504 F.2d 849 (9th Cir. 1974), 73-1539, United States v. Watson

• Docket Number: 73-1539.
• Citation: 504 F.2d 849
• Date: 20 March 1974
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Ogle WATSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 849

504 F.2d 849 (9th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Henry Ogle WATSON, Defendant-Appellant.

No. 73-1539.

United States Court of Appeals, Ninth Circuit

March 20, 1974

Rehearing Denied , Certiorari

Granted Feb. 18,1975, See 95 S.Ct. 1117.

Page 850

Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.

Michael T. Kenney, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Eric A. Nobles, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before ELY and GOODWIN, Circuit Judges, and MURRAY, ^[*] District judge.

WILLIAM D. MURRAY, District Judge:

An indictment was filed against the appellant on September 11, 1972, alleging a four count violation of 18 U.S.C. 1708 (stealing from the mails). Count 1 alleged a violation on August 23, 1972; Count 2 alleged a violation on August 17, 1972; Count 3 alleged a violation on August 23, 1972; and Count 4 alleged a violation on May 28, 1971. The appellant was ultimately tried on Counts 1, 2 and 3. Count 4 was dismissed. The jury returned a verdict of guilty as to Counts 1 and 3, and guilty as to Count 2.

On the day of the trial, the district court heard motions to suppress evidence pursuant to Rule 41(c) Federal Rules of Criminal Procedure and a motion to determine the voluntariness of any postarrest statements pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In response to these motions, the government called Frank L. Barbarick, a U.S. Postal Inspector, as a witness. Inspector Barbarick testified that he was contacted on the telephone by one Awad Khoury on August 17, 1972. He knew Khoury as

Page 851

Tony and had previous contacts with him from five to ten times. In the course of these prior contacts, Khoury related information concerning appellant Watson and his associates. This information was found to be reliable by Inspector Barbarick.

In the August 17, 1972, phone call, Khoury advised the Inspector that he, Khoury, was going to receive a Bank of America credit card from appellant Watson. The card was in the name of Syed T. Ahmad. Barbarick told Khoury to bring the credit card to Barbarick's office when he received it from Watson. Later on that day, Khoury brought the credit card into Barbarick's office. Khoury said that he had received this card from appellant and that appellant wanted him to purchase TWA airline tickets. Khoury also showed Inspector Barbarick a slip of paper that gave names and addresses for the airline tickets to be purchased. Inspector Barbarick told Khoury to arrange a meeting with appellant Watson. Khoury advised Barbarick that a meeting was scheduled for August 22, 1972, but this meeting did not take place. A meeting with Watson on August 23 similarly did not take place. Finally, a meeting between Khoury and Watson was set up for noon on the 23rd of August at Ship's Restaurant in Los Angeles. Barbarick testified that he told Khoury to determine at the meeting whether Watson had any additional credit cards in his possession. If Watson did have some additional cards, Khoury was to light a cigarette as a signal to Postal Inspectors inside the restaurant. These inspectors would then activate a signal alerting Inspector Barbarick outside the restaurant. Upon receiving the prearranged signal Barbarick and other inspectors entered the restaurant and placed the defendant under arrest, advising him that he was under arrest for possession of stolen mail. Inspector Barbarick then asked Watson if he could look in his car. Watson said 'Go ahead.' Using the key to the car which Watson had turned over, Barbarick opened the car and searched. Under the floormat on the driver's side he recovered an envelope. Inspector Barbarick's later testimony indicated that the envelope which he discovered was not opened until he returned to his office in downtown Los Angeles. At that time he found that two smaller envelopes were contained inside the larger envelope and that it was these two envelopes which contained the credit cards which are the source of the allegations in Counts 1 and 2. In making the arrest the inspector testified he was relying on the evidence acquired on August 17, 1972, which was six days prior to arrest.

In his initial argument, appellant raises the strictly technical point that a stipulation ¹ which his attorney and the United States Attorney intended to introduce was never affirmatively or competently entered into or accepted by the court and that, consequently there is an absence of proof.

The record reveals that both parties, the court and the jury all were under the impression that the stipulation had been entered in the record. The agreement to stipulate was communicated to the court prior to the empanelling of the jury. The stipulation was read to the

Page 852

jury in the government's opening statement. The defense counsel referred to the stipulation during his cross-examination. The appellant himself made reference to the stipulation. Since all parties concerned were under the impression that the stipulation had been entered in the record, the defendant-appellant cannot be allowed to benefit from a purely technical error, if in fact there was error.

Appellant next contends that (A) the hearing on the motion to suppress failed to establish that the informant's reliability was sufficient to warrant use of his 'tip'; (B) he contends that the failure to obtain an arrest warrant vitiates the arrest and subsequent seizure; and (C) he contends that a consent to search cannot be...