United States v. Foy, 16996.
| Decision Date | 17 September 1969 |
| Docket Number | No. 16996.,16996. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Brian FOY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Michael B. Nash, Samuel K. Skinner, Asst. U. S. Attys., of counsel, for appellant.
Robert S. Bailey, Chicago, Ill., for appellee.
Before KNOCH, Senior Circuit Judge, and CUMMINGS and KERNER, Circuit Judges.
Defendant was indicted for violation of 18 U.S.C. § 1071, harboring and concealing a person from arrest. A jury found defendant guilty and from this conviction he appeals.
On October 19, 1967 an appeal bond of Bernard Francis Ryan was revoked and a bench warrant was issued for his arrest. The next morning, F.B.I. agents drove to an apartment building in Chicago, Illinois in which a friend of Ryan's, Leona Phebus, lived. Ryan was known to frequent her residence. When the agents arrived, they saw Ryan's car outside. Two agents entered the front of the building while two other agents entered through the rear. Four minutes elapsed from the time the agents knocked on the door until Leona Phebus let them in. In the apartment the agents met the defendant Foy. Phebus and Foy were told that the agents had an arrest warrant for Ryan based on the revocation of his bond. The agents also told them that if they failed to tell the whereabouts of Ryan they would be guilty of harboring and concealing a fugitive. Both Foy and Phebus told the agents that they had not seen Ryan since the previous afternoon. The agents were allowed to search the entire apartment but they could not find Ryan. Two agents left to try another place but later called back to say that Ryan was not at the other place. Then, one of the agents at the Phebus apartment found Ryan on a ledge outside the bedroom window. He was ordered to come in and was arrested. Phebus and Foy were both indicted for harboring and concealing Ryan. Phebus pled guilty but refused to testify at the trial of Foy. The court was asked to issue a writ of habeas corpus ad testificandum for production of Ryan but the court refused.
Since there was no evidence that Foy told Ryan to hide on the ledge, the essential question before the court is whether Foy's statement that he had not seen Ryan since the previous afternoon and did not know where he was, violated 18 U.S.C. § 1071.
18 U.S.C. § 1071 provides:
Whoever harbors or conceals any person for whose arrest a warrant * * * has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant * * * has been issued * * * shall be fined. * * *
In United States v. Shapiro, 113 F.2d 891, 130 A.L.R. 147 (2nd Cir. 1940), the court having before it 18 U.S.C. § 246, the predecessor of § 1071, held that the words "harbor" and "conceal" must be construed narrowly, not to include all forms of assistance. "These are active verbs, which have the fugitive as their object." 113 F.2d at 892. The court concluded that weekly payments of $250 to the fugitive, the purpose of the payments being to allow him to evade arrest, did not come within the proscribed behavior. The court in United States v. Biami, 243 F.Supp. 917 (E.D.Wis.1965), held that the refusal to admit the police officers into the apartment where the fugitive was, constituted harboring and concealing under § 1071. Here, the agents were admitted into the apartment and were allowed to completely search it. There was no evidence that defendant took any action "to hide, secrete or keep out of sight" or "to lodge, to care for after secreting the offender" as the terms conceal and harbor are defined in United States v. Thornton, 178 F.Supp. 42, 43 (E.D.N.Y.1959). In Thornton the defendant left Denver, Colorado with the...
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