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

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]

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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 deciding, that Walker has standing to challenge this search.

We conclude that because there was a voluntary consent to the search the district court properly refused to suppress the photographs. Stearns as co-owner and possessor of the negatives and as owner (or co-owner) of the prints could consent to a search and thereby bind Walker. See, e. g., United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Stearns in turn entrusted care of the prints to Seibert. There was apparently no limitation on his control over the envelope and photographs. Stearns directed Wollen to leave the prints with Seibert, permitting Seibert to determine the manner of their disposition and delivery. We therefore find that Stearns assumed the risk that the messenger might consent to let anyone inspect or examine them. Where one with authority to do so consents to a search, the fact of consent validates the intrusion, and, by definition, there is no improper invasion of any expectation of privacy that is recognized by the law. The fact of Seibert's consent is beyond dispute. He was told that the items were subject to search and was further told that he could avoid the search altogether by taking the parcel with him rather than leaving it for Stearns, or that he could mail the material. Aware of these alternatives, Seibert handed over the prints voluntarily. His consent makes the search permissible. 2

The warrant specifically authorized seizure of the photographs. Walker challenges the warrant by attacking the accuracy of certain statements in the affidavit filed in support of its issuance. But the incorrect statements in the affidavit were made neither deliberately nor negligently. Further, even if the matters in question were stricken from the affidavit, the remaining allegations adequately support a finding of probable cause for issuance of

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the warrant and seizure of the property. 3 The inaccuracy that appellant raises was not material and did not vitiate the affidavit. See United States v. Calhoun, 542 F.2d 1094, 1099 (9th Cir. 1976); United States v. Prewitt, 534 F.2d 200, 202 (9th Cir. 1976). Both the search and the resulting seizure were lawful, and suppression of the evidence was not required by the fourth amendment.

II

Walker next challenges the district court's instructions to the jury pertaining to count I of the indictment. The indictment charged that the theft of the Sea Wind had taken place "at Palmyra Island, within the special maritime and territorial jurisdiction of the United States." One of the principal issues at the trial was whether Walker had intended to steal the Sea Wind at the time he sailed it from Palmyra, or whether an intent to steal was formed at some later point in the voyage.

After the jury had begun its deliberations, it sent two questions to the court. The first inquiry was as follows:

Our interpretation of Count I...

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