United States v. Kulp
| Decision Date | 25 October 1973 |
| Docket Number | Crim. No. 72-272. |
| Citation | 365 F. Supp. 747 |
| Parties | UNITED STATES v. Gene Tony KULP et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Robt. E. J. Curran, U. S. Atty., Barton A. Hertzbach, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff gov't.
Louis M. Natali, Jr., Philadelphia, Pa., for Kulp.
Jack M. Myers, Philadelphia, Pa., for Powell.
Edward Reif, Philadelphia, Pa., for Dougherty.
OPINION
The defendants in this case were charged with receiving and concealing goods in excess of $5,000 moving in interstate commerce from Dallas and Houston, Texas to the Eastern District of Pennsylvania, knowing the same to have been stolen.1 The three defendants whose post trial motions are before us (Kulp, Dougherty and Powell), were jointly tried and were convicted by a jury.2 Their motions have been variously denominated as motions for judgment of acquittal (Rule 29(c)), new trial (Rule 33), and arrest of judgment (Rule 34), and they raise a variety of points which may be enumerated as follows: First, all defendants claim that the admission of evidence obtained from a search of Dougherty's automobile and of other evidence seized from a trash dump behind Kulp's home was error. Second, the defendants all contend that it was error to permit certain in-court identifications of Kulp and Powell. Third, all defendants submit that it was error to refuse to allow them to withdraw from a stipulation entered into on the eve of trial as to the ownership of certain stolen property, when it appeared at trial that one of the witnesses (Mrs. Diane Fennekohl) had become disabled and could not have appeared to verify ownership had she been called. Fourth, all defendants assert that it was error not to declare a mistrial when, by reason of the non-appearance of Mrs. Fennekohl, the United States Attorney could not connect certain silverware (not included in the stipulation) to the case.3 Fifth, Powell asserts that we erroneously denied his motion for severance. Sixth, Powell claims that we erred by failing to give a "missing witness" charge. Seventh, Dougherty argues that we erred in denying his motion for judgment of acquittal in that the verdict was not supported by the weight of the evidence. Eighth, Kulp asserts that he was prejudiced by a witness's reference to pictures.
It will be helpful at this juncture to set forth briefly the evidence adduced at trial.4 All of the evidence on the events in question was put on by the government; none of the defendants took the witness stand. Only Dougherty put on any evidence, and that was character evidence.
Briefly summarized, the government established the following points by the testimony of F.B.I. agents, especially of Special Agent James Aardweg. (1) On the evening of March 20, 1972, a number of F.B.I. agents set up a surveillance of the home of Kulp in Morwood, Pennsylvania, in a rural section of Montgomery County. (2) The agents saw several male figures milling about and loading packages into a Cadillac automobile protruding from Kulp's garage. (3) When the Cadillac and another vehicle left Kulp's premises, the agents followed and stopped them. (4) They found Dougherty to be the driver and Powell a passenger of the Cadillac in question and Dever to be a passenger of the other car. (5) They observed in plain view in the back seat of Dougherty's cars several suitcases that matched the description of those reported as stolen in Texas. (6) They seized those suitcases, including one with a tag marked "American Airlines Flt. 442." (7) They later opened the trunk of Dougherty's car with the keys that he gave them and procured therefrom another suitcase and a footlocker. Appended to the footlocker was an REA Air Express shipping tag indicating that it had been shipped on March 13, 1972, from Houston to Philadelphia and held for one B. Dever. (8) All of the suitcases and the footlocker were opened and were found to contain substantial quantities of proof coins, stamps, jewelry and other valuable articles. (9) The government also established that Dougherty was a jeweler.
The next elements of the government's case were established by stipulation. First, it was stipulated that the goods found in Dougherty's car were the same goods that had been stolen between March 12th and 18th from three identified homes in Texas. Second, it was stipulated that the goods mentioned in the first stipulation had a value in excess of $5,000. The stipulations obviated the necessity of the government's bringing witnesses from Texas to establish ownership and theft of the goods.
The government next proceeded to link Kulp and Powell with the transportation of the stolen goods from Texas to Pennsylvania. Ollie Johnson, who was employed by REA Air Express in Dallas on March 18 made an in-court identification of Powell. He testified that he was "pretty sure" that Powell was one of the men who shipped some luggage from Dallas to Philadelphia on March 18th. He had talked to Powell at the time and remembered the shipment because of the unusual weight of the luggage. Johnson also testified to serial numbers which matched the serial numbers on one of the REA slips used in Philadelphia to pick up the suitcases. Agent Mullins of the F.B.I. then testified that Johnson had also selected photographs of Dever and Powell on April 3, 1972, as the men who shipped the luggage in question. The photospread itself was not introduced.
Donna Kay, a stewardess for American Airlines, positively identified Kulp in court as a man who was aboard flight 442 from Dallas to Philadelphia on March 19, 1972. She testified that she remembered him because (1) he was casually dressed, which is not typical of first class passengers; (2) he sat with a short man without talking or moving about as much as was usual; (3) he was about 6'1? tall, which is about as tall as Miss Kay's brother; (4) he had blondish color hair; and (5) he had very craggy facial features, with high cheekbones and a thin strong jaw.
Thomas Burns, an REA Air Express employee at 30th Street Station in Philadelphia, identified Kulp in court as one of the men who on March 20 picked up some exceptionally heavy luggage which had arrived from Dallas. He testified that the man resembled Kulp very much. He stated that he remembered the man because he had talked to him about a gun rack on the back of his truck and because of the unusual weight of the luggage.5 Burns also identified the REA shipment receipts.6
Joseph Maloney, also employed at 30th Street Station, testified that he had talked to Dever when Dever signed for the suitcases and had seen others with Dever, but he could not identify any of Dever's companions. He testified that the luggage was particulary heavy and had been shipped from Houston and Dallas.7
Finally, Agent Robinson, a fingerprint expert employed by the F.B.I., testified that Powell's fingerprints were found on boxes in one of the suitcases seized from the trunk of the car driven by Dougherty.
We turn now to a discussion of the issues raised by the various suppression motions and will then discuss the various errors alleged as arising from the trial. The admission of physical evidence and identification testimony were the subject of extended evidentiary hearings on defendants' motions to suppress. The motion to suppress physical evidence seized from Dougherty's car was denied via a bench opinion several months before trial. The hearings on the defendants' motions to suppress both in-court and out-of-court identifications of certain witnesses and to suppress the silverware seized from the trash pile behind Kulp's home8 were conducted for the 2½ days preceding trial. The motions were again denied from the bench and we thereupon proceeded with the trial. On September 11, 1973, we entered an order denying the post-trial motions. Following are the reasons why all of the defendants' post-trial motions have been denied.
Special Agent James Aardweg of the F.B.I. was the principal government witness at the suppression hearing. According to Aardweg, at approximately 3:30 p. m. on March 20, 1972, the Philadelphia office of the F.B.I. received a telephone call from a man who refused to identify himself, stating that the F.B.I. had been interested in a man named Gene Kulp about a year before in connection with some stolen guns. The caller further stated: (1) that Kulp had recently received a large quantity of proof coins that had been stolen in the Dallas, Texas area two days previously; (2) that the coins had arrived in Philadelphia on March 20, 1972; and (3) that a jeweler named Dougherty would be at Kulp's home in Morwood, Montgomery County, Pennsylvania, during the evening of March 20, 1972, to purchase the coins. Agent Aardweg had personal knowledge of the F.B.I.'s prior investigation which was related by the anonymous caller and remembered that Kulp was a subject of the investigation.9 The Philadelphia office of the F.B.I. contacted their Dallas office in order to ascertain whether there were any reports in the Dallas area of recently stolen proof coins. Later that afternoon, the Dallas office phoned the Philadelphia office and reported that they had learned from the Dallas police that on March 18, 1972, a large number of proof coins and jewelry were stolen from the home of Hoyt Crabtree of Dallas.
Early that evening, Agent Aardweg, accompanied by several other agents, proceeded in two cars to the Limerick Barracks of the Pennsylvania State Police, where they were joined by a state policeman who was familiar with the rural area near Kulp's home in Morwood. While enroute, Agent Aardweg received a radio communication from his supervisor noting that several suitcases were stolen in the Crabtree burglary which presumably were used to transport the coins and jewels from the Crabtree home. The suitcases were described...
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