United States v. Roberts, 71-1950.
| Decision Date | 01 September 1972 |
| Docket Number | No. 71-1950.,71-1950. |
| Citation | 465 F.2d 1373 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Eugene ROBERTS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert A. Burns, Toledo, Ohio, for defendant-appellant.
Peter M. Handwork, Asst. U. S. Atty., Toledo, Ohio, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Toledo, Ohio, on brief.
Before PECK, MILLER and KENT, Circuit Judges.
On October 7, 1969, the Union Bank Company of Kalida, Ohio, was burglarized. The burglars obtained coins, currency, E Bonds and travelers checks of a total value of approximately $36,000. On December 19, 1969, the Grand Jury returned an indictment in three counts charging the defendant with (1) entering a Federally Insured bank with intent to commit a felony in violation of Title 18 U.S.C. § 2113(a); (2) theft of items having a value of more than $100 from a Federally Insured bank in violation of 18 U.S.C. § 2113(b); and (3) knowingly receiving, possessing and concealing items of value stolen from a bank in violation of 18 U.S.C. § 2113(b), such knowing receipt and possession of such items being a violation of 18 U.S.C. § 2113(c). The jury acquitted the defendant of the violations charged in Counts I and II of the Indictment and convicted him of the violation set forth in Count III of the Indictment. The defendant was sentenced to imprisonment for a term of 10 years under Count III. Count III of the Indictment contained no allegation as to the value of the goods alleged to have been possessed by the defendant and made no reference to the other counts in the indictment.
The evidence offered by the Government may be summarized. The fact of the burglary of the bank on the night of October 7, 1969, the theft of approximately $36,000 worth of money, bonds and travelers checks, and the fact that the bank was insured by the Federal Deposit Insurance Corporation, were all established by the evidence.
A station wagon, subsequently traced to the defendant, was observed in Kalida near the end of September, 1969, with two unidentified young men in the station wagon. The witness's curiosity was aroused because of the presence of an out-of-state vehicle in the community and the license number was taken. On the night of the burglary one witness observed an unidentified and undescribed station wagon in Kalida but saw no one near the station wagon. At a different time, during the same night, another witness observed four men walking toward a motor vehicle, which he could not describe, parked in approximately the same position as was the undescribed station wagon. After the burglary of the bank had been reported the witness who took the license number of the maroon and white station wagon reported what he had seen to the Federal Bureau of Investigation. After the license number of the station wagon had been traced to the defendant the vehicle was located in Covington, Kentucky. The defendant was identified as a resident of an apartment house in Lookout Heights, Kentucky, where he was living under the name of William Hollis. Agents of the Federal Bureau of Investigation talked to the owner of the apartment house and asked that they be notified if the defendant moved out so that they could search the apartment. Subsequently, the owner evicted the defendant, notified the Federal Bureau of Investigation that he had been evicted, and a search was made with the permission of the landlord. During the course of the search dry cleaning tickets were found and upon investigation at the dry cleaning establishment there was obtained evidence that with the articles left to be cleaned for "William Hollis" were two "bank money bags" bearing the identification of the National City Bank of Cleveland, Ohio. Inside the money bags were coin wrappers, one of which bore the identification of the "Union Bank Company, Kalida, Ohio." The evidence for the Government established that the Union Bank Company of Kalida had dealings with the National City Bank of Cleveland and used bags similar to those found at the cleaners, but there was no testimony to establish that any such bags were stolen at the time the bank was burglarized. The testimony for the Government established that coin wrappers imprinted "Union Bank Company" were used by the bank which had been burglarized, but again there was no testimony to establish that any coins taken in the burglary were wrapped in such wrappers.
The summary of the evidence set forth above is considered in the light most favorable to the Government, which is the view we are required to take. United States v. Wolfenbarger, 426 F.2d 992 (6th Cir. 1970); United States v. Milby, 400 F.2d 702 (6th Cir. 1968).
On this appeal two issues are presented by the defense. The first issue presented is the assertion that the search of the apartment after the eviction of the defendant was an illegal search. This point is without merit on this record. The evidence viewed in the light most favorable to the Government adequately supports the trial court's conclusion that there was no collusion between the landlord and the Government Agents resulting in the eviction of Hollis and the subsequent search. We must accept the fact that the defendant was lawfully evicted from the premises and, therefore, the search of the apartment, after the defendant had moved out, with the consent of the landlord, was a legal search. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The second issue presented relates to the failure to allege in Count III of the Indictment, the count which resulted in a conviction, that the stolen goods alleged to have been knowingly possessed by the defendant had a value of more than $100.1
The Government argues, without citation of authority, that the indictment must be read as a whole, and that because Count II of the Indictment sets forth in detail the value of the items alleged to have been stolen that such value is, therefore, incorporated in Count III of the Indictment, although Count III makes no reference to Count II and does not incorporate any of the allegations of Count II in Count III as permitted by Rule 7(c), Rules of Criminal Procedure, 18 U.S.C.A. The Government's position finds no support in the cases. In ascertaining the sufficiency of the count of an indictment each count must be considered by itself. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 40, 76 L. Ed. 520 (1932); United States v. Russo,...
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