United States v. Tanner

• Citation: 471 F.2d 128
• Decision Date: 24 October 1972
• Docket Number: No. 17917-17919.,17917-17919.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Alfred TANNER et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

471 F.2d 128 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Alfred TANNER et al., Defendants-Appellants.

Nos. 17917-17919.

United States Court of Appeals, Seventh Circuit.

March 3, 1972.

Rehearing Denied June 9, 1972.

Certiorari Denied October 24, 1972.

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Abraham Glasser, New York City, Sherman C. Magidson, Chicago, Ill., Jasper G. Harris, Jr., Houston, Tex., Barry S. Berger, Baltimore, Md., Maurice Edelbaum, New York City, for defendants-appellants.

Richard L. Rosenfield, Criminal Division, Appellate Section, Dept. of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and FAIRCHILD and PELL, Circuit Judges.

Certiorari Denied October 24, 1972. See 93 S.Ct. 269.

SWYGERT, Chief Judge.

This appeal challenges appellants' convictions for substantive offenses under 18 U.S.C. §§ 837, 1363, 2275 and for conspiracy under 18 U.S.C. § 371. The indictments of Joseph A. Tanner, Jack A. Pearl, Lawrence H. Rice, and Walter B. Chipman arose out of the bombing of the S.S. Howard L. Shaw in the Calumet Harbor, Chicago, the bombing of a transformer at the site of a grain elevator terminal in Ohio, and a series of bombings of railroad tracks in Ohio owned by the Wabash Railroad and the New York Central Railroad. All four appellants were convicted under Count I of conspiring to perform the above acts and under Count III of transporting explosives in interstate commerce (in violation of 18 U.S.C. § 837). Tanner and Pearl alone were found guilty of Count IV which alleged they had willfully and maliciously destroyed a structure, a dock at Calumet Harbor, and a vessel, the S.S. Howard L. Shaw, within the special admiralty and territorial jurisdiction of the United States (in violation of 18 U. S.C. § 1363), and Count VII which alleged they had knowingly and unlawfully set fire to a vessel of foreign registry within the jurisdiction of the United States (in violation of 18 U.S.C. § 2275).¹ Tanner and Pearl were sentenced to five years on Counts I, IV and VII and one year on Count III (the sentences on all counts to run concurrently). Rice received a six-month sentence and Chipman a year sentence on Count III. Chipman and Rice also received suspended sentences under Count I with five years' probation to begin upon the expiration of the sentences assessed under Count III.

The pivotal witness against appellants was Alvin Junior Cupp, a codefendant originally charged under the same indictment,² but whose trial was severed from and held prior to that of the remaining four. Cupp's testimony, which we briefly summarize, related events occurring between May 1963 and September 1963. Tanner, the vice president of the Seafarer's International Union (S.I. U.), and Pearl, his lieutenant, were cast as the instigators of a program of violence and intimidation, in which Rice, Chipman, and Cupp participated, directed against several companies with which the union was in dispute.

The conspiracy was allegedly formed in late April or early May 1963 at a meeting near Detroit attended by Pearl, Chipman, Rice, and Don Swait (a Canadian S.I.U. official who is an unindicted coconspirator). Tanner did not attend because of prior engagements, but was said to have ordered the meeting convened. According to Cupp's account, the purpose of the meeting was to arrange for Pearl and Cupp to relieve Chipman and Rice of their responsibilities for "the rough stuff on the Great Lakes."

On June 13, 1963 the first trip to obtain explosives was organized during a meeting of Chipman, Rice and Cupp, in Tanner's office in the S.I.U. hall in River Rouge, Michigan. The following day, Chipman, Rice, and Cupp travelled to LaFollette, Tennessee, to purchase explosives from Virgil Brooks (another unindicted coconspirator). Meetings were held throughout the month of June, variously attended by Cupp, Rice, Chipman, Pearl, and Swait, at which plans were discussed to blow up the C & O and Lake Front Coal Docks in Oregon, Ohio, and a store in Maumee, Ohio, the owner of which also owned grain elevators in Maumee and Toledo. On two occasions, the evening of June 29 and the morning of July 1, 1963, Cupp placed dynamite on the Wabash railroad tracks in Maumee with the aim of stopping trains carrying grain from reaching the grain elevators and thus interfering with the loading of ships.

On July 3, 1963, at the S.I.U. hall in River Rouge, Tanner gave Cupp $150, part of which was reimbursement for his expenses. Cupp reported that his supply of explosives was nearly depleted and during the ensuing discussions, attended at a later point by Rice, a second trip to LaFollette was arranged. Rice and Cupp later travelled to LaFollette to obtain additional explosives from Brooks. On July 12, 1963 Pearl met with Cupp in Toledo and conveyed Tanner's wish that the transformers in the grain elevator area at the Mid-State Terminal in Toledo be bombed. That night Cupp carried out the plan. Early on August 1, allegedly at the instigation of Pearl, Cupp placed explosives on the Wabash railroad tracks in Toledo. On August 2, once again after meeting with Pearl, Cupp placed explosives underneath the New York Central tracks in Ashtabula, Ohio.

On September 5, 1963, at the S.I.U. hall in River Rouge, Cupp, Tanner, and Pearl discussed bombing a ship of the Upper Lakes Shipping Company, docked on the Calumet River in Chicago. Pearl accompanied Cupp that evening to "look over" the ship and obtained reservations for Cupp at a Chicago motel. On September 6, 1963 Cupp placed explosives near the S.S. Howard L. Shaw. After the bombing of the Shaw, Pearl and Tanner arranged to have Cupp employed as a seaman and leave from Houston for a two-month trip. Cupp and Pearl then arranged to have Brooks contact Pearl in order to carry on with Cupp's activities during his absence.

The Government's principal corroboration for Cupp's account was the testimony of three witnesses: Rene Turcotte, a member of the S.I.U. of Canada, testified to meeting Pearl in late July or early August of 1963 on two occasions and related statements made by Pearl about plans to bomb Upper Lakes Shipping Company ships. Guy Swadley, an unindicted coconspirator, testified that in June 1963, at the S.I.U. hall in Milwaukee, Pearl discussed the use of high-powered rifles on ships in order to slow down their loading and questioned Swadley about where explosives might be obtained.³ Brooks related his dealings with Cupp in LaFollette during the summer of 1963. He also pointed out that Rice was similar in appearance to a man accompanying Cupp on one occasion, but admitted he was uncertain. Brooks testified to seeing Cupp in September or October 1963 in LaFollette and to making arrangements to meet with Pearl in Detroit. He then described meeting with Pearl at a Detroit hotel.⁴

Counsel for Rice and Chipman relied principally on alibi testimony for the period in question. By far the most important part of the defense of all appellants, however, consisted of attacks on Cupp's credibility since his performance as a witness can best be described as chameleon-like. Cupp's trial testimony, which incriminated all four appellants, was an explicit repudiation of the account he had given at his severed trial. Furthermore, he had changed his story at least twice prior to his own trial. The circumstances surrounding these abrupt shifts were repeatedly emphasized by the defense and included the following. In March 1965 Cupp was in the United States Penitentiary at Terre Haute, Indiana, serving a five-year sentence for bombing railroad tracks in Marquette, Michigan. In December 1965 he was brought from Terre Haute to the Cook County Jail in Chicago. Between December 1965 and April 1966 he was questioned by the Federal Bureau of Investigation on several occasions. In April 1966 he testified before a grand jury against the appellants.⁵ In December 1966 he was paroled after serving approximately twenty-one months of the Marquette sentence.⁶

Between May and July 1967 Cupp made several overtures to the defense for the purpose of recanting his grand jury testimony and accusing the Government of suborning perjury. On July 16, 1967 when Cupp and Pearl were to meet with Pearl's lawyer to notarize tape-recordings and written transcripts of Cupp's conversations with Pearl, the FBI arrested Pearl for failing to carry his draft card⁷ and seized his briefcase containing the tapes and transcripts. That evening Cupp was arrested for illegal possession of a pistol and released on his own recognizance. Approximately three weeks later his parole was revoked, and he was returned to jail. From July 1967 through March 1968 Cupp continued to accuse the Government of subornation and claimed he would not be a government witness.

Cupp's trial was severed from that of the other defendants in March 1968 and was held in the following May. Toward the end of 1968, Cupp recanted again, admitting to the FBI that he had committed perjury during his trial. In April and May of the following year, Rice, Chipman, Tanner, and Pearl were tried, and Cupp became the Government's pivotal witness. In August 1969 Cupp's ten-year sentence was reduced to one year.

Because of this history, Tanner and Pearl's principal challenge is directed at the admissibility, or alternatively, the credibility of Cupp's testimony, though they claim error in other aspects of the trial as well. Rice and Chipman claim that the trial judge, erred in denying their motions for severance and their motions to dismiss several counts of the indictment as defective. See United States v. Tanner, 279 F.Supp. 457 (N.D. Ill.1967).

I

Appellants challenge the admissibility of Cupp's testimony on fourth amendment grounds. They claim that Pearl's arrest on July 16, 1967, which was subsequently declared unlawful by the trial judge, and the seizure of the contents of Pearl's briefcase including...