U.S. v. Dudek
| Decision Date | 16 August 1977 |
| Docket Number | No. 76-2537,76-2537 |
| Citation | 560 F.2d 1288 |
| Parties | 2 Fed. R. Evid. Serv. 406 UNITED STATES of America, Plaintiff-Appellee, v. Ted DUDEK a/k/a Ted Landers, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elmer A. Giuliani, Paul Mancino, Jr., Cleveland, Ohio, for defendant-appellant.
Fredrick M. Coleman, U. S. Atty., Cleveland, Ohio, Michael W. Farrell, Washington, D. C., for plaintiff-appellee.
Before EDWARDS, PECK and ENGEL, Circuit Judges.
This is the second appeal in the federal prosecution of appellant on charges of conspiracy to commit and commission of certain federal firearms offenses. In the first appeal by the United States, this court reversed the suppression of evidence which had been ordered by the District Judge. We there held that the admitted failures of police who had executed the searches to timely file inventories and returns as required by Ohio law did not require suppression of the evidence. United States v. Dudek, 530 F.2d 684 (6th Cir. 1976).
Appellant had originally been charged, along with codefendants Anthony Bruno and Joseph Seidita, in a 16-count indictment. On remand by this court, appellant alone was tried before a jury on four counts of the original indictment in which he was named. Count I charged appellant and his codefendants with conspiracy to commit specified federal firearms offenses, in violation of 18 U.S.C. § 371 (1970). In Count II appellant, along with codefendants Bruno and Seidita, was charged with engaging in the business of dealing in firearms and ammunition without being licensed, in violation of 18 U.S.C. §§ 922(a)(1) and (2)(1970). Counts III and V charged appellant with knowingly receiving and possessing firearms, having been a convicted felon, in violation of 18 U.S.C. App. § 1202(a)(1) (1970). Count III pertained to events on or about October 25, 1973, and Count V to events on or about November 3, 1973. After trial appellant was convicted on all counts, except Count V.
The essence of the indictment as it related to appellant was that together with codefendants Bruno and Seidita he conspired to and did engage in the business of dealing in firearms in interstate commerce without a license, and did receive and possess firearms, being previously convicted of a felony. The firearms and ammunition in question were stolen in three burglaries committed by three other codefendants, Mylar, Marinelli and McGraw. Seidita, Mylar, Marinelli and McGraw all testified at the trial under grants of immunity concerning the burglaries or the disposition of the guns, ammunition and other goods stolen in the three burglaries.
Two burglaries took place on the night of October 24, 1973. In one, approximately 30 guns were stolen from the home of Robert Cartwright in New Castle, Pennsylvania, and brought back to the house in Youngstown, Ohio, where Mylar lived. In the other, the McFarland Hardware Store in New Wilmington, Pennsylvania, was burglarized of merchandise, including ammunition, which was then stored in Marinelli's garage in Youngstown, Ohio.
Mylar testified that before these two burglaries he had asked codefendant Bruno if he was interested in buying some guns, and that Bruno told Mylar "to let him know when we got them." The next day after the burglary appellant, in company with Bruno and Seidita, went to Marinelli's garage and inspected the merchandise and ammunition therein and then went to Mylar's house and inspected the approximately 30 guns in his attic. Mylar testified as to that same day:
So I said, "Well, what would you give us for the hardware and the guns together?"
A. At this time, I believe it was mostly Mr. Bruno talking speaking.
Q. Was Mr. Dudek there?
A. Yes, sir.
Q. Did he have any discussion with you about this at all?
A. Just general talking about the guns, in general.
Q. Did he have any discussions with Mr. Bruno?
A. They were discussing money.
Q. What happened then?
Who made the offer?
Q. Do you have a recollection of the price?
A. 3,000, 2,500 or 3,000, something like that.
Q. That would be the price for what?
A. For the guns that I had placed in the attic, and for the hardware at Marinelli's garage.
Q. At the time you negotiated and agreed on the price, who was in the attic?
A. Myself, Joe Seidita, Dudek and Bruno.
Q. Now, what happened then?
A. The four of us, myself, Seidita, Bruno and Dudek carried all the firearms from the attic downstairs and placed them in an automobile.
The burglary trio of Mylar, McGraw and Marinelli stole approximately 60 firearms from the Weaver Sporting Goods Store in Greenville, Pennsylvania, about a week later. These were also taken to Mylar's house and again appellant and Bruno came to inspect them. Mylar testified:
Q. What did you do next in relation to those guns?
A. I called Anthony Bruno.
Q. Did you have a conversation with him relating to those guns?
A. Yes, sir.
Q. As a result of that conversation, what did you do, if anything?
A. Well, I met them at the garage to show them the guns.
Q. Whom did you meet?
A. Bruno and Dudek.
Q. Who else was there?
A. At this time, possibly Seidita, but I'm not 100 percent sure; I just don't recall.
Q. Was McGraw there?
A. No. I believe it was just myself, Dudek and Bruno.
Q. Did you have a discussion about the guns and the ammunition?
A. Yes, sir.
Q. The scopes and the binoculars?
A. Yes, sir.
Q. What was the substance of the conversation?
A. Just that would they be interested in buying them, and, you know, how much would they offer for them.
Q. Was an examination made of the guns?
A. Yes, sir.
Q. Who made them?
A. Dudek and Bruno.
Q. Did they have any discussion with each other about the guns?
A. Yes, sir. I had gave them an inventory list that I had made, and they were looking that over.
Q. Did you give them a list of the whole thing, the whole kit and caboodle?
A. Yes, everything that was there in the garage.
Q. Did you conduct any negotiation with them concerning those weapons or that load of material?
A. Yes, sir. They offered me a price, and I told them that I would accept it.
Q. Did you sell the guns?
A. Yes, sir.
Q. To whom did you sell them?
A. To Bruno and Dudek.
Q. When?
A. Well, it would be the following I believe it was the following afternoon after the burglary, the day after the burglary.
Q. After you came to your arrangement with Mr. by the way, do you recall how much was involved, how much money was involved in the sale of that garage of firearms and scopes and other items?
A. Sir, I would have to say around $3,000.
Aside from one Raven .25 automatic gun which Ohio police found in Danny Mylar's possession, none of the guns was found in the possession of the codefendants. In fact, except for one other weapon, the stolen guns were never recovered by police.
No guns or ammunition were found on the premises of the two places searched under state search warrants. What was found was part of the merchandise stolen from the McFarland Hardware Store on October 24, 1973, at the same time that some ammunition was stolen.
Several witnesses also testified over vigorous objection by defense counsel to a number of other occasions some months before and after the three burglaries referred to above, when Mylar and Marinelli had shown stolen merchandise to appellant and Bruno, and appellant had quoted prices after consulting catalogues.
It is undisputed that neither appellant nor Bruno nor Seidita was licensed to deal in firearms. It is also undisputed that appellant had a felony conviction in the state of Ohio.
Appellant claims that the convictions must be set aside because they are contrary to the evidence. He also presents one issue of constitutional magnitude claiming Fourth Amendment abuse in failure of the affidavits for the search warrants to comply with the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Additionally, he offers 12 issues claiming reversible errors at trial.
The prosecution's evidence of appellant's guilt in relation to the conspiracy and the substantive crime counts of the indictment was clear and specific. Much of it was undisputed. Appellant's counsel argues here, as he did before the jury, that denials or absence of knowledge of appellant's complicity testified to by persons close to the crimes concerned should lead to an opposite conclusion to that which the jury reached. But, of course, that inference was for the jury. And, of course on appeal we view the facts from the point of view favorable to the government which was accepted by the jury in its verdict of guilty. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). On the facts and law stated above, we hold that there was ample proof for the jury to find guilt beyond reasonable doubt.
Appellant asserts that the two affidavits printed as Appendices A and B to this opinion did not serve to meet the two tests set forth in the Aguilar and Spinelli cases. Both affidavits, however, employ assertions which do meet the reliable informant test:
(T)he magistrate must be informed of . . . some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was "credible" or his information "reliable."
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