567 F.2d 777 (8th Cir. 1977), 77-1348, United States v. Lyon

Docket Nº:77-1348 and 77-1489.
Citation:567 F.2d 777
Party Name:UNITED STATES of America, Appellee, v. Verne Allen LYON, Appellant.
Case Date:December 09, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 777

567 F.2d 777 (8th Cir. 1977)

UNITED STATES of America, Appellee,

v.

Verne Allen LYON, Appellant.

Nos. 77-1348 and 77-1489.

United States Court of Appeals, Eighth Circuit

December 9, 1977

Submitted Sept. 12, 1977.

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[Copyrighted Material Omitted]

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Leonard J. Frankel, Wolff, Frankel, McConnell & Passanante, Clayton, Mo. (argued), and Richard S. McConnell, Jr., Clayton, Mo., on brief, for appellant.

Frederick R. Buckles, Asst. U. S. Atty., St. Louis, Mo. (argued), and Barry A. Short (former U. S. Atty.), St. Louis, Mo., on brief, for appellee.

Before STEPHENSON and WEBSTER, Circuit Judges, and MARKEY, [*] Chief Judge.

MARKEY, Chief Judge.

Lyon appeals from two convictions. In No. 77-1348, a jury found him guilty of "willfully placing * * * a dynamite bomb * * * in and upon the terminal and depot of the St. Louis Municipal Airport, * * * with intent to * * * make such terminal and depot unusable" in violation of 18 U.S.C. § 32. 1 In No. 77-1489, his conviction was for "having been previously arrested * * * and admitted to bail * * * willfully did fail to appear as required" in violation of 18 U.S.C. § 3150. 2 We reverse the conviction and remand for new trial in 77-1348. We affirm the conviction in 77-1489.

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The Facts

At approximately 7:30 p. m., December 17, 1966, a dynamite bomb exploded in the St. Louis Municipal Airport terminal, damaging the terminal but injuring no one.

The unexploded bomb was discovered and reported to an airport security officer, who evacuated the terminal and notified St. Louis County Police and Fire Departments. A group of county police officers, led by Major F. J. Vasel, responded. Major Vasel inspected the bomb, comprised of a wind-up alarm clock, two sticks of dynamite, caps and wires, all arranged in a shoe box. As Vasel turned and walked away, the bomb exploded, knocking him to the floor.

In the late evening of December 9th, a St. Louis police officer told Vasel that one Fridley might have some information. Vasel and Detective Mulitsch interviewed Fridley that evening and learned that Fridley and other employees of McDonnell Aircraft Corporation were suspicious of a co-worker. Fridley gave Vasel the names of the other suspecting employees, one of whom was Bryon Rall. Vasel went directly to Rall's home, where Rall said that, prior to the bombing, he had overheard a telephone conversation of his fellow-employee Lyon in which a reference to purchase of dynamite was made.

Vasel and Mulitsch then interviewed Emil Eisenreich, also an employee of McDonnell, who told them that on Saturday, December 17th, the day of the bombing, Lyon had asked him if he knew anyone who could solder some wires to two flashlight batteries. Eisenreich directed Lyon to a maintenance man and later observed Lyon with the batteries and wires soldered.

Vasel and Mulitsch next went to the apartment of Martha Fay Van Diver. She said that she and Lyon regularly rode to work together and that on Thursday or Friday prior to the bombing Lyon had asked her for a shoe box. On Sunday, December 18th, the day following the bombing, Lyon came to Miss Van Diver's apartment to wrap Christmas presents and when asked whether he still needed a shoe box, Lyon replied that he did not; that he had gotten a shoe box from his landlady.

At 9:00 a. m. on December 20th, Vasel and Mulitsch went to Lyon's address and met Lyon's landlady, Mollie Lorts, who showed them the second floor room she rented to Lyon. Other officers, including a Detective Crews, joined Vasel and Mulitsch at the rooming house. Mrs. Lorts confirmed that she had given Lyon a shoe box and gave the officers an identical box. The officers proceeded to Lyon's room and looked in. There was no door only a curtain hanging in the doorway. The officers observed, through the doorway, a bundle of multi-colored wire on a dresser. Vasel directed Mulitsch and Crews to go to the St. Louis Courthouse and obtain a search warrant.

Upon affidavit and application of Crews, a search warrant was issued. Crews and Mulitsch then met Vasel and F.B.I. Agent Clark Smith at McDonnell's plant where Lyon was arrested. Lyon was given Miranda warnings and, together with the officers, returned to his rooming house, where the search warrant was executed.

Lyon advised the officers that there was dynamite in a suitcase and blasting caps in a dresser drawer. The officers found a small cardboard box containing seven sticks of dynamite in the suitcase and a box containing four blasting caps in the dresser. The dynamite, the caps, the wire earlier observed, the suitcase, two newspapers, and a receipt from a hardware store in Troy, Missouri, showing a sale of ten sticks of dynamite and five blasting caps, were seized.

Lyon was indicted by a federal grand jury for violation of 18 U.S.C. § 32 and trial was set for October 16, 1967. Lyon having failed to appear, bond was forfeited and a bench warrant issued.

Testimony indicated that Lyon was deported from Peru on February 3, 1977. In any event, he was on that day placed aboard an airliner, alongside a Deputy U.S. Marshal. When the plane arrived in Miami, the bench warrant was executed by the Marshal. On March 31, 1977, a federal

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grand jury returned an indictment against Lyon charging him with failure to appear for the October 16, 1967, trial.

Trial on the bombing charge commenced on April 11, 1977, and resulted in a jury verdict of guilty two days later. On April 28, 1977, Lyon was sentenced to fifteen years imprisonment. The bail jumping case was submitted to the trial court on stipulated facts, resulting in a finding of guilty on May 31, 1977. On June 10, 1977, Lyon was sentenced to two years imprisonment, to run consecutively with the fifteen year sentence.

Issues

The dispositive issue is whether the trial court erred in failing to suppress evidence seized under the search warrant. 3

OPINION

(1) The Search Warrant

Lyon argues that the items seized under the search warrant should have been suppressed because the application for and affidavit supporting the warrant (a) contained reckless or intentional misstatement of material facts and (b) failed to show probable cause, even if the misstatements...

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