United States v. Long

• Decision Date: 28 October 1971
• Docket Number: 20577.,No. 20557-20559,20557-20559
• Citation: 449 F.2d 288
• Parties: UNITED STATES of America, Appellee, v. Ralph LONG, Appellant. UNITED STATES of America, Appellee, v. Charles RICHMOND, Jr., Appellant. UNITED STATES of America, Appellee, v. Norris Lee SMITH, Appellant. UNITED STATES of America, Appellee, v. Frank James TOCCO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

449 F.2d 288 (1971)

UNITED STATES of America, Appellee, v. Ralph LONG, Appellant.

UNITED STATES of America, Appellee, v. Charles RICHMOND, Jr., Appellant.

UNITED STATES of America, Appellee, v. Norris Lee SMITH, Appellant.

UNITED STATES of America, Appellee, v. Frank James TOCCO, Appellant.

Nos. 20557-20559, 20577.

United States Court of Appeals, Eighth Circuit.

October 4, 1971.

As Amended on Denial of Rehearings and Rehearings October 28, 1971.

COPYRIGHT MATERIAL OMITTED

John H. Dowell, St. Louis, Mo., for appellant, Long.

Bernard Weitzman, St. Louis, Mo., for appellant, Richmond.

David E. Evans, St. Louis, Mo., for appellant, Smith.

Irl B. Baris, Leonard J. Frankel, Newmark & Baris, St. Louis, Mo., for appellant, Tocco.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., Daniel Bartlett, Jr., U. S. Atty., for appellee.

Before GIBSON and ROSS, Circuit Judges, and EISELE, District Judge.

As Amended on Denial of Rehearings and Rehearings En Banc October 28, 1971.

ROSS, Circuit Judge.

These are direct criminal appeals from judgments of conviction entered upon jury verdicts in the United States District Court for the Eastern District of Missouri. All four appellants were found guilty of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and conspiracy to rob the bank, in violation of 18 U.S.C. § 371. We affirm the judgments of conviction.

Willie Neal, an accomplice, who pleaded guilty in a prior separate trial, was the Government's principal witness and testified substantially as follows: All the appellants, and Neal, met at appellant Tocco's place of business at 5:30-6:00 p. m. on May 20, 1970, where Tocco outlined the plan for the holdup of the Jefferson Bank and Trust Company. They all rode in Tocco's station wagon to view the bank. They met again the next day at about 5:30 p. m. at Tocco's place, and drove to the bank. The next morning, May 22, 1970, at approximately 7:45 a. m., Neal met Smith and Tocco behind Tocco's business establishment. Smith and Neal were picked up by Long and Richmond in a stolen car, and the four of them drove to the bank. Tocco met them near the bank in his station wagon. Neal, Smith and Richmond entered the rear door of the bank. Richmond held the guard at gun point while Neal went to the teller's window. At this time, a Brinks guard entered the bank; Smith took his gun and Richmond took his cloth money bag. After leaving the bank, they drove in the stolen car, with Long driving, a few blocks, where they stopped and were picked up by Tocco. They were then dropped off by Tocco, but he kept the money, guns and gloves used in the robbery. At about 10:00 a. m., Neal returned to Tocco's place, and helped him with a delivery. On the way back, they stopped at Tocco's residence and picked up the money in a suitcase. At about 6:00 p. m., Neal met Long, Tocco, Tocco's brother Pete, and Richmond at Tocco's place of business. Tocco said there was $18,000 on the desk and each would receive $3,000. He also stated that there was another $80,000 to $90,000 in checks which he would burn together with the Brinks bag.

Each defendant offered testimony as to his presence at other places at the times Neal claimed that they were together.

All of the defendants have appealed their convictions with Tocco alleging thirteen separate errors. Two of the other defendants have adopted most of the allegations of Tocco, and in addition, Richmond has alleged three separate errors and Long one. Smith merely adopted ten of the alleged errors assigned by Tocco.

This Court has considered each of the assignments of error by each of the defendants, but will comment only upon those which are deemed by the Court to have possible substance. Those points not discussed have been found by the Court to be without merit.

I. SEARCH AND SEIZURE

The first point raised by Tocco relates to the search and seizure of certain items found partially burned in a trash barrel just outside the place of business of Tocco and his partners and where Tocco had an office. The items in question were identified at the trial as (1) the charred remains of a check that was taken from the Brinks guard; (2) metal coin bag seals from the Brinks bag; and (3) ash from money straps of the type used by the bank that was robbed.

Prior to trial, Tocco filed a motion to suppress all evidence taken pursuant to the search warrant, and after a hearing thereon the motion was overruled. Objections to the introduction of the evidence based on the alleged illegal search and seizure were made at the trial and overruled.

On appeal, Tocco claims that the evidence should have been suppressed because (1) the affidavit for the search warrant did not allege facts sufficient to constitute probable cause for the issuance of the search warrant; (2) the items seized were not particularly described in the search warrant; (3) the place from which the trash barrel and its contents were seized was not the place described in the search warrant; and (4) the search was obviously part of a fishing expedition.

The affidavit was made by an FBI agent based upon his investigation of the case and upon information furnished him by an "admitted participant" in the robbery.¹

The question is thus squarely presented to us as to whether statements of an admitted participant made to an FBI agent were sufficient to permit a magistrate to make an independent determination that probable cause existed for the issuance of a search warrant under the fourth amendment.

Under Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), information must be set forth in such an affidavit showing some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable and some of the underlying circumstances from which the informant concluded that some of the items sought were on the premises to be searched. In this case, the credibility and reliability of the informant was adequately established by the disclosure in the affidavit that the informant was an admitted participant in the crime and therefore an eyewitness to most of the acts constituting the crime as described in the affidavit.

The most recent expression of the Supreme Court of the United States on this subject is in the case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), in which the court held adequate an affidavit based largely on the hearsay evidence of an unidentified informer described as a "prudent person" who had recent "personal knowledge" of whiskey sales made by a suspect and who admitted to the agent that he had purchased whiskey from the suspect himself. This information, coupled with the agent's own knowledge of the defendant's background and reputation, was held to be adequate to satisfy the constitutional requirement of probable cause.

In so holding, the Court stated that

"these statements were against the informant\'s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205(a) (2), Title 26, United States Code, proscribes the sale, purchase or possession of unstamped liquor.

"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support finding. of probable cause to search. That the informant may be paid or promised a `break\' does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant\'s admission that over a long period and currently he had been buying illicit liquor on a certain premise, itself and without more, implicated that property and furnished probable cause to search." Id. at 583, 91 S.Ct. at 2082.

See also United States ex rel. DiRienzo v. Yeager, 443 F.2d 228 (3d Cir. 1971).

The requirement that the affidavit set forth underlying circumstances from which the magistrate could determine that there was probable cause to believe the items sought were on the premises to be searched was met by the allegations that on May 22, 1970, Tocco had in his possession at the premises to be searched, a black suitcase containing a part of the money obtained in the bank robbery; and that he said he would distribute part of the proceeds but keep the rest and make it available to the participants at a later time. Clearly, this established probable cause for the search of those premises for the money and other items obtained in the robbery as designated in the warrant.²

Tocco claims that an accomplice who had admitted participation in an armed bank robbery could not be classified as a credible person. The simple answer to this is that a federal conviction can properly rest on the uncorroborated testimony of an accomplice if it is not otherwise incredible or insubstantial on its face. See Harris v. Ciccone, 417 F.2d 479, 487 (8th Cir. 1969), cert. denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970); Kirschbaum v. United States, 407 F.2d 562, 565 (8th Cir. 1969); Patterson v. United States, 361 F.2d 632, 634 (8th Cir. 1966); Williams v. United States, 328 F.2d 256, 259 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964), and cases cited therein. Certainly no higher standard should be imposed in passing on the sufficiency of the affidavit filed in seeking a search warrant than is applied to the sufficiency of evidence to support a conviction. The Supreme Court has held that affidavits of probable cause are to be tested by much less...