United States v. Rajewich

• Decision Date: 26 December 1972
• Docket Number: No. 72-1315.,72-1315.
• Citation: 470 F.2d 666
• Parties: UNITED STATES of America, Appellee, v. William J. RAJEWICH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

470 F.2d 666 (1972)

UNITED STATES of America, Appellee, v. William J. RAJEWICH, Appellant.

No. 72-1315.

United States Court of Appeals, Eighth Circuit.

Submitted November 16, 1972.

Decided December 26, 1972.

Robert O. Hippe, Lovell, Raymond & Hippe, Scottsbluff, Neb., for appellant.

William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and DURFEE, United States Court of Claims Judge.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal by defendant William J. Rajewich from his conviction by a jury on each of two counts of an indictment charging him with wilfully attempting to avoid payment of a large part of the income tax and Social Security tax withheld by Western Nebraska Rest Home, Inc., (hereinafter usually referred to as taxpayer), from its employees by filing false returns for the third and fourth quarters of 1969, in violation of 26 U.S.C.A. § 7201. Concurrent sentences of eighteen months were imposed.

Defendant was employed by taxpayer to prepare its federal tax returns and reports, including those here involved. Defendant signed the reports covered by the indictment as executive bookkeeper, filed the returns, and requested that the taxpayer's address be changed to his office address. Taxpayer provided defendant with blank checks to cover the tax payments due. Defendant filled in such checks for substantially more money than the amount of the tax due as disclosed by the returns and for approximately the amount of the tax actually due. Defendant cashed such checks, retaining the overage above the amount of the tax disclosed by the returns. No attack is made on this appeal upon the sufficiency of the evidence to support the conviction. Thus a detailed summary of the evidence will serve no purpose. In any event, our examination of the record satisfies us that the guilty verdicts are supported by substantial evidence.

The only error asserted upon this appeal is that the court failed to sustain defendant's motion made prior to trial and renewed at the trial to suppress evidence obtained as a result of a search made pursuant to a search warrant. Defendant urges that the items seized at defendant's place of business under the search warrant should be suppressed for the following reasons:

1. Probable cause for the issuance of the search warrant was not established.

2. The warrant issued is too broad in that it authorizes a general search, in violation of defendant's Fourth Amendment rights.

We find each of defendant's contentions lacks merit and affirm the conviction for the reasons hereinafter stated.

The search warrant was issued by United States Magistrate Peck and is based upon a five-page affidavit of Larry D. Thompson, Special Agent of the Internal Revenue Service, who made a thorough investigation of the facts upon which the criminal charges herein are based, and a supporting affidavit of Clara Reisig, operator of the victimized rest home. Moreover, Thompson's affidavit shows the extent of his investigation and the facts ascertained thereby in detail, and such stated facts corroborate the statements in Mrs. Reisig's affidavit.

In our present case, unlike the situation in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the informant was identified and shown to be a responsible operator of a legitimate business and the victim of the crime charged.

In United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972), the court states and holds:

"It is now a well-settled and familiar concept, as enunciated by Aguilar and Spinelli, that supporting affidavits in an application for a search warrant must attest to the credibility of an informant and the reliability of his information. See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We have discovered no case that extends this requirement to the identified by-stander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. . . ."

To like effect, see McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir. 1969); United States v. Mahler, 442 F.2d 1172, 1174 (9th Cir. 1971).

We agree with the trial court's conclusion that probable cause for the issuance of the search warrant by the magistrate has been established.

We now pass to defendant's second contention that the warrant is invalid because it is too broad and in effect authorizes a general search. The search warrant authorized a search of defendant's office for:

"Original cancelled checks issued by Western

...