United States v. Bigos

• Citation: 459 F.2d 639
• Decision Date: 01 May 1972
• Docket Number: 71-1356.,No. 71-1355,71-1355
• Parties: UNITED STATES of America, Appellee, v. Thaddeus BIGOS, Defendant-Appellant. UNITED STATES of America, Appellee, v. Dennis RAIMONDI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

459 F.2d 639 (1972)

UNITED STATES of America, Appellee, v. Thaddeus BIGOS, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Dennis RAIMONDI, Defendant-Appellant.

Nos. 71-1355, 71-1356.

United States Court of Appeals, First Circuit.

Heard March 6, 1972.

Decided May 1, 1972.

Joseph C. Delcore, Everett, Mass., and Anthony W. DiCecca, Somerville, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for defendants-appellants.

Frederick W. Read, III, Atty., Dept. of Justice, with whom Lincoln C. Almond, U. S. Atty., and Sidney M. Glazer, Atty., Dept of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

On the night of January 4, 1971, a truck belonging to Merit Dress Delivery Co., Inc. and traveling between Fall River, Massachusetts, and Madison, Connecticut, was hijacked in Providence, Rhode Island. Defendants Raimondi, Bigos, McDonald and four others were indicted for hijacking the truck (Count I) and for conspiracy to do the same (Count II).¹ McDonald's trial was severed. Bigos and the four others were convicted on both counts and Raimondi was convicted on the conspiracy count alone. Only Bigos and Raimondi are before us here.

The trial transcript is voluminous and we relate only those facts necessary for the resolution of these appeals. The government's principal witness was the co-conspirator McDonald. In addition to relating the details of the January 4 hijacking, he testified that the defendants met several times between July 1970 and January 1971 to plan the crime and that they intended to take a truck on December 22, 1970, but their plan was aborted when they were stopped by the Rhode Island State Police for a routine check.

On January 8, four days after the hijacking, the F.B.I. conducted a search of the property at 99 Tell Street, Providence, Rhode Island, and discovered the stolen clothing and piece goods. Five separate warrants, each designating a distinct portion of the Tell Street property,² were simultaneously issued on the basis of a single affidavit. The defendants contend that the warrants were issued without probable cause and that if probable cause existed at all, it existed only for a search of the first floor apartment. Thus they argue that the issuance of five warrants is equivalent to an impermissibly general search warrant. The affidavit in support of the warrants is based principally on information given by the driver of the hijacked truck.³ Applying the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), we find that the instant affidavit contains sufficient facts for a neutral magistrate to conclude both that the informant, Furtado, was credible and that he obtained his information in a reliable manner. With respect to the substance of Furtado's story, the fact that he was an eye-witness to the unloading of the truck is sufficient. There is also evidence of his credibility. Initially we note that we are dealing not with a "faceless informer," Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (Justice Douglas dissenting), but with a named individual who drove the hijacked truck. Part of his story was corroborated, and whether one views him as an innocent victim or a culpable participant, common sense dictates that there is sufficient reason to credit his identification of the Tell Street property. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); see also United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (Opinion of Chief Justice Burger, concurred in by Justices Black, White, and Blackmun). Since Furtado saw the goods going into the first floor apartment, there was probable cause to search at least that area.

Defendants' attack on the five warrants requires little discussion. We do not equate the issuance of five separate warrants with a single warrant for the entire property. Each warrant required an independent determination of probable cause, and that there may not have been probable cause to issue a warrant for some other portion of the property does not necessarily infect the validity of another warrant properly issued on the basis of the same information. Since only the search of the first floor proved fruitful, the defendants were not prejudiced by the search of the rest of the property and we need not determine whether there was probable cause for the other warrants.

The defendants argue that they were prejudiced by the government's nondisclosure of statements made by Furtado to the police and to the grand jury. The district court denied a pretrial motion for the production of evidence favorable to the defense on the basis of the United States Attorney's representation that he was in compliance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At trial the government successfully resisted disclosing Furtado's statements on the ground that since he was a potential prosecution witness, under the Jencks Act, 18 U.S.C. § 3500 (1970), such disclosure was not required until he had testified. However, Furtado was not called by the prosecution. At the close of the government's case, his statements, including grand jury testimony, were made available to the defendants. Had the defense been prejudiced by this use of the Jencks Act to delay complying with the mandate of Brady v. Maryland until the last possible moment, we would indeed be faced with a difficult issue. However, the district court examined Furtado's statements and found that they were not exculpatory. While the favorable nature of these statements is at best highly conjectural, we prefer to rely on the fact that the delay in their disclosure in no way prejudiced the defendants. See United States v. De Leo, 422 F.2d 487, 498-499 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); see also United States v. Sharpe, 452 F.2d 1117 (1st Cir. 1971). The substance of Furtado's statements was contained in Agent Conley's affidavit in support of his application for the search warrants. See note 3 supra. Since the defendants were fully apprised of the substance of these remarks and who made them, their preparation for trial was not impeded. Nor were the defendants hampered thereby at trial. The cross-examination of McDonald exceeds 500 pages and the suppressed statements suggest no conceivable line of questioning which had not already been thoroughly exhausted. In fact, once the defense received Furtado's statements, it made no effort to recall McDonald for further cross-examination. Finally, when Furtado was called by the defense, he repeated almost verbatim his testimony before the grand jury.

Defendant Bigos contends that the court committed error in allowing the jury to consider against him McDonald's testimony that after he, McDonald, went before the grand jury, he was threatened by Raimondi.⁴ Bigos argues that since the conspiracy had terminated at the time this threat was made, this testimony was admissible only against Raimondi. See Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). In Grunewald the Supreme Court found the record inadequate to support the view that there was an actual agreement to conceal, and it refused to imply one. The instant case is distinguishable from Grunewald, however, because here there was substantial real evidence that the...