575 F.2d 209 (9th Cir. 1978), 76-1193, United States v. Walker

Docket Nº:76-1193.
Citation:575 F.2d 209
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Buck Duane WALKER, Defendant-Appellant.
Case Date:January 13, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 209

575 F.2d 209 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Buck Duane WALKER, Defendant-Appellant.

No. 76-1193.

United States Court of Appeals, Ninth Circuit

January 13, 1978

Rehearing and Rehearing En Banc Denied May 11, 1978.

Page 210

[Copyrighted Material Omitted]

Page 211

David Bettencourt (argued), Honolulu, Hawaii, for defendant-appellant.

William J. Eggers, III, Asst. U.S. Atty. (argued), Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before CHOY and KENNEDY, Circuit Judges, and FERGUSON, [*] District Judge.

KENNEDY, Circuit Judge:

Buck Duane Walker was tried by jury on a three-count indictment. Count I charged Walker with theft within the special maritime and territorial jurisdiction of the United States, a violation of 18 U.S.C. § 661; count II charged him with transporting stolen property in interstate commerce, a violation of 18 U.S.C. § 2314; and count III charged him with making a false statement in an application for a passport, a violation of 18 U.S.C. § 1542. Walker was convicted on all three counts. He appeals his conviction on the first two counts, contending that photographic evidence used against him was discovered by an illegal search, and further that the trial court erred in some of its jury instructions and in denying a defense motion to consolidate the two counts.

I

Walker contends that the court erred in denying his motion to suppress certain photographs introduced at trial by the Government. To evaluate this claim, we briefly examine the events preceding discovery of the photographs. Walker took some of the pictures and claimed that he owned the film. The film was delivered for processing to a drug store in Honolulu by a Stephanie Stearns, under the name of S. Allen. 1 Stearns later wrote a note to a Mrs. Wollen asking her to pick up the prints at the drug store. Stearns enclosed five dollars to pay for the prints. The note asked Wollen either to deliver the photographs to Stearns personally or to mail them to Stearns in care of a Larry Seibert.

Mrs. Wollen picked up a folder containing the developed prints at the drug store as Stearns had instructed. After learning that Stearns had been arrested, Wollen took the photographs to the police headquarters and showed them to an officer. The officer told Wollen that the pictures were of no

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particular significance, and Wollen then mailed the folder of photographs to S. Allen, c/o Larry Seibert in an 8 X 10 brown manila envelope.

On receiving the photographs, Seibert took the brown envelope containing the photographs to Halawa Jail, where Stearns was being detained pending trial. A large sign at the entrance warned that all items introduced into the facility were subject to search. The jail officer told Seibert that if the envelope were left for Stearns, it would be searched. Nevertheless, Seibert delivered the envelope to the officer.

As part of a routine security check, the prison authorities opened the envelope and examined its contents. Upon inquiry at the jail by agent Hamilton of the FBI about the contents of the package, a prison matron informed Hamilton that the envelope contained photographs. Hamilton asked to see the pictures, and they were shown to him at the jail. After viewing them, Hamilton signed an affidavit for a warrant to seize the pictures. The warrant was issued, and Hamilton seized the envelope and the photographs. Walker contends that his fourth amendment right to be secure from unreasonable searches was violated by the inspection of the envelope and display of its contents to agent Hamilton, and by the subsequent seizure.

The trial court assumed that Walker had standing to challenge the search and the seizure. This point is not free from doubt. Since Stearns paid for the prints and assumed full control over them, any claims by Walker to a proprietary interest in the prints or to a legitimate expectation of privacy in the contents of the envelope are attenuated. Nevertheless, since an appropriate ground for resolving the search and seizure issue on the merits is readily apparent to us without resolving the standing issue, we will assume, without...

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