United States v. Missler

• Decision Date: 25 August 1969
• Docket Number: No. 12757.,12757.
• Citation: 414 F.2d 1293
• Parties: UNITED STATES of America, Appellee, v. Earl MISSLER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

414 F.2d 1293 (1969)

UNITED STATES of America, Appellee, v. Earl MISSLER, Appellant.

No. 12757.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1969.

Decided August 25, 1969.

COPYRIGHT MATERIAL OMITTED

Edward L. Genn, Washington, D. C. (Brown, Genn & Brown, Washington, D. C., on brief), for appellant.

Paul M. Rosenberg, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., and Clarence E. Goetz, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

This is Earl Missler's appeal from his conviction by District Judge Northrop, sitting without a jury, for violating the federal "obstruction of justice" statute, 18 U.S.C. § 1503. The indictment charged that he did "corruptly endeavor to influence, obstruct, and impede the due administration of justice" by hiring and paying sums of money to Vincent Ferrara to cause the murder of or serious injury to Richard O'Keefe.

The genesis of the alleged offense was in an earlier indictment against the appellant and others for hijacking a truck carrying a large quantity of cigarettes in an interstate shipment from Greensboro, North Carolina, to Brooklyn, New York. O'Keefe was one of Missler's co-defendants in that case, and he was expected to testify for the Government against Missler.

The Government offered testimony tending to establish the following: On July 5, 1967, 565 cases of Kent cigarettes were hijacked from an interstate shipment of P. Lorillard Company moving from Greensboro, North Carolina, to Brooklyn, New York. The Federal Bureau of Investigation began an investigation of the theft which led to the arrest in October, 1967, of Horace England and Richard O'Keefe. The investigation continued following these arrests.

On December 15, 1967, Missler and O'Keefe met at the home of Vincent Ferrara. On that occasion Missler and O'Keefe quarreled; O'Keefe angrily accused Missler of falsely denying complicity in the hijacking, and warned him that "if I go away to jail, you know we're all going to go away."

Just four days later, on December 19, 1967, appellant Missler and O'Keefe were both indicted. Indicted with them were Horace England, William Harmatz and Milton Kind. Missler was arrested on the same day at his home by F.B.I. Special Agents David E. Faulkner and Gail T. Cobb. It is undisputed that before taking Missler to the F.B.I. office, the agents informed him of the charges, gave the required Miranda warnings, and permitted him to make a telephone call. The officers and their prisoner then repaired to the F.B.I. headquarters. The transcript of Agent Cobb's testimony on direct examination contains the following:

Q. Now, what, if anything, sir, happened on the trip to the F.B.I. office?

THE WITNESS: (Agent Cobb)

I was sitting in the back seat with Mr. Missler. David Faulkner was driving. At some time en route to the F.B.I. office, Mr. Missler asked if he could — if I would tell him one thing, and I said if I could.

He asked the question, did O\'Keefe tell you I was involved in this case?

I said, I can\'t tell you that. I will tell you, the F.B.I. can\'t go around arresting someone on one individual\'s say-so alone, it has to be corroborated.

Mr. Missler nodded his head and said, you\'ve answered my question.

After processing, Missler was released on bond. Eight days later, on December 27, 1967, according to the testimony of Ferrara, Missler met with him for the purpose of discussing the elimination of O'Keefe, the prospective government witness against Missler. They agreed that Ferrara would arrange for the sum of $4,000 to have O'Keefe killed. No money changed hands on that date, but during the first week of January, 1968, Missler made payments of $1,000 and $500 to Ferrara.

On January 9, 1968, Ferrara phoned the F.B.I. about the O'Keefe "contract." Ferrara informed Agents Faulkner and Cobb that he expected Missler to visit him that morning for the purpose of making an additional payment, and he invited them to come to his home. The agents reported the call from Ferrara to the United States Attorney who advised them to accept Ferrara's invitation. Accordingly, they went to Ferrara's and secreted themselves at the head of the stairs leading to the second floor. Missler arrived soon thereafter, and the agents heard him confirm Ferrara's story about the agreement Missler had made with him to have O'Keefe murdered. In the course of the conversation, Missler paid Ferrara an additional $500, warned him that O'Keefe carried a gun, and promised that he would take care of Ferrara's family if anything happened to him. At trial Ferrara testified to this conversation, and Agents Cobb and Faulkner corroborated him in all respects.

Taking the stand in his own behalf, appellant denied ever having arranged with Ferrara for the killing of O'Keefe. His version was that there was an agreement between O'Keefe, Ferrara and himself to "shake down" Harmatz, a co-defendant in the hijacking case, for a sum of money in return for assurances that they would not implicate him in the hijacking. Missler admitted having given Ferrara $500 in the course of the January 9, 1968 meeting at Ferrara's home as Ferrara and Agents Cobb and Faulkner had testified. Missler's explanation, however, was that this was a division of the proceeds of the shakedown of Harmatz, not a payment on a contract on O'Keefe's life. Numerous character witnesses were also called by the defense; and the Government offered O'Keefe and England as rebuttal witnesses to substantiate its theory of the case.

At the conclusion of the testimony, the District Judge found appellant guilty. Sentencing was deferred pending defendant's motion for a new trial. The motion was denied on August 15, 1968, and a maximum sentence of five years was imposed. Another motion for new trial, this one on the ground of newly discovered evidence, was filed by appellant, and the District Judge ordered an evidentiary hearing, which was held on March 6, 1969. Conflicting affidavits were submitted for the court's consideration. In one of these, dated November 27, 1968, and offered by the defendant, Ferrara asserted that his testimony at trial had been false and that Missler never hired him to arrange for the killing or injuring of O'Keefe. In the other affidavit, dated January 29, 1969, and offered by the Government, Ferrara affirmed the truth of his trial testimony and repudiated his affidavit of November 27, 1968, declaring it not "a true statement of the facts." Following the hearing, the District Judge denied the motion.

In this court appellant has advanced a number of grounds for reversal, but after full consideration, we affirm his conviction.

I. Sufficiency of the Indictment

Preliminarily, we deal with appellant's contention that the indictment fails to charge a violation of 18 U.S.C. § 1503.¹ The defects complained of are that (1) the indictment contains no allegation that the defendant knew that O'Keefe would testify against him at the hijacking trial, and (2) it alleges that Criminal Action Number 27887 was now (the date of the indictment for obstruction of justice), rather than then (the date of the acts constituting the present offense), pending in the United States District Court for the District of Maryland.

We are of the opinion that these are not fatal infirmities. This court, speaking through Judge Rose, in Martin v. United States, 299 F. 287 (4 Cir. 1925), stated the rule followed in this circuit in determining the validity of an indictment:

The sufficiency of a criminal pleading should be determined by practical, as distinguished from purely technical, considerations. Does it, under all of the circumstances of the case, tell the defendant all that he needs to know for his defense, and does it so specify that with which he is charged that he will be in no danger of being a second time put in jeopardy? If so, it should be held good. * * *

Applying this rule, we have no difficulty in sustaining the indictment, for it contains a sufficient statement of the acts said to constitute the offense. Rule 7(c) Fed.R.Crim.P. The forbidden purpose — "preventing said Richard O'Keefe from testifying" — is stated unambiguously. It is inconceivable that the indictment did not put the appellant on notice of the specific nature of the charge against him, or that he was in the slightest degree misled by the use of the word "now" instead of "then." Indeed, we are not prepared to agree with appellant that the indictment failed to state an offense in using the word "now," for an endeavor to obstruct justice could as readily be made in anticipation of an indictment as during its pendency. In any event, no modern criminal court would be warranted in setting aside a conviction on account of such extremely technical deficiencies, which could have had no practical bearing on the defendant's awareness of the accusation or his ability to prepare his defense.

II. Admissibility of the Testimony of Agents Faulkner and Cobb

In the District Court, Missler's primary contention was that the testimony of Agents Faulkner and Cobb, which the District Judge termed the "cornerstone" of the Government's case, was unconstitutionally obtained and improperly admitted at trial in violation of his rights under the Sixth Amendment to the Constitution. In his reply brief in this court, though not earlier, the appellant advanced the additional claim that his rights under the Fourth Amendment were contravened by the manner in which the agents obtained the information concerning his January 9 conversation with Ferrara, and by their testifying in respect to that conversation. We proceed to a discussion of these two related claims.

A. Fourth Amendment

Appellant challenges the agents' testimony as the fruit of a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. His argument is that the agents should not have entered Ferrara's home...