U.S. v. Easter, No. 76-1218

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore VAN OOSTERHOUT, Senior Circuit Judge, LAY and HENLEY; LAY; HENLEY
Citation539 F.2d 663
Decision Date04 August 1976
Docket NumberNo. 76-1218
PartiesUNITED STATES of America, Appellee, v. Joseph Ward EASTER, Appellant.

Page 663

539 F.2d 663
UNITED STATES of America, Appellee,
v.
Joseph Ward EASTER, Appellant.
No. 76-1218.
United States Court of Appeals,
Eighth Circuit.
Submitted June 14, 1976.
Decided Aug. 4, 1976.

Page 664

Thomas P. Roberts, Clayton, Mo., for appellant.

Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee; Donald J. Stohr (former U. S. Atty., effective May 15th Barry Short, U. S. Atty.), and Frank A. Bussmann, Asst. U. S. Atty., St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and HENLEY, Circuit Judges.

LAY, Circuit Judge.

On October 16, 1975, a grand jury indictment was returned against Joseph Ward Easter charging him with possession of a firearm without filing an application in violation of 26 U.S.C. §§ 5861(c) and 5871 and possession of a firearm not registered with the Department of the Treasury in violation of 26 U.S.C. §§ 5861(d) and 5871.

The defendant waived a jury trial and was tried before the United States District Court for the Eastern District of Missouri, the Honorable H. Kenneth Wangelin, presiding. Judge Wangelin, after hearing all of the evidence found defendant guilty and sentenced him to five years on each count to run concurrently. Easter now appeals asserting (1) that his conviction was based on evidence obtained by illegal search and seizure, and (2) that he was deprived of a fair trial because of the ineffective assistance of counsel. We reverse and remand for new trial.

The record shows that in the late afternoon of June 16, 1975, the defendant was returning to his home at 4706 Lee Street in St. Louis, Missouri, where he resided with his wife, child, brother and parents. He testified that as he neared his home he approached and spoke to a man known as "Victor" but that the latter did not respond. According to the defendant he knew Victor and had had some disagreements with him in the past. The defendant further testified that while he was outside his home he saw Victor enter a police car that stopped nearby. He stated that he then entered his house.

According to the government's evidence, on the afternoon in question a man identifying himself only as Victor telephoned the St. Louis, Missouri, Police Department to report that he had been held up by two men with a sawed-off shotgun and revolver, and that afterward he observed them entering 4706 Lee Street. The police, responding to this information from Victor, proceeded to the defendant's residence at 4706 Lee Street, knocked, and announced "Police." Someone in the residence asked the police to wait a minute while they looked for a

Page 665

key to unlock the door. 1 According to the police officers they waited approximately five minutes and then kicked in the door and entered the residence without a search warrant. The police testified that they found the defendant in a back room, in a crouched position, holding a sawed-off shotgun. The defendant testified that he never handled the 12 gauge sawed-off shotgun and that it did not belong to him.

On appeal the defendant first challenges the legality of the police entry into his home and urges that the shotgun seized was the product of an illegal search. The difficulty with this argument, as acknowledged by defendant's appellate counsel, is that no motion to suppress was filed in the district court nor was an objection made to the introduction of evidence. Under the rules of this court issues not raised in the trial court cannot be raised on appeal absent plain error. See, e. g., Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179, 184 (8th Cir. 1975); Levitt v. United States, 517 F.2d 1339 (8th Cir. 1975).

Defendant urges that we declare the search illegal under the Fourth Amendment on the ground of plain error. We acknowledge that, on the basis of the evidence presented, the question as to whether there was a legal search is significant. The informant is not identified other than as "Victor" and, on the present record, there exists no corroborating evidence of a robbery. Furthermore, the record strongly suggests that Victor may have harbored animosity toward the defendant and that he misused the police to further harass him. On the strength of these facts, defendant argues that there did not exist probable cause to justify the...

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129 practice notes
  • U.S. v. Decoster, No. 72-1283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 19, 1976
    ...F.2d 1325, 1330 (9th Cir. 1978) ("reasonably competent attorney acting as a diligent conscientious advocate"); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) ("customary skills and diligence that a reasonably competent attorney would perform under similar circumstances"); MacKen......
  • U.S. v. Blackwell, No. 82-1261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 10, 1982
    ...Id. at 34-37. 6 See Washington v. United States, 134 U.S.App.D.C. 223, 225-226, 414 F.2d 1119, 1121-1122 (1969); United States v. Easter, 539 F.2d 663, 665 (8th Cir.1976); Robinson v. United States, 327 F.2d 618, 623 (8th Cir.1964); Spahr v. United States, 409 F.2d 1303, 1306 (9th Cir.), ce......
  • People v. Baldi
    • United States
    • New York Supreme Court Appellate Division
    • June 16, 1980
    ...States v. Pinkney, 543 F.2d 908 (D.C.Cir., 1976); United States v. Ingram, 477 F.2d 236, 240 (CCA 7th, 1973); United States v. Easter, 539 F.2d 663, 666 (CCA 8th, 1976); United States v. Moore, 180 U.S.App.D.C. 227, 554 F.2d 1086, 1089 (D.C.Cir., 1976); see, also, Chambers v. Maroney, 399 U......
  • Grant v. United States, No. 76 Civ. 2598.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 7, 1978
    ...denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975), or assistance up to the level of "customary skill," United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc). For a thorough review of the tests for judging ineff......
  • Request a trial to view additional results
129 cases
  • U.S. v. Decoster, No. 72-1283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 19, 1976
    ...F.2d 1325, 1330 (9th Cir. 1978) ("reasonably competent attorney acting as a diligent conscientious advocate"); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) ("customary skills and diligence that a reasonably competent attorney would perform under similar circumstances"); MacKen......
  • U.S. v. Blackwell, No. 82-1261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 10, 1982
    ...Id. at 34-37. 6 See Washington v. United States, 134 U.S.App.D.C. 223, 225-226, 414 F.2d 1119, 1121-1122 (1969); United States v. Easter, 539 F.2d 663, 665 (8th Cir.1976); Robinson v. United States, 327 F.2d 618, 623 (8th Cir.1964); Spahr v. United States, 409 F.2d 1303, 1306 (9th Cir.), ce......
  • People v. Baldi
    • United States
    • New York Supreme Court Appellate Division
    • June 16, 1980
    ...States v. Pinkney, 543 F.2d 908 (D.C.Cir., 1976); United States v. Ingram, 477 F.2d 236, 240 (CCA 7th, 1973); United States v. Easter, 539 F.2d 663, 666 (CCA 8th, 1976); United States v. Moore, 180 U.S.App.D.C. 227, 554 F.2d 1086, 1089 (D.C.Cir., 1976); see, also, Chambers v. Maroney, 399 U......
  • Grant v. United States, No. 76 Civ. 2598.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 7, 1978
    ...denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975), or assistance up to the level of "customary skill," United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc). For a thorough review of the tests for judging ineff......
  • Request a trial to view additional results

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