McGinnis v. United States

• Decision Date: 01 December 1955
• Docket Number: No. 5020-5023.,5020-5023.
• Citation: McGinnis v. United States, 227 F.2d 598 (1st Cir. 1955)
• Parties: Joseph F. McGINNIS, Defendant, Appellant, v. UNITED STATES of America, Appellee. Alfio COSTANZO, Defendant, Appellant, v. UNITED STATES of America, Appellee. John P. SULLIVAN, Defendant, Appellant, v. UNITED STATES of America, Appellee. Sydney R. McTAVISH, w.a. James McGuire, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

227 F.2d 598 (1955)

Joseph F. McGINNIS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Alfio COSTANZO, Defendant, Appellant, v. UNITED STATES of America, Appellee.

John P. SULLIVAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Sydney R. McTAVISH, w.a. James McGuire, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5020-5023.

United States Court of Appeals First Circuit.

December 1, 1955.

Reuben Goodman, Boston, Mass., with whom Paul T. Smith, Manuel Katz and Joseph T. Doyle, Boston, Mass., were on brief, for Joseph F. McGinnis and Sydney R. McTavish, etc., appellants.

Michael T. Stella, Lawrence, Mass., for Alfio Costanzo, appellant.

John P. Sullivan, pro se, submitted on the record and brief for other appellants by leave of court.

Arthur J. Reinhart, Asst. U. S. Atty., Portsmouth, N. H., with whom Maurice P. Bois, U. S. Atty., Concord, N. H., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

These are appeals by the defendants from judgments entered by the United States District Court for the District of New Hampshire on March 25, 1955, based on verdicts of guilty returned by the jury on the first count of a two count indictment.

The first count charged the defendants, Joseph F. McGinnis, Alfio Costanzo, John P. Sullivan and Sydney R. McTavish, w. a. James McGuire "* * * did have and possess property intended for use in violating the provisions of the Internal Revenue laws or regulations * * *" in violation of 26 U.S.C. § 3116. The defendants were found not guilty on the second count which charged that they "* * * did conspire to commit an offense against the United States of America, to wit: to violate Title 26 United States Code, Section 3116 * * *" in violation of 18 U.S.C. § 371.

It appears from the evidence that on Saturday, February 27, 1954, at about 12:30 p. m., Sergeant Archie M. Brown of the New Hampshire State Police was notified of a highway accident which had occurred on Route 3-B in Canterbury, New Hampshire. He decided to investigate personally after being told by James C. Birnie that the truck involved in the accident contained liquor. When Brown arrived at the scene of the accident he found a Ford truck containing a large load of empty five gallon cans tipped over on its right side. The defendant Costanzo was at the scene, and thereafter the defendant McGinnis arrived in a wrecker which had come from Concord. At about this time the defendant Sullivan also appeared.

Sergeant Brown viewed the truck. Suspecting that there might be a violation of federal law, he called state police headquarters and requested that they contact James M. Kent, an investigator in the Alcohol and Tobacco Tax Division, United States Treasury Department, Bureau of Internal Revenue, "* * * to dispatch him to the scene to assist me."

Kent drove from his home in Concord to the scene of the accident where he viewed the truck and talked with Brown. McGinnis, Costanzo and Sullivan were then taken to state police headquarters by Sergeant Brown and his men. Kent went along, and they all arrived at headquarters at about 2:30 p. m.

At about 3:30 p. m. Kent called his superior, Burleigh W. Fletcher, supervisor in charge of the Boston district and left word for him to come to the New Hampshire State Police Headquarters.

Sometime that afternoon Sergeant Brown procured from a justice of the peace for the County of Merrimack a warrant to search the "* * * Barn of said John Doe in said Canterbury * * *." With this warrant Brown, three state troopers, and Kent all went together to the Hawes farm, so called, arriving there at about 5 p. m. Brown forced open the barn door and together with Kent searched the barn and the dwelling. In the course of this search Brown removed from the premises a metal pipe cup, a hydrometer, and a sacharometer. (Plaintiff's Exhibit Nos. 30, 31 and 32). At about 8 p. m. everyone left the premises and Brown and Kent, along with some of the others, went back to state police headquarters where Fletcher was awaiting their return.

At about 9 p. m. it became evident to Brown that "* * * the State had no further interest in this matter. And at this particular time I turned the entire thing over to Mr. Fletcher, and I left the State Police headquarters." Then at about this same time Kent arrested McGinnis, Costanzo and Sullivan. (A warrant for the arrest of McTavish was not issued until September 23, 1954, after the indictment was returned).

Early on Sunday, February 28, at about 1 a. m. Kent, Fletcher and several other federal agents returned to the Hawes farm where they conducted a search without a warrant. Kent and Fletcher left the premises at about 3:30 or 4 a. m., but the others remained. Around 9 a. m. Kent and Fletcher returned to observe the premises in the daylight. At this time Fletcher received from investigator Judd of the Alcohol Tax Unit a sugar sample and a sample of hastener. This was the last time Fletcher visited the farm. Kent returned later Sunday afternoon, but apparently only to visit with "the boys".

On Monday, March 1, Kent for the first time applied to the United States Commissioner at Manchester, New Hampshire, for a search warrant. Kent's affidavit upon which a warrant was issued, recited that certain specific items said to have been observed by him in the course of his visit to the Hawes farm on Saturday, February 27, were present upon the premises. The return of the search warrant shows that some items were seized and taken to a warehouse and others were destroyed on the premises.

During the course of the trial counsel for the defendants made known their intention to object to the introduction of all evidence resulting from any of these searches of the Hawes farm. The court permitted a "blanket objection" to the introduction of this evidence, saying "I call it a blanket objection. It is the understanding of the Court that counsel for all respondents are entering an objection to the reception of any evidence touching upon the seizure of the premises, as to what was observed, seized, and if you can add anything else to it I will accept it."

The court admitted all this evidence, but later at the close of all evidence ruled out the metal pipe cup, hydrometer and saccharometer as follows: "* * * I am speaking now of Exhibit 30, 31 and 32, and it is my finding that these items are not properly admissible, because it appears that on the day that they were seized by the State Trooper, Mr. Archie Brown, Mr. Brown was accompanied by Mr. Kent, a Federal agent, and on the testimony before me here it was to the effect that Mr. Kent had participated in this search. And under the Federal law, if a Federal officer participates in a state search and he himself is not armed with a Federal warrant, he may not make a search or a seizure. And therefore I rule that these items are not properly before this Court, and they and all evidence bearing upon their particular seizure and anything akin to it is excluded from your consideration and will not be before you."

The court also ruled out the hastener and sugar samples, saying:

"Specifically, I am ruling out — let me see that jar. I can\'t tell the number from here.

"The Clerk: Defendant\'s Exhibit E.

"The Court: It has been referred to as hastener, I believe, and which was produced in here by — I believe the chemist produced it. And it was introduced by the defendant.

"Now the other can, Mr. Barry, what is the number of that?

"The Clerk: Defendant\'s Exhibit H.

"The Court: Exhibit H. And that, I think, was defined as having contained sugar or sucrose. That, too, is withdrawn from your consideration. Both of those items are withdrawn from your consideration, and all testimony bearing on those particular items is withdrawn from your consideration, it being my finding and ruling as a matter of law that those items were acquired by the Government on the 28th day of February, which was the day preceding a search warrant, and that the Government in my opinion and my view was without authority to acquire those items, and they have no legal standing in this Court as evidence. And therefore they and any testimony bearing upon those items are withdrawn from your consideration."

The court then made the following statement to the jury: "All other matters of evidence, all other items, are before you. They will be considered in your deliberations." Later, in his charge to the jury, the trial judge said: "* * * it has been my ruling that this Federal search warrant which was issued on the first of March by a United States Commissioner was a proper warrant and that the evidence that was obtained thereunder and which has been admitted in this Court has been properly admitted and that the search and the...