683 F.2d 224 (7th Cir. 1982), 81-2378, United States v. Oliver

Docket Nº:81-2378, 81-2662.
Citation:683 F.2d 224
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Anthony OLIVER, Defendant-Appellant.
Case Date:July 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 224

683 F.2d 224 (7th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Anthony OLIVER, Defendant-Appellant.

Nos. 81-2378, 81-2662.

United States Court of Appeals, Seventh Circuit

July 16, 1982

Argued April 8, 1982.

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Jon Gray Noll, Springfield, Ill., for defendant-appellant.

R. Mark Mifflin, Asst. U. S. Atty., Gerald D. Fines, U. S. Atty., Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Circuit Judge, POSNER, Circuit Judge, and GRANT, Senior District Judge. [*]

GRANT, Senior District Judge.

Plaintiff-appellant John Anthony Oliver appeals from his conviction for the receipt and possession of ammunition and firearms in violation of 18 U.S.C. § 922 and 18 U.S.C. app. § 1202. He raises numerous issues in this appeal, each of which will be individually addressed.

Facts

On or shortly before December 9, 1980, Julian Gabriel loaned his van to the defendant Oliver. This transfer took place in Colorado and the van was to have been returned in a couple of days. One week later, in Springfield, Illinois, where he had gone to repair one of his apartments, Gabriel noticed that his van was parked outside a tavern and decided to enter the tavern and look for Oliver. Gabriel located him and a quarrel ensued over Oliver's failure to return the van. The dispute was apparently resolved and Gabriel borrowed some tools from the proprietor of the tavern to repair his apartment. He and Oliver then left the tavern in the van with Oliver driving and Gabriel in the passenger seat with the tools.

At approximately 6:30 p. m. that evening, agents of the Federal Bureau of Investigation saw the van, stopped it and arrested Oliver pursuant to a material witness arrest warrant which had been issued by a Magistrate for the United States District Court for the Southern District of Iowa. The FBI's investigation had previously determined that Oliver might be in possession of the van. At the point of the arrest, an FBI agent entered the van and discovered a five-shot .38 caliber revolver, loaded with four "wadcutter" rounds, located on the floorboard next to the passenger seat. Further search revealed a bag under the driver's seat which contained a loaded automatic weapon and ten additional rounds of automatic ammunition. Nine additional rounds of automatic ammunition were found in the ashtray of the driver's side of the van. A search of Oliver's person at the time of his arrest uncovered another "wadcutter" round in his front right pants pocket.

On the following day, December 17, 1980, Oliver was indicted by a grand jury in the Central District of Illinois. In two counts, Oliver was charged with possession of the above described weapons and ammunition in violation of 18 U.S.C. app. § 1202(a)(1). Oliver proceeded to file a motion to suppress the physical evidence seized from him and the van at the time of his arrest on the basis that there was no probable cause for the issuance of the material witness arrest warrant. Oliver did not challenge the propriety of the search of the van itself assuming his arrest was lawful. Following a hearing, the motion was denied.

The indictment was dismissed without prejudice on February 13, 1981, upon motion

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of the Government. Additional evidence had been discovered and the Government planned to seek additional and related charges to those of the first indictment. On February 23, 1981, a four-count indictment was returned based on the same events of December 16, 1980. Count I charged Oliver with knowingly receiving ammunition (one to five rounds of .38 caliber wadcutter ammunition) in violation of 18 U.S.C. § 922(h). Count II charged Oliver with knowingly receiving a .38 caliber revolver in violation of 18 U.S.C. § 922(h). Count III charged Oliver with knowingly possessing a .38 caliber revolver in violation of 18 U.S.C. app. § 1202(a)(1). Count IV charged Oliver with knowingly possessing a .38 caliber automatic handgun in violation of 18 U.S.C. app. § 1202(a)(1). Oliver's previous motion to suppress and the district court's ruling on that motion were incorporated into the proceedings on the second indictment.

Prior to trial, the Government filed a motion in limine to exclude all reference and evidence to the fact that Oliver possessed at the time of his arrest a valid Illinois Firearm Owner's Identification Card. The district court granted the motion on the ground that such evidence was irrelevant. At trial, Gabriel testified that at the time he originally loaned the van to Oliver, there were no guns or ammunition of any kind in it. He further stated that he had no knowledge that the van contained guns and ammunition at the time the van was stopped and Oliver arrested, and, further, that the guns seized from the van were not his property. The Government also established that the revolver and ammunition had both been stolen at the same time just one month prior to Oliver's arrest.

On June 12, 1981, the jury returned a verdict of guilty on all four counts of the indictment. Post-trial motions were filed on June 16, 1981, and July 6, 1981. The latter motion was based on newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure. Specifically, Oliver's counsel received a handwritten letter on June 30, 1981, from a man named Howard Beall. It read:

Dear Mr. Noll,

I am writing this to you regarding the conviction of a client of yours, John Oliver. I don't want to see an innocent man go to prison so I want to set the record straight. The guns the F.B.I. found in Julian Gabriel's van on the night of December 16, 1980 were mine. Mr. Oliver did not know that the guns (a .380 and a .38) were in the van. I borrowed the van that day and just left the guns in it. I am going to an attorney and have him make an affidavit of the truth. I am sorry that I put Mr. Oliver through all of this and I was wrong for not coming forward with the truth sooner. The reason being that I hate jail. I know that I still have a debt to pay to society but at least the record is straight and an innocent man will not go to jail. Well Mr. Noll, I'll close for now. I'll get an attorney as soon as I can and put this confession in legal form.

Very truly yours,

Howard Beall

At the bottom of the letter beneath Beall's signature were five fingerprints which would be shown to be Beall's. During his testimony at trial Oliver stated that earlier in the day on December 16, 1980, he had loaned the van to Beall. He also stated that another friend had been in the van with him several times that day. Oliver admitted on cross-examination that he noticed no guns or ammunition at the time each person left the van. At the hearing on his Rule 33 motion, Oliver reaffirmed his trial testimony that he had loaned the van to Beall earlier in the day on December 16, 1980. He further testified that in his efforts to locate Beall prior to trial, he spent two or three days going to several bars which Beall sometimes frequented. These efforts to locate Beall were unsuccessful. The district court denied Oliver's motion for a new trial on this ground. The other post-trial motions were likewise denied.

On July 27, 1981, the Government filed a motion pursuant to Fed.R.Crim.P. 46(e) seeking forfeiture of Oliver's post-trial

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bond of $50,000 with a 10% cash provision. It contended that Oliver had violated a condition of the bond by traveling outside the Central District of Illinois to Fairmont, Illinois, where on July 9, 1981, he was arrested and charged with bank robbery. Oliver was acquitted on this charge on September 28, 1981.

Oliver was finally sentenced on August 19, 1981, to imprisonment for a period of five years on Count I. Imposition of a sentence on Counts II thru IV was suspended but Oliver was placed on probation for five years on each of these three counts to run concurrently with each other and consecutive to the five year imprisonment. Following Oliver's acquittal on the bank robbery charge, he filed a motion for the setting of an appeal bond. The Government strongly opposed the motion. On October 2, 1981, the district court denied Oliver's motion for an appeal bond primarily on the ground that Oliver posed a danger to the community.

Beall Letter

In United States v. Hedman, 655 F.2d 813, 814 (7th Cir. 1981), this court set out the requirements for a new trial on the basis of newly discovered evidence under Fed.R.Crim.P. 33. The defendant must show that the evidence (1) came to their knowledge only after trial; (2) could not have been discovered sooner had defendants exercised due diligence; (3) is material, and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial. See also United States v. Pappas, 602 F.2d 131, 133 (7th Cir.), cert. denied, 444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319 (1979). As recognized in United States v. Curran, 465 F.2d 260, 262 (7th Cir. 1972), these standards reflect the fact that such motions "are not favored by the courts and are viewed with great caution." See also United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979). Our review is limited to whether the district court abused its discretion. Id. The Government contends that Oliver has failed to satisfy the second and fourth requirements. We fully agree. Let us first examine the diligence requirement.

It seems reasonable that Oliver would have made every effort to locate those persons who had driven the van or had been a passenger...

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