Lotto v. United States

• Decision Date: 04 December 1946
• Docket Number: No. 13176.,13176.
• Citation: 157 F.2d 623
• Parties: LOTTO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F.2d 623 (1946)

LOTTO et al. v. UNITED STATES.

No. 13176.

Circuit Court of Appeals, Eighth Circuit.

October 22, 1946.

Rehearing Denied December 4, 1946.

Walter F. Maley, of Des Moines, Iowa (Frank J. Comfort, of Des Moines, Iowa, on the brief), for appellants.

Tobias E. Diamond, U. S. Atty., of Sioux City, Iowa (William B. Danforth, Asst. U. S. Atty., of Sioux City, Iowa, on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

WOODROUGH, Circuit Judge.

Appellants, Frank Lotto and Joseph Raymond Cullotta, were jointly charged in an indictment containing ten counts. Counts I-VII inclusive charged them with unlawful possession of certain gasoline ration coupons which they had acquired by theft from named persons in Wisconsin, Minnesota, and Iowa, in violation of Sec. 1394.8177(c) of Revised Ration Order 5(c) (10 Fed. Register 4893) and General Ration Order 8, as amended (8 Fed. Register 3783), issued under authority of the Second War Powers Act, 50 U.S.C.A.Appendix, § 633. Counts VIII-X inclusive charged the theft of the coupons involved in counts V-VII inclusive, in violation of 18 U.S.C.A. § 99. It was charged that the coupons were the property of the United States Government and that the persons from whom they were stolen were in temporary lawful possession thereof. Before the trial defendants moved to consolidate the first seven counts, or, in the alternative, to require the government to elect on which of the counts to proceed to trial. The motion was overruled, but at the close of the evidence the seven counts were consolidated. Defendants were convicted on the consolidated counts and on each of the three counts charging larceny of government property. Defendant Lotto was sentenced to one year for unlawful possession of ration coupons and to five years on each of the larceny counts, and Cullotta was sentenced to one year for unlawful possession and seven years on each larceny count, the sentences on all counts as to each defendant to run concurrently.

Although the government contends that the Bill of Exceptions was not settled within the time prescribed by rule 9 of the Rules of Practice and Procedure in Criminal Cases, 18 U.S.C.A. following section 688, another division of this court, after a hearing, permitted it to be filed with the transcript, and upon our examination of the showing made excusing the delay we find that appellants used due diligence, and in the exercise of its discretion the court has considered the bill of exceptions as sufficient. See Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976.

On May 25, 1945, the police of Mason City, Iowa, received a broadcast over the state police radio system to be on the lookout for a maroon Plymouth or Dodge automobile, bearing Illinois license plates and carrying two men who were suspected of stealing gasoline ration coupons. At about 2:45 p. m. Officer Charles Van Horn of the Mason City Police force observed an automobile answering the description that had been broadcast, pursued it and forced it to stop. After questioning defendants, who were in the car, Van Horn radioed the police station that he had stopped defendants and proceeded to give the automobile a casual search. Two Iowa State Highway patrolmen came in response to Van Horn's call, a further search was made and the state police found the coupons under the floor mat of the automobile. The coupons were seized and subsequently were turned over to federal authorities. The search was made without the issuance of a warrant, either state or federal.

Appellants timely moved to suppress the evidence arising out of the seizure (See Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307) and error is assigned to the overruling of the motion. Appellants contend that the automobile was improperly searched and the coupons seized by state officers, that the officers made the search and seizure for the sole purpose of enforcing federal laws and were acting in cooperation with or at the instigation of agents or officers of the United States, and that use of the seized coupons as evidence against appellants violated their constitutional rights guaranteed by the 4th and 5th Amendments.

It is well settled that the United States may avail itself of evidence improperly seized by state officers operating entirely on their own account. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas. 1915C, 1177; Burdeau v. McDowell, 256 U. S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L. R. 1159; Bruce v. United States, 8 Cir., 73 F.2d 972; Lerskov v. United States, 8 Cir., 4 F.2d 540; Elam v. United States, 8 Cir. 7 F.2d 887. But appellants contend that the evidence introduced at the hearing on the motion to suppress established that the state officers who conducted the search were acting in concert with agents or officers of the United States, and it is equally well settled that under the 4th Amendment the United States may not use evidence improperly seized by state officers, if the federal government itself, through its agents acting as such, participates in the wrongful search and seizure. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381.

The evidence in this case fails to establish participation in any manner in the search and seizure by the United States or any of its agents. The arresting officers testified that they had no communication with any federal officer regarding the matter prior to or at the time of the search, and that they acted solely in response to a state patrol radio call. Nor does the record disclose that the local and state police in conducting the search had in mind the purpose of aiding in a federal prosecution, a circumstance which distinguishes Gambino v. United States, supra. For in the Gambino case it appeared that following repeal of the New York State prohibition law, federal authorities requested aid of state officials in arresting violators of the National Prohibition Law, 27 U.S.C.A. § 1 et seq., and state officers, in the belief that they were required to aid in the enforcement of that law and for the sole purpose of doing so, arrested defendants in that case, searched their automobile and seized intoxicating liquor found therein. Here the arrest, search and seizure were in consequence of a reported theft within the state.

While OPA regulations authorized local or state police to demand inspection of gasoline ration coupons and to receive surrender of coupons from unauthorized possessors,¹ the record before us affirmatively establishes that the arresting officers were not acting under authority of the regulation but that they pursued, arrested and searched appellants as suspected thieves. It appears that the state officers had reason to believe that the reported theft was a proper subject of a state prosecution. Code Iowa 1946, § 709.1; State v. Wilson, 95 Iowa 341, 64 N.W. 266. The search in the Gambino case was made solely for the purpose of aiding in the enforcement of the federal law and the fruits of the search could not have established a state offense. That appellants here were subsequently released to federal authorities and no state prosecution was instituted does not bring the case within the principle announced in the Gambino case.

Appellants contend that the motion to suppress should have been granted in the absence of an affirmative showing by the federal officers who were interested in or initiated the prosecution, that they did not encourage or have knowledge of the search and seizure or act in concert with the state officers. As we stated in Schnitzer v. United States, 8 Cir., 77 F.2d 233, at page 235: "While courts should be alert to prevent encroachments upon constitutional guarantees, the right to such protection is a matter of proof with the burden upon the one alleging such protection." See also Nardone v. United States, 308 U. S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. We find nothing in the record tending to establish that federal agents initiated or acted in concert with the state officers. Regardless of the legality of the search and seizure the motion to suppress was properly overruled.

Over defendants' objection there was admitted in evidence an exhibit consisting of a slip of paper found in defendants' automobile by a state officer and an OPA investigator a few days after the arrest and the contention is made that the District Court abused its discretion in limiting cross-examination of the state officer who had identified the exhibit. It appears, however, that the court subsequently reversed its position, excluded the exhibit and informed the jury not to consider it. The exhibit was not shown to the jury and the latter was not informed of its contents. Under the circumstances, the ruling complained of, even if erroneous when made, was harmless and constituted no ground for reversal. Shaw v. United States, 8 Cir., 1 F.2d 199; Sloan v. United States, 8 Cir., 31 F.2d 902; Goldstein v. United States, 8 Cir., 63 F.2d 609; Allred v. United States, 9 Cir., 146 F.2d 193.

Appellants assign as error the action of the District Court in overruling the motion to consolidate counts I to VII inclusive, or in the alternative to require the government to elect the count on which it chose to proceed to trial. While the court did consolidate the counts at the end of the trial and imposed only one sentence on those counts, appellants contend that they were prejudiced by admission of testimony concerning theft of gasoline coupons in Wisconsin and Minnesota which were found in appellants' possession at the time of their arrest. But the alleged thefts in Wisconsin and Minnesota occurred the day preceding the thefts in Iowa for which appellants were tried and convicted, and evidence of these closely related transactions, though involving distinct acts of larceny, was clearly...