U.S. v. Berkwitt

• Decision Date: 21 April 1980
• Docket Number: Nos. 79-1125,79-1138,s. 79-1125
• Citation: 619 F.2d 649
• Parties: 1978-81 Copr.L.Dec. 25,151, 6 Fed. R. Evid. Serv. 54 UNITED STATES of America, Plaintiff-Appellee, v. Mark BERKWITT and Barry Berkwitt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 649

619 F.2d 649

1978-81 Copr.L.Dec. 25,151, 6 Fed. R. Evid. Serv. 54

UNITED STATES of America, Plaintiff-Appellee, v. Mark BERKWITT and Barry Berkwitt, Defendants-Appellants.

Nos. 79-1125, 79-1138.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 22, 1979.

Decided April 21, 1980.

Robert A. Korenkiewicz, Chicago, Ill., for defendants-appellants.

Thomas P. Sullivan, U. S. Atty., Robert J. Hackman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, Circuit Judge, VAN DUSEN, Senior Circuit Judge, ^* and TONE, Circuit Judge.

PELL, Circuit Judge.

This is a consolidated appeal from appellants' convictions arising out of their manufacturing and vending eight-track recording tapes without authorization of the copyright owners. Appellants were found guilty by a jury of one count of illegal transportation of stolen property in violation of 18 U.S.C. § 2314, and twenty counts of willfully violating the copyright laws, 17 U.S.C. § 101 et seq. The facts are not in dispute and are as follows.

On the morning of February 18, 1977, FBI agents, while conducting a surveillance operation, observed appellants in front of their apartment in St. Charles, Illinois, loading a number of brown cardboard boxes into a Volkswagen van owned by the appellant Mark Berkwitt. The agents then followed the appellants as they drove the van from their apartment to a destination in Indiana. Once across the Indiana border, appellants stopped at a motor lodge in Hammond, Indiana, and met with Robert Horton, their prospective buyer of the tapes. While the appellants were in the lodge with Horton, one of the agents looked into the van and observed the cardboard boxes but he could not see their contents. Appellants later left the lodge and followed Horton in their van to his apartment at 907 Ames Street in Hammond, Indiana. At this apartment, the agents observed Horton and two unidentified individuals unload the cartons from the van and take them into the apartment building.

For the next few hours, the agents continued to watch the apartment and the appellants' empty van. At about 2:30, Horton left the apartment building with four cartons similar in appearance to those previously observed in the van. He put the cartons in his automobile trunk and drove away. He was followed to another residence he had in the Gary, Indiana, area where he was "confronted" by the agents. After about an hour of questioning, Horton consented to a search of his trunk where At about 7:00 p. m., there was a flurry of activity at the apartment. ¹ One of the appellants ran out of the apartment and drove off in the van and the two unidentified men similarly left, but in another vehicle. In accordance with their instructions, the agents did not follow the van at this time. About five minutes later, however, the van returned to the apartment and the appellants began reloading it with brown cardboard boxes similar in appearance to those seized from Horton. The appellants then got into the van and drove away.

the boxes were found to contain approximately 889 eight-track tapes lacking copyright notices. This information was transmitted at about 4:30 p. m. to the agents who had remained at or returned to the Ames Street apartment. At about 6:30 p. m., the agents at the apartment received instructions by radio that they were to do nothing unless the van was loaded and moved, in which case they were to stop and search the van and seize its contents. The agents at this time made inquiries about obtaining a warrant to search the apartment and were informed that it was being "researched."

The agents quickly stopped the van and as they approached it with guns drawn and pointed towards the ground, Barry Berkwitt exclaimed, "You got us." The agents then identified themselves, gave Miranda warnings, and conducted a patdown search for weapons. Appellants were advised at that time, however, that they were not under arrest. One agent peered into the van through the windows and noticed that one of the boxes had an open top and contained eight-track tapes. The agent then entered the van, searched it, and found approximately 1400 such tapes, none of which had copyright notices affixed to them. The boxes were then seized.

The agent in charge then advised the appellants they were not under arrest but he also told them to stay where they were until he returned to his vehicle to obtain instructions on how to proceed. Five or ten minutes later, the agents were directed not to arrest the appellants. The appellants were so informed and were told they were free to leave. The appellants, however, remained on the scene for about an hour to learn the disposition of their van and to see if they could get a ride back to Chicago with the agents.

A short while later, the agents searched the Ames Street apartment with the consent of the owner of the building. The owner kept clothes and other goods in the apartment and sometimes slept there, and the legality of this search is not challenged. In the apartment, the agents discovered about 50 or 60 brown cardboard boxes containing tapes, wrappings, tape racks and other such paraphernalia. Thirteen boxes were found containing approximately 2,314 eight-track tapes lacking copyright notices. The apartment also contained numerous pieces of equipment used in the manufacture and packaging of eight-track tapes including a winder, a shrink-wrap machine, and a stereo player.

The next morning, February 19th, pursuant to a search warrant, the issue of which was partially, at least, based on the information gained from the searches of the van and the Ames Street apartment, agents entered and searched appellants' apartment in St. Charles, Illinois. They discovered there a variety of equipment used in the manufacture of eight-track tapes including an Ampex master-maker, a Liberty duplicator with three slave duplicators, one winder, a degausser, a delineator, masters, pancakes, eight-track cartridge components, stereo components, phonographic records, a stopwatch, Billboard magazine and business records.

Based upon this evidence, appellants were indicted on October 19, 1978, for violations of the previously cited statutes. Appellant Barry Berkwitt was arraigned on November 17, 1978, and appellant Mark Berkwitt on December 19, 1978. After denials of On Count One, Barry Berkwitt received a sentence of five years imprisonment, only six months of which was to be served in an institution, and Mark Berkwitt received a sentence of four years with only four months to be served on a work release program. The remainder of the sentences were suspended. On the remaining counts, the appellants were placed on one year's probation, all to run concurrently but as a whole to be consecutive to the Count One sentences.

various pretrial motions of the appellants, including a motion for a continuance, appellants went to trial as scheduled on January 3, 1979. The jury returned a verdict of guilty on all counts, ² and appellants were sentenced on January 31, 1979.

THE SPEEDY TRIAL ACT

Appellants initially complain that their prosecution should be barred for failure to comply with the provisions of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. They maintain that the stop on February 18, 1977, was an arrest and that the delay in obtaining their indictments until October 19, 1978, violated the Act's provisions requiring an indictment within 60 days of the arrest. 18 U.S.C. § 3161(f). They request, therefore, this court to dismiss the prosecution as provided under § 3162(a).

This contention, of course, would fail if there were no arrest. The Government contends there was not and the district court agreed with this position in connection with the search and seizure aspect of the case. The Berkwitts, although contending for the present purposes that there was an arrest, somewhat inconsistently argue that the search could not be incident to an arrest, presumably being willing for the latter purpose to accept the Government's position.

In any event, even though the question might be a close one, notwithstanding that the Berkwitts were expressly told they were not under arrest, we do not need to decide the question for disposition of the present issue. We hold that the dismissal which the appellants seek was not an available remedy under the Speedy Trial Act. The sanction section of that Act, 18 U.S.C. § 3162, was originally made effective on July 1, 1979 (see 18 U.S.C. § 3163(c)), a date about six months after appellants' trial. This fact alone would put to rest any question about the availability to the appellants of the dismissal sanction. Our position is made even stronger by the fact that the Act was recently amended to make § 3162 effective and applicable only to cases commenced by arrest or summons on or after July 1, 1980. 18 U.S.C. § 3163(c) as amended by P.L. 96-43, 1979 U.S. Code Cong. & Admin. News, 93 Stat. 327, 328-29 (1979). In light of these circumstances, we deny appellants' request for dismissal based on the Speedy Trial Act.

THE SEARCH AND SEIZURE

Appellants next argue that probable cause for a search arose at 10:00 a. m. on the morning of the 18th when the FBI agent observed the cartons in the van at the motor lodge, or, at the latest, at 4:30 p. m. when the boxes of illegal tapes were discovered in Horton's trunk. They complain that given the amount of elapsed time between the existence of probable cause and the search of the van, there was no legitimate excuse for the agents' failure to obtain a warrant allowing the search of the van. They conclude, therefore, that the evidence seized from the van and from the resulting tainted search of the St. Charles apartment should be suppressed. We disagree.

Initially it is to be noted that even if probable cause did exist at 10:00 a. m. or 4:30 p. m., there is no requirement that the Government obtain a warrant at the first moment probable cause exists. Cardwell v. Lewis, 417 U.S. 583,...