United States v. Airdo

• Decision Date: 23 October 1967
• Docket Number: No. 15786.,15786.
• Citation: 380 F.2d 103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominic Daniel AIRDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

380 F.2d 103 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Dominic Daniel AIRDO, Defendant-Appellant.

No. 15786.

United States Court of Appeals Seventh Circuit.

June 19, 1967.

Rehearing Denied July 12, 1967.

Certiorari Denied October 23, 1967.

Jason Ernest Bellows, Irwin D. Bloch, Sherman C. Magidson, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Gerald M. Werksman, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Richard T. Sikes, Asst. U. S. Attys., of counsel, for appellee.

Before SCHNACKENBERG, KILEY, and SWYGERT, Circuit Judges.

Certiorari Denied October 23, 1967. See 88 S.Ct. 238.

SWYGERT, Circuit Judge.

Dominic Daniel Airdo appeals from a judgment of conviction entered upon a jury verdict of guilty on an indictment charging him with unlawful possession of a television set stolen from interstate commerce, in violation of 18 U.S.C. § 659.¹ The defendant does not challenge the sufficiency of the evidence. In urging reversal of his conviction, he relies upon an allegedly fatal defect in the indictment, error in the admission into evidence of a television set allegedly obtained through an unreasonable search and seizure, and various other trial errors.

The indictment charged that on or about October 19, 1965 at Cicero, Illinois the defendant "did unlawfully buy, receive, and have in his possession * * a Muntz television set Number 18839 * * * which had been * * * stolen * * * from a motor truck and depot of Joseph T. Ryan Cartage Company, Inc., and * * * which did constitute an interstate shipment of freight from Muntz TV, Inc., Wheeling, Illinois, to Hager, Inc., Bridgeport, Connecticut; in violation of Title 18, United States Code, Section 659." The defendant points out that knowledge that the chattel had been stolen is an essential element of the crime charged. He contends that the indictment is fatally defective in failing to specifically allege that he possessed the television set knowing that it had been stolen. We believe the indictment, although imperfectly drafted sufficiently charged the element of knowledge to state an offense under the relevant portion of 18 U.S.C. § 659.

As we stated recently, "an indictment must contain all the elements of the offense charged but it is not insufficient for imperfections of form which are not prejudicial." United States v. Richman, 369 F.2d 465, 467 (7th Cir. 1966). "The test of sufficiency is whether the indictment informs the defendant of what charges he must meet and protects him against double jeopardy" Id. In Richman we held that an allegation in an indictment charging a violation of 18 U.S.C. § 1341 that the defendant caused parcels to be mailed "for the purpose of executing" a scheme to defraud sufficiently charged the defendant with knowingly causing the items to be delivered by mail. Similarly, in United States v. Parisi, 365 F.2d 601 (6th Cir. 1966), vacated on other grounds sub nom. O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (U.S. March 20, 1967), the Sixth Circuit held that an indictment charging the defendants with "unlawfully" removing property from a customs bonded area in violation of 18 U.S.C. § 549 sufficiently alleged that the defendants acted knowingly and wilfully.

In the context in which it appears in the instant indictment, the word "unlawfully" supplies the required element of knowledge. Possession of a television set recently stolen from an interstate shipment could be "unlawful" under 18 U.S. C. § 659 only if the possesion were accompanied by knowledge that the set had been stolen. The recitations of the indictment necessarily imply knowledge and the statute is satisfied, if not by the statutory terms, by "words of similar import." United States v. Salliey, 360 F.2d 699, 701 (4th Cir. 1966); United States v. Martell, 335 F.2d 764, 765-766 (4th Cir. 1964). There is no question, in view of the language used, that the indictment adequately informed the defendant of the charge with which he was faced and that it protects him against a second conviction for the same offense. Nor can the defendant claim that he was prejudiced in any way by the absence of a specific allegation of knowledge. The defendant raised no objection to the omission at the trial. The question whether he knew that the television set had been stolen was the principal issue in the case and the jury was instructed that the defendant could not be found guilty unless such knowledge had been established.

A discussion of the defendant's contention that the television set admitted into evidence should have been excluded as the product of an unreasonable search and seizure requires a brief statement of the testimony given at a hearing on the defendant's motion to suppress evidence, which motion was later denied by the district judge. At approximately 9:00 a. m. on October 19, 1965. two special agents of the Federal Bureau of Investigation rang the doorbell of the second floor walk-up apartment in Cicero, Illinois in which the defendant, a married man, lived with a young woman named Mary Hilan, who was not the defendant's wife, and their nineteen month old daughter. The agents were conducting an investigation into the theft of a shipment of television sets, but had no search warrant. The defendant was not at home. Miss Hilan descended the stairs to the ground floor to answer the bell. The agents identified themselves. According to Miss Hilan's testimony, the agents preceded her up the stairs, stating en route that they wished to talk to her. When they reached the open door of the apartment, the agents caught sight of a television set in one of the rooms. Miss Hilan testified that the agents then expressed the belief that the set might be stolen property and requested permission to inspect it. Permission was granted. A few moments later, the agents asked if they could remove the back of the set to check the serial number. Miss Hilan again said yes. The set later proved to have been stolen.²

The FBI agent who testified gave a slightly different version of the events following the agents' identification of themselves to Miss Hilan. He testified that Miss Hilan invited the agents to hold whatever conversation they wished to have with her in the apartment because she did not wish to leave her child unattended. The agent testified that Miss Hilan was advised that the agents were conducting an investigation relating to stolen television sets; that they had received information that she might be in possession of one of these sets; that they desired to inspect the set in her apartment, but that she did not have to permit inspection of it because the agents did not have a search warrant. The agent testified that Miss Hilan offered her full cooperation, stating that she had nothing to hide, and in fact assisted the agents by providing a screwdriver to remove the back of the set.

The defendant maintains that under the circumstances just related Miss Hilan's consent to the examination of the television set was impliedly coerced. He also argues that her consent, even if voluntary, could not operate as a waiver of his constitutional right to be free from unreasonable searches and seizures.

First, we think that under either Miss Hilan's or the agent's version of what occurred in the defendant's apartment, the consent given by Miss Hilan to the agents' inspection of the television set was voluntary. No coercion was applied or threatened and no deception was practiced under either account. The agents did not go to the apartment for the purpose of making a search, nor did they demand entrance to conduct a search under color of their authority, as in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), relied upon by the defendant. The occasion for requesting permission to inspect the television set arose after the agents were admitted to the apartment. Nothing in Miss Hilan's testimony indicates that she felt constrained to cooperate or that her actions constituted an involuntary submission to authority. Under circumstances which were certainly more compelling than those facing Miss Hilan, we held that consent to a search without a warrant was freely and voluntarily given. United States v. MacLeod, 207 F.2d 853 (7th Cir. 1953). And see United States v. Sferas, 210 F.2d 69, 73-74 (7th Cir.), cert. denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L. Ed. 1086 (1954); United States v. Gorman, 355 F.2d 151, 159 (2d Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966).

The defendant's argument that Miss Hilan's consent could not affect his right to be free from unreasonable searches must also be rejected. In United States v. Sferas, supra, 210 F.2d at 74, we acknowledge the rule that "where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either." The rule has been applied by other courts to searches following consent given by the wife of the defendant, e. g. Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965), and by a woman standing in the position of the defendant's wife, Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir.), cert. denied, 382 U.S. 964, 86 S.Ct. 452, ...