U.S. v. Akin

• Decision Date: 27 September 1977
• Docket Number: Nos. 76-2022 and 76-2023,s. 76-2022 and 76-2023
• Citation: 562 F.2d 459
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Ennis M. AKIN, Beverly Lloyd Hart, a/k/a James E. Harris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 459

562 F.2d 459

UNITED STATES of America, Plaintiff-Appellee. v. Ennis M. AKIN, Beverly Lloyd Hart, a/k/a James E. Harris Defendants-Appellants.

Nos. 76-2022 and 76-2023.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1977.

Decided Sept. 26, 1977.

As Amended Sept. 27, 1977.

Frederic L. Link, San Diego, Cal., Bernard G. Winsberg, David L. Zimmerman, Los Angeles, Cal., for defendants-appellants.

James B. Young, U. S. Atty., Bradley L. Williams, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, WOOD, Circuit Judge, and MARKEY, Chief Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Bearer bonds and municipal bonds with a face value of $1,491,000 were stolen from MuniciCorp of California on January 27, 1976. Defendants-appellants Ennis Monroe Akin and Beverly Lloyd Hart (hereinafter collectively referred to as defendants) were subsequently found guilty after a trial by jury of violating 18 U.S.C. § 2315. ¹ Defendant Hart was found not guilty of the second count of the indictment which alleged that he had transported stolen securities in interstate commerce. Defendants on appeal assert the following: 1) evidence gained from a warrantless search of Akin's hotel room should be suppressed; 2) the district court conducted an insufficient voir dire when during the course of trial a newspaper article containing prejudicial information was found in the jury room; 3) the prosecutor engaged in prejudicial misconduct; and 4) the record contains insufficient evidence to support the conviction of defendant Hart.

We find for the following reasons that the convictions of the defendants should be affirmed.

The facts are briefly as follows:

On May 22, 1976, Dean G. Naum, a special agent for the Federal Bureau of Investigation who was posing as Nick Carbone, was introduced to Joseph Kucala. Kucala was using the name Lenny McNamara. This meeting took place at the O'Hare Hilton Coffee Shop in Chicago, Illinois. During this meeting, Kucala indicated that he had municipal bonds and bearer bonds "taken during a score in California." Naum stated that before he could purchase the stolen bonds, he would have to look at the bonds and then check with the people he was working for. Naum stated that he was representing a Latin-American businessman who was interested in purchasing stolen securities.

At 3:30 p. m. that afternoon, Kucala produced xerox copies of the bonds for Naum's examination. After examining the copies of the bonds, Naum offered to purchase the bonds for $170,000. Kucala tried several times unsuccessfully to telephone a contact in California to check on the price.

At 9:20 that evening, Kucala telephoned Naum in his hotel room and stated that his people would accept $200,000 for the bonds. A side agreement was arranged whereby Naum was to tell his people that the bonds would cost $230,000 while he and Kucala split the $30,000 difference. Naum and Kucala tentatively agreed that the transaction could be consummated on the following Tuesday in Indianapolis, Indiana.

At 1:30 or 1:45 a. m. on the morning of May 25, 1976, Kucala and Naum met in the lobby of the Indianapolis Airport Hilton Hotel in Indianapolis, Indiana. Kucala and Naum then went to a coffee shop at the Indianapolis airport to discuss the sale of bonds, Naum stated that the transaction was to be completed in the conference room of a bank. Kucala replied that he would have to check with his people to determine if this was acceptable. Naum and Kucala agreed to meet at 9:00 a. m. in the lobby of the Indianapolis Airport Hilton Hotel.

Kucala testified that at 8:00 a. m. on the morning of May 25, he met with defendants Fusco and Akin in Room 242 of the Indianapolis Airport Hilton Hotel. According to Kucala, both Akin and Fusco expressed reluctance about having the transaction take place in a bank. Kucala also stated that he did not see the bonds while in room 242. He only saw a brown suitcase. According to Kucala, Akin referred to the brown suitcase and stated that only one-half of the bonds were there and that he would have to get the remainder of the bonds. Akin then made a telephone call and instructed someone to "come on over." Moments later there was a knock on the door, a suitcase was handed in to Akin and the door closed. Kucala did not see who handed the suitcase to Akin.

Shortly before 9:00 a. m. on May 25, Naum went to the lobby of the Indianapolis Airport Hilton Hotel and waited for Kucala. Naum observed an individual, who he identified at trial as defendant Hart, sitting diagonally across from him. In addition, a second individual who Naum identified as defendant Akin came up to defendant Hart and briefly spoke with him. Kucala entered the lobby several minutes later.

Special Agent Walton, who was posing as a Latin-American businessman for whom Naum was working, and Special Agent Silva, who was acting as Walton's bodyguard, were introduced to Kucala. Naum, Kucala, Walton and Silva then drove to the American Fletcher Bank, Nora Branch. During the drive to the bank, Kucala stated that he would first examine the money at the bank and, if all was in order, return to the hotel for the bonds and then come back to the bank to complete the transaction.

Upon arrival at the bank, Kucala checked the money and then returned to the Indianapolis Airport Hilton Hotel for the bonds, Kucala picked up a brown suitcase at the front desk of the hotel which contained the bonds. As Kucala was about to leave for the bank, he realized that he needed something to put the money in. At that moment, he saw Akin and Fusco walking to the hotel. After explaining his need, Akin gave Kucala his (Akin's) attache case. While still in front of the hotel, Kucala saw Akin and Fusco with a third individual whom he was unable to identify at trial. Kucala returned to the bank and was arrested by agents of the FBI.

After Kucala's arrest, FBI agents searched room 242 at the Indianapolis Airport Hilton Hotel and found the fingerprints of defendants Hart, Fusco, and Akin.

1. Motion to Suppress.

Defendants moved prior to trial to suppress the evidence discovered in the warrantless search of room 242 after the arrest of Kucala. A brief description of the events leading up to the warrantless search of room 242 follows.

Shortly before noon on May 25, 1976, and after Kucala's arrest, FBI agents learned from the desk attendant at the Indianapolis Airport Hilton that defendant Akin, the occupant of room 242, had not yet checked out of the hotel. Special Agents Blackketter, Keenan, Bulmahn, and Boyer then proceeded to room 242 in an effort to find defendant Akin for questioning. The agents found the door to room 242 wide open. Agents Bulmahn and Boyer entered the room looking for a cleaning maid and left when they did not find a maid in the room. Agent Bulmahn stated that although he was in the room for only a brief time, he recalled seeing a number of toilet articles in the bathroom. Agent Blackketter looked in but did not enter the room and then proceeded down the hallway where he saw a cleaning maid's cart. The maid informed Blackketter that she had not yet cleaned room 242 and did not know whether the occupant of that room had checked out.

Thereafter, Blackketter and Keenan went down to the hotel front desk while Bulmahn and Boyer stayed in the hallway outside of room 242. Blackketter and Keenan asked to speak to the person in charge of the hotel and were referred to Susan Kay Cooper, secretary to the General Manager of the hotel. Ms. Cooper indicated that she had authority to act in the absence of the General Manager and brought out the registration card for room 242. The registration card indicated that defendant Akin had rented room 242 for one night and that he had checked in on the evening of May 24. The registration card also reflected that defendant Akin had not yet paid for either the room or for charges from room service. ² Ms. Cooper did not find any indication that defendant Akin planned to stay in the hotel for an additional day. Neither was there evidence that defendant Akin had permission to leave the hotel and pay at a later date. In response When room 242 was not paid for by 1:00 p. m., Ms. Cooper at 1:10 p. m. went up to room 242 with the FBI agents. Ms. Cooper found the door to room 242 open, stopped in the doorway and saw no signs of occupancy in the room. Ms. Cooper stated that the rooms are designed so that luggage or clothing hanging in the closet can be seen from the doorway. After concluding that the room was not occupied, Ms. Cooper gave the agents permission to enter the room. The agents found various toilet articles in the bathroom as well as glasses, cups, dishes and discarded papers. Several of these articles as well as latent fingerprints found in room 242 were introduced in evidence.

to the agents' request to see the room, Ms. Cooper stated that they could enter the room if it was not paid for by 1:00 p. m. Although an individual would not be billed for an additional day until after 6:00 p. m., Ms. Cooper stated at trial that 1:00 p. m. was the hotel check-out time. According to Ms. Cooper, the 1:00 p. m. check-out time enables the maids to make the hotel rooms ready for the new occupants. Ms. Cooper further testified that the maids have pass keys and are instructed to let the housekeeper know whether a room is vacant. Ms. Cooper also stated that although people who rent a room for one day occasionally stay for a longer period of time, they usually let the hotel know in advance of their change in plans.

The district judge denied the motion to suppress finding that the evidence demonstrated that Akin had abandoned the hotel room. The lower court first ruled that room 242 was abandoned at the time of the initial entry shortly before noon when the agents found the door wide open and there was neither luggage in the room nor suits hanging in the closet. In addition, the district...