United States v. Viggiano

• Decision Date: 10 November 1970
• Docket Number: No. 193,Docket 35212.,193
• Citation: 433 F.2d 716
• Parties: UNITED STATES of America, Appellee, v. Robert VIGGIANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

433 F.2d 716 (1970)

UNITED STATES of America, Appellee, v. Robert VIGGIANO, Defendant-Appellant.

No. 193, Docket 35212.

United States Court of Appeals, Second Circuit.

Argued October 7, 1970.

Decided November 10, 1970.

Jerome Lewis, New York City, for appellant.

James O. Druker, Special Atty., Dept. of Justice (Edward R. Neaher, U.S. Atty., E.D.N.Y., and Denis E. Dillon, Sp. Atty., Dept. of Justice, on the brief), for appellee.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The appellant Robert Viggiano was convicted on a single charge of possession of stolen goods in violation of Title 18 U.S.C. § 659 and was sentenced to five years imprisonment. At the trial the Government presented evidence which was the product of a search and seizure authorized by two search warrants issued by a United States Commissioner. The accused challenged the validity of the warrants on the ground that the supporting affidavits on which the Commissioner relied were insufficient to show probable cause. A motion to suppress was made in advance of trial; the court held a hearing on the motion and denied it. The defendant now appeals from the judgment of conviction because the trial court refused to exclude the evidence seized. We affirm.

The search warrants were based upon the affidavits of F.B.I. Special Agent Paul Stapleton and were issued on October 24, 1968. They authorized the F.B.I. agents to search the ground floor of a dwelling located on Farragut Road and occupied by Allen Viggiano, appellant's brother, and the garage attached to the premises at 245-02 South Conduit Boulevard, Queens. The agents executed the warrants the following day and seized six cartons of Russ Togs brand wearing apparel at the Farragut Road residence.

The F.B.I. learned of the stolen goods and their whereabouts through one Allen Magid, a "walk-in," with whom the F.B.I. had had no experience before he came to the Bureau offices on October 24, 1968. After interviewing Magid, the F.B.I. agents made a quick investigation of their own and Agent Stapleton prepared affidavits summarizing Magid's report and the results of the F.B.I. inquiries. In substance the affidavits¹ gave the Commissioner the information that: in August, 1968 Robert Viggiano told Magid that he had just purchased a load of Russ Togs clothing which he wanted to resell for $17,000; that a month later one Vic Orena gave Magid a key to the garage at 245-02 South Conduit Boulevard, Queens, with instructions to show the merchandise to prospective buyers; that Magid entered the garage October 22, 1968 and saw a quantity of boxes, bearing Russ Togs labels, some of which bore out-of-state addresses, and a quantity of ladies' and children's wearing apparel, having Russ Togs labels; and that Magid had given Agent Stapleton the key to the South Conduit Boulevard garage.²

They further stated that in early October, 1968, Robert Viggiano told Magid he had received another Russ Togs load, and Viggiano showed Magid a quantity of boxes bearing Russ Togs labels with out-of-state addresses; that on October 7, 1968 Robert Viggiano told Magid that he had moved "the load" to a storage room on the ground floor of his brother's home "around the corner," and that Magid knew that Allen Viggiano, Robert's brother, lived "around the corner" at 9031 Farragut Road; that Robert Viggiano informed Magid on October 20, 1968 that the merchandise was still at the Farragut Road address and that Magid would be told when the shipment was moved elsewhere, but that Magid had not been so informed before reporting to the F.B.I.

They also disclosed that by its own inquiries, the F.B.I. learned that a truck containing $36,000 worth of Russ Togs apparel consigned to out-of-state purchasers had been hijacked in Manhattan on August 20, 1968; that a motor carrier's depot had been burglarized September 30, 1968 and that a quantity of Russ Togs apparel, labelled for interstate shipment, had been stolen.

Appellant contends the warrants obtained on the basis of these allegations were issued without probable cause. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Supreme Court discussed the constitutional standards to be applied in assessing the sufficiency of a warrant application containing not only an informant's report but also the results of an independent F.B.I. investigation which was said to corroborate at least a part of the informant's representations. The Court in that case reaffirmed the dual requirements of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that the warrant application must state "some of the underlying circumstances" from which the informant drew his conclusions concerning the suspect's criminal activities and disclose some of the reasons which gave assurance of the informant's reliability.

In the present case the question is whether or not there was sufficient in the informant's report and the information gained by the F.B.I. in its outside inquiry, both as stated in the affidavits, to justify the Commissioner in deciding that the informant was generally trustworthy and that what the informant knew which led to his making the charge was obtained in a reliable way. Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589, 21 L.Ed.2d 637.

We conclude that the affidavits were...