U.S. v. Lyon

• Decision Date: 09 December 1977
• Docket Number: Nos. 77-1348 and 77-1489,s. 77-1348 and 77-1489
• Parties: 2 Fed. R. Evid. Serv. 1198 UNITED STATES of America, Appellee, v. Verne Allen LYON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 777

567 F.2d 777

2 Fed. R. Evid. Serv. 1198

UNITED STATES of America, Appellee, v. Verne Allen LYON, Appellant.

Nos. 77-1348 and 77-1489.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1977.

Decided Dec. 9, 1977.

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.

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 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.

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

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 were innocent. The affidavit, in its entirety, reads:

AFFIDAVIT

Detective Sergeant Robert A. Crews, a member of the St. Louis County Police Department, of lawful age, being first duly sworn, deposes and says that he is a member of the St. Louis County Police Department. That he has received information that property, to-wit:

one (1) bundle of multi-colored wire.

one (1) bundle of dynamite and dynamite caps.

Various timing devices.

are being kept and secreted at premises described as:

a two story frame structure

residence located at 2248

Wengler, St. Louis County,

Missouri, occupied by Mollie

Bertha Lorts with a room

rented to Vernon Lyon;

Affiant states that he gained this information from Emil Arno Eisenreich and Byron Rall, and from personal observation.

Further affiant saith not.

Det. Sgt. Robert A. Crews /s/

Detective Sergeant Robert A. Crews

Sworn to and subscribed before me this 20th day of December, 1966.

Douglas L. C. Jones /s/

Douglas L. C. Jones

Crews' application merely said he believed the same items were at Lyon's apartment, referring to the affidavit as setting forth the basis for that belief.

(a) Reckless or Intentional Misstatements

The application and affidavit contained a number of misstatements. A reader of those papers would not know that the only item personally observed by Crews was the wire on Lyon's dresser. Nor that it was Vasel and Mulitsch, not Crews, who gained information from Eisenreich and Rall. Mulitsch accompanied Crews when the warrant was obtained, but there was no evidence that the issuer of the warrant was made aware of the presence or role of Mulitsch. Nor would the reader learn from those papers that neither Eisenreich nor Rall had said a word about a storage of dynamite, caps, or timing devices in Lyon's apartment.

This court has adopted standards concerning misrepresentations of fact by those seeking a search warrant. United States v. Marihart, 492 F.2d 897, 899-900 (8th Cir. 1974), cert. denied 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974):

* * * Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. * * * Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. * * * However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.

The rule we announce today is intended only to test credibility of government agents whose affidavits or testimony are before the magistrate.

There is no evidence establishing that Crews was either "recklessly or intentionally untruthful." The search warrant application and affidavit could certainly have been more complete and explicit, but we do not view such documents as entries in an essay contest, Spinelli v. United States, 393 U.S. 410, 438, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), nor may we disregard their preparation "in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

Crews' statements are ambiguous, in failing to differentiate between the item he had personally observed (multi-colored wire) and items which he had not (dynamite, caps, and timing devices), and in implying, without saying, that he had personally interviewed Eisenreich and Rall. But ambiguity does not in every case constitute recklessness or intent to deceive; and it does not here. Crews' failure to be specific does not here equate to a reckless or intentional making of sworn statements without regard to their...