United States v. Dzialak

Decision Date17 March 1971
Docket NumberNo. 345,Docket 34842.,345
Citation441 F.2d 212
PartiesUNITED STATES of America, Appellee, v. Arthur Peter DZIALAK, Appellant.
CourtU.S. Court of Appeals — Second Circuit

L. F. Walentynowicz, Buffalo, N. Y., for appellant.

James W. Grable, Asst. U. S. Atty. (H. Kenneth Schroeder, Jr., U. S. Atty., W. D. N. Y.), for appellee.

Before SMITH and HAYS, Circuit Judges, and LEVET, District Judge.*

LEVET, District Judge:

This is an appeal from a judgment of conviction entered on February 9, 1970 in the United States District Court for the Western District of New York (Henderson, D. J.) convicting the appellant, Arthur Peter Dzialak, after trial by jury on Counts II, III, IV and V of a five-count indictment. Counts II, IV and V charged appellant with possessing chattels valued in excess of $100.00 knowing the same to be stolen, which goods were part of an interstate shipment, in violation of 18 U.S.C. § 659. Count III charged appellant with possessing chattels valued at less than $100.00, knowing the same to be stolen, in violation of 18 U.S.C. § 659. Dzialak was sentenced to a prison terms of one year on the misdemeanor charge and three years on each of the felony charges, the terms to run concurrently. In addition, the court levied a fine of $5,000 on each felony count and of $1,000 on the misdemeanor.

Dzialak urges that his conviction on all four counts be reversed on the following grounds:

1. Certain evidence seized in the search of the trash in front of the premises of appellant was obtained by means of an unlawful search and seizure;

2. Probable cause was lacking for the issuance of the search warrant dated December 4, 1967 authorizing a search of the home of appellant;

3. The evidence seized in the search of appellant's premises on December 4, 1967 was obtained by means of an unlawful search and seizure;

4. The superseding indictment, upon which appellant's conviction rests, was returned by inadequate and incompetent evidence before the Grand Jury;

5. The reference to certain slips of paper first admitted and later withdrawn from evidence at trial constituted prejudicial error;

6. The trial judge improperly charged the jury with respect to Count II of the indictment;

7. The evidence was insufficient to sustain the conviction of appellant of the offense charged in Count II of the indictment;

8. The sentence imposed by the trial judge was illegal, excessive and arbitrary.

We affirm the judgment as to Counts II, III and V and reverse as to Count IV.

Dzialak was employed by the Railway Express Agency as a driver. Harold J. Poling was a security investigator for the Railway Express Agency. Poling began an investigation of appellant's activities on November 5, 1967 after learning that certain merchandise placed in the custody of Railway Express for delivery was not reaching its destination. Poling also received information from a fellow Railway Express employee that an unidentified person had reported that the wife of appellant was selling watches and clothing at low prices.

During the course of a surveillance of appellant's home at 35 Diane Drive in the town of Cheektowaga, New York, on November 24, 1967, Poling examined a cardboard box which was part of the trash left between the sidewalk and street in front of appellant's home. The carton bore an attached white copy of an invoice dated November 7, 1967 covering a shipment of several dozen hosiery shipped from a mill in Pennsylvania to a Sears, Roebuck store in Lockport, New York. Inside the box was found a pink copy of the same invoice as well as several torn pieces of a cardboard box which, when pieced together, formed a carton bearing the name "Schwinn Bicycles," and an address label bearing the notation "Jimmy Mangum, 2594 Fontaine, Memphis, Tennessee, from John R. Dixon, 187 Brunswick, Buffalo, New York 14208." The carton also contained three pieces of paper bearing references to shirts and shirt sizes.

Poling conducted a second surveillance of the premises of the appellant on November 30, 1967, at which time he again seized items from the trash in front of appellant's home. Among the items seized from the appellant's trash at this time was a white cardboard carton addressed to appellant's wife. Poling also seized a Schwinn bicycle guarantee stamped "Heil Brothers, 640 Broadway, Buffalo, New York." Poling conducted further investigation regarding these items, discovering that a number of them referred to items missing from various Railway Express shipments.

Poling turned this information over to F.B.I. agent Thomas Gray on November 24, 1967. Gray applied for a search warrant before a United States Commissioner on December 4, 1967 to search the home of appellant at 35 Diane Drive in Cheektowaga, New York. In support of his application, Gray supplied a two-page list of certain property which he believed to be concealed on the premises of appellant at the time. This list included 27½ dozen pairs of hosiery from Penn-Warrington Hosiery Mills, Inc. and identified by style, number, color and size; one Schwinn boy's bicycle and accompanying description as well as a description of one carton of binoculars.

Agent Gray presented a nine-page affidavit setting forth a detailed description of the investigation of Poling as well as Gray's own corroborative investigation. A warrant was issued for a search of both the home and automobile of appellant.

During a search of appellant's home, which lasted some four hours, the FBI, on December 4, 1967, seized one Schwinn boy's bicycle, five boxes of hosiery, 12 pieces of telescopic equipment, 21 Timex watches and five shipping papers pertaining to those watches and a great quantity of other items besides those described in the warrant.

Dzialak was indicted on December 8, 1967 and charged with three counts of violating 18 U.S.C. § 659. These counts involved the unlawful possession of (1) four dozen sport shirts as a felony; (2) a carton of assorted hosiery as a felony; and (3) a bicycle as a misdemeanor.

On March 25, 1969 a superseding indictment was filed charging Dzialak with these original three counts plus two additional felony violations of 18 U.S.C. § 659. The two additional counts were for the possession of 21 Timex watches as a felony and the possession of three opera glasses, two microscopes and seven telescopes as a felony.

Appellant's first claim is that the search by Harold Poling of the trash located in front of appellant's house was in violation of his right under the Fourth Amendment to be free from unreasonable searches and seizures. The District Court decided this question on a motion to suppress the items seized by Poling and held that the items taken had been abandoned by Dzialak and therefore that there was nothing unlawful about their seizure.

Appellant argues that this was incorrect and places reliance upon an ordinance of the Town of Cheektowaga, which was in effect at the time of the seizures, and which prohibits anyone, except authorized employees of the Town of Cheektowaga, to rummage into, pick up, collect, move or otherwise interfere with articles or materials placed on the right of way of any public street for collection. It is argued that Dzialak may very well have relied on this ordinance when placing his trash out in the street and that this goes to negative any intent to abandon the articles in question.

We are not persuaded. We think it abundantly clear that Dzialak abandoned the property. The town ordinance simply cannot change the fact that he "threw these articles away" and thus there "can be nothing unlawful in the Government's appropriation of such abandoned property." Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698, 4 L.Ed.2d 668 (1960).

Appellant alleges further that the search warrants obtained December 4, 1967 were improperly issued. The first contention is that their issuance was based primarily on the fruits of what has been contended to be an illegal search and seizure by Poling. Since we have already held that the searches by Poling were legal, we need not concern ourselves with this part of the argument. It is contended further, however, that the warrants, which were issued on the basis of Gray's affidavit rather than Poling's, were issued without probable cause.

The standards for assessing the sufficiency of a warrant application were set forth in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969). They are twofold: The warrant application must state "some of the underlying circumstances" from which the informant drew his conclusions concerning the suspect's criminal activities and it must also disclose some of the reasons which gave assurance of the informant's reliability. Both standards are met here.

The affidavit of Agent Gray set forth a very lengthy set of facts to substantiate Poling's conclusions about Dzialak's criminal activity. There was the material obtained in the search, the results of Poling's subsequent investigations, and the corroborative results of Gray's own independent investigation.

However, appellant's argument goes basically to the second of the Spinelli criteria, that is, whether there were sufficient facts to justify the Commissioner in deciding Poling was trustworthy as an informant. We conclude that here, too, the affidavit was sufficient to justify a finding of probable cause.

First of all, while the affidavit identified Poling only by his occupation, the fact that Poling was a railroad policeman and not just an ordinary private citizen gave him some degree of reliability as an informant. But of primary importance is the detail of information and descriptions provided by Poling together with the extent of corroboration by independent observation on the part of Gray. Besides Poling's own investigation, observations, and all the materials seized from appellant's trash, Gray himself personally contacted the local consignee of an Arrow shirt...

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