry on, and facilitate the promotion of an unlawful activity, to-wit: a business enterprise involving gambling in violation of the law of Missouri, § 563.360, R.S.Mo., 1959, V.A.M.S.; and did thereafter perform and attempt to perform acts to promote, manage, establish and carry on, and facilitate the promotion, management, establishment and carrying on of said unlawful activity. He was found guilty by the jury and sentenced by the Court to three years imprisonment and a $5,000.00 fine.

The appeal from that judgment was initially argued before a division of this Court consisting of Judges Van Oosterhout, Gibson, and Heaney. Contrary to the holding of the District Court, the panel agreed that appellant had standing to object to a search of an apartment room that he was not actually occupying, and the majority of that panel, in an opinion authored by Judge Heaney, ruled that the conviction of appellant should be reversed as evidence seized in that room was the result of an unconstitutional search. The majority felt that the affidavit in support of the search warrant did not establish probable cause. On this point Judge Gibson dissented. The numerous other points of error alleged by appellant were not considered by the panel because of the dispositive nature of the majority holding on the search warrant issue.

Thereafter, the government petitioned the Court for a rehearing en banc. Owing to the importance of the question and the division of opinion on the panel, a rehearing en banc was ordered. At this point appellant contends that a rehearing violates his constitutional protection against double jeopardy. As the government cannot generally appeal actions by the trial court, appellant contends the government cannot 'appeal' decisions reached by a division of the Court. Appellant

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cites no authority for this position and we are not persuaded by his argument.

It is true that the government has no right to appeal in criminal cases unless specifically authorized by statute. Umbriaco v. United States, 258 F.2d 625 (9 Cir. 1958); 24 C.J.S. Criminal Law § 1659. However, this prohibition arises out of the common law and is not necessarily encompassed by the constitutional prohibition. For, as we see, 18 U.S.C. § 3731 specifically authorizes government appeals in some instances, and the exercise of this right of appeal does not necessarily violate a criminal defendant's right against double jeopardy. United States v. Bitty, 208 U.S. 393, 28 S.Ct. 396, 52 L.Ed. 543 (1908). See, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) in which the government secured review of an adverse Court of Appeals decision.

However, we need not pursue the matter of constitutionality of government appeals in that an appellate court's reconsideration of its own position on a question of law, is far different from an appeal from a final decision of a trial court. As long as this Court has jurisdiction over the cause, it has the express authority under Title 28, U.S.C. § 46 and 2106 § and Court Rule 15 to rehear and, if necessary, modify its decisions. Ulime v. Ulime, 92 U.S.App.D.C. 281, 205 F.2d 870 (1953); 14A Cyclopedia of Federal Procedure, § 68.123 (3rd Ed., 1965 Rev. Vol.); 36 C.J.S. Federal Courts § 301(31).

This Court retains jurisdiction over a cause at least until a mandate is issued in accordance with a majority opinion. Since no mandate has issued in this case, the opinion of the panel was interlocutory and the Court retains the jurisdiction necessary to question and change any tentative decisions of the Court without subjecting appellant to any form of additional jeopardy.

Obviously, an appellate court's reconsideration of its legal opinion is completely unlike requiring a criminal defendant to stand trial a second time on a factual issue after once being acquitted. See, Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Consequently, it has been held by the Supreme Court that even though an appellant's conviction has been ordered reversed by a Court of Appeals, the Court of Appeals still retains the power to amend or revise that reversal order upon the rehearing of the action, and its reconsideration does not subject the criminal defendant to double jeopardy. Forman v. United States, 361 U.S. 416, 425-426, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). This Court has jurisdiction to rehear the case and alter its judgment thereon without infringing upon appellant's constitutional rights. 12 Cyclopedia of Federal Procedure, § 51.178 (3rd Ed., 1965 Rev. Vol.).

A large number of questions on this appeal revolve around the search warrant used to uncover the incriminating evidence of gambling. Among these questions are: appellant's standing to question its validity, the sufficiency of the information before the issuing magistrate, the propriety of its execution, the failure to specify some of the evidence that was seized.

After lengthy surveillance of appellant the F.B.I. sought an arrest warrant and a search warrant. The affidavit in support of the search warrant was made before a United States Commissioner in St. Louis, Missouri, on August 18, 1965 and was signed by a Special Agent of the F.B.I. It related that the affiant or other agents of the F.B.I. observed appellant driving his automobile onto the eastern approaches of bridges leading from East St. Louis, Illinois to St. Louis, Missouri on four occasions in 1965; August 6, 11:44 a.m.; August 11, 11:16 a.m.; August 12, 12:07 p.m.; August 13, 11:08 a.m. He was observed driving off of the western end of Eads Bridge in St. Louis, Missouri on two of these occasions: August 11 and August 13.

The affiant further related that appellant had been observed by federal agents driving the car into a parking area

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used by residents of the Chieftain Manor Apartments at 1108 Indian Circle Drive in St. Louis, Missouri, on August 11, 4:40 p.m.; August 12, 3:46 p.m.; August 14, 3:45 p.m.; and August 16, 3:22 p.m. On August 12 appellant was observed entering the front entrance of the Chieftain Manor Apartments. On August 13 appellant was observed entering the southwest corner apartment on the second floor designated as Apartment F. On August 16, after parking his car in the lot appellant was observed walking toward the apartment building.

After this detailed recitation of appellant's movements the affidavit went on to state:

'The records of the Southwestern Bell Telephone Company reflect that there are two telephones * * * (in apartment F) under the name of Grace P. Hagen * * *. The numbers * * * are WYdown 4-0029 and WYdown 4-0136.'

'William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.'

'The Federal Bureau of Investigation has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers of WYdown 4-0029 and WYdown 4-0136.'

On the basis of this information the Commissioner issued a warrant for the search of Apartment F of the Chieftain Manor Apartments. No oral testimony was taken.

Armed with the warrant the federal agents went directly to the apartment building and stationed themselves in an apartment across the hall from Apartment F. After a two hour and ten minute wait, the appellant emerged from Apartment F into the hall and was served with an arrest warrant. At the same time he was served with the warrant to search the apartment. A key found on his person was used to open the apartment door. A number of agents searched the premises, while others took appellant to police headquarters. The search uncovered various items of gambling paraphernalia which were introduced against appellant and were considered as items essential to appellant's conviction.

A motion to suppress the evidence obtained in the search was timely made and overruled by the District Court on the ground that the appellant had failed to allege or show that he was legitimately upon the premises searched, and, therefore, lacked standing to object.

STANDING TO OBJECT

We feel the trial court did not apply the existing law and that defendant does have standing to object to the search of this apartment. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697...

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