United States v. Hoffman

• Decision Date: 17 November 1967
• Docket Number: No. 15922.,15922.
• Citation: 385 F.2d 501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alice Marie HOFFMAN, a/k/a Vicki Marie Johnson and Holsey Merritt Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.2d 501 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Alice Marie HOFFMAN, a/k/a Vicki Marie Johnson and Holsey Merritt Johnson, Defendants-Appellants.

No. 15922.

United States Court of Appeals Seventh Circuit.

October 3, 1967.

Rehearing Denied November 17, 1967.

Newton S. Friedman, Duluth, Minn., for appellants.

Edmund A. Nix, U. S. Atty., Madison, Wis., for appellee, Thomas C. Eckerle, John E. Clarke, Asst. U. S. Attys., for plaintiff-appellee.

David K. Hackley, Minneapolis, Minn., for amicus Minnesota Civil Liberties Union.

Edward Nager, Madison, Wis., for amicus Wisconsin Civil Liberties Union, Lynn Castner, Minneapolis, Minn., Executive Director, of counsel.

Before DUFFY, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges.

CASTLE, Circuit Judge.

The defendants-appellants, Alice Marie Hoffman and Holsey Merritt Johnson, prosecute this appeal from the respective judgment of conviction and sentence entered as to each following a jury trial on amended multiple-count informations respectively charging each of said defendants with the offense of conspiring with the other and one Thomas Fears to violate 18 U.S.C.A. § 2314;¹ charging defendant Hoffman with three substantive offenses in violation of § 2314; and charging defendant Johnson with aiding and abetting the commission of these substantive offenses, and with violating 18 U.S.C.A. § 3 by unlawfully assisting defendant Hoffman with intent to prevent her apprehension.

Fears, who became a witness for the prosecution at the April, 1966, trial of the appellants, had some nine months earlier pleaded guilty to an information in which he was charged with participating in the same conspiracy and of likewise aiding, abetting and assisting the defendant Hoffman.

The appellants predicate the existence of trial errors requiring reversal on the District Court's rulings permitting Fears and another witness, Irene Moses, whose existence and identity were disclosed to the government by Fears, to testify; on the court's denial of appellants' motion for an order that the government produce certain photographs of appellants which had been shown to persons who had been victimized by the cashing of the forged money orders and who at the trial identified defendant Hoffman as the person who had presented such money orders; on the assertion that Fears' unsuccessful attempt to invoke the Fifth Amendment during his cross-examination resulted in prejudice to the appellants which deprived them of a fair trial; and that the appellants were unfairly prejudiced by the government's calling of a witness who successfully invoked the Fifth Amendment.

The record discloses that the appellants and Fears were arrested by Superior, Wisconsin, police officers on December 11, 1964, shortly after the trio had checked out of a Superior motel. At the time of their arrest appellants and Fears were seated in an automobile parked on a Superior street. They were searched, fingerprinted and photographed, and held in the custody of the local police until December 14, when defendant Hoffman was surrendered to federal authorities who arrested her on a federal warrant, and December 15, when Johnson and Fears were likewise surrendered to federal authorities.

It is conceded that the original arrests by the Superior police were unlawful. The District Court granted appellants' motion to suppress with respect to items seized from appellants at the time of and following their arrest.

Appellants Johnson and Hoffman had registered at the motel on December 8, 1964. On December 10, 1964, a second room was rented to Fears, who had also arrived at the motel with the others on December 8th. A fourth person, a blonde woman, who had arrived with the party, stayed for a day and then left. When Fears checked out of the motel three money orders were found in a drawer of a desk in the room. The motel operators, Mr. and Mrs. Roman Byrka, notified the police who requested that if any of the parties returned, the Byrkas not tell about finding the money orders and turning them over to the police. Fears did return and inquired if anything had been left behind at the motel, but the Byrkas did not mention the money orders.

Appellants contend that the December 11, 1964, arrests having been unlawful, the testimony of Fears and that of the witness disclosed by him, Irene Moses, who corroborated Fears, was "tainted fruit of the poisonous tree" and therefore inadmissible against the appellants. We do not agree. While the unlawful arrests did serve to result in a disclosure of the true identities of Fears, Johnson and Hoffman, all of whom had registered at the motel under other names, the existence of these persons, their association together, and the fact that some stolen money orders had been left behind in the motel room occupied by one of them, were facts which became known apart from any disclosure resulting from the arrests and unlawful search and seizure. These facts supplied an adequate basis for the investigation which followed and culminated in the filing of the informations. In our opinion it would be naive to assume that but for the unlawful arrests the trio would "have blended back into the mass of the population, and would have remained at large" as appellants contend.² Certainly, the unlawful arrests did not serve to immunize the appellants from prosecution. In Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, it is pointed out:

"We need not hold that all evidence is `fruit of the poisonous tree\' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.\' Maguire, Evidence of Guilt, 221 (1959)."

The testimony of Fears and Moses did not come about by government exploitation of the illegal arrest or of anything incidental thereto. The source of the testimony lies in two much later events the occurrence of which were wholly independent of any fruit of the arrest. First, Fears' decision to plead guilty, and, second, Fears' subsequent determination to testify as a government witness. Without the first of these — the plea of guilty — a matter over which the government could exercise no control, the disclosure of Fears' identity which was an incident of the illegal arrest and tainted thereby was subject to no exploitation by the government which could be productive of Fears' testimony absent his consent. From a practical standpoint it was Fears' plea of guilty which made him available in the role of a witness against the appellants. His conviction upon that plea divested him of his Fifth Amendment right to refuse to testify concerning the...