U.S. v. Holmes

• Decision Date: 16 March 1979
• Docket Number: No. 78-1464,78-1464
• Citation: 594 F.2d 1167
• Parties: 4 Fed. R. Evid. Serv. 182 UNITED STATES of America, Appellee, v. Ronald John HOLMES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1167

594 F.2d 1167

4 Fed. R. Evid. Serv. 182

UNITED STATES of America, Appellee, v. Ronald John HOLMES, Appellant.

No. 78-1464.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 20, 1978.

Decided Feb. 21, 1979.

Rehearing and Rehearing En Banc Denied March 16, 1979.

Robert E. Oliphant, Minneapolis, Minn., for appellant.

Joseph T. Walbran, Asst. U.S. Atty., Minneapolis, Minn., argued, Andrew W. Danielson, U.S. Atty., on brief, for appellee.

Before LAY, ROSS and McMILLIAN, Circuit Judges.

ROSS, Circuit Judge.

Appellant Holmes was convicted on three counts (Counts II, III, and IV) of illegally receiving firearms in violation of 18 U.S.C. §§ 922(h) and 924(a). ¹

Two of the guns (Counts II and III) which Holmes received had been stolen in the January 30, 1978 robbery of a hardware store in Pequot Lakes, Minnesota. The third gun (Count IV) was found at Holmes' residence, but was not from the hardware store. A variety of items had been stolen in the hardware store burglary, including ammunition, stereo equipment and watches.

Holmes' residence at 3003 Morgan Avenue North in Minneapolis was searched pursuant to a warrant on January 31; the guns from Counts II and IV were seized. Holmes was arrested on February 9 while leaving a woman's residence at 3310 Thomas Avenue North. This residence was searched with her permission, and the Count III firearm, a .30-30 caliber rifle from the hardware store, was seized.

The search warrant for appellant's residence was based on an affidavit by David Kendall, another felon and an acquaintance of Holmes. Kendall told federal agents about the guns at Holmes' residence after Kendall was himself arrested for trying to sell a gun to ATF undercover agents. Kendall told the agents he had received the gun from Holmes earlier in the day. ² Kendall was among those testifying at trial, as was Holmes himself.

Holmes raises numerous issues, many relating to trial and pretrial matters, and one relating to sentencing.

Search of Holmes' Residence

Holmes challenges the sufficiency of the warrant to search his residence based on information supplied by Kendall. He asserts there was no probable cause, and that Kendall's information should not have been We address the adequacy of information provided to an affiant under the two-prong Aguilar test. A magistrate reviewing an affidavit based on information supplied by an informant must be told:

relied upon because Kendall was a scurrilous felon, eager to blame someone else when caught with a contraband gun.

(1) some of the underlying circumstances from which the informant concluded that the (firearms) were where he claimed they were, and

(2) some of the underlying circumstances from which the officer concluded that the informant * * * was "credible" or his information "reliable."

Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).

The first prong is clearly satisfied by Kendall's personal observation of the firearms at Holmes' residence. United States v. Gavic, 520 F.2d 1346, 1350 (8th Cir. 1975); United States v. Marchildon, 519 F.2d 337, 341 (8th Cir. 1975).

The second prong requires that we question the circumstances establishing Kendall's credibility, or the reliability of his information.

In the present case there was no averment that the informant had previously provided correct information to the police, a circumstance which generally satisfies the reliability requirement. See United States v. Scott,545 F.2d 38, 40 (8th Cir. 1976), Cert. denied, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 784 (1977). Such an averment is not, however, necessary in every case, and other information may support the belief that the informant's tip is truthful.

First, as in United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the affidavit here purported to relate the personal observations of the informant: Kendall was shown both guns and ammunition inside Holmes' residence with Holmes present. The affidavit disclosed that Kendall earlier agreed to trade a shotgun to the agents for a .38 caliber pistol and did in fact deliver a shotgun to the agents which he said he had received from Holmes.

Second, the affiant-policeman related facts within his knowledge relative to the defendant's reputation. An affiant's knowledge of a defendant's reputation is a "practical consideration" upon which "an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip." United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. at 2081. (Opinion of Burger, C. J.) ³

Additionally, Kendall's tip contained admissions against his penal interest. After being caught selling a firearm, Kendall's further admission that he had observed numerous guns, ammunition and watches, that he'd been told they were stolen, and that all these items were offered to him at half price, potentially implicated him in criminal activity beyond the possession or sale of a gun to the agents. United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. 2075. ⁴ Finally, the observations of surveillance officers provided some corroboration of Kendall's story, including the descriptions of Holmes' residence and the stalled car. Corroboration of these details of Kendall's story took place on the same day Kendall picked up the firearm at Holmes' residence for the sale to the agents. According to surveillance officers who watched the house later that day: "Ronald John Holmes was observed by the agents taking articles from the house to an automobile in the late afternoon. Between 6:30 and 6:45 p. m. Holmes was observed returning to the residence carrying a long object." See United States v. Regan, 525 F.2d 1151, 1156-57 (8th Cir. 1975).

While this corroboration, or the previously described facts, might not in and of themselves be sufficient, viewed together they did provide the magistrate with articulable information from which he could reasonably conclude that the informant was credible and his information reliable.

We conclude that there was a "substantial basis" for crediting the tip, and that the trial court did not err in refusing to invalidate the warrant. See generally United States v. Washington, 550 F.2d 320, 326 (5th Cir.), Cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977).

Allegations of Error in Evidentiary Rulings

Appellant Holmes contends that the trial court made two evidentiary errors, one in admitting the testimony of Holmes' probation officer, Garold Ray, and another by excluding the testimony of a defense witness, Alfred C. Villaume, who allegedly would have testified he overhead a conversation between two United States Marshals about killing the appellant Holmes.

Holmes attacks the admission of Ray's testimony on several grounds, but we consider them to be without merit. First, Holmes asserts that his communications with Ray, a probation officer, were privileged. Claims of privilege are governed by Fed.R.Evid. 501. The Rule provides that privileges of witnesses shall be governed, unless otherwise provided, "by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."

In a federal criminal prosecution, the federal law of privileges is controlling. ⁵

Appellant Holmes cites no authority, nor have we found any, in which a federal court has recognized a "probation officer" privilege or an analogous privilege accorded to a person in a similar role. Moreover, we see distinct dissimilarities between the probation officer-parolee relationship (and the duties of a probation officer) and that of a physician or psychologist or a lawyer in cases where those privileges have been recognized.

Appellant's further assertion that the probation officer failed to recite Miranda warnings prior to his discussion with Holmes about black powder weapons is also insubstantial. Their discussion occurred on December 30, 1977 (the burglary of the hardware store was not until January 30, 1978), and did not occur while Holmes was in custody or charged with a crime. "In such circumstances he was not entitled to the warnings required by Miranda v. Arizona, 384 U.S. 436, (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966)." United States v. Paulton, 540 F.2d 886, 891 (8th Cir. 1976).

Finally, the evidence concerning the black powder firearms was neither irrelevant nor unfairly prejudicial. In his discussion with probation officer Ray, Holmes admitted owning the black powder weapons. The government then used Ray's testimony to prove Holmes' possession of the Weapons in the indictment by showing that the illegal guns were found in the same room with black powder loading equipment, in a house leased to Holmes. The black powder weapons were found in the living room. Evidence connecting Holmes with the illicit weapons was relevant because of Holmes' contention at trial that Kendall also resided in the house and that the illegal weapons were his.

Nor do we believe that the prejudicial aspects of Ray's testimony outweighed the probity, as Holmes contends. The court cautioned the jury "that it is not illegal for the defendant to receive or be in the possession of black powder firearms and that any evidence regarding such firearms in this trial does not go to the specific counts of the indictment against this defendant." As outlined above, the evidence was relevant. We accord deference to the trial judge's evaluation of the relative weights of prejudice and probity, and find no error. See United States v. Matlock, 558 F.2d 1328, 1332 (8th Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 218, 54 L.Ed.2d 152 (1977).

For the same considerations, the trial judge's decision to Exclude Villaume's testimony was not error. Holmes' counsel did not seek to have the alleged murder plot against Holmes introduced for its truth, but to provide a plausible reason for Holmes' absence between the time his house was searched and he was arrested, to show Holmes'...