Sаmuel ROSENCRANZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Anthony DiPIETRO, Defendant, Appellant, v. UNITED STATES of America, Appellee. Frank ROMANO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Nos. 6113, 6115, 6235.
United States Court of Appeals First Circuit.
July 8, 1964.
335 F.2d 738
I find nothing in the cases cited by the court, or in the further similar cases cited by the district court, 198 F.Supp. 380 at 383, to the contrary. In those cases a prisoner was given a federal sentence, service to commence upon release from state custody under a state sentence then being served. Thereafter he was given a second state sentence, and held in further state custody. The rejection of his argument that he was to be regarded as having started serving his federal sentence when his first state sentence terminated, i. e., concurrently with the subsequently imposed second state sentence, seems to mе both sound and distinguishable from the present case.
Joseph J. Balliro, Boston, Mass., with whom Albert L. Hutton, Jr., Boston, Mass., was on brief, for appellants.
William E. McKinley, Asst. U. S. Atty., with whom Alton A. Lessard, U. S. Atty., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
On March 3, 1964 this court handed down its opinion in this case affirming the judgmеnt of the United States District Court for the District of Maine. On March 23, 1964 the Supreme Court decided the case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), holding that the search of an automobile without a war-
The government contends that appellants had no standing to file a pre-trial motion to suppress the evidence in question and, even if they had such standing, they waived their rights by not filing the pre-trial motion. Appellants freely admit that prior to the trial they were in no position to seek suppression of the evidence taken from the vehicle. A motion of that nature may be made only by a “person aggrieved by an unlawful search and seizure.”
Appellants contend that under the doctrine set forth in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), a defendant whose conviction is based upon illegally seized evidence, allowed in over a motion to suppress made by a co-defendant with standing, may appeal from the use of such evidence at his trial notwithstanding the fact that no appeal has been taken by the movant. Appellants do not claim any rights under
McDonald v. United States, supra, stated the principle that the erroneous denial of a pre-trial motion to suppress is prejudicial not only to the defendant who made the motion but to his co-defendant as well if the illegally seized material is the basis of evidence used against the latter at the trial. In McDonald, police officers entered McDonald‘s apartment after a period of surveillance. Present with McDonald was one Washington. Both men werе arrested and materials belonging to McDonald were seized. McDonald‘s motion to suppress was denied and the seized evidence was introduced at the joint trial of the two defendants. The Supreme Court, in reversing both convictions, stated at 335 U.S. 456, 69 S.Ct. 193:
“It follows from what we have said that McDonаld‘s motion for suppression of the evidence and the return of the property to him should have been granted. Weeks v. United States, supra [232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652]; Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 [51 S.Ct. 153, 158, 75 L.Ed. 374]. It was, however, denied and the unlawfully seized evidence was used not only against McDonald but against Washington as well, the two being tried jointly. Apart from this evidence there seems to have been little or none against Washington. Even though we assume, without deciding, that Washington, who was a guest of McDonald, had no right of privacy that was broken when the officers searched McDonald‘s room without a warrant, we think that the denial of McDonald‘s motion was еrror that was prejudicial to Washington as well. In this case, unlike Agnello v. United States, supra, 269 U.S. [20] at page 35, 46 S.Ct. at page [4] 7, 70 L.Ed. 145, the unlawfully seized materials were the basis of evidence used against the codefendant. If the property had been returned to McDonald, it would not have been available for use at the trial. We can only speculate as to whether other evidence which might have been used against Washington would have been equally probative.”
In Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963) and in Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961), the District of Columbia Circuit Court recognized McDonald as requiring reversal of the conviction of a defеndant where his co-defendant‘s motion to suppress had been wrongfully denied and the evidence admitted against both of them. In United States v. Chieppa, 241 F.2d 635, 638 (2d Cir. 1957), appellants argued that lacking the standing to invoke
“Before holding the admission of certain evidence prejudicial to the defendant Washington, McDonald‘s guest, the Supreme Court first found error in the denial of McDonald‘s motion. In the case at bar there was no pre-trial motion by any of the defendants and hence no underlying еrror the effects of which could be considered prejudicial to the appellants. The defendant Indian Hill Farms, or someone acting in its behalf, had ample time to make a motion to suppress prior to the trial. Michael Clemens, who must have been aware of the ‘raid,’ died а year before trial, but two years after the ‘raid‘, during which time he made no effort to invoke
Rule 41(e) .2 * * * ”
Here, a timely pre-trial motion to suppress was made by Amorello, and there is no doubt but that the trial court‘s erroneous denial of that motion severely prejudiced appellants since the seized materials formed a substantial part of the evidence used to convict them. In such a case, where the wrongful denial of a motion to suppress is prejudicial to both the defendant making the motion and his co-defendants as well, the right to have such evidence excluded from the trial cannot be limited to the defendant who originally made the motion to suppress. Were we to hold otherwise, the failure of the moving defendant to appeal would leave his co-defendants prejudiced by the wrongful denial of the motion to suppress but unable “to present their grievance before any court.” See Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953). We do not believe that it was the intention of the Supreme Court in McDonald to give a defendant this right and then make its exercise contingent upon whether or not the movant decided to take an appeal. See annotаtion 96 L.Ed. 76.3
The government believes that the fact that McDonald was not cited by the Supreme Court in Jones v. United States, supra, or Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), convincingly demonstrates that the Court wished to limit McDonald to its facts. In Jones, the appellant was arrested and tried alone and he alone appealed. The Court found that even though he was but a guest in the house in which the search took place, he had standing under
An order will be entered vacating the judgment of this court of March 3, 1964 and withdrawing the opinion of that date. A new judgment will be entered vacating the judgments of the district court, setting aside the verdicts, and remanding the cases to that court for further proсeedings consistent with this opinion.
ALDRICH, Circuit Judge (concurring).
I am sorry not to be able to join in the court‘s opinion, but I cannot bring myself to believe that McDonald is controlling. At the outset, although the advantages of playing the “numbers” game are problematical, it may be noted that while six justices concurred in the result so far as the defendant Washington was concerned, only three joined in the opinion. Under these circumstances it may be questionable to say, as the court does, that McDonald “was based upon the existence of a co-defendant with standing.” The Supreme Court may itself have had later doubts as to the scope of McDonald, as evidenced by the fact that although the briefs show it was cited by the parties both in Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the court made no mention of it. And, with all respect, it seems to me that some doubts would be justifiable. To have the answer to the question whether a defendant mаy assert an unlawful search and seizure depend upon the existence of a co-defendant who has such a right, and has himself made a pretrial motion, seems something less than logical.
Furthermore, if this is the scope of McDonald, then it seems to me that
Without reviewing the cases in extеnso, it seems to me that the real basis of the exclusionary rule is its effect as a police deterrent, and that the rule should be fashioned to deter the accomplishment of whatever purpose the police were improperly attempting to further. I believe, acсordingly, that the present defendants’ rights are not simply dependent upon Amorello‘s, as Washington‘s were said to depend upon McDonald, but are broader, and stem from their own status as parties against whom the search was directed. Surely, in stopping Amorello‘s truck, the interests of the police were not limited to the driver, but were directed against all those, whether their identities were known or not, who might be engaged in the operation of the still. I find support for this in Jones v. United States, supra, where the court said, 362 U.S. at 261, 80 S.Ct. at 731,
“In order to qualify as a ‘person aggrieved by an unlawful searсh and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at somеone else.”
While this conclusion avoids what I believe to be the weakness of relying upon McDonald it raises a further issue, namely the fact that if the present defendants had standing in their own right they should have moved in advance of trial unless the court, in its discretion, were to permit the matter to be raised at the trial for the first time. The district court expressly refused to exercise that discretion. Normally, this should be an end to it. However, while I believe that this is a discretion which we should be slow to overrule, the new circumstance of the decision in Preston v. United States while these proceedings were still viable causes me to feel that fairness would dictate a review of that discretion in the light of that occurrence, and that on such a review it would be an abuse of discretion to penalize the defendants for not having moved earlier. I accordingly agree that they should be entitled to a new trial.