United States v. Willis

• Decision Date: 12 February 1973
• Docket Number: No. 72-1397 to 72-1399.,72-1397 to 72-1399.
• Citation: 473 F.2d 450
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Glendal WILLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Virgil LOFTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dallas Coleman FISH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

473 F.2d 450 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. John Glendal WILLIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Virgil LOFTIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dallas Coleman FISH, Defendant-Appellant.

Nos. 72-1397 to 72-1399.

United States Court of Appeals, Sixth Circuit.

Argued December 12, 1972.

Decided February 12, 1973.

Certiorari Denied May 21, 1973.

John David Cole, Bowling Green, Ky., for John Glendal Willis.

Leland Logan, G. D. Milliken, Jr., Bowling Green, Ky., for Richard Virgil Loftin.

Philip Huddleston, (Court-appointed), Huddleston & Huddleston, Bowling Green, Ky., for Dallas Coleman Fish.

James H. Barr, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee; George J. Long, U. S. Atty., Louisville, Ky., F. Witcher McCullough, III, Sp. Asst. U. S. Atty., Houston, Tex., on brief.

Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.

Certiorari Denied May 21, 1973. See 93 S.Ct. 2290.

CELEBREZZE, Circuit Judge.

These are appeals from Plaintiffs-Appellants' convictions, after a jury trial, for possession of some 967 cases of whiskey stolen from a shipment in interstate commerce, in violation of 18 U.S. C. § 659. For the reasons set forth below, we affirm each of the convictions.

I. No. 72-1397 — Willis

As his grounds for appeal, Appellant Willis claims that the District Court erred as follows:

(1) In ruling that a barn located some 14 miles from his home and owned by his deceased mother's estate did not fall within Willis' Fourth Amendment rights;

(2) In ruling that Appellant Willis' written consent to a search of the above barn waived any Fourth Amendment rights which he might assert with respect to the search?

(3) In refusing to require disclosure of the informer who assertedly advised the federal agents that the stolen goods might be found in the barn; and

(4) In denying, without a hearing, his motion for a new trial based on newly discovered evidence.

The District Court's determination that Willis was "not entitled to claim an unlawful search" of the barn does not appear to comport with the Supreme Court's decisions in Jones v. United States, 362 U.S. 257, 263-365, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and Mancusi v. DeForte, 392 U.S. 364, 367-370, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). See, also Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972).

We nonetheless conclude that the District Court properly denied Willis' motion to suppress any evidence obtained in the search of the barn on the ground that Willis effectively waived his Fourth Amendment rights by signing the written consent to search form. The language of that consent form is reproduced in the margin.¹

The transcript of the hearing on Willis' motion to suppress is barren of any evidence to support Willis' present claim that the consent to search was not knowingly and intelligently given. Rather, that transcript reveals that the federal agents approached Willis at his home, told him that they had information that there might be stolen whiskey in the barn, and advised him that he need not consent to the search. In response, Willis disclaimed any knowledge of such whiskey, willingly signed the consent form in the presence of witnesses, and accompanied the agents to the farm.²

We find no merit in Willis' third claim that the District Court erred in refusing to require disclosure of the name of the informer who assertedly advised the federal agents that the stolen whiskey might be found in the barn. The motion for disclosure was made during the hearing on Willis' motion to suppress, and it was supported by no allegations that the requested disclosure would in any way assist Willis in his defense on the merits. This claim is thus controlled by Rugendorf v. United States, 376 U.S. 528, 534-535, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), wherein the Supreme Court upheld a District Court's denial of a similar motion for disclosure made in the context of a motion to suppress and unrelated to the petitioner's defense on the merits. Compare Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968).

Finally, we turn to Willis' claim that the District Court abused its discretion in denying, without a hearing, Willis' motion for a new trial based on newly discovered evidence. This motion was supported by the affidavit of a former Elkton, Kentucky, policeman, who stated that he had witnessed a warrantless search of the barn by the Elkton Police Chief, a deputy sheriff, and an unknown individual prior to the time the federal agents secured the consent to search. Because this affidavit was uncontradicted and the District Court conducted no hearing thereon and made no findings of fact with respect thereto, we must accept the statements in the affidavit as true.

We nonetheless conclude that the District Court did not abuse its discretion in denying Willis' motion for a new trial. We do not accept Willis' argument that the prior, unlawful search by local officials rendered Willis' written consent to the subsequent search by federal agents any less knowing or intelligent.³ Rather, we hold that even in view of the evidence of the prior, unlawful search — of which the federal agents may or may not have had knowledge — the search by the federal agents pursuant to Willis' written consent was reasonable, and therefore the District Court did not abuse its discretion in denying the motion for a new trial without conducting a hearing. See United States v. Crowder, 351 F.2d 101, 104 (6th Cir. 1965).

II. No. 72-1398 — Loftin

Appellant Loftin claims that the District Court erred as follows:

(1) In ruling that he had no standing to challenge the reasonableness of the search of co-defendant Willis' barn;

(2) In refusing to conduct an in camera hearing on his motion for disclosure of the identity of the asserted informer; and (3) In denying his motion for a judgment of acquittal.

Although Appellant Loftin asserted no possession or control of the barn, it appears that the District Court erred in refusing to recognize his standing to challenge the search under the rule enunciated in Jones v. United States, 362 U.S. 257, 263-265, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (affording such standing to any defendant charged with a substantive crime consisting of possession of contraband).

Whereas Loftin thus may have had standing to challenge the search, co-defendant Willis' consent to the search precludes Loftin from making such a challenge. It is clear that a search pursuant to the consent of one co-defendant is reasonable as to other co-defendants holding an interest in the premises equal to or lesser than that of the informer. See Friedman v. United States, 381 F.2d 155, 158-159 (8th Cir. 1967); Drummond v. United States, 350 F.2d 983, 989 (8th Cir. 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L. Ed.2d 542 (1966); United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert. denied, 347 U.S. 935, 74 S.Ct. 630, 98 L. Ed. 1086 (1954).

Loftin's second claim — that the District Court erred in refusing to conduct an in camera hearing on his motion for disclosure of the identity of the asserted informer — is without merit for the reasons set forth under the comparable claim asserted in Willis' appeal above.

Nor is there any merit to Loftin's final claim that the District Court erred in denying his motion for acquittal on the ground that there was insufficient evidence to sustain a jury verdict of guilty. Two witnesses testified that they had seen Loftin near the Willis farm. Two witnesses — one of them an independent witness and the other an accomplice who had pleaded guilty — testified that Loftin had approached them individually and offered each of them money if they would drive a White tractor-trailer to Clarksville, Tennessee. The stolen White tractor-trailer was subsequently found in a junkyard, the owner of which testified that he had done business with Loftin on prior occasions.

Beyond this circumstantial evidence — which, as recognized by the Supreme Court in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), is "intrinsically no different from testimonial evidence" see also United States v. Bradley, 421 F.2d 924, 926 (6th Cir. 1970) — the testimony of co-defendant Willis inculpated Loftin with the theft and the unloading of the whiskey at the barn. Moreover, Loftin admitted many of the above facts, and merely asserted that he had no knowledge that the whiskey was in the barn.

Without weighing the evidence, and taking the view of it, and all inferences which may reasonably and justifiably be drawn from it, most favorable to the...