Argo v. United States

• Decision Date: 16 May 1967
• Docket Number: No. 20352.,20352.
• Citation: 378 F.2d 301
• Parties: James Lee ARGO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 301 (1967)

James Lee ARGO, Appellant, v. UNITED STATES of America, Appellee.

No. 20352.

United States Court of Appeals Ninth Circuit.

May 16, 1967.

Philip A. Oberg, Salinas, Cal., for appellant.

Richard C. Gormley, U. S. Atty., Henry L. Zalut, Morton Situer, Asst. U. S. Attys., Phoenix, Ariz., for appellee.

Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

On March 2, 1965, Argo entered a branch office of the Valley National Bank of Phoenix, Arizona, and proceeded to the window of teller Odette. After a brief wait for another customer of the bank to finish his business, Argo confronted the teller with a drawn and fully loaded revolver, shoved a paper bag at her, laid on her counter one of the bank's blank checks on which was hand printed "This is a Robbery Give 5-10 20 50 Hurry" — and said "I want everything you have." Miss Odette complied, stuffing coins and currency in the bag. Apparently she did not hurry enough, for Argo, fired the gun, the bullet lodging in the counter, and again told her to hurry up. She then stuffed in some more money, and Argo took the bag and left. He got $2599.

At Argo's trial, the robbery was described, and Argo was identified, by teller Odette and by three other eye witnesses. The gun, seven loaded cartridges taken from it, an empty cartridge that had been fired in it, and the bullet were identified and received in evidence. Also identified and received were the blank check used in the robbery, certain records of the bank establishing the amount of the loss, a rent receipt, and a box in which the gun had been when it was sold to Argo.

Argo was convicted of violating 18 U. S.C. § 2113(a) and (d) and sentenced to 25 years. On this appeal, he makes a number of contentions:

1. The search of certain premises in Las Vegas, Nevada, where the gun and loaded cartridge were found, was improper, and those exhibits should have been suppressed.

2. The rent receipt should not have been received in evidence, because not properly connected to Argo.

3. The search of other premises in Phoenix, Arizona, where the empty cartridge and box were found, was improper, and those exhibits should have been suppressed.

4. Argo did not have the effective assistance of counsel.

We consider these contentions seriatim.

1. Argo was arrested in the living room of an apartment that he had rented under the name of A. M. Baker in Las Vegas, Nevada. The validity of the arrest is not questioned. It was made pursuant to an arrest warrant, and eleven FBI agents participated. One of them, Agent Schmidt, was immediately assigned to search the adjoining bedroom and proceeded to do so. Argo was removed from the apartment. Schmidt found the gun, loaded with seven unfired cartridges, in a small box in a nightstand in the bedroom. There was no search warrant. The court interrupted the trial to hear a motion to suppress (see Rule 41 (e), F.R.Crim.P.), and denied the motion.

It is well established that a search, without a warrant, is not invalid if incidental to a lawful arrest. Here, the only products of the search that were received in evidence were the weapon and cartridges used by Argo in the robbery. The gun was identified by the man who sold it to Argo, and by other witnesses who saw it in his hand at the bank. It was found in the adjoining bedroom to that in which he was arrested, in an apartment that he had rented. This is in the immediate vicinity, and the search was proper. Harris v. United States, 1947, 331 U.S. 145, 152-154, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 1950, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653; Ker v. State of California, 1963, 374 U.S. 23, 41-43, 83 S.Ct. 1623, 10 L.Ed.2d 726.

2. One Wilson produced a rent receipt showing that on February 9, 1965, he rented premises at 1413½ E. Fillmore Street, Phoenix, to "Albert M. Baker," from February 9 to March 9, 1965. He failed to identify anyone in the courtroom as "Baker," and the court did not then admit the receipt in evidence. One Stein, a bartender, testified that he sold the pistol to one "Al," and in the courtroom he identified Argo as "Al." One Shurtleff testified that, on March 3, 1965, he rented the apartment in Las Vegas, Nevada, to a man and woman. The man was Argo, but he gave the name of "A. M. Baker." It was only after these witnesses testified that the court admitted the receipt in evidence. The connection was sufficiently established; there was no error.

3. No motion to suppress was made either before or at trial as to the cartridge and box found in the Phoenix apartment. We could decline to consider the question on that ground. Sandez v. United States, 9 Cir., 1956, 239 F.2d 239, 242; Gilbert v. United States, 9 Cir., 1962, 307 F.2d 322, 325. However, we consider it because the decision not to make the motion was presumably counsel's decision, and it is claimed that counsel's representation was inadequate.

The search was made with the permission of the landlord, Wilson, on March 11, 1965, two days after March 9, the period of rental specified in the receipt. Reliance is placed on Ariz.R.S. 33-361, subsec. A, which states that a landlord may re-enter when rent is in arrears for five days or when the tenant violates any provision of the lease. Here, there is no evidence that the tenancy was not to terminate on March 9, in which case the section would not apply, see Ariz. R.S. § 33-341, subsec. D. Moreover, there is evidence that Argo had abandoned the premises. He had gone to Las Vegas and rented another apartment, and that fact was known to the agents when they went to the Phoenix apartment. In addition, the cartridge was found in the kitchen garbage can; this indicates that it too was abandoned. The place where the box was found is not stated. The search, so far as the record shows, was proper. Abel v. United States, 1960, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668; see also Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Counsel's failure to move to suppress is not an indication of incompetence.

4. Argo had assigned counsel. At the opening of the trial, and before any jurors had been called from the body of the courtroom to the jury box, Argo said that he had asked counsel to subpoena certain witnesses and counsel did not do so. After a short colloquy between Argo and the court, counsel said:

"At this time I would like to withdraw if Mr. Argo doesn\'t want me to represent him and wants to represent himself, if it is agreeable to the Court."

The court then suggested that the matter be considered in chambers, and this was done. Counsel stated that he had tried to reach the witnesses by mail, without success. One of the witnesses, a federal prisoner, had been subpoenaed by the government and was then available; government counsel volunteered to bring another in the next day, which he later did. The...