United States v. Mahanna

Decision Date12 June 1972
Docket NumberNo. 71-1533.,71-1533.
Citation461 F.2d 1110
PartiesUNITED STATES of America, Appellee, v. Elias Simon MAHANNA, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Merle L. Silverstein, Clayton, Mo., Rosenblum & Goldenhersh, Stanley M. Rosenblum, Clayton, Mo., for appellant.

Marshall Tamor Golding, Atty., U. S. Dept. of Justice, Washington, D.C., Daniel Bartlett, Jr., U. S. Atty., J. Kenneth Lowrie, Special Atty., U. S. Dept. of Justice, Washington, D.C., for appellee.

Before Mr. Justice CLARK,* VOGEL and LAY, Circuit Judges.

VOGEL, Circuit Judge.

Appellant, Elias Simon Mahanna, along with three others, was charged in an eleven-count indictment with conspiracy, 18 U.S.C.A. § 371, and violations of 18 U.S.C.A. § 2313 (the Dyer Act). Count 1, against all four defendants, charged a conspiracy to violate the Dyer Act, and the remaining ten counts charged substantive violations of that Act. Prior to trial, Mahanna's co-defendants entered guilty pleas to single-count violations and each of them received a suspended sentence and probation. Thereupon, the conspiracy charge and those substantive charges not involving Mahanna were dismissed (Counts 7-11), leaving Counts 2, 3, 4, 5 and 6 which involved Mahanna either singly (Counts 2 and 3) or with others (Counts 4, 5 and 6) to be determined. After an eight-day jury trial, Mahanna was found guilty on all five counts that had charged him with knowingly receiving and concealing stolen motor vehicles moving as interstate commerce, in violation of 18 U.S.C.A. § 2313. He was sentenced to four years' imprisonment on each count, the sentences to be served consecutively, for a total of twenty years.

On this appeal, Mahanna asks that his conviction on Counts 4 and 5 be reversed because of insufficient evidence, and that the charges set forth therein be dismissed. Additionally, Mahanna alleges that errors relating to the trial of all five counts necessitate a new trial. We turn first to a consideration of the alleged errors that touch upon all five counts of appellant's conviction.

Mahanna's first contention is that Government Exhibits Nos. 8, 9 and 10 were erroneously admitted into evidence, having been seized by the arresting officers from the trunk of the appellant's car without a warrant in violation of appellant's Fourth Amendment rights. No motion to suppress was made. The facts with reference to the seizure were developed piecemeal during the trial. Exhibit No. 8 was an "Identa-Card" with Mahanna's picture thereon but stating a false name and address — "Philip F. Gholson, Rt. 2, Palamor Park, Freeburg, Illinois". Government's Exhibit No. 9 was a fictitious Missouri driver's license in the name of "Norman J. Turk, Jr." Government's Exhibit No. 10 was a fictitious Illinois driver's license made out to "Philip Fred Gholson". These three exhibits were found in an attache case which had been in the trunk of the car the appellant was driving when he was arrested on May 6, 1970.

Prior to appellant's arrest, Missouri State Highway Patrolmen, in cooperation with United States Postal Inspectors, had placed appellant under surveillance on suspicion of automobile theft. On the day in question, appellant was observed driving a vehicle with an expired Washington, D. C., license plate. He was stopped for this reason. Upon being stopped, appellant was asked to produce his operator's license. He replied that it was in his wallet in the trunk of the car. Appellant then unlocked the trunk and withdrew therefrom an attache case which he began to open. The officers stopped him, obviously fearing that he might be reaching for a weapon. They opened the attache case and handed appellant his wallet, which was in plain view. The inference created from the testimony is that in doing so the officers also observed and removed Exhibits 8, 9 and 10 from the attache case which were subsequently identified, offered and received over objection at trial. The court, by its rulings on objections, clearly indicated that the opening of the trunk and the attempted removal of the attache case therefrom were purely voluntary on the appellant's part and further that the seizure of exhibits in question was incidental to appellant's arrest and that its rulings would have been the same had a motion to suppress been presented.

Appellant was next asked for the ownership papers for the automobile he was driving. These he could not produce. Appellant was formally placed under arrest, both for driving with an expired license plate and for suspicion of automobile theft. We believe appellant's contention that his Fourth Amendment rights against unreasonable search and seizure to be without merit in light of the facts adduced at trial.

Appellant was driving on a Missouri public highway and was under a duty to produce his driver's license at an officer's request. R.S.Mo.1959 § 302.181(2), V.A.M.S. See Rodgers v. United States, 8 Cir., 1966, 362 F.2d 358, 361, cert. denied, 1966, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454, wherein this court said at page 361:

"We note that Missouri statutes make it unlawful for any person to drive a motor vehicle upon a Missouri highway unless he has a valid operator\'s license, V.A.M.S. § 302.020(2); that such a license `shall be carried at all times by the holder thereof while driving a motor vehicle and shall be displayed upon demand of any officer of the highway patrol * * *. Failure of any * * * operator of a motor vehicle to exhibit his license to any of the aforesaid officers * * * shall be presumptive evidence that such person is not a duly licensed * * * motor vehicle operator\', § 302.181, par. 2; * * *."

In Rodgers, the patrolmen had information to the effect that a car answering the description of the vehicle driven by the defendant was stolen. They had sound and substantial reasons for stopping the defendant and initiating the investigation which turned up incriminating evidence. In the instant case, the appellant was arrested for driving a vehicle with an expired license and also for suspicion of auto theft. Exhibits 8, 9 and 10 were apparently in plain view in the attache case when it was opened to obtain appellant's wallet and license therefrom. We have then this situation: (1) the officers had the right to stop the appellant under the suspicious circumstances existing and thereafter require the production of a driver's license. (2) Appellant's driver's license or a substitute therefor was in his wallet in an attache case in the car's trunk. (3) Appellant either voluntarily opened the trunk himself or one of the officers did so with his consent. (4) Appellant reached into the trunk for the attache case, which was closed. (5) Appellant attempted to open the attache case but was prevented from doing so by the officers, who opened it themselves and handed appellant's wallet to him. In doing so, the officers observed and removed from the attache case Exhibits 8, 9 and 10 in question. (6) The officers had a right to be where they were and to do what they did when they observed Exhibits 8, 9 and 10. (7) The officers were not engaged in an exploratory search, but in a situation calling for the application of the plain view doctrine. (8) The seizure of the exhibits was incidental to the arrest of the appellant.

In Harris v. United States, 1968, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L. Ed.2d 1067, 1069, the Supreme Court noted:

"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence."

See United States v. Cecil, 8 Cir., 1972, 457 F.2d 1178; United States v. Jones, 8 Cir., 1971, 452 F.2d 884; United States v. Briddle, 8 Cir., 1971, 436 F.2d 4, cert. denied, 1971, 401 U.S. 921, 91 S. Ct. 910, 27 L.Ed.2d 24; Searles v. State of Minnesota, 8 Cir., 1970, 428 F.2d 1188, cert. denied, 1970, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 145; Fagundes v. United States, 1 Cir., 1965, 340 F.2d 673. Cf. Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Brinegar v. United States, 1949, 338 U. S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Parham, 8 Cir., 1972, 458 F.2d 438.

We hold that the facts and circumstances surrounding the seizure of Exhibits 8, 9 and 10 fully justified their admission as evidence against appellant.

As his next contention, appellant complains that the trial court made prejudicial comments during the course of the trial and in its charge to the jury concerning appellant's failure to testify. Early in the trial, which, as we have noted, lasted some eight days, appellant apparently had some disagreement with his personally retained counsel with reference to the questioning of witnesses. Appellant sought the permission of the trial court to personally participate in the trial and to cross-examine witnesses when he chose to do so. The request was granted. Shortly thereafter the trial court became convinced that the appellant was attempting to testify by introducing statements of fact into his questions. Appellant was called to the bench and admonished as follows:

"The Court: You can ask him whose name was on there first, but if you\'re going to testify, you\'re going to have to take the stand. Now, that\'s what you\'re doing, in effect, and that\'s where you may be — the point I\'m trying to tell you is you can be sworn and this Court\'s not trying to walk you into a situation where other evidence may be introduced, but if you persist in — the way to ask this question, Mr. Mahanna — just a minute. The way to ask him is say — just mention this Janice Laberta\'s name appears there and then hand him the exhibit and ask him to inspect that line and see — ask him: did your name ever appear there. That\'s the way to do it, and you may do that, but if you go any further in cross-examination and make any statement like you did —
"Mr. Mahanna: I\'ll stop here.
"The Court
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