Aiuppa v. United States, 9243.

• Decision Date: 25 April 1968
• Docket Number: No. 9243.,9243.
• Citation: 393 F.2d 597
• Parties: Joseph AIUPPA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

393 F.2d 597 (1968)

Joseph AIUPPA, Appellant, v. UNITED STATES of America, Appellee.

No. 9243.

United States Court of Appeals Tenth Circuit.

April 25, 1968.

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Maurice J. Walsh, Chicago, Ill. (John Powers Crowley, Chicago, Ill., with him on brief), for appellant.

Newell A. George, Kansas City, Kan., for appellee.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

On first appeal from a jury-waived trial and conviction for unlawful possession and transportation of migratory birds, 16 U.S.C. § 703, we remanded this case for a new trial with directions to suppress, as evidence, contraband 560 frozen mourning doves seized as the fruits of an unlawful search. Aiuppa v. United States, 10 Cir., 338 F.2d 146. On this appeal from a jury conviction and sentence on the same counts Aiuppa asserts numerous other grounds for reversal. After careful consideration of each point raised, we affirm the judgment.

Aiuppa first contends here that the Government should have been required to elect between Counts I and II of the Information. The argument is to the effect that since Count I charged possession of the birds and Count II charged transportation, and since it is necessary to have possession in order to transport, the two counts are necessarily merged. Little need be said concerning this contention, for it is conceded, as indeed it must be, that where the same act or transaction constitutes a violation of two distinct statutory provisions, the traditional test of identity of offenses is whether the same evidence is required to sustain them. See Rawls v. United States, 10 Cir., 162 F.2d 798; Beacham v. United States, 10 Cir., 218 F.2d 528, and cases cited; Robinson v. United States, 10 Cir., 366 F.2d 575. We think the charges here were sufficiently separate and distinct. Under Count I proof was required to show that Aiuppa had in his possession migratory birds in excess of the number allowed by statute (24 per person). Under Count II it was necessary to prove that he did some act in furtherance of the transportation of such birds. Moreover, no where in the record before us can we find where the appellant raised such an objection at trial.

Objection is next raised to the testimony of the Government's witness, Andrew Williams, on the grounds that such testimony was the result of an investigative lead obtained from the illegal search. It is argued that Williams was not interviewed by the Government until after the illegal search and that the Government failed to sustain the burden of establishing that the lead did not emanate from that search. Suffice it to say that the record clearly reflects that prior to the illegal search the Government received information from an informer to the effect that Aiuppa had been hunting in the Frontenac-Pittsburg, Kansas, area with well-known people; that "they had killed an enormous amount of doves" and that Williams was cleaning the doves, packaging them and placing them in cold storage. Since knowledge of these facts was gained prior to and independently from the illegal search, they may be proved like any other facts. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. Such independently gained information does not become tainted merely because the same information is subsequently discovered during an illegal search. See Burke v. United States, 1 Cir., 328 F. 2d 399.

It is also urged that even considering the testimony of Andrew Williams, the evidence was insufficient to prove that Aiuppa either possessed or transported mourning doves in excess of the statutory limit 24 per person or a total of 48 for Aiuppa and his wife. The argument is that there was no direct testimony that the birds in question were mourning doves protected under the provisions of § 703 and that the only testimony as to how many birds were placed in Aiuppa's automobile consisted solely of assumptions and guesses.

Many times we have said that in determining the sufficiency of the evidence to support a jury verdict, we are constrained to view the evidence in the light most favorable to the Government and to examine such evidence only to determine whether the jury was justified in finding beyond a reasonable doubt that the defendant was guilty of the offense charged. See Elbel v. United States, 10 Cir., 364 F.2d 127; Van Nattan v. United States, 10 Cir., 357 F.2d 161; Reed v. United States, 10 Cir., 377 F.2d 891. And, it is equally important to bear in mind that in so viewing the evidence it is not our function to determine the weight of the evidence or assess the credibility of the witnesses. See Lucas v. United States, 10 Cir., 355 F.2d 245, and cases cited. Applying these rules, we cannot say the evidence here did not support the verdict. Andrew Williams testified that during approximately a two-week period he cleaned between nine and fourteen hundred mourning or turtle doves and placed them in plastic bags for various hunters, including Aiuppa, in the Frontenac-Pittsburg, Kansas, area; that these doves were then placed in cold storage in the Dairy Land Freezer in Frontenac; that he placed approximately ten doves in each plastic bag and then filled "ordinary freezers" with the plastic bags. Without giving linear dimensions Andrews indicated by hand motions to the jury the approximate size of the freezers or cartons in which the bags of doves were placed.¹ He also testified that he placed one of these cartons in the rear of Aiuppa's car and thereafter saw where three others had been placed in the rear of the car; that Mr. and Mrs. Aiuppa were sitting in the car and that he (Williams) directed them as to the best way to "get out of town to Missouri". By way of identifying the contraband game, Mrs. Williams testified that she assisted her husband on at least one occasion in cleaning some mourning or turtle doves. Ronald Tims also testified that he assisted Mr. Williams in cleaning turtle doves. From all of this evidence we think the jury was justified in finding that Aiuppa possessed and transported more than 48 mourning doves in violation of § 703.

Complaint is next made of the prosecutor's commenting on the memory of witness Williams and calling as witnesses two other persons who had previously informed him they would refuse to testify. During the trial, while Government witness Williams was testifying on direct examination and having difficulty recalling specific details, the prosecutor asked him, "Who told you to have a faulty memory?". Aiuppa's counsel immediately objected and upon motion the Court ordered the testimony stricken and directed the jury to disregard it.

We agree with appellant that the statement by the prosecutor was unnecessary and improper. But, every slight excess of the prosecutor does not require that a verdict be overturned and a new trial ordered. United States v. Borda, 4 Cir., 285 F.2d 405. And, such an error can generally be cured, as indeed it was here, without harmful effect upon a defendant by the trial court's striking the testimony or comment and admonishing the jury to disregard it. Lawrence v. United States, 10 Cir., 357 F.2d 434; Drew v. Lawrimore, 4 Cir., 380 F.2d 479, and cases cited; and see Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630.

As to the allegation that the Government prejudicially called two witnesses who had advised the court they would invoke the protection of the Fifth Amendment and refuse to testify, both sides rely upon United States v. Compton, (CA 6), 365 F.2d 1, 5, wherein the court stated:

"Government counsel need not refrain from calling a witness whose attorney appears in court and advises court and counsel that the witness will claim his privilege and will not testify. However, to call such a witness, counsel must have an honest belief that the witness has information which is pertinent to the issues in the case and which is admissible under applicable rules of evidence, if no privilege were claimed. It is an unfair trial tactic if it appears that counsel calls such a witness merely to get him to claim his privilege before the jury to a series of questions not pertinent to the issues on trial or not admissible under applicable rules of evidence."

It is argued that there was no showing by the Government that either of these witnesses had information pertinent to the issues in the case, and that the only purpose for calling them was to get them to claim privilege before the jury, leaving the inference they were hiding something.

The record indicates that a Kansas attorney appeared during the trial and informed the court that he represented "a number of witnesses who feel that they should, under the circumstances, refuse to testify as they might incriminate themselves." No where can we find where the "number of clients" were identified by name or that these two witnesses were identified as being among those represented by the attorney. Moreover, both of these witnesses had testified in the first trial and in this trial were asked only a few pertinent questions, such as whether they had hunted with the accused. Immediately upon claiming the privilege of the Fifth Amendment, each was excused from further testifying. We cannot say that the Government did not honestly believe the witnesses had pertinent information nor that under the circumstances it was prejudicial to attempt to elicit such information from them.

The next allegation of error is directed at the court's permitting two government agents each to testify to the effect that he is employed by the Department of Interior and is custodian of the records in his respective region; that he had searched the records in his region and could find no record of an application or permit for Aiuppa to possess more than the statutory limit of mourning doves. The argument is to the effect that the...