625 F.2d 782 (8th Cir. 1980), 79-1278, United States v. Dennis

Docket Nº:79-1278.
Citation:625 F.2d 782
Party Name:UNITED STATES of America, Appellee, v. Willie H. DENNIS, Appellant.
Case Date:June 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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625 F.2d 782 (8th Cir. 1980)

UNITED STATES of America, Appellee,

v.

Willie H. DENNIS, Appellant.

No. 79-1278.

United States Court of Appeals, Eighth Circuit

June 24, 1980

        Submitted Dec. 5, 1979.

        Rehearing and Rehearing En Banc Denied July 29, 1980.

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        Irl B. Baris, St. Louis, Mo., for appellant.

        Stephen B. Higgins, Asst. U. S. Atty. (on brief), for appellee; and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief.

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        Before GIBSON, Chief Judge, [*] and LAY and McMILLIAN, Circuit judges.

        McMILLIAN, Circuit Judge.

        Willie H. Dennis appeals his conviction 1 on twelve counts of an eighteen-count indictment charging seventeen violations of the Extortionate Credit Transactions Act (ECT), 18 U.S.C. §§ 892, 894 (1976) and one obstruction of justice under 18 U.S.C. § 1503. We affirm.

        From September 10, 1962, through October 2, 1978, Dennis was employed by the General Motors Assembly Division in St. Louis, Missouri. Beginning at least as early as 1970, Dennis started lending money to fellow plant workers and others at twenty-five percent a week interest, a practice which he continued until at least March 10, 1978. On Thursday, which is payday for the nightshift employees, Dennis customarily lent to and collected from nightshift employees in the plant cafeteria. On Friday, which is payday for the dayshift employees, Dennis made loans and collections in front of the guard shack at the plant entrance. Occasionally, other individuals made collections on behalf of Dennis; and, when a payment was long overdue, Dennis searched out the debtor at locations away from the plant. Documents taken from Dennis in the contested searches identified his debtors by name, amount of loan, interest paid and interest collected. These records revealed the following facts about Dennis's operation: (1) from December 22, 1977, through March 10, 1978, the total amount collected was $31,777.00, of which $22,701.00 was interest; (2) the usual rate of interest was twenty-five percent a week or thirteen hundred percent a year; and (3) there were 133 accounts as of March 10, 1978, with a total balance outstanding of $52,956.00.

        On August 25, 1978, Dennis was named in a four-count grand jury indictment, charging a one-count violation of the Racketeer Influenced and Corrupt Organization Statute (RICO), 18 U.S.C. § 1962(c); two counts of collections of credit by extortionate means under ECT; and one count of obstruction of justice. On the day the trial was to begin, the court granted both Dennis's motion to dismiss the RICO count and the government's immediate request for a continuance.

        During the postponement, the government secured a superseding nineteen-count indictment and later a second superseding indictment. The superseding indictment charged eighteen violations of ECT and one obstruction of justice. The sixteen new counts named additional borrowers.

        The jury trial lasted nine days. On motion of the government, one count was dismissed. The jury found Dennis guilty on twelve counts and not guilty on six counts.

       I. Searches and Seizures

        First, Dennis argues that the trial court erred in admitting evidence seized in searches of his home and person pursuant to warrants, and a warrantless search of his automobile.

        In November 1977, the government first became aware of Dennis's money-lending activities. During an interview for a pretrial diversion program whereby he would not be charged with or convicted of an admitted federal felony offense, Thomas Yingling mentioned that he had been borrowing money from Dennis at high interest rates and that Dennis had threatened him in October 1977. On November 22, 1977, the FBI had Yingling engage in a telephone conversation with Dennis about the balance due. The conversation was recorded. On December 9, 1977, the FBI placed a hidden recorder on Yingling's person so that he could again discuss the loan with Dennis.

        After surveillance and photographing of Dennis in the interim, the FBI applied on March 9, 1978, for search warrants for Dennis's home and person. The affidavit in

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support of the warrants referred to the alleged threat in October and summarized the November 22 telephone conversation. It did not mention the tape-recorded conversation of December 9. Nor did it state that Yingling was in the pretrial diversion program. The warrants were issued, and the searches produced money-lending records, cash, weapons and other items that were admitted into evidence.

        At the time that the search warrants for Dennis's house and person were executed, the FBI agents wanted to search Dennis's car but did not have a search warrant for the car. Dennis initially refused them permission to search his car. After the agents told Dennis that they "would get" or "would attempt to get" a warrant to search the car, Dennis gave his consent to the search of the car. Certain paychecks and a pistol were found there and admitted into evidence.

        Dennis contends that the fruits of the searches of his home and person should be suppressed because the warrants were invalidated by the intentional omission of material facts in the affidavit presented to the magistrate, those facts being the tape-recorded December 9 conversation and Yingling's "criminal record." The affidavit need only show facts sufficient to support a finding of probable cause. United States v. Fleming, 566 F.2d 623, 625 (8th Cir. 1977); United States v. Kershman, 555 F.2d 198, 201 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977). Therefore, omissions of other facts would not be misrepresentations unless they cast doubt on the existence of probable cause. Whether or not the December 9 conversation contained threats, the affidavit contained an allegation of an October 1977 threat. Here, if the disputed conversation contained threats, it was merely additional evidence of criminal activity. If not, it did not disprove the alleged earlier threat. In fact, the affidavit could have been adequate without any allegation of an explicit threat. United States v. Spears, 568 F.2d 799, 801 (10th Cir.), cert. denied, 439 U.S. 839, 99 S.Ct. 127, 58 L.Ed.2d 137 (1978); United States v. Nakaladski, 481 F.2d 289, 297-99 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973); United States v. DeLutro, 435 F.2d 255 (2d Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971).

        Dennis argues that the magistrate had to be informed of Yingling's "criminal record," 2 apparently because it would have reflected on his reliability and credibility. However, Yingling was not an unidentified professional informant to whom stringent tests of credibility are applied. 3 Not only was he a non-professional with no motive to falsify, 4 but also he was the victim of the crime. Such an informant's credibility is readily established. Andreson v. Maryland, 427 U.S. 463, 478 n.9, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627 (1976); United States v. Swihart, 554 F.2d 264, 268-69 (6th Cir. 1977); United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). The credibility of an informant may be established by corroboration by the affiant of only parts of an informant's story. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Aguilar v. Texas, 378 U.S. 108, 114-

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15, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 382 F.2d 871, 881 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Each of Yingling's detailed statements to the affiant except the October 1977 threat was independently corroborated, as the affidavit alleges. Yingling's credibility was established. It was not necessary to notify the magistrate of his participation in the pretrial diversion program.

        Because neither of the omitted facts was material to a finding of probable cause, we need not consider whether their omission was intentional. Franks v. Delaware, supra, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667.

        Dennis also attacks the timeliness of the affidavit. The March 9, 1978 affidavit referred to Yingling's initial loan in November 1976. Yingling's statements in November 1977 and January 1978 also related incidents in the fall of 1977. Probable cause must exist at the time the warrant is issued. United States v. Steeves, 525 F.2d 33, 37-38 (8th Cir. 1975). If past circumstances would have justified the search, there must be reason to believe that those circumstances still exist at the time of the search. C. Wright & A. Miller, Federal Practice & Procedure § 662, p. 23. If, because of delay in applying for a warrant, the information in the affidavit is stale, probable cause may be diminished. Andreson v. Maryland, supra, 427 U.S. at 478 n.9, 96 S.Ct. at 2747. But the delay is not considered separately. The length of the delay is considered together with the nature of the unlawful activity. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). And they are considered in the light of common sense. Id. Hence, in United States v. Johnson, a three-week delay did not undermine probable cause where the illegal distilling was an on-going business, rather than a mere isolated violation. Id. In Andreson v. Maryland, a three-month delay did not undermine probable...

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