U.S. v. Rollins, 1082

Citation522 F.2d 160
Decision Date15 September 1975
Docket NumberD,No. 1082,1082
PartiesUNITED STATES of America, Appellee, v. James Henry ROLLINS, a/k/a "Lee Evans", Appellant. ocket 74-2610.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

E. Thomas Boyle, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for appellant.

Richard Wile, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., S. D. N. Y., on the brief, Lawrence S. Feld, Asst. U. S. Atty., of counsel), for appellee.

Before CLARK, Associate Justice, * and HAYS and MANSFIELD, Circuit Judges.

HAYS, Circuit Judge:

James Henry Rollins appeals from a judgment of conviction on two counts of mail fraud in violation of 18 U.S.C. § 1341 1 which was entered in the United States District Court for the Southern District of New York after a jury trial. Rollins' principal claims on appeal are that the district court erroneously admitted into evidence (1) two passports seized pursuant to a search warrant by the Oakland, California Police Department in 1971 and (2) certain items taken from Rollins' person in connection with his 1974 arrest on the mail fraud charges. We affirm the judgment of the district court.

I.

On August 10, 1973, Rollins, claiming to be "Robert Cody," opened a checking account in the name of "Kodi's Domestic & International Enterprises" at the Avenue B branch of Manufacturers Hanover Trust Company in New York City. In late August or early September, 1974, Joseph Portale, the officer-in-charge of the Avenue B branch, received two mail transfer money orders in air mail envelopes bearing Nairobi, Kenya postmarks. The two mail transfer forms, which were soon discovered to have been forged, purported to be directions from the Kenyatta Avenue branch of the Standard Bank, Ltd., in Nairobi, Kenya, to the Avenue B branch of Manufacturers Hanover instructing the latter to deposit $301,097.48 and $352,165.03, respectively, into the account of "Kodi's Domestic & International Enterprises." The two transfer forms listed as drawer the "Wheat Marketing Board," an entity for which there was no listing in the Kenya Post Office Directory.

Portale referred the mail transfer forms to the International Department of Manufacturers Hanover's main office where they were handled by Joseph Meehan, Assistant Vice-President in charge of special services and security for the International Department. Upon receiving the first mail transfer form on September 3, 1974, Meehan verified appellant's account at the Avenue B branch and called the telephone number he had obtained from the bank's account records. He spoke with a person identifying himself as Robert Cody who confirmed that he was expecting a transfer of a substantial sum arising from wheat transactions in Kenya.

Telephone company records indicate that on September 4, 1974, a telephone call was made to Kenya from the number listed to Cody on the bank records.

On September 4, 5, and 6, 1974, Cody telephoned Meehan to inquire whether the funds were yet available. When the September 6 phone call from Cody was received, Meehan was meeting with Postal Inspector John Slavinski. Slavinski listened to the call and instructed Meehan to tell appellant that the money would be available the following Monday morning, September 9, at the Avenue B branch. At the Avenue B branch on September 9, Roseanne Santaromita, the Operations Supervisor who had opened the "Kodi's Domestic & International Enterprises" checking account, asked appellant if he was Robert Cody and if he was there to pick up a substantial sum of money which had been forwarded from Nairobi, Kenya, in connection with the sale of wheat. Upon appellant's affirmative response to these inquiries, Agent Slavinski, who was seated at a nearby desk listening, placed appellant under arrest.

When arrested, Rollins had in his possession a slip of paper containing Meehan's name and telephone number at the bank and a personal address book containing a listing for a "Mr. Zini, P.O. Box 48976, N.K. 556101." At arraignment, appellant asked Agent Slavinski to return the address book, and, in Slavinski's presence, instructed his wife to contact "Zini" and advise him of what had happened. However, the Post Office Directory for Kenya, 2 introduced at trial in conjunction with the testimony of Giles Noronha, an officer of the Kenyatta Avenue branch of Standard Bank, Ltd., disclosed that P.O. Box 48976, the number which appeared in appellant's address book opposite the name "Mr. Zini," was rented by Walter Donald Obado Ooko, a former employee of the Kenyatta Avenue branch who had been discharged by that bank in 1973.

In order to establish further that Rollins had actively participated with Obado Ooko in a scheme to defraud the bank, the Government sought to introduce into evidence two passports bearing Rollins' photograph. One of the passports was issued to James Henry Rollins; the second was issued to "Lynwood Joseph Evans" and contained travel stamps indicating that its bearer had been in Kenya during July and August, 1971. 3 The two passports in question had been seized from appellant's apartment in Oakland, California in 1971 during the execution of a search warrant issued in connection with an unrelated matter, a California shooting. Prior to trial, appellant moved to suppress the passports on the ground that the affidavit in support of the 1971 search warrant had not established probable cause for the issuance of the warrant. Appellant's motion was denied.

Appellant further moved to suppress all evidence flowing from his arrest on September 9, 1974, claiming that the arrest was invalid because of the failure of the Government to obtain an arrest warrant before his seizure. This motion was similarly denied. The case went to trial and appellant was found guilty on two counts of mail fraud.

II.

We consider first Rollins' claim that the admission into evidence of the two passports seized by the Oakland, California Police Department in 1971 pursuant to a search warrant was error. In support of this claim, appellant argues that the affidavit in support of the search warrant did not establish probable cause for the issuance of the warrant, that the seizure of the passports exceeded the scope of the warrant, and that the Government did not produce signed copies of the warrant and supporting affidavit. We find none of these arguments persuasive.

Rollins contends first that the California warrant, obtained on the basis of the supporting affidavit of Police Sergeant Conrad Blevins, which is reprinted in the margin, 4 was issued without probable cause. Specifically, Rollins asserts that the standards enunciated in Aguilar v. Texas, 378 U.S. 108, 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), for determining the sufficiency of a warrant application which relies upon an informant's statement are not met here. We do not agree.

When an affiant seeking a search warrant relies on hearsay, he must, pursuant to Aguilar and Spinelli, supra, set forth in the warrant application "some of the underlying circumstances," from which the informant drew his conclusions concerning the suspect's criminal activities and disclose some of the reasons which gave assurance of the informant's reliability. The requirement that the basis of the informant's belief be shown is clearly met here by the statement of Williams, the informant, that his information was based upon his personal observation of "Evans" running from the office from which the shots had issued towards an apartment in which he knew "Evans" to live. Both the Supreme Court, Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584, and this court, United States v. Viggiano, 433 F.2d 716, 719 (2d Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 934, 28 L.Ed.2d 219 (1971), have recognized personal observation as a reliable basis for an informant's report.

Appellant argues that the affidavit, in that it does not contain a recital that Williams was known to the affiant as a reliable informant, fails to meet the second requirement of Aguilar that there be some showing of the trustworthiness of the informant himself. This argument is without merit. We have previously recognized that the language in Aguilar and Spinelli was addressed to the problem of professional informers, United States v. Burke, 517 F.2d 377, 380 (2d Cir., 1975). In this case, Williams was not an anonymous paid informer, but an identified bystander with no apparent motive to falsify. The report of such a person has a "peculiar likelihood of accuracy" and is

"Toto coelo removed from a 'meager report' that 'could easily have been obtained from an offhand remark heard at a neighborhood bar', as to which prior history of providing accurate information is required, Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969)."

United States v. Miley, 513 F.2d 1191, 1204 (2d Cir. 1975). Moreover, the imposition of a requirement of proof of prior reliability with respect to informants such as Williams,

"would mean that, despite the 1972 amendment to F.R.Crim.P. 41(c) to the effect that '(t)he finding of probable cause may be based upon hearsay evidence in whole or in part,' it would generally be impossible to use hearsay statements of victims or witnesses since ordinarily they would not be previously known to the police."

United States v. Burke, supra, at 380. Specific allegations of reliability or past reliable contact are not required when the informant in question was an eyewitness to the crime. United States v. Burke, supra, at 380; Cundiff v. United States, 501 F.2d 188, 189-90 (8th Cir. 1974); United States v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972); McCreary v. Sigler, 406...

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