Rettich v. United States

• Decision Date: 09 June 1936
• Docket Number: No. 3054.,3054.
• Parties: RETTICH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

84 F.2d 118 (1936)

RETTICH et al. v. UNITED STATES.

No. 3054.

Circuit Court of Appeals, First Circuit.

June 9, 1936.

William R. Scharton, of Boston, Mass. (Joseph E. Fitzpatrick, of Providence, R. I., and John J. Crehan and Maurice Palais, both of Boston, Mass., on the brief), for appellants.

John A. Canavan, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

The defendants were found guilty by a jury and sentenced on two indictments: One alleging a conspiracy to assault a certain mail truck driver; and by the use of a dangerous weapon putting the life of said driver in jeopardy, who then had in his custody certain registered mail containing a large amount of money; and to rob said truck driver of said registered mail, and conceal the same for the purpose of keeping possession of the results of the robbery; and that the conspiracy continued until the finding of the indictment.

The second indictment was for committing an assault upon the mail truck driver with a dangerous weapon while having in his lawful charge, control, and custody certain registered mail matter of the United States, and thereby effecting a robbery of said registered mail.

Before going to trial, the two cases were, on motion of the government, and without objection by either defendant, consolidated for trial.

The proceedings that followed after the respondents were placed at the bar for trial were not unusual in criminal cases of importance. Counsel for respondents filed a motion for a bill of particulars; a motion to quash the indictments; a plea in abatement and demurrer; a special plea in bar; and at the close of the evidence a motion for a directed verdict — all of which motions were overruled by the court, except the motion for a bill of particulars, which was granted in part by requiring the government to state the place in Fall River where the assault on the mail carrier occurred.

The exceptions to the overruling of the demurrer and plea in abatement by defendants Rettich, McGlone, Dugan, and Harrigan have been waived. One of the conspirators, Merola, has died, the defendants Hornstein and Fisher pleaded guilty during the trial, and the defendants Rettich, McGlone, Dugan, and Harrigan were found guilty under both indictments and bring the case to this court on appeal, assigning as errors on which they rely: (1) That the court erred in denying to the defendants the right to more than ten peremptory challenges; (2) that the court erred in refusing to declare a mistrial because of certain alleged prejudicial remarks by government's counsel in opening the case to the jury; (3) that the court erred in explaining to the jury that the defendant Hornstein, who testified for the government, pleaded guilty with the consent of all the parties in interest; (4) that the court erred in refusing to strike out all the evidence relating to the conspiracy charge and to direct a verdict for each of the defendants; (5) that the court erred in refusing to strike out all the evidence obtained by virtue of certain search warrants issued in the case, on the ground that the search warrants were invalid and the evidence obtained thereby was incompetent; (6) that the court erred in certain instructions given to the jury, and in admitting and excluding certain evidence.

While the defendants assign 29 errors, they may be considered under the above headings.

The assignment of error for refusal to grant the bill of particulars as requested is not argued and may be considered waived.

Where two or more indictments are consolidated for trial, they, in effect, become as separate counts in one indictment. Without objection by either respondent, they were consolidated in this case. McElroy v. United States, 164 U.S. 76, 77, 17 S.Ct. 31, 41 L.Ed. 355; Solomon v. United States (C.C.A.) 297 F. 82. Having made no objection to the consolidation, defendants cannot now claim error in denying them more than ten peremptory challenges. Kettenbach et al. v. United States (C.C.A.) 202 F. 377, 381, 382, certiorari denied 229 U.S. 613, 33 S.Ct. 772, 57 L.Ed. 1352; Emanuel v. United States (C.C.A.) 196 F. 317. A different rule may exist where cases are merely tried together, but not consolidated.

There was no prejudicial error in the remarks of the government's attorney in his opening. If there were, the court removed any prejudice, that might have resulted, from the minds of the jury by explaining to them, on objection by defendants' counsel, that the opening remarks of counsel were not evidence for them to consider; that they were to reach their verdict on the evidence introduced before them.

At the time the defendant Hornstein retracted his plea of not guilty, and pleaded guilty, defendants' counsel requested the court "that the jury be apprised of the fact that Hornstein had pleaded guilty in their absence and had become a state's witness."

The judge, in response to this request, said to the jury: "With the consent of all the parties in interest here, I desire to announce to you that the defendant Hornstein has withdrawn his plea of not guilty to each of the indictments * * * and has pleaded guilty to each indictment."

Counsel for the other respondents objected to this statement of the court. Their objection was based on a misconception of the language used. What the court said was, and the jury must have so understood it, that the judge's announcement was with the consent of the other defendants, and not that Hornstein's retraction and plea of guilty was with their consent.

The main contention of the defendants Rettich, McGlone, Dugan, and Harrigan is that the evidence of certain receptacles found buried in the Rettich lawn containing $10,000 in new bills and a bag of nickels, a part of the fruits of the robbery, was obtained on an illegal search warrant issued by the United States commissioner in violation of the Fourth and Fifth amendments to the United States Constitution, or by an illegal state search warrant issued to a state police officer, and any evidence obtained under either warrant was not competent on which a grand jury could find an indictment, or for the consideration of the traverse jury, and the trial judge erred in refusing to quash the indictments and in refusing to strike out the evidence relating to the finding of a metal box containing the bills and the tin box containing the nickels.

Counsel for defendants did not orally argue the assignment of error that the court erred in refusing to quash the indictments nor treat it in their brief. We assume that this assignment also has been waived. If it has not been waived, the granting of the motion depends largely on the next question we are to consider. They devote the greater part of their entire argument, both orally and in their brief, against the validity of the seizure of these articles under the search warrants and its competency as evidence.

Their first contention is that the search warrant issued by the United States commissioner was issued without probable cause; that the affidavit upon which it was issued did not set forth facts sufficient to establish the required grounds for its issue; second, that it was not executed and a return made to the commissioner within ten days after its date; third, that the state search warrant was invalid because it failed to meet the requirements of the federal statutes; fourth, that the evidence obtained by the state officers under an invalid state warrant was not returned to the court issuing the warrants, but was turned over to the federal officials in aid of a criminal prosecution of a federal offense, and was inadmissible in evidence on objection by respondents.

It is unnecessary to consider in full the attacks upon the federal search warrant, though, if the articles had been seized by the federal officers under the federal warrant, it might have been sustained on the record. It is sufficient to say in passing that what the affidavit contained on which it was issued is not before this court, and the commissioner's findings as to probable cause are conclusive, unless it is shown to the contrary. Gracie v. United States (C.C.A.) 15 F.(2d) 644, 646; United States v. Napela (D.C.) 28 F.(2d) 898, 904; nor is the failure of the marshal to make a return on the federal warrant within ten days fatal. The return on a search warrant is a ministerial act, and can be made within a reasonable time; and the doctrine of trespasser ab initio has no application to criminal cases. Benton v. United States (C.C.A.) 70 F.(2d) 24, 26; Rose v. United States (C.C.A.) 274 F. 245, 250, 251.

In considering the evidence of Hornstein in this case, who was obviously one of the conspirators, it should be remembered that the conspiracy did not end with the assault upon the driver of the mail truck nor until the final division of the loot. It is so alleged in the indictment. The sworn testimony of Hornstein, therefore, in court may be taken against all the other defendants, as the fruits of the robbery had not been all divided up. Bellande v. United States (C.C.A.) 25 F. (2d) 1, 2; Murray v. United States (C. C.A.) 10 F.(2d) 409, 411; Lew Moy v. United States (C.C.A.) 237 F. 50, 52; Benton v. United States, supra; Gandreau v. United States (C.C.A.) 300 F. 21, 26; Dumbra et al. v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032. The rule that declarations made after the conspiracy has terminated are inadmissible as against the other conspirators is not applicable to sworn testimony of one conspirator as to transactions occurring before the termination of the conspiracy. Blakeslee et al. v. United States (C.C.A.) 32 F.(2d) 15, 17.

Whatever technical defects can be pointed out in obtaining the federal warrant or in the procedure thereunder, we think the evidence shows that the search which resulted in the finding of...