U.S. v. Shigemura

Citation682 F.2d 699
Decision Date30 June 1982
Docket Number81-2147,Nos. 81-2146,s. 81-2146
PartiesUNITED STATES of America, Appellee, v. Edward Katsuaki SHIGEMURA, Appellant. UNITED STATES of America, Appellee, v. Bonnie Louise MORLEY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Clark H. Cole, St. Louis, Mo., for appellant Shigemura; Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., of counsel.

Thomas E. Dittmeier, U. S. Atty., James E. Crowe, Jr., Asst. U. S. Atty., St. Louis, Mo., for appellee.

Karen Weinhaus Levy, St. Louis, Mo., for appellant Morley.

Before ARNOLD, Circuit Judge, STEPHENSON, Senior Circuit Judge, and HANSON, * Senior District Judge.

STEPHENSON, Senior Circuit Judge.

Defendants-appellants Edward Shigemura and Bonnie Morley were charged in a joint indictment and found guilty by a jury 1 after a joint trial. Shigemura was convicted of the Count I charge of conspiracy to steal goods from an interstate shipment with the intent to convert such goods to his own use, in violation of 18 U.S.C. §§ 371, 659. Both Shigemura and Morley were convicted of the Count III charge of possession of stolen goods, knowing such goods to have been stolen, in violation of 18 U.S.C. § 659. 2 Appellant Shigemura argues that the district court committed several errors in its instructions to the jury and that the collateral estoppel doctrine requires his discharge. Appellant Morley argues that the government agent's entry into her home by ruse or trick vitiates her consent to the entry and makes the subsequent search illegal. We affirm the district court.

I. BACKGROUND

Carl Mask owns the Mask Brothers Trucking Company which is a Norman Lines operator in the St. Louis area. Carl's son, John Mask, was a driver for Norman Lines in February of 1981. On February 20, 1981, John Mask drove to Schneider Packing in St. Louis on behalf of Norman Lines to pick up a shipment of approximately 37,000 pounds of beef worth $40,262.92. After the truck was loaded, John Mask drove it back to the Norman Lines terminal in St. Louis. Normally, the truck would be held and maintained in the terminal until Sunday evening when it would be driven to the prearranged destination for delivery. However, on Saturday evening, February 21, 1981, John Mask drove the truck from the St. Louis terminal to a secluded area in Jefferson County, Missouri. There Mask, along with Roy Hoffman and Tim Rutledge, unloaded approximately 20,000 pounds of meat into a Ryder Rental Truck. Hoffman and Rutledge drove Hoffman's car out of the area and Mask, driving the Ryder truck, followed them to a Vicker's service station in South St. Louis.

Defendant Shigemura arrived at the Vickers station and instructed the others to follow him. Shigemura led the group to defendant Morley's house and Mask backed the Ryder truck into the driveway of the house. Shigemura told the group that it would take him a couple of days to get the money together for the meat. When Mask, Hoffman and Rutledge left the house in the early morning hours of Sunday, February 22, 1981, the Ryder truck containing the meat was still in the driveway.

On Sunday, February 22, 1981, defendant Morley called her friend Rita Blech and asked her if Rita's two sons would help her move some furniture. The boys and one of their friends agreed to help; however, instead of moving furniture, defendant Shigemura directed them to help him move the meat from the Ryder truck to Morley's basement. Shigemura also directed the boys to help him remove the identifying Schneider Packing meat tags which had been placed on each piece of meat. Shigemura paid the boys for their help and told them that he was going to open up a butcher shop and that the meat was for sale at $1.00 a pound.

During the week of February 22, 1981, one of defendant Morley's neighbors observed large wrapped items being carried from the house. On Thursday, February 26, 1981, the St. Louis Police Department received an anonymous telephone call regarding the activities at the Morley residence. The caller told the police that a Ryder Rental Truck had arrived at the Morley residence around 3:00 a. m. Sunday morning and that large, unknown items were carried into the basement for several hours. Additionally, the caller stated that several trucks and vehicles had come to the house and people were carrying unknown objects out of the basement and leaving with them.

St. Louis Police Detective Joseph Mokwa went to defendant Morley's residence in an undercover capacity to pose as a buyer of the large, unknown items observed by the anonymous caller. When defendant Morley answered the door, Detective Mokwa told her that Eddie (Shigemura) had sent him to see the stuff in the basement. Morley directed Mokwa to the basement door. Mokwa saw the large pieces of partially decayed meat scattered on the basement floor and found one Schneider Packing meat tag. After leaving the basement, Mokwa found Morley in the living room and asked her the price of the meat. She told him that he would have to see Shigemura because she was no longer sure. Mokwa then arrested Morley. The meat tag was seized and photographs were taken of the meat in the basement before the meat was disposed of later that evening.

After a four-day trial, the case was argued and submitted to the jury. The jury returned verdicts of guilty against both defendants, as described earlier, and the district court entered judgments on those verdicts.

II. NO. 81-2146 EDWARD SHIGEMURA
A. Addict-Informant Instruction

Shigemura argues that the district court erred in failing to give his requested addict-informant instruction. 3 This circuit has not adopted a per se rule regarding addict-informant instructions. Instead, our rule is that "the circumstances of each case determine the need for an addict-informant instruction." United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981). In Hoppe, the court suggested four factors which might obviate the need for such an instruction. Our analysis of those factors leads us to the conclusion that the district court did not err in rejecting defendant Shigemura's proffered instruction.

One factor listed by the Hoppe court was a dispute as to whether the informant is actually an addict. Id. Shigemura argues that there was no dispute while the government contends that addiction was not established. Both parties agree that addiction at the time of trial testimony needs to be established as the predicate for the instruction and not addiction at some past time. See United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). The transcript of the proceedings is somewhat equivocal on this point. 4 However, present addiction is not clearly established. Even assuming that "desire" is equal to addiction, Mask's responses indicate that his desire for the drug was at the time of the crime rather than at the time of trial.

The second factor mentioned by the Hoppe court is cross-examination concerning the informant's addiction. United States v. Hoppe, supra, 645 F.2d at 633. Shigemura argues that although there was some cross-examination of Mask regarding his addiction, the subject was not thoroughly explored because of the trial court's sua sponte limitation upon his cross-examination. However, a review of the record shows that Shigemura's attorney asked several questions directly related to the key element of present addiction immediately after the court's interruption. 5 In fact, the first question asked after the court's interruption was: "Mr. Mask, is it fair to say that you are addicted to Preluden or some other similar drug?" The fact that present addiction was not clearly established is attributable to the answers of Mr. Mask and not caused by any limiting action by the district court upon Shigemura's counsel's cross-examination.

The district court did allow considerable latitude in the cross-examination of Mask and the jury was well aware of his past use of Preluden, his past felony convictions and other character defects. Additionally, his plea bargain with the government was explored at length. Therefore, the issue of Mask's credibility was squarely before the jury and the court did not abuse its discretion in regulating the scope of cross-examination. Furthermore, even if some error exists in the district court's action, such error was harmless in light of the fact that both the third and fourth Hoppe factors are unquestionably present in this case.

The third item that the Hoppe court listed as a factor obviating the need for an addict-informant instruction is "an instruction alerting the jury that an informant's testimony should be viewed with care." United States v. Hoppe, supra, 645 F.2d at 633. The court gave a general instruction on scrutinizing and evaluating the credibility of each witness which included language cautioning the jury to consider a witness' "interest" in the case. The jury was instructed that the testimony of an accomplice should be "received with caution and weighed with great care." The jury was aware of Mask's plea bargain with the government and the court instructed that the testimony of an accomplice who testifies for personal advantage must be examined more carefully than the testimony of an ordinary witness. The jury was specifically instructed to determine whether the testimony of an accomplice testifying for personal advantage was affected by self interest and by prejudice against the defendant. Additionally, Mask had testified regarding his prior felony convictions and the court instructed that felony convictions could discredit or impeach a witness and that they should consider such convictions in evaluating credibility. Therefore, the jury was sufficiently instructed on matters involving Mask's credibility.

The final Hoppe factor is whether there is corroboration of the informant's testimony. Id....

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