U.S. v. Steeves

• Decision Date: 06 November 1975
• Docket Number: No. 75-1253,75-1253
• Citation: 525 F.2d 33
• Parties: UNITED STATES of America, Appellee, v. Henry Albert STEEVES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 33

525 F.2d 33

UNITED STATES of America, Appellee, v. Henry Albert STEEVES, Appellant.

No. 75-1253.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1975.

Decided Nov. 6, 1975.

John Clifford, Minneapolis, Minn., for appellant.

Thorwald H. Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and VAN PELT, Senior District Judge. ^*

HENLEY, Circuit Judge.

Following a jury trial, Henry Albert Steeves, defendant below, was found guilty in the United States District Court for the District of Minnesota of the unlawful "receipt and possession" of two rifles in violation of 18 U.S.C. App. § 1202(a)(1). Defendant was sentenced to imprisonment for two years on Count 1 of the indictment and to imprisonment for one year on Count 2 with the sentences to be served consecutively. He appeals.

Insofar as here pertinent, the statute under which the defendant was charged provides that any person who has been convicted of a felony in any state or federal court and who "receives, possesses, or transports in (interstate) commerce or affecting (interstate) commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

Each count of the indictment charged an offense allegedly committed in the City of Fridley, Minnesota on or about September 17, 1974. The first count charged that on the date just mentioned the defendant, having been convicted of a felony, received and possessed in commerce or affecting commerce a certain rifle of Belgian manufacture. The second count was identical to the first except that it described a Springfield 30.06 caliber rifle.

Both rifles were seized in the defendant's home on September 17, 1974 by FBI agents while executing a search warrant that had been issued by a United States Magistrate on that day in connection with an investigation of the robbery of a Minnesota bank that had been committed on June 22, 1974, nearly three months before the warrant was issued. The rifles described in the indictment were not mentioned in the search warrant, and the agents found none of the items of personal property that were set forth in the warrant.

Prior to the trial of the case the defendant filed a motion to suppress use of the rifles as evidence on the ground that the affidavit filed with the Magistrate did not justify a finding of probable cause and on the further ground that the affidavit misrepresented a material fact. After hearing, the district court denied the motion.

In the course of the trial the defendant contended that he was guilty of one offense at most, and that the two counts of the indictment should be merged. The district court rejected that contention.

Defendant argues several points for reversal. We will discuss those points, and will also discuss another point not raised either here or in the district court but which we deem to be dispositive of defendant's conviction on Count 2.

We take up first the contention that the trial court erred in permitting the jury to learn that the defendant had been convicted of a felony since counsel had stipulated as to that fact. We find the contention to be without merit. It was incumbent on the government to establish by stipulation or evidence that the defendant had been convicted of a felony, and it was incumbent on the district court to instruct the jury as to the essential elements of the offenses charged, including the felony element. Apparently, at some stage of the taking of testimony or prior to the taking of it the jury was told that counsel had stipulated that defendant had a felony record; and the transcript reflects that in the course of his instructions to the jury the trial judge stated without any comment, elaboration or emphasis that a prior felony conviction was an essential element of the offense charged in the respective counts, that the parties had stipulated on the subject, and that the jury might consider that the element in question had been established.

A contention similar to that of the defendant was considered and rejected by this court in United States v. Smith, 520 F.2d 544 (8th Cir. 1975). We have carefully considered the trial transcript in this case and are satisfied that the brief and passing references to defendant's prior conviction did not substantially prejudice him, and that they did not constitute error. United States v. Cochran, 475 F.2d 1080 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973), and Courtney v. Sarver,440 F.2d 1197 (8th Cir. 1971), cited by defendant, are clearly not in point.

The defendant contends that the district court erred in overruling his motion to suppress evidence in which motion the defendant attacked the validity of the search warrant issued by the federal Magistrate eighty-seven days after the bank robbery. The affidavit for the warrant was executed before federal Magistrate J. Earl Cudd on September 17, 1974 by Special Agent Robert D. Harvey of the Federal Bureau of Investigation. A copy of the affidavit is attached to the defendant's principal brief as an appendix. The affidavit recited essentially the following facts:

That the affiant on reliable information had reason to believe that there were concealed at the defendant's home certain items of property, namely, black trousers, a black waist-length jacket, a black ski mask, a .357 magnum handgun and silencer, a money bag from Summit State Bank of Bloomington, Minnesota, and proceeds of the robbery which took place on June 22, 1974.

That the bank was robbed on June 22 by a single gunman who was a white male armed with a magnum type pistol which had a silencer attached to it; that the robber was wearing a black ski mask, black trousers with narrow white stripes, gloves and a black waist-length jacket with a zipper front. That the robber menaced the loan officer of the bank, John Price, Jr., and a customer, Dean Thom, and directed the two men to go into the bank, and then ordered everyone to lie down; that the robber then obtained approximately $16,000 of the bank's money.

That the robber called on Wendy Tuttle, a teller in the bank, to put the money in a brown paper bag, which she did; that the money included heavy coin, and the brown paper bag broke so that the coin fell to the floor; the robber was then given a cloth money bag belonging to the bank, and the loot was put into that bag and carried away. The paper bag was recovered by agents of the Bureau.

That at some stage the robber discharged his weapon at a customer, and then reloaded the gun, dropping a cartridge to the floor or ground in the process; that the cartridge was recovered by the FBI and found to be of .357 magnum caliber.

That the robber escaped by taking Mr. Thom hostage and driving away in Thom's car which was abandoned some two blocks from the bank; that when the robber left the bank he removed his mask; he was observed by a bystander, Brooks, to be a white male; Miss Tuttle and Mr. Price described the robber as being from 5'8 to 5'10 tall, weighing 160 to 180 pounds and from 35 to 38 years of age; they observed that the robber wore no glasses.

That the FBI laboratory determined that "fingerprints" found on the brown paper bag were those of the defendant; that the defendant fitted the description supplied by the bank employees and does not wear glasses. That an acquaintance of the defendant had advised that the defendant has an affinity for wearing black. And that the affiant knew from personal observation that the defendant lived at the address mentioned in the affidavit.

The warrant was duly issued and authorized a search for the .357 caliber pistol, the ski mask, dark clothing, the bank's money bag and for any of the bank's money that might be found upon the premises to be searched. None of those items was found, and the defendant was never charged with the bank robbery. Instead, he was charged with violating § 1202(a)(1) on the basis of the two rifles that were found in his home.

It is contended here that there was such a lapse of time between the robbery and the date upon which Special Agent Harvey applied for and received the search warrant that as of the date of the warrant there was no probable cause to believe that any of the items in question were still in the defendant's home if they had ever been there.

The particular contention raised here was not raised in terms before the district court, and that court made no specific finding on the question of whether the information set out in the affidavit had become stale. The position taken by the defendant in the district court was simply that the affidavit was insufficient substantively to justify a finding of probable cause to believe that the defendant had robbed the bank or that the items mentioned in the warrant were or had ever been in his home. The district court rejected that contention and the contention that the affidavit for the warrant contained a misrepresentation of a material fact. Those particular rulings appear not to be challenged here, and we certainly cannot say that they were erroneous. ¹

The defendant relies here solely on his claim of staleness. The government denies that the claim has any merit, and also contends, at least to some extent, that the question of staleness cannot be raised for the first time on appeal. Answering the latter contention, counsel for the defendant argues that the question of staleness was inextricably interwoven with the question of whether or not there was probable cause for the issuance of the warrant and, therefore, was in effect before the Magistrate when he issued the warrant and before the district court when it considered the motion to suppress. Alternatively, counsel contends that to admit evidence obtained by means of a stale warrant is "plain error" correctible by an appellate court under Fed.R.Crim.P. 52(b), 18 U.S.C., even if not raised in the trial court.

Whether a...