*1 inconsis- in Petrol in the statement proc- upholding the service tent with meant, the refer- What we as ess here. makes in Petrol Arrowsmith
ence to although that, clear, 4 fixes Rule service, scope it does manner and subject person say served when jurisdiction that served 4(f) although pro- Similarly, Rule him. on certain service
vides for out-of-state
defendants, service will not be valid such enough contacts with
unless have subject to suit to be
the state service
there. dismissing party the third
The order jurisdiction
complaint is re- lack
versed. Dorothy Joseph
Michael GURLESKI Villafranca, Appellants, America,
UNITED STATES Appellee. SMITH, Appellant,
Frank America,
UNITED STATES of Appellee.
Nos. 25339. Appeals States Court of Fifth Circuit.
Nov. 1968.
Rehearing Denied in No. 25339 Dec. 1968.
Rehearing En Banc Denied in No. 25339
Jan. 1969.
Rehearing En Banc Denied No. 25338 Jan. *3 *, Before and CLAYTON GOLDBERG NOEL, Judges, District
Circuit Judge. Judge:
GOLDBERG, This is Circuit appeal convictions a consolidated from conspiracy appellants three Dyer Act, violate 18 U.S.C. § of the same and substantive violations act. the indictment was Count One of general conspiracy under which count guilty. appellants found three charged Count Three of the indictment *4 transporting a stolen 1966 Gurleski with Volkswagen from Texas to California charged and and as Villafranca Smith Four aiders and abettors. Count charged Branton, defendant, another transporting with stolen Pontiac charged from Texas to Nevada and Gur- leski, Villafranca and as aiders Smith and abettors. The found Gurleski guilty and under Villafranca Counts Three and Four of the indictment guilty under Four but not Smith Count guilty appel- under These Count Three. appeal lants under all their convictions counts.
Appellants Gurleski and Villafranca questions raise substantial constitutional regard to certain searches and sei- zures admission review, therefrom. After careful we af- appear firm for reasons will below. I.
THE SEARCH UNDER THE WARRANT Knox, McCalla, Dudley D. G. Will Joseph Austin, Tex., for Michael Gur- The facts the search conducted leski, et al. undisputed. under the warrant search 23, 1967, Deputy Gary Simp- On March Holman, L. Brooks Robert Everett County son of the Travis De- Sheriff’s Looney, Austin, Tex., for Frank Smith. partment conducted a search premises Jefferson, Jr., Elmo in Andrew L. First Asst. St. Circle Aus- tin, Texas, pursuant Morgan, Atty., validly Atty., to a U. S. Ernest U. executed S. Harris, Atty., Ralph III, state search warrant. The H. U. S. warrant Asst. Tex., Antonio, appellee. specified objects San as search certain * constituting Judge Clayton, pursuant 46, Judge third to 28 § U.S.C.A. court, participated Clayton having part hearing in the taken no the final present opinion. decision of this case. draft of this opinion quorum of the rendered A war is conceded that reasonable searches and seizures. It items.1 enumerated only upon probable items cause several officer seized must issue the state rant describing place to specifically “particularly the warrant listed listed). things person (and items that were none of the be searched early Supreme objects Appellant Court to the introduction seized”. requirement that war described were not “the the items seizedwhich stated that specifically particularly warrant, describe Government in the shall rants justi general government things seized makes to be 57-64.2 Exhibits pre impossible and of this and introduction under them fies seizure searches thing two alternative of one evidence grounds. either of vents seizure describing to what government first As contends another. warrant nothing properly taken, dis question objеcts is left that the were to be executing the warrant.” were seized as because cretion of the officer admitted States, or “fruits of crime” Mar ron “instrumentalities 74, 76, during of a 72 L.Ed. of the crime” the execution 48 S.Ct. (1927). An alternative valid warrant. search ground Supreme relied is the Court’s language were unwaver If this broad abrogation rule in the “mere evidence” every case, ingly applied is obvious Warden, Hay Maryland Penitentiary, v. a valid seizure that there could never be den, 18 L.Ed. anything not described search (1967). Appellants, 2d hand, on the other However, doctrine the Marrón warrant. *5 of liken the search and seizure generally prevailed has when general exploratory these items to a considered rea search and seizure was search for evidence such con as sonable under all circumstances. Lefkowitz, demned in United States Many lower and intermediate federal 452, 420, L.Ed. 877 circuit, courts, including those of this (1932). They government’s answer the regarded have Harris v. United assеrting argument by alternative 145, 1098, L.Ed. 331 U.S. 67 S.Ct. Supreme even if the Court abolished has (1947), formulating exception as an the “mere evidence” rule in federal language Marron, of thus strict cases, search and seizure of evi “mere permitting the introduction of evi dence” is still forbidden Texas law. type in seized searches of dence principal question The for determination judice. Harris, volved in the case sub remains extent to which evidence the defendant was convicted of unlawful during seized a search conducted under possession, concealment and alteration admittedly valid warrant search Selective Service documents. These doc if it is admissible not described in the uments were admitted over into evidence warrant. objection. grounds defendant’s objection The for agents The Fourth Amendment were that of the FBI prohibits United States Constitution un had a warrant to arrest defendant 1. The Keup containing warrant authorized a search in the name of David a following: (1) projector, (2) green registration a 16 mm card iden- Minnesota tape (3) recorder, tifying a Wallensak a record a car a re- 1966 Pontiac player, (4) filmstrip projector ceipt car; a Viewlex Keup for said issued David (5) filmstrip 62, Hotel, Vegas, a combination Viewlex No. a Stardust Las projector player. “receipt” with record out in of Mike made the name Gurleski; prior 63, registry No. a use exhibits, during 2. These items seized from Stardust Hotel also the name warrant, 64, the execution of a search were: Mr. a Gurleski and No. collection 57, cigar box; 58, piece No. instruments, including No. a a Texas motor paper telephone with an gov- Austin number vehicle title. certificate The it; 59, printed No. material with two ernment com- witness also described as telephone numbers; cigar names and No. out of box a set of silver- postcard advertising key “pick-keys,” gold-colored master car colored a set of sets; personalized ignition keys No. cheсk book switch tumblers. gestión process made that and in has been this search mail fraud violations thorough long in dis was too or too duration. to that arrest incident of a search looking incriminating Deputy Simpson for the Serv was ob Selective covered the entirely relating jects specified in he dif the warrant. to an When ice documents Supreme up upon possi Court came indicated ferent offense. automobiles, that the and found ble theft from of reasonably he could held the conviction subject properly evidentiary objects were have seized the discovered language question court matter in as seizure. The instrumentalities might principal for the basis which be connected with the theft which forms many opinions relying objects specified court lower warrant. Harris is as follows: position Our is buttressed agents present were in case In the Supreme Court’s decision Abel v. indicating petition- possession of facts 362 U.S. 80 S.Ct. guilt probable crime for er’s (1960), 4 L.Ed.2d where thе warrants of arrest were which upheld a search incident to an ad general not a issued. search was prior deportation ministrative arrest specifically exploration direct- but discovery objects which resulted in the ed the means and instrumentalities leading espionage. to a conviction for charged which crime had been agents specifically looking were not * ** agents committed con- evidence, such but discovered good ducted their faith for search orderly in the course of an search un purpose discovering objects authority. der specifi lawful The court ** * specified. Nothing in the cally found that the administrative agents’ conduct was inconsistent with subterfuge search was not a for a search purpose. their declared uncovering directed toward evidence of 1098, 1102. espionage. Similarly, there was no cov attempt ert ring unmask a car theft reasoning of the Harris in the case at bar. There is no evidence mаjority, specifically while related to *6 federal authorities had contacted ap arrest, searches incident to a lawful state officials to ask them to make plies equal force to a search made pretended a goods. search for stolen In authority under valid of a search war case, in Abel, as Harris and officers Supreme rant. The Court in Warden v. acting good in proper faith and under Hayden, supra, impliedly considered authority discovered evidence of more authority (either searches under lawful than one logical offense. There is no warrant) arrest warrant or search to be or reason, constitutional in governed by the absence the same The limitations.3 any showing of unreasonableness, why good search must be one directed in the discovery fruits such a should objects specified not faith toward be admissible Supreme evidence. The warrant or for other means and instru speaking Court through by Mr. charged Justice mеntalities which the crime spoke logically Frankfurter directly had been committed. must a It not be to this issue when it general said: exploratory through search merely hope which the officers subject to dis When an article to lawful sei- wrongdoing. sug cover evidence of properly No zure comes into an officer’s 3. Mr. Justice Brennan hand, objects stated the issue may other those which Heyden: review in validly Warden v. including be seized the instru- validity We in review this case by mentalities and means which a crime proposition there is under the committed, the fruits of crime such Fourth Amendment be- property, “distinction weapons by as stolen which merely evidentiary materials, tween escape person might of the arrested be hand, may effected, one which property possession be seized authority either under of a search 296, of which is a crime.” at during warrant course at 87 S.Ct. arrest, search incident and on the
259 possession upholding lawful course of a seized. in in entirely аgain without search it would search seizure relied on say They he return must reason to Harris rationale. reasoned that things discovery provided not one of the because it was of the furs other to look for. Abel it was his business evidence that crime had another been supra, 238, 80 v. United committed which the officers could not ignore. majority S.Ct. at 697. relied on the safe guards issuance surround of a stringent exception Marron justify search warrant the seizure of re Harris doctrine formulated in objects. nonspecified “Probable cause to by the in has been followed iterated Abel existed, regardless search automobile majority federal tribunals.4 of lower developed.” search 297 what U.S.App. Johnson v. United 110 F.2d at 597. This is balanced state (1961), 351, cert. den. F.2d 539 D.C. 293 ment law which demands 167, 888, L.Ed.2d S.Ct. U.S. good reasonable, searches be faith and 118, a search had warrant officers privacy.5 not an unwarranted invasion articles, including a vac certain stolen cleaner, uum radio and other valua clock Seymour 369 F.2d searching In the ables. course 1966), cert. den. 386 U.S. looking things, in a these an officer L.Ed.2d is an- dresser drawer discovered a credit card example other where a seizure of complaining issued the name specifically items described in the the credit witness. introduction of upheld. search warrant was The court upheld card into evidence was recognized strong sanctions of the court, relying Harris. The court stat strong Fourth Amendment also the engaged ed that an officer in a lawful language opinion the Marrón but seizing only search is not confined to said: those items es described warrant * * * pecially notwithstanding specific- where the unlisted seized items ity prohibition, instrumentalities of a crime. of the constitutional Eisner, recognized apparently States the courts have cert. den. exception a narrow dictated practicalities particular 8 L.Ed.2d the defendant of a situation receiving was convicted of and conceаl as where the course of a lawful garments. Agents pursuant stolen fur had search to a lawful arrest or obtained a search warrant certain the execution of a valid search warrant furs which were not found in defendant’s the officer uncovers of anoth- *7 automobile. Other furs were in fact er crime. 369 F.2d 827. candor,
4.
States,
In all
it must
that
be admitted
5. The case of
v.
Kremen
United
some of
the lower
federal
have
courts
1
353
L.Ed.2d 876
language
(1957),
by appellant
example
adhered to the strict
of Marron
cited
distinguished
opinion
the Harris
on
of an unreasonable
bad faith
search.
ground
agents
There,
Harris was
that
concerned
removed
entire
con-
scope
only
attempted
with the
Of a search incident
tents of a
house
to intro-
scope
every
to an arrest while the issue was the
duce
item in evidence. There was
pretense
of a
a
search under
search warrant.
a
not
even
of á search
di-
example,
Coots,
objects.
specific
For
see United States v.
rected toward
Rather
F.Supp.
(E.D.Tenn.1961);
general exploratory
196
United
775
there was a
search
Sorenson,
F.Supp.
every
524
States
202
condemned
the decisions
1018;
(E.D.N.Y.1962),
contrast,
aff’d 330
in
F.2d
court
the United States.
In
States,
investigated
Woo Lai
274 F.
Chun v. United
officers
who
the home
1960);
(9
2d
This
search was limited in
ises at 904 St. Elmo Circle in
and duration.
It
Austin on
was conducted under
29, 1967,
authority
March
and while there
lawful
searched
obtained from an im
Mercury
partial magistrate.
deputy
objects seized,
vehicle. The
although
sheriff
warrant,
testified
without
described
contradiction
gave
purpose
Mrs.
had a
Villafranca
reasonable relation to the
both oral and
written
prem
consent
of the search.
a search of the
Johnson v. United
supra;
Russo,
ises and the
executed written
States v.
250 F.
consent
Supp. 55,
signature
(D.C.Pa.1966).
Mrs. Villafranca’s
We have
Gov
emphasized
addition,
ernment’s Exhibit
seized
could
items
easily
record shows Mrs.
classified as
Villafranca
fruits and instru
herself
opened
crime,
the trunk of the
mentalities of a
car.
but since
Gurleski
Warden
*8
objects
Hayden, supra,
unnecessary
v.
to
introduction
it is
of evidence
for
unequivocally
automobile,
taken from
principally
to
us
state
that
the seized
objects
ground
on the
were in fact
that
fruits and
Mrs. Villafranca
instru
finding
objects
could not
mentalities. A
authorize a search
car
that
of his
reasonably
voluntary
are
no matter
related to the
how
her consent
offense
necessary
urges
alternatively
committed is all that
that
search.6 He
following
awl,
rivets,
gloves, (7)
rag,
(8)
(6)
items were taken from
a
an
(1)
(9)
(10)
the trunk of the
a small
Car:
bucket
a
vari
broken screwdriver
container,
(2)
drill, (3)
or
a hand
a rivet
small
ous other
items such as hooks
gun,
(4)
screwdrivеr,
(5)
assorted
rivets.
certainly
could
to a search
officers
believed the
if she
consent
auto
that even
jointly
car,
mobile was
owned as well
could
consent to
be
she
possession
cause Mrs.
the trunk of the car because
Villafranca had
search
pri-
keys
personal
help
which she used to
locked trunk was
searching
by opening
officers
the trunk
vate.
for them. The officers took the items
principal
for
issue
determi
they eventually
described above which
Villafranca,
thus whether
nation is
Mrs.
belonged
learned
to Gurleski.8 There is
Gurleski, could
not the wife of
who was
coercion;
no evidence of
the search was
of his automobile.
consent
search
conjunction
not even conducted in
outset,
government
At
contends
an
indicating
arrest.
the record
With
brought
first
that counsel
Gurleski
purely voluntary oral and written con
evidence to
attention of
sent,
clearly
this search reasonable
object and that he did not
its admis
under all the circumstances.
However,
the record indicates
sion.
suppress
Appellants
contend,
an oral
counsel made
motion
how
ever,
op
presented
ap
an
and thus
trial court
reasonableness
not the
propriate
portunity
They
to determine this issue. Such
standard in all cases.
rely
preserve
a motion is sufficient
the is
on Cofer v. United
F.2d
appellate
1930),
sue
review.7
where this court held
authority
that a “wife was without
split
issue
The authorities
by waiving
bind her absent husband
person
search of
consent
one
to a
legal warrant,
consenting
unau
belongings or residence. The
another’s
thorized search”. 37 F.2d
679. The
for decision in
invariable criterion
these
repudiated
Fifth Circuit has never
search and seizure
cases is whether the
allowing
doctrine of not
a wife to waive
was reasonable under the circumstances.
her
rights.
husband’s
constitutional
citation,
Too numerous
are the cases
However there is no husband-wife rela
which reiterate
Fourth Amend-
tionship in the case at bar. Rather two
prohibits only
ment
those searches and
persons
living
unrelated
together
were
seizures which are unreasonable. The
as man and mistress. We think that
Supreme
Court stated
United States
doctrine should not be extend
Cofer
Rabinowitz,
beyond
ed to situations
the close confi
(1950)
94 L.Ed.
:
dential
designed
marital relation it was
is a reasonable search is not to
What
protect.
Instances of “waiver” of a
by any
be determined
fixed formula.
rights by
defendant’s
another are not
The Constitution does not define what
example,
unusual. For
in United States
* *
are “unreasonable” searches
*.
Eldridge,
recurring questions
of the rea
the defendant
loaned his car to a friend
sonableness
searches must find res
day.
for the
suspected
Police
olution
the facts and circumstances
might
car
contain
They
stolen firearms.
56, 63,
of each case. 339
obtained the friend’s consent
to search
430, 434.
the car. Ever cooperative,
the friend
The uncontradicted
voluntarily оpened
car,
the trunk of the
Deputy
Simpson
Sheriff
indicates
and officers found and seized two stolen
the search of this car was reason Coast Guard
up
radios. The court
beyond any
holding
able
doubt. Mrs. Villafranca
admitting
the search and
gave
permission
her oral
to the search
evidence found that “lower federal courts
searches,
parked
of the car. The car was
immedi
have deemed
reasonable if con
ately
joint
person
front of the
residence of
sented
posses
in lawful
appellants Gurleski
sion
seized,
Villafranca.
prem-
articles
or the
*9
States,
U.S.App.
7. Waldron v. United
8.
95
Gurleski’s
counsel
intimated
the
66,
37,
(1955).
D.C.
F.2d
41
items found in the trunk of the car ac-
tually belonged to the witness Hinton.
* * *."
kéy
appellant’s
had
to
found
Skinner who
are
ises on which
Nothing
apartment.
majority analyzed
in the record in-
263
by
insistence,
her home
statements
and admissions
and acts of
her
took
her
at
conspiracy portion
change
might
Mrs.
co-defendants
clothes.9
to
that she
so
“Miranda-type”
This contention
indictment.
has
read
Villafranca
way
adversely
appellant
to
nota-
been decided
warnings
a card on
from
bly
opinion
Judge
thought
in the
it nec
Learned
The officers
her home.
weapons,
Olweiss,
Hand in
United States
essary
for
the home
to search
possible
F.2d 798
cert.
the crime
den.
instruments
483,
L.Ed.
escape.
revealed
1047.
The search
means
The court
there held
that
admission
evid
into
items later
introduced
certain
of such statements
is not limited to the
ence.10
hearsay exception
conspiracies,
for
“but
objection
appellants
Any
which
merely
general
is
an incident of
seizure
make to this
search and
could
principle
agency
any
that
the acts of
the failure of counsel
was waived
agent,
scope
authority,
within
of his
suppress
object
or to
make a motion to
competent against
principal.”
his
intro
the evidence obtained when it was
familiar
duced at trial.
rule
too
to need citation that
absence of
Appellant Villafranca
also
bringing
illegally
the error of
evi
seized
urges
erred,
that
the trial court
view
court,
dence
the attention of
trial
record,
sentencing
her to
of her
serve
objection
is waived unless there has
three-year
One, Three
terms on Counts
miscarriage
jus
been
fundamental
concurrently.
run
and Four to
It is ele
tice. Admission of
articles seized
sentencing
mentary
discretionary
that
certainly
search of
house would
judge,
the trial
and he did not
considering
not be fundamental error
fixing
punish
abuse his discretion
overwhelming weight
statutory
ment within the
limits. We
connecting
evidence
these
defendants
reversing
have no warrant
because
Though
charged.
with the crimes
it is
the defendant had small children and
unnecessary
ques
us to decide
that
this was her first conviction.
In
tion,
compelled
we are
to state that
deed,
given-
the trial
could have
the evidence indicates
this search
consecutive sentences on all the counts.
was a reasonable one incident
to the
Gore v. United
357 U.S.
addition,
arrest of Mrs. Villafranca.
(1958);
franca was
telling
abetting
aiding
consideration of De Luna is
guilty
spiracy
present
charged.
not
in this case.
the offenses
Decisions
as Barton v.
such
United
IV.
States,
1959),
(5
F.2d
Cir.
263
894
17,
States,
Schaffer v.
221 F.2d
United
APPELLANT
BY
RAISED
POINTS
1955),
(5
54 A.L.R.2d
820
Cir.
SMITH
persuasive.
cases,
In each of
those
correct,
appellant
his was
If
Smith
co-defendant had
amade
confession or
surely
trials
the most error-filled
one of
gravely implicated
statement which
juris-
Anglo-American
in the annals
prudence.
seeking
defendant
severance while tend-
assigns
briefs, he
In his two
exculpate
the co-defendant. The
error,
fifty-two points of
than
no less
quite properly
courts
believed that
questions
raise substantial
of them
Some
joint
admission
the statements in a
below. The rest
be treated
which will
pj rty
cooper-
trial would сast one
as the
totally
merit
and without
frivolous
are so
picture
ative witness and
the other as
without dis-
will be dismissed
unresponsive
guilty.
both
No such
cussion.
situation exists here where
de-
efforts of
highly
fense counsel were
coordinated.
A.
There
nowas
abuse oí discretion in de-
the motion
severance
Denial
for
nying severance to defendant Smith.
14,
Federal
Crim
Rule
Rules
B.
provides
Procedure,
relief from
for
inal
alleged
allowing
error in not
Smith’s
joinder
prejudicial
discretion
counsel to comment
on
court.
denial of severance is
the trial
A
failure of
testify.
other
only upon showing of abuse
reversible
defendants
Opper v. United
trial,
of that discretion.
Prior to
the district
or-
158,
States,
84,
348
99
U.S.
dered that defendants who took the stand
(1954).11
101
L.Ed.
would
upon
not be allowed to comment
Appellant
ones who did not.
contends
by appellant
cited
The cases
prejudicial
this order was
in argument
support
lend
his
sev
no
antagonistic
his defense was
to that of
on,
principal
erance. The
case relied
De
the other defendants and that the attor-
140,
States,
1
Luna v. United
F.2d
308
ney
nonappealing
defendants Woods
1962),
(5
reh. den. 324
A.L.R.3d 969 Cir.
trying
and Garner was
to shift the blame
where the
F.2d
involved a situation
for their
this,
acts to Smith. Because of
interest of the co-defendants were se
argues
duty”
counsel
that he “owed the
verely conflicting. The court noted the
employ
commenting
trial tactic of
attorneys
noncooperation between
on the failure of other defendants to
attempts by
and the
co-defendants
testify.
throughout
each defendant
the trial
culpability
very
shift
the other. The evi
This
contention is
similar
the con-
Again,
dence in the instant case is to
one raised as to severance.
discretion,
nature of the
11. Absent some abuse
trial court’s discre
showing
depth
tion
a clear
is discussed
demonstrated
prejudice
in Peterson v.
consequent
States,
(5
denial of
United
Cir.
F.Supp. 78,
(S.D.N.Y.
trial,
1962),
not sub-
a fair
the determination
81-82
aff’d
1965);
ject
Kahaner,
United States v.
to rеversal.
F.2d
cert.
den. 375
Smith
United
1967).
cousin had tossed some narcotics to
C.
right
an arrest was made and that
before
Alleged prejudicial
gov-
he did not
that
had
know
his cousin
been
comment
transporting
respect
attorney
narcotics. Counsel for
ernment
with
to the “se-
nefarious
relative asserted
de-
cret” or
serial
“confidential”
identifica-
together
fendants had been
for
whole
tion marks and the
the trial
refusal of
caper. Thus,
to demonstrate
the inno-
allow
as to
cross-examination
Gomez,
duty
cence of
of his
the location
these marks.
counsel
to comment on the failure of
offending
statement of the
De Luna to
cousin
contradict Gomez’s
government
attorney
appel
for which
ease,
version of
incident.
this
sought
lants
to have a mistrial declared
hand,
appellant
the other
counsel for
al-
reads as follows:
only
segment
minute
ludes
one
object
please,
If Your Honor
we
this
trial where he claims one
defendant at-
answering
tempted
exculpate
question.
witness
We
himself in this man-
any
portion
do not think that
issue before the
This
does
ner.
requires
time
this
not have the effect counsel
for
Court
this
Smith
imputes
any
substantially
witness or
other
to dis-
to it.
record
witness
highly
location,
indicates
coordinated
close the
either exact
defense
united, spir-
vicinity
all the
near
of the confidential
defendants
upon
credibility
placed
apparently
ited attack
number
of wit-
which
Boyd,
just
nesses Hinton and
neither
a de-
there to avoid
the kind of cir-
dealing
fendant
in this case.
cumstances we are
D.
the location
disclose
To
case.
this
investigations
impair
seriously
would
keep
previ-
Denial
Smith’s
motion
substan-
kind and contribute
jury.
criminal record
ous
from
operations like this
tially
to success
had been
Defendant Smith
case.
future
some
theft
in 1949 and of be
of car
convicted
attorney
mistrial
moved
Appellant’s
robbery by
accomplice to
firearms
remarks, but
upon
of these
issuance
pardon from
He
a full
in 1952.
obtained
for a
to ask
significantly
fit
did
see
of Texas between those offens
State
only
This could
cautionary instruction.
es and his trial
this offense. He
brief,
was a
the fact
be due
pardon
asserts
bars the
thus
government
why the
statement
sober
introduction
these con
divulge this evidence.
preferred
impeachment
purposes.
victions
language
inflammatory
*13
no
There was
Logically,
not a
this
is
well-founded
was
possibility that
the statement
no
pardon
and
proposition.
any
A
other rea
jury’s
prejudice
the
in
to create
intended
subsequent proof
than
son
of innocence
long,
Despite appellant’s
flour-
mind.
pre
does not obliterate
the defendant’s
contrary,
argument
these
ishing
transgressions
particularly
they
vious
as
for the United States
remarks of counsel
may
present
bear on his
character
and
insignifi-
extremely
veracity. Any
may
considered
must be
number of reasons
granting
long
lie
of an
trial.
behind the
exеcutive
the course of
cant in
f
pardon,
granting
pardon
but
o a
Appellant
any
next
that
insists
not in
does
itself
indicate
defect
Neither
it ne
error
convictions.
does
preyious
committed reversible
trial
gate any bearing
they may
have on
allowing him to cross-examine
not
present
credibility.
Appellant
intro
Agent
the location of these
Powers as to
concerning
duced no evidence
the motives
gist
numbers. The
secret
identification
granting
pardon.
behind the
contention is that
numbers
of this
being
the absence of
doubt
cast on
easily
might
been located
some
have
on
validity
convictions,
pardon
of these
part
the automobile
and
removable
States,
is not a bar. Richards v. United
might
tampered with
that someone
have
U.S.App.D.C. 354,
might
or that
evidence
(1951),
A.L.R.2d
cert. den.
appellant
However,
laid
not be accurate.
L.Ed.
proceeding
foundation for
on such a
no
argues
Smith further
theory,
identi
location of the secret
and
the convictiоns were too remote.
The
appears
wholly
fying
ir
numbers
to be
matter of remoteness
is another matter
any
defense
asserted
relevant
within
sound discretion of the trial
prosecution
need not
Smith.
Just as
court. Goddard v. United
divulge
generally
the name of an inform
(5
1942). Here,
F.2d 220
Cir.
while one
materiality
shown,
is
er unless some
eighteen years old,
conviction was
need not
reveal
location of
these
nevertheless
was
an offense identical
to the one for which
on
highly
Smith was
trial.
marks,
valuable tool
which are
Thus,
the trial court could have consid
to law enforcement officers in discover
remote,
overly
ered it relevant and not
solving
addition,
ear thefts.
trial court’s
determination should
already
this court has
answered
appeal.
not be reversed on
contrary
question
appellant’s
conten
E.
tion Williamson v. United
1959)
F.2d 495
cert. den. 362
competency
witness Hinton
G.
there was an actual
that
the cars
sale
the wrecked remains
Sufficiency
the evidence.
matching
papers.
other
There is
jury
could have
from which
evidence
argues
Appellant
finally
Smith
were
knew
cars
inferred that Smith
that
there is not
credible
sufficient
evi
alleged phone call
as
stolen
his
such
dence to sustain his conviction
the other
warn
the West Coast
Counts
and Four of the
One
indictment.
Moreover,
conspirators.
Smith was
assigns
of the reasons he
for this
One
price
iden
paid a
for the vehicle
unit
positively identify
him as
is a failure
provided
but rather was
he
tification
in the con
Frank Smith involved
selling price of the
paid half
spiracy.
is
one
The basis for this
that
automobiles,
definitely
“busi-
trial,
unusual
Frank
at
witnesses
phone
arrangement.
call men-
PER CURIAM:
ness”
provides
that he
evidence
tioned above
rehearing,
petition
appel-
In his
transported
been
the ears had
knew
objects
lant
to our
Gurleski
conclusion
any
state lines to California.
across
original
opinion
in
he had
event,
that a defendant
it is shown
once
any objections
waived
to the search and
gov-
involved, the
were
stolen cars
knew
seizure inсident To
arrest of Mrs.
he knew
not show that
ernment need
Villaf
in-
ranea. Counsel
Gurleski
support
interstate commerce
moved in
judge
prior
sists
the trial
announced
Dyer
conspiracy
conviction.
Act or
objections
any
to trial
de-
States,
F.2d 680
Donaldson
inure
of all
would
benefit
fendant
1936);
(7 Cir.
Loftus v. United
defendants.
The trial
did make
1931).
sum-
ON REHEARING BANC IN NO. 25338. EN REHEARING ON PETITION FOR 25339. BANC IN NO. PER CURIAM: CLAYTON*, Before GOLDBERG NOEL, Judges, Upon District of all briefs re-
Circuit reconsideration Judge. appel- ceived the court on behalf of * constituting deny Judge Clayton, judge petition rehearing cisión to the third participate court, in this de- filed herein. did not Smith, of all lant, a review Frank appealing co-defend- briefs Smith’s ants, case are of view we correctly decided. has been denied, Rehearing is The Petition panel nor no member regular the court service active polled having requested the court be (Rule rehearing Federal en banc Procedure; Appellate Local Rules of the Petition
Fifth Rule Circuit
Rehearing En Banc is denied. Plaintiff, SCHWARTZ, J.
Robert TRANSAT
COMPAGNIE GENERAL LANTIQUE, Third- Defendant and Party Plaintiff-Appellant, America, DE UNITED STATES JUSTICE, BUREAU PARTMENT OF OF IMMIGRATION AND NATURALI Third-Party SERVICE, Defend ZATION ant-Appellee.
No. Docket 32648. Appeals
United States Court of
Second Circuit.
Argued Nov. 1968.
Decided Dec.