U.S. v. Horton, 74-1178
| Citation | 503 F.2d 810 |
| Decision Date | 11 October 1974 |
| Docket Number | No. 74-1178,74-1178 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Willie Mose HORTON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Arnette R. Hubbard, Chicago, Ill., for defendant-appellant.
James R. Thompson, U.S. Atty., Gary L. Starkman and Walter Jones, Jr., Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
After a bench trial, defendant was found guilty on Count I of a 2-count indictment charging him with knowingly receiving firearms in commerce as a convicted felon in violation of 18 U.S.C.App. 1202(a)(1). 1 Count I alleged that defendant had been previously convicted of felonies in the Northern District of Illinois and the Western District of Michigan and subsequently received in commerce a Charles Daly shotgun with the serial number 1888. A four-year probation sentence was imposed by the court below.
The evidence showed that on November 8, 1971, Internal Revenue Service Special Agents Di Pasquale and Johnson were admitted into defendant's apartment upon presenting their identification cards. Di Pasquale told defendant that it was the agents' duty to investigate criminal tax fraud. Di Pasquale read the following warning to defendant:
'As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue Laws and related offenses. 'In connection with my investigation of your tax liability, I would like to ask you some questions. However, first I advise you under the Fifth Amendment of the Constitution of the United States, I cannot compel you to answer any question or submit any information if such answers or information might tend to incriminate you in any way. 'I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceedings which may be undertaken. 'I advise you further that you may, if you wish, seek the assistance of an attorney before responding.'
Defendant denied there was any tax fraud and then identified his 1964-1970 income tax returns. He said his source of income was from gambling, including cards, policy and numbers.
Di Pasquale then asked defendant what his hobbies were, and he replied that he hunted birds in the Cedar Rapids, Iowa, area with a 20-gauge shotgun. Di Pasquale asked to examine the gun, and defendant produced a 20-gauge Charles Daly shotgun with the serial number 1880 or 788. 2
After Di Pasquale handed the shotgun back to defendant, he said he kept as many as five weapons at once. Di Pasquale asked defendant about his involvement in narcotics, but he declined to discuss that.
Thereafter, Di Pasquale informed an Assistant United States Attorney what happened at the interview and was advised that 'there was sufficient amount of evidence for a search warrant.'
On November 9, 1971, a United States Commissioner issued an arrest warrent and a search warrant with respect to defendant and his premises. Di Pasquale then accompanied three other agents to defendant's home and told him that he was under arrest for a federal firearms violation and that a warrant had been issued. One of the agents told defendant of his constitutional rights, and then the agents started to search the apartment. Di Pasquale found the Charles Daly shotgun in a bedroom between two dressers and seized the weapon.
Defendant argues that the search warrant was invalid on two grounds and that, therefore, the district court erred in denying his motion to suppress the shotgun as evidence. He first argues that the affidavit accompanying the search warrant was deficient. Secondly, he contends that the information that led to the issuance of the search warrant was unconstitutionally obtained because the warnings given by Special Agent Di Pasquale at the November 8 visit during which defendant produced his shotgun were inadequate.
The affidavit in support of the search warrant outlined the November 8 visit to defendant's apartment and described the shotgun in question. It failed to mention that defendant had previously been convicted of a felony, so that the possession of the shotgun would be in violation of 18 U.S.C. App. 1202(a)(1). However, at the same time the affidavit for the search warrant was presented to the United States Commissioner, Di Pasquale presented a sworn complaint to the Commissioner which showed that defendant had been convicted of felonies in the Northern District of Illinois on February 15 and April 3, 1957, resulting in 5-year and 10-year sentences respectively upon guilty pleas. The Commissioner filed an affidavit that when, as here, a complaint, arrest warrant and search warrant with supporting affidavits are presented to him at the same time by an affiant, the Commissioner 'would first swear the affiant and then read all the documents together.' In addition, Di Pasquale filed an affidavit which verified that on the occasion in question the Commissioner followed his normal practice of reading all the documents before issuing the warrants. We agree with the district judges who passed on defendant's first and second suppression motions that the Commissioner could properly consider the affidavit and complaint together, that he did so, and that there was, therefore, probable cause to issue the search warrant. United States v. Bozza, 365 F.2d 206 (2d Cir. 1966); United States v. Nolan, 413 F.2d 850, 853 (6th Cir. 1969). We are reinforced in our conclusion because defendant did not attempt to cross-examine either the Commissioner or Di Pasquale regarding the affidavits, nor does he attack their contents. Our decision in United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964), is not to the contrary, for it did not involve the propriety of a magistrate's contemporaneous consideration of information in sworn documents other than the affidavit for the search warrant before issuing the warrant.
Defendant next argues that his motion to suppress should have been granted because Di Pasquale was 'acting as a general criminal investigative agent' of the Government and yet only warned defendant that one of his functions was to investigate possible criminal violations 'of the Internal Revenue Laws and related offenses,' and that he was planning to ask defendant some questions in connection with the investigation of his 'tax liability.' In his view, therefore, the search warrant must fall because the information in the supporting affidavit relating to...
To continue reading
Request your trial
-
U.S. v. Bell
...of unlawfully receiving firearms, 508 F.2d at 1406, 1407, so that the comment about possession is dictum. Similarly, United States v. Horton, 503 F.2d 810 (7th Cir. 1974), where there was previous interstate commerce movement of a firearm, involved a conviction for receipt only and not poss......
-
United States v. Castellana
...v. Snell, 353 F.Supp. 280, 284 (D.Md.1973). See United States v. Powell, 513 F.2d 1249, 1251 (8th Cir. 1975); United States v. Horton, 503 F.2d 810, 813 (7th Cir. 1974); United States v. Wiley, 478 F.2d 415, 417-18 (8th Cir. 1973), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1......
-
U.S. v. Sutton
...have consistently held that a defendant need only be shown to have knowingly received or possessed the firearm. United States v. Horton, 503 F.2d 810, 813 (7th Cir. 1974); United States v. Wiley, 478 F.2d 415, 417-18 (8th Cir. 1973); United States v. Crow, 439 F.2d 1193, 1195 (9th Cir. 1971......
-
United States v. Sanza
...of the cases approving and disapproving of conditional pleas, have been placed in the court file in this case. 25 United States v. Horton, 503 F.2d 810, 813 (7th Cir. 1974); United States v. Harvill, 501 F.2d 295, 297 n.3 (9th Cir. 1974); United States v. Mostad, 485 F.2d 199, 200 (8th Cir.......