U.S. v. Hendrix

• Decision Date: 08 January 1985
• Docket Number: 83-2187 and 83-2277,Nos. 83-2131,s. 83-2131
• Citation: 752 F.2d 1226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Lynn HENDRIX, James George Shepherd, Russell Edward Merritt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1226

752 F.2d 1226

UNITED STATES of America, Plaintiff-Appellee, v. Terry Lynn HENDRIX, James George Shepherd, Russell Edward Merritt, Defendants-Appellants.

Nos. 83-2131, 83-2187 and 83-2277.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1984.

Decided Jan. 8, 1985.

L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Robert J. Weber, Chicago, Ill., Michael B. Metnick, Costello, Long, Young & Metnick, Springfield, Ill., Jeffrey D. Colman, Jenner & Block, Chicago, Ill., for defendants-appellants.

Before BAUER, EDWARDS ^* and ESCHBACH, Circuit Judges.

ESCHBACH, Circuit Judge.

Terry Lynn Hendrix, James George Shepherd, and Russell Edward Merritt were convicted after a jury trial of armed bank robbery, 18 U.S.C. Sec. 2213(d) and conspiracy to commit armed bank robbery, 18 U.S.C. Sec. 371. ¹ On appeal, they raise numerous issues relating primarily to the denial of various motions before, during, and after trial. We have considered all of the allegations of error noted by appellants and find them to be without merit. Accordingly, we affirm the judgments of the district court.

I.

James Shepherd lived in Andalusia, Illinois with his ex-wife, Irene Anders. On January 15, 1983, Shepherd was joined in Andalusia by two friends, Russell Merritt and Terry Hendrix. On January 18, at approximately 1:00 p.m., Shepherd delivered Anders' car to her office in Milan, Illinois, and was seen leaving in Hendrix's car. Between 1:00 p.m. and 3:00 p.m., a blue Ford Torino was stolen from the parking lot across the street from Anders' office. At approximately 3:20 p.m., two masked armed robbers burst into the Andalusia Community Bank and ordered everyone to the floor. One of the robbers entered the bank president's office and ordered the president and his customer, Allan Fuhr, into the lobby and onto the floor. The other robber removed approximately $12,000 from the tellers' stations.

As soon as the robbers left the bank, the president looked out the window and saw a blue Ford Torino speeding out of the parking lot. Fuhr gave chase in his truck and soon flagged down Deputy Sheriff Orrin Meyers. Both Meyers and Fuhr saw three men in the getaway car. Shots were fired from the car, however, and Meyers lost sight of it.

The getaway car was recovered later that day in the subdivision where Shepherd lived. Police recovered a ski mask, some loose currency, and a cigarette butt from the car. An expert testified that the hair found in the mask matched samples of Merritt's hair "in every observable microscopic characteristic," and there was some forensic evidence connecting the cigarette butt to Shepherd. ²

When Anders returned home that evening, she was met by Merritt, who said that he had "some good news and some bad news." Merritt told Anders, "We were chased but we got away." He then told her that a bag of money was hidden behind her house. Anders replied that she did not want the money in the house. She apparently soon decided she did not want Merritt in the house either, and she took him to the home of her daughter and son-in-law, Judy and Larry Parmley. Merritt returned to Des Moines, Iowa, the next day.

In the meantime, Anders retrieved the bag of money. On January 19, she mailed $7,025 to Shepherd's cousin in Ottumwa, Iowa, and took the rest of the money to her office. She then called the cousin, told him to expect a package, and instructed him not to open it. The cousin testified that he was told by Anders that Shepherd would pick up the package in a few days. After the package arrived, the cousin, who had by that time heard about the robbery, became suspicious. He called the FBI, and agents instructed him to open the package. The money in the package was identified as part of the stolen money from the Andalusia bank.

Shepherd was arrested in Rock Island, Illinois, on January 20. Hendrix and Merritt were arrested the next day in an apartment they were sharing in Des Moines. A search of the apartment pursuant to a warrant revealed more of the stolen money (some of it bearing Merritt's fingerprints), a loaded revolver, and Shepherd's driver's license and social security card.

II. Pretrial and Trial Motions

A. Merritt's and Hendrix's Motion to Suppress

A warrant to search the Des Moines apartment and Hendrix's car was obtained by FBI Agent William Barrett Root. The application for the warrant was supported by Root's affidavit, which outlined the facts of the robbery as recounted by witnesses, and the affidavit of Deputy Sheriff Richard Fisher. The Fisher affidavit stated that Rhonda Bennett, also a daughter of Irene Anders, and Larry and Judy Parmley had identified Merritt and Hendrix from bank surveillance photographs. ³

Merritt and Hendrix moved to suppress the evidence found in the search on the grounds that the affidavits did not establish probable cause to believe that evidence relating to the robbery would be found in the locations specified in the warrant. At a pretrial hearing, both the Parmleys and Bennett recanted their identifications, and Fisher admitted that he had erred in stating that Bennett had identified Merritt. The defendants then filed a supplemental motion to suppress, arguing that the Fisher affidavit contained knowingly false information. The district judge, noting Bennett's and the Parmleys' relationship to Anders (who had since been charged as an accessory after the fact), found their testimony incredible. Without making a finding about whether the information about Bennett's identification of Merritt had been included in the affidavit with knowledge of its falsity, the judge eliminated that identification and evaluated the affidavits to determine whether they still supported the issuance of the warrant. Finding that they did, the judge denied the defendants' motions to suppress.

On appeal, the defendants renew their arguments relating to their suppression motions. The defendants contend that, in evaluating the sufficiency of the affidavits to support the issuance of the warrant, the district court was required to eliminate from consideration all of the identifications made by the Parmleys and Bennett. We disagree. The district court judge rejected the testimony of the Parmleys and Bennett at the suppression hearing. The "[c]redibility of witnesses on a motion to exclude or suppress evidence is for the district judge to determine," United States v. Hilbrich, 341 F.2d 555, 559 (7th Cir.), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704 (1965), and the district judge's credibility determinations will not be overturned on appeal unless clearly erroneous. United States v. Davis, 514 F.2d 1085, 1088 (7th Cir.1975); United States v. Connor, 478 F.2d 1320, 1323 (7th Cir.1973). We cannot say that the judge's determination that the testimony of the Parmleys and Bennett at the pretrial hearing was incredible is clearly erroneous. We therefore do not agree that the trial judge was required to exclude their identifications in assessing whether probable cause existed for the issuance of the warrant. ⁴

We further disagree with the defendants' assertion that the affidavits do not establish probable cause to believe that evidence of the bank robbery would be found in the apartment and Hendrix's automobile. "Probable cause is established whenever there is a reasonable probability of finding the desired items in a particular location." United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982). The defendants argue that it was unreasonable to infer that evidence of the bank robbery would be found in the Des Moines apartment because three days had elapsed between the robbery and the search. However, the Fisher affidavit establishes the defendants' connection to the robbery, as well as the fact that Merritt left Illinois on a bus bound for Des Moines on the morning after the robbery. Further, the Root affidavit establishes that Hendrix was interviewed by his parole officer in Des Moines the day after the robbery, and that both Merritt and Hendrix were arrested two days after the robbery in the Des Moines apartment. Thus, the affidavits establish the probability that Merritt and Hendrix were involved in the robbery, and that both returned to Des Moines within a day after the robbery occurred. We stated in Rambis: Whether there is a sufficient nexus between the items to be seized and the place to be searched to establish probable cause depends on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would hide the items.

686 F.2d at 625; see also United States v. Lucarz, 430 F.2d 1051 (9th Cir.1970). The Andalusia bank robbery involved the theft of thousands of dollars. Two of the probable perpetrators of the robbery, neither of whom were natives of the area, left Andalusia within twenty-four hours to return to Des Moines. It was reasonable for the magistrate to infer that they would not leave without their loot and that it was likely that they would conceal the cash in the apartment rather than in some less secure and accessible place. The government was not required to negate every other possibility about where such evidence might be located. See Rambis, 686 F.2d at 623. We affirm the district court's finding that there was probable cause to search the apartment and Hendrix's car.

B. Motion for Change of Venue

All the defendants moved for a change of venue based upon the publication, approximately two months before trial, of eleven newspaper articles in a local paper, and coverage of the robbery by local radio and television stations. The trial court denied the motions and relied on the voir dire examination to protect the defendants from any prejudice from juror exposure to pretrial publicity. Most of the potential jurors had heard or read something about the robbery; however, upon questioning, most could remember no details of what they had heard or read. The...