United States v. Carmichael

• Citation: 489 F.2d 983
• Decision Date: 09 October 1973
• Docket Number: No. 71-1492.,71-1492.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CARMICHAEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.2d 983 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CARMICHAEL, Defendant-Appellant.

No. 71-1492.

United States Court of Appeals, Seventh Circuit.

Reargued June 1, 1973.

Decided October 9, 1973.

Gerald M. Werksman, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., William T. Huyck and Arnold Kanter, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and KILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.

CUMMINGS, Circuit Judge.

This case originated with the February 1969 issuance of a complaint by a United States Commissioner for the arrest of Robert E. Carmichael. The arrest warrant was issued on the complaint of Secret Service Agent Eugene Hussey, asserting a violation of the general conspiracy statute (18 U.S.C. § 371). The complaint was captioned "United States of America v. T. W. Allen, Robert E. Carmichael, and John Doe," and recited the following:

"That on or about February 6, 1969, at Chicago, in the Northern District of Illinois, T. W. Allen, Robert E. Carmichael and John Doe did conspire to commit an offense against the United States, to wit, in violation of Title 18, United States Code, Section 371, in that each of them had in his possession mail or articles contained therein which have been stolen, taken, embezzled and abstracted from and out of the United States mail; and, in furtherance of such conspiracy, they held a meeting on February 5, 1969.

"And the complainant states that this complaint is based on the fact that your complainant was told by a reliable informant,¹ whose information in the past has led to the conviction of at least six people, that T. W. Allen, Robert E. Carmichael and John Doe have in their possession numerous treasury and commercial checks, one of which is a check made payable to Photo Finishers, in the amount of $5,276.00. The confidential informant told your complainant that he has seen these checks in the possession of one of the defendants² and that the defendant who had possession told him that the checks would be given by Robert E. Carmichael to John Doe and then to T. W. Allen, and that these checks were stolen from the mail, and that Robert E. Carmichael, T. W. Allen and John Doe would cash or cause these checks to be cashed."

Pursuant to the warrant, Hussey arrested defendant Carmichael on February 10, 1969, in Harvey, Illinois. In April 1969, a five count indictment was returned against Carmichael, asserting that on February 10, 1969, in Harvey, Illinois, he possessed three U.S. treasury checks, a check issued by Gary's Pay-Less Drugs, and a check issued by the Illinois Central Railroad Company, knowing that they had been stolen from the mail, in violation of 18 U.S.C. § 1708.³ On the Government's motion, Counts I, II, and V were subsequently dismissed. Count III covered the possession of stolen treasury check 240,955 "being the contents of a letter addressed to Aunt Mid, Inc." Count IV covered the possession of stolen check C 07138, issued by Gary's Pay-Less Drugs, "being the contents of a letter addressed to Foto Finishers."

At the ensuing jury trial on Counts III and IV, Hussey testified that he first saw defendant on February 10, 1969, outside the house of Travis W. Allen at 902 West 109th Street, Chicago, in defendant's auto, where defendant was joined by Allen. They drove to 154th and Center Streets in Harvey, Illinois, where defendant parked his Cadillac El Dorado. Allen left the car and walked north and then east toward the First National Bank of Harvey. Defendant remained in the driver's seat of his Cadillac. When Allen returned toward the car he was placed under arrest by two other government agents. Thereupon Hussey arrested defendant, who was placed in a government car. Hussey then searched defendant's car and found 31 checks in an envelope under the carpeting of the car below the right-hand glove compartment on the passenger's side of the car. Among the 31 checks found were those specified in Counts III and IV of the indictment. Hussey said he first saw the government check described in Count III in Allen's office at 8:00 a. m. on February 4, 1969, when Allen showed him 12 to 14 checks. On that occasion, Allen told Hussey that the government check in question was stolen. Allen had been an informant for the Secret Service and had summoned Hussey to his office on February 4. Hussey knew Allen for about four years. Allen also telephoned Hussey on February 10 before 9:00 a. m., evidently about the rendezvous that took place later that day.

Narcotics Agent John Peoples testified that he was in Carmichael's apartment at 3:00 p. m. on February 4 and saw defendant take the check described in Count IV and apparently other checks from a large manila envelope in the view of Harold Mundel,⁴ Elizabeth Sykes, and one or two other women. In their presence, defendant said that the checks were stolen "and that they were attempting to cash one of the checks and they were trying to find a place they could cash the check on that particular day," referring to the Count IV check and possibly alternatively to a check payable to Marjorie Harris not mentioned in the indictment.

Defendant took the stand and denied ever seeing the indictment checks. He said he did not know there was an envelope containing checks under the floor-carpeting of his Cadillac on the day of his arrest. He denied that he had shown Peoples any stolen checks or an envelope containing checks. Defendant said he never discussed cashing stolen checks with Peoples. Defendant admitted meeting T. W. Allen through Harold Mundel ten days prior to his arrest. In all, defendant saw Allen three times. Mundel also introduced defendant to Agent Peoples. Prior to his arrest, defendant met Peoples twice.

The jury returned a guilty verdict under both Counts III and IV of the indictment, and defendant received concurrent sentences of five years on each of those counts. This appeal followed.

On November 6, 1972, a panel of this Court (Judge Fairchild dissenting) held that the above-described affidavit of Agent Hussey was insufficient on its face to establish probable cause for defendant's arrest, so that the defendant's motion to suppress the arrest warrant should have been granted. The panel did not consider whether the trial judge erred in precluding defendant's questioning of Agent Hussey concerning the reliability of informer T. W. Allen. See 489 F.2d 979, 980. On reargument befor the full Court, we hold that the affidavit was facially sufficient but that the district judge erred in denying defendant the opportunity to challenge the reliability of the informant at the hearing on the motion to suppress.

I

Defendant first contends that Agent Hussey's affidavit in support of the search warrant was insufficient on its face. It is true that the bulk of the affidavit was based on hearsay conveyed by a confidential informant, but that alone does not flaw the affidavit. United States v. Harris, 403 U.S. 573, 580-581, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 412, 89 S.Ct. 584, 21 L.Ed.2d 637; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Analyzing the affidavit, it appears that Agent Hussey initially vouched for the reliability of the informant⁵ and attested that information given by that person had led to the convictions of at least six people in the past. The informant conveyed his own knowledge based on his personal observation of the check specified in Count IV of the indictment in the possession of one of the three defendants named in the Commissioner's complaint.⁶ The informant gave Hussey the name of the payee and the precise amount of the check.

Thus far, as in United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), United States v. Edge, 444 F.2d 1372 (7th Cir. 1971), and United States v. Buonomo, 441 F.2d 922 (7th Cir. 1971), the credibility of the informant was established by his personal observations, and also Ly Hussey's attestation that information given by that source had resulted in the conviction of six persons in the past. Thus in contrast to United States v. Roth, 391 F.2d 507 (7th Cir. 1967), this informant's reliability was adequately spelled out by Hussey. Indeed, at the prior argument before the panel in September 1972, defendant's counsel at least conceded arguendo that the affidavit was sufficient on its face.⁷

It is immaterial here that the concluding portion of Hussey's affidavit contained hearsay, namely, the statement of the second informant, i. e., the possessor of the checks,⁸ to the first informant that the checks would be given by defendant Carmichael to John Doe (Harold Mundel) and then to Allen; that they were stolen from the mail; and that Carmichael, Allen and Doe would cash or cause them to be cashed. The statement by the second informant was an admission against penal interest, thus manifesting his reliability and constituting an exception to the hearsay rule. United States v. Harris, supra, 403 U.S. at 583-584, 91 S.Ct. 2075; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297; Rule 804(b)(4) of the Proposed Rules of Evidence for the United States Courts and Magistrates (1973).⁹ Such hearsay upon hearsay is not inherently defective. See United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972); United States v. Smith, 462 F.2d 456, 459 (8th Cir. 1972). As we held in United States v. Wilson, 479 F.2d 936, 941 (7th Cir. 1973), hearsay based on hearsay is acceptable in this instance as long as the affiant has "sufficient information so that both levels of hearsay meet the two-pronged test spelled out" in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, relating to (1) the reliability of the informant and (2) some knowledge of the underlying facts to support the conclusion that a crime had been committed. Here, as seen, the reliability of the first informant was...