U.S. v. Vanmaanen
| Decision Date | 15 December 1976 |
| Docket Number | No. 76-1450,76-1450 |
| Citation | 547 F.2d 50 |
| Parties | UNITED STATES of America, Appellee, v. Albert Leon VanMAANEN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
P. D. Furlong, Sioux City, Iowa, filed brief for appellant.
Evan L. Hultman, U. S. Atty., and Daniel T. Cutler, Asst. U. S. Atty., Sioux City, Iowa, and Rosemary Sheehan, Legal Intern, filed brief for appellee; Kieth Van Doren, Asst. U. S. Atty., Sioux City, Iowa, filed appearance.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
Albert VanMaanen, and three other defendants, were convicted of conspiracy under 18 U.S.C. § 371, and possession of beef stolen from an interstate shipment under 18 U.S.C. § 659. These convictions 1 were affirmed on appeal. United States v. Verdoorn, 528 F.2d 103 (8th Cir. 1976). Subsequently, VanMaanen and two of the defendants filed a motion for a new trial based on newly discovered evidence, but failed to support this motion with affidavits or other documents alleging new facts. This motion was denied on February 12, 1976. A motion to reconsider that order was made on April 13, 1976, and supported by an in camera submission of the deposition of a newly discovered police informant. After that document was made available to government attorneys, the motion was denied. VanMaanen now appeals from the denial of his motion for reconsideration.
VanMaanen raises two issues on appeal: first, that a new trial should have been granted because of newly discovered evidence relating to the legal sufficiency of the Sioux City Police Officers' probable cause arrest of one of VanMaanen's codefendants and the search and seizure incident thereto; and second, that government misconduct throughout the investigation and trial of his case deprived him of due process of law and requires the granting of his new trial motion. We conclude that neither of appellant's contentions has merit and affirm the decision of the District Court.
A motion for new trial on the ground of newly discovered evidence must fail unless each of five conditions is satisfied: (1) the evidence must be discovered since trial; (2) facts must be alleged showing that the evidence would not have been discovered earlier had the movant been more diligent; (3) the evidence must not be merely cumulative or impeaching; (4) it must be material; and (5) it must be of such a nature that on retrial it would probably produce an acquittal. Fed.R.Crim.P. 33; United States v. Pope, 415 F.2d 685 (8th Cir.), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1969).
The crux of VanMaanen's new trial motion based on newly discovered evidence can be summarized as follows: An informant for the Sioux City Police Department and the FBI offered to purchase the stolen beef and arranged to have it picked up in a "straight truck" that he would provide. In oral deposition taken after trial, he testified that a false stolen truck report was prepared to provide sufficient legal cause for the local police to stop and search the "straight truck." VanMaanen argues that without this falsified report, the local police lacked probable cause to stop the "straight truck." Since the search revealed a portion of the stolen meat, if it were found to be unauthorized, much of the evidence incriminating VanMaanen would be excluded. On retrial, an acquittal would probably result.
VanMaanen's argument ignores the evidence presented at trial, independent of the stolen vehicle report, which demonstrated probable cause to stop and search the "straight truck." Trial testimony, uncontradicted by VanMaanen's evidence, established that law enforcement officers were aware that a shipment of beef quarters had been stolen, that arrangements had been made to purchase the beef, and that a particular "straight truck" would be used to transport the beef. The VanMaanen farm was placed under surveillance on the night of January 28, 1975. One of the local police officers identified a "straight truck" in the backyard of the VanMaanen farm, and observed four individuals loading quarters of beef into this truck. With this evidence, the officers had probable cause to arrest the driver of the vehicle and search its interior. The newly discovered evidence, thus, would not have the effect VanMaanen contemplates as it is improbable that a reversal would result on retrial. Therefore, his new trial motion under Federal Rule of Criminal Procedure 33 must fail.
In addition, VanMaanen argues that his conviction should be dismissed and/or a new trial granted because of alleged misconduct of the Sioux City Police Department and the FBI during the investigation and trial of his case. The misconduct to which VanMaanen apparently refers is: (1) the government's use of an informant to pose as a purchaser...
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