U.S. v. Fried, 77-3403

• Decision Date: 12 May 1978
• Docket Number: No. 77-3403,77-3403
• Citation: 576 F.2d 787
• Parties: 3 Fed. R. Evid. Serv. 1091 UNITED STATES of America, Plaintiff-Appellee, v. Sidney FRIED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 787

576 F.2d 787

3 Fed. R. Evid. Serv. 1091

UNITED STATES of America, Plaintiff-Appellee, v. Sidney FRIED, Defendant-Appellant.

No. 77-3403.

United States Court of Appeals, Ninth Circuit.

May 12, 1978.

John G. Milano, of Milano & Cimmet, San Francisco, Cal., for defendant-appellant.

F. E. Dawson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and ANDERSON, Circuit Judges, and EAST, ^* District Judge.

WALLACE, Circuit Judge:

Fried appeals his conviction by a jury for violating 18 U.S.C. § 2314 by transporting in interstate commerce stolen property valued in excess of $5,000. We affirm.

I

In December 1976, it was discovered that seven negotiable Weyerhauser Company debentures, each having a face value of $100,000, were missing from the offices of a New York City clearing house which had received them from a seller for delivery to his buyer. Both the buyer and the seller were located in New York City; both presumed that the bonds had been stolen.

On January 2 or 3, 1977, Dorward, who was in San Francisco, received a call from DiRodio, who was apparently in Las Vegas, in which DiRodio said that he had access to some bonds that could serve as collateral for a loan Dorward was trying to arrange. DiRodio gave Dorward the serial number, year of maturity, and other identifying data corresponding to one of the missing debentures. In answer to Dorward's question, DiRodio assured him that there was nothing wrong with the debentures, that "they were not on any list, hot list."

A few days later, DiRodio, Guglielmini, and Herko met with Dorward at a San Francisco Holiday Inn (the Inn). Although DiRodio said that they had the debentures with them, Dorward was not shown any of the missing securities at that time. He was again assured that they were "not on any (hot) list at the present time."

Dorward, in trouble with the law on an unrelated matter, decided to act as an informer and contacted the FBI. The FBI was unable immediately to verify that the debentures described by DiRodio were stolen and asked Dorward to stall the three men. Guglielmini and Herko, who had brought the debentures with them from New York, said that they could not remain in San Francisco that day, but would return with the bonds the next Monday if plane fare were provided.

Thereafter, the FBI determined that the bond DiRodio had described was from among those missing in New York. Tickets for a flight from New York to San Francisco were purchased for Herko and Guglielmini by the FBI. DiRodio then called Dorward to inform him that another man, Sidney Fried, would also be coming from New York. It was agreed that Fried would pay his own plane fare; as it turned out, however, Fried used the ticket purchased for Guglielmini.

Dorward picked up DiRodio at the airport in San Francisco on Monday morning, January 10, 1977, and the two went to room 332 of the Inn where Herko and Fried were waiting. Dorward and Fried were introduced to each other and exchanged greetings. Then Herko, DiRodio, and Dorward proceeded to discuss the debentures, and one of them was produced for Dorward's inspection. Fried was in room 332 during this discussion but he did not participate in the conversation or, according to him, even overhear it. Dorward and DiRodio then left with the debenture.

Dorward and DiRodio bought a new envelope for the debenture, then went to an office building in San Francisco where FBI Agent Robinson was posing as an attorney who would inspect the bond. DiRodio remained outside on the sidewalk while Dorward met Robinson. Upon ascertaining that the debenture was from among those stolen in New York, Robinson sent men out to arrest DiRodio. Other agents went to the Inn and arrested Herko and Fried. Some time later Guglielmini arrived at the Inn; he voluntarily went to FBI headquarters for questioning and was arrested there. A search warrant for room 332 was subsequently obtained and executed. Hidden in a chair cushion were two more of the missing debentures.

After their arrest, the suspects, except for Herko, who apparently chose to remain silent, gave various explanations for their presence in San Francisco. Fried told FBI agents that Herko had offered him a free trip to San Francisco which he had accepted in order to visit a friend there. He said "that it's not unusual that he uses names of other people on tickets for himself because he travels quite a bit." He claimed that he did not know DiRodio or Dorward and that he did not even hear the conversation that took place when Herko, DiRodio, and Dorward discussed the debentures.

DiRodio claimed that he had met with no one that day except Dorward and that Dorward had had the debenture all along. He said that "he didn't know what the bond was."

During questioning before his arrest, Guglielmini denied any knowledge of the missing debentures. After being arrested, he claimed acquaintance with Herko only. He said he did not know DiRodio or Dorward; the record does not disclose whether he was asked about Fried.

The arresting officers found in Herko's possession an address book bearing the names and telephone numbers of Fried, Guglielmini, DiRodio, and Dorward. Fried's name was also found on a piece of paper in Guglielmini's wallet.

Fried was tried together with DiRodio, and both were convicted. Fried now urges four grounds for a reversal of his conviction. ¹ We find none of them persuasive.

II

Fried first argues that the warrant under which room 332 at the Inn was searched was illegally issued because the underlying affidavit of Agent Robinson was inadequate. In particular, Fried alleges that the affidavit failed to show that a federal offense had been committed, that the informer (Dorward) was reliable, or that the objects of the search might be in room 332. For these reasons, contends Fried, the district judge was in error when he denied the pretrial motion to suppress the evidence seized during the search, which included two of the missing debentures.

The principles governing the sufficiency of search warrant affidavits are by now well established. Where, as here, the affidavit is based upon the hearsay declarations of an informer, the magistrate issuing the warrant must be presented with at least some of the facts from which the informer concluded that the objects to be seized are indeed located at the place to be searched, and with some of the underlying circumstances from which the affiant has determined that the informer is credible and his information reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In the absence of a description of how the informer gathered his information, the latter requirement is satisfied if the informer has described the criminal activity in sufficient detail to assure the magistrate of his reliability. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

From the affidavit the magistrate need only conclude that criminal activity is probably shown; a prima facie demonstration is not required. Id. at 419, 89 S.Ct. 584; United States v. Mulligan, 488 F.2d 732, 736 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974). In reaching his conclusion, the magistrate should read " the affidavit as a whole (,) . . . giving the language a common sense and realistic interpretation . . . ." United States v. Bowers, 534 F.2d 186, 192 n.5 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311 (1976); accord, United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). ² Thus while we insist that probable cause be shown, we give "great deference" to the decision of the magistrate who concludes that such a showing has been made. Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. 584; United States v. Bowers, supra, 534 F.2d at 188-89.

Measured against this standard, we have little trouble finding that the search warrant was properly issued. The affidavit of Agent Robinson ³ was based largely upon the statements of Dorward who had seen and handled one of the missing debentures in room 332 and subsequently delivered it to Robinson. The affidavit specifically identified the bond as one of those presumed stolen in New York.

Fried argues that since the affidavit did not specifically state that the value of the missing property was over $5,000 or show that it had moved in interstate commerce, necessary elements of the section 2314 offense were not shown to exist. But the magistrate was entitled to infer that since the debentures were apparently stolen in New York and at least one of them was now in San Francisco, they were probably transported in interstate commerce by one or more of the suspects. The magistrate could also properly use common knowledge to support the conclusion in the affidavit that the securities were possessed in violation of section 2314 which requires that the property be worth more than $5,000. We agree with the district judge "that the magistrate doesn't have to close his mind to the affairs of the world to know that debenture bonds customarily are traded in amounts of $1,000 or more" and that others of the seven missing securities might well have accompanied the one obtained by Dorward.

The magistrate also had probable cause to believe that room 332 was the place where the property would be located. The fact that those possessing the debenture had displayed it in a hotel room suggested that, like other travelers, they would likely keep all their belongings in that place. See United States v. Lucarz, supra, 430 F.2d at 1055.

Finally, the magistrate was justified in believing Dorward to be credible. The affidavit stated that Dorward saw and handled one of the debentures, that he noted the serial number, and that the bond was personally given by Dorward to the affiant. Although the affidavit did not directly vouch for...